Opinion
H048237
08-30-2022
THE PEOPLE, Plaintiff and Respondent, v. MARGARITO MARCELO REYES, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1884262
Grover, J.
A jury convicted defendant of multiple sex crimes against a child under the age of 14. Defendant's appeal relates solely to evidence at trial regarding child sexual abuse accommodation syndrome, or CSAAS. He argues CSAAS evidence is inadmissible for all purposes, and even if it is admissible to show a victim's behavior is not inconsistent with the conduct of someone who has been molested, the CSAAS expert's references here to the frequency of certain characteristics of child sexual abuse victims exceeded that purpose and is prejudicial error. The first argument has already been rejected by the California Supreme Court. There being no prejudice from the second argument, we will affirm the judgment.
I. BACKGROUND
"A" was born in 1993 and her sister, "R", was born a year later. (The victims were referred to at trial as Doe 1 and Doe 2, respectively; we refer to them by their initials to maintain their privacy. (Cal. Rules of Ct., rule 8.90(b)(4).) Defendant, 20 years their senior, was married to their father's sister. The girls' mother and father suffered from substance abuse, which resulted in both girls spending a substantial part of their childhoods living with their aunt and defendant. The aunt was "was like a mom" to the girls, and made sure they were cared for.
When A was 24 years old, she told her boyfriend, and in turn her mother and her father, that defendant had raped her when she was younger. The father was angry. He confronted his sister and defendant, and they cut off communication. Assisted by a sexual assault detective, A made a pretext call to defendant. A said to defendant, "I've been freaking out [] about the stuff that happened when I was 11. [_ ] I need closure. [_ ] I need to know that you're sorry for what you did and I need to move on with my life." Defendant responded, "I don't even know what to say. I mean, Shit. Um, I don't know what to tell you. I mean, Shit." A continued, "I need to know why you violated my trust. I trusted you." Defendant said, "I didn't (pause). Man, I need to go right now. Um, I mean, well you could - you could call me later." A pressed, "I need to know why you had sex with me." Defendant said he was busy and he would call her back. Then he said, "Call me back in a little bit and I'll talk to you." She called back an hour later but was unable to speak with defendant because he had turned off his phone.
Defendant was charged in an amended information with several offenses involving A: two counts of aggravated sexual assault (rape) of a child under the age of 14 and 10 or more years younger than the defendant (former Pen. Code, § 269, subd. (a)(1); counts 1 and 3); one count of aggravated sexual assault (oral copulation) on a child under 14 and 10 or more years younger than the defendant (former Pen. Code, §§ 269, subd. (a)(4), 288a; count 5); one count of aggravated sexual assault (sexual penetration by foreign object) on a child under 14 and 10 or more years younger than defendant (former Pen. Code, §§ 269, subd. (a)(5), 289, subd. (a); count 7); four counts of lewd or lascivious acts on a child under the age of 14 with substantial sexual conduct (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8); counts 2, 4, 6, and 8); and one count of lewd or lascivious acts on a child by force (Pen. Code, § 288, subd. (b)(1); counts 9). (Counts 2, 4, 6, and 8 were alleged in the alternative to counts 1, 3, 5, and 7.) He was also charged with committing a lewd or lascivious act on R by force (Pen. Code, § 288, subd. (b)(1); count 10). The information alleged multiple victim circumstances as to counts 2, 4, 6, 8, 9, and 10. (Pen. Code, § 667.61, subds. (b) &(e).)
