Henson v. State

• Decision Date: 31 March 1989
• Docket Number: No. 34S00-8606-CR-552,34S00-8606-CR-552
• Citation: 535 N.E.2d 1189
• Parties: Rickey J. HENSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1189

535 N.E.2d 1189

57 USLW 2601

Rickey J. HENSON, Appellant, v. STATE of Indiana, Appellee.

No. 34S00-8606-CR-552.

Supreme Court of Indiana.

March 31, 1989.

Susan K. Carpenter, Public Defender, June D. Oldham, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant Rickey J. Henson was convicted in a jury trial of Rape as a Class B Felony, Criminal Deviate Conduct as a Class A Felony, Criminal Confinement, and Battery in Howard Circuit Court. He was sentenced to fifteen years for Rape, forty-five years for Criminal Deviate Conduct, both of which were to be served concurrently, fifteen years for Criminal Confinement and five years for Battery, both of which were to be served consecutive to each other as well as to the first two sentences.

On appeal, Henson argues that there was insufficient evidence presented at trial to sustain the convictions and that the trial court erred by not allowing the testimony of an expert witness that the victim's conduct after the alleged rape was inconsistent with that of a person who had suffered a traumatic forcible rape. We find that, while there was sufficient evidence presented by the State to convict the appellant, there was reversible error committed on the second issue.

The facts which tend to support the conviction are as follows: Henson was at a crowded bar in Kokomo and asked J.O., who was sitting alone, if he could join her. She consented and the two exchanged names, but otherwise did not speak. Two other men joined them at the table and J.O. danced with them during the course of the evening but not with Henson. J.O. stayed at the bar until it closed and then left to have more drinks at the home of one of the bar's waitresses. After she got in her car, but before she could shut the door, Henson approached her with a knife, pushed her over to the passenger's seat, got in the car and drove to a secluded place. He then forced her to have sexual intercourse with him as well as oral sex. He also attempted to cut her blouse off with the knife and J.O. received superficial lacerations as a result. The next evening, J.O. returned to the same bar where she stayed for two hours and drank.

At trial, one witness testified that J.O. was drinking as well as dancing on the evening after the rape allegedly occurred. Defendant then called a psychologist, Dr. David Gover, and established that the witness was an expert in the study and treatment of post-traumatic stress syndrome. Defendant's counsel then asked the following question:

Q. Doctor, in your professional opinion, a person who has allegedly suffered a traumatic, forcible rape, would it be consistent in your experience that a person who had gone through a situation such as that would go back to the same place the act allegedly occurred and socialize, drink, dance, on the same day of the alleged act?

After establishing that Dr. Gover had never consulted with J.O. personally and that he had no firsthand knowledge of the incident in question, the prosecution objected to the question. The objection was sustained on the grounds that the testimony was not relevant and that a proper foundation had not been laid. There followed a lengthy offer to prove, out of the jury's presence, in which the objection was again sustained on the grounds that the testimony was too speculative.

The testimony of Dr. Gover would clearly have been relevant to the issues at trial. Evidence is relevant if it is material and has probative value. Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634. Evidence is material if it is offered to prove a matter in issue. Evidence has probative value if it has any tendency to make the existence of any fact that is of consequence to the determination of the action (i.e., any material fact) more or less probable than it would be without the evidence. Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811; McCormick on Evidence, Sec. 185, p. 542 (E.W.Cleary 3rd ed. 1984). Here, Dr. Gover's testimony would have tended to prove that J.O.'s behavior after the incident was inconsistent with that of a victim who had suffered a traumatic rape such as that which J.O. recounted. The evidence therefore would have a tendency to make it less probable that a rape in fact occurred, clearly a matter in issue at trial, and was therefore relevant.

Still, where an expert is to give opinion testimony in the form of an answer to a hypothetical question, more than mere relevance is required to make the evidence admissible. A proper foundation must be laid which is two-fold. First, the expert's ability to give such an opinion must be established through testimony showing he has the requisite knowledge, skill, education or experience on which to base the opinion. However, firsthand knowledge of the facts are not required. It is well established in our state that an expert may give opinion testimony even though he does not have personal knowledge of the facts on which his opinion is based. City of Indianapolis v. Robinson (1981), Ind.App., 427 N.E.2d 902. Second, there must be a proper evidentiary foundation supporting the facts that are included in the hypothetical question. That is to say, a hypothetical question is proper if it embraces facts that have been placed into evidence. However, it is not necessary that a hypothetical question include all pertinent facts that are in evidence. Davidson v. State (1983), 135 Ind. 254, 34 N.E. 972; Dahlberg v. Ogle (1978), 268 Ind. 30, 373 N.E.2d 159. If the opposing counsel feels the facts included do not fairly include all the pertinent facts as presented in the record, the remedy is not exclusion of the expert's testimony but to include such facts in questions on cross-examination. Id. Additionally, an expert may not testify as to matters which are within the common knowledge and experience of the jurors. Rosenbalm v. Winski (1975), 165 Ind.App. 378, 332 N.E.2d 249. This would include testimony directly expressing an opinion as to the credibility of other witnesses, an area well within a juror's common knowledge and experience. Head v. State (1988), Ind., 519 N.E.2d 151.

Here both foundations were met. The record indicates that, once counsel for the defendant had fully explored Dr. Gover's credentials, the trial court was fully satisfied with the psychologist's ability to testify. The evidence shows Dr. Gover had worked extensively with patients who had suffered from post-traumatic stress syndrome and these included patients with rape in their backgrounds. Moreover, there was ample evidence to support the facts embraced by the hypothetical question posed to Dr. Gover by defendant's counsel. One witness for the prosecution had testified that J.O. had returned to the bar on the evening after the alleged rape and was drinking and dancing; and J.O. herself admitted she was drinking at the same bar that evening. If the State did not think the hypothetical embraced facts favorable to its version of the events, its remedy was to bring these inconsistencies out on cross-examination of the witness. Davidson, 135 Ind. 254, 34 N.E. 972; Dahlberg, 268 Ind. 30, 373 N.E.2d 159.

Generally, the admissibility of expert testimony is within the sole discretion of the trial court and reversal is warranted only for abuse of that discretion. Simmons v. State (1987), Ind., 504 N.E.2d 575. In Simmons, this Court considered the admissibility of expert testimony on "rape trauma syndrome" when introduced by the prosecution to show that a victim's behavior was consistent with that of a person who had suffered a traumatic rape, and thus that a rape had occurred. There the credibility of the victim was clearly in issue since she had originally told police investigators an entirely different story about her abduction and rape; and it was not until a month thereafter that she related the true facts of the event. However, there was still an inconsistency over whether she and the defendant had stopped at a particular gas station. Subsequent investigation confirmed that they had stopped at the station, as the defendant, who based his defense on consent, maintained they had done. At trial, the State introduced the testimony of two expert witnesses who had worked with rape victims. The experts testified that the victim's inability to recall stopping at the particular gas station in question was consistent with "rape trauma syndrome." On appeal, this Court held that the trial court's finding that the testimony of the experts was admissible was not an abuse of discretion because they were not giving an opinion as to the credibility of the victim but merely showing...