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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                12-JUN-2020
                                                                07:57 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
 ______________________________________________________________

                           STATE OF HAWAIʻI
                    Respondent/Plaintiff-Appellee,

                                     v.

                          JASON ENGELBY,
                 Petitioner/Defendant-Appellant.
 ______________________________________________________________

                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 12-1-1899)

                              JUNE 12, 2020

         RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.;
    AND WILSON, J., DISSENTING, WITH WHOM POLLACK, J., JOINS

             OPINION OF THE COURT BY RECKTENWALD, C.J.

                             I.   INTRODUCTION

          Jason Engelby was found guilty by a jury of two counts

of Sexual Assault in the First Degree for molesting a minor

child (Child), the daughter of a close friend, when Child was

nine and ten years old.      Engelby appealed, and the Intermediate
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Court of Appeals (ICA) affirmed.           On certiorari, we must assess

Engelby’s claim that Dr. Alexander Bivens, the State’s expert

witness in child sexual assault dynamics, impermissibly

bolstered Child’s credibility. 1

            The testimony that Engelby seeks to challenge now was

not introduced during the State’s case-in-chief.             Rather, during

its cross-examination of Dr. Bivens, the defense initiated a

discussion about the credibility of alleged victims of child

sexual assault, apparently to develop a theory that Child’s

memories of the alleged assaults may have been suggested to her

by someone else.     Specifically, the defense elicited testimony

from Dr. Bivens that distinguished the circumstances in which a

child would intentionally make false allegations about sexual

assault from the circumstances in which a child would be

susceptible to the implantation of false memories by third

parties.    The State further developed that testimony on re-

direct examination, without any objection by the defense.

            Having used Dr. Bivens’ testimony on children’s

general credibility to his own advantage, and having failed to

object when the State elicited further testimony on re-direct

examination, Engelby should not now be able to challenge that

testimony on the basis of impermissible bolstering.


      1     Engelby’s application for writ of certiorari also challenges Dr.
Bivens’ testimony on a number of other grounds. As discussed more fully
below, the other issues raised by Engelby are without merit.
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Accordingly, we affirm the ICA’s judgment on appeal.

                              II.   BACKGROUND

            The State charged Engelby with two counts of Sexual

Assault in the First Degree in violation of HRS § 707-730(1)(b). 2

The charges alleged that Engelby had molested Child on multiple

occasions between December 1, 2011 and December 4, 2012. 3

A.    Hawaiʻi Rules of Evidence Rule 104(a) Hearing

            Both parties had filed motions in limine prior to

trial to determine whether Dr. Bivens was qualified to testify

as an expert witness and, if so, what the appropriate scope of

his testimony would be.       The State moved for the court to

qualify Dr. Bivens as “an expert witness on the dynamics of

child sexual assault,” and asserted that Dr. Bivens’ testimony

would address the dynamics of child sexual assault and cover

patterns of behavior exhibited by child victims of sexual

assault “which [might otherwise seem] inconsistent with [the]

behavioral norms of other victims of assault[,]” such as delayed



      2     Hawaiʻi Revised Statutes (HRS) § 707-730(1)(b) (2014) (Sexual
Assault in the First Degree) provides that “[a] person commits the offense of
sexual assault in the first degree if [t]he person knowingly engages in
sexual penetration with another person who is less than fourteen years old.”

            The State also charged Engelby with five counts of Sexual Assault
in the Third Degree in violation of HRS § 707-732(1)(b) (2014). These
charges were dismissed as defective, however, at a pretrial hearing on
June 22, 2015.

      3     The Honorable Colette Garibaldi presided.



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reporting and tunnel memory. 4       Engelby requested the court to

conduct a hearing “to determine the qualifications and relevance

of [Dr. Bivens’] testimony.”

            Following the parties’ opening statements and

testimony from the State’s first witness, Detective Brian Tokita

with the Honolulu Police Department (HPD), the circuit court

conducted a Hawaiʻi Rules of Evidence (HRE) Rule 104(a) hearing

outside the presence of the jury to determine these issues.

            The defense objected to Dr. Bivens testifying at

trial.    First, the defense explained that it was “not

challenging [] any of the contents of [Dr. Bivens’] curriculum

vitae.”    Instead, the defense challenged his proffered testimony

by arguing that it would be irrelevant and unduly prejudicial,

improperly bolster the State’s witnesses, usurp the function of

the jury, and improperly profile Engelby as a child molester.

The defense explained:

            We are objecting based on not just [State v.]
            Batangan, [71 Haw. 552, 799 P.2d 48 (1990),] but
            we’re objecting for irrelevance.

            We are objecting that it would be unduly prejudicial
            to Mr. Engelby because it would be considered
            improper bolstering, and also we would object that it
            would also be improper profiling, and profiling of
            what a person who would commit these kinds of
            offenses may or may not be, and we would argue that
            that would be inherently prejudicial.

            Also, we object that it would be usurping the
            function of the jury, that the jury can determine,


      4     At trial, Dr. Bivens described the phenomenon of tunnel memory as
an individual’s enhanced recall of the details central to a traumatic event
and weaker recall of the details peripheral to that event.
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          from listening to the witnesses, whether or not they
          choose to feel someone’s credible or not, and it
          would violate my client’s rights under the due
          process clause.

          The defense contended that delayed reporting in cases

of child sexual abuse was “part of the general knowledge of the

public,” and that expert testimony on that topic was therefore

not necessary.    The defense also questioned whether Dr. Bivens

was qualified to address tunnel memory, and requested that the

term “grooming” be “in limined” out.

          In response, the State asserted that Dr. Bivens’

testimony was relevant, and that testimony on “the dynamics of a

sexual assault by a family member or someone close to the

family” would assist the jury in understanding how children

might experience and react to sexual abuse within the home.                  The

State explained that this dynamic was not familiar to lay

people, and that children’s reactions in this type of situation

might differ from the reactions that a person of ordinary

understanding might otherwise expect.          The State also clarified,

inter alia, that it sought to elicit testimony from Dr. Bivens

about delayed reporting and tunnel memory, that Dr. Bivens

“would not be commenting on anyone’s credibility or

believability[,]” and that it would make clear to the jury that

Dr. Bivens had no familiarity with the case or its witnesses.

          The circuit court ruled that Dr. Bivens’ testimony was

relevant, noting that:

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           The Court is not in agreement with the defense in
           terms of this being general knowledge to which the
           jury does not need assistance . . . . [T]he Court
           does believe that . . . the testimony of an expert
           would be of assistance to the jury with respect to
           specifically, the behaviors that are associated with
           this type of offense for delayed reporting and,
           perhaps, inconsistent reporting.

           The circuit court further ruled:

           [Dr. Bivens can] testify to his experience and
           research on delayed disclosure . . . [,] children’s
           reaction[s] to the event[s,] and [] explanation[s] of
           the manner[s] of disclosure and the reasons for the
           delay[s].

           At this point[,] the court will leave outstanding the
           testimony associated with tunnel memory, unless and
           until [Dr. Bivens] can be qualified that he’s able to
           testify as to tunnel memory[.] [Additionally,] I’ll
           grant the [defense’s] oral motion to in limine out
           the word “grooming” in [Dr. Bivens’] testimony.

B.   Dr. Bivens’ Testimony

           Dr. Bivens was the next witness called by the State.

After Dr. Bivens testified as to his credentials and

qualifications, the circuit court qualified Dr. Bivens as an

expert witness in clinical psychology “with [an] emphasis in the

general dynamics of child sexual assault.”

     1.    Direct Examination

           Dr. Bivens first explained that, in the context of

child sexual assault, studies consistently showed “that sexual

abuse most often occurs in the context of a preexisting

relationship, preexisting nonsexual relationship between the

adult and the child.”       Furthermore, he explained that in his own

practice, he could only recall “a couple of cases . . . [of]

stranger abuse[,]” and that “[m]ost often, [the molester would
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be] someone [that the child] . . . knew well” and that the child

and family trusted.

          Relating to delayed disclosure, Dr. Bivens testified

that “[d]elay[ed disclosure] [was] the rule, [rather than] the

exception” for children who had been sexually assaulted, and

that “the most common thing [for children to] do when molested

[was to] not say anything for a long time.”           He explained that

it was not atypical for children to wait months or years to

disclose their abuse, and also not atypical for them to “allow

the abuse to continue . . . for a long period of time before

disclosing.”   He explained, “[t]he closer the relationship

between the abuser and the child, the longer it [would] take to

disclose.”

          Dr. Bivens further discussed the most common reasons

for children’s delayed disclosures, including fear of not being

believed, embarrassment, and not wanting to harm anyone, as well

as the types of situations that would prompt disclosure.              He

then explained that children most often disclosed to their

“mothers and close friends[,]” and that children’s initial

disclosures often contained incomplete information.

          Dr. Bivens also explained that he was familiar with

research on the topic of tunnel memory and that he dealt with

patients “every week” within his clinical practice who were

experiencing tunnel memory.       Based on this testimony, the

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circuit court ruled that Dr. Bivens had adequately laid a

foundation to testify on this topic. 5         With regard to tunnel

memory, Dr. Bivens then explained that while “the details of the

sexual abuse” would be remembered well by victims, peripheral

details, such as “the dates and times” of the occurrences,

“[would be] remembered less well.”

             Dr. Bivens also discussed the typical interactions

children had with their molesters, including: (1) “loving,

seductive relationship[s]”; (2) “playful relationship[s] that

[would] begin[] to involve sexual touching”; (3) “coercive

relationship[s]”; and/or (4) “feeling taken advantage of[,]” in

which the touching would occur while the children were sleeping.

Dr. Bivens also testified that “there are two places where child

sexual abuse most often occurs, and that it is the child’s own

home and in the molester’s own home.”

             The State did not ask Dr. Bivens to comment on

children’s credibility on direct examination, and Dr. Bivens did

not do so.    Further, Dr. Bivens emphasized that he had never

spoken with nor met the witnesses in the instant case and was

unfamiliar with the case’s facts.          He explained, “I’ve just been

talking about general dynamics.         And, in fact, the material that



      5     On appeal to the ICA, Engelby argued that the circuit court erred
by permitting Dr. Bivens to testify on the topic of tunnel memory. Based on
the record, however, we conclude that the circuit court did not abuse its
discretion in this regard.
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I’ve shared today is very similar to the general dynamics

training that I do.     It’s just [in] a longer format when I do

that training.”

     2.   Cross-Examination

           The subject of children’s credibility was first raised

on cross-examination, when the defense asked Dr. Bivens how he

would “distinguish compromised recall from a situation where the

child might be lying in the context of, say, a divorce where

parties are fighting and maybe a child [would be] compelled to

lie[.]”   In response, Dr. Bivens explained:

           [T]hat would depend a lot upon, you know, the nature
           of the report. There are certain kinds of lies that
           are much less common for children to tell, children
           are less likely to lie. If [] there are known
           consequences or likely consequences that are going to
           befall somebody else [-] that would require certain
           kinds of malicious qualities that tend to be rare.

           On the other hand . . . [,] in the cases that I’ve
           worked on where there were divorce problems, the
           child wasn’t necessarily the source of the report.
           The reports were coming [in] secondhand. So there
           are a number of factors that you can look at.

(emphasis added).

           The defense then asked Dr. Bivens to “comment on the

phenomena of rehearsal[,] . . . implant[ing] a memory, or

suggestibility[.]”     The following discussion ensued:

           DR. BIVENS: So there is research on suggestibility.
           It is possible to implant a memory into a child’s
           mind. Interestingly, it is also possible to implant
           [a] memory into an adult’s mind if you have enough []
           knowledge about what you’re doing.

           In the case of children, implantation of memories is
           more common and more likely to occur with very young
           children, preschool age. . . . By the time you reach
           age seven, you’re talking about a child who is going
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          to be more resistant to this type of thing, although
          with enough concerted effort and enough technology
          you probably could pull it off in a seven-year-old
          also.

          DEFENSE: And a concerted effort could just mean [] –
          an adult repeating something over and over again, it
          doesn’t necessarily mean like they have to use the
          Internet or –

          DR. BIVENS: No, over and over again.     Repeated
          implantation[.]

(emphases added).

     3.   Re-Direct Examination

          On re-direct examination, the State asked Dr. Bivens

to explain “a little bit” more about false reporting and

suggestibility.    The defense did not object at any point during

this discussion.

          STATE: Now, doctor, you were just asked a few
          questions regarding false allegations or
          suggestibility. Were there any . . . pivotal studies
          that you’re aware of that address this issue[?]

          DR. BIVENS:   Yes.

          STATE:   Can you tell us about that?

          DR. BIVENS: I certainly can. So in the 1980s, there
          were several [] unfortunate incidents in which
          preschool children were [] inappropriately
          interviewed by well-minded people who believed there
          was a phenomenon of satanic ritualistic sexual abuse
          that was happening to these children. There was no
          particular evidence of it and none of the children
          really reported anything prior. But upon multiple,
          multiple interviews[,] these preschool age children,
          four and five, were pressured and otherwise coerced
          into making statements[,] and some of the children
          came to believe those statements.

          It was a result of [] those incidents and the studies
          that [] looked at how that was accomplished and the
          practices that we use today to conduct investigation
          were developed to always avoid suggesting anything or
          bringing up the topic of anything that might have
          occurred. And, in fact, when I consulted with the
          Children’s Justice Center, these appropriate
          practices are exactly the kind of thing that I talked
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      to them about. So we know a lot about
      suggestibility, [and] again, [it is] more common in
      younger [children], and we work to avoid it as
      investigators.

      STATE: So that was basically a learning experience,
      that situation that occurred in the 1980s?

      DR. BIVENS: For [] the field of investigating claims
      of child sexual abuse[,] yes, it was.

      STATE: And . . . how have interviewers been . . .
      trained differently since then?

      DR. BIVENS: [N]ow we have a very standardized
      process that we use to train our interviewers. . . .
      [O]ur practices have [] become dramatically better.
      [W]hat we find is that under appropriate interviewing
      conditions, we get very accurate reports from
      children. And this is tested frequently.

      STATE: And based upon your research and . . . your
      clinical experience, are you familiar with . . .
      false reporting and [] how often that occurs?

      DR. BIVENS:      I am.

      STATE:   Okay.     Can you tell us a little bit about
      that?

      DR. BIVENS: I can. So the possibility or problem
      that children could lie is a deep concern to us as
      psychologists and so we study children lying. It is
      possible to get a child to lie and we know a good bit
      about [] what is required and the kinds of lies that
      children are likely to tell.

      The easiest kind of lie to get a child to perform is
      one where they simply withhold information or deny
      having information, basically saying nothing happened
      or I don’t know what happened in exchange for a
      reward with very low stakes. In other words, nobody
      really gets in trouble. So it’s sort of like hey,
      where did that cookie go? I don’t know. That’s an
      easy kind of lie to get a child to tell.

      The most difficult kind of lie to get a child to tell
      would be to get them to say something to – to come
      out with something that’s incorrect that didn’t
      happen and when the child knows that there’s going to
      be a significant consequences for another person.
      And so that’s what . . . our research shows on a
      child lying. As far as false allegations of child
      sexual abuse goes, there’s been a great deal of
      concern about this and there have been controversies
      in the scientific field as well. But all of the most
      recent research indicates that children independently

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          are not likely to be sources of false allegations
          even in . . . the context of divorce. We would be
          more likely to find a parent saying that a child
          said. But in terms of an independent report
          emanating from a child, those are very infrequently
          found.

(emphases added).

     4.   Re-Cross Examination

          The topic of credibility was raised again during re-

cross examination, when the defense asked Dr. Bivens to “follow

up on the suggestibility portion” of his testimony.             This was

the only subject the defense raised.

          DEFENSE: So you shared with us that based on what
          happened in the ‘80s, changes were made to the
          training [] so that professionals who interview
          children have better techniques now; correct?

          DR. BIVENS:   [T]hey really do, yes.

          DEFENSE: But suggestibility with a trained
          professional is – those special techniques and
          everything may not apply to, say, a parent, a family
          member or someone involved who doesn’t have that
          training; correct?

          DR. BIVENS:   That is correct.

          DEFENSE: Okay. So there is still that risk where
          nonprofessionals are involved when they’re
          questioning a child about certain things that they
          may or may not be accusing someone of?

          DR. BIVENS: Yes. Particularly if this is on a
          repeated, sustained . . . basis where the parent is
          convinced that a certain result is what they’re
          trying to get out of a child.

          DEFENSE: And would [] a reward system be a factor as
          well? I believe you shared with us that sometimes
          children, if they are induced . . . with gifts or
          presents that they may be inclined to keep secrets.
          But would you also agree that they may be inclined to
          lie as well?

          DR. BIVENS: [M]aybe the easiest way that I can
          answer your question is to say that one of the
          practices [] we always refrain from as professionals
          is we don’t offer, you know, ice cream sandwiches if
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           you talk about the sex things that were done to you,
           right. So . . . we specifically do not offer rewards
           for that specific reason.

           DEFENSE:   [A]s trained professionals?

           DR. BIVENS:   Correct.

(emphases added).

C.   Other Witness Testimony

           In addition to the testimony of Detective Tokita and

Dr. Bivens, the State presented testimony from another HPD

investigator, as well as from Child, Child’s older sister, and

Child’s mother and her boyfriend.

           Child testified that Engelby came over to her house “a

lot” as she was growing up, and that she and Engelby were

“close.”   Child testified that it was not uncommon for Engelby

to spend the night at her family’s house, sleeping either in the

living room or the room she shared with her older sister.

           Child testified that Engelby began “touching her in

ways she didn’t like” in December 2011 and that this touching

continued until December 3, 2012.          She testified that she could

not remember each day that he sexually abused her “because it

happened a lot.”

           According to Child, Engelby touched her on multiple

occasions while she slept in the living room; once after an

outing at Ice Palace for her tenth birthday; and the night of

December 3, 2012, after she had fallen asleep in her bedroom.

Child testified that she did nothing when he touched her or
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licked her “vagina area[,]” and that she felt scared and

confused because she “didn’t know why he would do such a thing.”

She explained that she did not scream when he touched her

because it was “shocking” and because she “didn’t know what to

do.”     She testified that Engelby would buy her clothes and

earrings, and would occasionally slip money into her hand after

he was done touching her.

             Initially, Child explained, she did not tell anyone

about what Engelby was doing because she did not think anyone

would believe her.        Later, however, she told her older sister

and mother.

             Child’s older sister, as well as Child’s mother and

her boyfriend, corroborated many aspects of Child’s testimony.

Child’s sister, for instance, testified that “Uncle Jason” would

come over to her family’s home a lot, including late at night.

She testified that Engelby would sleep at their home, sometimes

“lay[ing] down” in the bedroom she shared with Child, and “once

in a while” laying down in Child’s bed.             She explained that when

Child told her about the sexual abuse, “it was hard for [Child]

to explain what she wanted to say” because “[s]he was crying and

stuttering.”

             Child’s mother explained that Engelby was like family

to her, and that he was “welcome to come and go [within the

family’s home] as he pleased.”           She further testified that

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Engelby could sleep over wherever he wanted to within the home,

and that sometimes, she would go to sleep while Engelby was

over, unaware of his exact location.           Child’s mother, as well as

her boyfriend, testified that Engelby not only had a key to the

home, but was also present the night of December 3, 2012 and the

morning of December 4, 2012, when the last incident allegedly

occurred.

            According to Child’s mother, she and her boyfriend

were up that night to make periodic checks on her oldest

daughter’s dog, which was dying.           It was during one of those

checks, she explained, that she first saw Engelby in her home.

She testified that she wasn’t shocked at Engelby’s presence, and

that throughout the night, he helped them take care of the dog.

The mother’s boyfriend testified that, at some time between

12:30 and 2:00 a.m., he noticed Engelby in Child’s room on a

folding mattress, illuminated by his phone.            According to

Child’s mother, Child first disclosed her allegations against

Engelby the evening of December 4th.

D.   Engelby’s Testimony

            Engelby then testified as the defense’s sole witness.

Engelby explained that while he had always had a close

relationship with Child’s family, and while he had lived with

Child’s family for about a year in 2008 or 2009, he became more

distant from them when he moved in with his girlfriend in 2010.

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Furthermore, he explained, although he had a key to Child’s home

when he lived with Child’s family, the family had changed the

locks in 2010.     As such, he denied having a key to the home at

the time the alleged incidents occurred.

           Engelby testified that he had never touched Child in a

sexual manner.     And, while he admitted to taking Child to Ice

Palace for her tenth birthday, he contended that he had not been

alone with her that day, as his girlfriend and her daughter met

them there.    Engelby explained that while he had slept over at

Child’s home in 2011, he did so as a favor to Child’s mother,

who needed someone to take care of her children as she gave

birth in the hospital.

           Engelby denied ever spending the night at Child’s home

in 2012, and denied visiting the home the night of the last

alleged incident, as Child’s mother and her boyfriend alleged.

E.   Jury Instructions

           After the testimony had concluded, but before the

parties’ closing arguments, the circuit court provided the

following instructions to the jurors explaining how they should

weigh the evidence:

           COURT: During the trial you heard the testimony of
           one or more witnesses who were described as experts.
           Training and experience may make a person an expert
           in a particular field. The law allows that person to
           state an opinion about matters in that field.

           Merely because a witness has expressed an opinion
           does not mean, however, that you must accept this
           opinion. It is up to you to decide whether to accept

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           this testimony and how much weight to give it. You
           must also decide whether the witness’s opinions were
           based on sound reasons, judgment and information.

(emphasis added).

F.   Closing Arguments

           Both the State and defense focused on the witnesses’

credibility in their closing arguments.

           The State explained that Child’s testimony established

the “elements of each count beyond a reasonable doubt[,]” and

told the jury that “if you believe[d] [Child], it’s over.”                The

State made no references to Dr. Bivens’ statements about

children’s propensities for truthfulness, and only addressed his

testimony as follows:

           STATE: Dr. Bivens came in here and [] gave you all a
           little insight into the way children who are sexually
           abused typically respond. The way [Child] responds
           under these circumstances makes sense. Her testimony
           was reasonable.
           . . . .
           [A]gain, Dr. Bivens just shared with you some of the
           common experiences of children who are sexually
           abused and that it’s typical for those children to
           play possum because they’re scared or confused. Most
           of them do not disclose until a while later and most
           disclose to a mother or a close friend. And he
           basically [] talked a little bit about his experience
           through research and through treating children who
           are sexually abused.

           The defense, on the other hand, attempted to cast

doubt on Child’s credibility by putting forth a theory of

suggestibility.     Specifically, the defense focused on the fact

that Child, despite earlier opportunities to do so, did not

initially disclose her allegation that Engelby had put his mouth

on her vagina.     The defense thus contended:
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            DEFENSE: In addition, [Child] has testified that she
            felt a mouth licking her vagina. The defense asks
            you to recall that [Child] did not say anything about
            a mouth on her vagina, let alone any sort of licking
            of her vagina, when she talked to the detective, when
            he went to gather her clothing, okay, and when she
            later spoke with him at the Children’s Justice
            Center.

            So let’s talk about the Children’s Justice Center for
            [] a second. This is a special place where children
            are interviewed with trained professionals. It’s a
            safe environment, not a cold . . . room at the HPD.
            It’s a special center designed to interview children
            by professionals. And she never mentioned [the
            licking] during her interview with the detective.

            So let me clarify. [Child] didn’t say anything about
            a mouth on her vagina when she’s interviewed and when
            they’re collecting her clothes and the detective is
            doing his gathering of evidence. And she said
            nothing about a mouth on her vagina when she got
            interviewed at the Children’s Justice Center. It’s
            only 16 days later [at a grand jury proceeding], 6
            after she had all this time to be talking with her
            family or whatever that she decides to start saying
            that.

            It is not credible that a ten-year-old girl would
            simply forget that a man had his mouth on her vagina
            and was licking it. And it’s not credible that she
            would wait to say something about it if it actually
            did happen. And the defense submits that this is
            evidence that is simply just not true. That this is
            added, that she may have been influenced by what
            someone else said or influenced by who knows,
            suggestion.

            We don’t know. But there is a problem with this
            reporting. Adding something later does not make it
            true and does not make it accurate. That is a
            reasonable doubt about whether or not it even
            happened. The defense submits that [Child’s]
            accuracy is in question and this omission, this
            failure to mention anything about [a] mouth on [her]
            vagina when she first got interviewed by the
            detective who sat down with her, is important.

(emphases added).

            In rebuttal, the State again emphasized the topic of



      6     Child first alleged that Engelby had licked her “vagina area” at
a grand jury proceeding that took place on December 20, 2012.
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credibility, but did not refer to any aspects of Dr. Bivens’

testimony on that matter.        In sum, the State argued:

           STATE: If you believe [Engelby,] that means you
           don’t believe any of the other witnesses in this case
           because his testimony is the only one that goes
           astray. And he is the only person that has motive to
           lie here. . . . To protect himself.
           . . . .
           You have heard all the evidence in this case[.]
           [Child] is credible. She’s not mistaken, she was
           very clear in her detailed testimony. And she has no
           reason to lie. The defendant sexually assaulted her
           and he betrayed that family’s trust. Find him guilty
           as charged.

G.   Engelby’s Conviction, Sentence, and Appeal

           Engelby was found guilty of two counts of Sexual

Assault in the First Degree and was sentenced to two concurrent

twenty-year terms of imprisonment.          On appeal to the ICA,

Engelby contended that Dr. Bivens’ testimony denied his rights

to due process and a fair trial.

           The ICA affirmed.       The ICA concluded that Dr. Bivens’

testimony was both relevant and helpful to the jury, and that it

neither impermissibly profiled nor unduly prejudiced Engelby.

The ICA declined to consider Engelby’s claim that Dr. Bivens’

testimony improperly relied on statistics to profile Engelby as

a molester, on the basis that the issue had not been properly

preserved for appeal.       The ICA further concluded that “Dr.

Bivens did not opine on [Child’s] credibility [] or testify

about the facts of the particular case.”           Thus, the ICA rejected

that Dr. Bivens had bolstered Child’s credibility merely because

the “details of [Child’s] story match[ed] the details of a
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typical child sex abuse case.”

           Engelby timely filed an application for writ of

certiorari.

                        III.   STANDARDS OF REVIEW

A.   Admission of Opinion Evidence (Expert Testimony)

           “Generally, the decision whether to admit expert

testimony rests in the discretion of the trial court.              To the

extent that the trial court’s decision is dependent upon

interpretation of court rule[s], such interpretation is a

question of law, which [the appellate] court reviews de novo.”

State v. McDonnell, 141 Hawaiʻi 280, 289, 409 P.3d 684, 693

(2017) (citing Barcai v. Betwee, 98 Hawaiʻi 470, 479, 50 P.3d

946, 955 (2002)).

B.   Plain Error Review

           Pursuant to Hawaiʻi Rules of Penal Procedure Rule 52(b)

(2012), this court may notice “[p]lain errors or defects

affecting substantial rights . . . although they were not

brought to the attention of the court.”           We have noted, however,

that the “power to deal with plain error is one to be exercised

sparingly and with caution,” given that “the plain error

rule . . . depart[s] from a presupposition of the adversary

system – that a party must look to his or her counsel for

protection and bear the cost of counsel’s mistakes.”              State v.

Nichols, 111 Hawaiʻi 327, 335, 141 P.3d 974, 982 (2006) (citation

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and quotation omitted).

                              IV.    DISCUSSION

A.   Issues Raised on Certiorari

           Engelby raises the following question on certiorari:

           Whether the ICA gravely erred in affirming the
           circuit court’s ruling allowing Dr. Bivens to testify
           because his testimony was (1) irrelevant and
           misleading; (2) stated “facts” or “characteristics”
           based on statistics (although not citing
           percentages); (3) improperly bolstered [Child]’s and
           her mother’s credibility; (4) improperly profiled
           Engelby as a child molester; (5) taken in totality,
           was unduly prejudicial to Engelby; and (6) did not
           assist the jury in understanding the evidence
           []because the evidence was logically comprehensible
           by jurors of common understanding, in violation of
           Engelby’s rights to due process and fair trial.

B.   The Issue of Children’s Credibility

           Engelby seeks to challenge the admission of statements

made by Dr. Bivens concerning false allegations and

suggestibility of children.         Since Engelby did not object at any

time to that testimony while Dr. Bivens was testifying, we

review for plain error.

           Dr. Bivens’ direct testimony did not address the

credibility of alleged victims of child sexual abuse.              Rather,

the defense raised that issue on cross-examination, apparently

in order to suggest that Child’s memories of Engelby’s assaults

were the result of suggestion.         To develop this theory, the

defense sought to elicit testimony from Dr. Bivens that

distinguished between a child’s propensity to make false

allegations and a child’s susceptibility to suggestion.

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          Dr. Bivens’ first statement about children’s

credibility was made during cross-examination, in response to

the defense asking him how he would “distinguish compromised

recall from a situation where . . . a child [would be] compelled

to lie[.]”   The defense continued by asking Dr. Bivens to

“comment on the phenomen[a] of rehearsal[, . . . ] implant[ing]

a memory, or suggestibility[,]” to which Dr. Bivens replied,

that in his experience, “[i]t [was] possible to implant a memory

into a child’s mind.”      On re-cross examination, the defense

emphasized this point by asking Dr. Bivens to “follow up on the

suggestibility portion” of his testimony.           Indeed, on re-cross

examination, this was the only topic broached.            It thus appears

that the defense elicited this testimony to help develop its

theory in closing that “[Child] may have been influenced by what

someone else said or by[,] who knows, suggestion.”

          Moreover, the challenged testimony elicited by the

State appears to align with the defense’s theory.             Dr. Bivens’

statement that “children independently are not likely to be

sources of false allegations” did not bolster Child’s

credibility where the defense’s theory was not that she was a

liar by nature, but rather, that she was influenced to lie.

          The defense never objected to nor moved to strike the

challenged portions of Dr. Bivens’ testimony at trial.

Accordingly, Engelby did not properly preserve his claim about

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bolstering, and waived his ability to challenge the statements

under HRE Rule 103(a)(1), which states that “[e]rror may not be

predicated upon a ruling which admits . . . evidence unless a

substantial right of the party is affected, and . . . a timely

objection or motion to strike appears on the record.”             (emphasis

added).   See State v. Metcalfe, 129 Hawaiʻi 206, 224, 297 P.3d

1062, 1080 (2013) (point on appeal was forfeited because defense

did not object to expert’s testimony at trial).

           While the defense challenged Dr. Bivens’ ability to

testify as an expert witness in the Rule 104 hearing prior to

his testimony, and claimed that his testimony would

impermissibly bolster Child’s testimony, this general objection

to his testimony was not sufficient to preserve his current

objection to the statements about credibility now at issue.                  See

Kobashigawa v. Silva, 129 Hawaiʻi 313, 322, 300 P.3d 579, 588

(2013) (“[A]s is generally true for appellate review of any

issue, the failure to object to evidence introduced after denial

of a pretrial motion in limine to exclude that same evidence

will result in waiver of the objection on appeal.”); State v.

Kony, 138 Hawaiʻi 1, 10-11, 375 P.3d 1239, 1248-49 (2016)

(holding that defendant waived claims of improper profiling and

expert’s use of statistical data when defendant only made

general objections to expert’s testimony and failed to object to

particular aspects of expert’s testimony at trial); cf. HRE Rule

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103(a) (“Once the court makes a definitive ruling on the record

admitting or excluding evidence, either at or before trial, a

party need not renew an objection . . . to preserve a claim of

error for appeal.”); Craft v. Peebles, 78 Hawaiʻi 287, 294, 893

P.2d 138, 145 (1995) (“unequivocal” in limine rulings were

noticeable on appeal despite failure to challenge at trial).

Contrary to the dissent’s suggestion, it cannot be said that the

circuit court made “definitive” pretrial rulings with regard to

this testimony.    See Dissent at 11-12.

          Thus, in order to preserve his claims about bolstering

in relation to Dr. Bivens’ statements about children’s

credibility, Engelby was required to (1) object to Dr. Bivens’

statements at the time they were made, or (2) move to strike

those statements later, specifically on the ground that they

improperly addressed the credibility of child witnesses.

Because Engelby did neither, he did not properly preserve his

claims, and plain error review applies.          See HRE Rule 103(d)

(this court may take notice of “plain errors affecting

substantial rights” even if “they were not brought to the

attention of the court”); see also Addison M. Bowman, Hawaiʻi

Rules of Evidence Manual § 103-4[2] (2018-19 ed.) (“Evidence

admitted without any objection . . . is reviewable on appeal

only as plain error.”).



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C.   Under Plain Error Review, Engelby’s Substantial Rights Were
     Not Affected

            Our case law acknowledges that expert psychological

testimony in child sexual abuse cases often has the effect of

bolstering one witness’s credibility at the expense of

another’s, and that this, on its own, is permissible if it does

not unduly prejudice the defendant.          Kony, 138 Hawaiʻi at 11, 375

P.3d at 1249 (citing State v. Batangan, 71 Haw. 552, 557-58, 799

P.2d 48, 51-52 (1990)).       We have recognized, however, that

courts must proceed with caution in admitting this type of

testimony.    The testimony may not, for instance, directly opine,

or have the same “effect . . . as directly opining on the

truthfulness of the complaining witness,” as that would usurp

the basic function of the jury.         Batangan, 71 Haw. at 559, 799

P.2d at 52 (quoting State v. Myers, 382 N.W.2d 91, 97 (Iowa

1986)) (emphasis added).

            It is significant that, here, the State never

mentioned Dr. Bivens’ challenged testimony in its closing

argument.    And, while not dispositive to the issue of

bolstering, it is also significant that Dr. Bivens had never met

or spoken with any of the case’s witnesses, and that he was

unfamiliar with the case’s details.          Compare State v. McDonnell,

141 Hawaiʻi 280, 293, 409 P.3d 684, 697 (2017) (holding that Dr.

Bivens’ statements in that case did not have the effect of


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directly opining on the complaining witness’s veracity, in part,

because Dr. Bivens was not familiar with any facts of the case

and had not spoken to any of the witnesses) with Batangan, 71

Haw. at 555, 799 P.2d at 50 (holding that the expert witness

improperly vouched for the victim’s credibility when he

testified on the prosecution’s behalf after evaluating the

complaining witness) and State v. Morris, 72 Haw. 527, 529, 825

P.2d 1051, 1052 (1992) (holding that the expert witness

impermissibly bolstered the complaining witness’s credibility

even though they had never met because the court concluded that

the expert’s “opinion had to have been based on the child’s

statements to others”).

          Additionally, the risk of prejudice to Engelby was

reduced by the circuit court’s instructions to the jurors on how

much weight to give each witness’s testimony, and our court’s

recognition that usurpation of the jury’s function can be

avoided, in part, with jury instructions.           See McDonnell, 141

Hawaiʻi at 293, 409 P.3d at 697 (citing State v. Sawyer, 88

Hawaiʻi 325, 329 n.7, 966 P.2d 637, 641 n.7 (1998) (noting that

juries are presumed to adhere to a court’s instructions)).

In McDonnell, for instance, we determined that Dr. Bivens’

testimony was not prejudicial, because, inter alia:

          the jury was instructed that they were to decide how
          much weight to give Dr. Bivens’ testimony: “Merely
          because such a witness has expressed an opinion does
          not mean . . . that you must accept this opinion. It

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          is up to you to decide whether to accept this
          testimony and how much weight to give it.”

Id. (emphasis added).

          It is thus significant that the jury in Engelby’s case

received the same instruction on weighing credibility as the

jury in McDonnell.     See id.    Specifically, the jury was given

the following instructions:

          COURT: During the trial you heard the testimony of
          one or more witnesses who were described as experts.
          Training and experience may make a person an expert
          in a particular field. The law allows that person to
          state an opinion about matters in that field.

          Merely because a witness has expressed an opinion
          does not mean, however, that you must accept this
          opinion. It is up to you to decide whether to accept
          this testimony and how much weight to give it. You
          must also decide whether the witness’s opinions were
          based on sound reasons, judgment and information.

(emphasis added).

          Here, the jury was also presented with ample evidence

to independently assess Child’s credibility.           In addition to

hearing from Child, the jury heard testimony from Child’s

sister, Child’s mother, and Child’s mother’s boyfriend, all of

whom corroborated many aspects of Child’s testimony.

          Child’s sister, for instance, testified that Engelby

would come over a lot, sleep over, and sometimes lay down in the

bedroom she shared with Child, while Child’s mother explained

that Engelby was “welcome to come and go as he pleased.”              And,

although Engelby denied visiting Child’s home on the night of

the last alleged incident, both Child’s mother and her boyfriend


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testified to the contrary.         The mother’s boyfriend also

testified that he had seen Engelby in Child’s room that night,

at some time between 12:30 and 2:00 a.m., laying down and

illuminated by his cell phone.

            Furthermore, Dr. Bivens’ testimony was helpful to the

jury in understanding aspects of Child’s behavior that might

otherwise seem inexplicable to a lay juror.             In Batangan, we

were persuaded that the expert witness had impermissibly

bolstered the complaining witness’s credibility, in part,

because the expert’s “testimony regarding general principles of

social or behavioral science of a child victim in a sexual abuse

case was so minuscule, [that] we [were] convinced that his

testimony could not have assisted the jury” in understanding the

general dynamics of child sexual assault.             71 Haw. at 562, 799

P.2d at 54 (emphasis added).         We continued by explaining:

            In fact, Dr. Bond several times asked the jury to
            recall their own childhood days and suggested that
            Complainant’s actions were actions of normal children
            under similar circumstances. When queried about
            retractions of accusations – a common behavior
            recognized as unique to intrafamily sex abuse – Dr.
            Bond admitted that he lacked data on the subject.

Id.

            In contrast to the expert witness in Batangan, whose

testimony could not be construed as helpful to a jury, here, Dr.

Bivens provided extensive testimony about the topics he was

explicitly authorized to discuss pursuant to the circuit court’s

rulings, including the topics of delayed reporting, tunnel
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memory, and children’s reactions to sexual assault events.

           Moreover, to the extent Dr. Bivens went beyond those

subjects in discussing children’s general credibility, he did so

only after Engelby inquired about that issue during cross-

examination.    If Engelby believed Dr. Bivens’ answers on cross-

examination were non-responsive or otherwise inappropriate, he

should have objected and moved to strike those answers.

Similarly, when Dr. Bivens responded to additional questions on

re-direct examination, Engelby should have objected if he

believed the questions or responses exceeded the scope of his

cross-examination or were otherwise inappropriate.

C.   Engelby’s Other Claims of Error

           With respect to the remaining issues raised by

Engelby, we addressed similar issues in State v. McDonnell, a

case that was pending before this court at the time Engelby

applied for certiorari.       141 Hawaiʻi 280, 409 P.3d 684.

McDonnell involved a defendant who sexually assaulted his minor

daughter in their home over a period of several months.               See id.

We held that Dr. Bivens’ testimony on the general dynamics of

child sexual assault was admissible because it “helped explain

the interaction between [the complaining witness] and [the

defendant], and its probative value outweighed its prejudicial

effect.”   Id. at 283, 409 P.3d at 687.

           Specifically, we held that Dr. Bivens’ testimony on

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delayed and incomplete disclosure, tunnel memory, and the

general abuse process was relevant; that Dr. Bivens’ testimony

explaining the behaviors of child sexual assault victims did not

usurp the function of the jury or unduly prejudice the

defendant; and that Dr. Bivens’ testimony on the general process

of child sexual assault did not improperly profile the defendant

as a child molester.      Id. at 290-98, 409 P.3d at 694-702.

           In accord with our reasoning in McDonnell, we reject

Engelby’s other claims of error.          Dr. Bivens’ testimony – which,

as in McDonnell, discussed delayed disclosure, tunnel memory,

the general abuse process, and behaviors of child sexual assault

victims – was both relevant and helpful to the jury, and neither

usurped the function of the jury nor resulted in undue

prejudice.   Furthermore, although Dr. Bivens’ testimony included

general quantitative assertions, such as sexual abuse “most

often” occurs in a preexisting nonsexual relationship and “most

often” in the home of the child or the abuser, such testimony

did not improperly profile Engelby as a molester.             See

McDonnell, 141 Hawaiʻi at 297, 409 P.3d at 701 (explaining that

“Dr. Bivens could have testified generally that abusers are

often related to their victims and that such abuse normally

occurs in the home”). 7


7    Dr. Bivens’ testimony here is therefore distinguishable from his
                                                           (continued…)


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                               V.   CONCLUSION

            For the foregoing reasons, we affirm the ICA’s

judgment on appeal, and affirm Engelby’s convictions and

sentence.

Phyllis J. Hironaka                        /s/ Mark E. Recktenwald
for petitioner
                                           /s/ Paula A. Nakayama
Sonja P. McCullen
for respondent                             /s/ Sabrina S. McKenna




testimony in McDonnell, where he testified that 85 percent of child molesters
had a preexisting relationship with the child, and that two studies showed
that “100 percent of incest offenders report molesting in their own home.”
141 Hawaiʻi at 297, 409 P.3d at 701. We held that such testimony was unfairly
prejudicial to the defendant because it carried the risk of improperly
profiling the defendant as a child molester, but that it was harmless in
light of the proceedings as a whole. Id. at 297-98, 409 P.3d at 701-02.
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