A and R testified at trial regarding the sexual acts. When A was about 11 and living with her aunt and defendant in San Jose, defendant "raped" her in the "extra back room" when she was playing hide and seek with her younger cousins. He made her lie on the bed, he groped her chest, rub her thigh, pulled down his pants, secured a plastic wrap on his penis with a purple ring, pulled her shorts down, and put his penis into her vagina. She remembered him "going back and forth and his penis going - not coming all the out but going in[,]" and saying something like she "was dry." It hurt and she was scared, but she didn't say anything. She described defendant as a "heavy-set" "grown man," whom she knew would "overpower" her if she resisted. A few weeks later, defendant approached A in her room holding women's thong underwear. He had her put on the underwear, he lay her on her bed, stood over her, moved the underwear to the side, rubbed her vagina, put the same "like baggie" and purple ring on his penis, and inserted his penis. She remembered his penis "going in and out," of her vagina, "him stopping," and leaving the room. She wondered if he was "raping me for a second time" because she "wasn't being the best kid that I was supposed to [be]." Another time when she was still 11, defendant made A orally copulate him when she was home from school sick and resting in her aunt's bed. A fourth time when she was 12 and wearing shorts, defendant groped her thigh and rubbed between her vaginal lips with his fingers in the car. She testified how several years later she disclosed the assaults to her boyfriend, and then her parents, and made a pretext call to defendant assisted by a sexual assault detective.
R testified that defendant grabbed her breast in San Jose after a birthday party for her younger brother when she was 12 years old. The party was "pretty much over," everyone "was already in their rooms," when defendant called to her from the backyard. It was dark, she went outside, defendant "c[a]me up behind me," and she felt his stomach on her back. He put his arm under hers and cupped her breast with his hand. She was scared and froze, but "snapped out of it" and ran inside.
When R was 13 years old and living with her father in Sacramento, she told her mother and another older sister that defendant had touched her a year earlier at the birthday party. At her mother's urging, and because R had a younger sister who spent time with her aunt and defendant who had also moved to Sacramento, R told her stepmother, who in turn told her father, that defendant had grabbed her breast. R moved to San Jose to live with her mother, and "nobody did anything about [it]."
The father testified regarding R's disclosure that R told him R "didn't feel comfortable around [defendant] because he looked at her funny," and he spoke to his sister (defendant's wife) about R's concern. At the same time, the father asked A whether defendant had ever inappropriately touched her. A testified that she told her father "no" because she did not know how to explain to him what had happened to her. A testified that earlier that same day defendant called her and asked, "Did you tell anybody?" She asked him, "Did I tell anybody what?" He asked, "did you tell anybody what happened[?]" She was with friends, said "no," asked "why?" and he hung up. She understood defendant to be asking whether she had told anybody about him raping her.
The sister testified regarding R's disclosure. A's pretext call was admitted in evidence, and the People presented evidence on CSAAS.
Defendant testified that he never touched his nieces inappropriately, and both were lying. Several witnesses, including, defendant's wife, testified as to his character for appropriate conduct around children.
Trial counsel argued A had fabricated her allegations; the jury should accept the father's recollection of events that R had disclosed in 2008 only that she was uncomfortable around defendant; and R's version of events changed after A's disclosure. Trial counsel argued the CSAAS evidence was "80s pop psychology," not scientific, and amounted to "confirmation bias" because every aspect of CSAAS "could go either way to confirm that someone has been sexually abused."
Defendant was found guilty of all counts except count 7 (digitally penetrating A in the car) and count 10 (grabbing R's breast using force). Defendant was acquitted of count 7. As to count 10, he was found guilty of the lesser offense of committing a lewd or lascivious act without force. (Pen. Code, § 288, subd. (a).) The jury found true the substantial sexual conduct allegations as to counts 2, 4, 6, and 10, and not true as to count 8.
Defendant was sentenced to a prison term of 90 years to life, composed of six consecutive 15-years-to-life terms (counts 1, 3, 5, 8, 9, and 10). The court imposed and stayed 15-years-to-life terms on counts 2, 4, and 6. (Pen. Code, § 654.)
