Harper v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: RAYMOND R. ABRAMSON, Judge
• Citation: Harper v. State, 2019 Ark. App. 163, 573 S.W.3d 596 (Ark. App. 2019)
• Decision Date: 13 March 2019
• Docket Number: No. CR-18-556,CR-18-556
• Parties: Jared HARPER, Appellant v. STATE of Arkansas, Appellee

2019 Ark. App. 163

573 S.W.3d 596

Jared HARPER, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-556

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: March 13, 2019

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

RAYMOND R. ABRAMSON, Judge

Appellant Jared Harper was convicted by a Miller County Circuit Court jury of rape, second-degree sexual assault, and sexual indecency with a child. The judgment entered on April 12, 2018, reflects that Harper was sentenced to an aggregate term of 360 months' imprisonment.¹ On appeal, Harper argues that the circuit court erred by (1) permitting Missy Davidson to testify as an expert witness about victim recantation, (2) denying his motion for a continuance, and (3) denying his motion to produce the prosecutor's notes from an interview with the victim. For the following reasons, we affirm in part and remand for further proceedings.

In March 2015, Harper's eleven-year-old stepdaughter, K.S., disclosed that Harper had been sexually abusing her. On June 26, 2015, the State filed a criminal information charging Harper with rape, second-degree sexual assault, and sexual indecency with a child.

K.S., who was fourteen years old at the time of trial, testified that Harper had sexually abused her from ages seven to ten. K.S. stated that the first time was after she got out of the shower one day. Harper told her to leave her underwear off. Then he "rolled his finger around [her] private part" but did not put his finger inside her vagina. Other times when K.S. and Harper watched movies together on the couch, he touched her "private parts" with his fingers. K.S. testified that Harper attempted to insert his finger into her vagina, but "he never really got it in."

Harper would stop the inappropriate touching after K.S. told him that it hurt.

K.S. explained that Harper's fingers "went past just the outside." Besides touching K.S. with his fingers, Harper also licked K.S.'s vagina several times. Harper "tried to get [his penis] in [her] hole but it hurt too much so he couldn't." K.S. stated that only the tip of Harper's penis went inside her. K.S. testified that on one occasion when Harper was driving to E-Z Mart, he made her put her mouth on his penis. Harper told K.S. that if she put her mouth on his penis, he would buy her something from E-Z Mart.

K.S. described Harper's penis and semen in specific detail. She testified that she did not tell her mother about the abuse for fear of hurting her mother. She said her mother "was in love with [Harper]" and needed him financially to pay the bills at home. K.S. also testified that she still loves Harper and wants his love in return. She believed that letting Harper sexually abuse her would make him love her.

Missy Davidson interviewed K.S. about the sexual-abuse allegations at the Children's Advocacy Center (CAC) in Texarkana on March 27, 2015. Davidson is the CAC program director and also a licensed professional counselor and a forensic interviewer. K.S. told Davidson about some of the sexual abuse, but not all of it. At that point, Harper was no longer living in the house, and K.S. testified that she missed him and wanted him to come back home. She told Davidson that her family had "lost like everything" and that "[a]ll the money was gone." K.S. testified that she "felt guilty" and "responsible" for hurting her mom and her brothers.

In June 2015, K.S.'s mother took K.S. to meet with Randal Harris, an investigator hired by the defense. K.S. testified that she told Harris the sexual abuse did not happen because she "wanted [her] family back." A few weeks later, K.S. met with Davidson at the CAC and told her that the sexual-abuse allegations were not true. K.S. also wrote a three-page letter in late 2016 stating that she made up the sexual-abuse allegations against Harper because of the problems going on in her family.

Then in 2017, K.S. told Davidson that the allegations were true. She testified that at that time she did it because it had been a couple of years, the allegations were "true," and she was a "little older." K.S. testified that after she made the sexual-abuse allegations against Harper, she and her mom did not get along. But after she recanted, their relationship was "great."

Over Harper's objections at trial, Missy Davidson was qualified as an expert witness in forensic interviews. The circuit court allowed Davidson to testify about the phenomenon of recantation, but not specifically about K.S. or Harper. Davidson explained generally how she conducted child interviews at the CAC. When interviewing a child, Davidson asked "neutral open ended non-leading questions." Davidson looked for "sensory details" about what the child saw, heard, felt, tasted, and smelled.

Davidson also explained the five stages of disclosure that a child typically goes through when reporting abuse. Stage one is "denial" in which a child may deny the sexual abuse altogether or deny only portions of it. Stage two involves the "tentative" stage in which the child may give a few details of the abuse but minimize it. The third stage of disclosure is "active" in which the child may go into much more detail about the abuse. "Recantation" is the fourth stage, with a child recanting and saying the abuse never happened. Finally, the last stage is "reaffirmation" in which the child once again confirms the abuse.

Davidson testified that recantation is common. She also explained that some of the reasons for recantation are that the child loves the abuser and wants things to go back to the way they were before disclosure of the abuse. Davidson did not testify about the victim or the allegations in this case.

On appeal, Harper argues that the circuit court should not have permitted the State to present "profile and bolstering evidence to attempt to explain or excuse the accuser's changing stories." Specifically, Harper maintains that it was improper profile evidence, that Davidson should not have been permitted to testify as an expert, and that it was improper bolstering of the "accuser's testimony."

The standard of review on admissibility of expert testimony is abuse of discretion. Johninson v. State , 317 Ark. 431, 878 S.W.2d 727 (1994). Because the admission of testimony is a matter within the circuit court's sound discretion, we will not reverse that decision on appeal absent a manifest abuse of discretion and a showing of prejudice to the defendant. E.g. , Hajek-McClure v. State , 2014 Ark. App. 690, at 3, 450 S.W.3d 259, 261. Abuse of discretion is a high threshold that requires that the circuit court act improvidently, thoughtlessly, or without due consideration. E.g. , id. at 3, 450 S.W.3d at 261–62. The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. E.g. , id. at 3, 450 S.W.3d at 262.

Throughout the trial and again on appeal, Harper argues that Davidson's testimony was improper evidence because she testified about "a profile of persons who accuse, recant and then reaccuse." He further alleged that her testimony was an attempt to bolster K.S.'s credibility. We disagree.

Davidson did not offer "profile" evidence about the type of person who reports sexual abuse, recants, and then reaffirms. Nor did she attempt to "bolster" K.S.'s testimony. Davidson never mentioned K.S.'s name during her entire testimony. Davidson, instead, testified generally about how child-forensic interviews are conducted, the typical five stages of disclosure, and the reasons why a child may recant. Davidson did not attempt to explain why K.S. recanted or that K.S.'s sexual-abuse allegations were credible or that K.S. fit the "profile" of a person who would recant abuse allegations.

Our court has expressly held that expert witnesses may testify generally about forensic interviews and recantation. See Sweeten v. State , 2018 Ark. App. 590, 564 S.W.3d 575 ; see also Hill v. State , 337 Ark. 219, 225, 988 S.W.2d 487, 491 (1999) (holding that the DHS caseworker's testimony about the criteria DHS used to determine whether a child's sexual-abuse allegations warranted further investigation was proper and did not bolster the victim's credibility); Davis v. State , 330 Ark. 501, 508–09, 956 S.W.2d 163, 166 (1997) (holding that the circuit court did not abuse its discretion by allowing a family-service worker with DHS to give expert testimony that it was not unusual for child sexual-abuse victims to recant).

In a December 5, 2018 decision, our court specifically addressed Missy Davidson and her expert testimony in Sweeten , 2018 Ark. App. 590, 564 S.W.3d 575 :

The supreme court has said that it is erroneous for the circuit court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Hill v. State , 337 Ark. 219, 988 S.W.2d 487 (1999). This court reversed in Cox v. State , 93 Ark. App. 419, 220 S.W.3d 231 (2005), because the forensic interviewer testified repeatedly that she believed the victim to be highly credible. We also reversed in Purdie v. State , 2010 Ark. App. 658, 379 S.W.3d 541, because the interviewer reviewed the videotape of the interview with the jury and testified that she did not observe anything that led her to believe that the victim had been coached or that she was fabricating. Here, however, the videos of the interviews were not played for the jury, and Davidson did not testify about the victims or the allegations in this case. Davidson's testimony was more akin to that in Hill , supra , in which a witness testified about the criteria used by the Department of Human Services in evaluating a child's allegation of sexual abuse and the guidelines employed to determine whether the allegations warranted an investigation. The circuit court overruled Hill's objection, finding that the jury was entitled to understand the State's interview and investigation

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