State v. Timperio

• Decision Date: 28 September 1987
• Docket Number: No. 52521,52521
• Citation: 528 N.E.2d 594,38 Ohio App.3d 156
• Parties: The STATE of Ohio, Appellee, v. TIMPERIO, Appellant. *
• Court: Ohio Court of Appeals

Page 156

38 Ohio App.3d 156

528 N.E.2d 594

The STATE of Ohio, Appellee, v. TIMPERIO, Appellant. ^*

No. 52521.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 28, 1987.

Syllabus by the Court

1. It is permissible to permit an expert to testify for the purpose of helping the jury to assess the credibility of a sexually abused child.

2. An expert may state her opinion that a child has been sexually abused.

John T. Corrigan, Pros. Atty., and George Lonjak, Cleveland, for appellee.

Jacobs, Rubin & Bensing and Russell S. Bensing, Cleveland, for appellant.

SPELLERBERG, Judge.

Defendant, Martin Timperio, appeals from his conviction on three counts of rape of his three-year-old daughter after the jury had found the defendant guilty.

The indictment as amended states the rapes took place between April 1983 and July 1983.

The defendant was indicted on April 11, 1986, and arraigned on April 24, 1986. A jury trial began July 28, 1986, and lasted until August 1, 1986.

The child testified that her father had vaginal, anal and oral intercourse with her. Anatomically correct dolls were used while the child testified. The child testified that originally she claimed her uncle and his girlfriend were the ones who had molested her, but that she had only stated that to protect her father.

The next witness was Dr. Joyce Lenine-Maccombie, a psychologist who testified as to the series of symptoms sexually abused children exhibit. She stated that she first saw the child October 1, 1984, two years prior to her testimony, that the child exhibited the series of symptoms and that in her opinion the child was sexually abused. Lenine-Maccombie related that the child stated to her that her father threatened to burn the house down if she told anyone about his acts. The doctor further testified that she did not think the child had been brainwashed, due to the child's age, consistency of the child's story over a period of time, and the child's description of the acts.

The state's next witness was Dr. Irene Bautista who saw and examined the child on July 27, 1983, when the child was brought in at age two and one-half years because of burning and frequency of urination. She stated that the child had no hymen. This witness had no opinion as to whether the child had been sexually abused.

The mother next testified about taking the child to the two doctors.

The defendant's present wife testified that the child was always happy to see the defendant. She further testified that the defendant's penis is large and too big for the child.

The defendant's mother, father and sister testified for the defendant as did the defendant's brother, John, Jr., who testified that he was present when the defendant was informed that another brother had molested his child and, in response, the defendant punched a window.

The defendant testified denying the allegations of the indictment, and stated that he never molested his daughter as he would have ripped her in half. He further testified that the child had been brainwashed.

I

First Assignment of Error

"The trial court erred in permitting the prosecuting attorney to elicit [the child's] testimony through leading questions to the extent that the jury had virtually no opportunity to gauge [her] credibility."

Evid.R. 611 provides, in pertinent part:

"(A) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth * * *.

" * * *

"(C) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. * * * "

The defendant failed to object to any questions of the prosecutor to this witness, and failure to object constitutes a waiver. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364.

Further, the transcript indicates that the prosecutor requested that the child demonstrate what her father had done to her with the use of anatomically correct dolls. See State v. Wagner (1986), 30 Ohio App.3d 261, 30 OBR 458, 508 N.E.2d 164.

Finally, Ohio courts have held that a prosecutor is allowed to use leading questions on direct examination where the victim is of tender years, such as a five-year-old victim. State v. Madden (1984), 15 Ohio App.3d 130, 15 OBR 221, 472 N.E.2d 1126; State v. Holt (1969), 17 Ohio St.2d 81, 46 O.O.2d 408, 246 N.E.2d 365.

The defendant's cross-examination of said child did not cause the child to change her testimony.

Defendant's first assignment of error is not well-taken.

II

Second Assignment of Error

"The trial court erred in admitting the testimony of Dr. Joyce Lenine-Maccombie."

The doctor testified she had a bachelor's degree from Kent State University in 1975, a master's degree in psychology in 1978 and a Ph.D. in psychology in 1982. She further testified that she had been practicing in the field of psychology since 1978, was a consultant to the Head Start Program in East Cleveland, worked at the Child Guidance Center in Cleveland, saw patients from age four through adolescence and adult, did her dissertation in the area of rape, co-authored a book on sex abuse for a survey in Summit County, attended numerous workshops, and had supervised cases involving child sex abuse. The doctor related symptoms exhibited by sexually abused children. She testified that she had been treating the victim for two years since 1984, that the victim in the case exhibited symptoms symptomatic of a child who has been sexually abused, and that the history related by the child was significant, as a child of her years did not have the capacity to make up such a story. The doctor qualified as an expert witness. The doctor gave an opinion that the child in this case was sexually abused and gave her basis for arriving at that opinion.

The appellant feels that the court erred in permitting the doctor to testify and abused its discretion in letting the doctor so testify. This court does not agree.

It is permissible to permit an expert to testify for the purpose of helping the jury to assess the credibility of a sexually assaulted child. See State v. Myers (Minn.1984), 359 N.W.2d 604, wherein the court permitted a clinical psychologist to testify in the case of a seven-year-old girl on facts similar to those in this case. The Minnesota Supreme Court stated at 609-610:

"There can be no doubt that an indirect effect of that portion of Dr. Bell's testimony was to bolster the complainant's credibility. Much expert testimony tends to show that another witness either is or is not telling the truth. That fact, by itself, does not render the testimony inadmissible. The test is not whether opinion testimony embraces an ultimate issue to be decided by the jury but whether or not the expert's testimony, if believed, will help the jury to understand the evidence or to determine a fact in issue. Moteberg v. Johnson, 297 Minn. 28, 210 N.W.2d 27 (1973). With respect to most crimes the credibility of a witness is peculiarly within the competence of the jury, whose common experience affords sufficient basis for the assessment of credibility. In most cases, even though an expert's testimony may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert's opinion mitigates against admission. Nor should the credibility of witnesses in criminal trials turn on the outcome of a battle among experts. The nature, however, of the sexual abuse of children places lay jurors at a disadvantage. Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate...