State v. Anderson

• Decision Date: 20 January 1994
• Citation: 880 S.W.2d 720
• Parties: STATE of Tennessee, Appellee, v. Bobby M. ANDERSON, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 720

880 S.W.2d 720

STATE of Tennessee, Appellee, v. Bobby M. ANDERSON, Appellant.

Court of Criminal Appeals of Tennessee,

at Nashville.

Jan. 20, 1994.

Permission to Appeal Denied by

Supreme Court June 13, 1994.

Martin G. Szeigis, Nashville, for appellant.

Charles W. Burson, Atty. Gen. and Reporter, Merrilyn Feirman, Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen. and Nick Bailey, Asst. Dist. Atty. Gen., Nashville, for State.

WADE, Judge.

OPINION

The defendant, Bobby M. Anderson, was convicted on six counts of aggravated rape. The trial court imposed sentences of 16- 1/2 years on each count. Counts 1, 2 and 3 are concurrent with each other; Counts 4, 5 and 6 are also concurrent with each other, but consecutive to the sentences imposed in Counts 1, 2 and 3. The effective sentence is, therefore, 33 years.

The defendant presents three issues for appellate review:

(1) whether the trial court erred in denying the defendant's motion for judgments of acquittal on each count;

(2) whether the trial court erred in imposing consecutive sentences; and

(3) whether the trial court erred by allowing a licensed clinical social worker to qualify as an expert witness and give testimony about characteristics, specifically recantation, believed to be typical among child victims of sexual abuse.

We find that the trial court erroneously admitted testimony by the social worker. Accordingly, the convictions are reversed. Because we are unable to classify the error as harmless, we remand for a new trial on each count.

The victim, eight years old at the time of the trial, is a first cousin to the defendant. The defendant, age twenty-four, had resided with the victim and his parents for a year or more at two separate residences when the crimes allegedly occurred.

The convictions are based almost entirely upon the testimony of the victim. He related that he would occasionally stay with the defendant alone while his parents were at work. They slept in adjacent bedrooms. When asked whether the defendant ever did anything that he did not like, the victim answered that the defendant "touched my private" with both his hand and his mouth. In his own language, the victim testified to instances where each had performed both oral and anal sex on the other. The events first occurred when the victim was 6 years old and lived at 1253 Old Hickory Boulevard in Nashville.

The victim testified that the first sexual contact occurred in his bedroom while his mother and father were asleep in a room next door. When asked about how many times it occurred, the victim testified, "A lot." Although initially uncertain whether further sexual contact occurred after the first instance, the victim later recalled that after he and his parents had moved to 649 West Old Hickory Boulevard (where they lived at the time of trial), there were other occurrences of both oral and anal sex--each performed by the other. The victim admitted that he had never asked the defendant to stop. He testified that the defendant warned the victim that if he told either his mother or his father, that he would get a whipping.

The victim related that he first mentioned the incidents to his 12-year-old female cousin, H.H. In turn, H.H. told her mother, Deborah Halliburton. When confronted by Ms. Halliburton and H.H., the victim first denied that he had made such a statement. Later, he admitted to his aunt that he had told his cousin of the events but then denied that what he had alleged was true. After this denial, the victim admitted to both the defendant and Ricky Halliburton, that his allegations were untrue.

During his testimony, the victim acknowledged that he had at first told his mother that he had lied about the incident. He stated that he went to his room for a time, returned, and then told his mother that his original allegations against the defendant were true.

On cross-examination, the victim admitted having told both H.H. and her brother, Ricky Halliburton, that he had made up the whole story and was "only joking." On redirect, the victim acknowledged that he and H.H. had done some "bad things" as well. He related that he would "get on top" of his 12-year-old female cousin; he claimed to have learned that behavior from instances of sexual misconduct by the defendant. On recross, however, the victim stated that he had done those things with his cousin before the defendant came to live with them. The victim agreed that the defendant was always nice, never hurt him, and would often buy him things. Although the victim admitted that he liked the defendant when they lived together, he stated that he no longer cared for the defendant and was not sad when the defendant moved away to live with his girlfriend.

By our count, the record demonstrates that the victim, by his own testimony, recanted his initial allegations against the defendant on four separate occasions to five different people.

Janet Lee Norris is the mother of the victim and an aunt of the defendant. At trial, she testified that the defendant came to live with her family in May of 1989 and continued living with them until July 17, 1990. She described the relationship between her son and the defendant as close. One day after work, the defendant told her to call her sister, Ms. Halliburton. It was during this telephone conversation that Ms. Norris said she first learned of the allegations against the defendant. When directly questioned, the victim at first denied that the charges were true; about 10 minutes later, however, the victim tearfully admitted to her the truth of his assertions. The victim explained to his mother that he had initially denied the occurrences only because of his concern that he might be punished by his parents and his more general fear of getting in trouble. Ms. Norris testified that her son acknowledged that he had told others he had lied about the incidents. She notified the Rape and Sexual Abuse Center immediately. Two days later, the victim was examined at General Hospital.

Ms. Norris admitted that she had never seen the defendant do or say anything improper to the victim. The victim exhibited no fear of the defendant in her presence and had never complained about his conduct. She acknowledged that she and her husband had a pornographic video in her residence but asserted that they did not watch it when the victim was in the house. Ms. Norris was unaware that the defendant had ever been in her son's room after she had gone to bed but explained that she and her husband always left the radio on during their sleep.

Ms. Halliburton also testified for the state. She generally corroborated the sequence of events. Her 12-year-old daughter, H.H., had informed her of the victim's allegations against the defendant. When confronted, the victim denied that he told her daughter such a story; afterward, the victim cried, apologized, and stated that he had fabricated the story. She described the victim's response as "like he had gotten caught in another lie, to be honest about it." Ms. Halliburton testified that it was not unusual for the victim to make up things. Ms. Halliburton also testified to a bitter relationship that existed between Ms. Norris and Bobby Anderson, Sr., the defendant's father.

Ricky Halliburton, stationed in Germany with the United States Air Force at the time of trial, was subpoenaed to trial by the defendant but used as a state's witness. In a conversation that allegedly took place on July 5, 1990, he recalled the victim saying that he had made up the allegations against the defendant in an effort to be "funny." Halliburton testified that about two weeks later the victim repeated his claim that he had done nothing improper with the defendant. Halliburton also remembered that he had watched a pornographic video at the Norris residence sometime before the allegations were made known. When the victim walked in, Halliburton turned off the video.

Leane McGinnis, a family nurse practitioner, testified that she was on the child abuse evaluation team at the time of the complaint by the victim. The victim claimed to her that he had been sexually abused by the defendant. She examined the victim on July 19, 1990. She described the results as negative. Nonetheless, she stated that her findings did not necessarily preclude the possibility of anal penetration. She examined the victim with a Colposcope, which magnifies about ten to fifteen times, in order to determine the presence of cuts, scratches, or abrasions. Although Ms. McGinnis could neither confirm nor deny sexual abuse, she found no objection, medical evidence to support any such behavior.

Shelly Swift Johnston, formerly employed as a Child Protective Service Worker II with the Tennessee Department of Human Services, was with the Department's Sexual Abuse Unit at the time the allegations were made. Both Ms. Johnston and Virginia Blanton, a criminal investigator with the district attorney's office, participated in the investigation. Each interviewed the victim and his mother. Ms. Blanton also interviewed Ms. Halliburton.

H.H. testified for the defense. She stated that on the day the allegations were made, the victim was watching "naked people" on television before she told him to turn it off because she thought the defendant would object. At that point, the victim said, "No, me and [the defendant] do that." H.H. stated that she did not believe the victim's allegations but told her mother anyway. When confronted by Ms. Halliburton, the victim first claimed that H.H. had lied to her mother. Later, H.H. asked the victim to swear on a cross to the truthfulness of his allegations. At first he did so; subsequently, however, he admitted to her that he had lied when he made the charges. H.H. also testified that she and the victim had "touched" each other some four years earlier. She said the victim began to "touch" her again during the time the defendant resided with the victim and his family.

Edith Felts, the...