Acuna v. State

• Decision Date: 01 September 1992
• Docket Number: No. 110,110
• Citation: 629 A.2d 1233,332 Md. 65
• Parties: Gilbert ACUNA v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 65

332 Md. 65

629 A.2d 1233

Gilbert ACUNA v. STATE of Maryland.

No. 110, Sept. Term, 1992.

Court of Appeals of Maryland.

Aug. 30, 1993.

M. Cristina Gutierrez (on brief), Baltimore, for petitioner.

Sarah E. Page, Asst. Atty. Gen. (J. Joseph Curran, Atty. Gen., both on brief) Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

RODOWSKY, Judge.

We granted certiorari in this child sex-abuse case to consider two issues, one involving expert testimony that the victim suffered post traumatic stress disorder (PTSD), and the other involving rebuttal testimony by the victim that the accused had committed other similar, but uncharged, criminal sex acts upon the victim.

The petitioner, Gilbert Acuna (Acuna), was charged, inter alia, with second degree sex offense based on an incident that occurred on the evening of May 21, 1990. The victim, Stephanie, was age four at the time. The charges were tried to a jury in July 1991.

In July 1989 Stephanie's family, consisting of her father, mother, infant sister, and herself, moved into an apartment adjoining that of Acuna and his future wife. The members of the two households became somewhat friendly. By January 1990 Stephanie often would visit in the Acuna apartment in the early evening.

On the evening in question, Stephanie's mother had bathed the two girls. Stephanie was dressed in underpants and a pullover, knee length nightgown. Stephanie went to the Acuna apartment while her younger sister remained at home with her mother. When Stephanie's mother later went to the Acuna apartment, she entered without knocking. No one was in the living room, dining room, or kitchen. The mother then heard Stephanie's voice from the bedroom saying, "No, no, I don't want to do that. We don't do that."

The bed in the Acuna apartment had no frame; it consisted of a large mattress on a box spring sitting directly on the floor. Stephanie's mother saw her daughter lying back on the bed with Acuna kneeling in front of her. The child's nightgown was pulled up and her legs were spread, but her underpants were on. Acuna had his elbows resting on the mattress, his hands were near Stephanie's ankles, and his face was six or seven inches from Stephanie's "private area."

When Stephanie's mother exclaimed, " 'What the hell are you doing?'," Acuna jumped up and began hitting himself in the head with his hands. Acuna paced back and forth between the kitchen and the bedroom speaking very rapidly and unintelligibly. He began to cry. He told Stephanie's mother that he would never do anything to hurt Stephanie or any of her family.

The police were notified that evening. During the course of the investigation and preparation for trial, Stephanie told her mother, the police, the prosecutor, and others that Acuna had licked her "birdie," i.e., her vaginal area, on ten different occasions prior to May 21. Stephanie's parents also had her evaluated by Dr. Gail Walter, a clinical psychologist.

Dr. Walter's testimony, reviewed in Part I, infra, was given in the State's case in chief. Acuna testified that Stephanie had been jumping on the bed and that he merely had been trying to pull her off of it when the child's mother walked in. He denied ever having molested the child. Stephanie, in rebuttal testimony reviewed in Part II, infra, described sexual contact by Acuna on certain occasions other than that charged in the indictment.

The jury found Acuna guilty of second degree sex offense and related charges. The circuit court merged into the second degree sex offense conviction all of the remaining charges. Acuna was sentenced to ten years, of which all but eighteen months was suspended. That eighteen months confinement is to be served in home detention, followed by one year of probation. Execution of the sentence was stayed pending appeal, and Acuna was released on personal recognizance pending appeal.

The Court of Special Appeals affirmed in an unreported opinion. We granted Acuna's petition for certiorari which challenges Dr. Walter's testimony and Stephanie's rebuttal testimony concerning other crimes.

I

On direct examination by the State, Dr. Walter testified that behaviors depicted by Stephanie were consistent with the disorder known as PTSD. Acuna's principal argument is that that evidence is irrelevant.

Dr. Walter saw Stephanie, accompanied by her parents, in November 1990. As is "customary," a developmental history was taken, based on information furnished by Stephanie's mother. Dr. Walter performed the "usual" initial evaluation of the youngster, interviewing her both in the presence of her mother and outside of the presence of her parents. Standard paper and pencil combined tests of intelligence were administered. These consist of ten subtests designed to measure intelligence in ten different areas. Stephanie's overall I.Q. was "[q]uite above average." Art diagnostic and play diagnostic techniques also were employed by Dr. Walter. Dr. Walter found that it was very difficult to have Stephanie finish a task, and that her drawings were "very, very regressed." "[S]he was crawling around on the floor making baby noises." The way in which Stephanie used the materials indicated to Dr. Walter that Stephanie was "under great distress."

The prosecutor asked Dr. Walter to tell the jury what PTSD is. The witness essentially defined it as "the psychiatric diagnostic formulation that refers to a cluster of symptoms that we see in people after they have been exposed to a particularly distressing or traumatic event." Dr. Walter summarized the symptoms from the Diagnostic and Statistical Manual Of Mental Disorders (DSM-III). She specified those symptoms of PTSD that she observed in Stephanie. ¹ The trial court refused to permit Dr. Walter to express an opinion whether the behaviors displayed by Stephanie were consistent with victims of child abuse, but the court did permit Dr. Walter's opinion that the behaviors depicted by Stephanie were consistent with PTSD. Dr. Walter also had observed Stephanie testifying in the State's case in chief. She opined that Stephanie's in-court behavior was consistent with that observed during the November 1990 evaluation.

In contending that the foregoing testimony is irrelevant, Acuna considers only Dr. Walter's direct examination. Acuna argues that the testimony is "evidentiarily meaningless" unless the symptoms of PTSD "were either actually or inferentially connected to the sexual offenses on which [Acuna] was standing trial." Brief of Appellant at 16. In this respect Acuna relies on State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986).

Allewalt was a rape prosecution in which the victim was a thirty-six year old woman, and the accused was the victim's daughter's boyfriend. All three resided in the same home where the rape was perpetrated. After the accused had testified that the intercourse was consensual, the State, in rebuttal, called a psychiatrist who had examined the victim. The psychiatrist opined that the victim suffered from PTSD. The psychiatrist further opined, based upon a history given by the victim, that the stressor that caused the anxiety disorder was the rape described by the victim, and not the earlier breakup of the victim's marriage of sixteen years. This Court held that the trial court had not erred in admitting the opinion evidence.

In Allewalt we equated admissibility of the diagnosis of the recognized anxiety condition and of the opinion concerning the stressor with the admissibility in personal injury cases of a diagnosis and of an opinion on causation, based on history. Id. at 98-99, 517 A.2d at 745-46. Because the expert in Allewalt did not purport to be able to identify the cause of the condition based only on the observed symptoms, but had made plain that the causation opinion depended on the patient's history, this Court concluded that there was neither impermissible prejudice nor an attempt to certify to the credibility of the victim. Id. at 102-03, 109, 517 A.2d at 747-48, 751.

Here the issue which Acuna seeks to present asks whether Dr. Walter's direct testimony can be probative of any material issue in the case, absent evidence relating Stephanie's symptoms to the alleged abuse. That issue, however, is not presented by the record as a whole. On cross-examination of Dr. Walter, the following additional opinion evidence was elicited:

"Q. Now the events that you were told triggered these symptoms and engendered this change in behavior was the allegation of sexual abuse alleged to be committed by Mr. Acuna on Stephanie in May of 1990; was it not?

"A. The parents, I mean I would like to answer that in a way that's a little more comprehensive. The parents noted a change in her behavior over a period of approximately 6 months and I think that would put it at about the time of the disclosure.

"Q. Well, at the time you evaluated--disclosure meaning to you, are you meaning the disclosure in the allegation against Mr. Acuna?

"A. The disclosure and--

"Q. Between--the six months between the date this sexual event is alleged to have occurred and the date of your evaluation?

"A. It was my understanding there was a deterioration in her status and that's by parental reports over a period of--lasted approximately 6 months so that by my figures but it was about the time the disclosure that this morning was testified to.

"Q. The disclosure by Stephanie?

"A. Yes.

"Q. That time frame is May of 1990, is it not?

"A. Yes."

Thus, as in Allewalt, the expert was able, through history, to connect the PTSD to the criminal conduct charged. Under Allewalt, there was no error.

Acuna seeks to distinguish Allewalt because the victim in that case, an adult, furnished the history directly to the psychiatrist, whereas Stephanie's history was furnished by her mother to Dr. Walter. It was resolved in Yellow Cab Co. v. Henderson, 183 Md. 546, 553, 39 A.2d 546, 550 (1944),...