The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
) No. 69452-9-1
Respondent,
sr
) DIVISION ONE rn
v. O -":'•.
—i
RAYMOND ROSARRO ABITIA, ) UNPUBLISHED OPINION H2rn
aka RAYMOND RUSSELL ABITIA;
PACO, ) FILED: May 27, 2014 c5
ur,
Appellant.
Becker, J. — In this trial of a child rape charge, an expert witness for the
State testified that people who molest children often do not tell the truth and
when subjected to polygraph testing, they often admit to committing more sexual
abuse than the child victim reported. This was improper profile testimony that
categorized the defendant as a liar. We conclude the error was properly
preserved and was not harmless.
The alleged victim was Abitia's daughter, KM. KM disclosed the abuse
after an incident in Skagit County that occurred shortly after she turned 14 years
old. Following this event, KM hesitantly disclosed to family members that Abitia's
sexual contact with her had been going on for some time and that it began when
she was 13 years old and they were living in Whatcom County. Eventually police
No. 69452-9-1/2
were informed, but it was not until their third contact with KM that she was willing
to talk to them about it. She testified at trial that she was afraid her family would
disown her.
Abitia went to trial on one count of rape of a child in the second degree1
and one count of distribution of a controlled substance to a minor.
At trial, the State began its case with two witnesses who testified about the
Skagit County incident. KM's cousin, who had been hosting a party, testified that
she went upstairs and noticed a bedroom door was closed. She opened it to find
Abitia standing at the door, breathing hard, sweating, and shaking. KM was on
the edge of a mattress with one leg completely out of her pants. The cousin
threatened to call the police. She asked KM how long it has been going on. KM
told her cousin "for a while," but she said she would deny it if police were called.
The second witness was KM's older sister, who testified that KM told her that
Abitia would get her high and then have sex with her and it had begun when they
lived in Whatcom County. KM's sister said that KM's disclosure tore the family
apart.
The State's third witness was Joan Gaasland-Smith, the sexual assault
case specialist for the Whatcom County prosecutor's office. Gaasland-Smith
was qualified as an expert to discuss child sex abuse in general. Gaasland-
Smith testified that it is not unusual for children to delay disclosure. She said
while there is no single reason that applies in every case, there are many
reasons a child may not immediately disclose. A perpetrator may have offered
1 Rape of a child in the second degree, a class A felony, requires that the crime
occur before the victim is 14 years old. RCW 9A.44.076.
No. 69452-9-1/3
the child rewards, money, or special attention in exchange for silence. The child
may value the relationship with the perpetrator, fear being seen as abnormal, or
think that the sexual contact feels good.
Up to this point, there was nothing particularly objectionable about
Gaasland-Smith's testimony. KM did not disclose abuse until the Skagit County
incident and even then she resisted disclosing it to the police. Abitia's defense
strategy was to challenge KM's credibility. It is generally permissible for a jury to
hear expert testimony explaining why delayed disclosure does not necessarily
mean the victim lacks credibility. State v. Petrich, 101 Wn.2d 566, 575-76, 683
P.2d 173 (1984); State v. Holland, 77 Wn. App. 420, 427, 891 P.2d 49, review
denied, 127Wn.2d 1008(1995).
But in response to the prosecutor's next question, Gaasland-Smith began
to veer toward generalities about perpetrators. She said, "Kids can be told by
perpetrators that, urn, that other adults believe adults, they won't necessarily
believe a child." Abitia objected to "this whole line of questioning as to what do
other sexual predators do":
Your Honor, we would object to this. There is nothing here to
indicate that she is discussing anything that occurred in this case.
She is talking about things in general that by implication apply to
this case, but don't, in fact, apply to this case. So we object to this
whole line of questioning as to what do other sexual predators do or
what are their habits or whatever. There is nothing to indicate that
any of that is occurring in this case.
