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Harris v. State

Harris v. the State

Harris v. State, 405 S.E.2d 482 (Ga. 1991)
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Court
Supreme Court of Georgia · State Highest Courts
Decided
July 1, 1991
Docket
No. S91G0737
Judges
Clarke, Fletcher, Hunt, Weltner
Citations
405 S.E.2d 482261 Ga. 3861991 Ga. LEXIS 341

Opinion of the Court — Weltner

Weltner, Justice.

We granted certiorari to review Division 5 of the Court of Ap *387 peals’ opinion in Harris v. State, 198 Ga. App. 503 ( 402 SE2d 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.

Decided July 1, 1991. Hudson & Solomon, James D. Hudson, for appellant. Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

This issue is controlled by Allison v. State, 256 Ga. 851, 853 ( 353 SE2d 805 ) (1987). The testimony being inadmissible, it should have been excluded.

Judgment reversed and case remanded.

All the Justices concur, except Clarke, C. J., Hunt and Fletcher, JJ., who dissent.

Dissent — Hunt

Hunt, Justice,

dissenting.

I dissent for the reasons stated in my dissent to Allison v. State, 256 Ga. 851, 854 ( 353 SE2d 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 SE2d 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 at 853 (par. 6). 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.

Combined text as published — syllabus, headnotes and all opinions in one document

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

HARRIS

v.

The STATE.

No. S91G0737.

Supreme Court of Georgia.

July 1, 1991.

*483 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.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

Cited by 24 cases

View all citing references →
1991: 31992: 51993: 41994: 21997: 21998: 42000: 22002: 12009: 119912026peak 1992 · 5

Relies on it most ⓘ

  1. Atkins v. State533 S.E.2d 152 (Ga. Ct. App. 2000)
  2. Putnam v. State498 S.E.2d 340 (Ga. Ct. App. 1998)
  3. Hilliard v. State487 S.E.2d 81 (Ga. Ct. App. 1997)
  4. Morgan v. State564 S.E.2d 192 (Ga. 2002)
  5. Ponder v. State411 S.E.2d 119 (Ga. Ct. App. 1991)
  6. Scapin v. State420 S.E.2d 385 (Ga. Ct. App. 1992)

Most recent

  1. Pointer v. State682 S.E.2d 362 (Ga. Ct. App. 2009)
  2. Morgan v. State564 S.E.2d 192 (Ga. 2002)
  3. Turner v. State539 S.E.2d 553 (Ga. Ct. App. 2000)
  4. Atkins v. State533 S.E.2d 152 (Ga. Ct. App. 2000)
  5. Smith v. State508 S.E.2d 145 (Ga. 1998)
  6. Miller v. State506 S.E.2d 136 (Ga. Ct. App. 1998)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Allison v. State, 353 S.E.2d 805 (Ga. 1987) 95
State v. Butler, 349 S.E.2d 684 (Ga. 1986) 46
Harris v. State, 402 S.E.2d 62 (Ga. Ct. App. 1991) 28

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