State v. Engelby. ( 2020 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
12-JUN-2020
07:57 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
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______________________________________________________________
STATE OF HAWAIʻI
Respondent/Plaintiff-Appellee,
v.
JASON ENGELBY,
Petitioner/Defendant-Appellant.
______________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 12-1-1899)
JUNE 12, 2020
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.;
AND WILSON, J., DISSENTING, WITH WHOM POLLACK, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Jason Engelby was found guilty by a jury of two counts
of Sexual Assault in the First Degree for molesting a minor
child (Child), the daughter of a close friend, when Child was
nine and ten years old. Engelby appealed, and the Intermediate
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Court of Appeals (ICA) affirmed. On certiorari, we must assess
Engelby’s claim that Dr. Alexander Bivens, the State’s expert
witness in child sexual assault dynamics, impermissibly
bolstered Child’s credibility. 1
The testimony that Engelby seeks to challenge now was
not introduced during the State’s case-in-chief. Rather, during
its cross-examination of Dr. Bivens, the defense initiated a
discussion about the credibility of alleged victims of child
sexual assault, apparently to develop a theory that Child’s
memories of the alleged assaults may have been suggested to her
by someone else. Specifically, the defense elicited testimony
from Dr. Bivens that distinguished the circumstances in which a
child would intentionally make false allegations about sexual
assault from the circumstances in which a child would be
susceptible to the implantation of false memories by third
parties. The State further developed that testimony on re-
direct examination, without any objection by the defense.
Having used Dr. Bivens’ testimony on children’s
general credibility to his own advantage, and having failed to
object when the State elicited further testimony on re-direct
examination, Engelby should not now be able to challenge that
testimony on the basis of impermissible bolstering.
1 Engelby’s application for writ of certiorari also challenges Dr.
Bivens’ testimony on a number of other grounds. As discussed more fully
below, the other issues raised by Engelby are without merit.
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Accordingly, we affirm the ICA’s judgment on appeal.
II. BACKGROUND
The State charged Engelby with two counts of Sexual
Assault in the First Degree in violation of HRS § 707-730(1)(b). 2
The charges alleged that Engelby had molested Child on multiple
occasions between December 1, 2011 and December 4, 2012. 3
A. Hawaiʻi Rules of Evidence Rule 104(a) Hearing
Both parties had filed motions in limine prior to
trial to determine whether Dr. Bivens was qualified to testify
as an expert witness and, if so, what the appropriate scope of
his testimony would be. The State moved for the court to
qualify Dr. Bivens as “an expert witness on the dynamics of
child sexual assault,” and asserted that Dr. Bivens’ testimony
would address the dynamics of child sexual assault and cover
patterns of behavior exhibited by child victims of sexual
assault “which [might otherwise seem] inconsistent with [the]
behavioral norms of other victims of assault[,]” such as delayed
2 Hawaiʻi Revised Statutes (HRS) § 707-730(1)(b) (2014) (Sexual
Assault in the First Degree) provides that “[a] person commits the offense of
sexual assault in the first degree if [t]he person knowingly engages in
sexual penetration with another person who is less than fourteen years old.”
The State also charged Engelby with five counts of Sexual Assault
in the Third Degree in violation of HRS § 707-732(1)(b) (2014). These
charges were dismissed as defective, however, at a pretrial hearing on
June 22, 2015.
3 The Honorable Colette Garibaldi presided.
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reporting and tunnel memory. 4 Engelby requested the court to
conduct a hearing “to determine the qualifications and relevance
of [Dr. Bivens’] testimony.”
Following the parties’ opening statements and
testimony from the State’s first witness, Detective Brian Tokita
with the Honolulu Police Department (HPD), the circuit court
conducted a Hawaiʻi Rules of Evidence (HRE) Rule 104(a) hearing
outside the presence of the jury to determine these issues.
The defense objected to Dr. Bivens testifying at
trial. First, the defense explained that it was “not
challenging [] any of the contents of [Dr. Bivens’] curriculum
vitae.” Instead, the defense challenged his proffered testimony
by arguing that it would be irrelevant and unduly prejudicial,
improperly bolster the State’s witnesses, usurp the function of
the jury, and improperly profile Engelby as a child molester.
The defense explained:
We are objecting based on not just [State v.]
Batangan, [71 Haw. 552, 799 P.2d 48 (1990),] but
we’re objecting for irrelevance.
We are objecting that it would be unduly prejudicial
to Mr. Engelby because it would be considered
improper bolstering, and also we would object that it
would also be improper profiling, and profiling of
what a person who would commit these kinds of
offenses may or may not be, and we would argue that
that would be inherently prejudicial.
Also, we object that it would be usurping the
function of the jury, that the jury can determine,
4 At trial, Dr. Bivens described the phenomenon of tunnel memory as
an individual’s enhanced recall of the details central to a traumatic event
and weaker recall of the details peripheral to that event.
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from listening to the witnesses, whether or not they
choose to feel someone’s credible or not, and it
would violate my client’s rights under the due
process clause.
The defense contended that delayed reporting in cases
of child sexual abuse was “part of the general knowledge of the
public,” and that expert testimony on that topic was therefore
not necessary. The defense also questioned whether Dr. Bivens
was qualified to address tunnel memory, and requested that the
term “grooming” be “in limined” out.
In response, the State asserted that Dr. Bivens’
testimony was relevant, and that testimony on “the dynamics of a
sexual assault by a family member or someone close to the
family” would assist the jury in understanding how children
might experience and react to sexual abuse within the home. The
State explained that this dynamic was not familiar to lay
people, and that children’s reactions in this type of situation
might differ from the reactions that a person of ordinary
understanding might otherwise expect. The State also clarified,
inter alia, that it sought to elicit testimony from Dr. Bivens
about delayed reporting and tunnel memory, that Dr. Bivens
“would not be commenting on anyone’s credibility or
believability[,]” and that it would make clear to the jury that
Dr. Bivens had no familiarity with the case or its witnesses.
The circuit court ruled that Dr. Bivens’ testimony was
relevant, noting that:
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The Court is not in agreement with the defense in
terms of this being general knowledge to which the
jury does not need assistance . . . . [T]he Court
does believe that . . . the testimony of an expert
would be of assistance to the jury with respect to
specifically, the behaviors that are associated with
this type of offense for delayed reporting and,
perhaps, inconsistent reporting.
The circuit court further ruled:
[Dr. Bivens can] testify to his experience and
research on delayed disclosure . . . [,] children’s
reaction[s] to the event[s,] and [] explanation[s] of
the manner[s] of disclosure and the reasons for the
delay[s].
At this point[,] the court will leave outstanding the
testimony associated with tunnel memory, unless and
until [Dr. Bivens] can be qualified that he’s able to
testify as to tunnel memory[.] [Additionally,] I’ll
grant the [defense’s] oral motion to in limine out
the word “grooming” in [Dr. Bivens’] testimony.
B. Dr. Bivens’ Testimony
Dr. Bivens was the next witness called by the State.
After Dr. Bivens testified as to his credentials and
qualifications, the circuit court qualified Dr. Bivens as an
expert witness in clinical psychology “with [an] emphasis in the
general dynamics of child sexual assault.”
1. Direct Examination
Dr. Bivens first explained that, in the context of
child sexual assault, studies consistently showed “that sexual
abuse most often occurs in the context of a preexisting
relationship, preexisting nonsexual relationship between the
adult and the child.” Furthermore, he explained that in his own
practice, he could only recall “a couple of cases . . . [of]
stranger abuse[,]” and that “[m]ost often, [the molester would
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be] someone [that the child] . . . knew well” and that the child
and family trusted.
Relating to delayed disclosure, Dr. Bivens testified
that “[d]elay[ed disclosure] [was] the rule, [rather than] the
exception” for children who had been sexually assaulted, and
that “the most common thing [for children to] do when molested
[was to] not say anything for a long time.” He explained that
it was not atypical for children to wait months or years to
disclose their abuse, and also not atypical for them to “allow
the abuse to continue . . . for a long period of time before
disclosing.” He explained, “[t]he closer the relationship
between the abuser and the child, the longer it [would] take to
disclose.”
Dr. Bivens further discussed the most common reasons
for children’s delayed disclosures, including fear of not being
believed, embarrassment, and not wanting to harm anyone, as well
as the types of situations that would prompt disclosure. He
then explained that children most often disclosed to their
“mothers and close friends[,]” and that children’s initial
disclosures often contained incomplete information.
Dr. Bivens also explained that he was familiar with
research on the topic of tunnel memory and that he dealt with
patients “every week” within his clinical practice who were
experiencing tunnel memory. Based on this testimony, the
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circuit court ruled that Dr. Bivens had adequately laid a
foundation to testify on this topic. 5 With regard to tunnel
memory, Dr. Bivens then explained that while “the details of the
sexual abuse” would be remembered well by victims, peripheral
details, such as “the dates and times” of the occurrences,
“[would be] remembered less well.”
Dr. Bivens also discussed the typical interactions
children had with their molesters, including: (1) “loving,
seductive relationship[s]”; (2) “playful relationship[s] that
[would] begin[] to involve sexual touching”; (3) “coercive
relationship[s]”; and/or (4) “feeling taken advantage of[,]” in
which the touching would occur while the children were sleeping.
Dr. Bivens also testified that “there are two places where child
sexual abuse most often occurs, and that it is the child’s own
home and in the molester’s own home.”
The State did not ask Dr. Bivens to comment on
children’s credibility on direct examination, and Dr. Bivens did
not do so. Further, Dr. Bivens emphasized that he had never
spoken with nor met the witnesses in the instant case and was
unfamiliar with the case’s facts. He explained, “I’ve just been
talking about general dynamics. And, in fact, the material that
5 On appeal to the ICA, Engelby argued that the circuit court erred
by permitting Dr. Bivens to testify on the topic of tunnel memory. Based on
the record, however, we conclude that the circuit court did not abuse its
discretion in this regard.
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I’ve shared today is very similar to the general dynamics
training that I do. It’s just [in] a longer format when I do
that training.”
2. Cross-Examination
The subject of children’s credibility was first raised
on cross-examination, when the defense asked Dr. Bivens how he
would “distinguish compromised recall from a situation where the
child might be lying in the context of, say, a divorce where
parties are fighting and maybe a child [would be] compelled to
lie[.]” In response, Dr. Bivens explained:
[T]hat would depend a lot upon, you know, the nature
of the report. There are certain kinds of lies that
are much less common for children to tell, children
are less likely to lie. If [] there are known
consequences or likely consequences that are going to
befall somebody else [-] that would require certain
kinds of malicious qualities that tend to be rare.
On the other hand . . . [,] in the cases that I’ve
worked on where there were divorce problems, the
child wasn’t necessarily the source of the report.
The reports were coming [in] secondhand. So there
are a number of factors that you can look at.
(emphasis added).
The defense then asked Dr. Bivens to “comment on the
phenomena of rehearsal[,] . . . implant[ing] a memory, or
suggestibility[.]” The following discussion ensued:
DR. BIVENS: So there is research on suggestibility.
It is possible to implant a memory into a child’s
mind. Interestingly, it is also possible to implant
[a] memory into an adult’s mind if you have enough []
knowledge about what you’re doing.
In the case of children, implantation of memories is
more common and more likely to occur with very young
children, preschool age. . . . By the time you reach
age seven, you’re talking about a child who is going
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to be more resistant to this type of thing, although
with enough concerted effort and enough technology
you probably could pull it off in a seven-year-old
also.
DEFENSE: And a concerted effort could just mean [] –
an adult repeating something over and over again, it
doesn’t necessarily mean like they have to use the
Internet or –
DR. BIVENS: No, over and over again. Repeated
implantation[.]
(emphases added).
3. Re-Direct Examination
On re-direct examination, the State asked Dr. Bivens
to explain “a little bit” more about false reporting and
suggestibility. The defense did not object at any point during
this discussion.
STATE: Now, doctor, you were just asked a few
questions regarding false allegations or
suggestibility. Were there any . . . pivotal studies
that you’re aware of that address this issue[?]
DR. BIVENS: Yes.
STATE: Can you tell us about that?
DR. BIVENS: I certainly can. So in the 1980s, there
were several [] unfortunate incidents in which
preschool children were [] inappropriately
interviewed by well-minded people who believed there
was a phenomenon of satanic ritualistic sexual abuse
that was happening to these children. There was no
particular evidence of it and none of the children
really reported anything prior. But upon multiple,
multiple interviews[,] these preschool age children,
four and five, were pressured and otherwise coerced
into making statements[,] and some of the children
came to believe those statements.
It was a result of [] those incidents and the studies
that [] looked at how that was accomplished and the
practices that we use today to conduct investigation
were developed to always avoid suggesting anything or
bringing up the topic of anything that might have
occurred. And, in fact, when I consulted with the
Children’s Justice Center, these appropriate
practices are exactly the kind of thing that I talked
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to them about. So we know a lot about
suggestibility, [and] again, [it is] more common in
younger [children], and we work to avoid it as
investigators.
STATE: So that was basically a learning experience,
that situation that occurred in the 1980s?
DR. BIVENS: For [] the field of investigating claims
of child sexual abuse[,] yes, it was.
STATE: And . . . how have interviewers been . . .
trained differently since then?
DR. BIVENS: [N]ow we have a very standardized
process that we use to train our interviewers. . . .
[O]ur practices have [] become dramatically better.
[W]hat we find is that under appropriate interviewing
conditions, we get very accurate reports from
children. And this is tested frequently.
STATE: And based upon your research and . . . your
clinical experience, are you familiar with . . .
false reporting and [] how often that occurs?
DR. BIVENS: I am.
STATE: Okay. Can you tell us a little bit about
that?
DR. BIVENS: I can. So the possibility or problem
that children could lie is a deep concern to us as
psychologists and so we study children lying. It is
possible to get a child to lie and we know a good bit
about [] what is required and the kinds of lies that
children are likely to tell.
The easiest kind of lie to get a child to perform is
one where they simply withhold information or deny
having information, basically saying nothing happened
or I don’t know what happened in exchange for a
reward with very low stakes. In other words, nobody
really gets in trouble. So it’s sort of like hey,
where did that cookie go? I don’t know. That’s an
easy kind of lie to get a child to tell.
The most difficult kind of lie to get a child to tell
would be to get them to say something to – to come
out with something that’s incorrect that didn’t
happen and when the child knows that there’s going to
be a significant consequences for another person.
And so that’s what . . . our research shows on a
child lying. As far as false allegations of child
sexual abuse goes, there’s been a great deal of
concern about this and there have been controversies
in the scientific field as well. But all of the most
recent research indicates that children independently
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are not likely to be sources of false allegations
even in . . . the context of divorce. We would be
more likely to find a parent saying that a child
said. But in terms of an independent report
emanating from a child, those are very infrequently
found.
(emphases added).
4. Re-Cross Examination
The topic of credibility was raised again during re-
cross examination, when the defense asked Dr. Bivens to “follow
up on the suggestibility portion” of his testimony. This was
the only subject the defense raised.
