[Cite as State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711.]




             THE STATE OF OHIO, APPELLEE, v. HAINES, APPELLANT.
         [Cite as State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711.]
Criminal law — Battered woman syndrome — Admissibility during state’s case-
        in-chief — Evidence of battered woman syndrome admissible to
        demonstrate the victim’s state of mind when the victim’s credibility has
        been challenged upon cross-examination.
    (Nos. 2005-0853 and 2005-0959 – Submitted February 22, 2006 – Decided
                                  December 28, 2006.)
      APPEAL from and CERTIFIED by the Court of Appeals for Lake County,
                           No. 2003-L-035, 2005-Ohio-1692.
                                  __________________
        PFEIFER, J.
        {¶ 1} On January 24, 2003, a jury in the Lake County Court of Common
Pleas found appellant Bryan Haines guilty of multiple counts of kidnapping,
abduction, and domestic violence. All of the counts related to the same victim,
Haines’s live-in girlfriend, Jacqueline Bohley, and arose from incidents that
occurred in March and April 2002. This case concerns whether the trial court
properly admitted expert testimony regarding battered woman syndrome as part of
the state’s case-in-chief.
        {¶ 2} Haines and Bohley met on December 26, 1997. By July 1998,
they had begun living together in the home of Haines’s brother, Ryan, and in
January 2000, they moved into a condominium that Bohley had purchased.
Bohley described the relationship as rocky and testified that Haines did not allow
her to have friends or much freedom. She had to wear a pager so that he could
always reach her. Haines timed how long Bohley’s trip between home and work
should take and required her to phone him upon leaving for work and arriving at
                            SUPREME COURT OF OHIO




work. If she was late, he would get very angry, and a fight would ensue. Bohley
was called into her boss’s office at least three times because her telephone
arguments with Haines disrupted her work.        Haines also demanded constant
contact regarding Bohley’s whereabouts outside of work. Bohley said that she
complied in order to avoid arguments.
       {¶ 3} On May 6, 2001, Bohley and Haines became engaged. On October
8, 2001, Bohley went to police to report an incident of domestic violence that had
occurred on October 4, 2001. Haines was convicted of a domestic violence
charge and served 18 days in jail. Bohley ended their engagement and got a
temporary protection order against Haines.
       {¶ 4} On cross-examination, Bohley testified that she was soon seeing
Haines again. His 18-day jail term was work-release (Haines spent only evenings
in jail), and Bohley would visit him during the day. Later, Haines served a period
of house arrest at his brother’s home, and Bohley visited him there, too,
occasionally spending the night and engaging in sexual relations. Bohley never
removed all of Haines’s possessions from her home, and by late January 2002,
they were again living together in Bohley’s condominium.
       {¶ 5} The first event leading to the charges in this case occurred on
Easter Sunday, March 31, 2002. Bohley found a card to Haines from another
woman when she was putting away some of his belongings; she went outside to
confront him about it. Haines suggested that they go inside the house to discuss
the matter, and Bohley complied. When then were both inside, Haines locked the
door and the deadbolt. Haines told Bohley that he would be moving out, but only
when he wanted to, and that it could take a year for him to do so. Bohley said that
she would no longer be sleeping with him in the same bed, which infuriated
Haines. Haines picked up a piece of baseboard left from a remodeling project and
struck Bohley on the arms and legs. He then began breaking objects in the house.
Bohley tried to escape by running through a sliding glass door, but she was unable




                                        2
                                 January Term, 2006




to break the glass. In an effort to divert Haines’s attention, Bohley slit her wrist
with a piece of broken glass. She drew blood, and Haines did show some concern
and helped her wrap the wrist.
       {¶ 6} After helping Bohley with her wrist, Haines told her that he was
going to show her what it was like to be in jail and ordered her into her
condominium’s crawlspace. His jail sentence had become a consistent theme in
their relationship, and he said that he would make her stay in the crawlspace for
18 days. Bohley entered the crawlspace, which was about three feet high and had
a lid, feeling like she had no other choice. The lid had a hole in it, and Haines
ordered Bohley to keep her finger through the hole at all times so that he could be
sure she was not trying to escape. Haines screwed eight screws into the lid once
she was inside. Periodically, he checked to see if her finger was still in the hole,
and then released her after 30 to 45 minutes. Haines was upset and crying when
he released Bohley and asked her to pray with him. She prayed with him and told
him she forgave him in order to appease him.
       {¶ 7} After the prayer, Haines told Bohley that they were going to take
an Easter gift to his daughter. While driving home from making that delivery,
Haines became agitated again, and when they arrived back home, Bohley refused
to leave the vehicle. Haines told her that she could trust him and that he would
not hurt her if she went inside the house, so Bohley reluctantly accompanied him
inside. Once inside, he locked the doors and told her that she was going to die
that night. Bohley screamed, and Haines covered her mouth and nose. He
punched and then kicked Bohley in the ribs and stepped on her ankle. After that,
they went to bed.
       {¶ 8} The next day, Bohley told Haines’s family members what had
happened the night before. That evening, Haines and Bohley met with his father
to discuss the situation. They all agreed that Haines should move out of Bohley’s
condominium.




