Butler v. State, 71320

• Decision Date: 13 February 1986
• Docket Number: No. 71320,71320
• Citation: 342 S.E.2d 338,178 Ga.App. 110
• Parties: BUTLER v. The STATE.
• Court: Georgia Court of Appeals

Page 338

342 S.E.2d 338

178 Ga.App. 110

BUTLER v. The STATE.

No. 71320.

Court of Appeals of Georgia.

Feb. 13, 1986.

Rehearing Denied March 5, 1986.

Certiorari Granted April 24, 1986.

Thomas C. Sanders, Dallas, for appellant.

William A. Foster III, Dist. Atty., Penny J. Udolf, Christine C. Daniel, Asst. Dist. Attys., for appellee.

BANKE, Chief Judge.

Gary Wayne Butler appeals his convictions of statutory rape, aggravated sodomy, and child molestation.

The alleged victim, who was seven years old at the time of trial, testified that she knew that it was important to tell the truth and that she would be in "big bad trouble" if she did not do so. She also promised that she would tell the truth during the trial. When cross-examined with respect to her competency, however, she testified that she did not know what an oath was. Held:

1. The defendant contends that the trial court erred in determining that the child was competent to testify as a witness.

In order for a child to be competent to testify as a witness, it is not necessary that the child know either the meaning of the word "oath" or the penalties for perjury. See Hill v. State, 251 Ga. 430, 306 S.E.2d 653 (1983); Maynard v. State, 171 Ga.App. 605(1), 320 S.E.2d 806 (1984). The standard of intelligence required to qualify a child as a witness is that she "know and appreciate the fact that as a witness [s]he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as [s]he may be interrogated on, and that if [s]he violates the obligation [s]he is subject to be punished by the court. [Cits.]" Smith v. State, 247 Ga. 511, 277 S.E.2d 53 (1981). The determination of the competency of a witness is a matter within the discretion of the trial court. See generally OCGA § 24-9-7; Lancaster v. State, 250 Ga. 871(2), 301 S.E.2d 882 (1983); Hicks v. State, 175 Ga.App. 243(1), 333 S.E.2d 113 (1985). We find no abuse of discretion on the part of the trial court in the present case in determining that the witness was competent to testify. Accord Maynard v. State, supra.

2. The defendant contends that the trial court erred in allowing a pediatrician to testify that in her opinion the child had been sexually molested.

The defendant resided in a trailer located behind his parent's house. His mother provided day care at her residence for several young children, including the alleged victim in this case, who, after initially denying several times having ever been alone with the defendant, testified that she had been sexually abused on separate occasions both inside the trailer and in the basement of the house. It was shown that the child had been entrusted to the care of the defendant's mother during different intervals over a 3-year period, the last two being from May through August of 1984 and from October 23 through 30 of 1984. The child molestation was alleged to have occurred on June 5, 1984, and the statutory rape and aggravated sodomy on October 29, 1984. However, the child's testimony was somewhat vague, and the evidence as a whole conflicting, as to the actual dates these offenses had occurred.

Dr. Ann Fleming, a pediatrician who had examined the child on November 2, 1984, testified that she had observed no signs of trauma to the genitalia, although the hymen was not intact and the vaginal opening was a little larger than normal for a child of that age. Her diagnosis of the child's physical condition was "essentially normal"; and she was unable to state, on the basis of the physical examination alone, that any molestation had occurred. She did, however, reach the opinion that molestation had occurred based on statements she had elicited from the child during the physical examination, and over objection, was allowed to express this opinion to the jury.

"Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible [only] where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Cits.]" Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981). Although Dr. Fleming was more qualified than the average person to express an opinion as to whether the child's ruptured hymen and slightly enlarged vaginal opening were caused by sexual molestation, her opinion that sexual abuse had occurred was not based on such a medical determination but upon her reliance on the child's statements to her, which in turn was based on her belief that "most people who have a lot of training in child development or child psychology understand that children of a certain age who are old enough to know truth from a lie can't lie about anything they don't really have an experience about."

We have been presented with no authority, nor are we aware of any, to the effect that a pediatrician is better qualified to assess the credibility of a child than the average lay person. The resolution of the credibility of all witnesses, including children, rests solely with the jury. See Parker v. State, 172 Ga.App. 540(6), 323 S.E.2d 826 (1984); Hicks v. State, supra, 175 Ga.App. at 244, 333 S.E.2d 113. Dr. Fleming's opinion regarding the child's credibility was not one which was beyond the key of the average layman, and we consequently hold that the trial court erred in allowing it. Given the circumstances of the case, this error cannot be considered harmless. Accord Fordham v. State, 254 Ga. 59, 325 S.E.2d 755 (1985).

3. The defendant contends that the evidence of statutory rape is insufficient because the victim's testimony was not corroborated. As discussed previously, there was at least some evidence that the child's hymen was not intact and that her vaginal opening was larger than normal for a child her age. There was also evidence that, on the day after the statutory rape was alleged to have occurred and again on the following day, after the child complained to her mother about the way the defendant "teased" her, her mother took her to the police station, where the child made a formal complaint with regard to the offenses of which appellant was convicted. A complaint made by a rape victim shortly after the commission of the offense to a person to whom such complaint would normally be made is admissible to corroborate the victim's testimony that a rape was committed. See Price v. State, 233 Ga. 332(2), 211 S.E.2d 290 (1974); Copeland v. State, 160 Ga.App. 786(2), 287 S.E.2d 120 (1981). Furthermore, "[s]light circumstances may be sufficient corroboration, and the question of corroboration is one for the jury. [Cit.]" Brown v. State, 173 Ga.App. 640, 641, 327 S.E.2d 515 (1985). See also Burnett v. State, 236 Ga. 597(1), 225 S.E.2d 28 (1976). We cannot say that there was not at least "slight circumstances" in the present case sufficient to corroborate the victim's testimony.

4. The defendant contends that the evidence is also insufficient to support the child molestation and aggravated sodomy convictions. Although the evidence of guilt was not so overwhelming as to render the error of the trial court discussed in Division 2 of this opinion harmless, we are satisfied that, excluding the inadmissible testimony of the pediatrician, there remains sufficient evidence from which a rational trier of fact could have found beyond reasonable doubt that appellant was guilty of all three offenses. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brennon v. State, 253 Ga. 240(2), 319 S.E.2d 841 (1984). Nevertheless, because of our holding in Division 2, supra, reversal is required.

Judgment reversed.

BIRDSONG, P.J., and CARLEY, SOGNIER and POPE, JJ., concur.

DEEN and McMURRAY, P. JJ., and BENHAM and BEASLEY, JJ., dissent.

McMURRAY, Presiding Judge, dissenting.

I would affirm the judgment of the trial court as I find no error in allowing the pediatrician to express her opinion concerning the sexual molestation of the child. Medical opinions concerning a patient's physical condition are admissible in evidence even when they are based, at least in part, upon the history elicited from the patient. State v. Beeson, 248 Or. 411, 434 P.2d 460, 461 (1967). See also Petty v. Folsom, 229 Ga. 477, 192 S.E.2d 246. Why? Because "[W]hat a physician hears from a patient is not hearsay as to the fact of the conversation, and is part of his observation, as distinguished from the truth of the content, or as distinguished from what he hears of the patient from others." Petty v. Folsom, 229 Ga. 477, 480, 192 S.E.2d 246, supra. See also Fields v. State, 221 Ga. 307, 309(2), 144 S.E.2d 339. The key to admissibility is whether the statements elicited from the patient are of a kind normally relied upon by the physician in his particular field of expertise, State v. Steelman, 120 Ariz. 301, 585 P.2d 1213, 1230 (1978), and whether the statements are of help to the physician in his diagnosis. State v. Contreras, 105 R.I. 523, 253 A.2d 612, 619 (1969).

In the case sub judice, the pediatrician expressed her opinion as to whether the...