State v. Geyman

No. 85-638

I N THE SUPREME COURT O THE STATE O MONTANA

F F

1986

STATE O MONTANA,

F

Pl.aintif f and Respondent,

-vs-

KEITH R. GEYMAN,

Defendant and A p p e l l a n t .

APPEAL F O :

R M D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,

I n and f o r t h e County o f M i s s o u l a ,

The Honorable J a c k L . Green, Judge p r e s i d i n g .

COUNSEL O RECORD:

F

For Appellant:

K e i t h R. Geyman, p r o se, Deer Lodge, Montana

For Respondent :

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana

J o e R. R o b e r t s , A s s t . A t t y . G e n e r a l , Helena

J a y E r i c k s o n , L e g a l I n t e r n , H e l e n a , Montana

R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a ,

Montana

S u b m i t t e d on B r i e f s : Nov. 7 , 1986

Decided: December 9 , 1 9 8 6

Filed: DEC 9 - I986

Clerk

Mr. Justice L. C. Gulbrandson delivered the Opinion of the

Court.

Keith Geyman appeals a Missoula County District Court

jury verdict convicting him of deviate sexual conduct. The

court sentenced Geyman to forty years with ten years suspend-

ed and no possibility of parole.

The issues on appeal are whether there was sufficient

evidence to support the conviction and whether expert testi-

mony concerning the credibility of a child alleged to have

been the victim of a sexual assault should be admitted into

evidence.

We affirm.

On September 20, 1984, defendant Geyman accompanied his

girlfriend and three of her sons, including nine-year-old

Shane, on a trip from Missoula to Kalispell, Montana. At

this point Geyman had been living in Missoula with his

girlfriend for about a month. Before leaving Missoula,

Geyman consumed several beers and some speed. The girlfriend

and two of her sons remained in Kalispell while Geyman and

Shane, the third son, returned to Missoula late that evening.

Shane testified that on the trip home Geyman stopped the car

three or four times and on each occasion asked him to perform

oral sex. Shane refused the requests and. testified that

Geyman then performed oral sex on him. Geyman purchased more

beer upon arrival in Missoula and then drove to the apartment

with Shane. A short time later, Geyman entered Shane's

bedroom and. performed anal sex on the boy which continued the

remainder of the night and early morning. Shane testified

that Geyman slapped him numerous times during the assault and

told him not to tell anyone. Shane left the apartment at

around 8:00 a.m. and walked to the apartment of his mother's

friend who testified that Shane appeared tired, had circles

under his bloodshot eyes, had very flushed cheeks, and acted

very nervous. Shane went to school that day and stayed at

the friend's apartment until his mother returned from

Kalispell shortly after midnight.

On October 14, 1984, or just over three weeks after the

incident, Shane told his mother about Geyman's attacks,

whereupon the mother contacted law enforcement authorities.

After an interview with the authorities, Shane was examined

by a pediatrician, two clinical psychologists and a chil-

dren's psychiatrist, all of whom testified at trial.

The test as to the sufficiency of the evidence was

stated in State v. Wilson (Mont. 1981), 631 P.2d 1273,

1278-1279, 38 St.Rep. 1040, 1047, quoting Jackson v. Virginia

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed2d

560, 573:

[TIhe relevant question is whether,

after viewing the evidence in the light

most favorable to the prosecution, any

rational trier of fact could have found

the essential elements of the crime

beyond a reasonable doubt. [Emphasis in

original.]

Shane testified that Geyman repeatedly performed anal

sex on him and slapped him several times during the assault.

Shane's testimony was corroborated by his mother's friend

with whom he had stayed earlier. She observed that Shane was

nervous, exhausted and complained of Geyman slapping him and

not allowing him to sleep. She testified that Shane refused

to travel back to Kalispell with Geyman to pick up his

mother. The mother testified that her son's room was in

unusual disarray the day after the incident and that he is

now afraid to sleep alone. Shane told a law enforcement

officer that Geyman had told him not to tell anybody. In

addition, the officer went to interview Geyman and before

being informed of the nature of the interview, Geyman stated

that he did not rape Shane.

Dr. Jenni, a clinical psychologist, testified that

Shane related his testimony with anatomically correct dolls,

was extremely embarrassed, tense, and had extreme difficulty

describing the defendant's repeated attacks. Dr. Walters,

also a clinical psychologist, testified that Shane was acute-

ly anxious, frightened, and very uncomfortable as he ex-

plained the attack.

The evidence supporting the conviction is compelling

and is sufficient to sustain the jury verdict. The testimony

of the victim and his witnesses was substantially consistent

and any rational trier of fact could find that the essential

elements of deviate sexual conduct have been met.

