State v. Bolin

• Decision Date: 13 May 1996
• Citation: 922 S.W.2d 870
• Parties: STATE of Tennessee, Appellee, v. Darel G. BOLIN, Appellant.
• Court: Tennessee Supreme Court

Page 870

922 S.W.2d 870

STATE of Tennessee, Appellee, v. Darel G. BOLIN, Appellant.

Supreme Court of Tennessee at Knoxville.

May 13, 1996.

Joe L. Finley, Jr., Assistant Public Defender, Cookeville, for Appellant.

Charles W. Burson, Attorney General & Reporter, Michael E. Moore, Solicitor General, Gordon W. Smith, Associate Solicitor General, Nashville, William E. Gibson, District Attorney General and David A. Patterson, Assistant District Attorney General, Cookeville, for Appellee.

OPINION

DROWOTA, Justice.

The defendant, Darel G. Bolin, appeals from the Court of Criminal Appeals' affirmance of his conviction for the aggravated sexual battery of a nine year old girl. This case presents two issues for our determination: (1) whether the admission at trial of a social worker's testimony, which consisted of a general statement that young victims of repeated sexual abuse have trouble remembering when the specific events of abuse occurred, constitutes reversible error; and (2) whether the verdict was an impermissible "patchwork" because the evidence did not support the jury's finding of aggravated sexual battery. For the reasons set forth below, we conclude that no reversible error occurred, and therefore, we affirm the judgment of the Court of Criminal Appeals.

FACTS AND PROCEDURAL HISTORY

In March 1992 K.N., the nine-year old daughter of the defendant's live-in girlfriend, wrote a note to her teacher in which she stated that "my dad likes me in the wrong way, he touches my middle part." The teacher then informed the Department of Human Services (DHS), who conducted a series of interviews in which K.N. related the details of the events. As a result of these interviews, in May 1992 the Cumberland County Grand Jury indicted the defendant for the aggravated rape of K.N. The indictment stated that this offense occurred "on several occasions during the past three (3) years."

At trial K.N. testified that on numerous occasions the defendant went into the bathroom with her, required her to hold Playboy magazines in front of her face, and "made me put my hand on his thing and made me go up and down, and sometimes he made me put my mouth on it." K.N. stated that on one particular occasion she was required to perform fellatio on the defendant, and that she spat the "icky stuff" that came out of his penis into the sink. K.N. also stated that the defendant sometimes cornered her in a bedroom and tried to put his penis inside her, but that she "scooted away" from him. K.N. testified that the defendant threatened to kill her, her mother and her twelve year old brother Chad if she told anyone of their activities. K.N. could not say exactly when the sexual events occurred, but stated that they happened when she was probably "going on nine." On cross-examination K.N. admitted that she and Chad had told their mother in the summer of 1992 that the events did not occur. K.N. also testified that she and Chad had made these untrue statements in order to protect their mother.

The State also called Chad as a witness. Chad stated that on one occasion he observed the defendant and K.N. in the bedroom, that their pants were down, and that the defendant was holding K.N.'s wrists and trying to put his penis inside her. Chad testified that he did not tell anyone about this because "I'd be put in foster care, Darel would be put in jail, and mama would be all upset and everything." Chad also admitted that, in the late spring or summer of 1992, he had told his mother that nothing had occurred between the defendant and K.N. However, he also explained that he told his mother this so as not to upset her.

The State's final witness was K.N.'s mother. She testified that the defendant lived with her and the children intermittently since 1987, and full-time from August 1991 to March 1992. The mother stated that she and the defendant had planned to get married in April of 1992. She also testified she knew nothing of any improper contact between K.N. and the defendant, and that the only incident between them having any connection to sex occurred in February 1992 when the defendant informed the mother that K.N. had walked in on him while he was masturbating in the bathroom. The mother stated that at no time did K.N. ever tell her that the defendant had done anything to her.

The defense called as its first witness Dr. William Colburn. Dr. Colburn testified that there was no clear medical evidence that K.N. had been abused. However, Dr. Colburn also stated that K.N. told him that the defendant had attempted to place his penis inside her several times, but that she had always eluded him. Dr. Colburn also testified that K.N. had told him that she had never been abused by anyone other than the defendant.

The defense next called Dr. Mary Sentef, a pediatrician who testified that in January 1988 K.N. reported being sexually abused by her babysitter's eleven year old son. Dr. Sentef testified that she examined K.N., concluded that sexual abuse had possibly occurred, and then contacted DHS.

The defendant then took the stand. He denied having any improper contact with K.N., although he did mention the bathroom incident testified to by the mother. The defendant testified that K.N. and her brother disliked him and were jealous of his relationship with the mother; the defendant also hypothesized that K.N. fabricated the charges against him so as to get rid of him and thwart the impending marriage between him and their mother.

The final witness called by the defense was Dorothy Terwilliger, a social worker employed by DHS. Terwilliger testified that she interviewed K.N. on March 31, 1992--soon after K.N. wrote the note to the teacher--and that K.N. told her that the defendant had held her wrists and tried to place his penis inside her. Terwilliger testified that K.N. did not mention that she had ever been made to perform oral sex on the defendant during the first interview session; she testified that these details had surfaced in later interviews. Terwilliger also stated that K.N. could not specify when the abuse occurred: K.N. first said in the interview that the abuse occurred "about five years ago," but after further questioning, she said that it occurred "about two years ago." On the State's cross-examination of Terwilliger, the following colloquy took place:

Q: Has K.N. ever made a statement, to your knowledge, that's inconsistent with her original statement? I know there's been more detail that's come out across the course of this investigation. Do you know of any inconsistency?

A: I would say that the time frames with [K.N.] may be inconsistent. And if you're abused over a long period of time ... (interrupted)

Defense Counsel: I'm going to object, your honor, to all these interpretations on how to tell what the truth is. That's the jury's job.

The Court: Well, she may answer the question. Overruled.

Defense counsel: But she didn't answer the question. The question was, did she make inconsistent statements, not a psychological opinion.

The Court: You may answer the question.

A: Children that are abused over a long period of time or are abused on multiple occasions have a difficult time remembering when, where and how each event takes place. It's hard to get a child to remember what they had for supper last night sometimes. The child who is traumatized certainly can't remember what, when and how on specific dates. We try to get them to focus on what grade they may have been in school at the time, was it cold or warm outside, was it around Christmas time, or try to pin them down, but it's just about impossible.

(emphasis added.)

At the conclusion of the proof, the State elected to proceed on the incident where the defendant allegedly forced K.N. to perform fellatio upon him in the bathroom. The jury found the defendant guilty of aggravated sexual battery. Tenn.Code Ann. § 39-13-504(a). The defendant then appealed from this judgment to the Court of Criminal Appeals, and that court affirmed the judgment. We granted the defendant's application for permission to appeal pursuant to Rule 11, Tenn.R.App.P., to address whether the trial court erred in admitting the emphasized testimony of the social worker, and whether the error, if any, requires reversal of the conviction.

I.

The first issue we address is whether the admission of the testimony was erroneous. In State v. Ballard, 855 S.W.2d 557 (Tenn.1993), we held that the admission of expert testimony as to the "child sexual abuse syndrome"--a constellation of symptoms supposedly exhibited by young victims of sexual abuse ¹--was error. We stated that:

Research has led us to conclude that no one symptom or group of symptoms are readily agreed upon in the medical field that would provide a reliable indication of the presence of sexual abuse. A behavioral profile that is sufficient for the purposes of psychological treatment between patient and doctor does not rise to the strict requirements necessary for admissibility in a criminal court of law. A dysfunctional behavioral profile may be brought on by any number of stressful experiences, albeit, including sexual abuse. However, the list of symptoms described by [the expert in this case] are too generic. The same symptoms may be exhibited by many children who are merely distressed by the turbulence of growing up.

Further, because no consensus exists on the reliability of a psychological profile to determine abuse, expert testimony describing the behavior of an allegedly sexually abused child is not reliable enough to 'substantially assist' a jury in an inquiry of whether the crime of child sexual abuse has taken place.

Ballard, 855 S.W.2d at 562 (citation omitted.) After setting forth our objections, we concluded that "expert testimony of this type invades the province of the jury to decide on the credibility of witnesses." Id. See also State v. Anderson, 880 S.W.2d 720 (Tenn.Crim.App.1994); State v. Schimpf, 782 S.W.2d 186 (Tenn.Crim.App.1989).

The...