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Date: 01-22-2021

Case Style:

STATE OF MONTANA v. JOSHUA WAYNE REAMS

Case Number: 2020 MT 326

Judge: James Jeremiah Shea

Court: IN THE SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana

Ole Olson, Daniel M. Guzynski, Special Deputy Jefferson County
Attorneys, Helena, Montana

Defendant's Attorney:


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Helena, Montana - Criminal defense attorney represented Joshua Wayne Reams with a one count of incest, alleging he sexually abused his ten-year old stepdaughter charge.



Reams was charged by amended information with one count of incest, alleging he
sexually abused his ten-year old stepdaughter, J.L.
¶3 On June 12, 2017, the State gave notice of its intent to call two expert witnesses at
trial:
1. Dr. Michelle Danielson. Dr. Danielson is a pediatrician who the State
asserted may testify as to her expertise, knowledge, and research as a
pediatric doctor treating victims of sexual assault; and
2. Paula Samms, LCPC. Samms conducted the forensic interview of J.L.
Aside from testifying about her forensic interview of J.L., the State asserted
she would testify to the process of victimology, a child’s typical reaction to
abuse, and the proper protocol for conducting forensic interviews.
¶4 On August 16, 2017, Reams gave notice of his intent to call an expert witness,
Dr. Deborah Davis. Reams attached a copy of Dr. Davis’s curriculum vitae and advised
that she was preparing a report which would be produced to the State after transcripts of
various witness interviews were prepared and reviewed by Dr. Davis.
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¶5 On August 31, 2017, the State filed a second expert witness notice, advising of its
intent to call Dr. Wendy Dutton. The State advised that Dr. Dutton would testify regarding
the general characteristics of children of sexual abuse, including:
a. general characteristics of disclosure patterns of child sexual abuse victims;

b. general characteristics of coping strategies of child sexual abuse victims;
c. general characteristics of process of victimization including victim
selection, engagement, grooming, assault, and concealment (process of
victimization); and
d. general recall characteristics of child sexual abuse including script and
episodic memory.
¶6 The State moved in limine to exclude Dr. Davis as an expert witness, arguing
Dr. Davis lacked the requisite qualifications to apply her methodology concerning false
reports in child sexual abuse cases to the facts of this case. In his brief opposing the State’s
motion, Reams asserted that he intended to call Dr. Davis as an educational witness on a
topic outside of most jurors’ common experience. Reams asserted that Dr. Davis would
“not discuss the facts of this case or . . . apply her methodology to the facts of the case.”
Reams asserted that Dr. Davis would be called to testify “on the general causes of false
reports of sexual abuse, including (1) intentional deception; (2) distortion of
memory/belief; (3) guessing; and (4) compliance with suggestion.” Reams noted: “Dr.
Davis has written and testified extensively as an expert on memory and false reports of
sexual abuse and why and how they occur.”
¶7 The District Court granted the State’s motion in limine to exclude Dr. Davis’s expert
testimony. The District Court deemed Dr. Davis unqualified to testify as an expert witness
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under State v. Scheffelman, 250 Mont. 334, 342, 820 P.2d 1293, 1298 (1991), which allows
a party to elicit expert testimony that directly comments on an alleged victim’s credibility
if the expert satisfies certain criteria. The District Court reasoned:
Unlike the generalized testimony offered in Morgan, there appears to be no
other purpose for offering Davis’ testimony except to attempt to undermine
J.L.’s credibility in making her accusations of abuse. This type of testimony
falls plainly within the ambit of Scheffelman, and a review of Davis’ expert
disclosure indicates she fails to meet the requisite qualifications under the
first prong of Scheffelman. Although Davis is a psychologist, professor, and
faculty member of the National Judicial College who has knowledge of the
subject of sexual abuse, there is no indication from Davis’ CV she has
extensive firsthand experience treating children.
¶8 The jury convicted Reams of incest.
STANDARDS OF REVIEW
¶9 Whether an expert is allowed to testify at trial is an evidentiary ruling.
State v. Robins, 2013 MT 71, ¶ 9, 369 Mont. 291, 297 P.3d 1213. This Court reviews a
district court’s decision to exclude expert testimony under an abuse of discretion standard.
McColl v. Lang, 2016 MT 255, ¶ 7, 385 Mont. 150, 381 P.3d 574. A district court abuses
its discretion if it acts arbitrarily without the employment of conscientious judgment or
exceeds the bounds of reason, resulting in a substantial injustice. State v. Webber, 2019 MT
216, ¶ 8, 397 Mont. 239, 448 P.3d 1091. We will not reverse the district court’s ruling
unless the abuse of discretion constitutes reversible error. Lang, ¶ 7. Reversible error
occurs when a substantial right of the appellant is affected, or when the challenged evidence
affected the outcome of the trial. Lang, ¶ 7.
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DISCUSSION
¶10 Whether the District Court erred when it granted the State’s motion in limine
excluding the testimony of Reams’s expert witness regarding general information
of false reports in child sexual abuse cases?
¶11 It is solely the jury’s duty to determine the credibility of a witness. State v. Robins,
2013 MT 71, ¶ 11, 369 Mont. 291, 297 P.3d 1213. An expert cannot comment on the
credibility of the alleged victim. Robins, ¶ 11. A narrow exception to this prohibition
allows an expert to comment directly on a victim’s credibility in child sexual abuse cases
in limited situations. Robins, ¶ 10 (citing State v. Scheffelman, 250 Mont. 334, 342,
820 P.2d 1293, 1298 (1991). The exception we established in Scheffelman allows an expert
to directly comment on the victim’s credibility if the expert can meet certain criteria,
Robins, ¶ 11. The Scheffelman exception is implicated “only when the expert directly
comments on the victim’s credibility.” Robins, ¶ 12. “Expert testimony that only indirectly
bears on a child sexual abuse victim’s credibility does not have to satisfy the [Scheffelman]
exception’s requirements to be admissible.” Robins, ¶ 12 (citing State v. Morgan,
1998 MT 268, 291 Mont. 347, 968 P.2d 1120).
¶12 In State v. Morgan, a defendant convicted of incest argued the district court erred
when it admitted expert testimony regarding general information of child sexual abuse.
Morgan, ¶ 26. The expert did not review the facts of the case and did not offer an opinion
directly concerning the victim’s credibility. Morgan, ¶ 26. The expert gave general
information to the jurors, testifying about patterns of child sexual abuse and factors to
consider when evaluating a child’s sexual abuse report. Morgan, ¶ 26. This Court did not
apply the Scheffelman exception that permits an expert to testify directly on the victim’s
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credibility because whether the expert would testify directly on the victim’s credibility was
not at issue since the testimony was centered around general information of child sexual
abuse. Morgan, ¶ 40. Rather, we considered only whether the expert’s testimony was
proper under M. R. Evid. 702.
¶13 Reams argues the District Court erred when it applied the Scheffelman exception to
prevent Dr. Davis from testifying because the exception is only implicated when an expert
seeks to directly comment on a child victim’s credibility. We agree.
¶14 The District Court considered the admissibility of Dr. Davis’s testimony under
Scheffelman because it concluded that “there appear[ed] to be no other purpose for offering
Davis’ testimony except to attempt to undermine J.L.’s credibility in making her
accusations of abuse.” But that is not the test. The Scheffelman exception is implicated
“only when the expert directly comments on the victim’s credibility.” Robins, ¶ 12
(emphasis added). “Expert testimony that only indirectly bears on a child sexual abuse
victim’s credibility does not have to satisfy the [Scheffelman] exception’s requirements to
be admissible.” Robins, ¶ 12.
¶15 An expert may testify about scientific, technical, or other specialized knowledge if
it will help the jury understand the evidence or determine a fact in issue. M. R. Evid. 702.
This Court has repeatedly upheld the use of experts to explain complexities of child sexual
abuse and to give guidance, which will help jurors understand and judge the victim’s
testimony. State v. Morgan, 1998 MT 268, ¶ 29, 291 Mont. 347, 968 P.2d 1120.
“Expert testimony relating to the contradictory behavior . . . of a child victim of sexual
abuse, will be allowed to enlighten the jury on a subject with which most people have no
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common experience and to assist the jurors in assessing the credibility of the victim.”
Morgan, ¶ 31 (quoting State v. Scott, 257 Mont. 454, 456, 850 P.2d 286, 292 (1993)). Child
sexual abuse is a topic that many or most jurors have no common experience with.
State v. Robins, 2013 MT 71, ¶ 16, 369 Mont. 291, 297 P.3d 1213.
¶16 Certainly, it would be appropriate for the District Court to limit Dr. Davis’s
testimony to the general issues and restrict her from commenting directly on J.L.’s
credibility. But that was the testimony Reams asserted Dr. Davis would give. Reams stated
that Dr. Davis would present educational testimony at trial concerning general causes of
false reports in child sexual abuse cases to assist the jury in understanding some of the
reasons why a child might make a false accusation.1
This is not qualitatively different from
testimony the State elicited from Dr. Dutton, such as why a child may delay reporting
sexual abuse. Both are subjects that are outside the common experience of a jury, and both
may indirectly bear on a child sexual abuse victim’s credibility, but this does not implicate
the Scheffelman criteria for admissibility. The District Court erred by applying the
Scheffelman exception criteria in excluding Dr. Davis’s testimony.
¶17 Having concluded the District Court erroneously excluded Dr. Davis’s testimony,
we turn to the State’s argument that the error was harmless. The State argues that even if
the District Court erred by excluding Dr. Davis’s testimony, the error was harmless because

1 We distinguish educational testimony regarding general causes of false reports in child
sexual abuse cases from the statistical testimony regarding false reporting that we disallowed in
State v. Grimshaw, 2020 MT 201, 401 Mont. 27, 469 P.3d 702.
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“Reams exacted the same testimony on cross-examination of the State’s witnesses.” We
disagree.
¶18 “Defendants have a constitutional right to present a defense. Whether that right is
rooted directly in the Due Process Clause, U.S. Const. amend. XIV, or in the
Compulsory Process or Confrontation Clauses, U.S. Const. amend. IV, the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense.”
State v. Glich, 2009 MT 44, ¶ 29, (citing Holmes v. South Carolina, 547 U.S. 319,
126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). A criminal defendant also has a right to confront
the witnesses against him, arising from the Sixth Amendment to the United States
Constitution and Article II, Section 24 of the Montana Constitution. State v. MacKinnon,
1998 MT 78, ¶ 33, 288 Mont. 329, 957 P.2d 23. The defendant’s constitutional right to
present a complete defense and the right to confront the witnesses against him is not an
either/or proposition. A defendant does not exercise one constitutional right to the
exclusion of the other. The State’s argument would essentially have us hold that because
Reams was able to elicit some concessions from the State’s expert witnesses on
cross-examination, this effectively abrogated his constitutional right to present his own
expert witness.
¶19 Moreover, we have held that the manner in which evidence is presented and
witnesses are called are matters of trial tactics and strategy that are exclusively within the
province of defense counsel. Weaver v. State, 2005 MT 158, ¶ 25, 327 Mont. 441,
114 P.3d 1039. Requiring a criminal defendant to rely upon the State’s expert witnesses
in lieu of his own expert necessarily impacts the tactics and strategy inherent in preparing
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a case. While defense counsel may, for strategic or tactical reasons, choose to pursue such
a course of action, in this case the decision was imposed upon him. Instead of presenting
his own educational expert to present his evidence in a cohesive and coherent fashion in
his case-in-chief, Reams was required to present it piecemeal by cross-examining the
State’s experts in the State’s case-in-chief. He also was deprived of the opportunity to use
his own expert to rebut the testimony of the multiple experts the State called.

Outcome: The District Court erred by applying the Scheffelman exception criteria to exclude
Dr. Davis’s testimony. The District Court’s error was not harmless. We reverse and
remand for a new trial.

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