NOE ORTEGA PEREZ, Appellant, v. THE STATE OF NEVADA, Respondent
Perez v. State
Before the Court En Banc.
NOE ORTEGA PEREZ, Appellant, v. THE STATE OF NEVADA, Respondent.
NOE ORTEGA PEREZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 55817
November 27, 2013
313 P.3d 862
David Phillips, Las Vegas, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and James R. Sweetin, Deputy District Attorney, Clark County, for Respondent.
Robert Arroyo and Amy Coffee, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
Richard A. Gammick and Terrence P. McCarthy, Reno, for Am-icus Curiae Nevada District Attorneys Association.
Before the Court En Banc.
OPINION
By the Court,
Parraguirre, J.:
In this appeal, we are concerned with the admissibility of expert testimony related to sex offender grooming behavior and the effect that behavior has on a child victim. "Grooming" generally describes conduct or actions by an offender that are undertaken to develop a bond between the victim and offender and, ultimately, make the victim more receptive to sexual activity with the offender. In particular, we address whether (1) the district court abused its discretion in concluding that the State's expert was qualified to offer grooming behavior testimony, (2) the expert's testimony improperly vouched for the complaining witness's testimony, and (3) the expert witness notice was insufficient.
As a general matter, we hold that whether expert testimony on grooming behavior is admissible in a case involving sexual conduct with a child must be determined on a case-by-case basis, considering the requirements that govern the admissibility of expert testimony. Those requirements include whether the particular expert is qualified to testify on the subject, whether the testimony is relevant and the product of reliable methodology such that it will assist the jury to understand the evidence or to determine a fact in issue, and whether the testimony is limited in scope to matters that are within the expert's specialized knowledge. Applying those considerations, we conclude that the district court did not abuse its discretion in admitting the expert testimony in this case. We further conclude that the expert's testimony did not improperly vouch for the complaining witness's testimony and that the State's pre trial notice was sufficient. We therefore affirm the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Appellant Noe Perez was convicted of six counts of lewdness with a minor under 14 years of age and two counts of sexual assault of a minor under 14 years of age, involving his niece. At trial, the victim testified that her relationship with Perez began to change after she turned 13. He began calling her more and complimenting her, as well as winking at her when they attended the same parties. After driving her and a couple home one evening, Perez kissed the victim and touched her thigh when they were alone. He later called her and told her about a dream he had about undressing her and said that he was uncomfortable when she was close to other boys.
In September 2008, Perez invited the victim to accompany him and his wife, Maria, to Las Vegas, Nevada, for a concert. Perez's own children did not come on this trip. On the first evening, Perez played with the victim's feet under the table at dinner, hugged her while they walked along the street, and kissed the victim while Maria was in the shower. The next day, Perez again played with the victim's feet while she was swimming in the hotel pool, and the victim indicated that she wanted to spend time alone with Perez.
In the hotel room, Perez began kissing the victim after Maria had entered the bathroom and turned on the shower. Perez undressed the victim, kissed her breasts, rubbed her vaginal area, and penetrated her vagina with his fingers and tongue. Maria emerged from the shower and began screaming at Perez and the victim and slapping the victim. Hotel security arrived shortly thereafter, and the victim told them that Perez had pinned her down and touched her. The victim testified that she told security that Perez forced her down because she feared Maria would leave her in Las Vegas. While Maria's reports to hotel security and responding officers were consistent with the victim's testimony, Maria testified that she only saw Perez kissing the victim, who was fully clothed.
Dr. John Paglini testified that the grooming relationship is a deceptive relationship with the intent of sexual contact. Dr. Paglini testified that an uncle touching his niece's foot under a table, winking at her, calling her and talking about how pretty she was, pulling her close while walking, touching her feet and arm in a swimming pool, touching her thigh, kissing her, showing concern for her spending time with other suitors, telling her about a dream in which he undressed her, and inviting her to attend an out-of-town concert with him could be construed as grooming behavior. In particular, he noted that showing concern for her spending time with other boys acts to isolate her from other intimate relationships and telling her about the dream is a method of probing her resistance to engaging in sexual behavior. The ultimate goal of such behavior is to establish a trusting relationship that lowers the child's resistance to engaging in sexual activity. Dr. Paglini also testified that whether a victim discloses abuse "is based upon the relationship to the perpetrator, the impact on the family and also the perceptions of the alleged victim regarding the people they're being interviewed on." Dr. Paglini noted that grooming typically results in lower rates of abuse disclosure.
DISCUSSION
The issues raised in this appeal involve expert testimony on "grooming" behavior. The term "grooming" describes when an offender prepares a child for victimization by " 'getting close to [the] child, making friends with the child, becoming perhaps a confidant of the child, [and] getting the child used to certain kinds of touching, [and] play activities.' " State v. Stafford, 972 P.2d 47, 49 n.1 (Or. Ct. App. 1998) (quoting trial expert testimony). It can also include gifts, praises, and rewards, id.; State v. Hansen, 743 P.2d 157, 160 (Or. 1987), superseded by statute on other grounds as stated in Powers v. Cheeley, 771 P.2d 622, 628-29 n.13 (Or. 1989), as well as exposure to sexual items and language, People v. Ackerman, 669 N.W.2d 818, 825 (Mich. Ct. App. 2003). This conduct is undertaken to develop an emotional bond between the victim and offender, Hansen, 743 P.2d at 160; Morris v. State, 361 S.W.3d 649, 651 (Tex. Crim. App. 2011), and may even lead the victim to feel responsible for his or her own abuse, Stafford, 972 P.2d at 49 n.1. The offender engages in grooming activity to reduce the child's resistance to sexual activity and reduce the possibility that the victim will report the abuse. Ackerman, 669 N.W.2d at 824-25.
Expert qualification
Perez contends that the State failed to present sufficient evidence of Dr. Paglini's qualifications to testify as an expert. He therefore argües that the district court abused its discretion in allowing Dr. Paglini to testify as an expert on grooming activity.
"The threshold test for the admissibility of testimony by a qualified expert is whether the expert's specialized knowledge will as sist the trier of fact to understand the evidence or determine a fact in issue." Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987); see NRS 50.275 ("If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge."). Expert testimony is admissible if it meets the following three requirements, which we have described as the "qualification," "assistance," and "limited scope" requirements:
(1) [the expert] must be qualified in an area of "scientific, technical or other specialized knowledge" (the qualification requirement); (2) his or her specialized knowledge must "assist the trier of fact to understand the evidence or to determine a fact in issue" (the assistance requirement); and (3) his or her testimony must be limited "to matters within the scope of [his or her specialized] knowledge" (the limited scope requirement).
Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008) (second alteration in original) (quoting NRS 50.275); see also Higgs v. State, 126 Nev. 1, 18, 222 P.3d 648, 658 (2010). We review a district court's decision to allow expert testimony for an abuse of discretion. Hallmark, 124 Nev. at 498, 189 P.3d at 650. As explained below, we conclude that Dr. Paglini's testimony satisfied the three requirements identified in Hallmark.
Qualification requirement
Perez argues that there was nothing to indicate that Dr. Paglini had sufficient training or experience to assert an opinion as to the effect of grooming behaviors on the young victim. Further, Perez complains that this was the first time that Dr. Paglini had testified regarding grooming behaviors and he failed to establish that his findings were subjected to peer review or that he had received specialized training in the area of sex offender grooming behaviors. Amicus NACJ asserts that the record is insufficient to support a conclusion that Dr. Paglini was qualified to testify to grooming techniques as he had not published any scholarly articles or testified regarding grooming techniques in any proceeding prior to Perez's trial.
We have identified several nonexclusive factors that are useful in determining whether a witness "is qualified in an area of scientific, technical, or other specialized knowledge" and therefore may testify as an expert. Hallmark, 124 Nev. at 499, 189 P.3d at 650. Those factors include "(1) formal schooling and academic degrees, (2) licensure, (3) employment experience, and (4) practical experience and specialized training." Id. at 499, 189 P.3d at 650-51 (footnotes omitted).
We conclude that Dr. Paglini's academic career and professional experience were sufficient to qualify him to testify as an expert on grooming behaviors and the effects of such behaviors on victims of sexual abuse. Dr. Paglini was formally educated in psychology. He held a bachelor's degree in psychology and a doctorate degree in clinical psychology. For the ten years prior to trial, Dr. Paglini "worked with family courts [conducting] child custody evaluations, dealing with the issues of domestic violence or sex abuse allegations." During the eight years prior to trial, he conducted over 1,000 psychosexual evaluations on sex offenders. In conducting those evaluations, Dr. Paglini considered "variables like sex offending history, substance abuse problems, previous criminal problems . . . [and] the relationship of the offender and the victim." Thus, he spent the better part of his career studying the relationships between victims and offenders. In looking at these relationships, Dr. Paglini studied whether grooming by the offender occurred. Based on his formal schooling and academic degrees and his employment and practical experience, Dr. Paglini possessed the knowledge or experience necessary to render an opinion on grooming behaviors and the effects of such behaviors on victims of sexual abuse. See Morris, 361 S.W.3d at 666-67 ("A person can, through his experience with child-sex-abuse cases gain superior knowledge regarding the grooming phenomenon."); see also People v. Atherton, 940 N.E.2d 775, 783, 790 (Ill. App. Ct. 3d 2010) (child welfare supervisor who had worked as a sexual abuse therapist for over six years qualified to testify about child-sexual-abuse-accommodation syndrome); Ackerman, 669 N.W.2d at 824, 825 (psychotherapist with master's degree in social work and who works with sex offenders and victims qualified); State v. Quigg, 866 P.2d 655, 661 (Wash. Ct. App. 1994) (expert with 13 years' experience in victims services unit, degree in child abuse and neglect, and numerous hours in intensive training and specialized workshops on child abuse, who had also conducted interviews with 3,000 victims qualified to testify about grooming). Other jurisdictions have concluded that witnesses with less academic preparation, see Haycraft v. State, 760 N.E.2d 203, 210-11 (Ind. Ct. App. 2001) (detective with experience investigating sexual abuse cases and who attended training on sexual abuse was qualified as a "skilled witness" to discuss grooming); People v. Petri, 760 N.W.2d 882, 888 (Mich. Ct. App. 2008) (detective with 15 years of law enforcement experience and who received training in forensic interviews of children would have qualified to offer testimony about grooming), or less experience than Dr. Paglini, see Atherton, 940 N.E.2d at 790, were sufficiently qualified to offer expert testimony on grooming or the effect of abuse on child victims.
We next examine whether Dr. Paglini's grooming testimony satisfied the "assistance" requirement of NRS 50.275.
Assistance requirement
The "assistance" requirement asks whether the expert's "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." NRS 50.275. The "assis-' tance" requirement has two components: whether the testimony is (1) relevant and (2) the product of reliable methodology. Hallmark, 124 Nev. at 500, 189 P.3d at 651 ("An expert's testimony will assist the trier of fact only when it is relevant and the product of reliable methodology." (footnote omitted)). Although Perez only challenged Dr. Paglini's qualifications, at our invitation, amici briefed the relevance of expert testimony about sex offender grooming.
Relevance
Evidence is relevant when it tends "to make the existence of any fact that is of consequence to the determination of the action more or less probable." NRS 48.015. Generally, all relevant evidence is admissible. NRS 48.025. However, relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice or misleading the jury, or if it amounts to needless presentation of cumulative evidence. NRS 48.035.
Amicus NACJ contends that Dr. Paglini's testimony was not particularly probative because the issue for the jury to decide was whether Perez committed the charged acts, not his intent during the purported grooming activity. Further, NACJ argues, what probative value the testimony may have had was outweighed by the danger of unfair prejudice as the testimony compared Perez's behavior to the known behavior of sex offenders and created a distinct impression that Perez was a sex offender. Amicus NDAA argues against a broad rule that would prohibit expert testimony about sex offender grooming and instead urges a case-by-case approach.
We conclude that expert testimony on grooming behaviors and its effect on child victims of sexual abuse may be relevant depending on the circumstances of the case. Dr. Paglini's testimony, under the circumstances in this case, was relevant. The victim testified that Perez engaged in seemingly innocuous flirtatious behavior and sexual discussions that finally escalated into more overt sexual contact, which is not unlike a dating relationship. This trajectory of behavior seems to indicate even to the lay juror a definite design on engaging in sexual conduct with the victim and may suggest that expert testimony would be unnecessary to explain his designs. See United States v. Raymond, 700 F. Supp. 2d 142, 150-51 (D. Me. 2010) ("'Expert' testimony about matters of common sense is not helpful to a jury and carries the risk of unfair prejudice . . . ."). However, it was not immediately apparent how Perez's behavior affected the victim. Notably, the victim appeared to acquiesce to the abuse and later gave inconsistent reports about that abuse. The victim's conduct leading up to the abuse and her inconsistent reports after the abuse could have been influenced by Perez's prior fawning, the fear of Maria's reaction to the conduct, and later counseling. Therefore, Dr. Paglini's testimony that the goal of grooming is to reduce the resistance to the abuse as well as the likelihood of disclosure was beneficial to the jury in evaluating the evidence of abuse and assessing the victim's credibility. See United States v. Hitt, 473 F.3d 146, 158-59 (5th Cir. 2006) (finding no abuse of discretion by district court admission of expert grooming testimony to explain "return-to-the-abuser behavior"); Jones v. United States, 990 A.2d 970, 978 (D.C. 2010) ("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."); Howard v. State, 637 S.E.2d 448, 451 (Ga. Ct. App. 2006) (admitting evidence of grooming, even if it incidentally places defendant's character in issue, to explain victim's unwillingness to disclose abuse); Ackerman, 669 N.W.2d at 825-26 (recognizing that most jurors lack knowledge of the conduct of sexual abusers and thus expert testimony regarding grooming behavior was helpful); State v. Berosik, 214 P.3d 776, 782-83 (Mont. 2009) (admitting expert testimony about grooming as relevant to assessing victim credibility); see also Smith v. State, 100 Nev. 570, 572-73, 688 P.2d 326, 327 (1984) (holding that expert testimony about family dynamics related to sexual abuse is relevant to help the jury understand "superficially unusual behavior of the victim and her mother").
