Ohio State Reports
Unpublished
STATE v. HAINES, 0853, Unpublished Decision (12-28-2006)
2006-Ohio-6711 THE STATE OF OHIO, APPELLEE, v. HAINES,
APPELLANT. Nos. 2005-0853 and 2005-0959. Supreme Court of
Ohio. December 28, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from and CERTIFIED by the Court of
Appeals for Lake County, No. 2003-L-035, 2005-Ohio-1692.
Charles Coulson, Lake County Prosecuting Attorney, and
Karen A. Sheppert, Assistant Prosecuting Attorney, for
appellee.
Ian N. Friedman & Associates, L.L.C., Ian N. Friedman, John
A. Powers, Ronald L. Frey, and Erik S. Dunbar, for
appellant.
Jason A. Macke, urging reversal for amicus curiae, Ohio
Association of Criminal Defense Lawyers.
PFEIFER, J.
SUBJECT TO FURTHER EDITING
This opinion is subject to further editing. It has been
posted to the website of the Supreme Court of Ohio as a
manuscript document in the interest of disseminating it to
the public on an expedited basis. This document will be
replaced with the final version when the final version
becomes available.
{ ¶ 1} On January 24, 2003, a jury in the Lake
County Court of Common Pleas found appellant Bryan Haines
guilty of multiple counts of kidnapping, abduction, and
domestic violence. All of the counts related to the same
victim, Haines’s live-in girlfriend, Jacqueline Bohley, and
arose from incidents that occurred in March and April of
2002. This case concerns whether the trial court properly
admitted expert testimony regarding battered woman syndrome
as part of the state’s case-in-chief.
{ ¶ 2} Haines and Bohley met on December 26, 1997.
By July, 1998, they had begun living together in the home
of Haines’s brother, Ryan, and in January 2000, they moved
into a condominium that Bohley had purchased. Bohley
described the relationship as rocky and testified that
Haines did not allow her to have friends or much freedom.
She had to wear a pager so that he could always reach her.
Haines timed how long Bohley’s trip between home and work
should take, and required her to phone him upon leaving for
work and arriving at work. If she was late, he would get
very angry and a fight would ensue. Bohley was called into
her boss’s office at least three times because her
telephone arguments with Haines disrupted her work. Haines
also demanded constant contact regarding Bohley’s
whereabouts outside of work. Bohley said that she complied
in order to avoid arguments.
{ ¶ 3} On May 6, 2001, Bohley and Haines became
engaged. On October 8, 2001, Bohley went to police to
report an incident of domestic violence that had occurred
on October 4, 2001. Haines was convicted of a domestic
violence charge and served 18 days in jail. Bohley ended
their engagement and got a temporary protection order
against Haines.
{ ¶ 4} On cross-examination, Bohley testified that
she was soon seeing Haines again. His 18-day jail term was
work-release (Haines only spent evenings in jail), and
Bohley would visit him during the day. Later, Haines served
a period of house arrest at his brother’s home, and Bohley
visited him there, too, occasionally spending the night and
engaging in sexual relations. Bohley never removed all of
Haines’s possessions from her home and by late January 2002
they were again living together in Bohley’s condominium.
{ ¶ 5} The first event leading to the charges in
this case occurred on Easter Sunday, March 31, 2002. Bohley
found a card to Haines from another woman when she was
putting away some of his belongings; she went outside to
confront him about it. Haines suggested that they go inside
the house to discuss the matter, and Bohley complied. When
then were both inside, Haines locked the door and the
deadbolt. Haines told Bohley that he would be moving out,
but only when he wanted to, and that it could take a year
for him to do so. Bohley said that she would no longer be
sleeping with him in the same bed, which infuriated Haines.
Haines picked up a piece of baseboard left from a
remodeling project and struck Bohley on the arms and legs.
He then began breaking objects in the house. Bohley tried
to escape by running through a sliding glass door, but she
was unable to break the glass. In an effort to divert
Haines’s attention, Bohley slit her wrist with a piece of
broken glass. She drew blood and Haines did show some
concern and helped her wrap the wrist.
{ ¶ 6} After helping Bohley with her wrist, Haines
told her that he was going to show her what it was like to
be in jail, and ordered her into her condominium’s
crawlspace. His jail sentence had become a consistent theme
in their relationship, and he said that he would make her
stay in the crawlspace for 18 days. Bohley entered the
crawlspace, which was about three feet high and had a lid,
feeling like she had no other choice. The lid had a hole in
it, and Haines ordered Bohley to keep her finger through
the hole at all times so that he could be sure she was not
trying to escape. Haines screwed eight screws into the lid
once she was inside. Periodically, he checked to see if her
finger was still in the hole, and then released her after
30 to 45 minutes. Haines was upset and crying when he
released Bohley, and asked her to pray with him. She prayed
with him and told him she forgave him in order to appease
him.
{ ¶ 7} After the prayer, Haines told Bohley that
they were going to take an Easter gift to his daughter.
While driving home from making that delivery, Haines became
agitated again, and when they arrived back home, Bohley
refused to leave the vehicle. Haines told her that she
could trust him and that he would not hurt her if she went
inside the house, so Bohley reluctantly accompanied him
inside. Once inside, he locked the doors and told her that
she was going to die that night. Bohley screamed, and
Haines covered her mouth and nose. He punched and then
kicked Bohley in the ribs, and stepped on her ankle. After
that, they went to bed.
{ ¶ 8} The next day, Bohley told Haines’s family
members what had happened the night before. That evening,
Haines and Bohley met with his father to discuss the
situation. They all agreed that Haines should move out of
Bohley’s condominium.
{ ¶ 9} Upon cross-examination regarding the March 31
incident, Bohley testified that she and Haines had engaged
in sexual relations that evening. She also testified that
she went to the emergency room on April 5 to have her
painful ribs checked, but that she lied to the people
caring for her about the cause of her injury, claiming that
she had fallen over a fence while rollerblading. Haines’s
counsel also elicited testimony from Bohley on
cross-examination that she did not tell any of her
co-workers or any doctors what had happened on March 31,
2002, and that she did not report that incident to police
until after the April 18 incident.
{ ¶ 10} Despite the earlier agreement that Haines
would move out, he did not, and the situation deteriorated.
In the early evening of April 17, 2002, Haines and Bohley
engaged in what she called “abnormal” sexual relations
involving the Internet, which Bohley said Haines knew
disgusted her. Haines immediately left the house for a
couple of hours. When he returned at about 10:30, he was
upset. He blamed Bohley for his jail term and wanted her to
apologize. She told him what he wanted to hear for
self-preservation. Haines twisted her wrist and stuck his
fingers in her eyes. He ripped her nightgown and got a belt
from the closet, commenting that he was going to hit her
with the belt like a child because that was the only way
she would understand that what she had done was wrong. He
told he to lie on her stomach, and he hit her five times on
the buttocks with the belt.
{ ¶ 11} Haines became concerned that Bohley might
tell someone what had happened, and began swinging the belt
again with more force. He hit her multiple times in the
shoulder and arm. He then cried out that Bohley had ruined
his life, and she comforted him in an effort to diffuse the
situation. He took some sleeping pills, but before he fell
asleep he told her to keep her hand on him at all times so
that he would know whether she was trying to get away. He
allowed her to go to the bathroom, but warned her to not
try to go downstairs.
{ ¶ 12} The next morning, Haines refused to allow
Bohley to go to work. Fearing that her work colleagues
would be concerned by her absence, Haines directed Bohley
to phone the office and leave a message. As she made the
call, Haines held his fist against her face. Soon after,
Haines ordered Bohley to place another call to work, begging
to not be fired. Haines held a knife to her throat as she
made that call.
{ ¶ 13} During her initial call to work, Bohley left
a message using a prearranged code-phrase, “Red Eye
Printing,” to indicate to her co-workers that she was in
trouble. On her message, she asked her co-workers to check
the “Red Eye Printing” envelope on her desk. The co-workers
opened the envelope, which contained a document that gave
instructions to call the police. Bohley’s co-workers called
police, and officers arrested Haines at the condominium.
{ ¶ 14} The state called as its last witness in its
case-in-chief Dr. James Eisenberg, a board-certified
forensic psychologist. His testimony is at the crux of this
case. Dr. Eisenberg testified about battered woman
syndrome, stating that “it refers to a woman * * * that is
the subject of repeated psychological, physical, or sexual
abuse by one’s partner. The syndrome itself speaks to the
individuals who remain in relationships in spite of those
beatings.” He explained the syndrome’s three-part process
— the tension stage, the acute battering stage, and
the stage of contrition. He discussed that there is a lot of
control exhibited by the batterer over the woman’s entire
life, leading to her isolation. He explained that a woman
in a relationship with a batterer sees the world “through a
very small opening and all that she sees is this guy. * * *
The threat is always there, whether you leave or whether
you stay. * * * So the threat is always there, it doesn’t
matter if they go anywhere. [She thinks], If I leave he’s
gonna beat me. If I stay he’s gonna beat me. Let me just
— let’s just get it out.”
{ ¶ 15} Eisenberg spoke mostly in generalities about
battered woman syndrome and its symptoms. Toward the end of
his direct examination, however, the following exchange
occurred:
{ ¶ 16} “Q. Now, Doctor, in this particular case,
are you familiar with some of the facts and circumstances
surrounding the criminal charges in this case?
{ ¶ 17} “A. Yes.
{ ¶ 18} “Q. All right. And as a result of that, do
you have an opinion, within a reasonable degree of forensic
certainty, as to whether or not you see any features of the
investigation of this case that would parallel a Battered
Woman’s Syndrome?
{ ¶ 19} “Mr. M. DiCello: Objection.
{ ¶ 20} “Judge Lucci: Overruled.
{ ¶ 21} “A. Yes.
{ ¶ 22} “Q. Okay. And what is — is that
opinion within a reasonable degree of forensic certainty?
{ ¶ 23} “A. Yes.
{ ¶ 24} “Q. And what is that opinion?
{ ¶ 25} “A. My opinion is that, as I understand the
facts of the case, and again I’m not a fact finder, but as
I understand the facts of the case in front of us, and from
my review of the records, it’s very consistent with what we
see in a Battered Woman’s Syndrome scenario.”
{ ¶ 26} The jury returned a verdict convicting
Haines of all seven counts with which he was charged
— kidnapping, abduction, and domestic violence
relating to the March 31, 2002 incident; kidnapping,
abduction, and domestic violence relating to the incident
of April 17, 2002; and one count of kidnapping relating to
the events of the morning of April 18, 2002.
{ ¶ 27} Haines appealed. The Lake County Court of
Appeals reversed one of the kidnapping convictions relating
to the April 17-18 incident, holding that the two counts
resulted from an act that constituted a single course of
conduct. Haines sought reversal on all counts due to the
trial court’s admission of Eisenberg’s testimony regarding
battered woman syndrome, arguing that such evidence was
“irrelevant, prejudicial, inflammatory, and prohibited by
the Ohio Legislature, the Supreme Court of Ohio and this
honorable appeals court.” The court affirmed the trial
court’s admission of the testimony, stating that “[t]his
testimony regarding battered woman syndrome was properly
admitted to explain the victim’s state of mind, i.e., why
she continued to return to appellant. This was quite
relevant, as it went to her credibility, which had been
challenged.” The court further found that the testimony
complied with Evid.R. 403(A) since its probative value was
not outweighed by the danger of unfair prejudice, and that
it did not constitute “other acts” evidence prohibited by
Evid.R. 404(B).
{ ¶ 28} The appellate court certified that its
decision conflicted with the decision of the Fifth
Appellate District in State v. Pargeon (1991), 64 Ohio
App.3d 679, 582 N.E.2d 665. This court granted jurisdiction
by accepting a discretionary appeal and determining that a
conflict as to the following question existed: “When the
victim’s credibility is challenged upon cross-examination
during the state’s case-in-chief, may the state introduce
evidence of battered woman syndrome to demonstrate the
victim’s state of mind, i.e., to explain why she returned
to the defendant despite his aggressions toward her?”
Law and Analysis
{ ¶ 29} In State v. Koss (1990), 49 Ohio St.3d 213,
551 N.E.2d 970, this court first recognized the
admissibility of expert testimony regarding battered woman
syndrome. In that case, the defendant had killed her
husband, and the testimony regarding battered woman
syndrome was offered by the defendant in support of her
affirmative defense of self-defense. Today’s certified
question asks whether that holding should be extended to
allow expert testimony concerning battered woman syndrome
in the state’s case-in-chief to help a jury understand a
victim’s reaction to abuse in relation to her credibility.
We find that such testimony is admissible.
{ ¶ 30} In allowing the admission of expert
testimony regarding the battered woman syndrome in Koss,
this court “[did] not establish a new defense or
justification.” Koss, 49 Ohio St.3d 217, 551 N.E.2d 970.
Rather, such testimony was allowed as evidence to prove one
element of self-defense. “In Ohio, to prove self-defense it
must be established that the person asserting this defense
had ` * * * a bona fide belief that he [she] was in
imminent danger of death or great bodily harm and that his
[her] only means of escape from such danger was in the use
of such force.’ (Emphasis added.) ” Koss, 49 Ohio St.3d at
215, 551 N.E.2d 970, quoting State v. Robbins (1979), 58
Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two
of the syllabus. Koss recognized that since Ohio has a
subjective test to determine whether a defendant properly
acted in self-defense, the defendant’s state of mind is a
crucial issue. Koss, 49 Ohio St.3d at 215, 551 N.E.2d 970.
{ ¶ 31} In Koss, this court considered whether
battered-woman-syndrome testimony would assist the trier of
fact in finding the truth and whether, pursuant to Evid.R.
702, such testimony provided “specialized knowledge” that
would “assist the trier of fact to understand evidence or
to determine a fact in issue,” particularly, the defendant’s
state of mind. The court concluded:
{ ¶ 32} “Expert testimony regarding the battered
woman syndrome can be admitted to help the jury not only to
understand the battered woman syndrome but also to
determine whether the defendant had reasonable grounds for
an honest belief that she was in imminent danger when
considering the issue of self-defense. `Expert testimony on
the battered woman syndrome would help dispel the ordinary
lay person’s perception that a woman in a battering
relationship is free to leave at any time. The expert
evidence would counter any “common sense” conclusions by
the jury that if the beatings were really that bad the
woman would have left her husband much earlier. Popular
misconceptions about battered women would be put to rest,
including the beliefs that the women are masochistic and
enjoy the beatings and that they intentionally provoke
their husbands into fits of rage. See Walker, The Battered
Woman, 19-31 (1979).’ State v. Hodges (1986), 239 Kan. 63,
68-69, 716 P.2d 563, 567. See, also, Smith v. State [1981],
247 Ga. [612,] 618-619, 277 S.E.2d [678]; Hawthorne [v.
State (Fla.App. 1982), 408 So.2d 801]; [People v.] Torres
[1985], 128 Misc.2d [129,] 133-134, 488 N.Y.S.2d [358].”
