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Fallin v. State

Court of Appeals of Maryland

July 12, 2018

Jason Adam Fallin
State of Maryland

          Argument: June 1, 2018

          Circuit Court for Charles County Case No. 08-K-15-000610

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          McDonald, J.

         A basic principle of a criminal jury trial, incorporated in the Maryland Constitution, [1]is that the jury is the judge of the facts. A corollary is that it is "the province of the jury" to determine the credibility of the witnesses who provide evidence about those facts.[2] This Court is sometimes called upon to determine whether particular testimony is helpful to the jury in assessing witness credibility or whether it purports to supplant the jury in carrying out that function. This is one of those cases.

         Petitioner, Jason Adam Fallin, was accused of abusing his daughter on three occasions when she was between five and eight years old, by inappropriately touching her genitals. Virtually all of the evidence against him consisted of testimony and out-of-court statements of the daughter. A forensic examiner testified that the daughter showed "no signs of fabrication" and that the examiner had no concerns about fabrication when she made certain out-of-court statements implicating Mr. Fallin. We hold that this testimony impermissibly intruded on the responsibility of the jury to assess the credibility of witnesses.



         On July 6, 2015, Mr. Fallin was indicted by a grand jury in the Circuit Court for Charles County. All of the offenses charged in the indictment were related to three alleged incidents in which Mr. Fallin inappropriately touched the genitals of his daughter, whom we shall refer to as "S." The case first went to trial in January 2016, but the jury could not agree on a verdict and the court declared a mistrial. The case was retried in April 2016. The retrial is the subject of this appeal.

         S was born in September 2005 as a result of a brief relationship of Mr. Fallin with S's mother, whom we shall refer to as "Heather." Mr. Fallin and Heather eventually entered into a consent order concerning custody of S in 2009, under which S was to reside with Heather, but visit with Mr. Fallin every other weekend. At the time Heather and S resided with Mr. Fallin's parents, although Mr. Fallin himself did not live with them. Heather apparently has experienced her own challenges and S has spent much of her young life residing with either Mr. Fallin's parents or Heather's mother. S had seen Heather only once during the year preceding the trial of this case.

         At the trial of this case, S herself directly testified about two of the alleged incidents. She dated one incident to sometime in 2012 (when she was five or six years old) while she was in bed with both of her parents ("the bed incident"). She also testified about a second incident that occurred inside a port-a-potty along a trail near her paternal grandparents' home in 2014 ("the trail incident"). A forensic examiner, who had interviewed S in 2012 testified that S had told her about a third incident, which allegedly occurred while S and her father were watching television in 2012 ("the television incident"), although in her own testimony S did not mention that incident and denied that there had been any incidents other than the two she testified about herself.

         The issues before us arise out of the testimony of two of the State's witnesses who testified about out-of-court statements of S. One issue is whether a forensic examiner's repeated opinion that S did not show "signs of fabrication" was properly admitted in evidence. Another issue is whether the Circuit Court should have provided a more detailed curative instruction to the jury about inadmissible testimony by the same examiner that she did not believe S was "incorrect" in her testimony. The remaining issue is whether testimony by one of the State's investigators concerning hearsay statements by S, although erroneously admitted in evidence, was harmless error.

         To provide perspective on these issues, we first outline the legal context and then recount the evidence at trial in some detail.

         A. Legal Context

         1. The "Tender Years" Hearsay Exception

         Testimony concerning out-of-court statements of an alleged victim of child abuse may be admissible under what is known as the "tender years" exception to the hearsay rule contained in Maryland Code, Criminal Procedure Article ("CP"), §11-304. That statute concerns the admissibility of an out-of-court statement[3] of a child under the age of 13 who is an alleged victim of child abuse or of certain sex offenses. To be admissible under the statute, the statement must have been made to a person acting in the course of a particular profession, the statement must not be admissible under any other hearsay exception, the child must also testify at trial, and the statement must have "particularized guarantees of trustworthiness" according to factors set forth in the statute. CP §11-304(c), (d), (e).

