State v. McDonnell, SCWC-14-0000355

CourtSupreme Court of Hawai'i
Writing for the CourtOPINION OF THE COURT BY RECKTENWALD, C.J.
Citation409 P.3d 684
Parties STATE of Hawai'i, Respondent/Plaintiff-Appellee v. William MCDONNELL, Petitioner/Defendant-Appellant
Docket NumberSCWC-14-0000355
Decision Date28 August 2017

409 P.3d 684

STATE of Hawai'i, Respondent/Plaintiff-Appellee
v.
William MCDONNELL, Petitioner/Defendant-Appellant

SCWC-14-0000355

Supreme Court of Hawai'i.

AUGUST 28, 2017


Craig W. Jerome, for petitioner.

Stephen K. Tsushima, Honolulu, for respondent.

RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH POLLACK, J., DISSENTING, WITH WHOM WILSON, J., JOINS

OPINION OF THE COURT BY RECKTENWALD, C.J.

409 P.3d 687

William McDonnell was found guilty of sexually assaulting his minor daughter (Minor) in November 2013. On appeal to the Intermediate Court of Appeals (ICA), McDonnell argued that the family court improperly admitted the testimony of the State's expert witness, Dr. Alexander Bivens. Dr. Bivens testified with regard to the dynamics of child sexual abuse, including delayed reporting and underreporting by victims of abuse, and "grooming" techniques typically used by abusers. Bivens' testimony included statistics regarding how often abuse occurs in the child's home, and how frequently it involves individuals who are known to the child. McDonnell argued that Dr. Bivens' testimony was irrelevant, was unduly prejudicial, and improperly profiled McDonnell as a child molester. The ICA affirmed McDonnell's conviction, and he now seeks review in this court.

This case requires us to consider how expert testimony can properly assist a jury in understanding the relationship between victims of child sexual abuse and their abusers. As we explained in State v. Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990), "sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse[.]"

We conclude that the family court did not abuse its discretion in admitting most of Dr. Bivens' testimony since the testimony helped explain the interaction between Minor and McDonnell, and its probative value outweighed its prejudicial effect. While we further conclude that the statistical evidence should not have been admitted, that error was harmless beyond a reasonable doubt.

Accordingly, we affirm the ICA's judgment on appeal.

I. Background

McDonnell was charged with three counts of sexual assault in the first degree1 (Counts I, II, and III) and three counts of sexual assault in the third degree2 (Count IV, V, and VI) in the Family Court of the First Circuit3 for six separate acts that occurred on or about November 1, 2012.

A. Trial Proceedings

1. Motions in Limine

McDonnell filed a motion in limine asking the family court to exclude Dr. Bivens' testimony as irrelevant and overly prejudicial. In response, the State filed a motion in limine asking the court to admit Dr. Bivens "as an expert witness on the dynamics of child sexual assault."

McDonnell filed a second motion in limine asking that the court exclude evidence regarding the "general area of the dynamics of child sexual assault" as "irrelevant, confusing or misleading" under HRE Rules 4014 and

409 P.3d 688

403

.5 He noted that Dr. Bivens planned to testify to "actions said to be commonly performed by the so-called typical sexual abuser and the typical characteristics of a sexual abuser, i.e., 'profile evidence,' as exhibited in the 'abuse process' and 'grooming process.' " He argued that such expert testimony was not relevant, had the potential to bolster Minor's credibility, and risked profiling him as a sex offender.

The family court held a hearing on the parties' motions in limine. In response to defense counsel's arguments that Dr. Bivens' proposed testimony was based on "statistics for studies which the defendant's not a part of and has [sic ] nothing to do with this case," the family court stated:

Well, isn't it the jurors['] credibility to determine credibility? Because the jurors going to be instructed that the expert testimony can be disbelieved by them, okay. And doesn't that goes [sic ] to credibility of the witness, such as like, for example, your client is saying, well, you know, this person has a motive to accuse me of these crimes and, therefore, you want all these letters and e-mails come in, wouldn't Dr. Bivens be the same? His credibility is on trial.

The family court ruled that Dr. Bivens would be allowed to testify because testimony on the "phenomena of child abuse" is relevant under Batangan. The court noted that, if Dr. Bivens testified to statistics, the defense could "challenge him on those studies."

2. Trial Testimony: Minor and Mother

At trial, the State presented Minor and McDonnell's wife, Minor's mother (Mother), among other witnesses. Minor was thirteen years old at the time of trial.

Mother testified that she and Minor typically slept in a separate bedroom than McDonnell. She testified that Minor fell asleep in McDonnell's bedroom on November 19, 2012, and that McDonnell said not to wake her.

Minor testified that, while she slept in McDonnell's bed that night, she woke up around 2:00 a.m. because she felt a hand on her thigh. Minor testified that McDonnell moved his hand into her underwear, rubbed her vagina, and inserted a finger into it. Minor testified that she "sat there dumbstruck" and "wanted it to stop." She testified that she turned her back to McDonnell, but he did not stop, so she left the room.

Minor testified that she went into the bedroom where Mother was sleeping, but did not wake Mother up because she had to work in the morning. Minor testified that, when she woke the next morning, Mother had already left for work. Minor testified that, later that day, she told Mother that McDonnell "had touched [her] that night."6

Mother testified that she then talked to McDonnell about what Minor told her. Mother told McDonnell "don't do that again because it's a crime," and then told him to "apologize to [Minor]." She testified that McDonnell responded "yes." When Mother asked McDonnell why he did it, he replied, "I don't know," and added, "I'm so sorry." After that night, they did not talk any more about the incident, and nobody called the police.

Minor testified to several other incidents where McDonnell touched her in a sexual way. For example, during one incident she "was sitting on his computer ordering this game and then he kind of came up behind me and he kind of like groped my boobs." Minor also testified that McDonnell gave her a "sexual hug" where he "put his hands like

409 P.3d 689

down my pants and ... touch[ed] my butt." In another incident, Minor testified that she asked for a foot massage, and McDonnell moved his hands up her leg and inserted his finger into her vagina. Another time, she asked for a back massage, and McDonnell "massage [d] my butt and then ... put his finger inside my butt hole." Minor also testified to an incident where McDonnell took pictures of her while she was undressed and "after taking the pictures he like put his mouth on my vagina and started like kissing it and sucking on it." Minor explained that she did not report the abuse to Mother at that time because "I didn't want to see my mom sad."

Minor also discussed a pattern of trading sexual contact for things that she wanted. She testified that McDonnell "came up with the term 'benefits' to get stuff I wanted." She explained that "benefits" meant that "I would willingly let him touch me to get what I wanted" and that "I wouldn't tell anybody [.]" She would generate a "wish list" of expensive items, and when she asked McDonnell to buy them, "[h]e would kind of pull out the term 'benefits.' "

Minor testified that the last time McDonnell touched her was on a Saturday or Sunday. According to Minor, McDonnell put his hands down her pants, "touched my butt and kind of like massage[d] it," and then "tr[ied] to touch my vagina." When McDonnell wanted to touch her the next day, Minor testified that she was "fed up" and "wouldn't do it," and that he said "you know one day I'll screw you." Minor became "really mad" and responded "one day I'll kill you for all the pain you caused me." She then "slammed the door in his face" and left.

The following Monday, on January 14, 2013, Minor went to school and told her school counselor about the incidents with McDonnell. Minor's school then notified the police.

On cross-examination, Minor admitted that after McDonnell was arrested, she "hacked" his computer and made purchases using his Amazon account. Minor also admitted that she told the police detective that she did not look at pornography, and that she was lying when she told the officer that.

3. Trial Testimony: Dr. Wayne Lee

The State also presented Dr. Wayne Lee, an expert regarding the "examination of individuals for alleged sexual assault[.]" Dr. Lee testified that he examined Minor on January 14, 2013, and that Minor described "an incident that occurred 48 hours previous to [the] exam between her and [McDonnell]." Dr. Lee testified that he followed "a check off list asking specific questions relative to a sexual assault." He asked Minor whether her genitals were penetrated, and Minor stated that her vagina was penetrated by McDonnell's fingers.

Dr. Lee also testified to other questions on his list:

[Dr. Lee]: The other check marks that she answered in affirmative was whether or not William McDonnell had fondled her. And she said he touched my butt, I said stop. And also with regard to masturbation, I asked her if he had tried to put his hand on her genital area. And her response was yes. And that I asked ... what she meant by that. She said he was massaging it, meaning her genital area.

[State]: And did she say anything with regard to touching or penetration of her anus?

[Dr. Lee]: When I asked about the penetration of her anus she indicated no.

Dr. Lee testified that Minor told him that the abuse had occurred "more than 20 times" since September 2012.

Dr. Lee testified that after going through the questions, he asked Minor "if there was anything else you want to add." Minor then answered that McDonnell "inserted his finger in my asshole twice"...

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8 practice notes
  • State v. Jones, SCWC-16-0000345
    • United States
    • Hawaii Supreme Court
    • June 30, 2020
    ...this testimony, as the rule is designed for case-by-case application in the trial courts. See State v. McDonnell, 141 Hawai‘i 280, 293, 409 P.3d 684, 697 (2017) ("The determination of the admissibility of relevant evidence under HRE Rule 403 is eminently suited to the trial court's exercise......
  • State v. David, SCWC-19-0000319
    • United States
    • Supreme Court of Hawai'i
    • September 9, 2021
    ...by the average trier of fact who lacks the expert's skill, experience, training, or education." State v. McDonnell, 141 Hawai‘i 280, 291, 409 P.3d 684, 695 (2017) (citation omitted). When the issues in the case are within jurors’ common knowledge, however, "expert testimony is unnecessary."......
  • State v. Engelby, SCWC-15-0000724
    • United States
    • Supreme Court of Hawai'i
    • June 12, 2020
    ...rule[s], such interpretation is a question of law, which [the appellate] court reviews de novo." State v. McDonnell, 141 Hawai‘i 280, 289, 409 P.3d 684, 693 (2017) (citing Barcai v. Betwee, 98 Hawai‘i 470, 479, 50 P.3d 946, 955 (2002) ).B. Plain Error ReviewPursuant to Hawai‘i Rules of Pena......
  • State v. Bringas, NO. CAAP-17-0000543
    • United States
    • Court of Appeals of Hawai'i
    • October 11, 2018
    ...evidence offered under Rule 404(a)(1) must still be reviewed with respect to HRE Rule 403 ); State v. McDonnell, 141 Hawai'i 280, 293, 409 P.3d 684, 697 (2017) (even if expert testimony is relevant and admissible under HRE Rules 401, 401, and 407, it may still be excluded under HRE Rule 403......
  • Request a trial to view additional results
8 cases
  • State v. Jones, SCWC-16-0000345
    • United States
    • Hawaii Supreme Court
    • June 30, 2020
    ...this testimony, as the rule is designed for case-by-case application in the trial courts. See State v. McDonnell, 141 Hawai‘i 280, 293, 409 P.3d 684, 697 (2017) ("The determination of the admissibility of relevant evidence under HRE Rule 403 is eminently suited to the trial court's exercise......
  • State v. David, SCWC-19-0000319
    • United States
    • Supreme Court of Hawai'i
    • September 9, 2021
    ...by the average trier of fact who lacks the expert's skill, experience, training, or education." State v. McDonnell, 141 Hawai‘i 280, 291, 409 P.3d 684, 695 (2017) (citation omitted). When the issues in the case are within jurors’ common knowledge, however, "expert testimony is unnecessary."......
  • State v. Engelby, SCWC-15-0000724
    • United States
    • Supreme Court of Hawai'i
    • June 12, 2020
    ...rule[s], such interpretation is a question of law, which [the appellate] court reviews de novo." State v. McDonnell, 141 Hawai‘i 280, 289, 409 P.3d 684, 693 (2017) (citing Barcai v. Betwee, 98 Hawai‘i 470, 479, 50 P.3d 946, 955 (2002) ).B. Plain Error ReviewPursuant to Hawai‘i Rules of Pena......
  • State v. Arroyo, CAAP-18-0000875
    • United States
    • Court of Appeals of Hawai'i
    • June 28, 2022
    ...in support of dismissal with prejudice. The State's arguments are thus deemed waived. See State v. McDonnell, 141 Hawai'i 280, 295, 409 P.3d 684, 699 (2017) ("Generally, if a party does not raise an argument at trial, that argument is deemed waived on appeal." (citing State v. Moses, 102 Ha......
  • Request a trial to view additional results

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