APPEAL
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-15-281]
HONORABLE BRENT HALTOM, JUDGE.
Jeff
Rosenzweig, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Appellant
Jared Harper was convicted by a Miller County Circuit Court
jury of rape, second-degree sexual assault, and sexual
indecency with a child. The judgment entered on April 12,
2018, reflects that Harper was sentenced to an aggregate term
of 360 months' imprisonment.[1] On appeal, Harper argues
that the circuit court erred by (1) permitting Missy Davidson
to testify as an expert witness about victim recantation, (2)
denying his motion for a continuance, and (3) denying his
motion to produce the prosecutor's notes from an
interview with the victim. For the following reasons, we
affirm in part and remand for further proceedings.
In
March 2015, Harper's eleven-year-old stepdaughter, K.S.,
disclosed that Harper had been sexually abusing her. On June
26, 2015, the State filed a criminal information charging
Harper with rape, second-degree sexual assault, and sexual
indecency with a child.
K.S.,
who was fourteen years old at the time of trial, testified
that Harper had sexually abused her from ages seven to ten.
K.S. stated that the first time was after she got out of the
shower one day. Harper told her to leave her underwear off.
Then he "rolled his finger around [her] private
part" but did not put his finger inside her vagina.
Other times when K.S. and Harper watched movies together on
the couch, he touched her "private parts" with his
fingers. K.S. testified that Harper attempted to insert his
finger into her vagina, but "he never really got it
in." Harper would stop the inappropriate touching after
K.S. told him that it hurt.
K.S.
explained that Harper's fingers "went past just the
outside." Besides touching K.S. with his fingers, Harper
also licked K.S.'s vagina several times. Harper
"tried to get [his penis] in [her] hole but it hurt too
much so he couldn't." K.S. stated that only the tip
of Harper's penis went inside her. K.S. testified that on
one occasion when Harper was driving to E-Z Mart, he made her
put her mouth on his penis. Harper told K.S. that if she put
her mouth on his penis, he would buy her something from E-Z
Mart.
K.S.
described Harper's penis and semen in specific detail.
She testified that she did not tell her mother about the
abuse for fear of hurting her mother. She said her mother
"was in love with [Harper]" and needed him
financially to pay the bills at home. K.S. also testified
that she still loves Harper and wants his love in return. She
believed that letting Harper sexually abuse her would make
him love her.
Missy
Davidson interviewed K.S. about the sexual-abuse allegations
at the Children's Advocacy Center (CAC) in Texarkana on
March 27, 2015. Davidson is the CAC program director and also
a licensed professional counselor and a forensic interviewer.
K.S. told Davidson about some of the sexual abuse, but not
all of it. At that point, Harper was no longer living in the
house, and K.S. testified that she missed him and wanted him
to come back home. She told Davidson that her family had
"lost like everything" and that "[a]ll the
money was gone." K.S. testified that she "felt
guilty" and "responsible" for hurting her mom
and her brothers.
In June
2015, K.S.'s mother took K.S. to meet with Randal Harris,
an investigator hired by the defense. K.S. testified that she
told Harris the sexual abuse did not happen because she
"wanted [her] family back." A few weeks later, K.S.
met with Davidson at the CAC and told her that the
sexual-abuse allegations were not true. K.S. also wrote a
three-page letter in late 2016 stating that she made up the
sexual-abuse allegations against Harper because of the
problems going on in her family.
Then in
2017, K.S. told Davidson that the allegations were true. She
testified that at that time she did it because it had been a
couple of years, the allegations were "true," and
she was a "little older." K.S. testified that after
she made the sexual-abuse allegations against Harper, she and
her mom did not get along. But after she recanted, their
relationship was "great."
Over
Harper's objections at trial, Missy Davidson was
qualified as an expert witness in forensic interviews. The
circuit court allowed Davidson to testify about the
phenomenon of recantation, but not specifically about K.S. or
Harper. Davidson explained generally how she conducted child
interviews at the CAC. When interviewing a child, Davidson
asked "neutral open ended non-leading questions."
Davidson looked for "sensory details" about what
the child saw, heard, felt, tasted, and smelled.
Davidson
also explained the five stages of disclosure that a child
typically goes through when reporting abuse. Stage one is
"denial" in which a child may deny the sexual abuse
altogether or deny only portions of it. Stage two involves
the "tentative" stage in which the child may give a
few details of the abuse but minimize it. The third stage of
disclosure is "active" in which the child may go
into much more detail about the abuse.
"Recantation" is the fourth stage, with a child
recanting and saying the abuse never happened. Finally, the
last stage is "reaffirmation" in which the child
once again confirms the abuse.
Davidson
testified that recantation is common. She also explained that
some of the reasons for recantation are that the child loves
the abuser and wants things to go back to the way they were
before disclosure of the abuse. Davidson did not testify
about the victim or the allegations in this case.
On
appeal, Harper argues that the circuit court should not have
permitted the State to present "profile and bolstering
evidence to attempt to explain or excuse the accuser's
changing stories." Specifically, Harper maintains that
it was improper profile evidence, that Davidson should not
have been permitted to testify as an expert, and that it was
improper bolstering of the "accuser's
testimony."
The
standard of review on admissibility of expert testimony is
abuse of discretion. Johninson v. State, 317 Ark.
431, 878 S.W.2d 727 (1994). Because the admission of
testimony is a matter within the circuit court's sound
discretion, we will not reverse that decision on appeal
absent a manifest abuse of discretion and a showing of
prejudice to the defendant. E.g., Hajek-McClure
v. State, 2014 Ark.App. 690, at 3, 450 S.W.3d 259, 261.
Abuse of discretion is a high threshold that requires that
the circuit court act improvidently, thoughtlessly, or
without due consideration. E.g., id. at 3,
450 S.W.3d at 261-62. 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 in issue. E.g., id. at 3, 450 S.W.3d
at 262.
Throughout
the trial and again on appeal, Harper argues that
Davidson's testimony was improper evidence because she
testified about "a profile of persons who accuse, recant
and then reaccuse." He further alleged that her
testimony was an attempt to bolster K.S.'s credibility.
We disagree.
Davidson
did not offer "profile" evidence about the type of
person who reports sexual abuse, recants, and then reaffirms.
Nor did she attempt to "bolster" K.S.'s
testimony. Davidson never mentioned K.S.'s name during
her entire testimony. Davidson, instead, testified generally
about how child-forensic interviews are conducted, the
typical five stages of disclosure, and the reasons why a
child may recant. Davidson did not attempt to explain why
K.S. recanted or that K.S.'s sexual-abuse allegations
were credible or that K.S. fit the "profile" of a
person who would recant abuse allegations.
Our
court has expressly held that expert witnesses may testify
generally about forensic interviews and recantation. See
Sweeten v. State, 2018 Ark.App. 590, 564 S.W.3d 575;
see also Hill v. State, 337 Ark. 219, 225, 988
S.W.2d 487, 491 (1999) (holding that the DHS caseworker's
testimony about the criteria DHS used to determine whether a
child's sexual- abuse allegations warranted further
investigation was proper and did not bolster the victim's
credibility); Davis v. State, 330 Ark. 501, 508-09,
956 S.W.2d 163, 166 (1997) (holding that the circuit court
did ...