II. DISCUSSION
CSAAS reflects a body of clinical research identifying common behaviors displayed by children known to have been sexually abused. (People v. Bowker (1988) 203 Cal.App.3d 385, 389, 392, fn. 8 (Bowker).) The five components of CSAAS are secrecy; helplessness; entrapment and accommodation; unconvincing, delayed disclosure; and retraction. (Id. at p. 389.) CSAAS is not a diagnostic tool, and it is not admissible to prove that a child was molested. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744; accord, People v. Bledsoe (1984) 36 Cal.3d 236, 247, 251 [rape trauma syndrome evidence is not admissible to prove a rape occurred].) The research is used to dispel misconceptions about how children react to sexual abuse. (Patino, at p. 1744.) Our Supreme Court recognizes that expert testimony on CSAAS is admissible to rehabilitate a victim's credibility when the defense suggests that a child's conduct after an alleged molestation is inconsistent with a claim of molestation. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) The court explained in McAlpin:" 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (Id. at pp. 1300-1301.) CSAAS evidence is admissible when the victim's credibility is placed in issue due to paradoxical behavior, including a delay in reporting molestation. (Patino, at pp. 1744-1745; Bowker, at pp. 393-394 ["the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence"].)
A. Trial Court Proceedings Re CSAAS Evidence
The trial court denied defendant's in limine motion to entirely exclude CSAAS testimony, but it limited the scope of the testimony. The court excluded testimony" 'that a particular report of alleged abuse is credible because the victim manifests certain defined characteristics which are generally exhibited by abused children' "; testimony regarding "the particular facts of the present case or a hypothetical that closely tracks the facts of the case"; testimony "about what percentage of child sexual abuse allegations have been proven to be false"; testimony "that the profile of a typical molester was someone well known [to] the victim"; and testimony that "sexual abuse may cause possible future psychological harm to victims." It granted the prosecution's in limine motion to exclude statistical evidence regarding false reporting. The court informed counsel that it was unnecessary to renew objections to CSAAS evidence at trial. It urged a "shorthand" objection (and noted it may interject its own objection) if the testimony ventured into an inappropriate area.
After qualifying psychologist Anna Washington as a CSAAS expert at trial, the court instructed the jury using CALCRIM No. 1193: "Dr. Washington's testimony about CSAAS is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [A and/or R]'s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of [A and R]'s testimony. [¶] So, again, this is for a limited purpose, and I'm going to repeat that you may consider this evidence only in deciding whether or not either of the complaining witnesses' conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of either or both of the complaining witnesses' testimony."
Dr. Washington testified regarding CSAAS's origin and purpose: In 1983 a psychiatrist published an article introducing the term "child sexual abuse accommodation syndrome" as a framework to "explain common reactions that children might have after sexual abuse," including "how children might talk about abuse or disclose about abuse," and to "challenge some assumptions or myths that people commonly hold about child sexual abuse, especially beliefs or behaviors that might be counterintuitive to most adults." Dr. Washington explained that the five components of CSAAS address the "most common myths" about child sexual abuse, and "typically" child sexual abuse victims exhibit at least some of those traits. She noted CSAAS is not a diagnostic tool, but rather "an organizational framework to better understand the experience of victims of child sexual abuse and why they may act in certain ways following child sexual abuse." She described the word "syndrome" as a misnomer. The original author did not uncover a syndrome, nor was it intended to diagnose whether a child had been sexually abused or to assess whether a defendant is guilty. Rather, the research revealed a pattern of behaviors used to educate people about common reactions of child sexual abuse victims and common myths related to child sexual abuse. The research, based on the author's career working with known victims of child sexual abuse, revealed "patterns of behavior for children who have been sexually abused" and is used to educate people about children's reactions and disclosures following sexual abuse. Dr. Washington, who herself had counseled dozens of child sexual assault victims and their families, stated she was unfamiliar with defendant and the allegations in this case.
Dr. Washington explained that secrecy is "an overarching framework that sets the stage for some of the other categories" because "from the perpetrator's perspective, child sexual abuse has to occur in secrecy. So that means that the perpetrator has to find some way to get ongoing access to being alone with the child." "And they also have to figure out some way to make sure that that child doesn't tell anyone about the abuse." And "to be successful," perpetrators "usually establish a positive and trusting relationship with the child before there is sexual abuse." To that end, Dr. Washington noted that "in most cases of child sexual abuse, the perpetrator is someone that is known and trusted to that child. It might be a parent or an extended family member or a coach or some other person that is, again, trusted by that child." She explained that the perpetrator may use strategies such as grooming, intimidation, or threats over time to introduce sexual abuse, although "[w]e know that, in fact, for the majority of victims of child sexual abuse, they tend to not need physical threats in order to sort of go along with the child sexual abuse," because of the preexisting positive relationship with the abuser.
Dr. Washington testified that delayed disclosures are common and are related to secrecy. She testified that child victims of sexual abuse may worry about "things such as having to go to foster care" or the abuser being incarcerated or a different caregiver not believing them or becoming upset. She noted, "And we know that, rather than physical threats, those perceived consequences that children have [...] are more effective in keeping kids quiet about abuse."
Turning to helplessness, Dr. Washington offered that many people might assume that children would fight, run away, scream, or tell someone right away if they are being sexually abused. She continued, "But what we see is that almost all children fail to do that and instead tend to be quiet with the abuse, and they tend to sort of go along with the child sexual abuse." After Dr. Washington explained that children do not want to jeopardize their relationships with the adults upon whom they rely for their survival, the court recessed so that it could alert counsel and the expert outside the presence of the jury to testimony it viewed as potentially exceeding the in limine ruling prohibiting statistical references related to child abuse.
The court noted that Dr. Washington had used the words" 'majority,'" " 'most,'" and" 'almost all,'" and had discussed the perceived loss of a relationship as being " 'more effective in keeping kids quiet'" than physical threats. (Dr. Washington explained that she used "majority" rather than "common" "to change up the word and not say 'common' in every sentence," as opposed to implying a number.) In the trial court's view, however, "without some form of qualification" those words inappropriately suggested conclusions derived from statistical evidence.
The court declined to strike the testimony because of its high probative value and the availability of a curative instruction. When the jury returned after the break, the court gave further limiting instructions regarding the CSAAS testimony. The court first had Dr. Washington clarify to the jury that her earlier testimony "was looking at known victims of child sexual abuse as opposed to the world at large," and "the different specifics" in that testimony related to "what the research shows about that universe of known victims." The court then instructed the jury: "[E]vidence about child sexual abuse accommodation syndrome is not being presented to you and must not be considered by you as proof that the alleged molestations are true. [¶] The research is based on an approach that is completely different from that which you must take to this case. The research, as you've heard, begins with the assumption that molestations occurred and seeks to describe and explain common reactions to known victims of that experience. [¶] As distinguished from that research, you are to presume the defendant innocent, and the People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider this evidence and its effect only for the limited purpose of showing, if it does, that the alleged [victims'] behavior, as shown by the evidence, are not inconsistent with having been molested."
Dr. Washington testified for nearly another hour. After her testimony and outside the jury's presence, the court noted that based on its previous directives, the prosecutor and witness appropriately framed their respective questions and responses (citing as examples, their use of phrases such as "Is there a misconception of or does the research of victims show us"; "what the research is telling us"; "what we know from the memory research"; and "what we know from children that have been studied").
B. CSAAS Evidence is Admissible To Rehabilitate Credibility
Defendant argues CSAAS evidence should be inadmissible for all purposes because it is unreliable, misleading, and will always support the conclusion that a complaining witness has been abused, thereby creating an impermissible inference of guilt in violation of the Fifth and Fourteenth Amendments to the federal Constitution. He argues that our Supreme Court in McAlpin did not directly hold that CSAAS evidence is admissible, but it merely analogized intermediate decisions admitting CSAAS evidence to the admission of evidence concerning a parent's reaction to their child's abuse. He urges us to follow courts in other states which have precluded its admission in criminal proceedings. (See, e.g., State v. J.L.G. (N.J. 2018) 234 N.J. 265, 272; Blount v. Commonwealth (Ky. 2013) 392 S.W.3d 393, 396; Steward v. State (Ind. 1995) 652 N.E.2d 490, 499; State v. Stribley (Iowa 1995) 532 N.W.2d 170, 174.)
CSAAS evidence is admissible in the vast majority of states, and it has been admissible in this state under McAlpin for over 30 years. (People v. Mulch (2020) 52 Cal.App.5th 464, 465, 472-473.) The McAlpin court expressly endorsed CSAAS evidence "to rehabilitate [] credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation." (McAlpin, supra, 53 Cal.3d 1289, 1300.) McAlpin is binding on the trial and appellate courts in California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial court did not abuse its discretion by admitting the testimony here. (People v. McDowell (2012) 54 Cal.4th 395, 426 [admission of expert testimony reviewed for abuse of discretion].)
C. The CSAAS Evidence Was Not Prejudicial
Citing Bowker and People v. Wells (2004) 118 Cal.App.4th 179 (Wells), defendant argues the "sole purpose of CSAAS is to inform the jury that the victim's behavior 'was not necessarily inconsistent with having been molested,'" but that Dr. Washington's testimony instead "informed the jurors that the victims' behavior was highly consistent with the behavior of an actual abuse victim," and was" 'a veiled opinion' that the chance the victims [...] were lying [...] was statistically improbable in light of what the expert knew for a fact about the characteristics of actual abuse victims." Defendant points to the statistical concerns expressed by the trial court. He also cites Dr. Washington's testimony that it is "not uncommon" for an abuser to be a close family member; and that it is "common" for abused children to continue to spend time with their abuser, to appear happy despite ongoing abuse, to delay disclosing the abuse, to disclose incrementally, and to have difficulty sharing consistent details and distinguishing multiple acts of ongoing abuse.
The Bowker court held that CSAAS testimony offered to rebut misconceptions relevant to a victim's credibility is admissible provided the jury is admonished "so that it understands the limited purpose for admitting such evidence." (Bowker, supra, 203 Cal.App.3d 385, 387-388.) Bowker cautioned that CSAAS evidence may not be used as a predictor of child abuse (id. at p. 395), and it is inappropriate for a CSAAS expert to give" 'general' testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused." (Id. at p. 393.) To ensure CSAAS information will not be used as a predictive index, the Bowker court instructed: "[T]he evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence," and "the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Id. at pp. 393394.) Further, "[t]he jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (Id. at p. 394.)
The testimony in Bowker was found to be improper (but also harmless) because it was replete with comments to bolster credibility and elicit sympathy for child abuse victims, and because the jury did not receive a proper limiting instruction. The jury was instructed only that the expert" 'will not ... be expressing any opinion as to the children in this case,'" " 'will not be testifying as to whether the children in this case were molested,'" and his testimony" 'regard[s] the conduct of alleged victims of child abuse as a class.'" (Bowker, supra, 203 Cal.App.3d 385, 389, 395.)
In Wells the trial court excluded a defense rape trauma expert from testifying about "usual" emotional reactions of trauma victims and that the alleged molestation victim's demeanor was inconsistent with having suffered trauma. (Wells, supra, 118 Cal.App.4th 179, 187.) Wells argued unsuccessfully to the trial court that the ruling denied him the opportunity to rebut the prosecution's argument, presented through its CSAAS expert, that the victim's disclosure was not inconsistent with having been sexually molested. (Ibid.) The appellate court explained that Wells had made no showing that child abuse counselors routinely assess credibility and determine whether a child was actually traumatized by relying on the child's display of emotional behavior when describing abuse. (Id. at p. 189.) And even if a showing had been made, an opinion that the victim's demeanor was inconsistent with having suffered trauma would be speculative absent a showing that all molested children display the emotional response described by the defendant's proposed expert. (Ibid.) Further, unlike CSAAS evidence, the proposed testimony about the "usual" demeanor of trauma victims did not correct any particular misconceptions about how molested children behave. (Ibid.)
