David Newbern, Justice.
This is a child sexual abuse case in which the appellant was convicted of raping the nine-year-old son (the boy) of the woman with whom he was living (the mother). We find that one of the appellant’s eight points of appeal requires reversal. It was prejudicial error for the trial court to have permitted the physician who examined the alleged victim to state, albeit indirectly, that the boy had been sexually abused. The remaining points will be addressed only to the extent it may be helpful in the event of a retrial.
The appellant and the mother had lived together for eight years. Living with them was the boy, who was the mother’s son but not the son of the appellant, and a younger daughter who was fathered by the appellant.
At the trial the boy testified that the appellant was planning to go fishing on April 27, 1985, with the boy and two other men. As the plans developed, a decision was made that it would be an overnight trip, and thus the boy could not go. He testified that he became angry and went into the house where his mother whipped him for picking on his little sister. He then told his mother that the appellant had sexually molested him. His mother took him to a hospital where he told the examining doctor, a pediatrician, the same thing. The boy then testified that his statements about the appellant had been untrue, as had his subsequent, similar, statements to a police officer, social worker, and deputy prosecutor.
The testimony of other witnesses indicated that the boy had accused the appellant of having anal and oral intercourse with him and then recanting the accusation and then recanting the recantation.
Police officers testified that the appellant, during questioning after his arrest, admitted rubbing his penis around the boy’s anus and saying that “it might have slipped in.” They said when they began questioning the appellant he refused to permit them to tape record his statement. After they had questioned him, they asked him to sign a written version of his statement, and he said he
would not sign anything until after he had talked with a lawyer. At that point the questioning ceased. The appellant denied having made any such admission to the officers.
The evidence against the appellant thus consisted of (1) the officers’ testimony about the appellant’s statement, (2) the doctor’s statement about what the boy had told him and his opinion that the boy had been abused, and (3) the statements of various persons about what the boy had told them when he accused the appellant and when he took back his accusations.
1. The Doctor’s Opinion
The doctor who examined the boy testified he found no physical evidence of the anal intercourse the boy said had taken place that day. The doctor said that lack of such evidence would not rule out the possibility that it had occurred. He testified that the boy told him the sexual relationship with the appellant had existed for some months and the acts had occurred on several occasions. The prosecutor then asked the doctor if he had examined many other children for alleged sexual abuse. The appellant objected, and at that point wrangling in bench conferences and otherwise out of the hearing of the jury began over whether the doctor could express an opinion whether the boy in this case had been sexually abused.
The court refused to allow the doctor to express his opinion whether the boy had told him the truth. However, the court allowed the doctor to give “an opinion as to whether or not child abuse existed.” The appellant objected, contending the doctor had no basis for such an opinion other than the boy’s out-of-court statément. The court responded that the doctor could give his opinion based upon “history, coupled with the physical facts, the living conditions that his parent related, . . . and the facts and circumstances at hand ¡ . . .” The appellant argued that the “history,” and the completely negative physical examination were the only bases the doctor could have had for his opinion. The court said the question could be asked and if the appellant wished to cross-examine on the bases for the opinion he could do so. The doctor had been admonished not to say his opinion was based solely on his belief of what the boy told him. When the jury returned to the courtroom, the questioning went like this:
<
BY MR. HUNTER [the prosecutor]:
Q. Doctor Kemp, during the time that you talked to [the boy] and examined him, what was his demeanor^©»© of voice, that sort of thing?
A. He seemed very concerned. Somewhat frightened. Worried. Very tense, anxious, and nervous. Obviously upset. Somewhat—obviously embarrassed with the conversation, and what he was saying to me.
Q. Ok. And you’ve indicated, Doctor Kemp, by pointing to the genital area, and the rectal area how he described what happened to him.
Did [the boy] ever use words, particular words to describe what he told you this defendant did to him?
A. He used words like his thing, and I would say, “What do you mean his thing” And he would—he would say, “Well, you know what I mean.” And I would say, “No, . . ., what do you mean.” And he would then point to his own penis and say, “This is what I mean, and I said, “You mean this is what you’re talking about when you say his thing,” and he would say, “Yes.” Descriptions like that.
Q. Do you remember how he referred to his hind part?
A. He initially pointed to his rectal area in—in describing where the thing was placed.
Q. Did he refer to it ever as his bottom?
A. Yes, he used that term once.
Q. Do you remember in what connection he referred to his hind part as his bottom?
A. He kept saying to me that he—he put his thing in my bottom, or—or point—he would point say, you know, back here.
Q. Doctor Kemp, based upon your examination of [the boy], the history that you took, including his living circumstances, and physical examination, did you formulate an opinion to within a reasonable degree of medical certainty, as to whether or not [the boy] had been subjected to sexual abuse?
A. Yes, I did.
Q. And Doctor Kemp, will you tell the ladies and gentlemen of the jury, please, what that opinion is?
A. I feel like I could not ignore the child’s comments to me. His sincerity—
MR. TINER [defense counsel]:
Judge, I’m objecting. The answer is not responsive.
MR. HUNTER:
Your Honor, he’s entitled to explain what his opinion was based on.
THE COURT:
Free access — add to your briefcase to read the full text and ask questions with AI
David Newbern, Justice.
This is a child sexual abuse case in which the appellant was convicted of raping the nine-year-old son (the boy) of the woman with whom he was living (the mother). We find that one of the appellant’s eight points of appeal requires reversal. It was prejudicial error for the trial court to have permitted the physician who examined the alleged victim to state, albeit indirectly, that the boy had been sexually abused. The remaining points will be addressed only to the extent it may be helpful in the event of a retrial.
The appellant and the mother had lived together for eight years. Living with them was the boy, who was the mother’s son but not the son of the appellant, and a younger daughter who was fathered by the appellant.
At the trial the boy testified that the appellant was planning to go fishing on April 27, 1985, with the boy and two other men. As the plans developed, a decision was made that it would be an overnight trip, and thus the boy could not go. He testified that he became angry and went into the house where his mother whipped him for picking on his little sister. He then told his mother that the appellant had sexually molested him. His mother took him to a hospital where he told the examining doctor, a pediatrician, the same thing. The boy then testified that his statements about the appellant had been untrue, as had his subsequent, similar, statements to a police officer, social worker, and deputy prosecutor.
The testimony of other witnesses indicated that the boy had accused the appellant of having anal and oral intercourse with him and then recanting the accusation and then recanting the recantation.
Police officers testified that the appellant, during questioning after his arrest, admitted rubbing his penis around the boy’s anus and saying that “it might have slipped in.” They said when they began questioning the appellant he refused to permit them to tape record his statement. After they had questioned him, they asked him to sign a written version of his statement, and he said he
would not sign anything until after he had talked with a lawyer. At that point the questioning ceased. The appellant denied having made any such admission to the officers.
The evidence against the appellant thus consisted of (1) the officers’ testimony about the appellant’s statement, (2) the doctor’s statement about what the boy had told him and his opinion that the boy had been abused, and (3) the statements of various persons about what the boy had told them when he accused the appellant and when he took back his accusations.
1. The Doctor’s Opinion
The doctor who examined the boy testified he found no physical evidence of the anal intercourse the boy said had taken place that day. The doctor said that lack of such evidence would not rule out the possibility that it had occurred. He testified that the boy told him the sexual relationship with the appellant had existed for some months and the acts had occurred on several occasions. The prosecutor then asked the doctor if he had examined many other children for alleged sexual abuse. The appellant objected, and at that point wrangling in bench conferences and otherwise out of the hearing of the jury began over whether the doctor could express an opinion whether the boy in this case had been sexually abused.
The court refused to allow the doctor to express his opinion whether the boy had told him the truth. However, the court allowed the doctor to give “an opinion as to whether or not child abuse existed.” The appellant objected, contending the doctor had no basis for such an opinion other than the boy’s out-of-court statément. The court responded that the doctor could give his opinion based upon “history, coupled with the physical facts, the living conditions that his parent related, . . . and the facts and circumstances at hand ¡ . . .” The appellant argued that the “history,” and the completely negative physical examination were the only bases the doctor could have had for his opinion. The court said the question could be asked and if the appellant wished to cross-examine on the bases for the opinion he could do so. The doctor had been admonished not to say his opinion was based solely on his belief of what the boy told him. When the jury returned to the courtroom, the questioning went like this:
<
BY MR. HUNTER [the prosecutor]:
Q. Doctor Kemp, during the time that you talked to [the boy] and examined him, what was his demeanor^©»© of voice, that sort of thing?
A. He seemed very concerned. Somewhat frightened. Worried. Very tense, anxious, and nervous. Obviously upset. Somewhat—obviously embarrassed with the conversation, and what he was saying to me.
Q. Ok. And you’ve indicated, Doctor Kemp, by pointing to the genital area, and the rectal area how he described what happened to him.
Did [the boy] ever use words, particular words to describe what he told you this defendant did to him?
