State v. Braun

• Decision Date: 20 February 1990
• Docket Number: No. 890150-CA,890150-CA
• Citation: 787 P.2d 1336
• Parties: STATE of Utah, Plaintiff and Respondent, v. Scott BRAUN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1336

787 P.2d 1336

STATE of Utah, Plaintiff and Respondent, v. Scott BRAUN, Defendant and Appellant.

No. 890150-CA.

Court of Appeals of Utah.

Feb. 20, 1990.

Michael J. Petro, Provo, for defendant and appellant.

R. Paul Van Dam and David Thompson, Salt Lake City, for plaintiff and respondent.

Before DAVIDSON, BILLINGS and ORME, JJ.

BILLINGS, Judge:

Defendant Scott Braun was charged with one count of object rape of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-402.3 (1989), and two counts of sexual abuse of a child, a second degree felony, under Utah Code Ann. § 76-5-404.1 (1989), all counts involving his two daughters. A jury found defendant guilty of one count of sexual abuse of a child and acquitted him of the other two charges. Defendant appeals his conviction. We affirm.

We focus on the facts surrounding defendant's conviction of one count of sexual abuse of his daughter ("A.B."), as he was acquitted on the other counts.

A.B. was five years old at the time of the alleged abuse. At trial, she testified that her father took her into his bedroom and placed her on his bed. She testified she had no pants on, only a T-shirt. A.B. then testified that her father played a "game" called "Beep Beep," where he would touch her "belly button" twice and then touch her vagina. She testified that her father told her that he would "smack" her if she told anyone what had happened.

In addition to A.B.'s testimony, the state relied upon the expert testimony of Dr. William Palmer, a physician, and Dr. Ann Tyler, a psychologist. Dr. Palmer repeated what A.B. had told him about the abuse and then described the findings of his physical examination of A.B. He then testified that the results of his physical examination of A.B. were consistent with her story as to the object rape charge.

Dr. Tyler related the substance of her interviews with A.B. and commented on A.B.'s affect, compared A.B. to profiles of typical sexual abuse victims, and expressed her opinion that A.B. was a victim of sexual abuse.

Prior to trial, defendant requested an independent psychological evaluation of A.B. After hearing testimony concerning the possible trauma the child might suffer if examined by yet another expert, the trial court denied the request. However, the trial court allowed defendant's expert to comment on the video testimony of A.B.'s interview by the state's expert and to testify at length about the techniques used by the state's expert.

In addition to the expert witnesses, A.B.'s testimony was corroborated by her mother, Betsy Braun, and Betsy's friend, Cheryl Dagang, who both testified about conversations with A.B. and observations of A.B. and her sister which were consistent with the child's version of the events.

Based on this testimony, a jury convicted defendant of one count of sexual abuse. The trial judge sentenced defendant to a term of one to fifteen years in prison, but stayed the sentence and placed defendant on eighteen months' probation. This appeal followed. On appeal, defendant claims the trial court erred in (1) allowing expert opinion testimony on the credibility of A.B. and on whether A.B. had been sexually abused; and (2) denying defendant's motion to have an independent or court-appointed psychiatric or psychological evaluation of A.B.

I. EXPERT OPINION TESTIMONY

Defendant contends the trial court erred in admitting expert testimony (1) on the credibility of the child, and (2) that the child was a victim of sexual abuse. The state answers that even if it was error, defendant did not object to the improper testimony at trial and, thus, cannot raise these issues on appeal. Defendant responds that he properly preserved his objections or, alternatively, that the admission of this defective expert opinion testimony was plain error and, thus, we should address the issues for the first time on appeal.

At the outset we note that "[w]e will not disturb the trial court's rulings regarding the admissibility of evidence unless it clearly appears that the lower court was in error." Beldon v. Dalbo, Inc., 752 P.2d 1317, 1319 (Utah Ct.App.1988); see also State v. Gray, 717 P.2d 1313, 1316 (Utah 1986). Guided by this standard, we first determine if the admission of the expert opinion testimony was error.

The seminal case in this area is State v. Rimmasch, 775 P.2d 388 (Utah 1989). In Rimmasch, the defendant was convicted of forcible sexual abuse, rape, forcible sodomy, and incest of a child, based, in part, on expert opinion testimony, objected to by defendant at trial, that the child had been abused. In analyzing the challenged expert testimony, the Rimmasch court discussed three distinct categories: (1) testimony concerning the truthfulness of a child witness on a particular occasion, (2) testimony that there is a psychological and behavioral profile of the typical child sexual abuse victim, and that the victim conformed to the profile and therefore had been abused; and (3) testimony that, based on the expert's subjective "credibility appraisal" of the child during an interview, the child had truthfully described the abuse and therefore had been abused.

Focusing on the first area, the Rimmasch court held Dr. Tyler's testimony ran "afoul of Rule 608(a)," ¹ id. at 392, since she commented on the truthfulness of the child victim on a particular occasion. The court specifically condemned Dr. Tyler's testimony that a child typically does not give such detailed information as the victim gave unless the child had experienced the abuse. Id. at 393. The court also expressed concern about her statement that she thought the child victim had nothing to gain by lying about the abuse. Id.

The court rejected the second and third type of "scientific" opinion testimony, concluding the state had not laid an adequate foundation to establish the reliability of the expert testimony to the effect that the child matched the profile of an abused child or, based on their expert "credibility appraisal," that she had truthfully described incidents of abuse and, therefore, had been abused. The Rimmasch court concluded that neither "credibility assessment" testimony nor child abuse profile testimony has been generally accepted by the legal or scientific communities, nor could the court say it was nevertheless inherently reliable and, therefore, judicial notice of the reliability of such opinion evidence would be inappropriate. Id. at 403. The court found the admission of this unreliable expert testimony violated Utah Rule of Evidence 702. ² Id.

In discussing the "scientific" expert testimony concerning the profile of a typical sexual abuse victim offered by Dr. Palmer and Dr. Tyler, the same experts who testified in this case, the court found "little foundation was offered or demanded by the court as to the scientific basis for the profile of the typical sexually abused child, [or] the ability of the profile to sort the abused from the nonabused with any degree of accuracy." Id. at 395.

Finally, in discussing the "credibility appraisal" of the child victim made by the experts, the court concluded that "nothing has come to our attention suggesting a general acceptance of the proposition that those who regularly treat symptoms of sexual abuse are capable of determining with a high degree of reliability the truthfulness of allegations that one has been abused." Id. at 406. The court ultimately concluded that the cumulative evidentiary errors were harmful error and, thus, reversed and remanded the case for retrial. Id. at 407-08.

In State v. Van Matre, 777 P.2d 459 (Utah 1989), the Utah Supreme Court again reversed a conviction for sexual abuse of a child and sodomy based upon the improper admission of expert opinion evidence. The court concluded that, under Rimmasch, "it was reversible error to permit the experts to assess [the child's] credibility and to testify that [the child] matched certain profile characteristics of a typical sex abuse victim." Id. at 461. Summarizing its holding in Rimmasch, the court stated:

We concluded ... that experts may not give a direct opinion about the truthfulness of a child's description of the incidents of sexual abuse. We determined also that the inherent reliability of the scientific principles and techniques upon which credibility appraisals and profile-based opinion testimony are predicated must be determined before a trial court can admit that evidence.

Id. Interestingly, the court does not comment on whether defendant had objected to this testimony at trial.

In State v. Nelson, 777 P.2d 479 (Utah 1989), the court reversed a sodomy on a child conviction because it found error in the admission of expert testimony evaluating the credibility of the victim's out-of-court statements. The expert witness attempted to satisfy the foundational requirements subsequently delineated in Rimmasch for a "credibility assessment" by detailing the methodology he used in determining whether a person was telling the truth. He testified that he considered internal consistency, external consistency, the amount of detail, and the child's motivation. Id. at 480-81. He applied these factors to the victim's statements and concluded the child was telling the truth. Id. at 481. The court concluded, however, that under Rimmasch, there was inadequate foundation as to the reliability of the expert's methodology. Id.

We now measure the expert opinion testimony admitted in this case against the yardstick provided by Rimmasch and its progeny to determine whether the expert opinion testimony was admitted in violation of rules 608(a) or 702.

A. Dr. Palmer's Testimony

In his brief on appeal, defendant contends Dr. Palmer testified that A.B. had been sexually abused. The record does not support his claim. At trial, defense counsel objected when Dr. Palmer was asked if he believed the child had been sexually abused and Dr. Palmer never responded to the question. The question actually asked and answered by...