Koss, 49 Ohio St.3d at 216, 551 N.E.2d 970.
{ ¶ 33} Koss overruled State v. Thomas (1981), 66
Ohio St.2d 518, 521, 20 O.O. 3d 424, 423 N.E.2d 137, in
which this court had held that expert testimony relating to
battered woman syndrome “is inadmissible because it is not
distinctly related to some science, profession or
occupation so as to be beyond the ken of the average lay
person.” In Koss, this court noted that the development of
the scholarship on battered woman syndrome had increased
since Thomas and that other courts had begun to allow
battered-wom an syndrome testimony. Koss, 49 Ohio St.3d at
215, 551 N.E.2d 970. The court wrote, “We believe that the
battered woman syndrome has gained substantial scientific
acceptance to warrant admissibility.” Koss, 49 Ohio St.3d
at 217, 551 N.E.2d 970. The court also revisited its
holding from Thomas that battered-woman-syndrome testimony
was not so distinctly related to science that it is beyond
the ken of the jury:
{ ¶ 34} ” `The difficulty with the expert’s
testimony is that it sounds as if an expert is giving
knowledge to a jury about something the jury knows as well
as anyone else, namely, the reasonableness of a person’s
fear of imminent serious danger. That is not at all,
however, what this testimony is directly aimed at. It is
aimed at an area where the purported common knowledge of
the jury may be very much mistaken, an area where jurors’
logic, drawn from their own experience, may lead to a
wholly incorrect conclusion, an area where expert knowledge
would enable the jurors to disregard their prior
conclusions as being common myths rather than common
knowledge.’ (Emphasis sic). ” Id., citing State v. Kelly
(1984), 97 N.J. 178, 206, 478 A.2d 364.
{ ¶ 35} Thus, this court in Koss concluded that
expert testimony on battered woman syndrome is admissible
pursuant to Evid.R. 702: “Where the evidence establishes
that the woman is a battered woman, and when an expert is
qualified to testify about the battered woman syndrome,
expert testimony concerning the syndrome may be admitted to
assist the trier of fact in determining whether the
defendant acted in self-defense.” Koss, 49 Ohio St.3d at
218, 551 N.E.2d 970.
{ ¶ 36} The same year of this court’s decision in
Koss, the General Assembly enacted R.C. 2901.06, which
recognizes the value of battered-woman-syndrome testimony
and sets forth that it may be employed in self-defense
cases:
{ ¶ 37} “(A) The general assembly hereby declares
that it recognizes both of the following, in relation to
the `battered woman syndrome:’
{ ¶ 38} “(1) That the syndrome currently is a matter
of commonly accepted scientific knowledge;
{ ¶ 39} “(2) That the subject matter and details of
the syndrome are not within the general understanding or
experience of a person who is a member of the general
populace and are not within the field of common knowledge.
{ ¶ 40} “(B) If a person is charged with an offense
involving the use of force against another and the person,
as a defense to the offense charged, raises the affirmative
defense of self-defense, the person may introduce expert
testimony of the `battered woman syndrome’ and expert
testimony that the person suffered from that syndrome as
evidence to establish the requisite belief of an imminent
danger of death or great bodily harm that is necessary, as
an element of the affirmative defense, to justify the
person’s use of the force in question. The introduction of
any expert testimony under this division shall be in
accordance with the Ohio Rules of Evidence.”
{ ¶ 41} The General Assembly also enacted R.C.
2945.392, which allows battered-woman-syndrome testimony to
be admitted by a defendant that pleads not guilty by reason
of insanity.
{ ¶ 42} Koss and R.C. 2901.06(A) establish that
battered-woman-syndrome testimony meets the requirements of
Evid.R. 702 in regard to scientific validity and the
requirement of specialized knowledge. Neither Koss nor R.C.
2901.06 nor R.C. 2945.392 limit the use of
battered-woman-syndrome testimony to self-defense or
insanity cases. Koss and the statutes do recognize that
battered-woman-syndrome testimony is properly admitted
pursuant to Evid.R. 702 as expert testimony that can assist
the trier of fact in search of the truth. Koss, 49 Ohio
St.3d at 216, 551 N.E.2d 970. But admissibility under
Evid.R. 702 is only part of the picture — as R.C.
