129 Nev., Advance Opinion 90
IN THE SUPREME COURT OF THE STATE OF NEVADA
NOE ORTEGA PEREZ, No. 55817
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. NOV 2 7 2013
TRACIE K LINDEMAN I
CLEK. CV SUPREME cqup
BY
DEPLIPTICERK
Appeal from a judgment of conviction, pursuant to ajury
verdict, of six counts of lewdness with a child under 14 years of age and
two counts of sexual assault of a minor under 14 years of age. Eighth
Judicial District Court, Clark County; Michelle Leavitt, Judge.
Affirmed.
David Phillips, Las Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and James R. Sweetin, Deputy District Attorney, Clark County,
for Respondent.
Robert Arroyo and Amy Coffee, Las Vegas,
for Amicus Curiae Nevada Attorneys for Criminal Justice.
Richard A. Gammick and Terrence P. McCarthy, Reno,
for Amicus Curiae Nevada District Attorneys Association.
SUPREME COURT
OF
NEVADA
(0) 1947A
fiAblishers. e4' 13 -3 5 .8 5o
BEFORE THE COURT EN BANC.
OPINION
By the Court, PARRAGUIRRE, J.:
In this appeal, we are concerned with the admissibility of
expert testimony related to sex offender grooming behavior and the effect
that behavior has on a child victim. "Grooming" generally describes
conduct or actions by an offender that are undertaken to develop a bond
between the victim and offender and, ultimately, make the victim more
receptive to sexual activity with the offender. In particular, we address
whether (1) the district court abused its discretion in concluding that the
State's expert was qualified to offer grooming behavior testimony, (2) the
expert's testimony improperly vouched for the complaining witness's
testimony, and (3) the expert witness notice was insufficient.
As a general matter, we hold that whether expert testimony
on grooming behavior is admissible in a case involving sexual conduct with
a child must be determined on a case-by-case basis, considering the
requirements that govern the admissibility of expert testimony. Those
requirements include whether the particular expert is qualified to testify
on the subject, whether the testimony is relevant and the product of
reliable methodology such that it will assist the jury to understand the
evidence or to determine a fact in issue, and whether the testimony is
limited in scope to matters that are within the expert's specialized
knowledge. Applying those considerations, we conclude that the district
court did not abuse its discretion in admitting the expert testimony in this
case. We further conclude that the expert's testimony did not improperly
SUPREME COURT
OF
NEVADA
2
(0) 1947A
vouch for the complaining witness's testimony and that the State's pretrial
notice was sufficient. We therefore affirm the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Appellant Noe Perez was convicted of six counts of lewdness
with a minor under 14 years of age and two counts of sexual assault of a
minor under 14 years of age, involving his niece. At trial, the victim
testified that her relationship with Perez began to change after she turned
13. He began calling her more and complimenting her, as well as winking
at her when they attended the same parties. After driving her and a
couple home one evening, Perez kissed the victim and touched her thigh
when they were alone. He later called her and told her about a dream he
had about undressing her and said that he was uncomfortable when she
was close to other boys.
In September 2008, Perez invited the victim to accompany him
and his wife, Maria, to Las Vegas, Nevada, for a concert. Perez's own
children did not come on this trip. On the first evening, Perez played with
the victim's feet under the table at dinner, hugged her while they walked
along the street, and kissed the victim while Maria was in the shower.
The next day, Perez again played with the victim's feet while she was
swimming in the hotel pool, and the victim indicated that she wanted to
spend time alone with Perez.
In the hotel room, Perez began kissing the victim after Maria
had entered the bathroom and turned on the shower. Perez undressed the
victim, kissed her breasts, rubbed her vaginal area, and penetrated her
vagina with his fingers and tongue. Maria emerged from the shower and
began screaming at Perez and the victim and slapping the victim. Hotel
SUPREME COURT
OF
NEVADA
3
(0) 1947A
security arrived shortly thereafter, and the victim told them that Perez
had pinned her down and touched her. The victim testified that she told
security that Perez forced her down because she feared Maria would leave
her in Las Vegas. While Maria's reports to hotel security and responding
officers were consistent with the victim's testimony, Maria testified that
she only saw Perez kissing the victim, who was fully clothed.
Dr. John Paglini testified that the grooming relationship is a
deceptive relationship with the intent of sexual contact. Dr. Paglini
testified that an uncle touching his niece's foot under a table, winking at
her, calling her and talking about how pretty she was, pulling her close
while walking, touching her feet and arm in a swimming pool, touching
her thigh, kissing her, showing concern for her spending time with other
suitors, telling her about a dream in which he undressed her, and inviting
her to attend an out-of-town concert with him could be construed as
grooming behavior. In particular, he noted that showing concern for her
spending time with other boys acts to isolate her from other intimate
relationships and telling her about the dream is a method of probing her
resistance to engaging in sexual behavior. The ultimate goal of such
behavior is to establish a trusting relationship that lowers the child's
resistance to engaging in sexual activity. Dr. Paglini also testified that
whether a victim discloses abuse "is based upon the relationship to the
perpetrator, the impact on the family and also the perceptions of the
alleged victim regarding the people they're being interviewed on." Dr.
Paglini noted that grooming typically results in lower rates of abuse
disclosure.
SUPREME COURT
OF
NEVADA
4
(0) 1947A
DISCUSSION
The issues raised in this appeal involve expert testimony on
"grooming" behavior. 1 The term "grooming" describes when an offender
prepares a child for victimization by "getting close to [the] child, making
friends with the child, becoming perhaps a confidant of the child, [and]
getting the child used to certain kinds of touching, [and] play activities."
State v. Stafford, 972 P.2d 47, 49 n.1 (Or. Ct. App. 1998) (quoting trial
expert testimony). It can also include gifts, praises, and rewards, id.;
State v. Hansen, 743 P.2d 157, 160 (Or. 1987), superseded by statute on
other grounds as stated in Powers v. Cheeley, 771 P.2d 622, 628-29 n.13
(Or. 1989), as well as exposure to sexual items and language, People v.
Ackerman, 669 N.W.2d 818, 825 (Mich. Ct. App. 2003). This conduct is
undertaken to develop an emotional bond between the victim and offender,
Hansen, 743 P.2d at 160; Morris v. State,
361 S.W.3d 649, 651 (Tex. Crim.
App. 2011), and may even lead the victim to feel responsible for his or her
own abuse, Stafford, 972 P.2d at 49 n.1. The offender engages in
grooming activity to reduce the child's resistance to sexual activity and
reduce the possibility that the victim will report the abuse. Ackerman,
669 N.W.2d at 824-25.
Expert qualification
Perez contends that the State failed to present sufficient
evidence of Dr. Paglini's qualifications to testify as an expert. He
1 We invited the participation of amici curiae Nevada Attorneys for
Criminal Justice (NACJ) and Nevada District Attorneys Association
(NDAA) concerning the relevance and applicability of expert testimony
about sex offender grooming.
SUPREME COURT
OF
NEVADA
5
(0) 1947A
therefore argues that the district court abused its discretion in allowing
Dr. Paglini to testify as an expert on grooming activity.
"The threshold test for the admissibility of testimony by a
qualified expert is whether the expert's specialized knowledge will assist
the trier of fact to understand the evidence or determine a fact in issue."
Townsend v. State, 103 Nev. 113, 117,
734 P.2d 705, 708 (1987); see NRS
50.275 ("If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by special knowledge, skill, experience,
training or education may testify to matters within the scope of such
knowledge."). Expert testimony is admissible if it meets the following
three requirements, which we have described as the "qualification,"
"assistance," and "limited scope" requirements:
(1) [the expert] must be qualified in an area of
"scientific, technical or other specialized
knowledge" (the qualification requirement); (2) his
or her specialized knowledge must "assist the trier
of fact to understand the evidence or to determine
a fact in issue" (the assistance requirement); and
(3) his or her testimony must be limited "to
matters within the scope of [his or her specialized]
knowledge" (the limited scope requirement).
Hallmark v. Eldridge, 124 Nev. 492, 498,
189 P.3d 646, 650 (2008) (second
alteration in original) (quoting NRS 50.275); see also Higgs v. State, 126
Nev. „
222 P.3d 648, 658 (2010). We review a district court's
decision to allow expert testimony for an abuse of discretion. Hallmark,
124 Nev. at 498,
189 P.3d at 650. As explained below, we conclude that
Dr. Paglini's testimony satisfied the three requirements identified in
Hallmark.
6
Qualification requirement
Perez argues that there was nothing to indicate that Dr.
Paglini had sufficient training or experience to assert an opinion as to the
effect of grooming behaviors on the young victim. Further, Perez
complains that this was the first time that Dr. Paglini had testified
regarding grooming behaviors and he failed to establish that his findings
were subjected to peer review or that he had received specialized training
in the area of sex offender grooming behaviors. Amicus NACJ asserts that
the record is insufficient to support a conclusion that Dr. Paglini was
qualified to testify to grooming techniques as he had not published any
scholarly articles or testified regarding grooming techniques in any
proceeding prior to Perez's trial.
We have identified several nonexclusive factors that are useful
in determining whether a witness "is qualified in an area of scientific,
technical, or other specialized knowledge" and therefore may testify as an
expert. Hallmark, 124 Nev. at 499,
189 P.3d at 650. Those factors include
"(1) formal schooling and academic degrees, (2) licensure, (3) employment
experience, and (4) practical experience and specialized training." Id. at
499,
189 P.3d at 650-51 (footnotes omitted).
We conclude that Dr. Paglini's academic career and
professional experience were sufficient to qualify him to testify as an
expert on grooming behaviors and the effects of such behaviors on victims
of sexual abuse. Dr. Paglini was formally educated in psychology. He held
a bachelor's degree in psychology and a doctorate degree in clinical
psychology. For the ten years prior to trial, Dr. Paglini "worked with
family courts [conducting] child custody evaluations, dealing with the
SUPREME COURT
OF
NEVADA
7
(0) 1947A
issues of domestic violence or sex abuse allegations." During the eight
years prior to trial, he conducted over 1,000 psychosexual evaluations on
sex offenders. In conducting those evaluations, Dr. Paglini considered
"variables like sex offending history, substance abuse problems, previous
criminal problems. . . [and] the relationship of the offender and the
victim." Thus, he spent the better part of his career studying the
relationships between victims and offenders. In looking at these
relationships, Dr. Paglini studied whether grooming by the offender
occurred. Based on his formal schooling and academic degrees and his
employment and practical experience, Dr. Paglini possessed the
knowledge or experience necessary to render an opinion on grooming
behaviors and the effects of such behaviors on victims of sexual abuse. See
Morris, 361 S.W.3d at 666-67 ("A person can, through his experience with
child-sex-abuse cases gain superior knowledge regarding the grooming
phenomenon."); see also People v. Atherton, 940 N.E.2d 775, 783, 790 (Ill.
App. Ct. 3d 2010) (child welfare supervisor who had worked as a sexual
abuse therapist for over six years qualified to testify about child-sexualabuse-accommodation syndrome); Ackerman, 669 N.W.2d at 824, 825
(psychotherapist with master's degree in social work and who works with
sex offenders and victims qualified); State v. Quigg, 866 P.2d 655, 661
(Wash. Ct. App. 1994) (expert with 13 years' experience in victims services
unit, degree in child abuse and neglect, and numerous hours in intensive
training and specialized workshops on child abuse, who had also
conducted interviews with 3,000 victims qualified to testify about
grooming). Other jurisdictions have concluded that witnesses with less
academic preparation, see Haycraft v. State, 760 N.E.2d 203, 210-11 (Ind.
SUPREME COURT
OF
NEVADA
8
(0) I947A
Ct. App. 2001) (detective with experience investigating sexual abuse cases
and who attended training on sexual abuse was qualified as a "skilled
witness" to discuss grooming); People v. Petri, 760 N.W,2d 882, 888 (Mich.
Ct. App. 2008) (detective with 15 years of law enforcement experience and
who received training in forensic interviews of children would have
qualified to offer testimony about grooming), or less experience than Dr.
Paglini, see Atherton, 940 N.E.2d at 790, were sufficiently qualified to offer
expert testimony on grooming or the effect of abuse on child victims.
We next examine whether Dr. Paglini's grooming testimony
satisfied the "assistance" requirement of NRS 50.275.
Assistance requirement
The "assistance" requirement asks whether the expert's
"specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue." NRS 50.275. The "assistance"
requirement has two components: whether the testimony is (1) relevant
and (2) the product of reliable methodology. Hallmark, 124 Nev. at 500,
189 P.3d at 651 ("An expert's testimony will assist the trier of fact only
when it is relevant and the product of reliable methodology" (footnote
omitted)). Although Perez only challenged Dr. Paglini's qualifications, at
our invitation, amici briefed the relevance of expert testimony about sex
offender grooming.
Relevance
Evidence is relevant when it tends "to make the existence of
any fact that is of consequence to the determination of the action more or
less probable." NRS 48.015. Generally, all relevant evidence is
admissible. NRS 48.025. However, relevant evidence is not admissible if
SUPREME COURT
OF
NEVADA
9
(0) 1947A
its probative value is substantially outweighed by the danger of unfair
prejudice or misleading the jury, or if it amounts to needless presentation
of cumulative evidence. NRS 48.035.
Amicus NACJ contends that Dr. Paglini's testimony was not
particularly probative because the issue for the jury to decide was whether
Perez committed the charged acts, not his intent during the purported
grooming activity. Further, NACJ argues, what probative value the
testimony may have had was outweighed by the danger of unfair prejudice
as the testimony compared Perez's behavior to the known behavior of sex
offenders and created a distinct impression that Perez was a sex offender. 2
Amicus NDAA argues against a broad rule that would prohibit expert
testimony about sex offender grooming and instead urges a case-by-case
approach.
We conclude that expert testimony on grooming behaviors and
its effect on child victims of sexual abuse may be relevant depending on
the circumstances of the case. Dr. Paglini's testimony, under the
circumstances in this case, was relevant. The victim testified that Perez
engaged in seemingly innocuous flirtatious behavior and sexual
discussions that finally escalated into more overt sexual contact, which is
2 The NACJ also contends that the State should not have been able
to introduce an expert opinion as to Perez's mens rea. We disagree. See
NRS 50.295 ("Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact"); Townsend, 103 Nev. at 118,
734 P.2d at 708
(noting that an expert may give an opinion on issues that embrace the
ultimate issue to be decided by the trier of fact so long as it is within scope
of expertise).
SUPREME COURT
OF
NEVADA
10
(0) 1947A
not unlike a dating relationship. This trajectory of behavior seems to
indicate even to the lay juror a definite design on engaging in sexual
conduct with the victim and may suggest that expert testimony would be
unnecessary to explain his designs. See United States v. Raymond, 700 F.
Supp. 2d 142, 150-51 (D. Me. 2010) ("Expert' testimony about matters of
common sense is not helpful to a jury and carries the risk of unfair
prejudice . ."). However, it was not immediately apparent how Perez's
behavior affected the victim. Notably, the victim appeared to acquiesce to
the abuse and later gave inconsistent reports about that abuse. The
victim's conduct leading up to the abuse and her inconsistent reports after
the abuse could have been influenced by Perez's prior fawning, the fear of
Maria's reaction to the conduct, and later counseling. Therefore, Dr.
Paglini's testimony that the goal of grooming is to reduce the resistance to
the abuse as well as the likelihood of disclosure was beneficial to the jury
in evaluating the evidence of abuse and assessing the victim's credibility.
See United States v. Hitt, 473 F.3d 146, 158-59 (5th Cir. 2006) (finding no
abuse of discretion by district court admission of expert grooming
testimony to explain "return-to-the-abuser behavior"); Jones v. United
States, 990 A.2d 970, 978 (D.C. 2010) ("The testimony helped to explain
not only how a child molester could accomplish his crimes without
violence, but also why a child victim would acquiesce and be reluctant to
turn against her abuser."); Howard v. State, 637 S.E.2d 448, 451 (Ga. Ct.
App. 2006) (admitting evidence of grooming, even if it incidentally places
defendant's character in issue, to explain victim's unwillingness to disclose
abuse); Ackerman, 669 N.W.2d at 825-26 (recognizing that most jurors
lack knowledge of the conduct of sexual abusers and thus expert testimony
SUPREME COURT
OF
NEVADA
11
(0) 1947A
regarding grooming behavior was helpful); State v. Berosik, 214 P.3d 776,
782-83 (Mont. 2009) (admitting expert testimony about grooming as
relevant to assessing victim credibility); see also Smith v. State, 100 Nev.
570, 572-73,
688 P.2d 326, 327 (1984) (holding that expert testimony about
family dynamics related to sexual abuse is relevant to help the jury
understand "superficially unusual behavior of the victim and her mother").
As to unfair prejudice, Dr. Paglini's testimony did not stray
beyond the bounds set by this court and other jurisdictions for expert
testimony. Dr. Paglini generally addressed how grooming occurs and its
purpose. He then offered insight in the form of hypotheticals that were
based on Perez's conduct and indicated that such conduct was probably
grooming behavior. See Shannon v. State, 105 Nev. 782, 787,
783 P.2d
942, 945 (1989) (providing that experts can testify to hypotheticals about
victims of sexual abuse and individuals with pedophilic disorder). He did
not offer an opinion as to the victim's credibility or express a belief that
she had been abused. See Townsend, 103 Nev. at 118-19,
734 P.2d at 708-
09. Dr. Paglini's testimony therefore meets the first component of the
"assistance" requirement.
Reliability of methodology
This court has articulated five factors to use in evaluating the
second component of the "assistance" requirement—whether an expert's
opinion is the product of reliable methodology. These factors include
whether the opinion is (1) within a recognized field
of expertise; (2) testable and has been tested; (3)
published and subjected to peer review; (4)
generally accepted in the scientific community (not
always determinative); and (5) based more on
SUPREME COURT
OF
NEVADA
12
(0) 1947A
particularized facts rather than assumption,
conjecture, or generalization.
Hallmark, 124 Nev. at 500-01,
189 P.3d at 651-52 (footnotes omitted).
These "factors may be afforded varying weights and may not apply equally
in every case." Higgs v. State, 126 Nev. „ 222 P.3d 648, 660 (2010).
Considering the applicable factors, we conclude that Dr.
Paglini's opinion was the product of reliable methodology. In particular,
Dr. Paglini practices in a recognized field of expertise, see Ackerman, 669
N.W.2d at 824, 825 (noting that psychotherapist who works with sex
offenders is "clearly qualified in a recognized discipline"); Morris, 361
S.W.3d at 656 (recognizing study of behavior of sex offenders to be a
legitimate field of expertise), and he testified about a phenomenon that
courts have recognized as generally accepted in the scientific community,
see Morris, 361 S.W.3d at 668 (concluding that grooming as a phenomenon
exists); see also State v. Stafford, 972 P.2d 47, 54 (Or. Ct. App. 1998)
(noting that observations about grooming behavior not drawn from testing
or scientific methodology but derived from personal observations made in
light of education, training, and experience constituted admissible
evidence based on specialized knowledge); Bryant v. State, 340 S.W.3d 1, 9
(Tex. Crim. App. 2010) (same). Although he testified about the general
nature of grooming, his testimony indicated that he had based this on
specific facts observed in his practice and applied it to the specific
circumstances of this case. However, the record does not indicate that Dr.
Paglini's opinion had been subject to peer review or was testable or had
been tested. While Dr. Paglini's methodology did not meet two of the
Hallmark factors, those factors are not as weighty given the nature and
SUPREME COURT
OF
NEVADA
13
(0) 1947A
subject matter of his opinion testimony. See Higgs, 126 Nev. at , 222
P.3d at 660.
Finally, we must determine if Dr. Paglini's expert opinion was
limited to the area of his expertise. Hallmark, 124 Nev. at 498,
189 P.3d
at 650.
Limited scope requirement
Perez argues that Dr. Paglini's testimony about neurological
development was outside the scope of his proposed testimony and that the
State failed to show that he had received neurological training. We agree.
Dr. Paglini's testimony, for the most part, proceeded within the scope of
his expertise. He testified about the phenomenon of grooming and its
effect on the victim. However, during a digression, Dr. Paglini testified
regarding adolescent neurological development. As Dr. Paglini had not
demonstrated any specialized knowledge in neuroscience or adolescent
neurological development, this part of his testimony exceeded the scope of
his specialized knowledge. See Kelly v. State, 321 S.W.3d 583, 600-01
(Tex. Crim. App. 2010) (concluding that expert who lacked medical
training was not qualified to testify about grooming when her testimony
was predicated on detailed medical information). However, Perez did not
object to this digression on the basis that it exceeded the scope of Dr.
Paglini's qualifications. Because Dr. Paglini's digression was brief, as
compared to the whole of his testimony, we conclude that it did not
amount to plain error. See Gallego v. State, 117 Nev. 348, 365,
23 P.3d
227, 239 (2001) (reviewing for plain error where party fails to object at
trial), abrogated on other grounds by Nunnery v. State, 127 Nev. ,
n.12, 263 P.3d 235, 253 n.12 (2011).
SUPREME COURT
OF
NEVADA
14
(0) 1947A
Vouching
Perez also contends that Dr. Paglini's testimony impermissibly
bolstered the victim's testimony and therefore the district court abused its
discretion in admitting it. We disagree.
A witness may not vouch for the testimony of another or
testify as to the truthfulness of another witness. Lickey v. State, 108 Nev.
191, 196,
827 P.2d 824, 827 (1992). Although an expert may not comment
on whether that expert believes that the victim is telling the truth about
the allegations of abuse, Townsend, 103 Nev. at 118-19,
734 P.2d at 709;
see also Lickey, 108 Nev. at 196,
827 P.2d at 827 (noting that expert
commentary on the veracity of the victim's testimony invades the
prerogative of the jury), Nevada law allows an expert to testify on the
issue of whether a victim's behavior is consistent with sexual abuse, if that
testimony is relevant, see Townsend, 103 Nev. at 118,
734 P.2d at 708;
NRS 50.345 ("In any prosecution for sexual assault, expert testimony is
not inadmissible to show that the victim's behavior or mental or physical
condition is consistent with the behavior or condition of a victim of sexual
assault.").
Dr. Paglini did not vouch for the victim's veracity. He offered
a general opinion about the effect of grooming on a child victim of sexual
abuse. He did not offer a specific opinion as to whether he believed that
the victim in this case was telling the truth. "[T]he fact that such evidence
is incidentally corroborative does not render it inadmissible, since most
expert testimony, in and of itself, tends to show that another witness
either is or is not telling the truth." Davenport v. State, 806 P.2d 655, 659
(Okla. Crim. App. 1991); see Townsend, 103 Nev. at 118-19, 734 P.2d at
SUPREME COURT
OF
NEVADA
15
(0) 1947A
709 (acknowledging that "expert testimony, by its very nature, often tends
to confirm or refute the truthfulness of another witness" but that relevant
testimony by a qualified expert within that expert's field of expertise is
admissible "irrespective of the corroborative or refutative effect it may
have on the testimony of a complaining witness" so long as the expert does
not "directly characterize a putative victim's testimony as being truthful
or false"); Bryant, 340 S.W.3d at 10 ("The information about grooming
could have influenced the jury's credibility determinations, but only in an
indirect fashion."). Therefore, the district court did not abuse its
discretion in admitting the testimony.
Sufficiency of expert witness notice
Last, Perez contends that the State's notice of expert
testimony was inadequate and therefore the district court should have
precluded the State from calling Dr. Paglini. We disagree.
The State filed its notice of witnesses over one month before
the start of trial. See NRS 174.234(2) (requiring State to provide notice of
expert witnesses at least 21 days prior to trial). To comply with NRS
174.234(2), the notice had to include: "(a) A brief statement regarding the
subject matter on which the expert witness is expected to testify and the
substance of the testimony; (b) A copy of the curriculum vitae of the expert
witness; and (c) A copy of all reports made by or at the direction of the
expert witness." The State's notice in this case indicated that Dr. Paglini
would "testify as to grooming techniques used upon children" and included
his curriculum vitae. Dr. Paglini's curriculum vitae indicated that he had
conducted sexual offender assessments on adult offenders and sexual
offense and violence risk assessments on juveniles. The State did not
SUPREME COURT
OF
NEVADA
16
(0) 1947A
submit any reports produced by Dr. Paglini because he did not prepare
any reports related to the litigation. Perez's brief argument does not
allege that the State acted in bad faith or that his substantial rights were
prejudiced because the notice did not include a report or more detail about
the substance of Dr. Paglini's testimony. See Mitchell v. State, 124 Nev.
807, 819,
192 P.3d 721, 729 (2008). Under the circumstances, we discern
no abuse of discretion in allowing Dr. Paglini to testify. See
id. ("This
court reviews a district court's decision whether to allow an unendorsed
witness to testify for abuse of discretion.").
Having rejected Perez's challenges to the admission of Dr.
Paglini's testimony, we affirm the judgment of conviction. 3
V.S0
Parraguirre
J.
Hardesty
A rgeoskowsoor..410
J.
Saitta
3 We deny Perez's motion to strike NACJ's request for a remand for
additional supplementation of the record as moot.
17
DOUGLAS, J., with whom PICKERING, C.J., and CHERRY, J., agree,
concurring in part and dissenting in part:
I concur with the majority's conclusion that the admissibility
of expert testimony about grooming should be decided on a case-by-case
basis under NRS 50.275 and Hallmark v. Eldridge, 124 Nev. 492,
189 P.3d
646 (2008). However, such testimony should be admitted in rare
circumstances, and I disagree that this case warrants its admission. The
State did not introduce sufficient specific evidence that Dr. Paglini was
qualified to discuss grooming of child victims by sex offenders, and his
testimony did not assist the jury in understanding the victim's actions and
unfairly prejudiced Perez. I also disagree with the majority's conclusion
that the expert-witness notice was sufficient.
Admission of expert testimony
Expert testimony is admissible if it meets three requirements,
which we have described as the "qualification," "assistance," and "limited
scope" requirements:
(1) [the expert] must be qualified in an area of
"scientific, technical or other specialized
knowledge" (the qualification requirement); (2) his
or her specialized knowledge must "assist the trier
of fact to understand the evidence or to determine
a fact in issue" (the assistance requirement); and
(3) his or her testimony must be limited "to
matters within the scope of [his or her specialized]
knowledge" (the limited scope requirement).
Hallmark, 124 Nev. at 498,
189 P.3d at 650 (second alteration in original)
(quoting NRS 50.275); see also Higgs v. State, 126 Nev. , , 222 P.3d
648, 658 (2010). As I explain below, the State failed to put forth sufficient
SUPREME COURT
OF
NEVADA
(0) I947A
evidence to demonstrate that Dr. Paglini was qualified to offer expert
testimony and the testimony that he provided failed to assist the jury.
Expert qualifications
The majority concludes that Dr. Paglini's academic career and
professional experience were sufficient to qualify him to offer the
testimony on the grooming phenomenon. It notes that Dr. Paglini is a
clinical psychologist who had conducted child custody evaluations, pretrial
competency evaluations, death penalty evaluations, and psychosexual
evaluations. However, Dr. Paglini did not identify how many of his prior
evaluations involved child victims of sexual abuse or grooming, and he had
not written any treatises or articles on the phenomenon.
Dr. Paglini's principal qualification, according to his
testimony, was his work preparing "risk assessments" for use in
sentencing convicted sex offenders. "[I]t's my job as a psychologist. . . to
educate the judge on the history of the defendant, what their violent
history and sex offender history is" so the court can "understand what the
risk of reoffending is towards a community" in sentencing. Continuing,
Dr. Paglini testified, "You're looking at certain variables like sex offending
history . . . . Was there grooming involved, and what was the grooming?"
Notably absent from Dr. Paglini's testimony about his qualifications was
any reference to work with victims of grooming. Rather, the focus was—
and remained—on what sex offenders do that can constitute grooming.
Grooming testimony is permissible in certain child-sex-abuse
cases, normally to explain the impact the grooming had on the victim's
behavior in terms of delayed reporting and the like. See NRS 50.345
("expert testimony is not inadmissible" in sexual assault cases when
SUPREME COURT
OF
NEVADA
(0) 1947A
offered to show "the behavior or condition of a victim of sexual assault").
But here, the record does not show Dr. Paglini's qualification to address
the impact on the victim of grooming activity. He thus did not
demonstrate with sufficient specificity that his formal schooling,
employment experience, or practical experience qualified him to testify
about grooming and its impact on the victim in this case. See Hallmark,
124 Nev. at 499,
189 P.3d at 650-51; see also NRS 50.275; Jones v. United
States, 990 A.2d 970, 975, 978-80 (D.C. 2010) (former FBI agent who
studied 400 to 500 cases of sexual abuse involving teenage victims as well
as published writing in manuals on sexual abuse and the behavior of child
molesters qualified); Morris v. State, 361 S.W.3d 649, 668 (Tex. Crim. App.
2011) (recognizing that law enforcement officer "with a significant amount
of experience with child sex abuse cases may be qualified" to discuss
grooming).
Although this court has not specified the requirements for
admitting expert testimony about grooming, I would have preferred a
more thorough record for reviewing the district court's exercise of
discretion, including the link between his expertise and the subject matter
of the testimony being offered to assist the jury in this case.
Assistance
The record further fails to demonstrate that Dr. Paglini's
testimony was sufficiently relevant to have assisted the jury. See NRS
50.275 (requiring that expert testimony assist the jury to "understand the
evidence or to determine a fact in issue"); Hallmark, 124 Nev. at 500,
189
P.3d at 651 (requiring that expert testimony be "relevant and the product
of reliable methodology" (footnote omitted)). The majority notes that
SUPREME COURT
OF
NEVADA
3
(0) 1947A
Perez's behavior and conduct with the victim began as mildly flirtatious
and escalated to the point of being overtly sexual. I agree with the
majority that Perez's actions needed no expert explanation in and of
themselves as his designs for engaging in sexual conduct with the victim
were evident from the escalating nature of his actions. However, I part
from the majority's conclusion that expert testimony was necessary to
explain the effect of Perez's actions on the victim.