As to unfair prejudice, Dr. Paglini's testimony did not stray beyond the bounds set by this court and other jurisdictions for expert testimony. Dr. Paglini generally addressed how grooming occurs and its purpose. He then offered insight in the form of hypotheti-cals that were based on Perez's conduct and indicated that such conduct was probably grooming behavior. See Shannon v. State, 105 Nev. 782, 787, 783 P.2d 942, 945 (1989) (providing that experts can testify to hypotheticals about victims of sexual abuse and individuals with pedophilic disorder). He did not offer an opinion as to the victim's credibility or express a belief that she had been abused. See Townsend, 103 Nev. at 118-19, 734 P.2d at 708-09. Dr. Paglini's testimony therefore meets the first component of the "assistance" requirement.
Reliability of methodology
This court has articulated five factors to use in evaluating the second component of the "assistance" requirement—whether an expert's opinion is the product of reliable methodology. These factors include
whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization.
Hallmark, 124 Nev. at 500-01, 189 P.3d at 651-52 (footnotes omitted). These "factors may be afforded varying weights and may not apply equally in every case.'' Higgs v. State, 126 Nev. 1, 20, 222 P.3d 648, 660 (2010).
Considering the applicable factors, we conclude that Dr. Paglini's opinion was the product of reliable methodology. In particular, Dr. Paglini practices in a recognized field of expertise, see Ackerman, 669 N.W.2d at 824, 825 (noting that psychotherapist who works with sex offenders is "clearly qualified in a recognized discipline"); Morris, 361 S.W.3d at 656 (recognizing study of behavior of sex offenders to be a legitimate field of expertise), and he testified about a phenomenon that courts have recognized as generally accepted in the scientific community, see Morris, 361 S.W.3d at 668 (concluding that grooming as a phenomenon exists); see also State v. Stafford, 972 P.2d 47, 54 (Or. Ct. App. 1998) (noting that observations about grooming behavior not drawn from testing or scientific methodology but derived from personal observations made in light of education, training, and experience constituted admissible evidence based on specialized knowledge); Bryant v. State, 340 S.W.3d 1, 9 (Tex. Crim. App. 2010) (same). Although he testified about the general nature of grooming, his tes timony indicated that he had based this on specific facts observed in his practice and applied it to the specific circumstances of this case. However, the record does not indicate that Dr. Paglini's opinion had been subject to peer review or was testable or had been tested. While Dr. Paglini's methodology did not meet two of the Hallmark factors, those factors are not as weighty given the nature and subject matter of his opinion testimony. See Higgs, 126 Nev. at 20, 222 P.3d at 660.
Finally, we must determine if Dr. Paglini's expert opinion was limited to the area of his expertise. Hallmark, 124 Nev. at 498, 189 P.3d at 650.
Limited scope requirement
Perez argues that Dr. Paglini's testimony about neurological development was outside the scope of his proposed testimony and that the State failed to show that he had received neurological training. We agree. Dr. Paglini's testimony, for the most part, proceeded within the scope of his expertise. He testified about the phenomenon of grooming and its effect on the victim. However, during a digression, Dr. Paglini testified regarding adolescent neurological development. As Dr. Paglini had not demonstrated any specialized knowledge in neuroscience or adolescent neurological development, this part of his testimony exceeded the scope of his specialized knowledge. See Kelly v. State, 321 S.W.3d 583, 600-01 (Tex. Crim. App. 2010) (concluding that expert who lacked medical training was not qualified to testify about grooming when her testimony was predicated on detailed medical information). However, Perez did not object to this digression on the basis that it exceeded the scope of Dr. Paglini's qualifications. Because Dr. Paglini's digression was brief, as compared to the whole of his testimony, we conclude that it did not amount to plain error. See Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001) (reviewing for plain error where party fails to object at trial), abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 776 n.12, 263 P.3d 235, 253 n.12 (2011).
Vouching
Perez also contends that Dr. Paglini's testimony impermissibly bolstered the victim's testimony and therefore the district court abused its discretion in admitting it. We disagree.
A witness may not vouch for the testimony of another or testify as to the truthfulness of another witness. Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824, 827 (1992). Although an expert may not comment on whether that expert believes that the victim is telling the truth about the allegations of abuse, Townsend, 103 Nev. at 118-19, 734 P.2d at 709; see also Lickey, 108 Nev. at 196, 827 P.2d at 827 (noting that expert commentary on the veracity of the victim's testimony invades the prerogative of the jury), Nevada law allows an expert to testify on the issue of whether a victim's behavior is consistent with sexual abuse, if that testimony is relevant, see Townsend, 103 Nev. at 118, 734 P.2d at 708; NRS 50.345 ("In any prosecution for sexual assault, expert testimony is not inadmissible to show that the victim's behavior or mental or physical condition is consistent with the behavior or condition of a victim of sexual assault.").
Dr. Paglini did not vouch for the victim's veracity. He offered a general opinion about the effect of grooming on a child victim of sexual abuse. He did not offer a specific opinion as to whether he believed that the victim in this case was telling the truth. "[T]he fact that such evidence is incidentally corroborative does not render it inadmissible, since most expert testimony, in and of itself, tends to show that another witness either is or is not telling the truth." Davenport v. State, 806 P.2d 655, 659 (Okla. Crim. App. 1991); see Townsend, 103 Nev. at 118-19, 734 P.2d at 709 (acknowledging that "expert testimony, by its very nature, often tends to confirm or refute the truthfulness of another witness" but that relevant testimony by a qualified expert within that expert's field of expertise is admissible "irrespective of the corroborative or refu-tative effect it may have on the testimony of a complaining witness" so long as the expert does not "directly characterize a putative victim's testimony as being truthful or false"); Bryant, 340 S.W.3d at 10 ("The information about grooming could have influenced the jury's credibility determinations, but only in an indirect fashion."). Therefore, the district court did not abuse its discretion in admitting the testimony.
Sufficiency of expert witness notice
Last, Perez contends that the State's notice of expert testimony was inadequate and therefore the district court should have precluded the State from calling Dr. Paglini. We disagree.
The State filed its notice of witnesses over one month before the start of trial. See NRS 174.234(2) (requiring State to provide notice of expert witnesses at least 21 days prior to trial). To comply with NRS 174.234(2), the notice had to include: "(a) A brief statement regarding the subject matter on which the expert witness is expected to testify and the substance of the testimony; (b) A copy of the curriculum vitae of the expert witness; and (c) A copy of all reports made by or at the direction of the expert witness." The State's notice in this case indicated that Dr. Paglini would "testify as to grooming techniques used upon children" and included his curriculum vitae. Dr. Paglini's curriculum vitae indicated that he had conducted sexual offender assessments on adult offenders and sexual offense and violence risk assessments on juveniles. The State did not submit any reports produced by Dr. Paglini because he did not prepare any reports related to the litigation. Perez's brief argument does not allege that the State acted in bad faith or that his substantial rights were prejudiced because the notice did not include a report or more detail about the substance of Dr. Paglini's testimony. See Mitchell v. State, 124 Nev. 807, 819, 192 P.3d 721, 729 (2008). Under the circumstances, we discern no abuse of discretion in allowing Dr. Paglini to testify. See id. ("This court reviews a district court's decision whether to allow an unendorsed witness to testify for abuse of discretion.").
Having rejected Perez's challenges to the admission of Dr. Paglini's testimony, we affirm the judgment of conviction.
Gibbons, Hardesty, and Saitta, JJ., concur.
We invited the participation of amici curiae Nevada Attorneys for Criminal Justice (NACJ) and Nevada District Attorneys Association (NDAA) concerning the relevance and applicability of expert testimony about sex offender grooming.
The NACJ also contends that the State should not have been able to introduce an expert opinion as to Perez's mens rea. We disagree. See NRS 50.295 ("Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."); Townsend, 103 Nev. at 118, 734 P.2d at 708 (noting that an expert may give an opinion on issues that embrace the ultimate issue to be decided by the trier of fact so long as it is within scope of expertise).
We deny Perez's motion to strike NACJ's request for a remand for additional supplementation of the record as moot.