           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
STATE OF MISSOURI,            )
                Respondent, )
                              )
v.                            )              WD81911
                              )
LEWIS C. MARSHALL,            )              FILED: February 25, 2020
                   Appellant. )
             Appeal from the Circuit Court of Buchanan County
                  The Honorable Patrick K. Robb, Judge
                 Before Division Three: Alok Ahuja, P.J., and
                 Gary D. Witt and Anthony Rex Gabbert, JJ.
      Following a jury trial in the Circuit Court of Buchanan County, Lewis

Marshall was convicted of the unclassified felony of sodomy, in violation of

§ 566.060, RSMo, and the class D felony of sexual abuse in the first degree, in

violation of § 566.100, RSMo. Marshall appeals. He argues that the circuit court

abused its discretion in admitting expert testimony concerning delayed disclosure of

sexual abuse by child victims. Marshall argues that the testimony was

inadmissible because it was not based on the application of reliable principles and

methods, as required by § 490.065.2(1)(c) and (d), RSMo. We affirm.

                               Factual Background
      Marshall’s victim is a male who was born in 1985. Marshall married Victim’s

mother in 1986. Although Marshall was not Victim’s biological father, Victim grew

up believing that he was. Marshall and Victim’s mother divorced after

approximately sixteen years of marriage.
      Around Thanksgiving 2016, Victim was gathered with other relatives at his

mother’s house. The group was discussing spending the night at Victim’s mother’s

house. Victim’s niece stated she could not stay because, if she did, she would miss

“special tickle time with Grandpa [(meaning Marshall)].” Marshall had legal

guardianship over the niece at the time.

      Victim was concerned about his niece’s statement, because of Marshall’s

actions toward Victim when Victim was growing up. Victim decided to disclose

those events to his family and then to authorities.

      Victim’s disclosures led to Marshall being charged with one count of sodomy

and one count of sexual abuse. The Third Amended Felony Information on which

Marshall was tried alleged that he had committed the offense of sodomy between

October 1, 1993 and November 1, 1993, by putting his genitals in Victim’s mouth at

a time when Victim was less than fourteen years old. The information alleged that

Marshall had committed the offense of first-degree sexual abuse by touching

Victim’s anus with his hand between October 1, 1990 and January 2, 1991, at a

time when Victim was less than twelve years old.

      The case proceeded to a jury trial in April 2018. Victim was 32 years old at

the time of trial. He testified that Marshall was frequently physically abusive to his
mother, his siblings, and to Victim when they lived as a family. Victim testified

about an incident of sexual abuse which occurred in Buchanan County on New

Year’s Eve of 1990, when Victim was five years old. During that incident Marshall

put his finger inside Victim’s anus, and simultaneously masturbated. Victim

testified that on another occasion on Victim’s eighth birthday, Marshall forced

Victim to perform oral sex on him at a used car lot where Marshall worked in

Buchanan County. Victim testified about two additional incidents of sexual abuse

that occurred in Hamilton and in Kansas, where Marshall put his penis and a drum




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stick in Victim’s anus. After each incident, Marshall told Victim that he would die

if he told anyone what had happened.

      Victim testified that the last incident of abuse he could remember occurred

when he was approximately sixteen or seventeen years old (i.e., in approximately

2001 or 2002). Victim was home with his girlfriend. Marshall saw Victim’s

girlfriend kissing him. Marshall threw Victim into a bathroom, locked the door, and

undid his pants. Marshall told Victim to “get him hard,” and then said that he

would show Victim’s girlfriend “what a real man was.” Victim fought back and left

the house with his girlfriend.

      Marshall admitted he engaged in some physical abuse of his children but

denied all allegations of sexual abuse.

      During trial the State presented several witnesses who testified to uncharged

acts of sexual abuse which Marshall had committed against them. This evidence

was admitted under Article I, § 18(c) to the Missouri Constitution, to prove

Marshall’s propensity to engage in the conduct for which he was on trial. The

uncharged acts testimony concerned sexual abuse which had occurred years or even

decades earlier, in most instances when the witnesses were minors.

      At trial, the State also presented expert testimony from Joyce Estes. Estes is
a licensed clinical social worker. She worked as a counselor and program director at

Northwest Missouri Children’s Advocacy Center in St. Joseph from 1993 to 2004,

when she became the Center’s Director. Estes retired as Director of the Children’s

Advocacy Center in November 2017. Estes has a master’s degree in counseling.

She testified that her specialty was counseling children who had been sexually,

physically, or emotionally abused, or adults who had experienced such abuse as

children; her “primary focus” was sexual abuse. Estes had counseled over 1,000

children and testified as an expert witness 40 times in child abuse cases. She
testified that she had extensive education in the areas of childhood trauma,


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childhood sexual abuse, and techniques for interviewing children about abuse. A

significant part of her training concerned the process by which children disclose

sexual abuse.

      Estes had not met or counseled Victim or any of the other witnesses who

testified to sexual abuse by Marshall. She instead testified to the behavior of child

sexual abuse victims generally. Estes testified that children disclose abuse within

one year of it occurring in only approximately 25% of cases; these early disclosures

typically occur where the abuser is a stranger and non-family member. Another

25% of victims do not disclose sexual abuse until very late in life. Estes referred to

a study in which 43% of the children who displayed medical evidence of sexual

abuse, such as a sexually transmitted disease, did not disclose any abuse. A

familial or close personal relationship between the abuser and the victim made it

less likely that the victim would disclose the abuse promptly. Victims do not

disclose the abuse, or delay their disclosures, due to fear, shame, guilt, and a lack of

self-confidence. Estes testified that, if a child makes an initial disclosure and

receives a hostile, unsympathetic or ineffective response, they may delay any

further disclosure for an extended period. Estes also testified that a child may

continue to have affectionate feelings for an abuser with whom the child has a close
personal relationship, and may hesitate to disclose abuse by that person from fear

of endangering the relationship. In those instances, she testified that the child may

attempt to mentally segregate the abuse from other, positive aspects of their

relationship with the perpetrator.

      The jury found Marshall guilty on both counts. The court sentenced him to

life imprisonment for the sodomy count, and a concurrent term of four years’

imprisonment on the sexual abuse count. Marshall appeals.




                                           4
                               Standard of Review
             The trial court has broad discretion to admit or exclude evidence
      at trial. We review the trial court’s ruling on the admission of evidence
      for an abuse of that discretion. That discretion is abused when a
      ruling is clearly against the logic of the circumstances and is so
      unreasonable as to indicate a lack of careful consideration.
State v. Suttles, 581 S.W.3d 137, 145 (Mo. App. E.D. 2019) (citations and internal

quotation marks omitted).

                                      Analysis
      Marshall argues that Joyce Estes should not have been permitted to testify

as an expert that child sex-abuse victims frequently delay their disclosure of the

abuse. Marshall argues that Estes’ testimony was inadmissible because the State

failed to demonstrate that her testimony was “the product of reliable principles and

methods,” and that Estes had “reliably applied the principles and methods,” within

the meaning of § 490.065.2(1)(c) and (d), RSMo. We disagree.

      “Prior to 2017, Section 490.065 applied a standard for the admissibility of

expert testimony similar to that found in Frye v. United States, 293 F. 1013, 1014

(D.C. Cir. 1923).” Suttles, 581 S.W.3d at 146 (citations omitted). Section 490.065

was amended effective August 28, 2017. Id. As relevant to this proceeding,

§ 490.065.2(1) now provides:
             A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an opinion
      or otherwise if:
            (a)   The expert's scientific, technical, or other specialized
      knowledge will help the trier of fact to understand the evidence or to
      determine a fact in issue;
             (b)   The testimony is based on sufficient facts or data;
           (c)    The testimony is the product of reliable principles and
      methods; and
           (d)    The expert has reliably applied the principles and
      methods to the facts of the case.




                                          5
      “The language of Sections 490.065.2(1)–(2) are now identical in their

language to [Federal Rules of Evidence] 702–703.” Suttles, 581 S.W.3d at 146.

“This Court since has held that because the language of Section 490.065 now

mirrors FRE 702 and 703, and because FRE 702 and 703 are interpreted

under Daubert and its progeny, the cases interpreting those federal rules remain

relevant and useful in guiding our interpretation of Section 490.065.” Id.

(referencing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993)).

      Federal Rule of Evidence 702, on which § 490.065.2 is patterned, “‘affirms the

trial court’s role as gatekeeper and provides some general standards that the trial

court must use to assess the reliability and helpfulness of proffered expert

testimony.’” State ex rel. Gardner v. Wright, 562 S.W.3d 311, 318 (Mo. App. E.D.

2018) (quoting Advisory Committee Note to FED. R. EVID. 702 (2000)).

      Several federal circuits boil the gatekeeping function of trial courts
      under Federal Rule of Evidence 702 down to its essence in a useful
      three-part test: (1) whether the expert is qualified, (2) whether the
      testimony is relevant, and (3) whether the testimony is reliable.
Id. at 319 (citations omitted).

      Marshall does not argue that Estes was not qualified. Nor does he argue that

Estes’ testimony was not relevant. See Wright, 562 S.W.3d at 320 (finding that

testimony of forensic interviewer regarding delayed disclosure by child sex-abuse

victims “is ‘specialized knowledge’ that will ‘assist the trier of fact to understand the

evidence’”); see also Suttles, 582 S.W.3d at 147–49 (same).

      Marshall’s argument on appeal is focused on the reliability of Estes’

testimony. In making this argument, Marshall emphasizes the factors enumerated

in Daubert to assess the reliability of scientific testimony:

      (1) whether the expert’s technique or theory can be or has been tested;
      (2) whether the technique or theory has been subject to peer review
      and publication; (3) the known or potential rate of error of the
      technique or theory when applied and the existence and maintenance



                                            6
      of standards and controls; and (4) whether the technique or theory has
      been generally accepted in the scientific community.
Wright, 562 S.W.3d at 317 (citing Daubert, 509 U.S. at 593–94).

      Although § 490.065.2 is patterned after Federal Rule of Evidence 702, and

the Supreme Court of the United States interpreted Rule 702 in Daubert, this Court

has held that “the Daubert factors themselves are not controlling” in applying

§ 490.065.2. Suttles, 581 S.W.3d at 147 (citing Wright, 562 S.W.3d at 318–19). The

Advisory Committee Note to the 2000 amendment of Federal Rule of Evidence 702

makes clear that the Rule does not mandate that all expert testimony satisfy the

Daubert factors:

            No attempt has been made to “codify” these specific factors.
      Daubert itself emphasized that the factors were neither exclusive nor
      dispositive. Other cases have recognized that not all of the specific
      Daubert factors can apply to every type of expert testimony. The
      standards set forth in the amendment are broad enough to require
      consideration of any or all of the specific Daubert factors where
      appropriate.
(Citations omitted.)

      The Supreme Court of the United States itself recognized that the Daubert

factors may not be relevant where experts testify based on “technical” or “other

specialized knowledge,” rather than based on strictly “scientific” knowledge:
      [T]he factors identified in Daubert may or may not be pertinent in
      assessing reliability, depending on the nature of the issue, the expert’s
      particular expertise, and the subject of his testimony. The conclusion,
      in our view, is that we can neither rule out, nor rule in, for all cases
      and for all time the applicability of the factors mentioned in Daubert,
      nor can we now do so for subsets of cases categorized by category of
      expert or by kind of evidence. Too much depends upon the particular
      circumstances of the particular case at issue.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (citation and internal

quotation marks omitted); see also Suttles, 581 S.W.3d at 147 (citing Wright, 562

S.W.3d at 318–19); Jones v. City of Kansas City, 569 S.W.3d 42, 53–54 (Mo. App.
W.D. 2019).



                                          7
       It is also significant that, because of the prohibition on “particularized”

expert testimony concerning the behavior of a child sex-abuse victim,1 Estes

testified only to behaviors generally seen in victims of childhood sexual abuse.

Estes did not offer any opinion as to whether Victim exhibited these behaviors in

this case. The Advisory Committee Note to Rule 702 recognizes that this sort of

“generalized” testimony may be subject to a different reliability analysis than

testimony which seeks to apply general principles to the specific facts in litigation:

              If the expert purports to apply principles and methods to the
       facts of the case, it is important that this application be conducted
       reliably. Yet it might also be important in some cases for an expert to
       educate the factfinder about general principles, without ever
       attempting to apply these principles to the specific facts of the case.
       For example, experts might instruct the factfinder on the principles of
       thermodynamics, or bloodclotting, or on how financial markets respond
       to corporate reports, without ever knowing about or trying to tie their
       testimony into the facts of the case. The amendment does not alter the
       venerable practice of using expert testimony to educate the factfinder
       on general principles. For this kind of generalized testimony, Rule 702
       simply requires that: (1) the expert be qualified; (2) the testimony
       address a subject matter on which the factfinder can be assisted by an
       expert; (3) the testimony be reliable; and (4) the testimony “fit” the
       facts of the case.
       Marshall’s argument emphasizes several Daubert factors which have limited

relevance here, given the nature of Estes’ expertise and testimony, and because she
did not attempt to apply her opinions to the specific facts of this case. Thus, in this

context it is not particularly meaningful to question the testing or replicability of

Estes’ analysis, the error rate of that analysis, or the standards and controls

governing the application of that analysis. A different reliability analysis is

appropriate with respect to this sort of non-scientific, generalized testimony, which

is based on the expert’s specialized knowledge. In a case involving similar expert



      1      See generally State v. Churchill, 98 S.W.3d 536, 539 (Mo. 2003); Suttles, 581
S.W.3d at 148–49; State v. Ferguson, 568 S.W.3d 533, 543–44 (Mo. App. E.D. 2019).


                                             8
testimony concerning delayed disclosure of childhood sexual abuse, the Eastern

District in Suttles emphasized that,

             Testimony is reliable under Section 490.065.2 if it is based on
      sufficient facts or data, reliable principles and methods and reliable
      application thereof. No one denies that an expert might draw a
      conclusion from a set of observations based on extensive and
      specialized experience. As long as an expert’s testimony rests upon
      good grounds, based on what is known[,] it should be tested by the
      adversary process with competing expert testimony and cross-
      examination, rather than excluded by the court at the outset.
581 S.W.3d at 150 (citations and internal quotation marks omitted). Similarly, the

Texas Court of Appeals held that the reliability of similar testimony of a licensed

professional counselor and trained forensic interviewer should be evaluated by

asking if “(1) the field of expertise is a legitimate one, (2) the subject matter of the

expert's testimony is within the scope of that field, and (3) the expert's testimony

properly relies on and/or utilizes the principles involved in the field.” Reynolds v.

State, 227 S.W.3d 355, 371 (Tex. App. 2007) (citations omitted).2

      In Suttles, the Eastern District concluded that expert testimony concerning

delayed disclosures was sufficiently reliable because, “[a]lthough the delayed-

disclosures theory is not easily subject to peer review and/or publication under the

Daubert factors, scientists generally accept the theory to explain a common behavior
seen in child-victims of sexual abuse.” 581 S.W.3d at 151 (citing State v. J.L.G., 190


      2      The Advisory Committee Note to the 2000 amendment to Federal Rule of
Evidence 702 makes this same point:
      Some types of expert testimony will be more objectively verifiable, and
      subject to the expectations of falsifiability, peer review, and publication, than
      others. Some types of expert testimony will not rely on anything like a
      scientific method, and so will have to be evaluated by reference to other
      standard principles attendant to the particular area of expertise. The trial
      judge in all cases of proffered expert testimony must find that it is properly
      grounded, well-reasoned, and not speculative before it can be admitted. The
      expert's testimony must be grounded in an accepted body of learning or
      experience in the expert's field, and the expert must explain how the
      conclusion is so grounded.


                                              9
A.3d 442, 445–46 (N.J. 2018)). The Court noted that “the theory of delayed

disclosures . . . has long been accepted by well-recognized experts as a behavior in

victims of child abuse.” Id. The Court also emphasized the expert’s extensive

personal experience with minor sexual abuse victims, noting that the expert’s “own

experience interviewing children was consistent with the scientifically reported

behavior of delayed disclosures.” Id. at 151–52. Other cases applying similar

admissibility standards have found that expert testimony concerning delayed

disclosures, by therapists who have reviewed academic literature and have

extensive personal experience counseling sex-abuse victims, is sufficiently reliable

to be admitted in a criminal trial. See, e.g., Wright, 562 S.W.3d at 321; State v.

Shore, 814 S.E.2d 464, 469–74 (N.C. App. 2018); State v. Jones, 817 S.E.2d 268, 272

(S.C. 2018); People v. Spicola, 947 N.E.2d 620, 636 (N.Y. 2011); Reynolds, 227

S.W.3d at 371–72.

       In this case, Estes had extensive personal experience counseling child sexual

abuse victims. She also testified to extensive training and education concerning the

process by which children disclose and process sexual abuse. Finally, during her

trial and pre-trial testimony, she referenced academic literature supporting her

opinion that delayed disclosure is common among child victims of sexual abuse. In
addition, prior to trial the State provided the circuit court three different empirical

peer-reviewed studies published between 2000 and 2013 regarding the frequency of

delayed disclosure, the reasons for such delayed disclosure, and the identity of those

to whom abuse is eventually disclosed. The circuit court did not abuse its discretion

in allowing Estes to provide generalized testimony concerning behaviors commonly

found in child sex-abuse victims, based on her extensive experience and training.3


       3      In his Brief, Marshall also attacks the reliability of the counseling techniques
that Estes employed with her own patients. Those arguments are misdirected. Estes’ trial
testimony did not relate to the appropriateness or efficacy of any particular counseling


                                             10
       We close by emphasizing that “[t]he trial court’s role as gatekeeper” under

§ 490.065 “is not intended to serve as a replacement for the adversary system.”

Suttles, 581 S.W.3d at 150 (quoting Wright, 562 S.W.3d at 317). “Vigorous cross-

examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.” Daubert, 509 U.S. at 596.

                                       Conclusion
       We affirm the judgment of the circuit court.




                                                 Alok Ahuja, Judge
All concur.




methods. Instead, her testimony related solely to the behaviors exhibited by victims of
childhood sexual abuse.


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