State v. Maule, 11016-1-I

• Decision Date: 12 July 1983
• Docket Number: No. 11016-1-I,11016-1-I
• Citation: 667 P.2d 96,35 Wn.App. 287
• Parties: STATE of Washington, Respondent, v. Donald Irving MAULE, Appellant.
• Court: Washington Court of Appeals

Page 287

35 Wn.App. 287

667 P.2d 96

STATE of Washington, Respondent, v. Donald Irving MAULE, Appellant.

No. 11016-1-I.

Court of Appeals of Washington Division 1.

July 12, 1983.

Julie Kesler, Washington Appellate Defender Association, Court-appointed, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Jennifer Eychaner, Deputy Pros. Atty., Seattle, for respondent.

SCHOLFIELD, Judge.

Defendant Donald Irving Maule appeals his conviction, following jury trial, on two counts of first degree statutory rape. We reverse.

At the time of the alleged incidents, Maule was living with Sherry S. Maule's son and his daughter, Kimberly, who was 8 at the time of trial, and Sherry's daughter, Denise, who was 5 years old at the time of trial, also lived with them. On May 15, 1981, Sherry contacted the sexual assault center at Harborview Medical Center (Center) to report alleged incidents of child sexual abuse. Nancy Ousley, from the Center, interviewed Denise on May 18 and interviewed Kimberly about a week later. Janice London from Child Protective Services also interviewed Kimberly. As a result of the ensuing investigation, Maule was charged with rape of both Denise and Kimberly.

Both girls were permitted to testify at trial. Although the trial judge expressed some "misgivings" about Denise's competency to testify, he believed Denise could discern right and wrong, that her memory of events and her capacity to describe them were "sufficient" and that she would be able to say what she recalled with the assistance of anatomically correct dolls.

Kimberly testified that "[m]ore than one time" Maule put one of his fingers into her vagina, pointing to indicate she understood where her vagina was located. Kimberly also testified that "[m]ore than one time" her father placed his finger in Denise's vagina. Denise testified that Maule placed his finger in her vagina, using an anatomically correct doll to demonstrate, and also testified that Maule touched Kimberly in the same manner. On cross examination, many of Denise's answers to questions were unresponsive, contradicted other answers, or were highly improbable.

Nancy Ousley testified that she had worked with victims of sexual abuse at the Center for 5 years; that 54-55 percent of the sexual assault center's caseload of about 750 involved victims under the age of 16; that "[t]he majority [of cases] involve a parent-figure, a male parent-figure, and of those cases that would involve a father-figure, biological parents are in the majority"; and that "the great majority" of cases involved abuse "over an extended period of time as opposed to a single incident." Ousley also testified concerning the characteristics of abused children in general, ¹ and stated that in her opinion, both Kimberly and Denise manifested characteristics during their interviews consistent with those of sexually abused children. Ousley also testified as to her usual procedure for interviewing a suspected child sexual abuse victim and that, while she did not recall exactly the procedure used with Denise, she "guess[ed] that it would be fairly consistent with what I have just explained."

On cross examination, Ousley was asked, "Have you ever known any children who have lied?" Ousley replied, "In five years maybe one or two." On redirect, Ousley was asked if her testimony concerning "maybe one or two that have lied" concerned children lying about sexual abuse. She replied that "I should say that those isolated cases have been collective to our agency, and it[']s been very unusual to have false reports from children. There generally has been some sort of abuse that is going on." A defense objection to this testimony was overruled on the grounds that the subject had been opened upon cross examination. The State thereafter elicited additional testimony upon redirect as to the reasons which make it unusual for children to fabricate such stories.

Janice London's testimony concerned her interview of Kimberly, Kimberly's conduct and appearance during the interview, and London's subsequent report to the police. This evidence was adduced to show London did not subject the children to any improper influence. The State did not elicit testimony concerning statements made by Kimberly or Denise during interviews conducted by either Ousley or London.

