March 18, 2010
JOHN JONES, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia. (F-2851-03) (Hon. Ann O'Regan Keary, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge
Argued April 29, 2008
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and ROSS, Associate Judge, Superior Court of the District of Columbia.*fn1
Appellant Jones stands convicted of misdemeanor sexual abuse and simple assault. The victims of these offenses were two students at the high school where Jones was a counselor and teacher. Jones claims the trial judge committed reversible error in admitting expert testimony explaining the methods of child sex offenders and the reactions of their immature victims. We disagree and affirm Jones's convictions.
In August of 2003, the grand jury returned a 25-count indictment against appellant, charging him with sex offenses against L.B., K.H., and R.D., three female students at Ballou Senior High School, where appellant had worked as an attendance counselor and stage-crew coordinator. At appellant's first trial, held in early 2004, the court dismissed two of the counts on the government's motion and the jury found appellant not guilty of eight other counts. The jury could not reach a verdict on the remaining fifteen counts. Appellant was retried on those counts in May and June of 2004.
Four of the surviving counts charged appellant with felony offenses against L.B. when she was fifteen years old.*fn2 Seven more counts charged him with misdemeanor sexual abuse of L.B. after she had turned sixteen, the age of consent. L.B. testified at trial that appellant befriended her after she met him in the attendance office at Ballou in her sophomore year. A troubled adolescent with a traumatic family background, L.B. found she could confide in appellant, whom she described as "nice." Appellant listened to L.B. and assured her he would "be there" if she needed him. He bought her new shoes and called himself her "godfather." He told L.B. she was pretty. After a while, L.B. claimed, he began telling her he wanted to have sex with her.
According to L.B., their first sexual encounter occurred in the spring of her sophomore year, when she was fifteen years old. Appellant asked her to come with him to the school auditorium to help him set up some tables on the stage. Once they were there, L.B. claimed, appellant closed the curtain, turned off the lights, grabbed her, and forced her to submit to sexual intercourse against her will. A few months later, after L.B. turned sixteen, appellant began having sex with her on a regular, almost weekly basis. They met for that purpose either at Ballou or in appellant's apartment. L.B. did not resist appellant's advances or report him, she testified, "because at that time I didn't think I had a choice." She feared appellant would access the school computer system to change her grades (an ability he told her he possessed) and she "would fail." In February 2003, however, L.B. contracted genital warts, a sexually transmitted condition. Only then, to a gynecologist who examined her, did L.B. disclose appellant's abuse. At that point the police were notified.
The remaining counts involve appellant's alleged offenses against R.D. (simple assault and enticing a child) and K.H. (assault with intent to commit first-degree sexual abuse and simple assault). R.D. testified that appellant frequently made sexually suggestive comments to her when she was in his stage-crew class in her sophomore year. One morning, she testified, appellant approached her before class, made a sexual remark, and kissed her without warning on her lips. (This was the basis for the assault charge.) On another occasion, R.D. claimed, she was in the attendance office and appellant locked the door, turned off the lights, and proposed taking her to a hotel "and other stuff." (This was the basis for the enticing count.) The charges involving K.H. related to an incident in her junior year in which appellant allegedly put his hand under her skirt and kissed her on the neck while she was trying to use the telephone in the school security office. K.H. reported the assault later that day. She testified that she was reluctant to do so because appellant had told her he could change students' grades and she was afraid he would change hers.
The government called two significant witnesses at appellant's second trial whom it had not presented at his first trial. One of those witnesses was S.B., who testified that appellant raped her in 1992 when she was living in foster care with the grandmother of his son.*fn3 This testimony was admitted, with a limiting instruction, to show that appellant had a particular preference for sexual relations with teenage girls.*fn4 The other new witness was Kenneth Lanning, a former special agent in the Behavioral Science Unit of the Federal Bureau of Investigation. Qualified by the court as an expert on the sexual victimization of children, Lanning testified about the methods employed by preferential child molesters and the behavior of their victims. Lanning professed no knowledge about the facts of appellant's case and expressed no opinion on appellant's guilt or the credibility of his accusers. We shall describe Lanning's testimony in greater detail below.
Appellant's defense was that the three teenaged complainants had fabricated their allegations against him. The defense focused in large part on their motives to lie about him, their delay in reporting his abuse, and the inconsistencies in their accounts. Appellant also presented evidence that he and L.B. had enjoyed a close, friendly relationship. Among other things, appellant's wife testified that L.B. regularly visited them at their home. On cross-examination L.B. acknowledged that she continued to call appellant after he left Ballou, and that she sent him a school picture on which she had written "to my godfather and godmother" and "love you." L.B. also admitted that her grades were poor and that appellant had never threatened explicitly to change them.
At the close of the government's case, the judge granted appellant's motion for judgment of acquittal on the charge of second-degree child sexual abuse (involving L.B.). The jury acquitted appellant of the remaining felony charges and of the charge of simple assault relating to K.H. It convicted appellant on the seven counts of misdemeanor sexual abuse of L.B. and on the count of simple assault against R.D. Subsequently, with the government's agreement, the judge vacated appellant's convictions on three of the misdemeanor sexual abuse counts on merger grounds.*fn5
Thus, at the end of the day, appellant stood convicted of four counts of misdemeanor sexual abuse and one count of simple assault.
The government notified appellant two months before the start of his second trial of its intention to call Kenneth Lanning as an expert witness on the sexual victimization of children. The government proffered Lanning as an "education" witness who would describe in general terms how "preferential" child molesters "groom" and manipulate their immature victims, how those victims become compliant and cooperate with their abusers, and how they delay reporting their abuse and provide inconsistent accounts because they feel shame, embarrassment and guilt on account of their acquiescence. In a motion filed in open court on the day of trial, and in extended argument on that motion, appellant objected to Lanning's testimony on several grounds. Appellant argued that (1) Lanning's proffered testimony was not beyond the ken of the average juror; (2) Lanning was not qualified to testify about victim behavior; (3) his method of classifying sex offenders was not generally accepted; and (4) his testimony about offenders would be substantially more prejudicial than probative. Appellant also expressed concern that the jury might take Lanning's testimony about compliant victims to mean that consent would not be a defense even if the alleged victim was over the age of sixteen. The judge overruled appellant's objections and permitted the government to call Lanning.*fn6 To avoid unfair prejudice to appellant, the judge instructed the government to limit Lanning's testimony about characteristic traits of child molesters to the ones appellant allegedly had displayed. Additionally, the judge offered to instruct the jury specially on the issue of consent after Lanning testified.
In his trial testimony, Lanning explained that his qualifications to testify about the sexual victimization of children rested primarily on his two decades of experience in the FBI's Behavioral Science Unit (BSU). According to Lanning, the work of the BSU involved applying the "knowledge of the behavioral sciences . . . in a practical way to dealing with fact finding and investigation and prosecution of cases." Lanning's main focus at the BSU was on sexual offenses against children: he studied the behaviors of both offenders and victims in order to apply what he learned to the investigation and prosecution of child sex offense cases. Although Lanning was not trained as a psychologist or psychiatrist, he had earned a master's degree in administration of justice and had completed the course work for a master's degree in criminal justice. In the latter program, he testified, he took "a lot" of behavioral science classes, including classes on deviant sexual behavior and sex crimes.
Lanning's research in his years at the BSU chiefly consisted of studying thousands of case files that had been compiled for law enforcement purposes. He estimated that 400 to 500 of the files he had studied involved teenaged victims, approximately half of them adolescent girls who had been victimized by adult males. Although Lanning had not interviewed these victims personally, he worked directly with the investigators who had done so. Lanning testified that he had published the fruits of his research on child sexual victimization in "numerous articles and chapters," such as a "widely disseminated" monograph entitled "Child Molesters, a Behavioral Analysis for Law Enforcement," and a book chapter entitled "Sexual Exploitation of Children." His writings had appeared in publications of the FBI and the National Center for Exploited and Missing Children, among other organizations. All his published writings, Lanning stated, had passed through peer review of some kind.*fn7
Lanning also had consulted on thousands of child sex cases and participated in hundreds of training courses all over the world on the sexual victimization of children.*fn8 In the latter connection, Lanning said, he had worked with professionals in the areas of social work, mental health and medicine, as well as with law enforcement personnel and victim advocates. In addition, Lanning had testified as an expert witness on child sex abuse in approximately fifty court proceedings throughout the United States and on seven occasions before Congress.
Lanning's opinion testimony in appellant's trial focused on "preferential" child molesters and their "compliant victims." As to the former, Lanning explained that while child molesters constitute "a diverse population of individuals" that can be classified in different ways, "over the years" he had developed a "typology" to use for his own purposes and which he had trained others to employ. His typology looked at child molesters "along a continuum from situational to preferential." Preferential offenders are those who have a clear and persistent sexual preference, "most often for children."*fn9 The most successful preferential abusers are typically "nice guys," often authority figures such as teachers, who employ age-old techniques of seduction, or what Lanning called "grooming."*fn10 The key feature of this grooming process is that the abuser identifies and tries to fill a child's needs, for example by listening sympathetically to the child, complimenting her on her looks, giving her hugs, and buying her things she needs.
After having formed a relationship of trust and dependence, the abuser undertakes to manipulate the child's feelings and overcome her sexual inhibitions. Contrary to popular belief, Lanning explained, child molesters usually do not force themselves on their victims; in fact, only about 10 to 15 per cent of child sex offenses involve "extreme violence." The preferential abuser's goal is to bond with the child in order to control her psychologically. Children from dysfunctional homes, especially teenagers, are most susceptible to being groomed in this way, Lanning said. He added, however, that preferential child molesters "may" employ such unsavory tactics as exposing children to pornography, supplying them with drugs and alcohol, blackmailing them, and coercing their silence by threats of suicide. As one example of the use of blackmail or threats he had observed in cases involving child molesters who were teachers, Lanning mentioned "not giving [students] a proper grade, giving them the wrong grade."
The grooming process results in what Lanning called "compliant victims" -- children who cooperate in their victimization. Their non-resistance may seem to indicate consent, Lanning stated; indeed, the children may return to their abusers and even enjoy the sexual activity. However, Lanning opined, compliant victims "suffer a lifetime of shame, embarrassment and guilt because their victimization does not fit society's understanding" that children do not willingly acquiesce in abuse. According to Lanning, those feelings help explain why victimized children fail to disclose or delay disclosure of their abuse, and why their disclosures often contain "incomplete," "inaccurate," "distorted," or "contradictory" information. (On cross-examination, Lanning conceded that some children may give contradictory accounts of abuse simply because they are being untruthful.)
Although appellant did not raise consent as his defense at trial, he repeated his concern that the jury could misunderstand Lanning's testimony about compliant victims to mean that consent by an individual over sixteen years of age would not be a defense to a sex abuse charge. To prevent that misunderstanding, the judge instructed the jury immediately after Lanning was excused on the defense of consent in the District of Columbia. The judge cautioned the jury that Lanning "did not use the word "consent" in its legal meaning and that his testimony did not furnish "any legal guidance" on the issue of appellant's guilt or innocence. Appellant does not challenge the instruction's adequacy.
The admissibility of expert testimony in the Superior Court of the District of Columbia is governed by the three-part test we adopted in Dyas v. United States:
(1) the subject matter must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman; (2) the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth; and (3) expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.*fn11
The third criterion incorporates the so-called Frye test, under which scientific testimony is admissible only if the theory or methodology on which it is based has gained general acceptance in the relevant scientific community.*fn12 Expert testimony admissible under the criteria of Dyas and Frye is still subject to exclusion if the danger of unfair prejudice substantially outweighs its probative value.*fn13
"The trial judge has wide latitude in the admission or exclusion of expert testimony, and his [or her] decision with respect thereto should be sustained unless it is manifestly erroneous."*fn14
Thus, we have said, "our scope of review on this issue is narrow."*fn15 Ordinarily, where the claim of error was preserved by timely and proper assertion in the trial court, we review the judge's ruling for abuse of discretion. However, with respect to the Frye issue of whether a new scientific theory or methodology has gained general acceptance, our review is de novo.*fn16 Claims raised for the first time on appeal are subject to review only for plain error.*fn17
Appellant challenges the admission of Lanning's testimony on several grounds, not all of which he raised in the trial court. Invoking each of the three Dyas criteria, appellant contends that Lanning's testimony was not beyond the ken of the average juror; that Lanning was unqualified to offer an expert opinion regarding the behavior of child sex abuse victims and the manipulative techniques used to induce that behavior; and that the methodology underpinning Lanning's opinions about victim psychology was not generally accepted by the scientific community. Appellant also argues that Lanning's testimony was unduly prejudicial. We address each of these contentions in turn.
A. The Need for Expert Testimony
Appellant claims the trial judge erred in concluding that Lanning's testimony about the "grooming" techniques employed by child molesters satisfied the first Dyas criterion, i.e., that it was "beyond the ken" of the average juror. Citing the attention paid by the media in recent years to the subject of acquaintance abuse, appellant argues "there is no reason to believe that the average juror is unaware that child molesters often gain access to their victims through seduction rather than forcible abduction."*fn18 Appellant preserved this claim in the trial court.
It is common, however, for experts to testify in criminal cases about the modus operandi of certain types of criminal offenders.*fn19 Courts generally permit such expert testimony because "jurors cannot be presumed to have knowledge of these matters,"*fn20 and it therefore may help the jury understand and evaluate the evidence. Modus operandi testimony may be helpful, and hence admissible under Dyas's first criterion, even though it may be familiar to "the average reader of the daily press."*fn21 Under these principles, the D.C. Circuit, among other courts, has upheld the admission of Lanning's testimony on the grooming techniques of child molesters precisely because "the average layperson lacks knowledge regarding the manner in which preferential sex offenders operate."*fn22 In the words of the Seventh Circuit, Lanning's modus operandi testimony "was critical in dispelling from the jurors' minds the widely held stereotype of a child molester as 'a dirty old man in a wrinkled raincoat' who snatches children off the street as they wait for the school bus."*fn23
While the continuing vitality of such stereotypes may be debatable, we cannot conclude that the trial judge in this case abused her discretion in ruling that Lanning's "grooming" testimony "was beyond the ken of a lay trier of fact and would be helpful to the jurors in their consideration of the evidence."*fn24 The testimony helped to explain not only how a child molester could accomplish his crimes without violence, but also why a child victim would acquiesce and be reluctant to turn against her abuser.
B. Lanning's Qualifications
To be qualified as an expert, a witness "must have sufficient skill, knowledge, or experience" in the relevant field so that his testimony "will probably aid the trier in his search for truth."*fn25 Appellant claims that Lanning's testimony about compliant child victims was "an exercise in child psychology" for which Lanning lacked the requisite qualifications because he was not trained as a psychologist or psychiatrist and had not interviewed victims of child sex abuse.*fn26
The trial judge, concluding that Lanning was qualified on the basis of his extensive experience in the field of child sexual victimization, ruled that appellant's objections went to the weight to be given Lanning's testimony but not its admissibility.
We are not persuaded that the judge's acceptance of Lanning's qualifications was manifestly erroneous. Expertise may be predicated on experience rather than academic training. "Scholarship is not a prerequisite for eligibility to testify as an expert witness; the relevant knowledge may be derived from professional experience, including, in particular, experience as a police officer."*fn27 To be sure, "experience" is a slippery concept. There has to be a fit between the witness's experiential qualifications and the testimony to be offered; "[a] witness may be qualified as an expert on certain matters and not others."*fn28 Accordingly, where a proffered expert's qualifications are based primarily on experience, the witness should be able to "explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts," so that the judge may evaluate whether the witness truly is qualified to render an opinion on the matter in question.*fn29
In this case, while Lanning apparently lacked formal academic training in psychology,*fn30 he spent over twenty years in the Behavioral Science Unit studying the sexual victimization of children. He had shared his conclusions with, and undoubtedly had received feedback from, other professionals working in the same or related areas, including mental health specialists. There is no question Lanning was qualified to describe the behavior patterns he had observed in hundreds of cases, and his "psychological" testimony was grounded in those observations and correspondingly modest in scope. In advancing the general reasons child victims cooperated in their abuse and were reluctant to report it, Lanning did not purport to offer a psychiatric diagnosis or profile or a sophisticated description of a child victim's mental processes. The judge was presented with no evidence that Lanning's methods or his opinions about victim psychology were controversial or suspect. And as the judge noted, Lanning had been qualified to testify as an expert on child molesters and their victims in a large number of other jurisdictions.*fn31 Given Lanning's experience, his extensive study and the limited nature of his "psychological" testimony, the judge did not abuse her discretion in finding that he had acquired sufficient knowledge to be qualified to address the subjects he did.
