Mr. Rowan was convicted of two counts of Rape of a Child in the First Degree. His alleged victim was around eleven years old. The Court, on appeal, did not find sufficient evidence to sustain Mr. Rowan’s conviction. There were 43 different grounds of appeal, including the constitutionality of RCW 9A.44.020(1), the sex offense statutes which permits a jury to convict a defendant of a sex offense based on the testimony of only the victim. Mr. Rowan asserted that the absence of “corroborating” evidence requires a not guilty finding.
The alleged victim testified and provided the principal evidence of guilt. The doctor who examined the child testified that the “child was sexually assaulted multiple times.” State v. Rowan, pg. 1. However, the doctor’s opinion “was based solely on believing what the child said.” Id. Division III reversed Mr. Rowan’s convictions and remanded for a new trial, because the State’s expert witness offered “improper opinion testimony.”
The trial was a classic swearing match. The investigating detective admitted on cross examination that he never looked for physical corroboration of the child’s claims, such as DNA evidence, as the incident was not reported until long after it occurred. Id., pg 2. After testifying that Mr. Rowan had oral and vaginal sex with her, the child admitted she had asked herself whether she was lying. She clarified that she asked herself this because her grandparents suggested that she was imagining things. Id., pg. 3. The forensic interviewer testified that the child cried during the interview … but had a lot of self doubt and self questioning. Id.
A doctor of obstetrics, specializing in sexual assault, was called. The child’s genitalia, while a little red, appeared normal. Based on the physical examination, the doctor could neither “rule in nor rule out sexual abuse.” Id., pg. 4. Despite this, the doctor testified she believed the child had been sexually assaulted “multiple times”:
Q And as a result of your examination, were you able to develop an opinion as to whether or not she’d been a victim of any type of sexual abuse?
A Not solely based on the examination, no.
Q Do you have an opinion?
A Yes.
Q And what is that opinion?
A My opinion is that she was sexually assaulted over time, multiple times.
Q And that’s based upon what?
A It’s based upon the history that she gave while I was examining her and asking her questions. And during the forensic interview, the information that she came forward with.
Q But as terms of physical, you can’t rule it out or rule it in—just looking at the physical examination.
A That’s correct.
The defense did not object to this testimony, which the State understandably, on appeal, viewed as a waiver of any error.
However, Division III held the doctor’s above testimony was “an impermissible opinion on credibility and guilt.” Id., pg. 12. A jury deciding issues of fact is a core constitutional right, which can be raised for the first time on appeal. The error here was not harmless, which the State must and could not prove, as there was no physical evidence to support the child’s testimony. There were no independent eyewitnesses. The State’s case depended on the jury “believing” the child. Id., pg. 14.
The Court’s holding is excerpted below:
“Opinion testimony on a core issue of guilt or witness veracity is a form of vouching,” and “it is especially dangerous when such testimony comes from a witness with a heightened aura of authority, such as a police officer or an expert.” State v. Lang, 12 Wn. App. 2d 481, 488, 458 P.3d 791 (2020).
The State had a problem. The evidence supporting its charges came from one witness, a child witness who herself had possible doubts. So, the State solved its problem with an expert, a doctor whose expertise included interviewing child victims of sexual abuse: the doctor believed the child, so the jury should, too. This solution runs contrary to the constitutional right of an accused to have the jury resolve questions of fact.
The State has failed to prove beyond a reasonable doubt that the strength of the properly admitted evidence was sufficient to counteract the weight the jury likely placed on the doctor’s improper opinion. Reversal of Rowan’s convictions is required.” [Emphasis added]
Representation of Mr. Rowan appeared to be challenging, as he wished to raise arguments that counsel was unwilling to pursue. Mr. Rowan and his mother repeatedly directed appellate counsel to investigate “facts outside the trial court record and to raise arguments that counsel was unwilling to pursue.” Id., pg. 18. Division III held that it is the role of appellate counsel, not the client, to decide which legal argument to raise, citing McCoy v. Louisiana, 584 U.S. 414, 422 (2018). Mr. Rowan went through four appellate lawyers; a fifth was ordered, and the appeal was stayed, causing delay Mr. Rowan claimed warranted dismissal of the charges!
Mr. Rowan’s appellate counsel appears to have thrown a lot of spaghetti against the wall to see if something would stick, but finding an unobjected-to assignment of error requiring reversal and a new trial for Mr. Rowan was very good work.