Maule's defense was that the alleged incidents of sexual abuse were fabrications attributable to the influence of the investigators and of Sherry, who was allegedly embittered by the breakup of her relationship with Maule and who "punished [Denise] if she doesn't do what her mother wants her to." Maule testified that he had been infected with pinworms; that Kimberly had displayed symptoms of the infection; and that he had all the children pull down their pants while he checked their rectal areas for signs of pinworms. Maule denied placing his finger in either girl's vagina. Maule's personal physician confirmed that Maule had been infected with pinworms, but could not commend rectal examination to discover pinworms in children older than "diaper-aged" and did not not recall advising Maule to examine his children for pinworms.

The jury thereafter found Maule guilty on one count alleging statutory rape of Kimberly and one count alleging statutory rape of Denise.

We first consider Maule's contention that the trial judge erred in admitting Nancy Ousley's testimony concerning the incidence of and typical characteristics of child sexual abuse cases, Denise and Kimberly's manifestation of such characteristics, and her procedures for investigation of child sexual abuse cases. Maule argues on appeal that Ousley was not qualified as an expert and that the trial judge erred by failing to determine "whether the scientific principle from which deductions are made is sufficiently established to have gained general acceptance in the scientific community." State v. Canaday, 90 Wash.2d 808, 812, 585 P.2d 1185 (1978). We do not agree.

Although Ousley's testimony was the subject of a pretrial motion in limine, the record discloses that defense counsel sought to exclude her testimony solely on hearsay and relevancy grounds. Defense counsel's statement that Ousley "is not a doctor" was insufficient to apprise the trial judge that Ousley's qualifications as an expert and/or the scientific principles underlying her conclusions were challenged. No error can be assigned to an evidentiary ruling where the objection at trial was insufficient to apprise the trial judge of the grounds of objection asserted on appeal. State v. Wixon, 30 Wash.App. 63, 631 P.2d 1033 (1981). Consequently, we will assume for purposes of this appeal that the trial judge properly exercised his discretion in determining the preliminary question of whether Ousley qualified as an expert witness whose testimony would "assist the trier of fact." ER 702, 104; State v. Fagundes, 26 Wash.App. 477, 614 P.2d 198 (1980).

Ousley's testimony concerning her duties at the sexual assault center, the number of cases she handled, and the percentage of those cases involving children were therefore relevant to her qualifications as an "expert" in the field of child sexual abuse and, consequently, were admissible. Likewise, taking Ousley's qualifications as an expert as given, her testimony concerning the typical characteristics of a sexually abused child and whether Denise and Kimberly exhibited such characteristics was relevant. The real question was whether a proper foundation had been laid to make the opinion admissible under ER 702 and 703. We will address those issues in more detail later in this opinion. This evidence was adduced over general or relevancy objections by the defense which were not sufficiently specific to preserve error.

Ousley's testimony that the "great majority" of child abuse cases involved abuse over an "extended period of time" was adduced without defense objection. Ousley's testimony as to her usual interviewing practices was relevant to prove that her interviews with Kimberly and Denise were in conformity with such practices, ER 406, and conducted without improper influence on Ousley's part. Ousley's testimony on redirect, including instances of children lying about sexual abuse, was proper testimony on a subject opened on cross examination. No error was preserved as to admission of this evidence.

Defense counsel did, however, object on relevancy grounds to Ousley's testimony that a majority of child abuse cases involved a male parent figure, with biological parents in the majority. The State views this evidence as merely buttressing Ousley's qualifications as an expert. We do not agree.

Notwithstanding the State's protestations, we are persuaded that the testimony objected to was offered as substantive evidence to help persuade the jury that Maule was guilty. Substantive evidence prejudicial to the opposing party does not lose its prejudicial character because it is offered during qualification of an expert. Its admissibility must be determined pursuant to ER 403 the same as any other evidence which is relevant but involves a danger of unfair prejudice. The State does not contend that sexual abuse committed by father figures differs so materially from sexual abuse committed by persons who are not father figures that an expert in the cases of the latter type might be thought less qualified to identify examples of the former type. The State identifies no reason for establishing Ousley's credentials in a subfield of child sexual abuse by biological fathers as opposed to all other father figures. The relevancy of this evidence is not discernible.

On the other hand, the prejudice to Maule was great. In State v. Steward, 34 Wash.App. 221, 224, 660 P.2d 278 (1983), we held that it was reversible error to admit "expert" testimony in a second degree murder prosecution of a babysitting boyfriend that, on the basis of the expert's experience, "serious injuries to children were often...