The issue of whether expert testimony concerning the

credibility of a child alleged to have been the victim of a

sexual. assault should be admitted into evidence is a case of

first impression for this Court. We have dealt with the

expert testimony issue as to adult sexual assault victims in

two recent cases. In State v. Liddell (Mont. 1984), 685 P.2d

918, 41 St.Rep. 1293, involving sexual intercourse without

consent, we held that expert testimony on rape trauma

syndrome would be helpful to the jury in deciding the issue

of consent. This Court said:

We believe that skilled direct and

cross-examination of an expert in this

area can assist the jury in determining

whether, in fact, the victim consented

to the act.

Liddell, 685 P.2d at 923.

In State v. Brodniak (Mont. 1986), 718 P.2d 322, 329,

43 St.Rep. 755, 763, we held that expert testimony in support

of the rape victim's testimony was improper comment on the

victim's credibility and therefore an invasion of the

province of the jury:

Clearly [the expert s] testimony with

regard to malingering and the statisti-

cal percentage of false accusations was

improper comment on the credibility of

[the complaining witness] in light of

the above cited authority and should not

have been admitted in this case.

The Court in Brodniak distinguished Liddell saying that

rape trauma syndrome is a proper subject for expert testimony

in a sexual intercourse without consent case. "Where all

that is disputed is the consent element such evidence is

relevant to the question of whether there was consent to

engage in a sexual act which all parties agreed occurred."

Brodniak, 718 P.2d at 326.

Since the admissibility of similar expert testimony in

a case involving the sexual assault of a child is a novel

issue for this Court, we feel it is proper to analyze the

interpretations of other jurisdictions.

Two Minnesota cases are especially relevant to the case

before us. In State v. Sald.ana (Minn. 1982), 324 N.W.2d 227,

the situation involved expert testimony as to the typical

post-rape behavior of most victims as compared to the

behavior of the victim in this case. Based on her findings,

the expert stated that she believed the complainant was the

victim of sexual assault and rape. The court said that

permitting the expert to suggest that because the complainant

exhibits some of the symptoms of rape trauma syndrome, the

complainant was therefore raped, unfairly prejudices the

accused by creating an aura of special reliability and

trustworthiness. Saldana, 324 N.W.2d at 230. The court

believed that rape trauma syndrome was not a fact-finding

tool and that the jury was capable of considering the

evidence and determining whether a rape had occurred.

However, the court did say that under the right set of facts,

such testimony should be admitted.

Expert testimony concerning the credi-

bility of a witness should be received

only in "unusual cases. " [Citations

omitted.] An example of such an unusual

case is a sexual assault case where the

alleged victim - - child or mentally

is a

reta.rded. [Emphasis added.]

Saldana, 324 N.W.2d at 231.

Two years later, the Minnesota court once again consid-

ered a rape case involving expert testimony on rape trauma

syndrome. State v. Myers (Minn. 1984), 359 N.W.2d 604.

However, the victim in this case was a seven-year-old child,

not an adult. The court held that it was within the trial

court's discretion to admit testimony describing the psycho-

logical and emotional characteristics typically observed in

sexually abused children and those observed in the complain-

ant and giving other background. data providing a relevant

insight into the conduct of the child complainant which the

jury could not otherwise bring to its evaluation of the

child's credibility.

In approving the expert testimony, the court made the

following remarks:

With respect to most crimes the credi-

bility 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

~otentiallv useful information, the

possibility that the jury may be -unduly

influenced by an expert's opinion miti-

gates 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 cul-

tures, and the common experience of the

jury may represent a less than adequate

foundation for assessing the credibility

of a young child who complains of sexual

abuse. If the victim of a burglary

failed to report the crime promptly, a

jury would have good reason to doubt

that person's credibility. A young

child subjected to sexual abuse, howev-

er, may for some time be either unaware

or uncertain of the criminality of the

abuser's conduct. As [the expert]

testified, uncertainty becomes confusion

when an abuser who fulfills a

caring-parenting role in the child's

life tells the child that what seems

wrong to the child is, in fact, all

right. Because of the child's confu-

sion, shame, guilt, and fear, disclosure

of the abuse is often long delayed.

When the child does complain of sexual

abuse, the mother's reaction frequently

is disbelief, and she fails to report

the allegations to the authorities. By

explaining the emotional antecedents of

the victim' s conduct and the peculiar

impact of the crime on other members of

the family, an expert can assist the

jury in evaluating the credibility of

the complainant. See State v.

Middleton, 294 Or. 427, 657 P.2d 1215

(1983).

Myers, 359 N.W.2d at 609-610.