The testimony was not of assistance because the victim could,
and in fact did, explain how Perez's conduct allayed her resistance to his
abuse. The victim, who was 14 years old at the time of trial, testified
about events that occurred only the year before, described how the
grooming activity made her feel, and acknowledged that she developed
feelings for Perez. Further, she did not resist Perez's physical advances
because of these feelings. In addition, she explained her hesitance to fully
and accurately disclose the nature of Perez's abuse. Remarkably, her
resistance to disclosing the abuse turned on fear of her aunt's reaction, not
the effects of Perez's grooming. Because the victim explained during her
testimony that Perez's conduct ingratiated himself to her and, to some
extent, beguiled her, see Morris, 361 S.W.3d at 652, 667 (describing
grooming behavior as "really no different from behavior that occurs in
high school dating"), the expert testimony was unnecessary, see United
States v. Raymond, 700 F. Supp. 2d 142, 152 (D. Me. 2010) (noting that
expert testimony on motivation of child victim is not required when victim
can testify about her motivations); State v. Braham, 841 P.2d 785, 790
(Wash. Ct. App. 1992) ("Surely, expert opinion is not necessary to explain
that an adult in a 'close relationship' with a child will have greater
SUPREME COURT
OF
NEVADA
4
(0) I947A
opportunity to engage in the alleged sexual misconduct."). While this
court tolerates expert testimony that incidentally bolsters another
witness's testimony, see Townsend v. State, 103 Nev. 113, 118-19,
734 P.2d
705, 709 (1987) (recognizing that expert testimony may have a
corroborative effect on the complaining witness's testimony), the testimony
here primarily served to augment the victim's testimony.
As the expert testimony was not probative with regard to the
victim's actions, it became unfairly prejudicial in how it characterized
Perez's behavior. Unnecessary expert testimony carries the risk of unduly
influencing the jury:
Expert testimony on a subject that is well within
the bounds of a jury's ordinary experience
generally has little probative value. On the other
hand, the risk of unfair prejudice is real. By
appearing to put the expert's stamp of approval on
the government's theory, such testimony might
unduly influence the jury's own assessment of the
inference that is being urged.
United States v. Montas, 41 F.3d 775, 784 (1st Cir. 1994); see also
Raymond, 700 F. Supp. 2d at 150 (noting that expert witness testimony
about matters in the jury's common sense "invites a toxic mixture of
purported expertise and common sense"). Although expert insight into the
effect of grooming behavior, i.e., the victim's emotional dependence on the
abuser, may have appeared relevant to understanding the victim's
reluctance to come forward, testimony about the defendant's prior bad
acts, which may have fostered that emotional dependence, did not explain
the victim's behavior and carried a significant risk of unfair prejudice to
the defendant by characterizing his prior actions as similar to those of
SUPREME COURT
OF
NEVADA
(0) 1947A
other sex offenders. See State v. Hansen, 743 P.2d 157, 160-61 (Or. 1987),
QS' superseded on other grounds by Or. Evidence Code R. 103A as stated in
Powers v. Cheely, 771 P.2d 622, 628 n.13 (Or. 1989). Thus, where expert
testimony addresses a defendant's prior bad acts, "[c]are must be taken in
order that prior acts evidence is not bundled into an official-sounding
theory and coupled with expert testimony in order to increase its apparent
value in demonstrating a 'plan' or malevolent intent by the defendant."
State v. Coleman, 276 P.3d 744, 750 (Idaho Ct. App. 2012).
Apart from his testimony about the impulsivity of adolescents
due to lack of cortical function in the frontal lobes of the brain—testimony
the majority correctly concludes Dr. Paglini was not qualified to give—Dr.
Paglini said very little about grooming's impact on victim behavior that,
left unexplained, would confuse the jury. Rather, Dr. Paglini was asked to
define grooming and then to answer a series of purported hypotheticals,
such as, "You have a situation of a 13-year-old niece who had known her
33-year-old uncle her whole life and had seen him on a regular basis,
would the following conduct over about a three and four month period
potentially constitute grooming activity? First touching the niece's foot
under the table at family parties or winking at the niece." There follows a
series of hypothetical questions, each one identifying something the
defendant did in relation to the victim, such as calling her, objecting to her
having boyfriends, and concluding it might be grooming. Such testimony
exceeded permissible bounds when the prosecutor
tailored the hypothetical questions to include facts
concerning the abuse that occurred in this
particular case. [It] went beyond explaining
victim behavior that might be beyond the ken of a
SUPREME COURT
OF
NEVADA
6
(0) 1947A
jury, and had the prejudicial effect of implying
that the expert found the testimony of this
particular claimant to be credible.
People v. Williams, 987 N.E.2d 260, 263 (N.Y. 2013); see State v.
McCarthy, 283 P.3d 391, 394-95 (Or. App. 2012).
Here, Dr. Paglini focused on Perez's uncharged bad (and, in
some instances, perhaps innocent) acts and characterized them as
motivated purely by his intent to sexually abuse his niece. The testimony
carried a significant risk that the jury would "make the quick and
unjustified jump from his expert testimony about behavioral patterns to
guilt in a particular case that shows similar patterns." Raymond, 700 F.
Supp. 2d at 150; see also Hansen,
743 P.2d at 161 (noting that where
probative value is lacking, "the danger of unfair prejudice to defendant
from the unwarranted inference that, because defendant engaged in acts
that sexual child abusers engage in, she, too, is a sexual child abuser is
simply too great"). Thus, even if the testimony had some limited probative
value, NRS 48.015, that value was substantially outweighed by the danger
of unfair prejudice, NRS 48.035(1).
Considering that the State failed to elicit sufficient
information regarding Dr. Paglini's qualifications and the victim was able
to articulate how Perez's prior conduct affected her, I would conclude that
the district court abused its discretion in admitting this testimony. I
reiterate that I am not opposed to the use of expert testimony on grooming
in all cases. It certainly becomes more relevant where the grooming
activity in question is not clearly apparent or the child witness is of such
an age that he or she could not plainly express how that activity affected
SUPREME COURT
OF
NEVADA
7
(0) 1947A
him or her. Nevertheless, in that situation, the State must make a
sufficient showing that the expert has sufficient academic or professional
experience specifically related to grooming of child sexual assault victims.
Expert-witness notice
I further disagree with the majority's conclusion that the
expert-witness notice was adequate to inform the defendant of the extent
of testimony that the State sought to elicit. NRS 174.234(2) requires
pretrial disclosure of experts in cases involving gross misdemeanor or
felony charges. The disclosure must, at minimum, give "[a] brief
statement regarding the subject matter on which the expert witness is
expected to testify and the substance of the testimony." NRS 174.234(2)(a)
(emphasis added). The State's expert-witness disclosure designated Dr.
Paglini and stated he would "testify as to grooming techniques used upon
children," nothing more. This notice was far too brief, and while it
identified the subject matter of the testimony in the broadest of terms, it
did not sufficiently address the substance of that testimony. As noted
above, most of Dr. Paglini's direct testimony involved his opinion of
hypothetical scenarios posed by the prosecutor that mirrored the specific
facts of this case. The notice did not inform Perez that the State sought
Dr. Paglini's opinion on these matters. Further, the notice did not inform
the defense that Dr. Paglini had reviewed materials specific to this case,
including the victim's statements, reports, and transcripts of other
hearings. Therefore, Dr. Paglini's testimony about the specific conduct at
issue in this case ambushed Perez with expert testimony he was not
warned to be prepared to defend against.
SUPREME COURT
OF
NEVADA
8
(0) 1947A
Harmless error
I further conclude that the error in admitting Dr. Paglini's
testimony was not harmless. See Fields v. State, 125 Nev. 776, 784,
220
P.3d 724, 729 (2009) (reviewing erroneous admission of evidence for
harmless error). In considering whether the erroneous admission of
evidence had a "substantial and injurious effect or influence in
determining the jury's verdict," Tavares V. State, 117 Nev. 725, 732,
30
P.3d 1128, 1132 (2001) (quoting Kotteakos v. United States,
328 U.S. 750,
776 (1946)), this court considers "whether the issue of innocence or guilt is
close, the quantity and character of the error, and the gravity of the crime
charged." Big Pond v. State, 101 Nev. 1, 3,
692 P.2d 1288, 1289 (1985).
This case is impacted by all three factors. First, the question
of guilt or innocence is close. The testimony supporting the charges was
inconsistent. The victim's testimony was inconsistent with her initial
reports to hotel security and the police. Perez's wife, whose initial reports
to hotel security and the police supported the allegations of abuse, testified
consistently with Perez's admission that he kissed the victim. No physical
evidence supported the allegations. Second, the character of the error was
particularly damaging in this case. Expert testimony which rationalized
the inconsistencies in the victim's testimony had a significant impact on
the jury's determination of guilt. The problem was exacerbated by the
emphasis Dr. Paglini and the State placed on Dr. Paglini's work
conducting "risk assessments" on known sex offenders. Proceeding act by
act through hypothetical questions concerning the flirtations that
preceded the Las Vegas assault portrayed Perez as a sex offender, on a par
with the 1,000 other convicted sex offenders of risk to the community Dr.
SUPREME COURT
OF
NEVADA
9
(0) 1947A
Paglini had evaluated. But Perez was not on trial for grooming over a
three to four month period in California. The charges he faced involved a
single incident in a Las Vegas hotel room that occurred in the space of
time it took Perez's wife, the victim's aunt, to take a shower in the room's
adjacent bathroom. Lastly, Perez was charged with serious sexual offenses
against a minor, for which he has been sentenced to multiple life
sentences, with the possibility of parole after 35 years. See NRS
200.366(3)(c); NRS 201.230(2).
Accordingly, I would reverse the judgment of conviction and
remand for a new trial.
J.
I concur:
, C.J.
Pickering
SUPREME COURT
OF
NEVADA
10
(o) 1947A