A. He used words like his thing, and I would say, “What do you mean his thing” And he would—he would say, “Well, you know what I mean.” And I would say, “No, . . ., what do you mean.” And he would then point to his own penis and say, “This is what I mean, and I said, “You mean this is what you’re talking about when you say his thing,” and he would say, “Yes.” Descriptions like that.
Q. Do you remember how he referred to his hind part?
A. He initially pointed to his rectal area in—in describing where the thing was placed.
Q. Did he refer to it ever as his bottom?
A. Yes, he used that term once.
Q. Do you remember in what connection he referred to his hind part as his bottom?
A. He kept saying to me that he—he put his thing in my bottom, or—or point—he would point say, you know, back here.
Q. Doctor Kemp, based upon your examination of [the boy], the history that you took, including his living circumstances, and physical examination, did you formulate an opinion to within a reasonable degree of medical certainty, as to whether or not [the boy] had been subjected to sexual abuse?
A. Yes, I did.
Q. And Doctor Kemp, will you tell the ladies and gentlemen of the jury, please, what that opinion is?
A. I feel like I could not ignore the child’s comments to me. His sincerity—
MR. TINER [defense counsel]:
Judge, I’m objecting. The answer is not responsive.
MR. HUNTER:
Your Honor, he’s entitled to explain what his opinion was based on.
THE COURT:
Doctor, you said you formed an opinion. Can you state in general terms what the opinion was relative to child molestation or abuse?
A. I had an opinion based on the history that this child gave me, and my experience in dealing with children through the years, that an act had occurred that I considered detrimental to this child’s health.
MR. TINER:
Judge, may we approach the Bench?
THE COURT:
Yes.
(REPORTER’S NOTE: THE FOLLOWING IS A BENCH CONFERENCE THAT TOOK PLACE OUT OF THE HEARING OF THE JURY).
MR. TINER:
Judge, at this time, we’re going to move for a mistrial because he said, “Based upon the history that the child gave him, and based upon examining other children.” And that’s what it’s based upon, and that is improper, and we’re asking for a mistrial.
THE COURT:
I am going to deny your motion. And I am going to tell you at this time, Mr. Hunter, to go on to something else.
MR. HUNTER:
We are, your Honor.
MR. TINER:
We would ask the Court to admonish the jury to disregard the last statement that was made by the Doctor.
THE COURT:
No, that will be denied.
It is apparent the doctor ultimately conveyed to the jury his opinion that the boy was telling the truth. It was error, however, for the court to have permitted the doctor to have given his opinion that “an act had occurred that [he] considered detrimental to this child’s health.” The only “act” to which the doctor’s testimony could have referred was the anal intercourse related to him by the boy. The opinion of an expert that a child has been sexually abused is not objectionable on the basis that it is an opinion on the “ultimate issue.” A.R.E. 704; Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986). The question here is whether such an opinion may be expressed if it is based on nothing but the “history” given by the child.
In Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), a psychologist testified in a rape and child sexual abuse case that, based on her experience, what the child had told her was “consistent with a child who has been abused.” The majority opinion said:
The appellant argues that the trial court erred in allowing the witness to answer whether the child’s statements were consistent with sexual abuse because the subject matter was not beyond the common knowledge of the jury. The argument is meritorious.
The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact issue. Unif. R. Evid. 702; B&J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions. B&J Byers Trucking, Inc. v. Robinson, supra. Here, lay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.
Accordingly, we conclude the trial court erred in admitting the testimony. The issue then becomes whether the error was prejudicial. The State’s case against the appellant was so strong, and the error so inconsequential, that we find no prejudice.
The overwhelming evidence came primarily from the victim and a pediatrician. The victim’s testimony was explicit, graphic, and unequivocal ....
In the case before us now the error was prejudicial. The majority in Russell v. State, supra, found overwhelming evidence of the accused’s guilt based on the child’s graphic (and unrecanted) trial testimony relating the acts of the appellant. The evidence before us now can hardly be characterized as “overwhelming,” as it consisted solely of the doctor’s opinion, evidence of the inconsistent, out-of-court statements of tjie boy, and the disputed testimony with respect to the statement allegedly made orally by the appellant.
Although the evidence against the appellant was strong enough to be permitted to go to the jury, it was not of such overwhelming proportions as to make the error in allowing the doctor to give his opinion non-prejudicial.
2. A.R.E. 803(25)(A) and the Confrontation Clause
Testimony of witnesses as to what the boy had said about the appellant was admitted pursuant to A.R.E. 803 which provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (25) (A) A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
a. the age of the child
b. the maturity of the child
c. the time of the statement
d. the content of the statement
e. the circumstances surrounding the giving of the statement
f. the nature of the offense involved
g. the duration of the offense involved
h. the relationship of the child to the offender
i. the reliability of the assertion
j. the reliability-credibility of the child witness before the Judge
k. the relationship or status of the child to the one offering the statement
l. any other corroborative evidence of the act which is the subject of the statement
m. any other factor which the Court at the time and under the circumstances deems relevant and appropriate
2. The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
3. If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.
4. This Section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of Evidence. . . .
The appellant’s argument is that in Ohio v. Roberts, 488 U.S. 56 (1980), the Supreme Court said the Confrontation Clause of the Sixth Amendment requires, as a prerequisite to making an exception to the hearsay rule, that the witness whose out-of-court statement is to be discussed, i.e., the declarant, be unavailable and that there be adequate indicia of reliability of the statement. The appellee points out that in this case the boy was not unavailable.
In Ohio v. Roberts, supra, the question was whether the testimony taken at a preliminary hearing could be used at the trial in the absence of the witness. After a general discussion of the history of the hearsay rule exceptions in the context of the Confrontation Clause, in which it was noted that both unavailability of the witness and indicia of reliability of the statement are required, the court said: “In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.” In this case the witness was present at the trial. He was also available for the equivalent of cross-examination, as the court allowed the appellant to call him as a hostile witness even though his testimony was favorable to the appellant.
If we were to terminate this portion of the opinion at this point, we might be interpreted as suggesting that in any case where the witness is present for the trial his prior out-of-court statements may be substituted for live testimony as long as there are indicia of reliability of the prior statement. We do not mean to do that. In United States v. Inadi,_ U.S __, 106 S.Ct. 1121 (1986), the Supreme Court considered whether the hearsay rule exception permitting admissibility of out-of-court statements of co-conspirators made in the course and furtherance of the conspiracy could be admitted despite the availability of the witnesses in question. The claim there, as here, was that Ohio v. Roberts, supra, required unavailability of the witness as a prerequisite to any exception to the hearsay rule. The Supreme Court said that case was hardly to be interpreted as a wholesale revision of the law of evidence, and that the unavailability requirement did not apply with respect to every exception to the hearsay rule. The Supreme Court noted that the unavailability requirement applied in situations where the testimony of the witness at the trial was to be the same as it had been when given out of court. Obviously the better testimony would be that given live, and cross-examination could then be much more meaningful. However, where the testimony in court can be expected to be substantially different from that given out of court, as in the case of a co-conspirator whose out-of-court statement was surreptitiously obtained, the reason for the unavailability requirement disappears. The question then becomes solely whether there are sufficient indicia of reliability to make an exception to the hearsay rule. With a touch of understatement, the Supreme Court observed:
When the Government—as here—offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evidentiary value of his statements during the course of the conspiracy. [106 S.Ct. at 1126]
We find the same reasons apply to permit admissibility of the out-of-court statements of an alleged child abuse victim as applied to admit the statements of the alleged co-conspirators. One of the witnesses who testified as to the boy’s out-of-court statements accusing the appellant was a psychologist. As abstracted by the appellant, his testimony included the following:
It is not unusual for children who have been sexually abused to recant. Often children that have been abused, when they become aware of the implications, coming forward and talking about the sexual abuse, quite often they will recant. Some of the implications which they become aware of are going to court, changes that it causes in the family, and the pain they perceive they are causing other family members.
The appellant has not argued that the boy’s statements lacked sufficient indicia of reliability. We quote the psychologist’s testimony solely for the purpose of showing it was his expert opinion that a child is likely to recant a statement about being abused sexually by a family member. Thus, in view of the common prospect, and here the known reality, of a great difference between trial testimony and out-of-court statements of the alleged victim, the unavailability requirement does not apply in this case any more than it did in United States v. Inadi, supra.
Although the appellant’s primary argument under this point is the one about unavailability, he also contends that the application of A.R.E. 803(25)(A) in this case gave the prosecution an undue advantage not available in other cases as it permitted it to prove the crime by hearsay evidence and that that violated his rights to due process and equal protection of the laws. No authority is cited for this second proposition under this point, thus we will not address it. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Should this become an issue upon retrial, we refer the parties and the court to Note, 83 Colum. L. Rev. 1745 (1983); Note, 98 Harv. L. Rev. 806 (1985); and Note, 13 Pepperdine L. Rev. 157 (1985).
3. The Appellant’s Statement
The appellant argued he had asked for counsel at some point before or during the statement he gave to the police officers. They testified that he did not mention getting a lawyer until the appellant was asked to sign a written version of what he had told them. This was a credibility issue to be resolved by the trial court in determining the admissibility of the testimony as to the appellant’s statement. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).
