State v. Hester
Decision Date | 21 July 1988 |
Docket Number | No. 16788,16788 |
Parties | STATE of Idaho, Plaintiff-Respondent, v. George Roy HESTER, Defendant-Appellant. |
Court | Idaho Supreme Court |
Lynn, Scott & Hackney, Boise, for defendant-appellant. Gar Hackney argued.
Jim Jones, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., (argued), Boise, for plaintiff-respondent.
Defendant George Roy Hester, Jr. (Hester) appeals his conviction and the district court's order withholding judgment and order of probation entered after the jury returned a verdict finding Hester guilty of lewd conduct with a child under sixteen, the victim being his two and one-half year old son, Brian. We reverse and remand for a new trial.
Hester and his wife, Cathy, were divorced on November 5, 1985. Cathy was given custody of the children, but Hester was given rights to visit his two children, Brian and newly-born Curtis.
This action centers primarily around three events occurring in January and February, 1986. The first event occurred in January, 1986. His ex-wife, Cathy, testified:
Cathy took Brian to Health and Welfare and was "slightly" reassured that no sexual abuse had occurred. Brian continued to see Hester.
The second event occurred on Thursday, February 6, 1986. After spending Wednesday night with Hester, Brian had returned and was lying on his tummy taking a bath. Cathy testified:
The following day Cathy took Brian to Dr. Jambura, Brian's pediatrician. Dr. Jambura's examination of Brian's rectal area revealed nothing unusual. Dr. Jambura testified that because the rectum has one of the best blood supplies of any part of the body it has unusual healing powers.
Cathy began discreetly checking Brian immediately after he returned from visits with Hester. The third event which formed the basis for this action occurred on Sunday, February 23, 1986. Hester had picked Brian up for a weekend visit on the prior Friday, February 21, at approximately 4:00 p.m., and then had returned Brian to Cathy's custody at approximately 4:00 p.m. on Sunday. Upon performing her check, Cathy observed another red mark on Brian's bottom. Cathy called Dr. Jambura and arranged for an immediate visit. At approximately 5:30 p.m. Dr. Jambura examined Brian. Dr. Jambura testified:
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"Q. And based on your observations of the wound at that time, what would be "A. We're talking about something in the range of a broomstick.
[114 Idaho 690] the diameter of the object [that injured Brian's anus]? ....
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Following Dr. Jambura's diagnosis, Brian was taken to Victoria McGee, a clinical social worker. McGee specializes in helping sexually abused children, their offenders, and non-offending spouses. McGee had been asked by the prosecution to determine whether she felt Brian had been sexually abused. In her evaluation of Brian, McGee employed anatomically correct dolls, teddy bears, pencil drawings and chalkboard drawings. The court found McGee to be qualified as an expert, and allowed her to testify as follows:
[114 Idaho 691] like to demonstrate to me this penis going into the anatomically correct small boy's rectal area. ...
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Based on these incidents involving Brian, Hester was charged with violating I.C. § 18-1508, lewd conduct with minor or child under sixteen. 1 Prior to trial, Hester filed a motion in limine requesting an order prohibiting the state from introducing the testimony of...
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State v. Dunlap
...or the weight of disputed evidence. To venture beyond that point, however, is to usurp the jury's function." State v. Hester, 114 Idaho 688, 696, 760 P.2d 27, 35 (1988); see also State v. Konechny, 134 Idaho 410, 419, 3 P.3d 535, 544 (Ct. App. 2000). Perry, 139 Idaho at 525, 81 P.3d at 1235......
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State v. Hall
...resembles the expert opinion testimony as to the identity of a perpetrator which this Court forbade in State v. Hester , 114 Idaho 688, 695–96, 760 P.2d 27, 34–35 (1988). For that reason, I believe that the district court erred by admitting the testimony. Nevertheless, the evidence of Hall'......
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State v. Dunlap
...or the weight of disputed evidence. To venture beyond that point, however, is to usurp the jury's function." State v. Hester, 114 Idaho 688, 696, 760 P.2d 27, 35 (1988) ; see also State v. Konechny, 134 Idaho 410, 419, 3 P.3d 535, 544 (Ct.App.2000). Perry, 139 Idaho at 525, 81 P.3d at 1235.......
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Ryan v. State
...at 921. Finally, profile evidence is often found to be an impermissible attack on the defendant's character.6 See State v. Hester, 114 Idaho 688, 760 P.2d 27, 33 (Id.1988); In the Interest of D.L., 401 N.W.2d 201, 203 (Iowa App.1986); People v. Walkey, 177 Cal.App.3d 268, 223 Cal.Rptr. 132,......