State v. Kallin, 920560

• Decision Date: 22 June 1994
• Docket Number: No. 920560,920560
• Citation: 877 P.2d 138
• Parties: STATE of Utah, Plaintiff and Appellee, v. James KALLIN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 138

877 P.2d 138

STATE of Utah, Plaintiff and Appellee, v. James KALLIN, Defendant and Appellant.

No. 920560.

Supreme Court of Utah.

June 22, 1994.

R. Paul Van Dam, Atty. Gen., Kris Leonard, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Wayne B. Watson, Thomas J. Scribner, Provo, for defendant.

STEWART, Associate Chief Justice:

A jury convicted James Kallin of rape of a child, a first degree felony, and the trial court sentenced Kallin to a prison term of five years to life. On appeal, Kallin asserts that this Court should reverse his conviction because the trial court erred in five evidentiary rulings: (1) the State's expert witness was allowed to affirm the credibility of the victim; (2) the expert was permitted to testify, in effect, that the victim fit the profile of a sexually abused child; (3) the defendant was prohibited from eliciting expert testimony that defendant was not a pedophile; (4) the State was allowed to adduce inculpatory testimony from a witness that was inconsistent with a pretrial summary of the witness's testimony given defense counsel by the State; and (5) the State was allowed to ask the victim unduly leading questions. We affirm.

In February 1992, the victim attended a maturation class at her elementary school designed to educate young girls about their natural development. That night, Angelique Allphin, a classmate of the victim, related to her mother a conversation she had earlier in the day with the victim. According to Angelique, the victim said that she was afraid that she might get pregnant because of the things her dad was doing to her. Ms. Allphin reported this conversation to her Relief Society president and her bishop. ¹ The next day, Angelique told her mother that she had made a mistake and that it was the victim's grandfather, not her father, who was doing things to her. Ms. Allphin reported this change in Angelique's story to her bishop and Relief Society president.

Subsequently, the Division of Family Services (DFS) was notified that the victim might have been sexually molested by her father. The report prompted an investigation by a DFS case worker, Phyllis Bushman, and Detective Bruce Wilkins of the Orem City Police Department. On the morning of February 12, 1993, Bushman and Wilkins interviewed the victim at school. During the interview, Wilkins told the victim that he had been informed that she had told someone her father had sex with her and that she was afraid she might be pregnant. The victim denied saying that her father had sex with her and stated that no one else had done anything to her.

The following day, Bushman told the victim's mother about the interview and the reports of the alleged sexual abuse. The victim's mother immediately picked the victim up from school. On the way home, the mother asked her daughter why she had not told her about the interview. When they returned home, the victim's mother and stepfather talked with the victim about Bushman's report. The mother repeatedly asked the victim to tell her if something had happened, and the victim repeatedly replied, "I didn't say it was my daddy."

Later that day, the victim told her mother and the investigators that one night when she had slept over at her grandparents' home, James Kallin, her stepgrandfather, had intercourse with her. He warned her not to tell anyone what happened. Kallin was arrested and charged with rape of a child and was convicted on November 5, 1992.

I. EXPERT TESTIMONY AS TO CREDIBILITY OF VICTIM

The State's expert witness, Dr. Karen Hansen, a pediatrician, examined the victim shortly after the sexual encounter. The prosecution asked Dr. Hansen what conclusions she drew from that examination. Dr. Hansen replied that the victim had trauma in the genital area consistent with sexual intercourse, but did not testify that the victim was actually abused. Dr. Hansen also related what the victim told her concerning the alleged rape and who had done it.

Defendant asserts that the account communicated by the victim to Dr. Hansen was "related to the jury [by Dr. Hansen] in such a manner as to assume the victim's truthfulness and that the testimony therefore improperly attested to the victim's veracity" in violation of Rule 608(a)(1) of the Utah Rules of Evidence ² and the ruling in State v. Rimmasch, 775 P.2d 388 (Utah 1989).

Rimmasch held that an expert may not testify that what a witness told the expert was the truth, and specifically that the story of an alleged victim in a child abuse case was true. 775 P.2d at 392. The Court ruled that such evidence violated Rule 608(a) of the Utah Rules of Evidence. The Court also held inadmissible an expert opinion that an alleged child abuse victim had been abused if the opinion was based, even in part, on conformance of a victim's behavior to a child sexual abuse profile if there was no scientific evidence establishing the scientific accuracy of the profile in identifying child sex abuse victims. ³ Id. at 390, 393; see also Kofford v. Flora, 744 P.2d 1343, 1347-48 (Utah 1987); Phillips v. Jackson, 615 P.2d 1228, 1233-34 (Utah 1980). Rimmasch also held that an expert could not base testimony that a child had been sexually abused on the expert's acceptance of the victim's story as a truthful account.

Unlike the expert testimony held inadmissible in Rimmasch, Dr. Hansen did not testify that the victim was abused, nor did she base her opinions on her acceptance of the victim's story as true. Defendant argues that the victim's story, recounted by Dr. Hansen to the jury, substantiated the credibility of the victim's testimony, even though Dr. Hansen did not testify either to the credibility of the victim or to the truthfulness of her story. We do not decide whether the holding in Rimmasch can be stretched to such an extent. Defendant waived the issue of the admissibility of Dr. Hansen's testimony recounting the victim's story by not objecting to its admission. Utah R.Evid. 103(a); State v. Emmett, 839 P.2d 781, 783-84 (Utah 1992). Defendant does not claim plain error as an excuse for his failure to object to the testimony. Nevertheless, having reviewed the record, we are convinced that the admission of the testimony was not clear or manifest error.

Defendant also asserts that Dr. Hansen improperly testified that the victim fit the profile of a sexually abused child. In Rimmasch, experts testified that the victim had in fact been sexually abused, and their testimony was based in part on the victim's conformance with a sexual abuse profile. 775 P.2d at 390, 393.

Dr. Hansen testified only that the victim's behavior was consistent with symptoms that might be exhibited by one who had been sexually abused. That behavior included sleeplessness, poor appetite, fear of the victim's grandfather, clinging to her mother, and a urination accident. Dr. Hansen did not, however, testify to any kind of sexual abuse profile as such, nor did she testify that the symptoms manifested by the victim demonstrated that she had been sexually abused. She likewise did not testify that all sexually abused children exhibit fixed psychological or physical symptoms not otherwise present in children who have not been abused. Rather, her testimony was limited to the conclusion that the victim's symptoms were "consistent with" sexual abuse. On cross-examination, she also testified that the victim's symptoms were consistent with causes other than sexual abuse, such as other psychological trauma or the victim's recent withdrawal from the prescription drug Ritalin.

Evidence that an alleged victim manifests certain physical symptoms that are consistent with sexual abuse is not based on a psychological sexual abuse profile. The foundation for such testimony is based on the experience and observations of those who work with abused children. Evidence that certain behavioral symptoms are consistent with sexual abuse does not prove directly the ultimate legal conclusion that the child was abused, and cannot be admitted for that purpose. As Dr. Hansen made clear on cross-examination, such symptoms are also consistent with a number of causes other than sexual abuse.

Nevertheless, the manifestation of certain behavioral symptoms may have some probative value as circumstantial evidence. The probative value of such evidence is usually beyond the ken of a jury. Expert testimony that such symptoms are consistent with sexual abuse, subject to appropriate limitations and instructions to the jury, may enable the jury to assess the probative relevance of the evidence in light of all other evidence. If the relevance of such evidence is challenged, the trial judge must make an appropriate ruling with respect to its relevance in each case under Rule 402 of the Utah Rules of Evidence.

In sum, Dr. Hansen's testimony was not inconsistent with Rimmasch. She did not testify that the victim had in fact been sexually abused or raped, and she did not rely on a "psychological profile."

II. ADMISSIBILITY OF EVIDENCE OF NONPEDOPHILIA

Defendant argues that the trial court erred in refusing to allow his expert, Dr. Patricia Smith, to testify that based on the psychological tests she had administered, defendant did not exhibit the symptoms of a pedophile. The trial judge made this ruling after a hearing outside the presence of the jury in which Dr. Smith indicated what her testimony would be. Dr. Smith stated only that she could not recommend defendant for "treatment in the area of sexual deviancy" because he did not exhibit the "symptoms" of a sexual disorder called pedophilia.

The prosecution opposed Dr. Smith's testimony on the ground that defense counsel had failed to give the prosecution adequate notice of defendant's intent to call Dr. Smith to testify on that subject. The trial court had previously directed the parties to disclose to each other the expert witnesses each would call and the content of the testimony. Defense counsel failed to give notice to the prosecution that Dr....