Bohnert v. State

CHARLES E. ORTH, Judge, Specially Assigned. The linchpin of this case is credibility. If the jury believed Alicia Rojas, a child under the age of 14 years, then Bradley William Bohnert would be guilty of abusing her and committing a sexual offense in the second degree upon her as charged. If the jury did not believe Alicia, Bohnert would be not guilty of those crimes.

See Wilson v. State, 261 Md. 551, 563-564 , 276 A.2d 214 (1971). As is apparent from the verdicts of guilty returned by the jury in the Circuit Court for Cecil County, the jury believed Alicia. Bohnert claims, however, that the jury could not be “fairly” convinced, id. at 564 , 276 A.2d 214 , because its province was ²⁶⁹ improperly invaded by an opinion of an “expert in the field of child sexual abuse,” that Alicia “was, in fact, a victim of sexual abuse,” which the trial judge permitted the jury to consider. Bohnert was twice tried before a jury in the Circuit Court for Cecil County and convicted of the charges at each trial.

The Court of Special Appeals reversed the judgments entered in the first trial in an unreported opinion, Bohnert v. State, No. 1235, September Term, 1984, filed 30 April 1985 {Bohnert I). It held that the trial court committed reversible error “in permitting the State to elicit testimony by [the child’s mother] that her daughter’s version of the events was the ‘whole truth,’ ” as this invaded the province of the jury. Id., slip opinion at 7-8. The intermediate appellate court further held that it was reversible error for the trial court to permit the “expert” to testify that Bohnert was the criminal agent, as this also invaded the jury’s province.

Id., slip opinion at 11-13. The appellate court concluded, however, that the trial court “did not abuse its discretion in permitting [the expert] to give [her] opinion [that the child had been, in fact, sexually abused], since it was within the scope of [the expert’s] area of expertise.” Id., slip opinion at 12. The Court of Special Appeals affirmed the judgments entered in the second trial in the face of contentions which included that the trial court erred in permitting the “expert’s” opinion to go before the jury. Bohnert v. State, No. 1264, September Term, 1986, filed 25 May 1987, unreported (Bo hnert II).

We granted Bohnert’s petition for the issuance of a writ of certiorari. The primary question he presents is whether the trial court erred in admitting into evidence the opinion of the “expert.” The circumstances leading to the indictment of Bohnert were these. Alicia, her brother, her mother, and Bohnert were living in an apartment consisting of a bedroom, a living room, a kitchen, and a bath. The children slept in the bedroom; the mother and Bohnert slept in the living room.

Alicia alleged that frequently during the year 1983, Bohnert would take her into the bathroom and cause her to engage ²⁷⁰ in acts, which as she described them, amounted to fellatio and anal intercourse. There was testimonial evidence tending to show that Alicia was not without improper motivations in her accusations against Bohnert. She first recounted her alleged experiences upon being confronted about a miniature whiskey bottle found in her possession at school. Also she may have been jealous of her mother’s relationship with Bohnert and was upset because Bohnert might take her mother away.

On two occasions she recanted her allegations to a friend of her mother, to a lawyer, and to an assistant state’s attorney. She said, however, that her denials were prompted by fear and by the probability that no one would believe her. She had been removed from the custody of her mother and reaffirmed her allegations only when she was permitted to return to her mother. Her graphic description of what occurred between Bohnert and her could be explained by the fact that she had perused sexually explicit magazines which she and her brother found in the apartment.

She initially testified that she could not remember anything that had happened between her and Bohnert, and eventually, after a short recess, testified, reluctantly it seemed, about what had occurred. It was clearly apparent that the State’s case hinged solely on the testimony of Alicia. There was no physical evidence to support her story. When she first told her mother what had occurred, the mother took her to a hospital to be examined.

The family’s physician testified that he reviewed the hospital report and that it did not disclose any evidence of abuse. Also, the physician had seen Alicia during the period the acts were alleged to have occurred. He did not see any signs of sexual abuse. Another physician testified that he had examined Alicia for alleged sexual abuse and “did not find any direct evidence of any new or old physical or genital injury or scarring.” There were no eyewitnesses to the alleged acts.

Alicia’s credibility was crucial. The State threw a social worker, Dora Temple, into the breach. It produced her to conclude its case in chief. She ²⁷¹ was a “Protective Service Investigator with the Department of Social Services.” After extensive examination of her qualifications, the court, over objection, ruled that she was an “expert in the field of child sexual abuse.” Early on, after her acceptance by the court as an “expert,” she was asked by the State whether she had “an opinion as to whether or not this child ... was sexually abused?” She answered that she had an opinion. 1 Asked what was her opinion, she replied: It’s my opinion, based on the information that Alicia was able to share with me, that she was, in fact, a victim of sexual abuse.

It appeared that as a result of a telephone call Temple conducted an investigation. It began with an interview of about an hour with Alicia at her school. She talked also to Alicia’s mother. Thereafter she spoke again to Alicia.

During the conversation Alicia “related certain information to [Temple], which [Temple] deemed appropriate and necessary in gathering for [her] investigation.” It was at that point and on that foundation, that Temple was asked: Based upon the information that you had occasion to gather from Alicia ..., [her mother] and from any other source, do you have an opinion as to whether or not this child, Alicia ..., was sexually abused? Her opinion followed. On cross-examination it was elicited that Temple’s opinion was based on what Alicia told her and on interviews with ²⁷² Alicia’s mother and “other people.” The “other people” were not identified. Temple asserted that her opinion, “more than likely,” would be the same “if [she] discovered that the child had told numerous persons on numerous occasions that this had never happened.” That it would be the same “if [she] discovered that this child admitted that she was scared to death that [Bohnert] was going to leave with her mother.” That it would be the same “if [she] discovered that the child was afraid to be left alone, if mother left with [Bohnert].” That it would be the same “if the hospital reports showed that there was no sign of sexual abuse.” Temple said she had seen the “front page” of the hospital report, “where it indicated there were no marks.” Temple admitted that she had not subjected Alicia “to any type of objective test.” She agreed that she believed that she had “a certain sense about children” so that it was not necessary to give them tests.

She declared: “I never use tests in my investigations.” She indicated that she felt that she had no need to review medical reports “in making an expert opinion as to whether or not a child has been abused.” Although she was interested in what the reports had to say, she did not think that it was important. “Frequently in sexual abuse there’s no physical evidence. It’s not an unusual finding.” Defense counsel referred her to a book by Sigmund Freud, “The Origins of Psychoanalysis,” in which Freud discussed his research on sexual approaches. Temple had not read the book. Counsel quoted a passage from it: When I realized that these sexual approaches had never actually occurred, that they were just fantasies made up by my patients or perhaps even suggested by myself, I was at my wits’ end.

Temple said that she did not necessarily agree that “a lot” of allegations of sexual approaches were “things made up,” but that, in any event, it did not “in any way change [her] opinion.” Defense counsel pressed Temple on the basis of her opinion. He asked “if the information she received has ²⁷³ really, in effect, come from the child,”—what the child told Temple, the mother and others. The court commented: “I don’t know what her other sources were.” Temple stated: “Strongest part of my opinion is based on the child’s statement, because of her age.” She indicated there were other sources of information, but those sources were never identified. Bohnert took the stand in his own defense and categorically denied the allegations.

It is perfectly clear, as we have indicated, that the outcome of this case depended on the jury’s determination of the credibility of two witnesses, the accuser and the accused. It is equally clear that the opinion of the “expert in the field of child sexual abuse” was of utmost significance in that determination. If the child’s allegations were believed, they would establish both the corpus delicti of the crimes charged and the criminal agency of Bohnert. The prosecutor fully appreciated the importance of Temple’s opinion.

In his opening argument to the jury he stressed her experience and expertise, called attention to the investigation she conducted, which she was “trained to do,” and observed that the “investigation revealed to her that Alicia Rojas was, in fact, abused sexually.” He declaimed: That’s her expert opinion. That’s what she concluded. There was no other person before you presented by the defense ... to contradict that. They presented no evidence that no, she wasn’t abused.

He asserted: You have a very important point ... an expert in this field saying this child was sexually abused. He concluded his argument: You have an expert opinion in this case this child was sexually abused. It’s unrefuted, not disputed, not contradicted and you have [the child’s] testimony about what happened and how it happened and you have her testimony ... about who did it. There’s no question about who ²⁷⁴ did it and I ask you to find verdicts of guilty on all counts.

In the State’s closing argument, the prosecutor again declared: “You have an expert opinion, that’s been unrefuted that [the child] was sexually abused.” In permitting Temple’s opinion to go before the jury at the second trial, the judge indicated that he was standing by the decision of the Court of Special Appeals in Bohnert I. In affirming the judgments in Bohnert II, the Court of Special Appeals observed that its ruling on the matter in Bohnert I was the law of the case. Therefore, it concluded, the judge did not err at the second trial in admitting the opinion. Bohnert II, slip opinion at 7-8. Although the ruling of the intermediate appellate court may have been the law of the case with respect to the circuit court, the Court of Appeals is not bound by it.

We think that the Court of Special Appeals was wrong in its ruling in Bohnert I. It follows that the trial judge, led down the primrose path by Bohnert I, was also wrong. We laid out in State Health Dep’t v. Walker, 238 Md. 512 , 209 A.2d 555 (1965), “upon what conditions and under what circumstances may a witness