Appeal from the Superior Court of the District of Columbia (F-5254-96) (Hon. Mary Ellen Abrecht, Trial Judge)
Before Reid and Washington, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Washington, Associate Judge
After a jury trial, appellant, Jean-Pierre Mindombe, was convicted of carnal knowledge, *fn1 three counts of incest, *fn2 two counts of first-degree child sexual abuse (vaginal intercourse), *fn3 taking indecent liberties with a minor as a lesser-included offense of sodomy on a minor, *fn4 and second-degree child sexual abuse as a lesser-included offense of first-degree child sexual abuse (anal sodomy). *fn5 Mindombe filed a timely notice of appeal to this court arguing that 1) the trial court abused its discretion by allowing Nancy Davis, Ph.D., to testify as an expert witness; 2) the trial court abused its discretion by limiting Mindombe's cross-examination of Dr. Davis; 3) the trial court abused its discretion by limiting Mindombe's attempt to impeach by omission the complainant's testimony; and 4) there was insufficient evidence to support his convictions. We affirm.
This appeal is taken from the retrial of a child sexual abuse case which resulted in the conviction of appellant, Jean-Pierre Mindombe, the victim's father. The first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. The facts of this case, as is the norm in cases like this one, are sordid and will not be discussed in great detail in this section.
According to J.M., the victim in this case, Mindombe began sexually abusing her when she was a six or seven-year-old second grader. When the abuse began J.M., along with her mother and siblings, lived with Mindombe in an apartment building located on Rock Creek Ford Road in Northwest Washington, D.C. Although J.M. moved with her mother and siblings to Takoma Park, Maryland, soon after the abuse began, J.M. testified that she would visit her father periodically at the Rock Creek Ford apartment and that he continued to sexually abuse her. She testified about several specific incidents of abuse that involved both the fondling and penetration of her genitalia by Mindombe. According to J.M. Mindombe would use his fingers or his own genitalia.
Despite the several sexual episodes involving Mindombe, J.M. testified that for a long period of time she was scared to report the abuse to her mother but that eventually a "spirit" moved her to do so. At the time of trial J.M. was eight years old.
Among other witnesses, the government presented Dr. Nancy Davis, a clinical psychologist, who provided expert testimony on the range of behaviors exhibited by victims of child sexual abuse, and Dr. Perdita Taylor, who testified that her physical examination of J.M. revealed that she had redness in her labia minora; a separated hymen; and a scar formation on her hymenal rim. Dr. Taylor also testified that J.M. told her that she had been sexually abused by her father.
A. Admissibility of Expert Testimony on Child Behavior
Mindombe's primary contention is that the trial court abused its discretion by allowing Dr. Davis to testify as an expert witness as to her observations with respect to the behavior of sexually abused children. Specifically, Dr. Davis testified regarding children's inability to remember events in sequential order, the range of children's reactions to abuse, and their tendency not to report the abuse. Mindombe argues that the testimony of Dr. Davis was not helpful to understanding any contested facts in the present case. Instead, he argues that the testimony was presented only to buttress the credibility of the child-witness by providing expert testimony to fill in gaps in the child's testimony. In addition, Mindombe contends that the introduction of Dr. Davis' testimony was improper due to the fact that before the introduction of the expert testimony, J.M.'s inability to narrate events sequentially was not challenged; her failure to report the alleged abuse was not attacked; and her general demeanor in discussing the allegations was not questioned by defense counsel. Thus, there was no challenge to J.M.'s truthfulness, and Dr. Davis' testimony invaded the province of the jury because it solely bore on issues of the child-witness' credibility. This is improper, Mindombe argues, because the admission of such testimony is limited to rehabilitative purposes under Fed. R. Evid. 608.
1. Expert Testimony Improperly Invaded Province of Jury
Mindombe argued to the trial court that Dr. Davis' testimony was inadmissible because information regarding a child's reactions to sexual abuse was not outside the ken of an average lay juror. In response, the government argued that Dr. Davis' testimony regarding the behavior of abused children was information that is not readily within the realm of understanding of a lay person, and therefore, the expert testimony was properly admitted by the trial court. *fn6
To be sure, this court has previously recognized that expert testimony involving "`the behavioral characteristics of child molestation victims,' . . . [and] the psychological dynamics of a victim of child sexual abuse' are beyond the ken of the average juror." Oliver v. United States, 711 A.2d 70, 73 (D.C. 1998) (citations omitted). Because Oliver was a case of first impression to this court, we relied on two cases from other jurisdictions in reaching our decision. See Condon v. Delaware, 597 A.2d 7 (Del. 1991); State v. Ransom, 124 Idaho 703, 864 P.2d 149 (1993), cert. denied, 510 U.S. 1181, 114 S. Ct. 1227, 127 L.Ed.2d 571 (1994). In Condon, the Delaware Supreme Court espoused that:
It is well within the knowledge of an average juror that any child who has not disclosed the whole truth of a story may in fact be fabricating part of the story. Yet the psychological dynamics of a victim of child sexual abuse . . . are generally not within the knowledge of the average juror. 597 A.2d at 14.
Similarly, in Ransom, the Idaho Supreme Court deemed this type of expert testimony helpful because "knowledge of common characteristics of sexually abused children gained from behavioral research very well may aid a jury in weighing the testimony and determining the credibility of the alleged victim." 124 Idaho at 710, 864 P.2d at 157. This court has likewise acknowledged the admissibility and usefulness of expert testimony with respect to the battered women's syndrome in Nixon v. United States, 728 A.2d 582, 584 (D.C. 1999), "to explain the conduct of the complaining witness in response to the alleged battering." In Nixon, Judge Schwelb poignantly articulated the following as to the helpfulness of this type of expert testimony:
Actions sometimes speak louder than words, and a lay juror might well wonder whether [the victim's] actions (and inaction) at the time of the alleged abuse were consistent with the narrative which she provided in the courtroom long after the events occurred. [Expert] testimony was designed to apprise the jurors of certain repeated patterns of behavior on the part of many battered women. With that information, the jurors were in a better position to determine whether these patterns of behavior might explain any perceived discrepancy between [the victim's] words and her deeds. 728 A.2d at 590.
Certainly, testimony discussing the patterns and behavior of molested children by experts who have researched and worked with victims in this area serves the same useful purpose. Victims should be allowed the "`opportunity to explain to a jury, through a qualified expert, the reasons for conduct which would otherwise be beyond the average juror's understanding.'" Id. at 591 ...