Thompson v. State, 70A04-8805-CR-162
| Decision Date | 27 October 1988 |
| Docket Number | No. 70A04-8805-CR-162,70A04-8805-CR-162 |
| Parties | Luther Chris THOMPSON Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Sheila K. Zwickey, Rush County Public Defender, Rushville, for appellant.
Linley E. Pearson, Atty. Gen., Wendy L. Stone, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Luther Chris Thompson (Thompson) appeals a class D felony jury conviction for child molesting. IND.CODE 35-42-4-3(d).
Reversed.
Because we reverse, we discuss only one issue, namely, whether the trial court erred by allowing a witness to express an opinion the victim was telling the truth.
Thompson and Larry Adkins went to the home of the 12 year old victim. The victim's brother and his friend were there. Thompson was allowed to use the bathroom. He went to the victim's room where she was playing. He touched the victim's breasts, placed his hands into her pants, and fondled her vagina. Thompson refused to stop until Adkins called to him and told him it was time to leave. Adkins saw nothing when he entered the bedroom.
After Thompson and Adkins left the victim told her brother about the incident. The brother called their father. The father returned home from work. He took the child to the police station. The father was allowed to testify, over defense objections, his daughter was hysterical and crying and he knew she was telling the truth.
Thompson testified his touching occurred in a friendly scuffle and was accidental.
Thompson contends the court erred when it allowed the victim's father upon direct examination to express an opinion about whether the victim was telling the truth when she related the events of the offense. The testimony and the objections were:
Q [Prosecutor].... Now after you listened to your daughter say things to you, ... did you have any feelings or were you of any opinion whether or not your daughter was, you know, making things up, telling stories, fibbing, white lies or whatever you want to call it?
MISS ZWICKEY [Defense counsel]: Your Honor, I would object to a conclusion or a speculation on the part of the witnesses to whether or not his daughter was telling the truth.
Q Well now....
A As hysterical and crying that she was I knew she was telling the truth then, yes.
(R. 229).
In Head v. State (1988), Ind., 519 N.E.2d 151, our Supreme Court reversed a child molesting conviction because an expert witness was allowed to opine the victim told the truth, thus, invading the province of the jury. In Lawrence v. State (1984), Ind., 464 N.E.2d 923, our Supreme Court affirmed child molesting convictions where the expert's opinion did not take the direct form of expressing an opinion about the victim's credibility. In Douglas v. State (1985), Ind.App., 484 N.E.2d 610, this court, over this writer's partial dissent, remanded a criminal deviate conduct and child molesting case where an expert opined the child witness told the truth.
In this case the court permitted a non-expert witness to express an opinion the child victim, his daughter, was telling the truth. The parties do not point to and we have not found relevant Indiana precedent specifically discussing the admissibility of lay testimony about a child victim's credibility. However, our Supreme Court included such lay opinion in its exposition in Lawrence. It said
It is essential to a trial of issues of fact that the trier...
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