FOR PUBLICATION
FILED
Oct 11 2012, 8:28 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HUGH N. TAYLOR GREGORY F. ZOELLER
Auburn, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID E. LYONS, )
)
Appellant-Defendant, )
)
vs. ) No. 76A03-1112-CR-582
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN CIRCUIT COURT
The Honorable Allen N. Wheat, Judge
Cause No. 76C01-1010-FA-1016
October 11, 2012
OPINION–FOR PUBLICATION
BAKER, Judge
Appellant-defendant David E. Lyons appeals his convictions for five counts of
Child Molesting,1 a class A felony. Specifically, Lyons contends that his convictions
must be reversed because fundamental error occurred when a child psychologist was
permitted to testify about various characteristics and behaviors that are common in child
sexual abuse victims. Finding no error, we affirm the judgment of the trial court.
FACTS
K.F. was born in December 1995. K.F.’s paternal grandmother babysat for K.F.
on a daily basis while her parents were at work. Lyons, who is K.F.’s uncle, was born in
1960, and he lived with his parents from 2004 to 2006 in Steuben County. During these
years, Lyons spent periods of time alone in his bedroom with K.F. He bought K.F. ice
cream, a laptop computer, paid for her tenth birthday party, and told her that she was
beautiful.
K.F.’s grandmother also babysat for K.F.’s friend, Jessica Mofield. Lyons would
tell Jessica that he thought K.F. was “hot” and that Jessica was the type of girl that people
wanted to marry but that K.F. was the kind of girl that people wanted to date. Tr. p. 539-
40.
Sometime in 2004, Lyons began molesting K.F. On one occasion, Lyons placed
his hands in K.F.’s underwear and put his fingers inside K.F.’s vagina while she was
sitting on Lyons’s lap playing a computer game. At some point during the encounter,
Lyons told K.F. that she should “trust him.” Id. at 404.
1
Ind. Code § 35-42-4-3.
2
On another occasion, Lyons again put his fingers inside K.F.’s vagina. And in
another instance, when K.F. was still eight years old, Lyons put K.F. on his bed, removed
all of her clothes, and put his tongue inside her “private.” Tr. p. 410-15. At some point
in 2004, Lyons made K.F. put her mouth on his penis and told her not to tell anyone.
In the summer of 2006, Lyons removed K.F.’s pants and tried to put his penis
inside her. Lyons’s penis touched both the “outside and the inside” of K.F.’s genitals.
However, his penis would “only go in a little way,” and it hurt K.F. Id. at 424-29. Lyons
again told K.F. not to tell anyone about the incident. That same summer when Lyons and
K.F. were in the garage at her house, Lyons picked up a board with a hole in it, placed his
penis through the hole, and had K.F. put her mouth on his penis.
Also during the summer of 2006 just before leaving for vacation, K.F. noticed that
she was bleeding from her “private area.” Tr. p. 447-48. During their vacation, K.F.’s
mother observed that K.F. had some redness and irritation in and around her genitals.
Later that same year, K.F. told Mofield about the incident involving the board when
Lyons made her put her mouth on his penis. Id. In January 2010, K.F. told her then-
boyfriend, Nathan Beatty, that her uncle had “raped” her when she was younger. Id. at
434-38, 599-601. K.F. was crying when she told him about this and told Beatty not to
tell anyone. Although Beatty urged K.F. to tell her mother about the incident, she
decided not to do so. Later in 2010, K.F. told her mother that Lyons had hurt her, but she
refused to say anything more.
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At some point, K.F. feared that Lyons was going to molest her younger sister and
developed a number of emotional problems. For instance, K.F. attempted to run away
from home after a fight with her parents. When K.F.’s mother found her, she took K.F.
to a local hospital. While there, K.F. began to scream, “don’t touch me” when the nurses
were trying to hold her down. Tr. p. 566. She also yelled, “he touched me.” Id. K.F.
then disclosed that Lyons had been molesting her. During a physical examination, a
nurse discovered a scar from a one-centimeter laceration on K.F.’s genitals that was at
least a year old. The nurse determined that it was probably the result of a forcible injury.
On October 14, 2010, the State filed five counts of child molesting, a class A
felony, against Lyons. Count I alleged an act of sexual intercourse with K.F., and the
remaining counts alleged various acts of deviate sexual conduct. Counts I and II alleged
acts that occurred between June 1, 2006, and September 1, 2006, while the other three
counts covered a time period between January 1, 2004, and September 1, 2006.
At a jury trial that commenced on August 17, 2011, the State called Dr. Judith
Williams to testify. Dr. Williams is a licensed clinical psychologist with extensive
experience counseling child victims of sexual abuse. Although Dr. Williams had
counseled K.F. from April to June of 2010, her testimony was not specifically related to
K.F.’s treatment.
Instead, Dr. Williams testified about general characteristics, mannerisms, and
behaviors that are common among child abuse victims. When the deputy prosecutor
asked Dr. Williams to describe the type of person to whom a child will initially disclose
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abuse, Lyons objected on the grounds that the question “called for speculation.” Tr. p.
518. After Dr. Williams confirmed that her answer would be based on “studies,” the trial
court overruled the objection. Id. Lyons made no further objection to Dr. Williams’s
testimony.
Dr. Williams testified that sex abuse victims will spend time with the offender if
the victim feels “special.” Id. at 517-27. And most of the time, the victim does not want
the offender to get in trouble. Dr. Williams testified that victims feel guilty, are
depressed, and lack self esteem. Moreover, some victims have suicidal thoughts.
Dr. Williams also testified that children often do not disclose instances of abuse
because they are confused or embarrassed and believe that the offender’s actions are their
fault. The child victim also is quite often afraid of the offender and feels obligated to
keep a promise made to the offender not to tell anyone about the abuse.
Following the presentation of the evidence, Lyons was found guilty on all counts
and subsequently sentenced to thirty years on each count. The sentences were ordered to
run consecutively to each other for an aggregate term of 150 years. Lyons now appeals.
DISCUSSION AND DECISION
Lyons claims that the trial court erred in permitting Dr. Williams to testify at trial
about characteristics and behaviors common among child molest victims. More
specifically, Lyons contends that it was fundamental error to permit such opinion
testimony that was based upon psychological studies when no basis for reliability was
5
established. In short, Lyons contends that his convictions must be reversed because Dr.
Williams based her responses on speculation.
In resolving this issue, we initially observe that Lyons failed to object to Dr.
Williams’s testimony regarding the behaviors and characteristics that child molestation
victims display. As noted above, Lyons objected only once to Dr. Williams’s
testimony—“to the form of the question” which called for “speculation” when the deputy
prosecutor asked Dr. Williams whom a child victim will generally tell about incidents of
sexual abuse. Tr. p. 518. That objection is not the same as the argument that Lyons is
now raising on appeal. Thus, his claim is waived. See Brown v. State, 783 N.E.2d 1121,
1125-26 (Ind. 2003) (holding that the failure to make a contemporaneous objection at
trial waives any claim on appeal that evidence was improperly admitted). Moreover, a
defendant cannot object on one ground at trial and then raise a different claim of error on
appeal. Small v. State, 736 N.E.2d 742, 747 (Ind. 2000).
In an effort to circumvent waiver, Lyons argues that he is entitled to a reversal on
the basis of fundamental error. Fundamental error, however, is an extremely narrow
exception that applies only where the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process. Mendenhall v. State, 963 N.E.2d 553, 567 (Ind. Ct.
App. 2012), trans. denied.
The fundamental error exception is available only in egregious circumstances. Id.
And the mere fact that error has occurred and that it will prejudice the defendant is not
6
sufficient to invoke the fundamental error exception; rather, the error must be such that
the defendant could not possibly have received a fair trial and that the appellate court is
left with the conviction that the verdict is clearly wrong and of such dubious validity that
justice cannot permit it to stand. Owens v. State, 937 N.E.2d 880, 885 (Ind. Ct. App.
2010), trans. denied.
That said, we note that Indiana Evidence Rule 702(a) provides that
[i]f 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 knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
In construing the above, only one of these characteristics—knowledge, skill, experience,
training, or education—is necessary to qualify an individual as an expert. Otte v. State,
967 N.E.2d 540, 547 (Ind. Ct. App. 2012), trans. denied.
In our view, Lyons mistakenly contends that Dr. Williams’s testimony was
“scientific testimony” and is therefore governed by the principles set forth in Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993),2 and the requirements of Evidence
Rule 702(b). This rule provides that “[e]xpert scientific testimony is admissible only if
the court is satisfied that the scientific principles upon which the expert testimony rests
are reliable.” (Emphasis added).
2
Among other things, Daubert declared that when “faced with a proffer of expert scientific testimony, the
trial judge must determine at the outset . . . whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509
U.S. at 592. Daubert also observed that “the statements constituting scientific explanation must be
capable of empirical test,” and “another pertinent consideration is whether the theory or technique has
been subjected to peer review and publication. Publication . . . is not the sine qua non of admissibility; it
does not necessarily correlate with reliability.” Id. at 592-93.
7
Our Supreme Court has determined that the “specialized knowledge” set forth in
Evidence Rule 702(a) is not necessarily scientific knowledge, and it need not be proven
reliable by means of “scientific principles.” Malinski v. State, 794 N.E.2d 1071, 1084
(Ind. 2003). Rather, such evidence is governed only by the requirements of Rule 702(a),
and any weaknesses or problems in the testimony go only to the weight of the testimony,
not to its admissibility, and should be exposed through cross-examination and the
presentation of contrary evidence. Turner v. State, 953 N.E.2d 1039, 1050 (Ind. 2011).
Dr. Williams was testifying to specialized knowledge about sex abuse victims
based on her training, education, and experience as a licensed clinical psychologist who
has extensive experience counseling victims of sexual abuse. Her testimony was not
based on any scientific principles or rules. Rather, Dr. Williams was testifying generally
about matters commonly observed in sexual abuse victims in the psychological literature
and in her own practice.
Dr. Williams has specialized knowledge in the area of child sexual abuse that goes
beyond the knowledge generally held by lay observers. She is a licensed and practicing
clinical psychologist with masters degrees in counseling education and clinical
psychology as well as a doctorate in clinical psychology. Dr. Williams has had
“considerable experience” counseling patients who are victims of sexual abuse. Tr. p.
514-15. Approximately one-third of Dr. Williams’s practice consists of children, and
about one-third of those patients have been sexually abused, meaning that she counsels
approximately one hundred sexually abused children per year. In other words, Dr.
8
Williams has specialized knowledge in the area of child sexual abuse that would assist
the jury in understanding the evidence and determining the facts at issue.
We note that while jurors can and should rely on their own common sense, a
search for the truth also requires them to understand and consider the extent to which
their personal assumptions may be invalid. Gaining insight and information from a
witness with a deep knowledge of, and extensive experience in, a relevant field helps the
jurors to perform their task more accurately. We also note that Lyons was free to cross-
examine Dr. Williams regarding the studies upon which she was relying and to
emphasize for the jury that these studies may have been only valid for treatment purposes
and thus not intended to be used for diagnostic purposes or as reliable tools for assessing
whether abuse actually occurred.
Additionally, we cannot agree with Lyons’s assertion that the admission of Dr.
Williams’s testimony violates the principles set forth in Steward v. State, 652 N.E.2d 490
(Ind. 1995). Steward addressed the propriety of admitting Child Sexual Abuse
Accommodation Syndrome (CSAAS) evidence. Id. at 491-93. The CSAAS evidence
presented at trial was not intended to serve as a diagnostic tool to prove that sexual abuse
had occurred; rather, it was intended for use in treating victims and their families, and it
“help[ed] to explain reactions, such as recanting or delayed reporting, of children
assumed to have experienced abuse.” Id. at 493. Therefore, the Steward court
determined that the CSAAS evidence could not be used to prove, either directly or by
implication, that abuse actually occurred in that case. Id. at 499.
9
On the other hand, it was also established in Steward that “once a child’s
credibility is called into question, proper expert testimony may be appropriate” under
Evidence Rule 702(a). Id. More particularly, it was observed that
because research generally accepted as scientifically reliable recognizes
that child victims of sexual abuse may exhibit unexpected behavior patterns
seemingly inconsistent with the claim of abuse, such evidence may be
permissible under Indiana Evidence Rule 702(a)’s authorization of
‘specialized knowledge [which] will assist the trier of fact to understand the
evidence.’
Id. (quoting Evid. R. 702(a)).
In this case, Dr. Williams did not testify that there was any recognized syndrome
or profile of child sexual abuse victims, much less that K.F. fit such a profile and had
therefore been abused. In fact, Dr. Williams did not specifically testify about K.F. And
just as important, the State did not present Dr. Williams’s testimony to prove—even by
implication or inference—that K.F. had been molested. Instead, the State offered Dr.
Williams’s testimony because K.F.’s credibility had been called into question. Indeed,
Lyons repeatedly emphasized alleged inconsistencies in K.F.’s various statements
regarding the abuse and a changing time pattern in the accusations. And Dr. Williams’s
testimony was presented to show the jury that things Lyons was using to attack K.F.’s
credibility, were, in fact, not atypical of child sex abuse victims. In sum, this was a
proper use of expert testimony in this realm. See Stout v. State, 612 N.E.2d 1076, 1080
(Ind. Ct. App. 1993) (recognizing that expert testimony that an individual’s behavior is
10
consistent or inconsistent with that observed from other victims is a type of evidence that
is admissible).
In our view, the requirements of Evidence Rule 702 were satisfied here, and we
conclude that the admission of Dr. Williams’s testimony did not constitute error, much
less fundamental error.
The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.
11