State v. Hester

Decision Date21 July 1988
Docket NumberNo. 16788,16788
PartiesSTATE of Idaho, Plaintiff-Respondent, v. George Roy HESTER, Defendant-Appellant.
CourtIdaho 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.

BAKES, Justice.

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:

"A. Brian was at my aunt's house and he was going to the bathroom. And he leaned over and put his finger up his bottom. And I said: Brian, don't do that. And he started crying that, Daddy does it. I want my daddy. I want my daddy.

"Q. [By the prosecution] Has he ever done that before?

"A. No, he hasn't."

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:

"A. I was giving Brian his bath, and it was in the evening after I came home from work. And he was laying on his tummy in the tub pretending like he was swimming. And there was a very red mark in the crack of his bottom. When I asked him what it was, he said: Daddy squished me.

"Q. [By the prosecution] And what did you say?

"A. I said, What does that mean, Brian? And he said, Daddy and I have pee-pee secrets, Mommy. And I said, That sounds bad, Brian. And he pulled back when I said that sounds bad. And then he looked at me and said, They're balloon secrets, then, Mommy. Balloon secrets are good. You blow it up and you pop it.

"Q. And what was he pointing to?

"A. He was pointing to his penis."

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:

"Q. [By the prosecution] What did you observe when you saw the child?

"A. When I examined Brian at that point, a two-centimeter cuff of redness, swelling and tenderness was noted around the anus. And there was a good deal of increased tone to the examining finger when a rectal exam was done.

"Q. What do you mean by the increased tone?

"A. The grasping force of the anus when the rectal exam was done was firmer and more acute than on the previous examination.

"Q. And what does that indicate to you?

"A. Put together, these findings indicate that trauma had occurred to the perianal area.


"Q. Okay. Now in terms of this particular injury on the 23rd, can you indicate whether that was something that you would naturally expect to see in a child of this age?

"A. I would not.


"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]? ....

"Q. Now how do you know that this was something going from the outside in? ....

"A. ... If it's an inside-out injury, one will initially obtain very little resistance to examination. Then as one further examines the rectum, one will find more resistance and more increased tone internally than externally.

"Q. And is that what you found?

"A. That is not what I found. I found more resistance externally than internally.

"Q. And that would indicate to you what?

"A. That non-accidental trauma had occurred.

"Q. And what do you mean by 'non-accidental trauma'?

"A. I mean that the child--some purposeful trauma was made to the child's anus, i.e., sexual abuse.


"Q. In terms of this particular injury that you saw, can you give an estimate of the time that it was there?

"A. I would estimate that the age of the injury that I saw in the perianal area on the 23rd of February was 24 to 48 hours.

"Q. And would you say that it--or what would the outside limit be? Would that be the 48 hours?

"A. Forty-eight hours would be the outside limit.


"Q. In your opinion, Doctor, is it possible that this injury could have been anything other than a deliberate penetration?

"A. I find it very difficult to believe that it was anything but a deliberate penetration."

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:

"A. ... He [Brian] asked for the teddy bear. The dolls were sitting in a chair, the teddy bears were sitting in a chair, and Brian asked for the big teddy bear.

"And he picked up the big teddy bear which was about the size of Brian and said, here's the pooper. And he grabbed in between the big teddy bear's leg. And there wasn't anything there with the teddy bear. And the pooper goes here, and he took the tiniest teddy bear, which looks a little bit like a koala bear, and he put the teddy bear with the pooper on top of the smaller teddy bear.

"Q. [By the prosecution.] Face-to-face or face-to-back?

"A. Face-to-back. Okay. And I said, What are these teddy bears doing? And he said, Oh, doing pooping. ....

"There were other--okay. Brian, we played some more with the teddy bears, and he talked constantly of the pooper and identified it as the front of the teddy bear. And then when he decided the dolls were going to be fun, he undressed the largest male doll, which is anatomically correct and does have a penis, and he said, Pooper. This was the--so this was the second time he's identified the same body place. And then he undressed all the other three dolls, which is--I have like an adult female anatomically correct doll, a little girl doll and a boy doll. And he did the same thing with the male, the adult male and he said, Pooper. And I said, what does this pooper do? And he did the same thing with the small male doll as he had done with the large and small teddy bear.

"... He ran around the room and he came back and we sat down. And he said, Pooper, and, Ow-ee. And I couldn't get a complete sentence out of him, but he associated that. And he continued to ....

[114 Idaho 691] like to demonstrate to me this penis going into the anatomically correct small boy's rectal area. ...

"A. ... I need to describe one more incident, so that then when I pulled all of my information together and formed an opinion--we drew on the blackboard. He liked to draw on the blackboard. I said, Let's draw Brian's family. Well, everybody in Brian's family he drew, mom and dad and baby brother and Brian. But he put a pooper on all of them that looked exactly like a penis on every figure.

"And then he said, No, no, no. And then with--colored over them with chalk, the pooper part that he identified. And he just said, No, no, no, ow-ee. And I said--I made a statement rather than asking a question: It sounds like a pooper can hurt Brian. He said, Yes. And then he withdrew. He had been, at that point had been laughing with me and talking. And at that point he withdrew and I got no more verbal information from Brian. I did not push, either.

"Q. Did you get--you said that you did not get any more verbal information. Did you get some non-verbal information after that?

"A. Right. He withdrew from me physically, because we were close together in real close proximity, and went to the corner of the room that he and I were in. Kind of sat down--didn't kind of, he did sit down in the corner and basically just sat there. And I tried to engage him in conversation, trying to identify a feeling. Brian's feeling sad? Brian's feeling happy? I got no more response from Brian.

"And at that point, I ended my interview. ...


"A. Based on my experience of children who have not been sexually abused versus children who have been sexually abused in my practice, I am saying that Brian had been sexually abused.

"Q. Now during the time that you were with Brian, were you able to determine the identity of the perpetrator?


"A. No, I was not. The objective of the interview was to determine if Brian had been sexually abused. And in my opinion, he had been."

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
    • United States
    • Idaho Supreme Court
    • August 27, 2013
    ...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......
  • State v. Hall
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    ...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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    • August 27, 2013
    ...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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