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holding "that the opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the accused has the character trait of a pedophile ... is inadmissible ... to prove that on a particular occasion the accused acted in accordance with that character trait"
Summary of this case from State v. McDonnellOpinion
No. 14–0146.
04-09-2015
David BALLARD, Warden, Mount Olive Correctional Complex ; and Jim Rubenstein, Commissioner, West Virginia Division of Corrections, Respondents Below, Petitioners v. Richard Lee HUNT, Jr., Petitioner Below, Respondent.
Patrick Morrisey, Attorney General, Shannon Frederick Kiser, Assistant Attorney General, Charleston, WV, for Petitioner. G. Ernest Skaggs, Esq., Skaggs & Skaggs, Fayetteville, WV, for Respondents.
Patrick Morrisey, Attorney General, Shannon Frederick Kiser, Assistant Attorney General, Charleston, WV, for Petitioner.
G. Ernest Skaggs, Esq., Skaggs & Skaggs, Fayetteville, WV, for Respondents.
Opinion
KETCHUM, Justice:The petitioners, the Warden of the Mount Olive Correctional Complex (the “Warden”) and the Commissioner of the West Virginia Division of Corrections (the “Commissioner”), appeal from the January 21, 2014, order of the Circuit Court of Calhoun County (the “habeas court”) which granted habeas relief to the respondent, Richard Lee Hunt, Jr. (“Hunt”). The habeas court vacated Hunt's convictions and sentence for sexual abuse in the first degree and sexual abuse by a custodian and granted Hunt a new trial.
Hunt's convictions concerned offenses committed against an eleven year old boy. The sole basis for the relief granted by the habeas court was the State's references to Hunt during the underlying trial as a pedophile. According to the habeas court, the references, made by the State's expert witness (and by the prosecutor), constituted inadmissible character evidence and denied Hunt the right to a fair trial.
We find that the references to pedophilia, while improper, were harmless error. The appendix record before us includes a transcript of Hunt's underlying trial. A review thereof makes clear that the evidence of the State overwhelmingly established Hunt's guilt of the crimes charged.
Accordingly, the January 21, 2014, order of the habeas court is reversed, and Hunt's convictions and sentence are reinstated.
I.
Factual and Procedural History
On May 4, 1999, a Calhoun County grand jury returned a four-count indictment charging Hunt with sex offenses against A.K., an eleven year old male. Counts one and two alleged that Hunt committed sexual abuse in the first degree against A.K., in violation of W.Va.Code, 61–8B–7 [1984]. Counts three and four alleged that Hunt committed sexual abuse by a custodian against A.K. in violation of W.Va.Code, 61–8D–5(a) [1998].
This Court follows its past practice in sensitive matters and shall refer to the names of certain individuals herein by initials. See State v. Jason H., 215 W.Va. 439, 441 n. 2, 599 S.E.2d 862, 864 n. 2 (2004). See also Rule 40(e), Rules of Appellate Procedure West Virginia Supreme Court of Appeals.
The indictment alleged that the sexual offenses occurred between September 1998 and December 1998. Hunt at that time was twenty-four years old and worked an extensive,
evening newspaper route which included various rural areas. Hunt drove the route in his 1993 Ford Festiva and delivered the newspapers throughout the night. According to the State, Hunt invited A.K. to join him from time to time. Hunt allegedly committed the sexual offenses against A.K. in the car.
Hunt's trial began on May 16, 2000, and concluded three days later. During opening statements, the prosecutor referred to Hunt as a pedophile. The prosecutor further stated, during opening statements, that Hunt “has a lustful disposition toward young children” and that, “consistent with being a pedophile,” Hunt participated in only the minimum amount of therapy and counseling while incarcerated for a previous sexual offense involving a young girl.
The State called A.K., thirteen years old at the time of trial, who testified that he met Hunt in September 1998; that Hunt sexually abused him in the car with Hunt's penis while on the newspaper route; and that, during a telephone call initiated by Hunt to A.K., Hunt asked, “When are we gonna have sex again?” A.K.'s father, Michael K., testified that he overheard the telephone conversation. The State presented evidence that A.K.'s parents, Michael K. and Denise K., reported their suspicions that A.K. had been sexually abused by Hunt to the State Police. Moreover, A.K.'s parents took A.K. to a psychologist, Michael Carter, for treatment and counseling. In addition, the State presented evidence that Hunt had been convicted upon a plea of guilty, and was imprisoned, for the 1994 sexual abuse of his nine year old stepsister.
Finally, the State's evidence included the testimony of Lonnie Kishbaugh, who testified as an expert in the treatment and counseling of sex offenders. Hunt had been under Kishbaugh's counseling at the Denmar Correctional Center in Hillsboro, West Virginia, during Hunt's incarceration concerning the abuse of his stepsister. Kishbaugh discussed the term pedophilia for the jury and indicated that Hunt had undergone minimal counseling while at Denmar. Kishbaugh further testified that there is “a diagnostic impression on file at Denmar” (emphasis added) stating that Hunt is a pedophile. Kishbaugh's testimony was allowed by the trial court over Hunt's objection. During the State's closing, the prosecutor referred to the minimal counseling and the diagnostic impression that Hunt is a pedophile.
In discussing the term pedophilia, Kishbaugh cited the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association. Both the 1994 Fourth Edition and the 2000 Revised Fourth Edition set forth diagnostic criteria for pedophilia. Among the criteria is the following, referenced in Kishbaugh's testimony: “Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).”
Hunt took the stand at trial and denied committing any offenses against A.K. In support, Hunt testified that various people accompanied him and A.K. on the newspaper route and that, consequently, he had never been alone with A.K. In addition, Hunt asserted that A.K. was often mistreated by A.K.'s father and that A.K. had been pressured at home into making false statements against Hunt. Finally, acknowledging the prior conviction concerning his stepsister, and his resulting registration as a sex offender, Hunt denied that the offense against his stepsister took place.
The jury found Hunt guilty on all four counts: two counts of sexual abuse in the first degree and two counts of sexual abuse by a custodian. On July 28, 2000, Hunt was sentenced to serve consecutive terms in the penitentiary. Hunt's direct appeal to this Court was subsequently refused.
II.
The Habeas Corpus Proceeding
On September 27, 2006, Hunt filed a pro se petition for a writ of habeas corpus in the Circuit Court of Calhoun County (the “habeas court”). An amended petition was filed after he was appointed counsel. Hunt alleged that his federal and State due process rights were violated because of unfair prejudice
resulting from the references to him, at trial, as a pedophile.
U.S. Const. amend. V and amend. XIV provide that no person shall be deprived of life, liberty or property without due process of law. Similarly, W.Va. Const. Art. III, § 10, provides that no person shall be deprived of life, liberty or property without due process of law.
In September 2009, the habeas court conducted an omnibus hearing. Thereafter, by order entered on January 21, 2014, the court granted relief and vacated Hunt's convictions and sentence.
The sole basis for the habeas court's ruling concerned the testimony of Kishbaugh, (as well as the statements of the prosecutor) that Hunt is a pedophile. The habeas court determined that Kishbaugh's testimony constituted inadmissible character evidence under Rule 404(a) of the West Virginia Rules of Evidence . The January 21, 2014, order states:
Rule 404(a) of the West Virginia Rules of Evidence provides, in part:
(a) Character evidence generally. —Evidence of a person's character or a trait of character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion[.]
It should be noted that Rule 404 of the West Virginia Rules of Evidence was amended in 2014. The 2014 version of the Rule is not applicable in this case.
To be diagnosed as a “pedophile” is not evidence of a prior bad act or crime but evidence of the character (propensity) of the Petitioner to engage in particular conduct. * * * This evidence was also highly prejudicial to the Petitioner and not necessary for the legitimate purposes of the State. The State had already proven Petitioner's prior conviction for sexual abuse of a child [and] the fact that Petitioner was imprisoned for the prior offense.
A stay of Hunt's release from prison, pending this appeal, has been granted. The Warden and the Commissioner ask this Court to reverse the January 21, 2014, order and reinstate Hunt's convictions and sentence.
III.
Standards of Review Concerning Habeas Corpus
Syllabus point 1 of Mathena v. Haines, Warden, 219 W.Va. 417, 633 S.E.2d 771 (2006), states:
In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.
Accord syl. pt. 1, Ballard, Warden, ex rel. Mount Olive Correctional Center v. Meckling, No. 14–0245, 235 W.Va. 109, 772 S.E.2d 208, 2015 WL 1719101 (W.Va. April 9, 2015) ; syl. pt. 1, Ballard, Warden v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643 (2013). See W.Va.Code, 53–4A–9 [1967] (providing for judicial review), of the West Virginia Post–Conviction Habeas Corpus Act.
IV.
Discussion
The admission in evidence during Hunt's underlying trial of his conviction of the 1994 sexual abuse of his nine year old stepsister is not contested in this appeal. Instead, the issue before this Court concerns the testimony of the State's expert witness, Lonnie Kishbaugh, (as well as the statements of the prosecutor) that Hunt is a pedophile. The appendix record indicates that both the 1994 conviction and Kishbaugh's references to Hunt as a pedophile were admitted at trial under Rule 404(b) of the West Virginia Rules of Evidence . Rule 404(b) states:
(b) Other crimes, wrongs, or acts. —Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
The State argued that the diagnostic impression that Hunt is a pedophile was admissible under Rule 404(b) to show motive and intent.
The State argued that the diagnostic impression that Hunt is a pedophile was admissible under Rule 404(b) to show motive and intent.
Sexual offenses against children, however, are in a special category in relation to Rule 404(b), as this Court emphasized in our leading case, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
In Edward Charles L., the defendant was convicted of two counts of sexual assault in the first degree and two counts of sexual abuse in the first degree. The victims were the defendant's four year old twin son and daughter. At trial, the State was permitted to make reference to various unrelated sexual acts of the defendant. Some of the unrelated acts were committed in front of the twins and included: masturbating in front of his son, exposing the children to pornographic magazines and making the children listen to telephone calls the defendant made to sex clubs. Noting that those acts occurred close in time to the offenses charged, this Court, in Edward Charles L., determined that the acts were admissible under West Virginia Rule of Evidence 404(b), to show absence of mistake or accident. Moreover, this Court concluded that the acts were “so interwoven with [the defendant's] pattern of conduct toward the children that they are part of the res gestae of the crimes charged.” 183 W.Va. at 649, 398 S.E.2d at 131.
In Edward Charles L., the State was also permitted to make reference to unrelated sexual acts of the defendant which indirectly involved the children, such as the defendant ejaculating on underwear having been worn by his daughter. Considering those acts, along with the sexual acts committed in front of the children, this Court found that the probative value thereof outweighed any assertion of unfair prejudice. Articulating a “lustful disposition exception” to the general exclusion of such evidence, syllabus point 2 of Edward Charles L. states, in part:
Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment.
(Emphasis added) Accord syl. pt. 3, State v. Parsons, 214 W.Va. 342, 589 S.E.2d 226 (2003) ; syl. pt. 3, State v. Lola Mae C., 185 W.Va. 452, 408 S.E.2d 31 (1991). See R. P. Davis, Annotation, Admissibility, in Prosecution for Sexual Offense, of Evidence of Other Similar Offenses, 77 A.L.R.2d 841 (1961).
The unrelated acts of the defendant in Edward Charles L. also included the defendant's frequent patting of the front of his pants and his masturbation after having had sex with his wife. This Court found the admission of those matters to be error because they had no relation to the defendant's conduct toward the children. However, this Court concluded, in Edward Charles L., that, in view of the conclusive effect of the remaining evidence and the lack of unfair prejudice to the defendant, the error was harmless.
