State v. Jobert L. Molde, 2021AP1346-CR, 5/21/24, District III (not recommended for publication);petition for review granted case activity
Although this defense win is unpublished and therefore nonprecedential, COA’s analysis and synthesis of the law regarding this commonly litigated issue is an important read for litigators considering such claims.
Molde was prosecuted for first-degree sexual assault of a child and incest with a child after his teenage daughter (“Lauren”) reported that Molde had sexually assaulted her several years earlier. (¶5). At the ensuing trial, the State called a “child abuse pediatrician” who “supervised Lauren’s forensic interview in real time” and testified about the dynamics of delayed reporting, the psychological impact of sexual abuse (relevant because Molde’s alleged abuse only came to light after Lauren’s suicide attempt), and what markers she uses to assess “a child sexual abuse victim’s credibility […].” (¶8).
Following the expert’s testimony, one of the jurors submitted two questions, which were asked without objection. (¶12). The juror asked, “How frequent is it for children to make up a story of sexual abuse? Why would they do that?” (¶13). The expert responded by telling the jury that “False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures.” (Id.). She further testified that she did not have an answer to the second question as to why a child would make a false report. (Id.). On cross-examination, the expert was asked whether she based her answer on “particular studies.” (Id.). She stated she had, although she could not specifically recall the names of any particular study. (Id.).
On appeal following his conviction and an evidentiary hearing on his ineffectiveness claims, Molde argues that his lawyer was ineffective for “failing to object to an expert’s testimony […] regarding the truthfulness” of the alleged victim. (¶2). COA agrees, and reverses for a new trial due on this claim.
To understand why, COA summarizes the holdings of three relevant cases: State v. Haseltine, State v. Morales-Pedrosa, and State v. Mader. (Even though Mader was not released until years after Molde’s trial, COA views this case as merely reiterating settled law and therefore fairly invoked when assessing the reasonableness of counsel’s conduct). Because Haseltine provides the general rule that a prosecution witness may not give an opinion that another (competent) witness is telling the truth, COA ultimately holds that this testimony crossed the line for two reasons: (1) the expert supervised the forensic interview and, as a result, her testimony would be interpreted by the jury as a “personal or particularized endorsement of Lauren’s credibility” and (2) she offered a statistical opinion which approached certainty that false reporting does not occur (effectively testifying that 99% of reports are true). (¶31). Because Molde’s trial attorney testified that she did not have a strategic reason for not objecting, COA therefore concludes that counsel performed deficiently. (¶32).
As to prejudice, COA holds that this is a close case but ultimately rejects the State’s arguments regarding the overall strength of its trial evidence. (¶38). COA holds that the vouching evidence “undermines confidence” because it was directly responsive to a juror’s question and because the testimony was referenced twice during closing arguments. (¶¶38-39). Moreover, COA also holds that the evidence was essentially in “equipoise” for and against guilt. (¶4). While COA does not label this case, as it might have in less enlightened times, as a “he-said, she-said” dispute, it emphasizes that Lauren did not have independent corroboration of the assault and that the case therefore hinged on her credibility. (¶40). COA conducts a searching analysis of the trial evidence, highlighting numerous factors which impact its assessment of Lauren’s credibility and holds that Molde’s defense–that Lauren made up the sexual assault to accrue social status–was “bolstered” by evidence at trial. (¶47). Accordingly, under these facts, the vouching testimony was especially significant and therefore merits reversal.
Remaining Ineffectiveness Claims
Having found that Molde is entitled to a new trial on the vouching claim, COA dispatches two remaining arguments. First, it holds that counsel did not perform deficiently in failing to call witnesses who would testify about Lauren’s allegedly “untruthful character.” (¶53). Although counsel conceded during postconviction proceedings that she could have more effectively attacked Lauren’s credibility by calling the witnesses in question, COA is not bound by that concession and holds that counsel “adequately challenged Lauren in other ways and introduced evidence that diminished Lauren’s credibility in other ways.” (¶56).
Second, COA holds that counsel was not deficient for permitting evidence of a prior conviction and the fact that Molde had been to jail. (¶57). Here, proof that Molde was incarcerated helped the defense, as it narrowed the timeline for the sexual assault allegations and otherwise provided support to Molde’s specific factual arguments at trial. (¶¶61-61).
Although things have been quiet at SCOW as of late, it seems hard to believe that this defense win isn’t headed for further review. Justice Karofsky is noted for her separate writings defending victims of sexual assault and has used those writings–and her remarks at oral argument–to criticize what she views as the pernicious influence of what some would call “rape culture” on our legal system, especially in so-called “he said, she said” cases where a frontal attack on the alleged victim’s credibility is often the only “real” defense available. To that end, the State likely has at least one potential vote at a future petitions conference. However, this kind of prognostication is often, if not always, educated guesswork. Thus, we’ll just have to wait and see whether this otherwise messy and fact-dependent IAC case can motivate an increasingly rare grant of review. In the meantime, litigators considering such issues should read this well-written decision, which contains a great summary and synthesis of the current state of the law.