DEFENSE: So you shared with us that based on what
happened in the ‘80s, changes were made to the
training [] so that professionals who interview
children have better techniques now; correct?
DR. BIVENS: [T]hey really do, yes.
DEFENSE: But suggestibility with a trained
professional is – those special techniques and
everything may not apply to, say, a parent, a family
member or someone involved who doesn’t have that
training; correct?
DR. BIVENS: That is correct.
DEFENSE: Okay. So there is still that risk where
nonprofessionals are involved when they’re
questioning a child about certain things that they
may or may not be accusing someone of?
DR. BIVENS: Yes. Particularly if this is on a
repeated, sustained . . . basis where the parent is
convinced that a certain result is what they’re
trying to get out of a child.
DEFENSE: And would [] a reward system be a factor as
well? I believe you shared with us that sometimes
children, if they are induced . . . with gifts or
presents that they may be inclined to keep secrets.
But would you also agree that they may be inclined to
lie as well?
DR. BIVENS: [M]aybe the easiest way that I can
answer your question is to say that one of the
practices [] we always refrain from as professionals
is we don’t offer, you know, ice cream sandwiches if
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you talk about the sex things that were done to you,
right. So . . . we specifically do not offer rewards
for that specific reason.
DEFENSE: [A]s trained professionals?
DR. BIVENS: Correct.
(emphases added).
C. Other Witness Testimony
In addition to the testimony of Detective Tokita and
Dr. Bivens, the State presented testimony from another HPD
investigator, as well as from Child, Child’s older sister, and
Child’s mother and her boyfriend.
Child testified that Engelby came over to her house “a
lot” as she was growing up, and that she and Engelby were
“close.” Child testified that it was not uncommon for Engelby
to spend the night at her family’s house, sleeping either in the
living room or the room she shared with her older sister.
Child testified that Engelby began “touching her in
ways she didn’t like” in December 2011 and that this touching
continued until December 3, 2012. She testified that she could
not remember each day that he sexually abused her “because it
happened a lot.”
According to Child, Engelby touched her on multiple
occasions while she slept in the living room; once after an
outing at Ice Palace for her tenth birthday; and the night of
December 3, 2012, after she had fallen asleep in her bedroom.
Child testified that she did nothing when he touched her or
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licked her “vagina area[,]” and that she felt scared and
confused because she “didn’t know why he would do such a thing.”
She explained that she did not scream when he touched her
because it was “shocking” and because she “didn’t know what to
do.” She testified that Engelby would buy her clothes and
earrings, and would occasionally slip money into her hand after
he was done touching her.
Initially, Child explained, she did not tell anyone
about what Engelby was doing because she did not think anyone
would believe her. Later, however, she told her older sister
and mother.
Child’s older sister, as well as Child’s mother and
her boyfriend, corroborated many aspects of Child’s testimony.
Child’s sister, for instance, testified that “Uncle Jason” would
come over to her family’s home a lot, including late at night.
She testified that Engelby would sleep at their home, sometimes
“lay[ing] down” in the bedroom she shared with Child, and “once
in a while” laying down in Child’s bed. She explained that when
Child told her about the sexual abuse, “it was hard for [Child]
to explain what she wanted to say” because “[s]he was crying and
stuttering.”
Child’s mother explained that Engelby was like family
to her, and that he was “welcome to come and go [within the
family’s home] as he pleased.” She further testified that
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Engelby could sleep over wherever he wanted to within the home,
and that sometimes, she would go to sleep while Engelby was
over, unaware of his exact location. Child’s mother, as well as
her boyfriend, testified that Engelby not only had a key to the
home, but was also present the night of December 3, 2012 and the
morning of December 4, 2012, when the last incident allegedly
occurred.
According to Child’s mother, she and her boyfriend
were up that night to make periodic checks on her oldest
daughter’s dog, which was dying. It was during one of those
checks, she explained, that she first saw Engelby in her home.
She testified that she wasn’t shocked at Engelby’s presence, and
that throughout the night, he helped them take care of the dog.
The mother’s boyfriend testified that, at some time between
12:30 and 2:00 a.m., he noticed Engelby in Child’s room on a
folding mattress, illuminated by his phone. According to
Child’s mother, Child first disclosed her allegations against
Engelby the evening of December 4th.
D. Engelby’s Testimony
Engelby then testified as the defense’s sole witness.
Engelby explained that while he had always had a close
relationship with Child’s family, and while he had lived with
Child’s family for about a year in 2008 or 2009, he became more
distant from them when he moved in with his girlfriend in 2010.
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Furthermore, he explained, although he had a key to Child’s home
when he lived with Child’s family, the family had changed the
locks in 2010. As such, he denied having a key to the home at
the time the alleged incidents occurred.
Engelby testified that he had never touched Child in a
sexual manner. And, while he admitted to taking Child to Ice
Palace for her tenth birthday, he contended that he had not been
alone with her that day, as his girlfriend and her daughter met
them there. Engelby explained that while he had slept over at
Child’s home in 2011, he did so as a favor to Child’s mother,
who needed someone to take care of her children as she gave
birth in the hospital.
Engelby denied ever spending the night at Child’s home
in 2012, and denied visiting the home the night of the last
alleged incident, as Child’s mother and her boyfriend alleged.
E. Jury Instructions
After the testimony had concluded, but before the
parties’ closing arguments, the circuit court provided the
following instructions to the jurors explaining how they should
weigh the evidence:
COURT: During the trial you heard the testimony of
one or more witnesses who were described as experts.
Training and experience may make a person an expert
in a particular field. The law allows that person to
state an opinion about matters in that field.
Merely because a witness has expressed an opinion
does not mean, however, that you must accept this
opinion. It is up to you to decide whether to accept
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this testimony and how much weight to give it. You
must also decide whether the witness’s opinions were
based on sound reasons, judgment and information.
(emphasis added).
F. Closing Arguments
Both the State and defense focused on the witnesses’
credibility in their closing arguments.
The State explained that Child’s testimony established
the “elements of each count beyond a reasonable doubt[,]” and
told the jury that “if you believe[d] [Child], it’s over.” The
State made no references to Dr. Bivens’ statements about
children’s propensities for truthfulness, and only addressed his
testimony as follows:
STATE: Dr. Bivens came in here and [] gave you all a
little insight into the way children who are sexually
abused typically respond. The way [Child] responds
under these circumstances makes sense. Her testimony
was reasonable.
. . . .
[A]gain, Dr. Bivens just shared with you some of the
common experiences of children who are sexually
abused and that it’s typical for those children to
play possum because they’re scared or confused. Most
of them do not disclose until a while later and most
disclose to a mother or a close friend. And he
basically [] talked a little bit about his experience
through research and through treating children who
are sexually abused.
The defense, on the other hand, attempted to cast
doubt on Child’s credibility by putting forth a theory of
suggestibility. Specifically, the defense focused on the fact
that Child, despite earlier opportunities to do so, did not
initially disclose her allegation that Engelby had put his mouth
on her vagina. The defense thus contended:
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DEFENSE: In addition, [Child] has testified that she
felt a mouth licking her vagina. The defense asks
you to recall that [Child] did not say anything about
a mouth on her vagina, let alone any sort of licking
of her vagina, when she talked to the detective, when
he went to gather her clothing, okay, and when she
later spoke with him at the Children’s Justice
Center.
So let’s talk about the Children’s Justice Center for
[] a second. This is a special place where children
are interviewed with trained professionals. It’s a
safe environment, not a cold . . . room at the HPD.
It’s a special center designed to interview children
by professionals. And she never mentioned [the
licking] during her interview with the detective.
So let me clarify. [Child] didn’t say anything about
a mouth on her vagina when she’s interviewed and when
they’re collecting her clothes and the detective is
doing his gathering of evidence. And she said
nothing about a mouth on her vagina when she got
interviewed at the Children’s Justice Center. It’s
only 16 days later [at a grand jury proceeding], 6
after she had all this time to be talking with her
family or whatever that she decides to start saying
that.
It is not credible that a ten-year-old girl would
simply forget that a man had his mouth on her vagina
and was licking it. And it’s not credible that she
would wait to say something about it if it actually
did happen. And the defense submits that this is
evidence that is simply just not true. That this is
added, that she may have been influenced by what
someone else said or influenced by who knows,
suggestion.
We don’t know. But there is a problem with this
reporting. Adding something later does not make it
true and does not make it accurate. That is a
reasonable doubt about whether or not it even
happened. The defense submits that [Child’s]
accuracy is in question and this omission, this
failure to mention anything about [a] mouth on [her]
vagina when she first got interviewed by the
detective who sat down with her, is important.
(emphases added).
In rebuttal, the State again emphasized the topic of
6 Child first alleged that Engelby had licked her “vagina area” at
a grand jury proceeding that took place on December 20, 2012.
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credibility, but did not refer to any aspects of Dr. Bivens’
testimony on that matter. In sum, the State argued:
STATE: If you believe [Engelby,] that means you
don’t believe any of the other witnesses in this case
because his testimony is the only one that goes
astray. And he is the only person that has motive to
lie here. . . . To protect himself.
. . . .
You have heard all the evidence in this case[.]
[Child] is credible. She’s not mistaken, she was
very clear in her detailed testimony. And she has no
reason to lie. The defendant sexually assaulted her
and he betrayed that family’s trust. Find him guilty
as charged.
G. Engelby’s Conviction, Sentence, and Appeal
Engelby was found guilty of two counts of Sexual
Assault in the First Degree and was sentenced to two concurrent
twenty-year terms of imprisonment. On appeal to the ICA,
Engelby contended that Dr. Bivens’ testimony denied his rights
to due process and a fair trial.
The ICA affirmed. The ICA concluded that Dr. Bivens’
testimony was both relevant and helpful to the jury, and that it
neither impermissibly profiled nor unduly prejudiced Engelby.
The ICA declined to consider Engelby’s claim that Dr. Bivens’
testimony improperly relied on statistics to profile Engelby as
a molester, on the basis that the issue had not been properly
preserved for appeal. The ICA further concluded that “Dr.
Bivens did not opine on [Child’s] credibility [] or testify
about the facts of the particular case.” Thus, the ICA rejected
that Dr. Bivens had bolstered Child’s credibility merely because
the “details of [Child’s] story match[ed] the details of a
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typical child sex abuse case.”
Engelby timely filed an application for writ of
certiorari.
III. STANDARDS OF REVIEW
A. Admission of Opinion Evidence (Expert Testimony)
“Generally, the decision whether to admit expert
testimony rests in the discretion of the trial court. To the
extent that the trial court’s decision is dependent upon
interpretation of court rule[s], such interpretation is a
question of law, which [the appellate] court reviews de novo.”
State v. McDonnell, 141 Hawaiʻi 280, 289, 409 P.3d 684, 693
(2017) (citing Barcai v. Betwee, 98 Hawaiʻi 470, 479, 50 P.3d
946, 955 (2002)).
B. Plain Error Review
Pursuant to Hawaiʻi Rules of Penal Procedure Rule 52(b)
(2012), this court may notice “[p]lain errors or defects
affecting substantial rights . . . although they were not
brought to the attention of the court.” We have noted, however,
that the “power to deal with plain error is one to be exercised
sparingly and with caution,” given that “the plain error
rule . . . depart[s] from a presupposition of the adversary
system – that a party must look to his or her counsel for
protection and bear the cost of counsel’s mistakes.” State v.
Nichols, 111 Hawaiʻi 327, 335, 141 P.3d 974, 982 (2006) (citation
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and quotation omitted).
IV. DISCUSSION
A. Issues Raised on Certiorari
Engelby raises the following question on certiorari:
Whether the ICA gravely erred in affirming the
circuit court’s ruling allowing Dr. Bivens to testify
because his testimony was (1) irrelevant and
misleading; (2) stated “facts” or “characteristics”
based on statistics (although not citing
percentages); (3) improperly bolstered [Child]’s and
her mother’s credibility; (4) improperly profiled
Engelby as a child molester; (5) taken in totality,
was unduly prejudicial to Engelby; and (6) did not
assist the jury in understanding the evidence
[]because the evidence was logically comprehensible
by jurors of common understanding, in violation of
Engelby’s rights to due process and fair trial.
B. The Issue of Children’s Credibility
Engelby seeks to challenge the admission of statements
made by Dr. Bivens concerning false allegations and
suggestibility of children. Since Engelby did not object at any
time to that testimony while Dr. Bivens was testifying, we
review for plain error.
Dr. Bivens’ direct testimony did not address the
credibility of alleged victims of child sexual abuse. Rather,
the defense raised that issue on cross-examination, apparently
in order to suggest that Child’s memories of Engelby’s assaults
were the result of suggestion. To develop this theory, the
defense sought to elicit testimony from Dr. Bivens that
distinguished between a child’s propensity to make false
allegations and a child’s susceptibility to suggestion.
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Dr. Bivens’ first statement about children’s
credibility was made during cross-examination, in response to
the defense asking him how he would “distinguish compromised
recall from a situation where . . . a child [would be] compelled
to lie[.]” The defense continued by asking Dr. Bivens to
“comment on the phenomen[a] of rehearsal[, . . . ] implant[ing]
a memory, or suggestibility[,]” to which Dr. Bivens replied,
that in his experience, “[i]t [was] possible to implant a memory
into a child’s mind.” On re-cross examination, the defense
emphasized this point by asking Dr. Bivens to “follow up on the
suggestibility portion” of his testimony. Indeed, on re-cross
examination, this was the only topic broached. It thus appears
that the defense elicited this testimony to help develop its
theory in closing that “[Child] may have been influenced by what
someone else said or by[,] who knows, suggestion.”
Moreover, the challenged testimony elicited by the
State appears to align with the defense’s theory. Dr. Bivens’
statement that “children independently are not likely to be
sources of false allegations” did not bolster Child’s
credibility where the defense’s theory was not that she was a
liar by nature, but rather, that she was influenced to lie.
The defense never objected to nor moved to strike the
challenged portions of Dr. Bivens’ testimony at trial.
Accordingly, Engelby did not properly preserve his claim about
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bolstering, and waived his ability to challenge the statements
under HRE Rule 103(a)(1), which states that “[e]rror may not be
predicated upon a ruling which admits . . . evidence unless a
substantial right of the party is affected, and . . . a timely
objection or motion to strike appears on the record.” (emphasis
added). See State v. Metcalfe, 129 Hawaiʻi 206, 224, 297 P.3d
1062, 1080 (2013) (point on appeal was forfeited because defense
did not object to expert’s testimony at trial).
While the defense challenged Dr. Bivens’ ability to
testify as an expert witness in the Rule 104 hearing prior to
his testimony, and claimed that his testimony would
impermissibly bolster Child’s testimony, this general objection
to his testimony was not sufficient to preserve his current
objection to the statements about credibility now at issue. See
Kobashigawa v. Silva, 129 Hawaiʻi 313, 322, 300 P.3d 579, 588
(2013) (“[A]s is generally true for appellate review of any
issue, the failure to object to evidence introduced after denial
of a pretrial motion in limine to exclude that same evidence
will result in waiver of the objection on appeal.”); State v.
Kony, 138 Hawaiʻi 1, 10-11, 375 P.3d 1239, 1248-49 (2016)
(holding that defendant waived claims of improper profiling and
expert’s use of statistical data when defendant only made
general objections to expert’s testimony and failed to object to
particular aspects of expert’s testimony at trial); cf. HRE Rule
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103(a) (“Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a
party need not renew an objection . . . to preserve a claim of
error for appeal.”); Craft v. Peebles, 78 Hawaiʻi 287, 294, 893
P.2d 138, 145 (1995) (“unequivocal” in limine rulings were
noticeable on appeal despite failure to challenge at trial).
Contrary to the dissent’s suggestion, it cannot be said that the
circuit court made “definitive” pretrial rulings with regard to
this testimony. See Dissent at 11-12.
Thus, in order to preserve his claims about bolstering
in relation to Dr. Bivens’ statements about children’s
credibility, Engelby was required to (1) object to Dr. Bivens’
statements at the time they were made, or (2) move to strike
those statements later, specifically on the ground that they
improperly addressed the credibility of child witnesses.
Because Engelby did neither, he did not properly preserve his
claims, and plain error review applies. See HRE Rule 103(d)
(this court may take notice of “plain errors affecting
substantial rights” even if “they were not brought to the
attention of the court”); see also Addison M. Bowman, Hawaiʻi
Rules of Evidence Manual § 103-4[2] (2018-19 ed.) (“Evidence
admitted without any objection . . . is reviewable on appeal
only as plain error.”).
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C. Under Plain Error Review, Engelby’s Substantial Rights Were
Not Affected
Our case law acknowledges that expert psychological
testimony in child sexual abuse cases often has the effect of
bolstering one witness’s credibility at the expense of
another’s, and that this, on its own, is permissible if it does
not unduly prejudice the defendant. Kony, 138 Hawaiʻi at 11, 375
P.3d at 1249 (citing State v. Batangan, 71 Haw. 552, 557-58, 799
P.2d 48, 51-52 (1990)). We have recognized, however, that
courts must proceed with caution in admitting this type of
testimony. The testimony may not, for instance, directly opine,
or have the same “effect . . . as directly opining on the
truthfulness of the complaining witness,” as that would usurp
the basic function of the jury. Batangan, 71 Haw. at 559, 799
P.2d at 52 (quoting State v. Myers, 382 N.W.2d 91, 97 (Iowa
1986)) (emphasis added).
It is significant that, here, the State never
mentioned Dr. Bivens’ challenged testimony in its closing
argument. And, while not dispositive to the issue of
bolstering, it is also significant that Dr. Bivens had never met
or spoken with any of the case’s witnesses, and that he was
unfamiliar with the case’s details. Compare State v. McDonnell,
141 Hawaiʻi 280, 293, 409 P.3d 684, 697 (2017) (holding that Dr.
Bivens’ statements in that case did not have the effect of
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directly opining on the complaining witness’s veracity, in part,
because Dr. Bivens was not familiar with any facts of the case
and had not spoken to any of the witnesses) with Batangan, 71
Haw. at 555, 799 P.2d at 50 (holding that the expert witness
improperly vouched for the victim’s credibility when he
testified on the prosecution’s behalf after evaluating the
complaining witness) and State v. Morris, 72 Haw. 527, 529, 825
P.2d 1051, 1052 (1992) (holding that the expert witness
impermissibly bolstered the complaining witness’s credibility
even though they had never met because the court concluded that
the expert’s “opinion had to have been based on the child’s
statements to others”).
Additionally, the risk of prejudice to Engelby was
reduced by the circuit court’s instructions to the jurors on how
much weight to give each witness’s testimony, and our court’s
recognition that usurpation of the jury’s function can be
avoided, in part, with jury instructions. See McDonnell, 141
Hawaiʻi at 293, 409 P.3d at 697 (citing State v. Sawyer, 88
Hawaiʻi 325, 329 n.7, 966 P.2d 637, 641 n.7 (1998) (noting that
juries are presumed to adhere to a court’s instructions)).
In McDonnell, for instance, we determined that Dr. Bivens’
testimony was not prejudicial, because, inter alia:
the jury was instructed that they were to decide how
much weight to give Dr. Bivens’ testimony: “Merely
because such a witness has expressed an opinion does
not mean . . . that you must accept this opinion. It
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is up to you to decide whether to accept this
testimony and how much weight to give it.”
Id. (emphasis added).
It is thus significant that the jury in Engelby’s case
received the same instruction on weighing credibility as the
jury in McDonnell. See id. Specifically, the jury was given
the following instructions:
COURT: During the trial you heard the testimony of
one or more witnesses who were described as experts.
Training and experience may make a person an expert
in a particular field. The law allows that person to
state an opinion about matters in that field.
Merely because a witness has expressed an opinion
does not mean, however, that you must accept this
opinion. It is up to you to decide whether to accept
this testimony and how much weight to give it. You
must also decide whether the witness’s opinions were
based on sound reasons, judgment and information.
(emphasis added).
Here, the jury was also presented with ample evidence
to independently assess Child’s credibility. In addition to
hearing from Child, the jury heard testimony from Child’s
sister, Child’s mother, and Child’s mother’s boyfriend, all of
whom corroborated many aspects of Child’s testimony.
Child’s sister, for instance, testified that Engelby
would come over a lot, sleep over, and sometimes lay down in the
bedroom she shared with Child, while Child’s mother explained
that Engelby was “welcome to come and go as he pleased.” And,
although Engelby denied visiting Child’s home on the night of
the last alleged incident, both Child’s mother and her boyfriend
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testified to the contrary. The mother’s boyfriend also
testified that he had seen Engelby in Child’s room that night,
at some time between 12:30 and 2:00 a.m., laying down and
illuminated by his cell phone.
Furthermore, Dr. Bivens’ testimony was helpful to the
jury in understanding aspects of Child’s behavior that might
otherwise seem inexplicable to a lay juror. In Batangan, we
were persuaded that the expert witness had impermissibly
bolstered the complaining witness’s credibility, in part,
because the expert’s “testimony regarding general principles of
social or behavioral science of a child victim in a sexual abuse
case was so minuscule, [that] we [were] convinced that his
testimony could not have assisted the jury” in understanding the
general dynamics of child sexual assault. 71 Haw. at 562, 799
P.2d at 54 (emphasis added). We continued by explaining:
In fact, Dr. Bond several times asked the jury to
recall their own childhood days and suggested that
Complainant’s actions were actions of normal children
under similar circumstances. When queried about
retractions of accusations – a common behavior
recognized as unique to intrafamily sex abuse – Dr.
Bond admitted that he lacked data on the subject.
Id.
In contrast to the expert witness in Batangan, whose
testimony could not be construed as helpful to a jury, here, Dr.
Bivens provided extensive testimony about the topics he was
explicitly authorized to discuss pursuant to the circuit court’s
rulings, including the topics of delayed reporting, tunnel
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memory, and children’s reactions to sexual assault events.
Moreover, to the extent Dr. Bivens went beyond those
subjects in discussing children’s general credibility, he did so
only after Engelby inquired about that issue during cross-
examination. If Engelby believed Dr. Bivens’ answers on cross-
examination were non-responsive or otherwise inappropriate, he
should have objected and moved to strike those answers.
Similarly, when Dr. Bivens responded to additional questions on
re-direct examination, Engelby should have objected if he
believed the questions or responses exceeded the scope of his
cross-examination or were otherwise inappropriate.
C. Engelby’s Other Claims of Error
With respect to the remaining issues raised by
Engelby, we addressed similar issues in State v. McDonnell, a
case that was pending before this court at the time Engelby
applied for certiorari. 141 Hawaiʻi 280, 409 P.3d 684.
McDonnell involved a defendant who sexually assaulted his minor
daughter in their home over a period of several months. See id.
We held that Dr. Bivens’ testimony on the general dynamics of
child sexual assault was admissible because it “helped explain
the interaction between [the complaining witness] and [the
defendant], and its probative value outweighed its prejudicial
effect.” Id. at 283, 409 P.3d at 687.
Specifically, we held that Dr. Bivens’ testimony on
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delayed and incomplete disclosure, tunnel memory, and the
general abuse process was relevant; that Dr. Bivens’ testimony
explaining the behaviors of child sexual assault victims did not
usurp the function of the jury or unduly prejudice the
defendant; and that Dr. Bivens’ testimony on the general process
of child sexual assault did not improperly profile the defendant
as a child molester. Id. at 290-98, 409 P.3d at 694-702.
In accord with our reasoning in McDonnell, we reject
Engelby’s other claims of error. Dr. Bivens’ testimony – which,
as in McDonnell, discussed delayed disclosure, tunnel memory,
the general abuse process, and behaviors of child sexual assault
victims – was both relevant and helpful to the jury, and neither
usurped the function of the jury nor resulted in undue
prejudice. Furthermore, although Dr. Bivens’ testimony included
general quantitative assertions, such as sexual abuse “most
often” occurs in a preexisting nonsexual relationship and “most
often” in the home of the child or the abuser, such testimony
did not improperly profile Engelby as a molester. See
McDonnell, 141 Hawaiʻi at 297, 409 P.3d at 701 (explaining that
“Dr. Bivens could have testified generally that abusers are
often related to their victims and that such abuse normally
occurs in the home”). 7
7 Dr. Bivens’ testimony here is therefore distinguishable from his
(continued…)
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V. CONCLUSION
For the foregoing reasons, we affirm the ICA’s
judgment on appeal, and affirm Engelby’s convictions and
sentence.
Phyllis J. Hironaka /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Sonja P. McCullen
for respondent /s/ Sabrina S. McKenna
testimony in McDonnell, where he testified that 85 percent of child molesters
had a preexisting relationship with the child, and that two studies showed
that “100 percent of incest offenders report molesting in their own home.”
141 Hawaiʻi at 297, 409 P.3d at 701. We held that such testimony was unfairly
prejudicial to the defendant because it carried the risk of improperly
profiling the defendant as a child molester, but that it was harmless in
light of the proceedings as a whole. Id. at 297-98, 409 P.3d at 701-02.
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