         Pertinent to this case, the out-of-court statement is admissible only if made to one of the following professionals "acting lawfully in the course of the person's profession":

(1) a physician;
(2) a psychologist;
(3) a nurse;
(4) a social worker;
(5) a principal, vice principal, teacher, or school counselor at a public or private preschool, elementary school, or secondary school;
(6) a counselor licensed or certified in accordance with Title 17 of the Health Occupations Article; or
(7) a therapist licensed or certified in accordance with Title 17 of the Health Occupations Article.

CP §11-304(c).

         2. Expert Testimony Concerning Evaluation of Alleged Victim's Statements

         Maryland appellate courts have previously considered the admissibility of expert opinion testimony related to the statements of an alleged victim of child abuse. Among the cases that bear on this issue and that form the backdrop for the objections made at trial are Bohnert v. State, 312 Md. 266 (1988); Hutton v. State, 339 Md. 480 (1995); and Yount v. State, 99 Md.App. 207 (1994).


         In Bohnert, as in this case, the defendant's conviction of a sexual offense against a child turned on whether the jury believed certain statements of the child. In that case, the defendant lived in an apartment with a woman and her two children, a boy and a girl. The girl alleged that the defendant frequently took her into the bathroom of the apartment to engage in sex acts. Other testimony at the trial suggested that she was jealous of her mother's relationship with the defendant and might have other motives for testifying falsely against him. The girl had twice recanted her allegations of abuse, and a physical examination found no signs of sexual abuse.

         A social worker employed as a protective services investigator by the local department of social services, who had interviewed the girl and her mother, was qualified by the trial court as an expert in the field of child sexual abuse. In response to a question from the prosecution, the social worker responded that, in her opinion, the girl was a victim of sexual abuse. While the social worker alluded to other sources of information, she said that her opinion was based chiefly on statements made by the girl.

         The jury convicted the defendant of the charges and the Court of Special Appeals affirmed the conviction. This Court, however, reversed, holding that it was an abuse of discretion to admit the social worker's opinion as to the girl's credibility.

         The Court first observed that the social worker's opinion was based solely on what the girl had told her, as there were no eyewitnesses or physical evidence and the only other evidence was similar statements made by the girl to her mother or others. The Court observed that, while the admission of expert testimony on a particular subject is normally a matter within the discretion of a trial court, the social worker's opinion rested solely on the statements of the girl, who was also a witness in the case, and thus essentially amounted to an opinion concerning that witness' credibility.

         The Court stated:

In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury…. It is … error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.

312 Md. at 277 (citations omitted). Noting that the results of lie detector tests are not admissible, the Court stated that no one "can qualify as an 'expert in credibility' no matter what his experience and expertise" and reiterated that the credibility of a witness is solely the province of the jury. Id. at 278. "It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." Id.

         The Court concluded that, in the case before it, the social worker's opinion that the girl had been sexually abused was "tantamount to a declaration by [the social worker] that the child was telling the truth…" Id. Such an opinion was "inadmissible as a matter of law" and the trial court had no discretion to admit it. Id. at 279.


         The Court reiterated that principle in Hutton, which also arose out of a child sex abuse prosecution. In that case, a social worker who had counseled the alleged victim testified in the State's case. The social worker described characteristics of children who have been sexually abused and stated that the alleged victim exhibited many of those characteristics. When asked by the prosecutor how she assessed credibility of her client, the social worker said that she looked for, and found, "consistency" in the client's statements. 339 Md. at 485-88. The State also called a psychologist who had interviewed the alleged victim. The psychologist opined that the child suffered from post traumatic stress disorder ("PTSD") which, in the psychologist's opinion, was attributable to child sex abuse. Id. at 488. When asked by the State how she assessed the child's credibility, the psychologist responded that, in her opinion, the child's representations were "not in any way faked." Id. at 490.

         This Court reversed the defendant's conviction in Hutton, in part on the basis that the testimony of the social worker and the psychologist concerning the alleged victim's credibility was contrary to the holding in Bohnert. The social worker had been permitted to "indicate her opinion of the victim's consistency and, indirectly, her truthfulness." Id. at 505. The psychologist's testimony amounted to a "credibility assessment, a matter outside [her] area of expertise and one historically and appropriately entrusted to the jury." Id. at 503.[4]


         In Yount, the Court of Special Appeals held that generic testimony concerning statements by victims of child abuse was admissible. In that case, the defendant was charged with abusing his eight-year-old daughter. The daughter, who had recanted the allegation of abuse and then recanted the recantation, testified in the State's case-in-chief that her father had abused her. In its rebuttal case, the State called a professional counselor who was qualified by the trial court as an expert in child abuse and who testified that it was common for victims of child abuse to recant their initial reports of abuse. The counselor did not express an opinion about the statements of the daughter in the case on trial. The jury convicted the defendant, who challenged the admission of the expert's testimony on appeal.

         The Court of Special Appeals first held that expert testimony by the counselor concerning "the arcane context of sexual child abuse … would be of appreciable help" to the jury. 99 Md.App. at 212. The court next determined that the counselor's training and experience rendered her qualified to provide that testimony. Id. at 213. The court noted that the counselor had not testified on the ultimate issue in the case - whether the abuse had occurred - and was not testifying directly on the issue of the victim's credibility, but rather on "a phenomenon that had a bearing on an assessment of … credibility." Id. at 214.

         The court distinguished the situation before it from that in Bohnert. The expert testimony concerning recantation simply "advised the jury as to the existence of a psychological phenomenon that would explain the … victim's wavering or vacillation. Beyond that, it did nothing to indicate that the victim's version of events rather than the appellant's version of events should be believed." Id. at 218-19. The intermediate appellate court held that the testimony was admissible and affirmed the conviction.

         B. The Evidence at Trial

         1. Testimony of S, Her Mother, and Her Maternal Grandmother

         Trial Testimony of S

         S testified that, when she was five and six years old, she lived with Mr. Fallin's parents, who sometimes took trips to North Carolina. She said that, on one occasion when her grandparents were away, she was lying in bed with Heather and Mr. Fallin with her eyes closed, when Mr. Fallin touched her "in the private area." S testified that it hurt badly and that she later told her mother and her maternal grandmother about the incident.

         S recounted a second incident that she believed also happened when she was six years old. During a time when she was staying with her paternal grandparents, she went for a walk on a nearby trail with Mr. Fallin. According to S, when she told Mr. Fallin she had to go to the bathroom, he took her to a port-a-potty on the trail. While they were inside, he touched her in the front of her private area in a way that felt like "scratching." She said that, after she pulled her pants up, they left the port-a-potty and went back on the trail, where she told him he could not do that because there were people around. S also testified that on the way back on the trail Mr. Fallin pulled her pants down outside and took a picture of her. She later told her mother about the incident.

         S testified that she wanted to continue to see her father, but she did not want him to touch her again in her private parts. She denied that he had touched her in that way on any other occasion.


         Heather testified that, from 2008 through 2012, she and S lived with Mr. Fallin's parents, with whom she had a good relationship. Mr. Fallin did not live with them at the time, but visited his daughter under the custody consent order.

         According to Heather, her daughter had twice reported to her that Mr. Fallin had touched her inappropriately. The first occasion was sometime in 2012. According to Heather, S told her on that occasion about "touching" by Mr. Fallin. Heather moved herself and S out of the Fallins' home and into her own mother's home. She obtained a protective order against Mr. Fallin but did not call the police. The protective order temporarily halted visitation but, upon its expiration, visitation between S and Mr. Fallin resumed.

         Heather testified that the second occasion was two years later in 2014 after she had picked up S from a visit with Mr. Fallin. At that time, S told her that Mr. Fallin "had dug her again." Heather understood S to mean that Mr. Fallin had touched his daughter's genitals. Heather then called the police.

         Heather testified that she had ceased living with her mother and S in January 2015 and that she had seen her daughter only once during the year prior to her testimony, a situation that she attributed to her own health issues.

         Heather's Mother

         Heather's mother (S's maternal grandmother) testified that she and Mr. Fallin's mother had helped arrange Mr. Fallin's visitations with S under the custody consent order. In July 2012, S told her about an incident a week or two before in which her father had touched her genitals. S said that she had been sleeping on one side of the bed next to her mother and that she woke up with Mr. Fallin's hands in her underwear "digging her." The grandmother called the Sheriff's Office and accompanied Heather to obtain a protective order.

         Two years later in 2014, S again reported inappropriate touching by her father. The grandmother called S's pediatrician and then contacted the Sheriff's Office. The grandmother accompanied Heather and S to the Sheriff's Office to report the incident. She and Heather then obtained a second protective order against Mr. Fallin in late 2014.

         She testified that she had been S's temporary guardian since January 2015, when Heather had left her home.

         2. The Sheriff's Office Investigation - February and March 2014

         In February 2014, a detective from the Charles County Sheriff's Office was assigned to investigate the trail incident. At the outset of her investigation, the detective interviewed S at the station in the presence of Heather and Heather's mother. According to the detective, S reported to her that Mr. Fallin had touched her genitals in a port-a-potty while they were on a walk on the trail behind her paternal grandparents' home. The detective went to the trail and confirmed that there were port-a-potties along the trail.

         The detective met with Mr. Fallin on March 11, 2014. During that interview, Mr. Fallin told the detective that he had taken walks on the trail with his daughter and his parents. In response to the detective's questions, Mr. Fallin denied that he had touched his daughter's genitals and said that there were no nude pictures of her on his phone. When the detective told Mr. Fallin that she was going to obtain a search and seizure warrant for his cell phone, he turned over the phone and volunteered the passcode to it.

         The mobile phone forensics examiner for the Sheriff's Office testified that he had examined Mr. Fallin's cell phone and determined that it had only two days of data on it. He successfully extracted the files from the cell phone, which included one photograph of S. In the photo she was clothed and standing outdoors. The forensics examiner determined that the photograph had been taken with a camera other than the camera on the cell phone.

         A forensic nurse examiner testified that she had conducted a physical examination of S in February 2014. S told the nurse that she had been touched in her genital area. The nurse examined S's genitals and noted no trauma, which she said could be "consistent" with genital touching.

         3. Report from Mr. Fallin's Therapist - September 2014

         A licensed clinical social worker therapist, who was Mr. Fallin's therapist from 2010 through 2014, was called as a witness by the State. She testified that, during a session with her in September 2014, Mr. Fallin told her about a dream in which S had spent the night at his residence. In the dream, he had woken up with an erection, placed his hand in S's pants, apologized to her when she awoke, and heard her say "That was okay, Daddy." Mr. Fallin told the therapist that he was "90 per cent sure" that what he recounted was a dream, but was not absolutely certain.

         Under Maryland law, a licensed clinical social worker is required to notify the local department of social services or an appropriate law enforcement agency if the social worker has reason to believe that a child has been subjected to abuse or neglect. Maryland Code, Family Law Article ("FL"), §5-704. In light of that provision, the therapist contacted the authorities concerning Mr. Fallin's statements to her during the session. On cross- examination, the therapist acknowledged that Mr. Fallin was on medications when he was seeing her and that she could not say how the medications may have affected what he told her.

         4. Forensic Interviews of S

         The issues before us concern testimony about two forensic interviews of S that were conducted in 2012 and 2014. Evidence of out-of-court statements made by S during those interviews was introduced ...

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