C. Lanning's Methodology
Appellant argues, and the government concedes, that Lanning's testimony concerning the psychological reasons for children's reactions to sexual abuse was scientific in nature and hence was subject to Frye.*fn32 Under Frye, the methodology underpinning scientific testimony must enjoy general acceptance among practitioners in the relevant field of scientific inquiry, and our review of that question is de novo. Appellant cogently argues, and the government all but concedes, that the methodology Lanning used to reach his conclusions about victim psychology was not shown to pass muster under the "general acceptance" test. An expert's "experience" is not a substitute for the scientific method, which requires techniques more rigorous than just the accumulation of observations and intuitively plausible deductions. At a minimum, appellant asserts, the scientific study of behavior requires critical inquiry guided by theory and hypothesis, systematic and controlled observation and collection of data, careful documentation, and structured analysis.*fn33
There is no evidence Lanning employed scientific methods in deriving his opinions about victim psychology from the law enforcement case files that happened to come to his attention. Although Lanning unfortunately was not pressed to clarify exactly how he arrived at those opinions, he conceded that his methods were "informal" and undocumented.
But as the government argues, appellant did not object to Lanning's testimony about victim psychology on this ground in the trial court. While appellant did raise a Frye objection, he limited it to Lanning's testimony about offenders. Specifically, he argued only that Lanning's offender typology was not generally accepted (an argument not pursued on appeal).*fn34 Although appellant disputed Lanning's qualifications to testify about victim psychology, he did not contend that the methodology underlying Lanning's testimony on that subject lacked general acceptance.*fn35
Consequently, whether Lanning's research into victim psychology met the requirements of scientific methodology was never explored in the trial court and no record on the issue adequate for appellate review was made. "If, under these circumstances, we may consider the contention at all, our review must be for plain error."*fn36
"Under the established four-part test for plain error, an appellant must demonstrate not merely that there was an error, but also that the error was 'clear' or 'obvious' -- 'so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to object."*fn37 If there was error in the admission of any portion of Lanning's testimony, it was not "clear" or "obvious" error. As we have said, the trial judge was presented with no evidence that Lanning's methodology was scientifically unorthodox or controversial. We would not expect the judge to have recognized on her own that Lanning might not have employed the scientific method of inquiry: "under Frye, judges seemingly do not need to have any facility with scientific methods to make the admissibility decision."*fn38 Accordingly, we conclude that appellant has not shown plain error in the failure to exclude Lanning's testimony under Frye.*fn39
D. Danger of Unfair Prejudice
Evidence that is otherwise relevant and admissible may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.*fn40 Appellant's final claim is that parts of Lanning's testimony about child molesters were "irrelevant and inflammatory."*fn41 Appellant specifically complains of Lanning's references to such repugnant tactics as blackmail, threats and offering children pornography, drugs and alcohol. Appellant argues there was no evidence he had engaged in any such behavior, and that Lanning's recitation of these "lurid and irrelevant details"*fn42 served only to link him unfairly to reprehensible conduct with which he was not charged.
Appellant overstates his case. Lanning's testimony was not irrelevant merely because some common offender conduct he had observed had not been ascribed to appellant. In point of fact, there was evidence from which the jury could infer that appellant did blackmail L.B., via an implicit threat to alter her grades. And even if some of Lanning's comments contravened the judge's prior admonition to confine his description of offender behavior to conduct of which appellant was accused, we are not persuaded that appellant was prejudiced. Lanning admitted knowing nothing about the facts of appellant's case and never opined that appellant fit any sort of profile of a child molester. Indeed, Lanning did not purport to provide such a profile at all; he made it clear that not all child molesters behaved in the same way or employed the unsavory tactics he described. We see no reason to believe the jury attributed any reprehensible conduct to appellant for which there was no evidence. If anything, Lanning's testimony about such conduct provided fodder for the defense to distinguish appellant from the offenders Lanning had studied.
We conclude that the trial judge did not commit reversible error by admitting Lanning's testimony. Appellant's convictions are hereby affirmed.