       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                          )      No. 69452-9-1
                     Respondent,
                                                                                  sr
                                          )      DIVISION ONE                               rn

              v.                                                                            O -":'•.
                                                                                  —i
RAYMOND ROSARRO ABITIA,                   )      UNPUBLISHED OPINION                         H2rn
aka RAYMOND RUSSELL ABITIA;
PACO,                                     )      FILED: May 27, 2014               c5

                                                                                      ur,
                     Appellant.


       Becker, J. — In this trial of a child rape charge, an expert witness for the

State testified that people who molest children often do not tell the truth and

when subjected to polygraph testing, they often admit to committing more sexual

abuse than the child victim reported. This was improper profile testimony that

categorized the defendant as a liar. We conclude the error was properly

preserved and was not harmless.

       The alleged victim was Abitia's daughter, KM. KM disclosed the abuse

after an incident in Skagit County that occurred shortly after she turned 14 years

old. Following this event, KM hesitantly disclosed to family members that Abitia's

sexual contact with her had been going on for some time and that it began when

she was 13 years old and they were living in Whatcom County. Eventually police
No. 69452-9-1/2


were informed, but it was not until their third contact with KM that she was willing

to talk to them about it. She testified at trial that she was afraid her family would

disown her.


         Abitia went to trial on one count of rape of a child in the second degree1

and one count of distribution of a controlled substance to a minor.

         At trial, the State began its case with two witnesses who testified about the

Skagit County incident. KM's cousin, who had been hosting a party, testified that

she went upstairs and noticed a bedroom door was closed. She opened it to find

Abitia standing at the door, breathing hard, sweating, and shaking. KM was on

the edge of a mattress with one leg completely out of her pants. The cousin

threatened to call the police. She asked KM how long it has been going on. KM

told her cousin "for a while," but she said she would deny it if police were called.

The second witness was KM's older sister, who testified that KM told her that

Abitia would get her high and then have sex with her and it had begun when they

lived in Whatcom County. KM's sister said that KM's disclosure tore the family

apart.

         The State's third witness was Joan Gaasland-Smith, the sexual assault

case specialist for the Whatcom County prosecutor's office. Gaasland-Smith

was qualified as an expert to discuss child sex abuse in general. Gaasland-

Smith testified that it is not unusual for children to delay disclosure. She said

while there is no single reason that applies in every case, there are many

reasons a child may not immediately disclose. A perpetrator may have offered


         1 Rape of a child in the second degree, a class A felony, requires that the crime
occur before the victim is 14 years old. RCW 9A.44.076.
No. 69452-9-1/3


the child rewards, money, or special attention in exchange for silence. The child

may value the relationship with the perpetrator, fear being seen as abnormal, or

think that the sexual contact feels good.

       Up to this point, there was nothing particularly objectionable about

Gaasland-Smith's testimony. KM did not disclose abuse until the Skagit County

incident and even then she resisted disclosing it to the police. Abitia's defense

strategy was to challenge KM's credibility. It is generally permissible for a jury to

hear expert testimony explaining why delayed disclosure does not necessarily

mean the victim lacks credibility. State v. Petrich, 101 Wn.2d 566, 575-76, 683

P.2d 173 (1984); State v. Holland, 77 Wn. App. 420, 427, 891 P.2d 49, review

denied, 127Wn.2d 1008(1995).

       But in response to the prosecutor's next question, Gaasland-Smith began

to veer toward generalities about perpetrators. She said, "Kids can be told by

perpetrators that, urn, that other adults believe adults, they won't necessarily

believe a child." Abitia objected to "this whole line of questioning as to what do

other sexual predators do":

       Your Honor, we would object to this. There is nothing here to
       indicate that she is discussing anything that occurred in this case.
       She is talking about things in general that by implication apply to
       this case, but don't, in fact, apply to this case. So we object to this
       whole line of questioning as to what do other sexual predators do or
       what are their habits or whatever. There is nothing to indicate that
       any of that is occurring in this case.