                                         3
                             SUPREME COURT OF OHIO




        {¶ 9} Upon cross-examination regarding the March 31 incident, Bohley
testified that she and Haines had engaged in sexual relations that evening. She
also testified that she had gone to the emergency room on April 5 to have her
painful ribs checked, but that she had lied to the people caring for her about the
cause of her injury, claiming that she had fallen over a fence while rollerblading.
Haines’s counsel also elicited testimony from Bohley on cross-examination that
she did not tell any of her co-workers or any doctors what had happened on
March 31, 2002, and that she did not report that incident to police until after the
April 18 incident.
        {¶ 10} Despite the earlier agreement that Haines would move out, he did
not, and the situation deteriorated. In the early evening of April 17, 2002, Haines
and Bohley engaged in what she called “abnormal” sexual relations involving the
Internet, which Bohley said Haines knew disgusted her. Haines immediately left
the house for a couple of hours. When he returned at about 10:30, he was upset.
He blamed Bohley for his jail term and wanted her to apologize. For self-
preservation, she told him what he wanted to hear. Haines twisted her wrist and
stuck his fingers in her eyes. He ripped her nightgown and got a belt from the
closet, commenting that he was going to hit her like a child with the belt because
that was the only way she would understand that what she had done was wrong.
He told he to lie on her stomach, and he hit her five times on the buttocks with the
belt.
        {¶ 11} Haines became concerned that Bohley might tell someone what
had happened and began swinging the belt again with more force. He hit her
multiple times in the shoulder and arm. He then cried out that Bohley had ruined
his life, and she comforted him in an effort to diffuse the situation. He took some
sleeping pills, but before he fell asleep, he told her to keep her hand on him at all
times so that he would know whether she was trying to get away. He allowed her
to go to the bathroom, but warned her to not try to go downstairs.




                                         4
                                 January Term, 2006




        {¶ 12} The next morning, Haines refused to allow Bohley to go to work.
Fearing that her work colleagues would be concerned by her absence, Haines
directed Bohley to phone the office and leave a message. As she made the call,
Haines held his fist against her face. Soon after, Haines ordered Bohley to place
another call to work, begging to not be fired. Haines held a knife to her throat as
she made that call.
        {¶ 13} During her initial call to work, Bohley left a message using a pre-
arranged code-phrase, “Red Eye Printing,” to indicate to her co-workers that she
was in trouble. On her message, she asked her co-workers to check the “Red Eye
Printing” envelope on her desk. The co-workers opened the envelope, which
contained a document that gave instructions to call the police. Bohley’s co-
workers called police, and officers arrested Haines at the condominium.
        {¶ 14} The state called as its last witness in its case-in-chief Dr. James
Eisenberg, a board-certified forensic psychologist. His testimony is at the crux of
this case. Dr. Eisenberg testified about battered woman syndrome, stating that “it
refers to a woman * * * that is the subject of repeated psychological, physical, or
sexual abuse by one’s partner. The syndrome itself speaks to the individuals who
remain in relationships in spite of those beatings.” He explained the syndrome’s
three-part process – the tension stage, the acute battering stage, and the stage of
contrition. He stated that the batterer exerts extreme control over the woman’s
entire life, leading to her isolation. He explained that a woman in a relationship
with a batterer sees the world “through a very small opening and all that she sees
is this guy. * * * The threat is always there, whether you leave or whether you
stay. * * * So the threat is always there, it doesn’t matter if they go anywhere.
[She thinks], If I leave he’s gonna beat me. If I stay he’s gonna beat me. Let me
just – let’s just get it out.”




                                         5
                             SUPREME COURT OF OHIO




       {¶ 15} Eisenberg spoke mostly in generalities about battered woman
syndrome and its symptoms. Toward the end of his direct examination, however,
the following exchange occurred:
       {¶ 16} “Q. Now, Doctor, in this particular case, are you familiar with
some of the facts and circumstances surrounding the criminal charges in this case?
       {¶ 17} “A. Yes.
       {¶ 18} “Q. All right. And as a result of that, do you have an opinion,
within a reasonable degree of forensic certainty, as to whether or not you see any
features of the investigation of this case that would parallel a Battered Woman's
Syndrome?
       {¶ 19} “Mr. M. DiCello: Objection.
       {¶ 20} “Judge Lucci: Overruled.
       {¶ 21} “A. Yes.
       {¶ 22} “Q. Okay. And what is - is that opinion within a reasonable degree
of forensic certainty?
       {¶ 23} “A. Yes.
       {¶ 24} “Q. And what is that opinion?
       {¶ 25} “A. My opinion is that, as I understand the facts of the case, and
again I'm not a fact finder, but as I understand the facts of the case in front of us,
and from my review of the records, it's very consistent with what we see in a
Battered Woman's Syndrome scenario.”
       {¶ 26} The jury returned a verdict convicting Haines of all seven counts
with which he was charged – kidnapping, abduction, and domestic violence
relating to the March 31, 2002 incident; kidnapping, abduction, and domestic
violence relating to the incident of April 17, 2002; and one count of kidnapping
relating to the events of the morning of April 18, 2002.
       {¶ 27} Haines appealed. The Lake County Court of Appeals reversed one
of the kidnapping convictions relating to the April 17-18 incident, holding that the




