Public-domain · open source
OpenJurist

550 N.E.2d 114

Ulrich v. State

Indiana Court of Appeals

Decided February 22, 1990

Indiana Court of Appeals · decided 1990-02-22

Cited by 10 later decisions — most recently March 2012

10 state decisions

Key passage — most relied on by later courts

“"Whenever an alleged child victim takes the witness stand in such cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of 'I believe the child's story, or 'In my opinion the child is telling the truth'" Id. at 925.”

quoted by 1 later decision, including Wright v. State

Relies on Lawrence v. State · Head v. State · Henson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1990-02-22

View the full empirical analysis of this case →

HOFFMAN, Judge.

¶1Defendant-appellant Peter Ulrich appeals a jury trial conviction of rape, a Class B felony. Appellant, a high school special education teacher, was convicted of raping a former student. The 25-year-old victim had the mental age of a 7 to 9 year old and an LQ. of 78.

¶2State witness, psychiatrist Dr. Helen Morrison, gave the following testimony about the victim's ability to remember:

"Q Now is that ability to be consistent in those areas, say for the remembering the say memorable or significant events in her life; is that significant in this case?
A It's significant in [the victim's] case. Significant in the context that intellec*115tually and educationally and at the chronological mental age at which [the victim] is functioning. The consistency of that memory indicates to me that she [sic] reliable and credible.
MR. FORKER: Your Honor, I object. This is invasion of province of the jury. And I move that that answer be stricken and that the jury be admonished.
THE COURT: Do you have any reasons why? Will you want to argue outside the jury?
MR. FORKER: Your Honor, the jury's function is to assess eredibility and reliability, not the province of an expert witness' testimony. That's my objection regarding invading the province of the jury. Regardless of her expertise or alleged expertise, the cases clearly hold that that's not admissible.
THE COURT: Objection's overruled. You may continue, Doctor."

¶3It is permissible to receive expert testimony as to whether or not a witness with childlike mental capabilities can consistently remember a sexual occurrence. In allowing such testimony the Indiana Supreme Court has cautioned:

" 'Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of "I believe the child's story", or "In my opinion the child is telling the truth."'"
Head v. State (1988), Ind., 519 N.E.2d 151, 153, quoting Lawrence v. State (1984), Ind., 464 N.E.2d 923, 925.

¶4By stating that the victim was reliable and credible, the expert witness invaded the province of the jury. The trial court erred in failing to admonish the jury or strike the expert's answer after appellant's timely objection.

¶5Appellant contends the trial court erred in prohibiting opinion testimony by defense witness, psychologist Dr. David Frank. The trial court sustained the State's objection to the following question:

"[Djo you have an opinion based upon a reasonable degree of psychological certainty as to whether those allegations of sexual activity by Pete are consistent with the profile and results you obtained from the MMPI; that you administered to and the clinical interview you conducted with Peter Ulrich[?]"

¶6The MMPI, Minnesota Multiphasic Personality Inventory, is a personality assessment test conducted by clinical interview. The M.M.P.I. consists of a series of questions to determine an individual's tendencies on ten clinical scales. Dr. Frank testified that appellant had a normal profile on the lie and psychopathic deviate scale and no abnormalities appeared on the other M.M.P.I. scales. Appellant's offer of proof revealed that in Dr. Frank's opinion the allegations were inconsistent with appellant's personality profile.

¶7Where an expert is to give opinion testimony in the form of an answer to a hypothetical question, more than mere relevance is required to make the evidence admissible. A proper foundation must be laid which is two-fold. First, the expert's ability to give such an opinion must be established through testimony showing he has the requisite knowledge, skill, education or experience on which to base the opinion. Second, there must be a proper evidentiary foundation supporting the facts that are included in the hypothetical question. That is to say, a hypothetical question is proper if it embraces facts that have been placed into evidence. Henson v. State (1989), Ind., 535 N.E.2d 1189, 1191-1192.

¶8The trial court did not err because the question asked to Dr. Frank involved facts not placed into evidence. The questions and answers from the M.M.P.I. and the clinical interview were not placed into evidence. The expert was allowed to describe his evaluation of the psychological tests given to appellant but was properly prohibited from answering if appellant's personality profile was consistent with the allegations.

¶9Reversed.

BUCHANAN, J., concurs.GARRARD, J., concurs with opinion.
/550/ne2d/114 · .json · Public domain