concurring in part and dissenting in part.
I concur in part and dissent in part.
I agree (a) this court has no power to review actions taken by our Supreme Court, (b) the trial court did not err by obeying the Supreme Court's writ of mandamus, and (c) the evidence was insufficient to prove the mental deficiency or disability element of IND.CODE 835-42-4-2(a)(8). Next, after consideration of the charging information, the statutory sections, and Smith v. State (1985), Ind., 477 N.E.2d 857, 866, I agree a conviction on both charges presents a double jeopardy problem which is resolved by our determination the evidence was insufficient to sustain the unlawful deviate conduct charge. Finally, I agree the acts here complained of constitute fondling under the child molest ing statute, IND.CODE 85-42-4-8(b).
I disagree, however, with the conclusion a new trial is necessary because the expert witness testified in her opinion the four-year-old victim was telling the truth. At most, this was harmless error.
In Lawrence v. State (1984), Ind., 464 N.E.2d 928, at 925 our Supreme Court said by way of obiter dicta the testimony of an expert witness could not take the direct form of a statement of opinion a child victim was telling the truth. The rationale for the rule is well known and oft-stated: the giving of opinion testimony concerning the truth of a statement invades the province of the trier of fact. In Lawrence, the expert's testimony opinion did not include the prohibited direct statement of opinion. Here, the expert's testimony was so phrased. Because it was, the majority reverses.
In other contexts, however, our Supreme Court has decided prompt admonition or other curative measures are sufficient to cure alleged error and protect a defendant's rights. See, eg., Johnson v. State (1985), Ind., 472 N.E.2d 892, 904; Holland v. State (1988), Ind., 454 N.E.2d 409, 412; Dresser v. State (1983), Ind., 454 N.E.2d 406, 408; Barnes v. State (1982), Ind., 485 N.E.2d 2835, 238; Ballard v. State (1974), 266 Ind., 482, 318 N.E.2d 798, 808. Here the trial court immediately and properly put the evidence in its proper context:
... The jury, of course, may accept or reject this or any other opinion, and it is the jury which will ultimately decide who is telling the truth and who isn't telling the truth. The objection is denied. The witness may answer the question.
(R. 648-644). The court's instruction is sufficient to cure any error in the admission of this evidence.
Further, both before and after she testified the victim was telling the truth in her opinion, she presented, inter alia, a detailed and complete reconstruction of her contacts with the victim, her diagnosis and treatment of him, and the criteria she considered when evaluating events related by child victims concerning sex offenses.
Although he continued to object to admission of the statement (R. 644) Douglas did not request any other curative measure. He sought no mistrial. He thoroughly cross-examined (R. 646-658) and recross-examined (R. 663-664) the expert witness. His inquiries included seeking her opinions concerning the effects of the uncommon family situation, the victim's age and dependence upon his mother. If this was error, it was harmless.
I would affirm the child molesting con-viection.