                                          6
                               January Term, 2006




two counts resulted from an act that constituted a single course of conduct.
Haines sought reversal on all counts due to the trial court’s admission of
Eisenberg’s testimony regarding battered woman syndrome, arguing that such
evidence was “irrelevant, prejudicial, inflammatory, and prohibited by the Ohio
Legislature, the Supreme Court of Ohio and this honorable appeals court.” The
court affirmed the trial court’s admission of the testimony, stating that “[t]his
testimony regarding battered woman syndrome was properly admitted to explain
the victim’s state of mind, i.e., why she continued to return to appellant. This was
quite relevant, as it went to her credibility, which had been challenged.” The
court further held that the testimony complied with Evid.R. 403(A) because its
probative value was not outweighed by the danger of unfair prejudice and that it
did not constitute “other acts” evidence prohibited by Evid.R. 404(B).
       {¶ 28} The appellate court certified that its decision conflicted with the
decision of the Fifth Appellate District in State v. Pargeon (1991), 64 Ohio
App.3d 679, 582 N.E.2d 665. This court granted jurisdiction by accepting a
discretionary appeal and determining that a conflict as to the following question
existed: “When the victim's credibility is challenged upon cross-examination
during the state's case-in-chief, may the state introduce evidence of battered
woman syndrome to demonstrate the victim’s state of mind, i.e., to explain why
she returned to the defendant despite his aggressions toward her?”
                                Law and Analysis
       {¶ 29} In State v. Koss (1990), 49 Ohio St.3d 213, 551 N.E.2d 970, this
court first recognized the admissibility of expert testimony regarding battered
woman syndrome. In that case, the defendant had killed her husband, and the
testimony regarding battered woman syndrome was offered by the defendant in
support of her affirmative defense of self-defense. Today’s certified question asks
whether that holding should be extended to allow expert testimony concerning
battered woman syndrome in the state’s case-in-chief to help a jury understand a




                                         7
                            SUPREME COURT OF OHIO




victim’s reaction to abuse in relation to her credibility.        We hold that such
testimony is admissible.
       {¶ 30} In allowing the admission of expert testimony regarding the
battered woman syndrome in Koss, this court “[did] not establish a new defense or
justification.” Koss, 49 Ohio St.3d at 217, 551 N.E.2d 970.            Rather, such
testimony was allowed as evidence to prove one element of self-defense. “In
Ohio, to prove self-defense it must be established that the person asserting this
defense had ‘ * * * a bona fide belief that he [she] was in imminent danger of
death or great bodily harm and that his [her] only means of escape from such
danger was in the use of such force.’ (Emphasis added.) ” (Bracketed material
sic.) Koss, 49 Ohio St.3d at 215, 551 N.E.2d 970, quoting State v. Robbins
(1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the
syllabus. Koss recognized that since Ohio has a subjective test to determine
whether a defendant properly acted in self-defense, the defendant’s state of mind
is a crucial issue. Koss, 49 Ohio St.3d at 215, 551 N.E.2d 970.
       {¶ 31} In Koss, this court considered whether testimony on battered
woman syndrome would assist the trier of fact in finding the truth and whether,
pursuant to Evid.R. 702, such testimony provided “specialized knowledge” that
would “assist the trier of fact to understand evidence or to determine a fact in
issue,” particularly, the defendant’s state of mind. The court concluded:
       {¶ 32} “Expert testimony regarding the battered woman syndrome can be
admitted to help the jury not only to understand the battered woman syndrome but
also to determine whether the defendant had reasonable grounds for an honest
belief that she was in imminent danger when considering the issue of self-defense.
‘Expert testimony on the battered woman syndrome would help dispel the
ordinary lay person's perception that a woman in a battering relationship is free to
leave at any time. The expert evidence would counter any “common sense”
conclusions by the jury that if the beatings were really that bad the woman would




                                         8
                                 January Term, 2006




have left her husband much earlier.         Popular misconceptions about battered
women would be put to rest, including the beliefs that the women are masochistic
and enjoy the beatings and that they intentionally provoke their husbands into fits
of rage. See Walker, The Battered Woman, 19-31 (1979).’ State v. Hodges
(1986), 239 Kan. 63, 68-69, 716 P.2d 563, 567. See, also, Smith v. State [1981],
247 Ga. [612,] 618-619, 277 S.E.2d [678]; Hawthorne [v. State (Fla.App.1982),
408 So.2d 801]; [People v.] Torres [1985], 128 Misc.2d [129,] 133-134, 488
N.Y.S.2d [358].” Koss, 49 Ohio St.3d at 216, 551 N.E.2d 970.
       {¶ 33} Koss overruled State v. Thomas (1981), 66 Ohio St.2d 518, 521, 20
O.O.3d 424, 423 N.E.2d 137, in which this court had held that expert testimony
relating to battered woman syndrome “is inadmissible because it is not distinctly
related to some science, profession or occupation so as to be beyond the ken of
the average lay person.” In Koss, this court noted that the development of the
scholarship on battered woman syndrome had increased since Thomas and that
other courts had begun to allow testimony on the syndrome. Koss, 49 Ohio St.3d
at 215, 551 N.E.2d 970. The court wrote, “We believe that the battered woman
syndrome has gained substantial scientific acceptance to warrant admissibility.”
Koss, 49 Ohio St.3d at 217, 551 N.E.2d 970. The court also revisited its holding
from Thomas that battered-woman-syndrome testimony was not so distinctly
related to science that it is beyond the ken of the jury:
       {¶ 34} “ ‘The difficulty with the expert's testimony is that it sounds as if
an expert is giving knowledge to a jury about something the jury knows as well as
anyone else, namely, the reasonableness of a person's fear of imminent serious
danger. That is not at all, however, what this testimony is directly aimed at. It is
aimed at an area where the purported common knowledge of the jury may be very
much mistaken, an area where jurors' logic, drawn from their own experience,
may lead to a wholly incorrect conclusion, an area where expert knowledge would
enable the jurors to disregard their prior conclusions as being common myths




                                           9
                            SUPREME COURT OF OHIO




rather than common knowledge.’ (Emphasis sic). ” Id., citing State v. Kelly
(1984), 97 N.J. 178, 206, 478 A.2d 364.
       {¶ 35} Thus, this court in Koss concluded that expert testimony on
battered woman syndrome is admissible pursuant to Evid.R. 702: “Where the
evidence establishes that the woman is a battered woman, and when an expert is
qualified to testify about the battered woman syndrome, expert testimony
concerning the syndrome may be admitted to assist the trier of fact in determining
whether the defendant acted in self-defense.” Koss, 49 Ohio St.3d at 218, 551
N.E.2d 970.
       {¶ 36} The same year of this court’s decision in Koss, the General
Assembly enacted R.C. 2901.06, which recognizes the value of battered-woman-
syndrome testimony and sets forth that it may be employed in self-defense cases:
       {¶ 37} “(A) The general assembly hereby declares that it recognizes both
of the following, in relation to the ‘battered woman syndrome:’
       {¶ 38} “(1) That the syndrome currently is a matter of commonly accepted
scientific knowledge;
       {¶ 39} “(2) That the subject matter and details of the syndrome are not
within the general understanding or experience of a person who is a member of
the general populace and are not within the field of common knowledge.
       {¶ 40} “(B) If a person is charged with an offense involving the use of
force against another and the person, as a defense to the offense charged, raises
the affirmative defense of self-defense, the person may introduce expert testimony
of the ‘battered woman syndrome’ and expert testimony that the person suffered
from that syndrome as evidence to establish the requisite belief of an imminent
danger of death or great bodily harm that is necessary, as an element of the
affirmative defense, to justify the person's use of the force in question. The
introduction of any expert testimony under this division shall be in accordance
with the Ohio Rules of Evidence.”




                                          10
                                January Term, 2006




       {¶ 41} The General Assembly also enacted R.C. 2945.392, which allows
battered-woman-syndrome testimony to be admitted by a defendant that pleads
not guilty by reason of insanity.
       {¶ 42} Koss and R.C. 2901.06(A) establish that battered-woman-
syndrome testimony meets the requirements of Evid.R. 702 in regard to scientific
validity and the requirement of specialized knowledge. Neither Koss nor R.C.
2901.06 nor R.C. 2945.392 limits the use of such testimony to self-defense or
insanity cases. Koss and the statutes do recognize that testimony on the syndrome
is properly admitted pursuant to Evid.R. 702 as expert testimony that can assist
the trier of fact in search of the truth. Koss, 49 Ohio St.3d at 216, 551 N.E.2d
970. But admissibility under Evid.R. 702 is only part of the picture — as R.C.
2901.05 and 2945.392 both require, any battered-woman-syndrome testimony
must be admitted in conformance with the Ohio Rules of Evidence. Thus, our
consideration of admissibility does not end with Evid.R. 702.
       {¶ 43} Further consideration is especially needed when the testimony is
not offered by a defendant, but by the state against a defendant. Prior to 1990,
“appellate courts in only a handful of jurisdictions had considered whether
prosecutors may use expert testimony on battering and its effects in a domestic
violence prosecution,” but since that time, the courts in an overwhelming majority
of jurisdictions that have considered the issue have held that such evidence is
admissible under the proper circumstances. Rogers, Prosecutorial Use of Expert
Testimony in Domestic Violence Cases: from Recantation to Refusal to Testify
(1998), 8 Colum.J.Gender & L. 67, 68.           See, also, Barnes, Annotation,
Admissibility of Expert Testimony Concerning Domestic-Violence Syndromes to
Assist Jury in Evaluating Victim’s Testimony or Behavior (2006), 57 A.L.R.5th
315, Section 2(a).     The courts that have held admissible expert testimony
regarding battered woman syndrome have so held “while operating under rules of
evidence that mirror Ohio’s.” Hawes, Removing the Roadblocks to Successful




                                        11
                             SUPREME COURT OF OHIO




Domestic Violence Prosecutions: Prosecutorial Use of Expert Testimony on the
Battered Woman Syndrome in Ohio (2005), 53 Clev.St.L.Rev. 133, 144. We find
the holdings of those other courts instructive.
       {¶ 44} Relevance under Evid.R. 401 is the first hurdle to clear.
“Generally, battered woman syndrome testimony is relevant and helpful when
needed to explain a complainant’s actions, such as prolonged endurance of
physical abuse accompanied by attempts at hiding or minimizing the abuse,
delays in reporting the abuse, or recanting allegations of abuse.” People v.
Christel (1995), 449 Mich. 578, 580, 537 N.W.2d 194.              Such seemingly
inconsistent actions are relevant to a witness’s credibility. “Because the victim’s
credibility can be attacked during cross-examination of the victim or even during
opening statements, the prosecution need not wait until rebuttal to present expert
testimony on battered woman syndrome.             Rather, such testimony may be
presented as rehabilitative evidence during the state’s case-in-chief.” State v.
Grecinger (Minn.1997), 569 N.W.2d 189, 193.
       {¶ 45} In this case, Bohley’s behavior after incidents of alleged abuse was
a focus of Haines’s cross-examination. During cross-examination of Bohley,
Haines attempted to demonstrate that Bohley would become intimate with Haines
after he allegedly abused her, that she broke off their relationship only
temporarily, that she did not report the abuse, and that she gave differing
explanations regarding some of her injuries. In short, the testimony tended to
show that Bohley not only never reported the abuse but that she remained in the
relationship.
       {¶ 46} For the reasons stated in Koss, expert testimony on battered
woman syndrome could address those supposed anomalies. But, while such
testimony can be relevant for explaining a victim’s behavior, it cannot be
considered relevant if there is no evidence that the victim suffers from battered
woman syndrome.        “Expert testimony on the subject of battered woman’s




                                         12
                               January Term, 2006




syndrome is not relevant unless there is some evidentiary foundation that a party
or witness to the case is a battered woman, and that party or witness has behaved
in such a manner that the jury would be aided by expert testimony providing an
explanation for the behavior.” State v. Borrelli (1993), 227 Conn. 153, 172, 629
A.2d 1105, fn. 15, citing Koss, 49 Ohio St.3d at 218, 551 N.E.2d 970.
       {¶ 47} Like the court in State v. Stringer (1995), 271 Mont. 367, 378, 897
P.2d 1063, we hold that a set of rigid foundational requirements is unnecessary
but that “the party seeking to introduce battered woman syndrome evidence must
lay an appropriate foundation substantiating that the conduct and behavior of the
witness is consistent with the generally recognized symptoms of the battered
woman syndrome, and that the witness has behaved in such a manner that the jury
would be aided by expert testimony which provides a possible explanation for the
behavior.”
       {¶ 48} Evidence generally establishing the cycles of a battering
relationship is an appropriate foundation for battered-woman-syndrome expert
testimony. “The battering relationship itself is often described as cyclical in
nature, with three distinct phases: tension building, confrontation, and contrition.
During the ‘tension building’ phase, the woman is generally compliant, often
feeling as though she deserves the abuse. Once the tension reaches a boiling point,
the batterer will erupt uncontrollably, committing a violent act. Next, in an abrupt
about-face, the abuser will exhibit seemingly intense love and affection towards
his victim. The victimized women are then led to believe that the violence was an
isolated incident and that it will not continue. This cycle of violence may leave
the victim with feelings of learned helplessness, low self-esteem, depression,
minimization techniques, self-isolation, and passivity.” (Footnotes omitted.)
Hawes, 53 Clev.St.L.Rev. at 137.
       {¶ 49} Further, as this court held in Koss, “ ‘in order to be classified as a
battered woman, the couple must go through the battering cycle at least twice.




                                        13
                            SUPREME COURT OF OHIO




Any woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a battered
woman.’ ” Koss, 49 Ohio St.3d at 216, 551 N.E.2d 970, quoting Walker, The
Battered Woman (1979) xv.
       {¶ 50} The evidence against Haines generally established the cycles of a
battering relationship. The prosecution established through testimony about the
October 2001 incident and the March 2002 incident that Haines’s psychological
abuse and controlling behavior were followed first by an outburst of violence and
then by Haines’s supposed regret and a reconciliation.          The admission or
exclusion of relevant evidence rests within the sound discretion of the trial court,
State v. Robb (2000), 88 Ohio St.3d 59, 68, 723 N.E.2d 1019, and the trial court
did not abuse that discretion in finding that expert testimony on battered woman
syndrome was relevant in this case.
       {¶ 51} Haines argues that, even if relevant, the battered-woman-syndrome
testimony violated Evid.R. 404(B), which states:
       {¶ 52} “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.”
       {¶ 53} First, testimony on battered woman syndrome is not offered to
prove anything about the defendant, but is instead offered as background for
understanding the victim’s behavior. Second, the foundation testimony employed
in this case did not constitute “other acts” evidence.         All three incidents
comprising the bulk of the state’s foundation evidence — the October 2001
incident, the March 31, 2002 incident, and the April 17-18 incident — were
central to the charges against Haines. The domestic violence counts against
Haines required a prior conviction in order to be charged as felonies, and the




                                        14
                                January Term, 2006




parties had stipulated that Haines had been convicted of domestic violence for the
October 2001 incident. That conviction was made known to the jury from the
outset, during the trial judge’s pretrial instructions. The other two incidents were
the focus of the trial.
        {¶ 54} Haines argues that even the term “battered woman syndrome”
suggests that the accused committed other crimes, wrongs, or acts. We believe
that this issue is more properly addressed by considering the possible prejudicial
nature of the testimony. Even when its relevance is shown through a proper
foundation, a court must carefully weigh whether the expert testimony violates
Evid.R. 403(A), which states, “Although relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.”
        {¶ 55} An expert witness who diagnoses a victim as a battered woman
essentially concludes that the defendant is a batterer.       In a case where the
underlying charges involve domestic violence, such a conclusion by an expert
witness is prejudicial to the defendant and usurps the jury’s role as finder-of-fact.
A diagnosis can prejudice a defendant further because the expert is presenting a
conclusion regarding the victim’s credibility, which again is a conclusion to be
made by the jury. In cases where domestic violence is not the underlying charge,
but battered-woman-syndrome testimony is offered to explain the conflicting
statements or activities of a witness, a defendant can again be prejudiced by being
labeled as a batterer. Thus, courts must carefully balance the admission of expert
testimony on battered woman syndrome under Evid.R. 403.
        {¶ 56} An acceptable balance is best achieved through a tailoring of the
expert’s testimony. Limitations placed upon the expert’s testimony – “the expert
cannot opine that complainant was a battered woman, may not testify that
defendant was a batterer or that he is guilty of the crime, and cannot comment on
whether complainant was being truthful”— dispel concerns about unfair




                                         15
                              SUPREME COURT OF OHIO




prejudice. Christel, 449 Mich. at 591, 537 N.W.2d 194.           The rule in most
jurisdictions is that general testimony regarding battered woman syndrome may
aid a jury in evaluating evidence and that if the expert expresses no opinion as to
whether the victim suffers from battered woman syndrome or does not opine on
which of her conflicting statements is more credible, such testimony does not
interfere with or impinge upon the jury's role in determining the credibility of
witnesses. State v. Townsend (2006), 186 N.J. 473, 496-498, 897 A.2d 316.
“[T]he prosecutorial introduction of testimony on the battered woman syndrome
must be in accordance with the applicable Ohio Rules of Evidence. The best way
to approach this is by utilizing the limited format advocated by the courts in [State
v. Ciskie (1988), 110 Wash.2d 263, 751 P.2d 1165] and [Arcoren v. United States
(C.A.8, 1991), 929 F.2d 1235]. Under this approach, experts who are called to
testify in domestic violence prosecutions must limit their testimony to the general
characteristics of a victim suffering from the battered woman syndrome. The
expert may also answer hypothetical questions regarding specific abnormal
behaviors exhibited by women suffering from the syndrome, but should never
offer an opinion relative to the alleged victim in the case.” Hawes, Clev.St.L.Rev.
at 158.
          {¶ 57} Trial courts should tailor the scope of the state’s questioning and
should also ensure that jurors are instructed as to the limits of the expert’s
testimony. The trial court failed to do so in this case, and the direct examination
of the battered-woman-syndrome expert crossed the line. The prosecutor asked
Dr. Eisenberg, “[D]o you have an opinion, within a reasonable degree of forensic
certainty, as to whether or not you see any features of the investigation of this
case that would parallel a Battered Woman's Syndrome?”            Haines’s counsel
objected to the question; the trial court overruled the objection.        Eisenberg
responded, “My opinion is that, as I understand the facts of the case, and again
I'm not a fact finder, but as I understand the facts of the case in front of us, and




                                          16
                               January Term, 2006




from my review of the records, it's very consistent with what we see in a Battered
Woman's Syndrome scenario.”
       {¶ 58} The prosecutor’s question essentially solicited a diagnosis, and the
doctor’s response provided one.       A reasonable juror would conclude that
Eisenberg believed that Bohley suffered from battered woman syndrome. Such
testimony went beyond the providing of a context for a witness’s testimony into
the area of determining credibility.      The testimony also went to the very
conclusion that the jury was asked make – whether Haines committed domestic
violence against Bohley – and answered it.
       {¶ 59} Defendant’s counsel then elicited more testimony from Eisenberg
that called for a specific diagnosis of Bohley as well as a discussion of further
facts about her. Eisenberg testified on cross-examination that he had diagnosed
Bohley with “Posttraumatic Stress Disorder secondary to the Battered Woman’s
Syndrome.” He testified that he was familiar with the facts and circumstances
surrounding the criminal charges in this case, and he testified that he had
reviewed the prior treatment records from Ms. Bohley's therapist, documents left
at her place of employment, the police reports, letters from Mr. Haines to Ms.
Bohley, the psychological testing that had been done on Ms. Bohley, and a
document called “Recorded Acts,” described by Eisenberg as “a stack of dates in
which Ms. Bohley had listed incidents of violence in the last three or four years in
the relationship.”
       {¶ 60} Defense counsel also asked whether, in considering Bohley’s
history, Eisenberg concluded that the abuse had occurred. After answering, “Yes,
I did,” Eisenberg later added, “I’m assuming that it occurred. I’m not the fact
finder. My assumption is that it occurred based on the history, the evaluation of
Ms. Bohley, her credibility in taking the psychological testing. So all those things
led to my assumption that they did occur. I don’t know if they actually did.”




                                        17
                            SUPREME COURT OF OHIO




       {¶ 61} The state argues that the bulk of the battered-woman-syndrome
testimony that addresses Bohley’s specific case was brought to light by Haines.
However, the key testimony solicited by the state thrust Haines into the situation
where he had to defend himself against a diagnosis. The evidence admitted in
cross-examination did not change the fact that Eisenberg’s testimony on direct
examination was prejudicial.
       {¶ 62} The state argues that admission of the testimony from Eisenberg
specifically tying Bohley to battered woman syndrome constituted harmless error.
Haines’s counsel did object to Eisenberg’s diagnostic testimony on direct
examination, and thus a harmless-error analysis, rather than a plain-error analysis,
is appropriate. “Whether [the] error was harmless beyond a reasonable doubt is
not simply an inquiry into the sufficiency of the remaining evidence. Instead, the
question is whether there is a reasonable possibility that the evidence complained
of might have contributed to the conviction.” State v. Conway, 108 Ohio St.3d
214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78.
       {¶ 63} Haines was charged with multiple counts based upon the events of
March 31, 2002 and April 17-18, 2002. Counts One through Three relate to the
incident on March 31, 2002. The evidence regarding that incident is almost
entirely based upon Bohley’s testimony and therefore relies on her credibility.
Bohley did not report that incident to the police for weeks. She continued to
reside with Haines after it occurred.     There is a reasonable probability that
evidence concerning her credibility might have contributed to the jury’s verdict
on those counts — a juror might question Bohley’s response to the abuse and then
find a consistent explanation for it in Eisenberg’s testimony. We thus find that
the trial court’s error in admitting Eisenberg’s testimony attributing battered
woman syndrome to Bohley was not harmless as to Counts One through Three.
       {¶ 64} The evidence concerning the counts relating to the incident of
April 17-18 was more varied. The jury saw photographs of Bohley’s injuries,




                                        18
                               January Term, 2006




heard testimony from her co-workers regarding her telephone calls to her office
on the morning of April 18, and heard testimony from the police officers
responding to the scene. Jurors were not confronted with questions about why
Bohley had not reported the incident, as they were with the March 31, 2002
incident. Thus, we find Eisenberg’s testimony harmless beyond a reasonable
doubt on Counts Four through Six; there is not a reasonable possibility that his
testimony contributed to those convictions.
       {¶ 65} Thus, we affirm in part and reverse in part the holding of the
appellate court. In regard to the certified question, we respond in the affirmative
and hold that when a victim’s credibility is challenged upon cross-examination
during the state's case-in-chief, the state may introduce expert testimony regarding
battered woman syndrome to aid the trier-of-fact in determining the victim's state
of mind, e.g., to explain why she returned to the defendant despite his aggressions
toward her.
                                                         Judgment affirmed in part
                                                               and reversed in part,
                                                              and cause remanded.
       MOYER,     C.J.,   RESNICK,    LUNDBERG     STRATTON,      O’CONNOR      and
O’DONNELL, JJ., concur.
       LANZINGER, J., dissents.
                              __________________
       LANZINGER, J., dissenting.
       {¶ 66} I dissent from the majority’s holding allowing the state’s use of
battered woman syndrome in its case-in-chief as an unwarranted extension of
State v. Koss (1990), 49 Ohio St.3d 213, 551 N.E.2d 970.           In Koss, which
authorized the presentation of the battered woman’s syndrome by a defendant to
establish self-defense, this court noted: “A defendant attempting to admit expert
testimony regarding the battered woman syndrome must offer evidence which




                                        19
                             SUPREME COURT OF OHIO




establishes herself as a ‘battered woman.’ ” (Emphasis added.) Id., paragraph two
of the syllabus. Furthermore, “[a]dmission of expert testimony regarding the
battered woman syndrome does not establish a new defense or justification. It is
to assist the trier of fact to determine whether the defendant acted out of an honest
belief that she is in imminent danger of death or great bodily harm and that the
use of such force was her only means of escape.” (Emphasis added.)               Id.,
paragraph three of the syllabus.
       {¶ 67} The General Assembly codified similar limitations on the
admission of the battered woman syndrome when it enacted R.C. 2901.06(B),
which states: "If a person is charged with an offense involving the use of force
against another and the person, as a defense to the offense charged, raises the
affirmative defense of self-defense, the person may introduce expert testimony of
the ‘battered woman syndrome’ and expert testimony that the person suffered
from that syndrome as evidence to establish the requisite belief of an imminent
danger of death or great bodily harm that is necessary, as an element of the
affirmative defense, to justify the person's use of the force in question. The
introduction of any expert testimony under this division shall be in accordance
with the Ohio Rules of Evidence." (Emphasis added.)
       {¶ 68} It is mystifying that the majority cannot see the limiting language
within Koss and the statute.       Other appellate courts have held that expert
testimony regarding the battered woman syndrome can be admitted by a
defendant only when the affirmative defense of self-defense has been raised. See
State v. Pargeon (1991), 64 Ohio App.3d 679, 582 N.E.2d 665; State v. Sonko
(May 22, 1996), 9th Dist. No. 95CA006181; State v. Dowd (Jan. 19, 1994), 9th
Dist. No. 93CA005638; State v. Lundgren (Apr. 22, 1994), 11th Dist. No. 90-L-
15-125.
       {¶ 69} This is not a situation of admitting rebuttal evidence under Evid.R.
404(A)(2). In the hands of the state during its case-in-chief, an expert witness




                                         20
                                 January Term, 2006




who presents the battered woman syndrome as evidence does more than bolster
the credibility of the victim.     The witness establishes prior bad acts of the
defendant from which the jury may infer that he had the propensity to engage in
those acts and acted in accord with that propensity on the current charge. This is
precisely the inference Evid.R. 404(B) excludes: "Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith.” Furthermore, expert witnesses may
have particular power over the minds of jurors. Perhaps recognizing this, the
Koss court limited the use of testimony concerning the battered woman syndrome
to cases where defendants employ it in establishing self-defense.
       {¶ 70} The majority opinion acknowledges the prejudice to the defendant
that occurs through this new evidentiary expansion. “An expert witness who
diagnoses a victim as a battered woman essentially concludes that the defendant is
a batterer. In a case where the underlying charges involve domestic violence,
such a conclusion by an expert witness is prejudicial to the defendant and usurps
the jury’s role as finder-of-fact.” ¶ 55. Yet in spite of this understanding, because
it can “aid the trier-of-fact in determining the victim’s state of mind, e.g., to
explain why she returned to the defendant despite his aggressions toward her,”
expert testimony on battered woman syndrome is allowed. ¶ 65. Even if an
expert is confined to providing only a general overview of the syndrome, as we
see in this case, the bounds are easy to overstep. Dr. Eisenberg did more. He
gave an opinion, to a reasonable degree of forensic certainty, that the facts of the
case were “very consistent with what we see in a Battered Woman's Syndrome
scenario.”
       {¶ 71} The majority’s expansion of Koss and R.C. 2901.06(B) is justified
by citations to other jurisdictions and secondary sources.          A more liberal
admission of expert testimony of this nature may be a worthy goal, but until the
General Assembly determines it to be good policy for Ohio, I believe we should




                                         21
                             SUPREME COURT OF OHIO




follow precedent as it stands and the statute as it is written. I would hold that the
state may not introduce evidence of battered woman syndrome to demonstrate the
victim's state of mind, i.e., to explain why she returned to the defendant despite
his aggressions toward her, when her credibility is challenged upon cross-
examination.
       {¶ 72} To do otherwise is to transform a shield for the defense into a
sword for the prosecution. I would answer no to the certified question.
                              __________________
       Charles Coulson, Lake County Prosecuting Attorney, and Karen A.
Sheppert, Assistant Prosecuting Attorney, for appellee.
       Ian N. Friedman & Associates, L.L.C., Ian N. Friedman, John A. Powers,
Ronald L. Frey, and Erik S. Dunbar, for appellant.
       Jason A. Macke, urging reversal for amicus curiae, Ohio Association of
Criminal Defense Lawyers.
                            _____________________




                                         22