2901.05 and 2945.392 both require, any
battered-woman-syndrome testimony must be admitted in
conformance with the Ohio Rules of Evidence. Thus, our
consideration of admissibility does not end with Evid.R.
702.
{ ¶ 43} Further consideration is especially needed
when the testimony is not offered by a defendant, but by
the state against a defendant. Prior to 1990, “appellate
courts in only a handful of jurisdictions had considered
whether prosecutors may use expert testimony on battering
and its effects in a domestic violence prosecution,” but
since that time, the courts in an overwhelming majority of
jurisdictions that have considered the issue have held that
such evidence is admissible under the proper circumstances.
Rogers, Prosecutorial Use of Expert Testimony in Domestic
Violence Cases: from Recantation to Refusal to Testify
(1998), 8 Colum.J.Gender & L. 67, 68. See, also, Barnes,
Annotation, Admissibility of Expert Testimony Concerning
Domestic-Violence Syndromes to Assist Jury in Evaluating
Victim’s Testimony or Behavior (2006), 57 A.L.R.5th 315,
Section 2(a). The courts that have held expert testimony
regarding battered woman syndrome is admissible have done so
“while operating under rules of evidence that mirror
Ohio’s.” Hawes, Removing the Roadblocks to Successful
Domestic Violence Prosecutions: Prosecutorial Use of Expert
Testimony on the Battered Woman Syndrome in Ohio (2005), 53
Clev.St.L.Rev. 133, 144. We find the holdings of those
other courts instructive.
{ ¶ 44} Relevance under Evid.R. 401 is the first
hurdle to clear. “Generally, battered woman syndrome
testimony is relevant and helpful when needed to explain a
complainant’s actions, such as prolonged endurance of
physical abuse accompanied by attempts at hiding or
minimizing the abuse, delays in reporting the abuse, or
recanting allegations of abuse.” People v. Christel (1995),
449 Mich. 578, 580, 537 N.W.2d 194. Such seemingly
inconsistent actions are relevant to a witness’s
credibility. “Because the victim’s credibility can be
attacked during cross-examination of the victim or even
during opening statements, the prosecution need not wait
until rebuttal to present expert testimony on battered
woman syndrome. Rather, such testimony may be presented as
rehabilitative evidence during the state’s case-in-chief.”
State v. Grecinger (Minn. 1997), 569 N.W.2d 189, 193.
{ ¶ 45} In this case, Bohley’s behavior after
incidents of alleged abuse was a focus of Haines’s
cross-examination. During cross-examination of Bohley,
Haines attempted to demonstrate that Bohley would become
intimate with Haines after he allegedly abused her, that
she broke off their relationship only temporarily, that she
did not report the abuse, and that she gave differing
explanations regarding some of her injuries. In short, the
testimony tended to show that Bohley not only never
reported the abuse but that she remained in the
relationship.
{ ¶ 46} For the reasons stated in Koss, expert
testimony on battered woman syndrome could address those
supposed anomalies. But, while battered-woman-syndrome
testimony can be relevant for explaining a victim’s
behavior, it cannot be considered relevant if there is no
evidence that the victim suffers from battered woman
syndrome. “Expert testimony on the subject of battered
woman’s syndrome is not relevant unless there is some
evidentiary foundation that a party or witness to the case
is a battered woman, and that party or witness has behaved
in such a manner that the jury would be aided by expert
testimony providing an explanation for the behavior.” State
v. Borelli (1993), 227 Conn. 153, 172, 629 A.2d 1105, fn.
15, citing Koss, 49 Ohio St.3d at 218, 551 N.E.2d 970.
{ ¶ 47} Like the court in State v. Stringer (1995),
271 Mont. 367, 378, 897 P.2d 1063, we find that a set of
rigid foundational requirements is unnecessary but that
“the party seeking to introduce battered woman syndrome
evidence must lay an appropriate foundation substantiating
that the conduct and behavior of the witness is consistent
with the generally recognized symptoms of the battered
woman syndrome, and that the witness has behaved in such a
manner that the jury would be aided by expert testimony
which provides a possible explanation for the behavior.”
{ ¶ 48} Evidence generally establishing the cycles
of a battering relationship is appropriate foundation for
battered-woman-syndrome expert testimony. “The battering
relationship itself is often described as cyclical in
nature, with three distinct phases: tension building,
confrontation, and contrition. During the `tension building’
phase, the woman is generally compliant, often feeling as
though she deserves the abuse. Once the tension reaches a
boiling point, the batterer will erupt uncontrollably,
committing a violent act. Next, in an abrupt about-face,
the abuser will exhibit seemingly intense love and affection
towards his victim. The victimized women are then led to
believe that the violence was an isolated incident and that
it will not continue. This cycle of violence may leave the
victim with feelings of learned helplessness, low
self-esteem, depression, minimization techniques,
self-isolation, and passivity.” (Footnotes omitted.) Hawes,
53 Cleve.St.L.Rev. at 137.
{ ¶ 49} Further, as this court held in Koss, ” `in
order to be classified as a battered woman, the couple must
go through the battering cycle at least twice. Any woman
may find herself in an abusive relationship with a man
once. If it occurs a second time, and she remains in the
situation, she is defined as a battered woman.’ ” Koss, 49
Ohio St.3d at 216, 551 N.E.2d 970, quoting Walker, The
Battered Woman (1979) xv.
{ ¶ 50} The evidence against Haines generally
established the cycles of a battering relationship. The
prosecution established through testimony about the
October, 2001 incident and the March, 2002 incident that
Haines’s psychological abuse and controlling behavior was
followed first by an outburst of violence, and then by
Haines’s supposed regret and a reconciliation. The
admission or exclusion of relevant evidence rests within
the sound discretion of the trial court, State v. Robb
(2000), 88 Ohio St.3d 59, 68, 723 N.E.2d 1019, and the trial
court did not abuse that discretion in finding that expert
testimony on battered woman syndrome was relevant in this
case.
{ ¶ 51} Haines argues that, even if relevant, the
battered-woman-syndrome testimony violated Evid.R. 404(B),
which states:
{ ¶ 52} “Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
{ ¶ 53} First, testimony on battered woman syndrome
is not offered to prove anything about the defendant, but
is instead offered as background for understanding the
victim’s behavior. Second, the foundation testimony
employed in this case did not constitute “other acts”
evidence. All three incidents comprising the bulk of the
state’s foundation evidence — the October, 2001
incident, the March 31, 2002 incident, and the April 17-18
incident — were central to the charges against
Haines. The domestic violence counts against Haines required
a prior conviction in order to be charged as felonies, and
the parties had stipulated that Haines had been convicted
of domestic violence for the October, 2001 incident. That
conviction was made known to the jury from the outset,
during the trial judge’s pretrial instructions. The other
two incidents were the focus of the trial.
{ ¶ 54} Haines argues that even the term “battered
woman syndrome” suggests that the accused committed other
crimes, wrongs, or acts. We believe that this issue is more
properly addressed by considering the possible prejudicial
nature of the testimony. Even when its relevance is shown
through a proper foundation, a court must carefully weigh
whether the expert testimony violates Evid.R. 403(A), which
states, “Although relevant, evidence is not admissible if
its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or
of misleading the jury.”
{ ¶ 55} An expert witness who diagnoses a victim as
a battered woman essentially concludes that the defendant
is a batterer. In a case where the underlying charges
involve domestic violence, such a conclusion by an expert
witness is prejudicial to the defendant and usurps the
jury’s role as finder-of-fact. A diagnosis can prejudice a
defendant further because the expert is presenting a
conclusion regarding the victim’s credibility, which again
is a conclusion to be made by the jury. In cases where
domestic violence is not the underlying charge, but
battered-woman-syndrome testimony is offered to explain the
conflicting statements or activities of a witness, a
defendant can again be prejudiced by being labeled as a
batterer. Thus, courts must carefully balance the admission
of expert testimony on battered woman syndrome under
Evid.R. 403.
{ ¶ 56} An acceptable balance is best achieved
through a tailoring of the expert’s testimony. Limitations
placed upon the expert’s testimony — “the expert
cannot opine that complainant was a battered woman, may not
testify that defendant was a batterer or that he is guilty
of the crime, and cannot comment on whether complainant was
being truthful” — dispel concerns about unfair
prejudice. Christel, 449 Mich. at 591, 537 N.W.2d 194. The
rule in most jurisdictions is that general testimony
regarding battered woman syndrome may aid a jury in
evaluating evidence, and that if the expert expresses no
opinion as to whether the victim suffers from battered
woman syndrome or does not opine on which of her
conflicting statements is more credible, such testimony does
not interfere with or impinge upon the jury’s role in
determining the credibility of witnesses. State v. Townsend
(2006), 186 N.J. 473, 496-498, 897 A.2d 316. “[T]he
prosecutorial introduction of testimony on the battered
woman syndrome must be in accordance with the applicable
Ohio Rules of Evidence. The best way to approach this is by
utilizing the limited format advocated by the courts in
[State v. Ciskie (1988), 110 Wash.2d 263, 751 P.2d 1165]
and [Arcoren v. United States (C.A.8, 1991), 929 F.2d
1235]. Under this approach, experts who are called to
testify in domestic violence prosecutions must limit their
testimony to the general characteristics of a victim
suffering from the battered woman syndrome. The expert may
also answer hypothetical questions regarding specific
abnormal behaviors exhibited by women suffering from the
syndrome, but should never offer an opinion relative to the
alleged victim in the case.” Hawes, at 158.
{ ¶ 57} Trial courts should tailor the scope of the
state’s questioning, and should also ensure that jurors are
instructed as to the limits of the expert’s testimony. The
trial court failed to do so in this case, and the direct
examination of the battered-woman-syndrome expert crossed
the line. The prosecutor asked Dr. Eisenberg, “[D]o you
have an opinion, within a reasonable degree of forensic
certainty, as to whether or not you see any features of the
investigation of this case that would parallel a Battered
Woman’s Syndrome?” Haines’s counsel objected to the
question; the trial court overruled the objection.
Eisenberg responded, “My opinion is that, as I understand
the facts of the case, and again I’m not a fact finder, but
as I understand the facts of the case in front of us, and
from my review of the records, it’s very consistent with
what we see in a Battered Woman’s Syndrome scenario.”
{ ¶ 58} The prosecutor’s question essentially
solicited a diagnosis, and the doctor’s response provided
one. A reasonable juror would conclude that Eisenberg
believed that Bohley suffered from battered woman syndrome.
Such testimony went beyond the providing of a context for a
witness’s testimony into the area of determining
credibility. The testimony also went to the very conclusion
that the jury was asked make — whether Haines
committed domestic violence against Bohley — and
answered it.
{ ¶ 59} Defendant’s counsel then elicited more
testimony from Eisenberg that called for a specific
diagnosis of Bohley as well as a discussion of further
facts about her. Eisenberg testified on cross-examination
that he diagnosed Bohley with “Posttraumatic Stress
Disorder secondary to the Battered Woman’s Syndrome.” He
testified that he was familiar with the facts and
circumstances surrounding the criminal charges in this
case, and he testified that he reviewed the prior treatment
records from Ms. Bohley’s therapist, documents left at her
place of employment, the police reports, letters from Mr.
Haines to Ms. Bohley, the psychological testing that had
been done on Ms. Bohley, and a document called “Recorded
Acts,” described by Eisenberg as “a stack of dates in which
Ms. Bohley had listed incidents of violence in the last
three or four years in the relationship.”
{ ¶ 60} Defense counsel also asked whether, in
considering Bohley’s history, Eisenberg concluded that the
abuse had occurred. After answering, “Yes, I did,”
Eisenberg later added, “I’m assuming that it occurred. I’m
not the fact finder. My assumption is that it occurred
based on the history, the evaluation of Ms. Bohley, her
credibility in taking the psychological testing. So all
those things led to my assumption that they did occur. I
don’t know if they actually did.”
{ ¶ 61} The state argues that the bulk of the
battered-woman-syndrome testimony that addresses Bohley’s
specific case was brought to light by Haines. However, the
key testimony solicited by the state thrust Haines into the
situation where he had to defend himself against a
diagnosis. The evidence admitted in cross-examination did
not change the fact that Eisenberg’s testimony on direct
examination was prejudicial.
{ ¶ 62} The state argues that admission of the
testimony from Eisenberg specifically tying Bohley to
battered woman syndrome constituted harmless error.
Haines’s counsel did object to Eisenberg’s diagnostic
testimony on direct examination, and thus a harmless-error
analysis, rather than a plain-error analysis, is
appropriate. “Whether [the] error was harmless beyond a
reasonable doubt is not simply an inquiry into the
sufficiency of the remaining evidence. Instead, the
question is whether there is a reasonable possibility that
the evidence complained of might have contributed to the
conviction.” State v. Conway, 108 Ohio St.3d 214,
2006-Ohio-791, 842 N.E.2d 996, ¶ 78.
{ ¶ 63} Haines was charged with multiple counts
based upon the events of March 31, 2002 and April 17-18,
2002. Counts 1 through 3 relate to the incident on March
31, 2002. The evidence regarding that incident is almost
entirely based upon Bohley’s testimony, and therefore relies
on her credibility. Bohley did not report that incident to
the police for weeks. She continued to reside with Haines
after it occurred. There is a reasonable probability that
evidence concerning her credibility might have contributed
to the jury’s verdict on those counts — a juror
might question Bohley’s response to the abuse and then find
a consistent explanation for it in Eisenberg’s testimony.
We thus find that the trial court’s error in admitting
Eisenberg’s testimony attributing battered woman syndrome
to Bohley was not harmless as to Counts One through Three.
{ ¶ 64} The evidence concerning the counts relating
to the incident of April 17-18 was more varied. The jury
saw photographs of Bohley’s injuries, heard testimony from
her co-workers regarding her telephone calls to her office
on the morning of April 18, and heard testimony from the
police officers responding to the scene. Jurors were not
confronted with questions about why Bohley had not reported
the incident, as they were with the March 31, 2002
incident. Thus, we find Eisenberg’s testimony harmless
beyond a reasonable doubt on Counts Four through Six; there
is not a reasonable possibility that his testimony
contributed to those convictions.
{ ¶ 65} Thus, we affirm in part and reverse in part
the holding of the appellate court. In regard to the
certified question, we respond in the affirmative and hold
that when a victim’s credibility is challenged upon
cross-examination during the state’s case-in-chief, the
state may introduce expert testimony regarding battered
woman syndrome to aid the trier-of-fact in determining the
victim’s state of mind, e.g., to explain why she returned
to the defendant despite his aggressions toward her.
Judgment affirmed in part and reversed in part, and cause
remanded.
MOYER, C.J., RESNICK, LUNDBERG STRATTON, O’CONNOR and
O’DONNELL, JJ., concur.
LANZINGER, J., dissents.
LANZINGER, J., dissenting.
{ ¶ 66} I dissent from the majority’s holding
allowing the state’s use of battered woman syndrome in its
case-in-chief as an unwarranted extension of State v. Koss
(1990), 49 Ohio St. 3d 213, 551 N.E.2d 970. In Koss, which
authorized the presentation of the battered woman’s
syndrome by a defendant to establish self-defense, this
court noted: “A defendant attempting to admit expert
testimony regarding the battered woman syndrome must offer
evidence which establishes herself as a `battered woman.’ ”
(Emphasis added.) Id., paragraph two of the syllabus.
Furthermore, “[admission of expert testimony regarding the
battered woman syndrome does not establish a new defense or
justification. It is to assist the trier of fact to
determine whether the defendant acted out of an honest
belief that she is in imminent danger of death or great
bodily harm and that the use of such force was her only
means of escape.” (Emphasis added.) Id., paragraph three of
the syllabus.
{ ¶ 67} The General Assembly codified similar
limitations on the admission of the battered woman syndrome
when it enacted R.C. 2901.06(B), which states: “If a person
is charged with an offense involving the use of force
against another and the person, as a defense to the offense
charged, raises the affirmative defense of self-defense,
the person may introduce expert testimony of the `battered
woman syndrome’ and expert testimony that the person
suffered from that syndrome as evidence to establish the
requisite belief of an imminent danger of death or great
bodily harm that is necessary, as an element of the
affirmative defense, to justify the person’s use of the
force in question. The introduction of any expert testimony
under this division shall be in accordance with the Ohio
Rules of Evidence.” (Emphasis added.)
{ ¶ 68} It is mystifying that the majority cannot
see the limiting language within Koss and the statute.
Other appellate courts have held that expert testimony
regarding the battered woman syndrome can only be admitted
by a defendant when the affirmative defense of self-defense
has been raised. See State v. Pargeon (1991), 64 Ohio
App.3d 679, 582 N.E.2d 665; State v. Sonko (May 22, 1996),
9th Dist. No. 95CA006181; State v. Dowd (Jan. 19, 1994),
9th Dist. No. 93CA005638; State v. Lundgren (Apr. 22,
1994), 11th Dist. No. 90-L-15-125.
{ ¶ 69} This is not a situation of admitting
rebuttal evidence under Evid. R. 404(A)(2). In the hands of
the state during its case-in-chief, an expert witness who
presents the battered woman syndrome as evidence does more
than bolster the credibility of the victim. The witness
establishes prior bad acts of the defendant from which the
jury may infer that he had the propensity to engage in
those acts and acted in accord with that propensity on the
current charge. This is precisely the inference Evid.R.
404(B) excludes: “Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in
order to show that he acted in conformity therewith.”
Furthermore, expert witnesses may have particular power
over the minds of jurors. Perhaps recognizing this, the
Koss court limited the use of testimony concerning the
battered woman syndrome to cases where defendants employ it
in establishing self-defense.
{ ¶ 70} The majority opinion acknowledges the
prejudice to the defendant that occurs through this new
evidentiary expansion. “An expert witness who diagnoses a
victim as a battered woman essentially concludes that the
defendant is a batterer. In a case where the underlying
charges involve domestic violence, such a conclusion by an
expert witness is prejudicial to the defendant and usurps
the jury’s role as finder-of-fact.” Yet in spite of this
understanding, because it can “aid the trier-of-fact in
determining the victim’s state of mind, e.g., to explain
why she returned to the defendant despite his aggressions
toward her,” expert testimony on battered woman syndrome is
allowed. Even if an expert is confined to providing only a
general overview of the syndrome, as we see in this case,
the bounds are easy to overstep. Dr. Eisenberg did more. He
gave an opinion, to a reasonable degree of forensic
certainty, that the facts of the case were “very consistent
with what we see in a Battered Woman’s Syndrome scenario.”
{ ¶ 71} The majority’s expansion of Koss and R.C.
2901.06(B) is justified by citations to other jurisdictions
and secondary sources. A more liberal admission of expert
testimony of this nature may be a worthy goal, but until
the General Assembly determines it to be good policy for
Ohio, I believe we should follow precedent as it stands and
the statute as it is written. I would hold that the state
may not introduce evidence of battered woman syndrome to
demonstrate the victim’s state of mind, i.e., to explain
why she returned to the defendant despite his aggressions
toward her, when her credibility is challenged upon
cross-examination.
{ ¶ 72} To do otherwise is to transform a shield for
the defense into a sword for the prosecution. I would
answer no to the certified question.