The jury in Wells was instructed to consider the CSAAS testimony "only as evidence suggesting [the victim]'s disclosure behavior was not necessarily inconsistent with having been molested." (Wells, supra, 118 Cal.App.4th 179, 190.) By contrast, the excluded defense expert would not have been responsive to the CSAAS testimony. (Ibid.) "Because the jury would likely have understood [the defense expert]'s proposed testimony about 'usual' reactions from a trauma victim as a veiled opinion that [the victim], who did not exhibit such 'usual' behaviors, was not truly molested, the trial court properly excluded this testimony as well." (Ibid.)
We do not view Dr. Washington's references to "common" and "not uncommon" responses of child molestation victims as testimony "that the victims' behavior was highly consistent with the behavior of an actual abuse victim," or "a veiled opinion" that the chance the victims were lying was statistically improbable, as defendant suggests. Dr. Washington explained four of the five components of CSAAS generally. (Wells, supra, 118 Cal.App.4th 179, 190 [expert permitted to describe general aspects of CSAAS].) Those components-secrecy, helplessness, entrapment, and delayed or unconvincing disclosure-were relevant to defendant's abuse of both victims and manner and timing of their disclosures. Dr. Washington answered questions in the context of "what the research showed," and she was neither asked for nor did she offer an opinion on the veracity of the victims' disclosures. And unlike in Bowker, the jury here was instructed both at the time Dr. Washington testified and before deliberations that her testimony was relevant only to assess "whether or not [the victims'] conduct was not inconsistent with the conduct of someone who has been molested[,] and in evaluating the believability of [their] testimony." As the Bowker court explained: "It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter clearly is not." (Bowker, supra, 203 Cal.App.3d 385, 393.) It is the former that occurred here.
Even if Dr. Washington's use of the words "majority," "most," "almost all," and "more effective" were to be viewed as suggesting statistical probabilities of child abuse, we see no prejudice on this record. (Bowker, supra, 203 Cal.App.3d 385, 395 [error reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836].) Dr. Washington used those words to describe common behaviors of known child abuse victims, not to opine on the truth or falsity of reported abuse, which is outside the scope of CSAAS evidence and inadmissible. (People v. Wilson (2019) 33 Cal.App.5th 559, 568, 570 [CSAAS expert" 'step[ped] outside of the accommodation syndrome'" to discuss studies quantifying percentage of false allegations; testimony "invaded the province of the jury, whose responsibility it is to 'draw the ultimate inferences from the evidence'" because "the practical result was to suggest to the jury that there was an overwhelming likelihood their testimony was truthful"]; People v. Julian (2019) 34 Cal.App.5th 878, 883-884, 886 [testimony regarding percentage of false allegations by child sexual abuse victims invited the jury to presume guilt based on statistical probabilities]; People v. Lapenias (2021) 67 Cal.App.5th 162, 176-177 [testimony that it was rare for children to make false claims of sexual abuse erroneously admitted as opining on a witness's credibility].) Her references were few and they occurred early in her testimony. Dr. Washington later repeated to the jury the context of her testimony as referring to known victims of child sexual abuse, and the court amplified its limiting instruction to clarify the purpose of her testimony.
We also observe that the prosecution's case was strong. A and R testified clearly regarding the assaults. A's testimony was corroborated by R, who was younger than A and was molested some years after the assaults on A. The pretext call was inculpatory, and defendant's testimony on cross-examination about the call was damaging. Defendant acknowledged being aware of A's accusations for several months before receiving the pretext call, and being upset and angry about the accusations. Yet when A confronted him on the phone, he did not deny the accusations or ask her to explain why she was saying untrue things about him. Even though he said he had "so much" he "wanted to tell her," and he was "upset" and "hurt," he "didn't say what [he] wanted to say." Instead, he told her, "Call me back in a little bit and I'll talk to you," after which he turned off his phone so she could not reach him. It is not reasonably probable that a result more favorable to defendant would have been reached had Dr. Washington not used words susceptible to statistical association.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P. J. Lie, J.