State of Missouri v. Lewis C. Marshall ( 2020 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
Respondent, )
)
v. ) WD81911
)
LEWIS C. MARSHALL, ) FILED: February 25, 2020
Appellant. )
Appeal from the Circuit Court of Buchanan County
The Honorable Patrick K. Robb, Judge
Before Division Three: Alok Ahuja, P.J., and
Gary D. Witt and Anthony Rex Gabbert, JJ.
Following a jury trial in the Circuit Court of Buchanan County, Lewis
Marshall was convicted of the unclassified felony of sodomy, in violation of
§ 566.060, RSMo, and the class D felony of sexual abuse in the first degree, in
violation of § 566.100, RSMo. Marshall appeals. He argues that the circuit court
abused its discretion in admitting expert testimony concerning delayed disclosure of
sexual abuse by child victims. Marshall argues that the testimony was
inadmissible because it was not based on the application of reliable principles and
methods, as required by § 490.065.2(1)(c) and (d), RSMo. We affirm.
Factual Background
Marshall’s victim is a male who was born in 1985. Marshall married Victim’s
mother in 1986. Although Marshall was not Victim’s biological father, Victim grew
up believing that he was. Marshall and Victim’s mother divorced after
approximately sixteen years of marriage.
Around Thanksgiving 2016, Victim was gathered with other relatives at his
mother’s house. The group was discussing spending the night at Victim’s mother’s
house. Victim’s niece stated she could not stay because, if she did, she would miss
“special tickle time with Grandpa [(meaning Marshall)].” Marshall had legal
guardianship over the niece at the time.
Victim was concerned about his niece’s statement, because of Marshall’s
actions toward Victim when Victim was growing up. Victim decided to disclose
those events to his family and then to authorities.
Victim’s disclosures led to Marshall being charged with one count of sodomy
and one count of sexual abuse. The Third Amended Felony Information on which
Marshall was tried alleged that he had committed the offense of sodomy between
October 1, 1993 and November 1, 1993, by putting his genitals in Victim’s mouth at
a time when Victim was less than fourteen years old. The information alleged that
Marshall had committed the offense of first-degree sexual abuse by touching
Victim’s anus with his hand between October 1, 1990 and January 2, 1991, at a
time when Victim was less than twelve years old.
The case proceeded to a jury trial in April 2018. Victim was 32 years old at
the time of trial. He testified that Marshall was frequently physically abusive to his
mother, his siblings, and to Victim when they lived as a family. Victim testified
about an incident of sexual abuse which occurred in Buchanan County on New
Year’s Eve of 1990, when Victim was five years old. During that incident Marshall
put his finger inside Victim’s anus, and simultaneously masturbated. Victim
testified that on another occasion on Victim’s eighth birthday, Marshall forced
Victim to perform oral sex on him at a used car lot where Marshall worked in
Buchanan County. Victim testified about two additional incidents of sexual abuse
that occurred in Hamilton and in Kansas, where Marshall put his penis and a drum
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stick in Victim’s anus. After each incident, Marshall told Victim that he would die
if he told anyone what had happened.
Victim testified that the last incident of abuse he could remember occurred
when he was approximately sixteen or seventeen years old (i.e., in approximately
2001 or 2002). Victim was home with his girlfriend. Marshall saw Victim’s
girlfriend kissing him. Marshall threw Victim into a bathroom, locked the door, and
undid his pants. Marshall told Victim to “get him hard,” and then said that he
would show Victim’s girlfriend “what a real man was.” Victim fought back and left
the house with his girlfriend.
Marshall admitted he engaged in some physical abuse of his children but
denied all allegations of sexual abuse.
During trial the State presented several witnesses who testified to uncharged
acts of sexual abuse which Marshall had committed against them. This evidence
was admitted under Article I, § 18(c) to the Missouri Constitution, to prove
Marshall’s propensity to engage in the conduct for which he was on trial. The
uncharged acts testimony concerned sexual abuse which had occurred years or even
decades earlier, in most instances when the witnesses were minors.
At trial, the State also presented expert testimony from Joyce Estes. Estes is
a licensed clinical social worker. She worked as a counselor and program director at
Northwest Missouri Children’s Advocacy Center in St. Joseph from 1993 to 2004,
when she became the Center’s Director. Estes retired as Director of the Children’s
Advocacy Center in November 2017. Estes has a master’s degree in counseling.
She testified that her specialty was counseling children who had been sexually,
physically, or emotionally abused, or adults who had experienced such abuse as
children; her “primary focus” was sexual abuse. Estes had counseled over 1,000
children and testified as an expert witness 40 times in child abuse cases. She
testified that she had extensive education in the areas of childhood trauma,
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childhood sexual abuse, and techniques for interviewing children about abuse. A
significant part of her training concerned the process by which children disclose
sexual abuse.
Estes had not met or counseled Victim or any of the other witnesses who
testified to sexual abuse by Marshall. She instead testified to the behavior of child
sexual abuse victims generally. Estes testified that children disclose abuse within
one year of it occurring in only approximately 25% of cases; these early disclosures
typically occur where the abuser is a stranger and non-family member. Another
25% of victims do not disclose sexual abuse until very late in life. Estes referred to
a study in which 43% of the children who displayed medical evidence of sexual
abuse, such as a sexually transmitted disease, did not disclose any abuse. A
familial or close personal relationship between the abuser and the victim made it
less likely that the victim would disclose the abuse promptly. Victims do not
disclose the abuse, or delay their disclosures, due to fear, shame, guilt, and a lack of
self-confidence. Estes testified that, if a child makes an initial disclosure and
receives a hostile, unsympathetic or ineffective response, they may delay any
further disclosure for an extended period. Estes also testified that a child may
continue to have affectionate feelings for an abuser with whom the child has a close
personal relationship, and may hesitate to disclose abuse by that person from fear
of endangering the relationship. In those instances, she testified that the child may
attempt to mentally segregate the abuse from other, positive aspects of their
relationship with the perpetrator.
The jury found Marshall guilty on both counts. The court sentenced him to
life imprisonment for the sodomy count, and a concurrent term of four years’
imprisonment on the sexual abuse count. Marshall appeals.
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Standard of Review
The trial court has broad discretion to admit or exclude evidence
at trial. We review the trial court’s ruling on the admission of evidence
for an abuse of that discretion. That discretion is abused when a
ruling is clearly against the logic of the circumstances and is so
unreasonable as to indicate a lack of careful consideration.
State v. Suttles, 581 S.W.3d 137, 145 (Mo. App. E.D. 2019) (citations and internal
quotation marks omitted).
Analysis
Marshall argues that Joyce Estes should not have been permitted to testify
as an expert that child sex-abuse victims frequently delay their disclosure of the
abuse. Marshall argues that Estes’ testimony was inadmissible because the State
failed to demonstrate that her testimony was “the product of reliable principles and
methods,” and that Estes had “reliably applied the principles and methods,” within
the meaning of § 490.065.2(1)(c) and (d), RSMo. We disagree.
“Prior to 2017, Section 490.065 applied a standard for the admissibility of
expert testimony similar to that found in Frye v. United States, 293 F. 1013, 1014
(D.C. Cir. 1923).” Suttles, 581 S.W.3d at 146 (citations omitted). Section 490.065
was amended effective August 28, 2017. Id. As relevant to this proceeding,
§ 490.065.2(1) now provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
(a) The expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and
methods; and
(d) The expert has reliably applied the principles and
methods to the facts of the case.
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“The language of Sections 490.065.2(1)–(2) are now identical in their
language to [Federal Rules of Evidence] 702–703.” Suttles, 581 S.W.3d at 146.
“This Court since has held that because the language of Section 490.065 now
mirrors FRE 702 and 703, and because FRE 702 and 703 are interpreted
under Daubert and its progeny, the cases interpreting those federal rules remain
relevant and useful in guiding our interpretation of Section 490.065.” Id.
(referencing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593–94 (1993)).
Federal Rule of Evidence 702, on which § 490.065.2 is patterned, “‘affirms the
trial court’s role as gatekeeper and provides some general standards that the trial
court must use to assess the reliability and helpfulness of proffered expert
testimony.’” State ex rel. Gardner v. Wright, 562 S.W.3d 311, 318 (Mo. App. E.D.
2018) (quoting Advisory Committee Note to FED. R. EVID. 702 (2000)).
Several federal circuits boil the gatekeeping function of trial courts
under Federal Rule of Evidence 702 down to its essence in a useful
three-part test: (1) whether the expert is qualified, (2) whether the
testimony is relevant, and (3) whether the testimony is reliable.
Id. at 319 (citations omitted).
