State v. Adams, 980261.

• Citation: 5 P.3d 642,2000 UT 42
• Decision Date: 05 May 2000
• Docket Number: No. 980261.,980261.
• Parties: STATE of Utah, Plaintiff and Respondent, v. Nealy W. ADAMS, Defendant and Petitioner.
• Court: Supreme Court of Utah

5 P.3d 642

2000 UT 42

STATE of Utah, Plaintiff and Respondent, v. Nealy W. ADAMS, Defendant and Petitioner.

No. 980261.

Supreme Court of Utah.

May 5, 2000.

Jan Graham, Att'y Gen., Joanne C. Slotnik, Asst. Att'y Gen., Salt Lake City, and Les Daroczi, Ogden, for plaintiff.

Gregory G. Skordas, Lloyd R. Jones, Brett J. DelPorto, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

WILKINS, Justice:

¶ 1 Nealy W. Adams was convicted of one count of forcible sexual abuse pursuant to Utah Code Ann. § 76-5-404(1) (1999). The court of appeals affirmed, State v. Adams, 955 P.2d 781 (Utah Ct.App.1998), and we issued a writ of certiorari to review that court's decision, cert. granted, 982 P.2d 87 (Utah 1998). We affirm.

BACKGROUND

¶ 2 In 1993, Adams developed a relationship with Virla Hess and moved into her home, where she lived with her thirty-four-year-old daughter Carleen, who suffers from Down's Syndrome. Carleen is unable to read or write and has the cognitive abilities of a three-and-one-half-year-old.

¶ 3 In late 1994, Adams, who was a regular drinker, began drinking excessively and occasionally became so intoxicated that he was unable to remember what he had done while inebriated. During this time, Virla noticed that Carleen became more reclusive, spending most of her free time in her room with the door closed.

¶ 4 Adams' relationship with Virla began to deteriorate in 1995. One night, Virla awoke to the sound of a bang followed by breaking glass. She got up to investigate and saw Adams, naked, with his pants in his hand, emerging from Carleen's bedroom. When Virla spoke with Adams about the incident, the following morning he said he had been drinking and could not remember anything that had happened that night. Thereafter, the parties agreed that Adams should move out of Virla's house.

¶ 5 When Virla told Carleen that Adams was leaving, Carleen responded by telling her mother, "Good, he's been messing with me." Virla waited until Adams had removed all of his belongings before contacting the police and reporting the alleged abuse. Detective DeHart conducted an interview with Carleen in her mother's presence. Adams was later charged with one count each of rape and forcible sexual abuse.

¶ 6 At trial, Carleen testified that she had been molested by Adams. On cross-examination, Adams suggested that Virla invented the allegations and then coached Carleen to tell the story in retaliation for Adams breaking off the relationship. In response, the State elicited testimony from Detective DeHart, who stated that he was unable to lead Carleen with his questions and that, in his opinion, she did not appear to be coached. He testified that Carleen's initial account of the molestation had remained consistent with her subsequent description of those events. The State also called Dr. Hawks, a psychologist who had evaluated Carleen's general cognitive abilities and who testified that it. was unlikely Carleen could be coached to tell, or was sophisticated enough to make up, the story alleged here. Based on the evidence adduced, a jury acquitted Adams of rape, but found him guilty of forcible sexual abuse.

¶ 7 Adams appealed to the Utah Court of Appeals, alleging, among other things, that the testimony of Dr. Hawks and Detective DeHart improperly bolstered Carleen's credibility. Adams also argued that the State had failed to establish a proper foundation for Dr. Hawks' testimony that Carleen was incapable of being coached. The court of appeals rejected Adams' argument that Dr. Hawks' testimony improperly bolstered Carleen's credibility; however, the court concluded that Detective DeHart's testimony violated Rule 608(a) of the Utah Rules of Evidence, which governs opinion testimony on character or truthfulness. See Adams, 955 P.2d at 786

. Nevertheless, with respect to Detective DeHart's testimony the court of appeals affirmed. The court said that Adams' conviction was supported by other persuasive evidence, and therefore, the admission of Detective DeHart's testimony was harmless error. See id. The court of appeals also held that Dr. Hawks' testimony satisfied the foundational requirements for admitting scientific testimony established in State v. Rimmasch, 775 P.2d 388 (Utah 1989). See Adams, 955 P.2d at 784-85. Adams sought review of the court of appeals' decision by petitioning this court for a writ of certiorari, which we granted.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Before this court, Adams argues the court of appeals erred in (1) concluding Rule 608(a) of the Utah Rules of Evidence was not violated by the admission of Dr. Hawks' testimony that Carleen did not possess the intellectual capacity to either be coached or invent a false story, and (2) concluding that Dr. Hawks' testimony concerning Carleen's credibility was admissible under Rule 702 of the Utah Rules of Evidence. Adams also maintains (3) that the court of appeals erred in determining that Detective DeHart's improper bolstering of Carleen's credibility was harmless error because it did not prejudice the outcome of the trial. ¶ 9 On a writ of certiorari, we review the decision of the court of appeals, not that of the trial court. See Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997)

. This case involves the admissibility of expert testimony, and therefore, the court of appeals properly reviewed the decision of the trial court under an abuse of discretion standard. See State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993). In addition, because Adams failed to raise a timely and specific objection to Detective DeHart's testimony in the trial court, the court of appeals reviewed that issue for plain error. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

ANALYSIS

I. ADMISSIBILITY OF DR. HAWKS' TESTIMONY

A. Opinion on Mental Capacity

¶ 10 We turn first to Adams' claim that Dr. Hawks' testimony violated Rule 608(a) of the Utah Rules of Evidence. Specifically, Adams argues that Dr. Hawks improperly bolstered Carleen's credibility by testifying that she either did not or could not lie about the allegations against Adams. We disagree.

¶ 11 Rule 608(a)(1) "permits testimony concerning a witness's general character or reputation for truthfulness . . . but prohibits any testimony as to a witness's truthfulness on a particular occasion." See Rimmasch, 775 P.2d at 391

. In order to determine whether Dr. Hawks' testimony violated rule 608(a), we review his testimony concerning whether Carleen could have been coached. The relevant trial colloquy is as follows:

Q: Could your evaluation and expertise tell you whether [Carleen] was sophisticated enough to make up the story that was alleged here?

A: And, of course, as I mentioned, that's one of the things we deal with all the time, did somebody coach you—

[DEFENSE COUNSEL]: And at this point, Your Honor, I'm going to object to his answering that until there's further foundation. What he's talking about now I don't believe—he's gone into his examination of her testifying truthfully in this case. That, again, is the prerogative of the jury. I think it's improper.

THE COURT: Well, I think the form of the question is different and he has given some background. The objection is overruled.

A: In my opinion, that's a difficult question and surely I couldn't answer that 100 percent positively; however[,] it would seem that someone who—in the school system who has been taught in special ed and resource classes[,] and she's 34, I believe[,] and if all those years of special ed and resource classes couldn't get her to even write her name correctly, couldn't get her to . . . count past number 50 or say the alphabet, that I'd have trouble—it would be difficult for me to assume somebody could coach her, even if they tried, to consistently report anything, you know, even their birthday. I mean, she was inaccurate in giving her birthday. She struggled with that.

So I find it troubling if—if she has difficulty in doing, you know, second and third grade level, that I would—I'd have real trouble to see anybody[—]a mother or me or the school system[—]if they can't do it with counting, how could—I ask myself, could someone do it with persuasion or threats to[,] to get her to consistently across two interviews spontaneously talk about some sexual activities that occurred.

So in my opinion, that's probably not likely.

¶ 12 After reviewing this testimony, the court of appeals concluded Dr. Hawks' testimony did not violate rule 608(a) because it "did not go to whether Carleen was telling the truth . . . . [Rather] Dr. Hawks merely stated it was his opinion she did not have the cognitive ability to be coached." Adams, 955 P.2d at 783 n. 1. Adams, however, asserts that this testimony amounted to an expert opinion about Carleen's truthfulness on a particular occasion because no meaningful legal distinction can be drawn between whether Carleen has the mental capacity to invent or learn and consistently repeat a false story, and whether Carleen lied on this particular occasion. Adams contends that in either case, the evidence is "an opinion as to whether the jury can trust [Carleen's] testimony—precisely what rule 608(a) forbids."

¶ 13 Although Dr. Hawks testified that it was "probably not likely" that Carleen was either coached or "sophisticated enough to make up the story that was alleged here," he did not offer a direct opinion of Carleen's truthfulness about the alleged sexual abuse. Dr. Hawks merely stated that Carleen's mental capacity probably prevented her from either inventing or learning and consistently repeating a fabricated story. However, he did not offer a subjective credibility determination that Carleen was telling the truth about the alleged sexual abuse, nor did he completely rule out the possibility that Carleen could have lied about this incident. Instead, Hawks stated that based on his evaluation of Carleen's general cognitive abilities, he found it unlikely that she could learn and...