State v. Stefaniak

BENCH, Judge

(dissenting):

I cannot reverse this conviction on the authority of State v. Rimmasch, 775 P.2d 388 (Utah 1989), and State v. Iorg, 801 P.2d 938 (Utah App.1990). These cases limit the circumstances under which experts can testify about a victim’s credibility. In our ease, neither the victim’s father nor Bartholomew testified as an expert. Both testified as lay witnesses in response to an attack on the victim’s character for truthfulness when defendant claimed that the victim’s mother concocted the story after her marriage to defendant failed in April 1993. The prosecution tried to qualify Bartholomew as an expert, but the trial court ruled that the prosecution had not established the necessary foundation. Bartholomew was then allowed to testify not as to the victim’s credibility but only that the incident was reported to him in December 1992 and that the victim did not appear to have been coached at that time. Further*1097more, the father testified not that the victim’s story was true, but merely that the victim had consistently told him the same story. Nothing in Rimmasch or Iorg precludes this sort of testimony. I do not believe that, in admitting the testimony, the trial “court has clearly abused its discretion.” Iorg, 801 P.2d at 939.

In any event, this case turned on whether defendant had exposed himself to the child victim. She testified, in detail, about seeing a rose tattoo on defendant’s lower abdomen. When defendant took the stand, he made no effort to deny the existence of the tattoo or to explain how the victim came to know so much about it. Furthermore, in instructing the jury, the trial court reemphasized that it was the jury’s exclusive duty to judge the credibility of the witnesses, and the motives they may have had to testify falsely. Under those circumstances, I do not believe “there is a reasonable likelihood that, absent [any] error [in admitting the evidence], there would have been a more favorable result for the defendant.” Id. at 941.

The other issues raised by defendant are without merit. I would affirm the conviction.