The prosecutor responded that Gaasland-Smith was testifying as an
expert "and I believe what we are hearing would be helpful to the jury." Defense
counsel said, "What they are hearing is also highly prejudicial. It implies that all
No. 69452-9-1/4
sex offenders act in a certain way and that she can recognize them and telling
them what they can do to recognize this as well."
The court overruled the objection, stating that "what kids can be told by
perpetrators ... is appropriate testimony for an expert witness." The court
warned the prosecutor to "be very cautious so that generalization does not
directly or indirectly suggest to the jury that that is what has happened" in this
case.
Gaasland-Smith went on to discuss reasons why children may be afraid to
disclose. She testified that most of the time, children do not disclose everything
all at once. When asked about the basis of her knowledge, she answered that
sexual deviancy evaluations show it is common to discover that "more happened
than the child ever told." In the course of this answer, Gaasland-Smith testified
that a sexual deviancy evaluation includes a lie detector test because "oftentimes
people who do this kind of thing don't tell the truth":
Q. . . . And when kids do disclose, do they disclose everything all
at once?
A. Most of the time, no.
Q. And how do you know this?
A. I know this from a couple of, urn, sources. The first one is that,
urn, we read sexual deviancy evaluations.
Q. What is a sexual deviancy evaluation?
A. When a sexual offender desires to get treatment, then he - -1
am going to say he - - we know that women also abuse
children, but that he will go to a certified sex offender treater,
that's a person who is specially qualified in the State of
Washington to treat people who have this problem. And, urn,
part of the sexual deviancy evaluation is for the perpetrator to
No. 69452-9-1/5
say, urn, all of their sexual partners to disclose all of their
victims, to talk about all of their sexual behaviors and then there
is a lie detector test given because, urn, oftentimes people who
do this kind of thing don't tell the truth. So that's a way to kind
of find out if they are telling the truth or not. And so if we have
this child - - we have the child's disclosure of what happened
and then we have a sexual deviancy evaluation. It's most
common to find out that a lot more happened than the child ever
told.
(Emphasis added.)
In cross-examination, Abitia established that in his case there was no
sexual deviancy evaluation. He renewed his objection. Again, it was overruled:
[DEFENSE COUNSEL]: Your Honor, I would renew my
objection to the whole line of testimony of this expert. I'm not sure
that she has told the jury anything that's relevant to this case that,
that would be helpful. And I think it's highly prejudicial, implying
that a lot of things occurred that -
THE COURT: I have already ruled on your objection ....
We don't need a speaking objection. So the ruling stands.
The jury convicted Abitia as charged.
On appeal, Abitia argues that Gaasland-Smith's general testimony as to
the credibility of sex offenders was impermissible opinion testimony that invaded
the province of the jury. According to Abitia, the witness in effect told the jury
that "sexual perpetrators like Mr. Abitia are 'oftentimes' liars whose stories need
to be vetted through a polygraph examination" and "in all probability, Mr. Abitia
had raped [KM] 'a lot more' than she has revealed."2
The State contends that Abitia is making this argument for the first time on
appeal and has not demonstrated manifest constitutional error. In the State's
!Appellant's Br. at 25-26.
No. 69452-9-1/6
view, Abitia's only objection below was that Gaasland-Smith's testimony was not
proper expert testimony.
The propriety of an evidence ruling will be examined on appeal ifthe
specific basis for the objection is apparent from the context. Citation to a
particular rule of evidence is not necessarily required. State v. Braham, 67 Wn.
App. 930, 934-35, 841 P.2d 785 (1992).
In Braham, the defendant was convicted of first degree child molestation.
The State presented an expert witness, Lucy Berliner, who like Gaasland-Smith
had no particular information about the victim or the case. The purpose of her
testimony was to explain how child molesters use a grooming process to
establish a relationship with an intended victim prior to the initiation of sexual
abuse. Braham, 67 Wn. App. at 933. Berliner described a recent study that
involved questionnaires to past victims of child abuse and to men who had been
in treatment for sexual abuse of children. Braham, 67 Wn. App. at 934 n.3.
Defense counsel objected on the ground of relevance:
"[C]ertainly as to this grooming testimony, there is no indication
here that that would be proper or that would be relevant. .. . And I
think that in testifying as to what she believes to be the common
grooming process, the jury could be seriously misled and certainly
given false impressions as to what in fact the facts were, if any, in
this particular case that would support the State's allegations.
Therefore I would strenuously object to that type of testimony."
Braham, 67 Wn. App. at 932 (alteration in original). The trial court overruled the
objection.
On appeal, Braham argued that Berliner's expert testimony on the
grooming process was a type of profile testimony that carried an unfairly
No. 69452-9-1/7
prejudicial opinion that he was guilty. The State insisted that this was a different
ground than had been argued below. This court concluded that the defense
objection that "the jury could be seriously misled" was sufficient in context to
invoke ER 403. "Washington's general prohibition on expert 'profile' testimony is
premised precisely on this element of unfair prejudice and the ensuing false
impression the jury might derive about the value of the expert's ostensible
inference." Braham. 67 Wn. App. at 935.
Abitia's objection below was likewise sufficient to preserve his opportunity
for appellate review. He objected to Gaasland-Smith's testimony on the basis
that it was highly prejudicial to admit expert testimony about sex offenders
generally—how they behave and what their characteristics are as a class. He
said, "She is talking about things in general that by implication apply to this case,
but don't, in fact, apply to this case." On appeal, Abitia argues that it was
improper for Gaasland-Smith to give her expert opinion that oftentimes sex
offenders—"people who do this kind of thing"—are untruthful. The objection
below was sufficient to alert the trial judge that Gaasland-Smith was profiling sex
offenders, which is the argument Abitia makes on appeal.
A trial court's decision to admit expert testimony is reviewed for abuse of
discretion. State v. Kirkman. 159 Wn.2d 918, 927, 155 P.3d 125 (2007).
Perpetrator profile testimony is improper because it "clearly carries with it the
implied opinion that the defendant is the sort of person who would engage in the
alleged act, and therefore did it in this case too." Braham, 67 Wn. App. at 939
n.6. Gaasland-Smith's line of testimony about what perpetrators do should have
No. 69452-9-1/8
been cut off when the objection was first raised. Her opinion that sex offenders
lie about their conduct implied that Abitia was lying when he denied having
sexual contact with KM. No witness may testify as to an opinion on the veracity
of the defendant, either directly or inferentially. Kirkman, 159 Wn.2d at 927. We
conclude it was unfairly prejudicial testimony that invaded the province of the jury
to weigh the credibility of Abitia relative to KM.
Gaasland-Smith's testimony that offenders can be trusted to tell the truth
only when they are subject to lie detector tests was also unduly prejudicial.
Ordinarily, polygraph evidence is inadmissible absent stipulation by both parties
because the polygraph has not attained general scientific acceptability. State v.
Justesen, 121 Wn. App. 83, 86, 86 P.3d 1259, review denied, 152Wn.2d 1033
(2004); State v. Ahlfinqer, 50 Wn. App. 466, 472-73, 749 P.2d 190, review
denied, 110 Wn.2d 1035 (1988). Gaasland-Smith's improper reference to lie
detectors bolstered her opinion that sexual offenders, as a class, are liars.
The State does not argue that Gaasland-Smith's testimony, iferror, was
harmless, and we conclude it was not. A government witness gave expert
testimony implying that the defendant was categorically untruthful.
The State also does not separately argue that Abitia's conviction for
distributing methamphetamine to KM should be affirmed. Because Gaasland-
Smith's testimony undermined the fairness of the trial as a whole, we conclude
Abitia is entitled to a new trial on both counts.
We also accept the State's concession that a sexual assault protection
order entered with respect to KM's sister was unlawfully imposed. As the
8
No. 69452-9-1/9
charges related to the sister were dismissed before trial, the order must be
vacated.
Reversed.
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WE CONCUR:
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