State v. Rimmasch

Citation775 P.2d 388
Decision Date17 May 1989
Docket NumberNo. 20760,20760
PartiesSTATE of Utah, Plaintiff and Appellee, v. Phillip RIMMASCH, Defendant and Appellant.
CourtSupreme Court of Utah

Craig S. Cook, John D. O'Connell, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Earl F. Dorius, Salt Lake City, for plaintiff and appellee.


Defendant Phillip Rimmasch was charged and convicted after a bench trial of forcible sexual abuse, rape, forcible sodomy, and incest. These charges arose out of alleged incidents of sexual activity between defendant and his daughter. Rimmasch's sentence was stayed, and he was placed on probation for eighteen months, on condition that he undergo psychological treatment. He appeals his conviction, arguing, inter alia, that the trial judge erred in admitting certain testimony by expert witnesses called on behalf of the prosecution in which one or more of them affirmed the truthfulness of his daughter's version of events, testified to the psychological profile of the typical victim of child sexual abuse, compared his daughter's characteristics with those of the profile, opined that his daughter was a victim of abuse on the basis of both the profile comparison and impressions gathered during interviews with the daughter, and in some instances, also opined that she was the victim of incest and that her father was the perpetrator. We agree in the main with Rimmasch's contentions and reverse. 1

We are aware that child sexual abuse is of great concern to the American public. The Utah legislature, like many around the country, has responded to this concern by enacting a number of measures designed to make apprehension and conviction easier and punishment more severe. Some of these measures have relaxed legal rules that might have operated to bar admission of some otherwise reliable testimony. See Utah Code Ann. §§ 76-5-409, -410, -411 (Supp.1988). Others have authorized special procedures to make less traumatic the giving of testimony by children. See Utah R.Crim.P. 15.5 (codified at Utah Code Ann. § 77-35-15.5 (Supp.1988)). Still others have provided sentences of severity unique in recent Utah law for those found guilty of such offenses. See Utah Code Ann. §§ 76-3-406, -407, -408 (Supp.1988); §§ 76-5-402.1, -402.3, -403.1, -404.1, -405 (Supp.1988). Nationally, some courts have joined the chase by easing rules that may appear to make conviction more difficult. See, e.g., Note, Liberalization in the Admissibility of Evidence in Child Abuse and Child Molestation Cases, 7 J. of Juv.L. 205, 206 (1983); J. Myers, Child Witness Law and Practice (1987) [hereinafter Myers].

However, the fact that child sexual abuse has emerged as a critical problem about which the public is seriously concerned does not mean all legal rules that may constitute obstacles to increasing the conviction and incarceration rates of those accused of such crimes, as opposed to those actually guilty, can properly be brushed aside. Fundamental changes in long-standing evidentiary rules should not be made lightly, even when it is claimed that those rules may stand in the way of convictions. See State v. Moran, 151 Ariz. 378, 380, n. 2, 728 P.2d 248, 250 n. 2 (1986). "No matter how defenseless the child, or how strong the policy of protecting victims of abuse, justice is not served by 'proving' sexual abuse through misleading and unreliable testimony." Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 Geo.L.J. 429, 451 (1985) [hereinafter Georgetown Note].

There is no reason to recite the facts of this case in any great detail. Rimmasch allegedly engaged in a long-term intimate relationship with his daughter beginning when the girl was approximately seven and continuing until she was thirteen or fourteen. The specific charges filed related to one incident that occurred during this period.

At trial, the daughter, then seventeen years old, described the alleged incident of sexual activity. The father denied the accusation, and various members of the family, as well as family acquaintances, testified in support of the father. In addition to the daughter's testimony, the prosecution relied heavily on the testimony of four expert witnesses: Dr. William Palmer, Dr. Johanna McManemin, Dr. Ann Tyler, and Thomas Harrison. All four experts repeated the statements the daughter had made during interviews as to what had happened between her and her father. Each expert expressed his or her observations and opinions about whether the daughter was the victim of abuse. All four opined that the daughter had, in fact, been abused; some went further and said that she was a victim of incest and that her father was the culprit. The testimony of these four experts takes up almost two-thirds of the trial transcript and occupied several trial days.

At the conclusion of the trial, the judge found Rimmasch guilty. In so doing, he stated: "It is the opinion of the Court that the State through the testimony of the alleged victim together with corroborating testimony of the expert witnesses called by the State has made out a prima facie case against the defendant and in favor of a verdict of guilt."

On appeal, the dispositive issues relate to the testimony of the experts. The specific issues we address concern the propriety of the expert witness testimony to the following effect: the daughter was telling the truth; there is a psychological profile of the typical child victim of sexual abuse; the daughter conformed to the profile; and on the basis of that conformance and/or a subjective assessment of the daughter's credibility, the experts could opine that the daughter had been abused, that the daughter was a victim of incest, and that the father was the perpetrator of the abuse.

We first consider the claim that the experts improperly testified as to the truthfulness of the daughter's version of events. We will then consider the rest of the issues together. This division is largely a matter of convenience, attributable to the fact that the first claim can be disposed of under rule 608(a) of the Utah Rules of Evidence, while the remaining issues are considered under a common analytical framework based on Utah Rule of Evidence 702.


The truthfulness issue presents two subsidiary questions: whether the experts actually testified that the daughter was telling the truth about the incident with her father; and, if so, whether the testimony was properly admitted.

Rimmasch contends that the experts testified to his daughter's truthfulness by actually stating that she was telling the truth and by conveying to the fact finder, via their opinions on abuse, a belief in her truthfulness. Such testimony, Rimmasch argues, invades the province of the jury and is improper under Utah Rule of Evidence 608(a). The State responds that the experts expressed opinions not on the daughter's veracity, but on whether she was a victim of sexual abuse and incest. In the alternative, the State contends that it is not prejudicial error for a psychiatric expert in a child sexual abuse case to testify that he or she finds the victim's story believable.

We address the State's alternative hypothesis first. Utah Rule of Evidence 608(a) provides in pertinent part:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness....

This rule permits testimony concerning a witness's general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness's truthfulness on a particular occasion. See, e.g., United States v. Azure, 801 F.2d 336, 341 (8th Cir.1986) (construing Federal Rule of Evidence 608(a), which is the model for Utah's rule); United States v. Awkard, 597 F.2d 667, 671 (9th Cir.), cert. denied, 444 U.S. 885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979); Tevlin v. People, 715 P.2d 338, 341 (Colo.1986) (relying on Colo.R.Evid. 608, which is identical to Utah R.Evid. 608); People v. Koon, 713 P.2d 410, 412 (Colo.Ct.App.1985).

Some members of this Court have previously recognized that an expert may not express a direct opinion on whether a witness was truthful on a particular occasion. In State v. Lairby, 699 P.2d 1187 (Utah 1984), we were also presented with a child abuse case. In the lead opinion, authored by Justice Durham and joined by the Chief Justice, it is stated, albeit in dictum, that "Dr. Liebroder might have been able to testify about Wanda Lairby's psychological capacity for untruthfulness or delusional testimony, but Dr. Liebroder could not have offered any views on the testimony actually given." Id. at 1199 (emphasis added).

The State urges that we not follow this dictum in Lairby but instead follow State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982). Kim is the only decision we have found that holds an expert's direct statement of an opinion on the believability of a witness's version of the facts to be admissible under a state counterpart to Federal Rule of Evidence 608(a), from which Utah Rule of Evidence 608(a) was also taken. The Kim court said:

Arguably, [Haw.R.Evid. 608(a)(1) ] would preclude the admission of Dr. Mann's statement since it arguably provided not only his opinion as to the character of the witness, but an opinion as to whether the witness spoke truthfully on a specific occasion....

We do not find this to be the case.... Essentially, the difference between an opinion as to character for truthfulness and an opinion as to the believability of a witness's statement is the difference between "I think X is believable" and "X's statement is believable." We feel the admissibility of either statement should not turn on niceties of phraseology but on the probative value of the testimony.

64 Haw. at 609 n. 14, 645 P.2d at 1339 n. 14.

We disagree. Even if the distinction between opinions...

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