4. Bill of Particulars
The appellant was charged with violating Ark. Stat. Ann. § 41-803 “on or about April 27, 1985 [,] in Poinsett County.” He filed a motion for a bill of particulars asking that the exact place and time of the acts alleged be stated. The motion was denied.
A bill of particulars as to the precise time the offense was committed need not be granted unless the time is material to the allegation. Ark. Stat. Ann. § 43-1015 (Repl. 1977); Payne v. State, 224 Ark. 309, 272 S.W.2d 829 (1954); Venable v. State, 177 Ark. 91, 5 S.W.2d 716 (1928).
Charging the location at which an offense occurred is necessary to establish the jurisdiction of the court. Ark. Stat. Ann. § 43-1016 (Repl. 1977). Therefore, it is sufficient if the court having jurisdiction of the offense alleged can be determined from the information. Haller v. State, 217 Ark. 646, 232 S.W.2d 829 (1950).
5. What is a Statement?
The appellant contended that when the boy was questioned by a police officer his responses consisted only of “yes and no” answers to questions asked, and that those responses to questions did not constitute a “statement” by the alleged child abuse victim contemplated by A.R.E. 803(25)(A). While this court has not defined “statement” in this context, other courts have done it in similar situations. For example, in United States v. Katsougrakis, 715 F.2d 769 (2nd Cir. 1983), cert. den. 104 S.Ct. 704 (1984), a nod of the head in response to a question was held to be a statement. In United States v. Guzman, 754 F.2d 482 (2nd Cir. 1985), questions were held admissible to give meaning to responses. In our opinion, the responses of the alleged victim in this case constituted clear assertions and were sufficient to be considered a “statement” as contemplated in the rule.
6. Conflicting Testimony
A tape recording of the boy’s statement to a police officer was played for the jury. A social worker who was present when the statement was made testified she heard the boy make a statement which did not appear on the tape. The officer testified the tape contained all that was said. The appellant claims this conflict in testimony presented by the prosecution made the tape so untrustworthy that it should not have been admitted. Such a conflict goes only to the weight to be given to the testimony presented by the prosecution and not to its admissibility. See Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).
7. Evidence of Other Crime
When the tape recording of the boy’s statement was to be played for the jury, the appellant objected on the basis that the statement was hearsay, the rule does not permit tape recording as opposed to statements, and the witness (presumably meaning either the officer or the boy) was present in court and could testify to what the statement had been. The appellant also argued that the tape contained prejudicial evidence of another offense, that is, the boy was asked if the appellant had ever “fooled around” with the boy’s sister. Focusing on that basis for the objection, the court asked what the response to the question was. At that point the appellant’s counsel said, “alright, the tape is inaudible to that, Judge. I don’t think—I don’t think the jury’s gonna be able to hear the tape anyway.” The judge said he would permit the tape to be played. The appellant then asked that his objection be treated as a continuing one.
We need not decide whether the objection was waived or not. If this case is retried, it is clear that the court should review the tape before it is admitted to ascertain if it contains evidence that the appellant committed another crime and take appropriate action to see to it that any such evidence does not get before the jury.
8. The Boy’s Age
The appellant contends that when the boy made his out-of-court statements accusing the appellant he was nine years old, but at the time of the trial he was ten. The appellant argues that A.R.E. 803(25)(A) was designed to protect a young child from the trauma of a trial, and thus the critical age is the age of the child at the time of the trial rather than the age at the time the statement was made, and the rule thus does not permit the statements to be admitted.
The birth certificate of the boy showed that his tenth birthday occurred May 3, 1985. His accusatory statements were given on April 27 and 30, 1985. His statements recanting the accusations occurred after May 3, 1985. The court ruled that it would be unfair to the appellant to exclude the boy’s statements made after May 3,1985, in the circumstances of this case, and he admitted both the accusatory statements and the recantations citing A.R.E. 803(24).
Although the judge’s ruling was probably not responsive to the appellant’s objection, we find no error here. We have found no authority, and the appellant has cited none, supporting the appellant’s interpretation of Rule 803(25)(A) as meaning that the declarant must be less than ten years old at the time of the trial as opposed to the time the statement was made. The rule refers to a “statement made by a child under ten years” as being admissible. Our view is that had the authors of the rule meant to restrict it to a statement made by a child “under ten years of age at the time of the trial” they would have said so. It seems clear to us that the Rule permits the statements to be admitted in this case because they were “made by a child under ten years.”
Reversed.
Purtle, and Dudley, JJ., concur. Hays, J., dissents.