In distinguishing this case from Saldana, 324 N.W.2d

227, where the consent of an adult victim was at issue, the

Minnesota court went on to say this:

In the case of a sexually abused child

consent is irrelevant and jurors are

often faced with determining the veraci-

ty of a young child who tells of a

course of conduct carried on over an

ill-defined time frame and who appears

an uncertain or ambivalent accuser and

who may even recant. Background data

providing a relevant insight into the

puzzling aspects of the child's conduct

and demeanor which the jury could not

otherwise bring to its evaluation of her

credibility is helpful and appropriate

in cases of sexual abuse of children,

and particularly of children as young as

this complainant. State v. Middleton,

supra; State v. Kim, 64 Hawaii 598, 645

P.2d 1330 (1982). See also State v.

Loss, 295 Minn. 271, 280, 204 N.W.2d 404

(1973) (battered child syndrome) ;

Ibn-Tamas v. United States, 407 A.2d 626

(D.C. Cir. 1979) (battered wife

syndrome) .

Myers, 359 N.W.2d at 610.

The issue has received recent treatment in the

literature:

The argument that such expert

psychological testimony is prejudicial

because it bears on the credibility of a.

witness, and thus invades the province

of the jury, is simply wrong. Expert

testimony cannot "invade the province of

the jury" unless the jury is instructed

that it must agree with the expert's

assessment. [Emphasis in original.]

Massaro, Experts, Psychology, Credibility and Rape: The Rape

Trauma Syndrome Issue and Its Implications for Expert

Psychological Testimony, 69 Minn. L. Rev. 395, 443 (1985).

The Oregon Supreme Court faced a similar situation in

State v. Middleton (Or. 1983), 657 P.2d 1215. In that case a

father was charged with raping his fourteen-year-old

daughter. At one point before trial, the daughter recanted

her testimony. The State's expert testified that the stress

on a child from an intra-family sexual assault can cause

denial to occur. In holding that such testimony did not

invade the province of the jury, the court stated:

It would be useful to the jury to know

that not just this victim but many child

victims are ambivalent about the force-

fulness with which they want to pursue

the complaint, and it is not uncommon

for them to deny the act ever happened.

Explaining this superficially bizarre

behavior by identifying its emotional

antecedents could help the jury better

assess the witness's credibility.

Middleton,

A Hawaii Supreme Court decision is in line with the

Myers and Middleton cases. State v. Kim (Hawaii 1982) , 6 4 5

P.2d 1330. The court held that the admission of expert

testimony was proper:

When ... the nature of a witness'

[sic] mental or physical condition is

such that the common experience of the

jury may represent a less than adequate

foundation for assessing the credibility

of a witness, the testimony of an expert

is far more likely to be of value, and

thus more likely to be admissible when

its probative value is measured against

its prejudicial effects.

-

Kim, 6 4 5 P.2d at 1 3 3 7 .

In the case before us, two expert witnesses testified

as to the victim's emotional condition at the time they

interviewed him. On cross-examination, Dr. Stratford gave

the following testimony:

Q. [Mr. Wilson, defense counsel] What

I'm talking about is the length of time

that you were with this little boy, the

amount of time that you had to be with

him, and based on that time you were

able to come up with a conclusion and

render an opinion. That's all.

A. [Dr. Stratford] That's correct.

Based on my time spent, it's my profes-

sional opinion that the boy had been

traumatized and physically abused by

someone. As I said twice before,

though, that's ultimately a jury

question.

Dr. Jenni's testimony as to her findings and conclu-

sions is set out below:

Q. What is your general experience with

children in this area?

A. General experience is that children

don't make up such stories, and the

research also backs that up. That it's

like well under five percent of the

cases that it's ever found out not to be

true.

0. Dr. Jenni, do you have an opinion as

to whether Shane was sexually assaulted?

A. Yes.

Q. What is that opinion?

A. I believe that he was.

Q. What do you base that on?

A. I base that on the story that he

told me and that it was very credible.

It was consistent. It was very anxiety

producing for him. I mean he -- he was

not lying, and my general impression was

that he was telling me the truth. That

was a very painful story. That he would

not have made up a story that was so

painful to him.

We hold that expert testimony is admissible for the

purpose of helping the jury to assess the credibility of a

child sexual assault victim. The expert testimony in no way

impinged upon the jury's obligation to decide the victim's

credibility. It merely enlightened the jurors on a subject

with which many or most jurors have no common experience they

can use to judge the victim's credibility. The victim in

this case waited over three weeks before reporting the as-

sault which, according to the expert testimony given in this

case and others, is not uncommon for children subjected to

sexual abuse. Young children are often unaware or uncertain

of the criminality of the abuser's conduct and feelings of

confusion, shame, guilt and fear often delay disclosure of

the abuse for an indefinite period of time. Myers, 359

N.W.2d at 610.

The jury had the discretion to accept or reject the

expert testimony in its entirety and in the end they were the

sole judge of the child's credibility. The expert testimony

was properly admitted.

Affirmed

We concur: