Harris v. State , 261 Ga. 386 ( 1991 )

405 S.E.2d 482 (1991) 261 Ga. 386

HARRIS
v.
The STATE.

No. S91G0737.

Supreme Court of Georgia.

July 1, 1991.

James D. Hudson, Hudson & Solomon, Douglas, for Harris.

Robert B. Ellis, Jr., Dist. Atty., Nashville, Timothy L. Eidson, Asst. Dist. Atty., Dist. Atty's. Office, Adel, for State.

WELTNER, Justice.

We granted certiorari to review Division 5 of the Court of Appeals' opinion in Harris v. State, 198 Ga.App. 503, 402 S.E.2d 62 (1991). The Court of Appeals held that the trial court did not err in admitting testimony by a physician in a child molestation case that he had an opinion, based upon a physical examination, as to whether the victim had been molested sexually.

This issue is controlled by Allison v. State, 256 Ga. 851, 853, 353 S.E.2d 805 (1987). The testimony being inadmissible, it should have been excluded.

Judgment reversed and case remanded.

All the Justices concur, except CLARKE, C.J., and HUNT and FLETCHER, JJ., who dissent.

HUNT, Justice, dissenting.

I dissent for the reasons stated in my dissent to Allison v. State, 256 Ga. 851, 854, 353 S.E.2d 805 (1987). That is, the expert's opinion—that the victim in this case had been sexually molested—is admissible under the opinion of a majority of this court in State v. Butler, 256 Ga. 448, 349 S.E.2d 684 (1986). Moreover, as noted by the Court of Appeals, unlike Allison v. State, where the expert, a clinical psychologist, gave his opinion based on the child abuse accommodation syndrome, the expert here, a physician, based his opinion on his physical examination of the victim.

By its reliance on Allison, the majority would permit the doctor in this case to opine that his findings from the physical examination he conducted were consistent with those he would expect to find in a child who had been molested. Allison, supra 256 Ga. at 853 (para. 6), 353 S.E.2d 805. Such testimony would, according to Allison, aid the jury in arriving at its own decision whether the child was, or was not, molested. On the other hand, it is the view of the majority that for this doctor to say "my findings indicate the child was molested" as opposed to "my findings are consistent with molestation and inconsistent with anything else," would not only improperly invade the jury's province but would be an error of such magnitude as to require reversal. We did not penalize the state for such a semantical distinction in Butler, and should not do so here. I would affirm the Court of Appeals and the conviction.

I am authorized to state that Chief Justice CLARKE and Justice FLETCHER join this dissent.