Edward Charles L. clearly establishes that a lustful disposition may be shown by collateral acts or crimes. It does not stand for the proposition that opinion evidence or comments by a prosecutor as to pedophilia are admissible to show a defendant likely engaged in such conduct on a particular occasion.
In Hunt's underlying trial, the jury was given a limiting instruction stating (1) that other acts committed by Hunt were not admitted as proof of his guilt under the indictment, (2) that the evidence of prior sexual abuse could only be considered to show that Hunt had a lustful disposition toward children, and (3) that any such evidence was not relevant to Hunt's character or to whether he is a bad person. Nevertheless, while Hunt's conviction of the 1994 sexual abuse of his nine year old stepsister was properly admitted in conformity with Edward Charles L. and Rule 404(b), our case law has yet to address the situation where, in a prosecution for sexual offenses committed against a child,
an expert witness called by the State opined that the accused is a pedophile.
As a preliminary matter, we note that the admissibility of testimony by an expert is a matter within the discretion of the trial court. State v. McKinley, 234 W.Va. 143, 764 S.E.2d 303, 322 (2014) ; State v. Black, 227 W.Va. 297, 306–07, 708 S.E.2d 491, 500–01 (2010). See Rule 702 of the West Virginia Rules of Evidence . Kishbaugh was employed as a therapist at the Denmar Correctional Center. His qualifications for assessing sex offenders was largely based on practical experience at Denmar. Although this Court finds no abuse of discretion in allowing Kishbaugh to testify, Kishbaugh was not a licensed psychologist and had not completed the course work required for a Masters Degree in psychology. Moreover, the diagnostic impression of Hunt on file at Denmar, referred to during Kishbaugh's testimony, was not included in the appendix record before this Court. Kishbaugh's testimony at trial relating to Hunt was rather cursory and consisted largely of discussing the general nature of pedophilia.
Many of the cases from other jurisdictions concerning the terms pedophile and pedophilia are limited, in context, to the sentencing stage in a criminal prosecution or to a proceeding seeking to commit an offender to a mental health facility. However, in the circumstances now before us, the more reasoned view is that the use of those terms by the prosecution, merely to establish a character trait of the accused, is improper, but subject to a harmless error analysis.See State v. Person, 20 Conn.App. 115, 564 A.2d 626, 631 (1989) (The defendant's proffer of expert testimony on whether he fit the profile of a pedophile was properly rejected, with the observation that a majority of the courts that have considered the issue [of showing various profiles] “have rebuffed attempts on the part of the state as well as the defendant to present testimony of this kind.”); State v. Floray, 715 A.2d 855, 858 n. 8 (Del.Super.1997) (citing Person, supra, for the same principle); Phillips v. State, 589 So.2d 1360, 1362 (Fla.App. 1st Dist.1991) (The use of pedophile profile testimony as substantive evidence of guilt is reversible error, but a harmless error analysis may be applied in certain cases.); Knight v. State, 206 Ga.App. 529, 426 S.E.2d 1 (1992) ( “There is no authority for the admission of an expert opinion that the defendant who is on trial for sex crimes against a child is or is not a pedophile.”); State v. Hester, 114 Idaho 688, 760 P.2d 27, 33 (1988) ( “Using evidence of a person's characteristics in the prosecution's case in chief simply to support the ultimate conclusion that he acted in conformance with those characteristics in committing a crime, is not permissible.”); Dyer v. Commonwealth, 816 S.W.2d 647, 654 (Ky.1991), overruled on other grounds by Baker v. Commonwealth, 973 S.W.2d 54 (Ky.1998) (Concepts such as “pedophile” have no bearing on a criminal case, except in relation to the accused's mental condition at the time of the alleged offense, and may not be used to convict or acquit without further testimony from an expert qualified in the field “positively establishing that the condition is a recognized scientific entity, and then tying the accused to this mental state.”); State v. Nelson, 331 S.C. 1, 501 S.E.2d 716, 719 (1998) (citing cases from several states that have rejected character related testimony or evidence showing that the defendant is a pedophile).
See generally Gregory G. Sarno, Annotation, Admissibility of Expert Testimony as to Criminal Defendant's Propensity Toward Sexual Deviation, 42 A.L.R.4th 937 (1985) ; Thomas M. Fleming, Annotation, Negative Characterization or Description of Defendant, by Prosecutor During Summation of Criminal Trial, as Ground for Reversal, New Trial, or Mistrial—Modern Cases, 88 A.L.R.4th 8 (1991).
Upon those authorities and the facts before us, we hold that the opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the accused has the character trait of a pedophile under the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, is inadmissible pursuant to Rule 404(a) of the West Virginia Rules of Evidence to prove that on a particular occasion the accused acted in accordance with that character trait. However, where such evidence is improperly admitted
at trial, the error is subject to a harmless error analysis. In conjunction with our holding, we note that comments by the prosecutor on such evidence are improper, yet are also subject to a harmless error analysis.
Consequently, this Court is in agreement with the habeas court Judge that the prosecutor's comments and the opinion evidence as to pedophilia were not admissible under Rule 404(b) because they did not relate to collateral acts or crimes. They were solely related to a character trait to engage in wrongful conduct. Therefore, the testimony of Kishbaugh and the comments by the prosecutor were erroneous.
Although the error was prejudicial to Hunt at trial, this Court is of the opinion that the prejudice was not unfair to the extent that Hunt should be granted a new trial. Our principles guiding a harmless error analysis are well settled. In State v. Bowling, 232 W.Va. 529, 542–43, 753 S.E.2d 27, 40–41 (2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 1772, 188 L.Ed.2d 603 (2014), this Court stated: “When the alleged error involves the infringement of a petitioner's constitutional rights, the burden is on the State to show that the error is harmless beyond a reasonable doubt.” Moreover, as expressed in syllabus point 20 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974) : “Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction.” Accord syl. pt. 4, State v. Jenkins, 195 W.Va. 620, 466 S.E.2d 471 (1995).
The evidence of the State overwhelmingly established Hunt's guilt of the crimes charged. In addition to Hunt's prior conviction for the sexual abuse of his nine year old stepsister, the evidence included the telephone conversation during which Hunt asked A.K., “When are we gonna have sex again?” Hunt has not challenged that statement in this appeal. Hunt's extensive, evening newspaper route, which included rural areas, clearly provided him with opportunities to commit the offenses. According to A.K., he sustained bruises on his legs and buttocks caused by Hunt during those encounters.
Psychologist Michael Carter, who provided treatment and counseling to A.K., testified that A.K. exhibited “a severe level of trauma which is consistent with and would suggest that he had been molested.” In addition, A.K.'s school counselor testified that, during the period in question, A.K. went from being social and outgoing to being easily emotional and suffering academically. The school counselor testified further: “And also at times he stated that he wanted to kill himself or hurt himself; and he also stated that he wanted to run away.” Finally, the State produced evidence that in 1999, after the suspicions of sexual abuse against A.K. had been reported, Hunt went to A.K.'s home and began harassing him. The police were called, and Hunt was cited for trespassing.
In State v. Rollins, 233 W.Va. 715, 732, 760 S.E.2d 529, 546 (2014), this Court stated: “If a trial court has admitted ‘bad character’ evidence in error, a petitioner is only entitled to reversal if the error affected his substantial rights.” See Rule 103(a) [1985] of the West Virginia Rules of Evidence (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”). See also State v. McKinley, 234 W.Va. 143, 764 S.E.2d 303, 314 (2014) (citing Rollins ). In this case, the prosecutor's references and opinion testimony concerning pedophilia were absolutely unnecessary to establish Hunt's guilt. However, this error did not rise to the level of a constitutional violation or otherwise violate Hunt's substantial rights. This Court concludes that the error was harmless. See n. 6, supra.
V.
Conclusion
For the reasons stated above, the January 21, 2014, order of the habeas court is reversed, and Hunt's convictions and sentence are reinstated.
Reversed.
Justice LOUGHRY, joined by Chief Justice WORKMAN, concurs, in part, and dissents, in part, and reserves the right to file a separate Opinion.
LOUGHRY, Justice, concurring, in part, and dissenting, in part:
I concur in the majority's reversal of the circuit court's order granting habeas relief to Mr. Hunt and awarding him a new trial. I write separately for two reasons. First, I disagree with the majority's conclusion that it was error for the prosecutor to refer to Mr. Hunt as a “pedophile” and for the State to introduce expert testimony concerning Mr. Hunt's pedophilia during his trial on charges of sex crimes against his child victim. Although the majority ultimately concludes that the error was harmless, I do not believe there was any error. Second, I strenuously disagree with the majority's new point of law, which precludes the admission of expert testimony to show that an “accused has the character trait of a pedophile” in order “to prove that on a particular occasion the accused acted in accordance with that character trait.” While the majority appears to have restricted its new point of law to expert evidence of a criminal defendant's “character trait of a pedophile,” it is unclear whether it will impact the admissibility of expert testimony of a criminal defendant's actual diagnosis of pedophilic disorder. I will address each of these points in turn.
“Pedophilic disorder” is discussed more fully, infra.
It has long been the law in this State that a criminal defendant's prior bad acts are admissible under Rule 404(b) to show the defendant's lustful disposition toward children in prosecutions for sex crimes against a child. In the seminal case of State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), this Court held
Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. To the extent that this conflicts with our decision in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), it is overruled.
Edward Charles L., 183 W.Va. at 643, 398 S.E.2d at 125, syl. pt. 2. Recognizing the vulnerability of children in such heinous matters, the Court reasoned in Edward Charles L. that
these cases generally pit the child's credibility against an adult's credibility and often times an adult family member's credibility. Since sexual abuse committed against children is such an aberrant behavior, most people find it easier to dismiss the child's testimony as being coached or made up or conclude that any touching of a child's private parts by an adult must have been by accident. In addition, children often have greater difficulty than adults in establishing precise dates of incidents of sexual abuse, not only because small children don't possess the same grasp of time as adults, but because they obviously may not report acts of sexual abuse promptly, either because they are abused by a primary care-taker and authority figure and are therefore unaware such conduct is wrong, or because of threats of physical harm by one in almost total control of their life. In most cases of sexual abuse against children by a care-taker or relative, the acts of sexual abuse transpire over a substantial period of time, often several years. Consequently, under the existing collateral acts rule, a child victim is unable to present the complete record of events forming the context of the crime. Lastly, there is a common misconception that children have a greater propensity than adults to imagine or fabricate stories of sexual abuse. Research indicates, however, that absent coaching, children are far less likely to lie about matters in the sexual realm than adults, and that absent sexual experience there is little means by which children can imagine sexual transactions. In consideration of all these factors, the probative value of such testimony far outweighs the potential for unfair prejudice. (Internal footnotes omitted.).
Id., 183 W.Va. at 650–51, 398 S.E.2d at 132–33. Indeed, where there has been the proper introduction of collateral acts evidence of the accused's lustful disposition toward children,
I see no harm in the prosecution's use of the terms “pedophile” or “pedophilia,” which is, at its very essence, a lustful disposition toward children. As one court has explained,
the modern psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 527–28 (4th ed.1994) (302.2—Pedophilia).
State v. Prine, 287 Kan. 713, 200 P.3d 1, 15–16 (2009) ; see also State v. Swallow, 350 N.W.2d 606 (S.D.1984) (finding expert's testimony on pedophilia did not express opinion on either defendant's guilt at trial on charges of child sex crimes or whether he was pedophile, and was admissible to assist jury in understanding testimony of victim children as to sexual activity with defendant).
In addition, during Mr. Hunt's trial on the instant charges involving his sexual abuse of an eleven-year-old boy, the prosecution introduced Rule 404(b) evidence under Edward Charles L. of Mr. Hunt's prior guilty plea and conviction for the first degree sexual abuse of his then nine-year-old stepsister. However, when Mr. Hunt took the stand, he denied that his prior offense against his young stepsister ever occurred. Consequently, I believe that Mr. Hunt's denial opened the door to the expert's testimony concerning Mr. Hunt having a diagnostic impression of pedophilia, even assuming such testimony was inadmissible, as the majority has found.
Reaching beyond evidence of collateral crimes, pedophila is a recognized mental disorder. Under the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders pp. 697–700 (5th ed.) (“DSM–V”), “pedophilic disorder” has a diagnostic criteria of “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving activity with a prepubescent child or children (generally 13 years or younger)” that persists “[o]ver a period of at least 6 months.” I believe the concerns enunciated in Edward Charles L. are equally supportive of the admission of expert testimony concerning a criminal defendant's diagnosis of pedophilic disorder in cases involving the sexual abuse or sexual assault of a child.
A qualified expert's testimony regarding a criminal defendant's diagnosis of pedophilic disorder is quite different from expert testimony that the accused has, as the majority states, “the character trait of a pedophile[.]” (Emphasis added). While the majority's new point of law would arguably not exclude the admission of expert evidence of a criminal defendant's diagnosed pedophilic disorder, I also wish to point out that a diagnosed psychiatric disorder is not the same thing as a “character trait,” such as “honesty” or “peacefulness.” See 1 McCormick on Evid. § 195 (7th ed.2013) (“Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance[,] or peacefulness [.]”). Accordingly, rather than evaluating expert testimony regarding pedophilic disorder as a character trait to be analyzed under Rule 404(a)(1), as the majority has done, I believe that the admission of such expert testimony is more appropriately analyzed under our rules of evidence addressing the testimony of expert witnesses (Rules 702 through 704 ), as seen below.
In State v. Fanguy, 643 So.2d 860 (La.Ct.App.1994), the defendant challenged his conviction for incest involving his minor daughter. At trial, the prosecution introduced the testimony of an expert qualified in the field of psychology. This expert testified regarding his final diagnostic impression of the defendant as a pedophile. Appealing his conviction, the defendant argued that the admission of this expert testimony was erroneous because it was tantamount to allowing the expert to give an opinion on the ultimate issue—whether the defendant was guilty of incest. The court found that while an expert witness may not express an opinion as to the guilt or innocence of the accused, the jury
was clearly informed that the expert was not giving an opinion as to the defendant's guilt or innocence. Accordingly, the appellate court found that the expert's testimony “was not an expression of his opinion on the guilt of the accused but rather a permissible opinion under La.Code Evid. art. 704.” Fanguy, 643 So.2d at 866.
See LSA–C.E. Art. 704 (“Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.”). Previously, Rule 704(b) of the West Virginia Rules of Evidence prohibited expert opinion testimony “as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” In 1985, this Court deleted subsection (b) from Rule 704, which currently states, in full: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.”
In short, in cases involving sex crimes against a child, if there has been a proper admission of Rule 404(b) evidence under Edward Charles L., I see no error in the prosecutor's reference to the accused as a “pedophile.” Further, if the accused has been diagnosed with pedophilic disorder, I believe the State should be allowed to proffer expert testimony concerning that diagnosis. Such testimony would, of course, be subject to our law and evidentiary rules regarding the admissibility of expert testimony, including West Virginia Rules of Evidence 701, 702 and 703, as well as the balancing test under Rule 403, which provides for the exclusion of otherwise relevant evidence.
Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
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For these reasons, I respectfully concur, in part, and dissent, in part, to the majority's decision in this case. I am authorized to state that Chief Justice Workman joins in this separate opinion.