Marshall does not argue that Estes was not qualified. Nor does he argue that
Estes’ testimony was not relevant. See Wright, 562 S.W.3d at 320 (finding that
testimony of forensic interviewer regarding delayed disclosure by child sex-abuse
victims “is ‘specialized knowledge’ that will ‘assist the trier of fact to understand the
evidence’”); see also Suttles, 582 S.W.3d at 147–49 (same).
Marshall’s argument on appeal is focused on the reliability of Estes’
testimony. In making this argument, Marshall emphasizes the factors enumerated
in Daubert to assess the reliability of scientific testimony:
(1) whether the expert’s technique or theory can be or has been tested;
(2) whether the technique or theory has been subject to peer review
and publication; (3) the known or potential rate of error of the
technique or theory when applied and the existence and maintenance
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of standards and controls; and (4) whether the technique or theory has
been generally accepted in the scientific community.
Wright, 562 S.W.3d at 317 (citing Daubert, 509 U.S. at 593–94).
Although § 490.065.2 is patterned after Federal Rule of Evidence 702, and
the Supreme Court of the United States interpreted Rule 702 in Daubert, this Court
has held that “the Daubert factors themselves are not controlling” in applying
§ 490.065.2. Suttles, 581 S.W.3d at 147 (citing Wright, 562 S.W.3d at 318–19). The
Advisory Committee Note to the 2000 amendment of Federal Rule of Evidence 702
makes clear that the Rule does not mandate that all expert testimony satisfy the
Daubert factors:
No attempt has been made to “codify” these specific factors.
Daubert itself emphasized that the factors were neither exclusive nor
dispositive. Other cases have recognized that not all of the specific
Daubert factors can apply to every type of expert testimony. The
standards set forth in the amendment are broad enough to require
consideration of any or all of the specific Daubert factors where
appropriate.
(Citations omitted.)
The Supreme Court of the United States itself recognized that the Daubert
factors may not be relevant where experts testify based on “technical” or “other
specialized knowledge,” rather than based on strictly “scientific” knowledge:
[T]he factors identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert’s
particular expertise, and the subject of his testimony. The conclusion,
in our view, is that we can neither rule out, nor rule in, for all cases
and for all time the applicability of the factors mentioned in Daubert,
nor can we now do so for subsets of cases categorized by category of
expert or by kind of evidence. Too much depends upon the particular
circumstances of the particular case at issue.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (citation and internal
quotation marks omitted); see also Suttles, 581 S.W.3d at 147 (citing Wright, 562
S.W.3d at 318–19); Jones v. City of Kansas City, 569 S.W.3d 42, 53–54 (Mo. App.
W.D. 2019).
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It is also significant that, because of the prohibition on “particularized”
expert testimony concerning the behavior of a child sex-abuse victim,1 Estes
testified only to behaviors generally seen in victims of childhood sexual abuse.
Estes did not offer any opinion as to whether Victim exhibited these behaviors in
this case. The Advisory Committee Note to Rule 702 recognizes that this sort of
“generalized” testimony may be subject to a different reliability analysis than
testimony which seeks to apply general principles to the specific facts in litigation:
If the expert purports to apply principles and methods to the
facts of the case, it is important that this application be conducted
reliably. Yet it might also be important in some cases for an expert to
educate the factfinder about general principles, without ever
attempting to apply these principles to the specific facts of the case.
For example, experts might instruct the factfinder on the principles of
thermodynamics, or bloodclotting, or on how financial markets respond
to corporate reports, without ever knowing about or trying to tie their
testimony into the facts of the case. The amendment does not alter the
venerable practice of using expert testimony to educate the factfinder
on general principles. For this kind of generalized testimony, Rule 702
simply requires that: (1) the expert be qualified; (2) the testimony
address a subject matter on which the factfinder can be assisted by an
expert; (3) the testimony be reliable; and (4) the testimony “fit” the
facts of the case.
Marshall’s argument emphasizes several Daubert factors which have limited
relevance here, given the nature of Estes’ expertise and testimony, and because she
did not attempt to apply her opinions to the specific facts of this case. Thus, in this
context it is not particularly meaningful to question the testing or replicability of
Estes’ analysis, the error rate of that analysis, or the standards and controls
governing the application of that analysis. A different reliability analysis is
appropriate with respect to this sort of non-scientific, generalized testimony, which
is based on the expert’s specialized knowledge. In a case involving similar expert
1 See generally State v. Churchill, 98 S.W.3d 536, 539 (Mo. 2003); Suttles, 581
S.W.3d at 148–49; State v. Ferguson, 568 S.W.3d 533, 543–44 (Mo. App. E.D. 2019).
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testimony concerning delayed disclosure of childhood sexual abuse, the Eastern
District in Suttles emphasized that,
Testimony is reliable under Section 490.065.2 if it is based on
sufficient facts or data, reliable principles and methods and reliable
application thereof. No one denies that an expert might draw a
conclusion from a set of observations based on extensive and
specialized experience. As long as an expert’s testimony rests upon
good grounds, based on what is known[,] it should be tested by the
adversary process with competing expert testimony and cross-
examination, rather than excluded by the court at the outset.
581 S.W.3d at 150 (citations and internal quotation marks omitted). Similarly, the
Texas Court of Appeals held that the reliability of similar testimony of a licensed
professional counselor and trained forensic interviewer should be evaluated by
asking if “(1) the field of expertise is a legitimate one, (2) the subject matter of the
expert's testimony is within the scope of that field, and (3) the expert's testimony
properly relies on and/or utilizes the principles involved in the field.” Reynolds v.
State, 227 S.W.3d 355, 371 (Tex. App. 2007) (citations omitted).2
In Suttles, the Eastern District concluded that expert testimony concerning
delayed disclosures was sufficiently reliable because, “[a]lthough the delayed-
disclosures theory is not easily subject to peer review and/or publication under the
Daubert factors, scientists generally accept the theory to explain a common behavior
seen in child-victims of sexual abuse.” 581 S.W.3d at 151 (citing State v. J.L.G., 190
2 The Advisory Committee Note to the 2000 amendment to Federal Rule of
Evidence 702 makes this same point:
Some types of expert testimony will be more objectively verifiable, and
subject to the expectations of falsifiability, peer review, and publication, than
others. Some types of expert testimony will not rely on anything like a
scientific method, and so will have to be evaluated by reference to other
standard principles attendant to the particular area of expertise. The trial
judge in all cases of proffered expert testimony must find that it is properly
grounded, well-reasoned, and not speculative before it can be admitted. The
expert's testimony must be grounded in an accepted body of learning or
experience in the expert's field, and the expert must explain how the
conclusion is so grounded.
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A.3d 442, 445–46 (N.J. 2018)). The Court noted that “the theory of delayed
disclosures . . . has long been accepted by well-recognized experts as a behavior in
victims of child abuse.” Id. The Court also emphasized the expert’s extensive
personal experience with minor sexual abuse victims, noting that the expert’s “own
experience interviewing children was consistent with the scientifically reported
behavior of delayed disclosures.” Id. at 151–52. Other cases applying similar
admissibility standards have found that expert testimony concerning delayed
disclosures, by therapists who have reviewed academic literature and have
extensive personal experience counseling sex-abuse victims, is sufficiently reliable
to be admitted in a criminal trial. See, e.g., Wright, 562 S.W.3d at 321; State v.
Shore, 814 S.E.2d 464, 469–74 (N.C. App. 2018); State v. Jones, 817 S.E.2d 268, 272
(S.C. 2018); People v. Spicola, 947 N.E.2d 620, 636 (N.Y. 2011); Reynolds, 227
S.W.3d at 371–72.
In this case, Estes had extensive personal experience counseling child sexual
abuse victims. She also testified to extensive training and education concerning the
process by which children disclose and process sexual abuse. Finally, during her
trial and pre-trial testimony, she referenced academic literature supporting her
opinion that delayed disclosure is common among child victims of sexual abuse. In
addition, prior to trial the State provided the circuit court three different empirical
peer-reviewed studies published between 2000 and 2013 regarding the frequency of
delayed disclosure, the reasons for such delayed disclosure, and the identity of those
to whom abuse is eventually disclosed. The circuit court did not abuse its discretion
in allowing Estes to provide generalized testimony concerning behaviors commonly
found in child sex-abuse victims, based on her extensive experience and training.3
3 In his Brief, Marshall also attacks the reliability of the counseling techniques
that Estes employed with her own patients. Those arguments are misdirected. Estes’ trial
testimony did not relate to the appropriateness or efficacy of any particular counseling
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We close by emphasizing that “[t]he trial court’s role as gatekeeper” under
§ 490.065 “is not intended to serve as a replacement for the adversary system.”
Suttles, 581 S.W.3d at 150 (quoting Wright, 562 S.W.3d at 317). “Vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596.
Conclusion
We affirm the judgment of the circuit court.
Alok Ahuja, Judge
All concur.
methods. Instead, her testimony related solely to the behaviors exhibited by victims of
childhood sexual abuse.
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