Johnson v. State, CR
| Decision Date | 06 July 1987 |
| Docket Number | No. CR,CR |
| Citation | 292 Ark. 632,732 S.W.2d 817 |
| Parties | , 56 USLW 2041 Joe Henry JOHNSON, Appellant, v. STATE of Arkansas, Appellee. 86-150. |
| Court | Arkansas Supreme Court |
Lohnes T. Tiner, Harrisburg, Chet Dunlap, Trumann, for appellant.
Steve Clark, Atty. Gen. by Lee Taylor Franke, Asst. Atty. Gen., Little Rock, for appellee.
This is a child sexual abuse case in which the appellant was convicted of raping the nine-year-old son (the boy) of the woman with whom he was living (the mother). We find that one of the appellant's eight points of appeal requires reversal. It was prejudicial error for the trial court to have permitted the physician who examined the alleged victim to state, albeit indirectly, that the boy had been sexually abused. The remaining points will be addressed only to the extent it may be helpful in the event of a retrial.
The appellant and the mother had lived together for eight years. Living with them was the boy, who was the mother's son but not the son of the appellant, and a younger daughter who was fathered by the appellant.
At the trial the boy testified that the appellant was planning to go fishing on April 27, 1985, with the boy and two other men. As the plans developed, a decision was made that it would be an overnight trip, and thus the boy could not go. He testified that he became angry and went into the house where his mother whipped him for picking on his little sister. He then told his mother that the appellant had sexually molested him. His mother took him to a hospital where he told the examining doctor, a pediatrician, the same thing. The boy then testified that his statements about the appellant had been untrue, as had his subsequent, similar, statements to a police officer, social worker, and deputy prosecutor.
The testimony of other witnesses indicated that the boy had accused the appellant of having anal and oral intercourse with him and then recanting the accusation and then recanting the recantation.
Police officers testified that the appellant, during questioning after his arrest, admitted rubbing his penis around the boy's anus and saying that "it might have slipped in." They said when they began questioning the appellant he refused to permit them to tape record his statement. After they had questioned him, they asked him to sign a written version of his statement, and he said he would not sign anything until after he had talked with a lawyer. At that point the questioning ceased. The appellant denied having made any such admission to the officers.
The evidence against the appellant thus consisted of (1) the officers' testimony about the appellant's statement, (2) the doctor's statement about what the boy had told him and his opinion that the boy had been abused, and (3) the statements of various persons about what the boy had told them when he accused the appellant and when he took back his accusations.
The doctor who examined the boy testified he found no physical evidence of the anal intercourse the boy said had taken place that day. The doctor said that lack of such evidence would not rule out the possibility that it had occurred. He testified that the boy told him the sexual relationship with the appellant had existed for some months and the acts had occurred on several occasions. The prosecutor then asked the doctor if he had examined many other children for alleged sexual abuse. The appellant objected, and at that point wrangling in bench conferences and otherwise out of the hearing of the jury began over whether the doctor could express an opinion whether the boy in this case had been sexually abused.
The court refused to allow the doctor to express his opinion whether the boy had told him the truth. However, the court allowed the doctor to give "an opinion as to whether or not child abuse existed." The appellant objected, contending the doctor had no basis for such an opinion other than the boy's out-of-court statement. The court responded that the doctor could give his opinion based upon "history, coupled with the physical facts, the living conditions that his parent related, ... and the facts and circumstances at hand...." The appellant argued that the "history," and the completely negative physical examination were the only bases the doctor could have had for his opinion. The court said the question could be asked and if the appellant wished to cross-examine on the bases for the opinion he could do so. The doctor had been admonished not to say his opinion was based solely on his belief of what the boy told him. When the jury returned to the courtroom, the questioning went like this:
BY MR. HUNTER [the prosecutor]:
Q. Doctor Kemp, during the time that you talked to [the boy] and examined him, what was his demeanor, one of voice, that sort of thing?
A. He seemed very concerned. Somewhat frightened. Worried. Very tense, anxious, and nervous. Obviously upset. Somewhat--obviously embarrassed with the conversation, and what he was saying to me.
Q. Ok. And you've indicated, Doctor Kemp, by pointing to the genital area, and the rectal area how he described what happened to him.
Did [the boy] ever use words, particular words to describe what he told you this defendant did to him?
A. He used words like his thing, and I would say, "What do you mean his thing" And he would--he would say, "Well, you know what I mean." And I would say, "No, ..., what do you mean." And he would then point to his own penis and say, "This is what I mean, and I said, "You mean this is what you're talking about when you say his thing," and he would say, "Yes." Descriptions like that.
Q. Do you remember how he referred to his hind part?
A. He initially pointed to his rectal area in--in describing where the thing was placed.
Q. Did he refer to it ever as his bottom?
A. Yes, he used that term once.
Q. Do you remember in what connection he referred to his hind part as his bottom?
A. He kept saying to me that he--he put his thing in my bottom, or--or point--he would point say, you know, back here.
Q. Doctor Kemp, based upon your examination of [the boy], the history that you took, including his living circumstances, and physical examination, did you formulate an opinion to within a reasonable degree of medicatl certainty, as to whether or not [the boy] had been subjected to sexual abuse?
A. Yes, I did.
Q. And Doctor Kemp, will you tell the ladies and gentlemen of the jury, please, what that opinion is?
A. I feel like I could not ignore the child's comments to me. His sincerity--
MR. TINER [defense counsel]:
Judge, I'm objecting. The answer is not responsive.
MR. HUNTER:
Your Honor, he's entitled to explain what his opinion was based on.
Doctor, you said you formed an opinion. Can you state in general terms what the opinion was relative to child molestation or abuse?
A. I had an opinion based on the history that this child gave me, and my experience in dealing with children through the years, that an act had occurred that I considered detrimental to this child's health.
MR. TINER:
Judge, may we approach the Bench?
Judge, at this time, we're going to move for a mistrial because he said, "Based upon the history that the child gave him, and based upon examining other children." And that's what it's based upon, and that is improper, and we're asking for a mistrial.
I am going to deny your motion. And I am going to tell you at this time, Mr. Hunter, to go on to something else.
MR. HUNTER:
We are, your Honor.
MR. TINER:
We would ask the Court to admonish the jury to disregard the last statement that was made by the Doctor.
No, that will be denied.
It is apparent the doctor ultimately conveyed to the jury his opinion that the boy was telling the truth. It was error, however, for the court to have permitted the doctor to have given his opinion that "an act had occurred that [he] considered detrimental to this child's health." The only "act" to which the doctor's testimony could have referred was the anal intercourse related to him by the boy. The opinion of an expert that a child has been sexually abused is not objectionable on the basis that it is an opinion on the "ultimate issue." A.R.E. 704; Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986). The question here is whether such an opinion may be expressed if it is based on nothing but the "history" given by the child.
In Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), a psychologist testified in a rape and child sexual abuse case that, based on her experience, what the child had told her was "consistent with a child who has been abused." The majority opinion said:
The appellant argues that the trial court erred in allowing the witness to answer whether the child's statements were consistent with sexual abuse because the subject matter was not beyond the common knowledge of the jury. The argument is meritorious.
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 issue. Unif. R. Evid. 702; B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact's ability to understand and draw its own conclusions. B & J Byers Trucking, Inc. v. Robinson, supra. Here, lay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.
Accordingly, we conclude the trial court erred in admitting the testimony. The issue then becomes whether the error was prejudicial. The State's case against the appellant was so strong, and the error so inconsequential, that we find no prejudice.
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