State v. Brotherton, 84-1646

• Decision Date: 19 March 1986
• Docket Number: No. 84-1646,84-1646
• Parties: STATE of Iowa, Appellee, v. Earl Franklin BROTHERTON, Appellant.
• Court: Iowa Supreme Court

Page 375

384 N.W.2d 375

STATE of Iowa, Appellee, v. Earl Franklin BROTHERTON, Appellant.

No. 84-1646.

Supreme Court of Iowa.

March 19, 1986.

Charles L. Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Joseline L. Greenley, Co. Atty., for appellee.

Considered en banc.

SCHULTZ, Justice.

Defendant Earl Franklin Brotherton appeals his judgment and sentence entered upon a conviction of second-degree sexual abuse. Iowa Code § 709.3(2). He contends the trial court abused its discretion: (1) in ruling that the four-year-old complaining witness was competent to testify; (2) in allowing expert opinion testimony concerning whether a child would fantasize an incident of sexual abuse; and (3) in denying defendant's motion for a mistrial. He also contends the court erred in admitting hearsay testimony. We affirm the trial court.

Defendant's brother and sister-in-law invited him to live with them in their home. The sister-in-law was expecting a baby and the brother's job required him to spend a great deal of time away from home. Defendant was to help around the house and assist in the care of his three-year-old niece. Soon thereafter the sister-in-law gave birth to a baby boy. In early August 1983, defendant's brother and sister-in-law attended a movie leaving defendant to baby-sit the niece and nephew. Approximately one month later, the sister-in-law observed her three-year-old daughter pushing a doll's legs around her neck and licking the doll between its legs. After questioning the child about the incident, the parents accused defendant of committing sexual acts with their daughter. Eventually defendant was charged with sexual abuse. At trial the complainant, now four years old, testified that on the night her parents attended the movie defendant had licked her vagina and butt and that she had licked his penis.

I. Competency to testify. Defendant filed a pretrial motion challenging the complainant's competency to testify. Following the hearing, the court ruled the child was indeed competent to testify at trial. Defendant renewed his motion prior to trial, during the child's testimony, and at the close of the State's case. All of defendant's motions were unsuccessful.

On appeal defendant alleges the trial court abused its discretion in ruling the complainant was a competent witness. The rules for determining the competency of a witness in civil actions are extended to criminal proceedings. Iowa R.Crim.P. 19(1). Iowa Rule of Evidence 601 provides that "[e]very person of sufficient capacity to understand the obligation of an oath or affirmation is competent to be a witness except as otherwise provided in these rules." We have indicated that determination of a witness' competency to testify has two aspects: "(1) the mental capacity to understand the nature of the questions put and to form and communicate intelligent answers thereto and (2) the moral responsibility to speak to the truth, which is the essence of the nature and obligation of an oath." State v. Harvey, 242 N.W.2d 330, 336 (Iowa 1976).

The trial court is afforded a wide latitude of discretion in ruling on the competency of witnesses. State v. Paulsen, 265 N.W.2d 581, 586 (Iowa 1978). On appeal, we will reverse a trial court determination in this regard only on a showing that the court abused its discretion. Id.

During the competency hearing and at trial, the complainant testified she would answer all questions truthfully. Defendant points out, however, that on several occasions the child testified that her mother had told her what to say and indicated that she could not remember the alleged sexual abuse incident. Additionally, the complainant admitted on cross-examination that she had made up stories about defendant. Defendant claims the child was obviously incompetent because her concept of moral responsibility to tell the truth allegedly consisted of merely a belief that she had to testify according to her mother's instructions. Further, defendant claims the child lacked the mental capacity to understand the nature of the questions asked her at trial and she was unable to form and communicate intelligent answers to these questions.

It is obvious that the complainant gave conflicting answers and inconsistent versions of what her mother told her to say. The child also indicated that her mother only told her to tell the truth and not to make up stories. The record as a whole, however, does not show complainant lacked competency to be a witness. Despite the inconsistencies, the complainant showed a remarkable independent recollection of the tangible details of the sexual abuse incident. She remembered that she did not like to lick defendant's penis because it tasted "so salty." The child remembered details of the night in question such as that her parents attended a movie, she ate ice cream and later took a bath. At trial, she was examined and cross-examined extensively. We do not believe that it was unreasonable for the trial court to conclude that the child was a competent witness in spite of the contradictions in her testimony. Competency of a witness is not disproved by a witness' "mere testimonial inconsistency;" rather, this is a matter directed to the weight to be afforded the witness' testimony by the jury. Paulson, 265 N.W.2d at 586. Our review of the record does not reveal the trial court abused its discretion by determining complainant was competent to testify.

II. Opinion testimony. At trial the State called a psychiatric social worker, who provides counseling to abused and neglected children, as a witness. Over defendant's objection that the witness' testimony went to bolster the credibility of the complaining witness and thus involved an issue which is solely reserved for the jury to decide, the social worker was allowed to state opinions negating the ability of a three or four-year-old child to fantasize a sexual activity between the child and another person. Additionally, the social worker opined that a child would not be able to fantasize or report sexual abuse in detail without some experience beyond viewing pictures. Obviously, this testimony was introduced in response to defendant's vigorous cross-examination of the complainant in which defendant attacked her credibility and suggested that she had learned about sexual acts by examining pictures contained in adult magazines owned by her parents.

Initially, we examine the admissibility of the first opinion, that concerning the ability of a child to fantasize a sexual experience. We recently addressed the admissibility of opinion testimony under Iowa Rule of Evidence 702 in a child sexual abuse case. State v. Myers, 382 N.W.2d 91 (Iowa 1986). We stated that in such cases "it seems experts will be allowed to express opinions on matters that explain relevant mental and psychological symptoms present in sexually abused children," but such experts will not be allowed to opine on matters "that either directly or indirectly renders an opinion on the credibility or truthfulness of a witness." Id. at 97. Although in Myers we did not address the issue whether an opinion regarding a child fantasizing a sexual experience explains relevant symptoms present in the child or goes to the truthfulness of a witness, we did cite State v. Taylor, 663 S.W.2d 235 (Mo.1984), in support of our ruling. In Taylor the Missouri Supreme Court held inadmissible a psychiatrist's statement that the victim did not fantasize the rape because the statement was an implied opinion that the victim told the truth. Id. at 241; contra Commonwealth v. Carter, 9 Mass.App. 680, 403 N.E.2d 1191, 1193 (1980) (opinion that retarded victim did not fantasize rape was admissible although opinion that witness telling truth was improper). In the present case we believe the first opinion rendered by the social worker is inadmissible as he indirectly opined on the truthfulness of the complaining witness rather than explained relevant mental and psychological symptoms present in a sexually abused child.

The admission of this opinion testimony, however, is not prejudicial and only constitutes harmless error. We believe such testimony, although inadmissible, was merely cumulative to previous testimony in the record concerning the believability of children's reports of sexual abuse. Factual or truthful reporting is the opposite of fantasizing. The social worker had earlier testified, without objection, that:

When we're working with individuals who are coming in as adults who are saying that they were sexually abused as children, it stands to reason that unless the individual is extremely disturbed mentally, and that would be obvious over time and through clinical observation, there is no reason to doubt their credibility. So I didn't. One would believe an adult coming in and saying that. The same is true for children.

Children, in our experience, have not presented themselves making such statements, because in our society of importance of family and because of our own sexual attitudes about privacy and intimacy, we do not have the experience of children just coming in and saying, such and such has happened of a sexual nature, if it has not.

Another question and answer followed and at that point defendant's counsel interposed an objection concerning the competency of the witness and further that the subject matter of the social worker's opinion was "a final conclusion for the jury to draw ... and not him." The court responded "overruled as to that objection."

The trial court ruled properly on defendant's motion. When an objection is late and follows the answer, a motion to strike, coupled with an application to have the objection precede the answer or an excuse for tardiness, must be made. State v. Jones, 271 N.W.2d 761, 767 (Iowa 1978). Defendant failed to do so in this case and therefore the opinion testimony preceeding...