       The prosecutor responded that Gaasland-Smith was testifying as an

expert "and I believe what we are hearing would be helpful to the jury." Defense

counsel said, "What they are hearing is also highly prejudicial. It implies that all
No. 69452-9-1/4


sex offenders act in a certain way and that she can recognize them and telling

them what they can do to recognize this as well."

        The court overruled the objection, stating that "what kids can be told by

perpetrators ... is appropriate testimony for an expert witness." The court

warned the prosecutor to "be very cautious so that generalization does not

directly or indirectly suggest to the jury that that is what has happened" in this

case.


        Gaasland-Smith went on to discuss reasons why children may be afraid to

disclose. She testified that most of the time, children do not disclose everything

all at once. When asked about the basis of her knowledge, she answered that

sexual deviancy evaluations show it is common to discover that "more happened

than the child ever told." In the course of this answer, Gaasland-Smith testified

that a sexual deviancy evaluation includes a lie detector test because "oftentimes

people who do this kind of thing don't tell the truth":
        Q. . . . And when kids do disclose, do they disclose everything all
           at once?

        A. Most of the time, no.

        Q. And how do you know this?

        A. I know this from a couple of, urn, sources. The first one is that,
            urn, we read sexual deviancy evaluations.

        Q. What is a sexual deviancy evaluation?

        A. When a sexual offender desires to get treatment, then he - -1
            am going to say he - - we know that women also abuse
            children, but that he will go to a certified sex offender treater,
            that's a person who is specially qualified in the State of
            Washington to treat people who have this problem. And, urn,
            part of the sexual deviancy evaluation is for the perpetrator to
No. 69452-9-1/5


          say, urn, all of their sexual partners to disclose all of their
          victims, to talk about all of their sexual behaviors and then there
          is a lie detector test given because, urn, oftentimes people who
          do this kind of thing don't tell the truth. So that's a way to kind
          of find out if they are telling the truth or not. And so if we have
          this child - - we have the child's disclosure of what happened
          and then we have a sexual deviancy evaluation. It's most
          common to find out that a lot more happened than the child ever
          told.


(Emphasis added.)

       In cross-examination, Abitia established that in his case there was no

sexual deviancy evaluation. He renewed his objection. Again, it was overruled:

               [DEFENSE COUNSEL]: Your Honor, I would renew my
       objection to the whole line of testimony of this expert. I'm not sure
       that she has told the jury anything that's relevant to this case that,
       that would be helpful. And I think it's highly prejudicial, implying
       that a lot of things occurred that -

            THE COURT: I have already ruled on your objection ....
       We don't need a speaking objection. So the ruling stands.

       The jury convicted Abitia as charged.

       On appeal, Abitia argues that Gaasland-Smith's general testimony as to

the credibility of sex offenders was impermissible opinion testimony that invaded

the province of the jury. According to Abitia, the witness in effect told the jury

that "sexual perpetrators like Mr. Abitia are 'oftentimes' liars whose stories need

to be vetted through a polygraph examination" and "in all probability, Mr. Abitia

had raped [KM] 'a lot more' than she has revealed."2

       The State contends that Abitia is making this argument for the first time on

appeal and has not demonstrated manifest constitutional error. In the State's




       !Appellant's Br. at 25-26.
No. 69452-9-1/6


view, Abitia's only objection below was that Gaasland-Smith's testimony was not

proper expert testimony.

       The propriety of an evidence ruling will be examined on appeal ifthe

specific basis for the objection is apparent from the context. Citation to a

particular rule of evidence is not necessarily required. State v. Braham, 67 Wn.

App. 930, 934-35, 841 P.2d 785 (1992).

       In Braham, the defendant was convicted of first degree child molestation.

The State presented an expert witness, Lucy Berliner, who like Gaasland-Smith

had no particular information about the victim or the case. The purpose of her

testimony was to explain how child molesters use a grooming process to

establish a relationship with an intended victim prior to the initiation of sexual

abuse. Braham, 67 Wn. App. at 933. Berliner described a recent study that

involved questionnaires to past victims of child abuse and to men who had been

in treatment for sexual abuse of children. Braham, 67 Wn. App. at 934 n.3.

Defense counsel objected on the ground of relevance:

       "[C]ertainly as to this grooming testimony, there is no indication
       here that that would be proper or that would be relevant. .. . And I
       think that in testifying as to what she believes to be the common
       grooming process, the jury could be seriously misled and certainly
       given false impressions as to what in fact the facts were, if any, in
       this particular case that would support the State's allegations.
       Therefore I would strenuously object to that type of testimony."

Braham, 67 Wn. App. at 932 (alteration in original). The trial court overruled the

objection.

       On appeal, Braham argued that Berliner's expert testimony on the

grooming process was a type of profile testimony that carried an unfairly
No. 69452-9-1/7


prejudicial opinion that he was guilty. The State insisted that this was a different

ground than had been argued below. This court concluded that the defense

objection that "the jury could be seriously misled" was sufficient in context to

invoke ER 403. "Washington's general prohibition on expert 'profile' testimony is

premised precisely on this element of unfair prejudice and the ensuing false

impression the jury might derive about the value of the expert's ostensible

inference." Braham. 67 Wn. App. at 935.

       Abitia's objection below was likewise sufficient to preserve his opportunity

for appellate review. He objected to Gaasland-Smith's testimony on the basis

that it was highly prejudicial to admit expert testimony about sex offenders

generally—how they behave and what their characteristics are as a class. He

said, "She is talking about things in general that by implication apply to this case,

but don't, in fact, apply to this case." On appeal, Abitia argues that it was

improper for Gaasland-Smith to give her expert opinion that oftentimes sex

offenders—"people who do this kind of thing"—are untruthful. The objection

below was sufficient to alert the trial judge that Gaasland-Smith was profiling sex

offenders, which is the argument Abitia makes on appeal.

       A trial court's decision to admit expert testimony is reviewed for abuse of

discretion. State v. Kirkman. 159 Wn.2d 918, 927, 155 P.3d 125 (2007).

Perpetrator profile testimony is improper because it "clearly carries with it the

implied opinion that the defendant is the sort of person who would engage in the

alleged act, and therefore did it in this case too." Braham, 67 Wn. App. at 939

n.6. Gaasland-Smith's line of testimony about what perpetrators do should have
No. 69452-9-1/8



been cut off when the objection was first raised. Her opinion that sex offenders

lie about their conduct implied that Abitia was lying when he denied having

sexual contact with KM. No witness may testify as to an opinion on the veracity

of the defendant, either directly or inferentially. Kirkman, 159 Wn.2d at 927. We

conclude it was unfairly prejudicial testimony that invaded the province of the jury

to weigh the credibility of Abitia relative to KM.

       Gaasland-Smith's testimony that offenders can be trusted to tell the truth

only when they are subject to lie detector tests was also unduly prejudicial.

Ordinarily, polygraph evidence is inadmissible absent stipulation by both parties

because the polygraph has not attained general scientific acceptability. State v.

Justesen, 121 Wn. App. 83, 86, 86 P.3d 1259, review denied, 152Wn.2d 1033

(2004); State v. Ahlfinqer, 50 Wn. App. 466, 472-73, 749 P.2d 190, review

denied, 110 Wn.2d 1035 (1988). Gaasland-Smith's improper reference to lie

detectors bolstered her opinion that sexual offenders, as a class, are liars.

       The State does not argue that Gaasland-Smith's testimony, iferror, was

harmless, and we conclude it was not. A government witness gave expert

testimony implying that the defendant was categorically untruthful.

       The State also does not separately argue that Abitia's conviction for

distributing methamphetamine to KM should be affirmed. Because Gaasland-

Smith's testimony undermined the fairness of the trial as a whole, we conclude

Abitia is entitled to a new trial on both counts.

       We also accept the State's concession that a sexual assault protection

order entered with respect to KM's sister was unlawfully imposed. As the


                                            8
No. 69452-9-1/9


charges related to the sister were dismissed before trial, the order must be

vacated.

       Reversed.




                                                         dzeJj,
                                                                    J
WE CONCUR:




  Wf.U.-,, ( >Q ,
   >lc«(tsr-.j f~3~,                                    y£~fo^
                                                                   n-
