Townsend v. State
| Decision Date | 31 March 1987 |
| Docket Number | No. 16645,16645 |
| Citation | 103 Nev. 113,734 P.2d 705 |
| Parties | John Michael TOWNSEND, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Conner & Steinheimer, Reno, for appellant.
Brian McKay, Atty. Gen., William E. Cooper and David Sarnowski, Deputys, Carson City, for respondent.
Townsend was charged and convicted of two counts of lewdness with a minor under the age of fourteen years and two counts of sexual assault. He was sentenced to serve two concurrent ten-year terms for the lewdness counts and two concurrent life terms for the counts of sexual assault. The sentences imposed for sexual assault were to run consecutively to the sentences imposed for lewdness.
The victim was nine years old at the time the offenses occurred. She lived in a trailer house occupied by her family, including her father, appellant John Michael Townsend. The first act occurred in the middle of September, 1984. The victim was watching television in her room; Townsend entered with an anatomy book and asked her if she wanted to learn about the "facts of life." Thereafter, Townsend proceeded to masturbate in front of the child to the point of ejaculation. Later, Townsend invited the victim to take a bath with him. Afterwards, Townsend dressed the child in adult clothing and makeup.
The second incident occurred two weeks later. The victim was asleep alone in her bedroom. Townsend entered her room and woke her up. While the child was changing into an adult's nightgown provided by Townsend, appellant went into the bathroom and returned with a tube of "lubricant." Townsend slipped his hands down the vee neck of the nightgown and massaged the victim's nipples. Shortly thereafter, he placed some lubricant on his finger, placed his hand inside the victim's underpants and "poked down" on the labial folds of her vagina. Townsend removed his hand, put more "lubricant" on his little finger and then inserted it into the child's vagina until she began to cry because of the pain. Townsend then removed his finger and showed the victim how far he had forced his finger into her. He then cautioned her to keep what had happened a secret. The child-victim told her mother the "secret" during the early part of November, 1984 as she and her mother were watching a movie on television entitled "How to Teach Your Children About Sex." Townsend was arrested soon thereafter.
Townsend directs us to five assignments of error on appeal.
Townsend contends that the trial court erred in rejecting his motion for a mistrial after the prosecutor questioned a prospective juror about the ability of a trained person to identify mental scars that may result from sexual assault. We disagree. The State sought to determine the attitude of the venireman concerning expert testimony; the attempt did not rise to the level of an emotional appeal. It was acceptable voir dire to explore possible areas of bias in critical aspects of the State's case. Moreover, a trial court is accorded broad discretion in the latitude afforded counsel during voir dire, Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968). There was no abuse of discretion by the trial court on this issue.
Townsend next argues that no expert witness should be allowed to testify as to whether a complaining witness, in this case Townsend's daughter, is telling the truth, or whether a crime has been committed. 1 Here, the State's expert testified that the child was a victim of post-trauma stress disorder as a result of a sexual assault by her father. Additionally, the expert testified, in effect, that the child's testimony was true.
Although limitations attributable to age may impair the capacity of a child-victim to articulate details indicative of a defendant's guilt, and thereby enhance the need for expert testimony, such testimony nevertheless must be in conformity with criteria specified by Nevada's evidence code. The threshold test for the admissibility of testimony by a qualified expert is whether the expert's specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. The goal, of course, is to provide the trier of fact a resource for ascertaining truth in relevant areas outside the ken of ordinary laity. Moreover, expert testimony must also withstand the challenge to all relevant evidence, i.e., whether probative value exceeds prejudicial effect. NRS 48.035(1).
In the instant case, it is apparent that expert testimony concerning post-traumatic stress disorder patterns in sexually abused children satisfied the requirement of the evidence code in providing jury enlightenment on a critical and relevant subject of an esoteric nature. Similarly, it was proper for the State's expert to express an opinion on the issue of whether the child had, in fact, been sexually assaulted or abused. Such an opinion, although embracing an ultimate issue, represents both the peculiar expertise and consummate purpose of an expert's analysis. In both instances, the testimony was highly probative in this type of secretive crime where ordinarily the only percipient witness is the child-victim; the prospect of unfair prejudice thus paled in comparison.
Other jurisdictions have also held expert testimony admissible on the issue of whether a child-victim has been sexually abused and whether the victim has reacted in ways that are consistent with the behavior of other sexually abused children. See, e.g., State v. Myers, 359 N.W.2d 604 (Minn. 1984); State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983).
Our ruling on the admissibility of expert testimony in child sex abuse cases does not dispose of the issue before us. Here, the expert not only opined that the child had been sexually assaulted, but proceeded to identify Townsend as the perpetrator. This was improper testimony as it transcended the test of jury enlightenment and entered the realm of fact-finding that was well within the capacity of a lay jury. While it may have been appropriate for the expert to provide clinical testimony concerning familial sex abuse in general, it was improper to identify the victim's father as the specific source of the assault. In many cases, such testimony would mandate reversal; however, the instant case requires no such result since the error is harmless beyond a reasonable doubt. Pasgove v. State, 98 Nev. 434, 651 P.2d 100 (1982); Sanders v. State, 96 Nev. 341, 609 P.2d 324 (1980). The evidence against Townsend, including his confession of guilt to the arresting officer, was overwhelming.
As noted above, Townsend also claims error in permitting the State's expert to validate the truthfulness of the victim's testimony. There is a measure of validity in Townsend's position. First, however, it is essential to recognize that expert testimony, by its very nature, often tends to confirm or refute the truthfulness of another witness, State v. Myers, 359 N.W.2d at 609. It is, therefore, appropriate for qualified experts to characterize their findings, observations and conclusions within the framework of their field of expertise, irrespective of the corroborative or refutative effect it may have on the testimony of a complaining witness. However, it is generally inappropriate for either a prosecution or defense expert to directly characterize a putative victim's testimony as being truthful or false. Id. at 611. Here, the prosecutor asked the State's expert if she had formed a conclusion as to the victim's truthfulness. After responding affirmatively, the expert detailed her reasons for the conclusion she reached without ever indicating what her conclusion was. However, the question and the expert's response left no doubt as to her answer. This was improper since it invaded the prerogative of the jury to make unassisted factual determinations where expert testimony is unnecessary. The jury was certainly equipped to weigh and sift the evidence and reach its own conclusion concerning the child's veracity. Although the admissibility of expert testimony is a matter for the sound discretion of the trial judge, Smith v. State, 100 Nev. 570, 572, 688 P.2d 326, 327 (1984), both the prosecutor's question, and hence, the detailed response, should have been excluded. 2 Again, however, we conclude that in the face of overwhelming evidence of guilt, the error was harmless beyond a reasonable doubt and reversal is not warranted.
Townsend argues that the use of a hypothetical question, directed to the State's expert, introduced facts into evidence which were never proved by the State and that this constituted prosecutorial misconduct amounting to prejudicial error.
We disagree with Townsend on three grounds. First, the hypothetical by the State was substantially invited by Townsend's counsel in resorting to similarly objectionable hypothetical lines of questioning. Second, the lower court cautioned the jury, during the hypotheticals of both...
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