Stevens v. Commonwealth

• Decision Date: 01 December 2020
• Docket Number: Record No. 1275-19-2
• Citation: 72 Va.App. 546,850 S.E.2d 393
• Parties: Richard Paul STEVENS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

72 Va.App. 546

850 S.E.2d 393

Richard Paul STEVENS

v.COMMONWEALTH of Virginia

Record No. 1275-19-2

Court of Appeals of Virginia.

DECEMBER 1, 2020

Susan E. Allen (The Law Office of Susan E. Allen, Attorney at Law, PLLC, on briefs), Henrico, for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Richard Paul Stevens appeals his convictions for object sexual penetration, aggravated sexual battery, and taking indecent liberties with a child, in violation of Code §§ 18.2-67.2, -67.3, and -370. He argues that the trial court erred by permitting a particular witness to testify as an expert. The appellant further claims that the trial court erred by admitting the expert's testimony about delayed disclosures of abuse and memory formation. For the reasons that follow, we conclude that the trial court did not err by ruling that the witness was qualified to testify as an expert. Further, the appellant waived his objection to the expert's testimony about delayed disclosures. Finally, the trial court acted within its discretion by admitting the expert's testimony about memory formation. For these reasons, we affirm the convictions.

I. BACKGROUND¹

At the appellant's trial, the twenty-one-year-old victim testified that the appellant, a close family member, sexually abused her. She explained that the abuse occurred from when she was four years old until she was approximately six years old. The victim did not tell anyone about the abuse until 2017, when she was twenty years old. According to the victim, she had not reported the abuse earlier because she was not "ready to talk about it" and was scared of the appellant.

The Commonwealth called Lisa Johnston as an expert witness on child abuse and disclosure. Johnston testified that it is "very common" for child victims of abuse to wait weeks, months, or years to initially report the offense. She also stated that, due to the memory formation process for young children, victims younger than ten often confuse details about the abuse. Johnston acknowledged that some disclosures of sexual abuse are false.

The appellant testified in his defense. He denied ever touching the victim inappropriately. The defense also presented expert testimony from Susan Fiester, a psychiatrist. She too testified about memory formation. According to Fiester, younger children generally "have difficulty remembering things." Fiester also testified that it is "not uncommon" for victims of childhood abuse to delay reporting.

The jury found the appellant guilty of three counts each of object sexual penetration, aggravated sexual battery, and taking indecent liberties with a child. The trial court imposed the jury's sentences totaling fifty-four years in prison for the nine offenses, as well as an additional three years, which it suspended upon condition of three years of post-release supervision, and fines of $150,000.

II. ANALYSIS

The appellant challenges the admission of the testimony of the Commonwealth's expert witness on three grounds. First, he contends that Johnston was not qualified to testify as an expert. Second, he argues that her testimony regarding delayed disclosure was inadmissible because it merely bolstered the victim's credibility. Third, he suggests that Johnston's testimony regarding the formation of memory impermissibly exceeded the scope of her expertise.

The standard of review for each of the appellant's three assignments of error dealing with expert testimony is whether the trial court abused its discretion. See Wakeman v. Commonwealth, 69 Va. App. 528, 535, 820 S.E.2d 879 (2018) (qualifications), aff'd, 298 Va. 412, 838 S.E.2d 732 (2020) (per curiam order); Schmuhl v. Commonwealth, 69 Va. App. 281, 299, 818 S.E.2d 71 (2018) (admissibility of expert testimony), aff'd, 298 Va. 131, 833 S.E.2d 885 (2019) (per curiam order); Kilby v. Commonwealth, 52 Va. App. 397, 410, 663 S.E.2d 540 (2008) (admissibility of expert testimony). A reviewing appellate court will not decide that "an abuse of discretion has occurred" unless "reasonable jurists could not differ" on the conclusion that the court erred. Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634 (2009) ). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Id. (quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664 (2015) ).

A. Expert Qualifications

The appellant suggests that Johnston was not qualified to testify as an expert. He raises two challenges to her qualifications. He argues that she lacked the general qualifications to testify as an expert in the field of child abuse and disclosure. Further, he contends that she lacked the expertise to testify as an expert in this case specifically because it involves an adult accuser and Johnston is a child forensic examiner.²

Expert testimony may be presented in a criminal proceeding if three conditions are met. First, the witness must be "qualified as an expert by knowledge, skill, experience, training, or education." Va. R. Evid. 2:702(a)(i)-(ii). Second, the testimony must comprise "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. Third, the subject matter must be "beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions." Va. R. Evid. 2:702(a)(ii).

At the time Johnston testified, she worked at the Chesterfield Child Advocacy Center as a forensic interviewer. While employed there, she performed over 150 forensic interviews. Prior to working at the center in Chesterfield, Johnston worked at a child advocacy center in Arkansas, where she performed over 130 forensic interviews.

Johnston has a Bachelor of Science degree with a double major in criminology and sociology. She received specialized training in order to become a forensic interviewer. The training consisted of instruction on child development, the "dynamics of child abuse," and "the process of disclosure." Johnston participated in mock forensic interviews and passed a licensing examination before obtaining her certification. In addition, during her time as a forensic interviewer, she attended other specialized training including conferences and workshops. Finally, she testified that she had been peer-reviewed eight to ten times, a process which involves being observed while performing interviews and receiving constructive criticism. According to Johnston, on a weekly basis, she "stay[ed] current in studies involving child sexual abuse" and "how and why people disclose" such abuse.

The record makes clear that Johnston possessed "a degree of knowledge of [the] subject matter[s]" of child abuse and reporting of such abuse "beyond that of persons of common intelligence and ordinary experience." See Justiss v. Commonwealth, 61 Va. App. 261, 271, 734 S.E.2d 699 (2012) (quoting Conley v. Commonwealth, 273 Va. 554, 560, 643 S.E.2d 131 (2007) ). Although she did not profess to have specialized training in adult disclosures, Johnston testified generally about why children sometimes do not disclose sexual abuse for many years, a matter at issue in this case. Additionally, the sexual abuse occurred when the victim was a young child, not when she was an adult. In fact, a significant portion of the delay in reporting occurred during the victim's childhood years. The reporting gap essentially spanned the victim's childhood. Johnston did not interview the victim, nor did she testify specifically about her. Instead, Johnston simply gave general testimony about the circumstances faced by child sexual abuse victims and the reasons why they often delay reporting the abuse. Johnston's testimony given in this context was appropriate for the jury's consideration.

Contrary to the appellant's suggestion, the fact that the child victim delayed reporting until after she became an adult does not alter this analysis. The appellant's argument fails to account for the fact that the sexual abuse occurred when the victim was a young child. Further, although the delayed reporting extended into the victim's adulthood, it was delayed through many years of childhood. These circumstances rendered Johnston's testimony relevant to that period of delayed reporting, a subject area in which she was entirely qualified to testify.

The appellant cites Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683 (1994), in support of the proposition that Johnston was not qualified to testify as an expert. In that case, the victims’ therapist, who had read a single article on child recantation, testified about reasons a child victim may recant.

Id. at 499-501, 445 S.E.2d 683. This Court held that the testimony was inadmissible.

Id. at 503, 445 S.E.2d 683. The Court concluded that the Commonwealth failed to qualify the witness "as an expert to explain ‘the phenomenon’ " of the recantation of claims of sexual abuse by children. Id. at 499, 503-04, 445 S.E.2d 683.

The holding in Davison, that reading a single article on the specific subject of child recantation does not make one an expert on that subject, has no bearing on the instant case. The trial court's acceptance of Johnston's qualifications as an expert on the subjects of child abuse and reporting or disclosure of such abuse was supported by her extensive education, training, and specific professional experience as a child forensic interviewer. Davison simply does not apply to the facts of this case. See Kilby, 52 Va. App. at 411, 663 S.E.2d 540 (distinguishing Davison based on the expert...