State v. Miller, 19663

• Decision Date: 29 October 1985
• Docket Number: No. 19663,19663
• Citation: 709 P.2d 350
• Parties: STATE of Utah, Plaintiff and Respondent, v. Timothy Phillip MILLER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 350

709 P.2d 350

STATE of Utah, Plaintiff and Respondent, v. Timothy Phillip MILLER, Defendant and Appellant.

No. 19663.

Supreme Court of Utah.

Oct. 29, 1985.

Gregory M. Warner, Provo, for defendant and appellant.

David L. Wilkinson, J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The appellant in this action, Timothy Phillip Miller, was convicted by a jury of sexually abusing a child. ¹ He makes three assignments of error on appeal: (1) the trial court erred in excluding certain psychiatric expert testimony; (2) the trial court erred in excluding testimony from appellant's character witnesses concerning specific instances of his moral behavior toward children; and (3) the evidence is insufficient to support the verdict. We affirm.

The testimony at trial established the following facts. The appellant and the victim lived in the same condominium complex at the time of the alleged offense. On June 3, 1983, the victim, age 12, was playing at the appellant's home with his daughter. The victim apparently took some money belonging to one of the appellant's sons from a dresser in the home. When Mrs. Miller discovered the money was missing, she blamed her daughter, and "grounded" her. The victim, who felt guilty about taking the money, called her mother home from work, and after consulting with her returned the money. The two girls were then permitted to play together again, and there was no evidence of any bad feelings between the Millers and the victim and her mother.

The Millers had pitched a tent in their backyard, and the Miller child invited the victim to spend the night with the family in the tent. That evening, the victim's mother took the two girls to the car races and out to eat. They returned home around midnight. The victim changed into her pajamas and then joined the appellant, his two sons, and his daughter in the tent. Mrs. Miller, who was more than eight months pregnant, spent the night inside.

The appellant's daughter and the victim slept next to each other, with the victim sleeping next to the tent door. The appellant's sleeping bag was in the corner of the tent opposite the two girls. The victim stayed the night and returned home the next morning in her pajamas. She was cold and shaking when she arrived. She got into bed with her mother and they both slept until later in the morning. The victim's mother arose between 9:00 and 10:00 a.m. and showered. The victim then told her mother the appellant had sexually abused her. They discussed what had happened and then went to the police station to report the incident. The appellant was subsequently arrested.

On direct examination at trial, the victim testified that before she fell asleep in the tent, sometime after 1:00 a.m., the appellant left his sleeping bag and lay down between the two girls. She said he tickled his daughter, then turned to her and put his hand down her sleeping bag and "was rubbing in between my legs. And then he put his hand inside my pants and was rubbing my bottom. And then he went in between my legs and was going towards the front." The victim testified she started "wiggling" and told the appellant's daughter that her father was "tickling" her. The appellant stopped touching her and returned to his sleeping bag. This incident lasted approximately "five minutes" according to the victim.

The victim testified she did not cry out or object in any way other than that mentioned above because she was afraid. She also testified she was afraid to go home in the dark, even though her house was only half a block away and she thought the door was probably unlocked. Her mother testified she always left the door unlocked at night when the victim was out.

The victim further testified she was awakened very early the next morning by the appellant who had his hand inside her underwear again rubbing between her legs. This incident lasted approximately three minutes. She pretended to be asleep and started wiggling until the appellant turned away. After this incident, she went back to sleep for a few minutes. When she awoke, she told the appellant's daughter she would be back; then she left, arriving at her home around 6:00 a.m., according to her testimony and that of her mother.

When she arrived home, she climbed into bed with her mother, who testified at trial that she was cold, "clammy", and "trembling all over." The victim did not tell her mother what had happened until after she awoke, walked back to the Millers to get her clothes, and returned home. She testified that she waited, even though she had seen a movie at school called "You're in Charge" which instructs children to immediately report any incident of sexual abuse, because she was confused and scared. The appellant did not warn the victim not to tell anyone what happened in the tent and there was no evidence he spoke to her during the incident.

The appellant testified at trial to a very different version of events. He admitted that he tickled both his daughter and the victim, but that he only tickled them in the ribs, under their arms, outside their sleeping bags and night clothing. His daughter's testimony corroborated this version of the first incident. Both testified that the appellant was bent over the girls and not lying between them. However, it was not entirely clear from the daughter's testimony whether she could see the victim. The appellant also testified that he slept through the night and did not awaken until his son came at 7:00 a.m. to tell him his boss was on the phone and wanted him to go to work. He left the tent to answer the call and did not return. He testified that the victim was asleep in the tent when he left, although both the victim and her mother testified that she came home around 6:00 a.m.

At trial, the appellant sought to introduce the expert testimony of Dr. Robert J. Howell. A proffer of his testimony was made outside the jury's presence. Dr. Howell would have testified about two matters. First, he would have described the typical psychological profile of individuals who sexually abuse children. The court excluded the testimony on the grounds that it was speculative and would be confusing to the jury. The judge expressed concern that the jury would shift its attention in deciding the case from whether or not the appellant had committed the crime to whether or not the prosecution had proven that the appellant fit within the typical psychological profile of a child abuser.

The second matter about which Dr. Howell would have testified is the tendency, in his opinion, of prepubescent girls, and to a lesser extent boys, to interpret certain situations as sexually threatening to themselves when the circumstances are actually completely innocent. The court excluded this testimony on the ground that it was irrelevant, since the issue was whether the appellant had touched the victim's genitals and not how she may have interpreted an ambiguous set of circumstances.

The appellant also sought to introduce character evidence regarding his past moral conduct toward children. The court refused to permit this evidence, but allowed character evidence regarding the appellant's reputation for truthfulness.

We treat first the appellant's claims of error respecting the expert testimony of his witness, Dr. Howell. The proffer in the record shows that the witness was a forensic clinical psychologist with expertise in sexual abuse of children, both from a research and a treatment perspective. Defense counsel proffered that the witness would testify that there is a typical psychological profile for sexual offenders who abuse young children and that such individuals generally have one or more of the following characteristics: (1) they suffer from organic brain damage or other mental disorder; (2) they have a history of sexual assaults that manifests itself before the age of 30; (3) they are under the influence of alcohol or drugs at the time the assault is committed; and (4) they are depressed. ² It does not appear that Dr. Howell had examined or treated the defendant, and defense counsel in the course of his proffer to the trial judge admitted that "[neither] Dr. Howell nor anyone here could say whether the defendant does or does not necessarily fit into [the categories] ... But I think it's up to the jury whether they believe, in fact, the defendant's character falls within the framework of Dr. Howell's testimony." The defendant apparently intended to offer independent testimony demonstrating that he did not possess any of the characteristics described in Dr. Howell's profile. The trial judge expressed concern over the tendency of such testimony to mislead and confuse the jury, by suggesting that the issue to decide was whether the defendant possessed or did not possess the characteristics of the typical perpetrator of sexual abuse of children, rather than whether the defendant performed the acts the victim said he did. We agree that the key question for the jury was whether the defendant or the victim was telling the truth about the events that gave rise to the charge. The testimony of the victim and the appellant differed sharply; neither described ambiguous circumstances.

The trial judge also apparently concluded that the proffered evidence was irrelevant, a conclusion with which we cannot agree. Rule 404(a), Utah R.Evid., specifically permits an accused to offer "[e]vidence of a pertinent trait of his character." for the purpose of "proving that he acted in conformity therewith on a particular occasion." The testimony from Dr. Howell, in conjunction with the proffered testimony from the appellant, would have been relevant to a pertinent trait of his character, namely, the incongruity of his personality traits with those of individuals capable of and likely to commit sexual offenses against children. Notwithstanding the relevance of the evidence, however, the trial judge was within the scope of his discretion in...