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: