State v. Reser

• Decision Date: 20 January 1989
• Docket Number: No. 61994,61994
• Citation: 244 Kan. 306,767 P.2d 1277
• Parties: STATE of Kansas, Appellee, v. Daniel RESER, Appellant.
• Court: Kansas Supreme Court

Page 1277

767 P.2d 1277

244 Kan. 306

STATE of Kansas, Appellee, v. Daniel RESER, Appellant.

No. 61994.

Supreme Court of Kansas.

Jan. 20, 1989.

Syllabus by the Court

1. A victim's behavior subsequent to reported assaults is relevant corroborating evidence of the assaults. Expert testimony on common patterns of behavior by victims of sexual assault is not rendered irrelevant where the defendant claims alibi rather than consent.

2. The trial court did not err in qualifying a witness as an expert on child abuse who was not a psychologist or psychiatrist, but who had a master's degree in social work and extensive experience and recognition in the field of mental health and child abuse.

3. The trial court did not err in refusing to give PIK Crim.2d 51.07. This instruction is given only under unusual circumstances requiring the jury to be cautioned against sympathy or prejudice influencing its decision.

Rick Kittel, Asst. Appellate Defender, argued the cause and Benjamin C. Wood Chief Appellate Defender, was with him on the brief, for appellant.

James W. Lusk, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

HERD, Justice:

Daniel Reser appeals his jury convictions of five counts of rape, K.S.A. 1987 Supp. 21-3502, and three counts of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506. Reser was sentenced to concurrent terms of imprisonment of five to twenty years on each count.

The victim was 14 years old on the morning of June 15, 1987. Her stepfather, Daniel Reser, came into her bedroom after her mother had gone to work. Reser awakened his stepdaughter by tearing aside her blankets and her nightclothes. He then raped her.

On the afternoon of June 20, the victim was on the phone with a classmate when the classmate heard her repeatedly asking Reser "to stop." The victim then hung up, ashamed because Reser was undressing her as she talked. Reser then threw the victim on the floor and raped and sodomized her.

On the morning of July 4, the victim was in bed asleep. There were guests staying in the house over the holiday so the victim shared her bed with a 4-year-old boy. At about 7:00 a.m. Reser entered the victim's bedroom. He played with her breasts, put his hand inside her clothes, and put his finger in her anus. Although the victim could hear people talking downstairs, she testified she did not cry out because she did not want her mother and the little boy's mother to have to find out what Reser was doing to her. The little boy remained asleep throughout this incident.

On July 6, Reser raped the victim while she was alone at home. On another morning a few days before the victim went to cheerleading camp on July 20, Reser raped and sodomized her while her mother was at work. Reser again raped his stepdaughter on the morning of July 24, just after she returned from camp.

After the first incident, the victim began staying away from home with friends and relatives as often as she could to avoid Reser. On August 1, the victim's mother found a note from her daughter stating she was going to live with her sister. The mother went to where the victim worked and told her she must remain at home. She asked what the problem was and the victim started crying and said "Mom, you don't want to know." The mother asked the victim if Reser had "gotten fresh" with her. She asked this because Reser had once told her he was sexually aroused by the victim. The victim finally told her mother of Reser's actions.

When confronted by his wife, Reser denied anything had happened. He then left the house and went to the police station to talk to his good friend, Ronald Dean, the town's chief of police. After a casual conversation, Reser began talking about how the victim had "become wild." He said he could see her while she bathed when he stood outside and looked through the window curtains. Reser ultimately told Dean he had had sexual intercourse with the victim. At trial, Reser acknowledged talking to his friend on August 1 but denied stating he had had sexual intercourse with the victim.

Helen Swan, a licensed social worker, testified for the State. Swan evaluated the victim on two different dates for a total of about four hours. She told the court she diagnosed the victim as suffering from post-traumatic stress disorder.

The defense objected, claiming Swan did not qualify as an expert qualified to diagnose or testify concerning post-traumatic stress syndrome. The trial court found Swan qualified as an expert after hearing her qualifications and the proposed testimony outside the presence of the jury.

Swan is not a psychologist or psychiatrist. She is an international expert on the subject of child abuse. She is licensed as a clinical specialist in Kansas and has a master's degree in social work from the University of Kansas. She has had twelve years of experience in the area of mental health: the first seven with the Johnson County Mental Health Center, and the last five in private practice specializing in child abuse cases. She has worked with over 200 cases of abuse. She has qualified as an expert witness in sexual abuse cases in Nebraska, Missouri, and Oklahoma as well as Kansas. She has been recognized on two separate occasions by the governor's conference in Kansas for her work and has received an award from the National Committee for the Prevention of Child Abuse, which is given to one person in the nation each year. She has published books and articles on the subject and has recently presented papers at international conferences on child abuse in Montreal, Amsterdam, and Paris. Swan is listed as an expert in child sexual abuse cases in the prosecutor's manual for child sexual abuse cases published in 1985 by the Kansas Bar Association.

Swan did not use the term post-traumatic stress syndrome before the jury, but testified that children who are sexually abused tend to report fairly consistent symptoms or common patterns of behavior resulting from the trauma. She noted children seldom report sexual abuse immediately, "particularly within family situations." The great majority "tend to keep it inside because they think it will go away or they don't want to embarrass people or they don't want to embarrass themselves."

Swan testified she had sufficient data to form an opinion as to whether the victim showed symptoms consistent with sexual abuse. She was of the opinion the victim exhibited behavior consistent with a child who had been sexually abused.

While the briefs of both parties leave the impression Swan testified the victim suffered from post-traumatic stress syndrome or rape trauma syndrome, that did not occur. The record is clear that Swan testified only as to traits and patterns common to victims of sexual child abuse and that the victim exhibited some of these traits. She did not go into an explanation of the post-traumatic stress syndrome, nor did she try to narrow it to rape trauma syndrome.

The first issue on appeal is whether Swan's testimony was inadmissible because Reser did not claim consent as a defense. Kansas cases so far have allowed expert testimony on characteristics shown by rape victims only where the defense is consent. Reser's sole defense was that he was not present when the offenses were alleged to have taken place. He made no attempt to show his stepdaughter was not the victim of sexual abuse. Reser's defense did, however, necessarily imply the victim lied when she identified him as her assailant.

It is fundamental that in order for expert testimony to be admitted into evidence at trial it must be helpful to the jury. State v. Hodges, 239 Kan. 63, Syl. p 1, 716 P.2d 563 (1986). Reser argues that evidence of the characteristics exhibited by sexually abused children did not aid the jury in the case at bar because he never denied his stepdaughter had been sexually abused. However, his argument ignores the requirement the State must prove every element of the crime charged, which included rape and sodomy. The victim's behavior subsequent to reported assaults is relevant corroborating evidence of the assaults. We find no error.

The second issue is whether there was adequate foundation to qualify Swan as an expert. The defense argues there was no showing Swan was qualified to diagnose symptoms consistent with child abuse or that the basis for her conclusions were accepted within her field of social work or within the fields of psychology or psychiatry.

Before an expert opinion may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular field. State v. Marks, 231 Kan. 645, Syl. p 7, 647 P.2d 1292 (1982). In Marks, we found rape trauma syndrome to be generally accepted as a common reaction to sexual assault so that such diagnosis by a psychiatrist was admissible. Here, the question is whether a social worker with great experience in sexual abuse cases is qualified to testify a victim exhibits some of the characteristics commonly found in sexually abused children.

The basis for admission of expert testimony is necessity, arising out of particular circumstances of a case where the normal experience of jurors needs augmentation to help them draw proper conclusions from the facts. State v. Hodges, 239 Kan. 63, Syl. p 1, 716 P.2d 563. K.S.A. 60-456 limits expert testimony in the form of opinions or inferences to those based either on data perceived by or personally made known to the witness at the hearing or "within the scope of the special knowledge, skill, experience, or training possessed by the witness." K.S.A. 60-419 provides there must be evidence that a witness has personal knowledge of a material matter or "experience, training or education if such be required."

Whether a particular witness possesses the knowledge and experience to aid the jury and to testify as an expert concerning a material matter rests within the sound discretion...