Lead Opinion
The Defendant appeals his conviction on two counts of sexual battery on a person aged 12 to 18 by a person in familial or custodial authority. He raises four issues, challenging the trial court’s denial of his motion to dismiss the information and three evidentiary rulings. Finding no merit to the Defendant’s arguments, we affirm.
The Defendant is the victim’s uncle by marriage. The victim resided with thе Defendant and her aunt, during which time the Defendant, according to the evidence, sexually abused the victim repeatedly. This abuse culminated in the victim’s pregnancy. A DNA test was conducted comparing the victim’s baby’s DNA to that of the Defendant. The conclusion drawn from this test was that there was a 99.99 + % probability that the Defendant was the father of the victim’s baby. The Defendant was convicted upon testimony of the victim describing the incidents of sexual abuse and the results of the DNA test.
The Defendant’s defense was that his nephew, another adult male who lived in the house, sexually abused the victim and fathered her child. The nephew did not submit a DNA sample for comparison to the baby’s, and by the time of trial, the nephew had died. The Dеfendant sought to elicit testimony from the State’s geneticist expert as to whether he could exclude the nephew as a possible father of the victim’s child. The trial court sustained the State’s objection. The Defendant now argues that such testimony would have helped to cast doubt on the conclusion drawn from the DNA test that he fathered the victim’s baby (and thus sexually abused the victim).
Although the trial court sustained the State’s objection, the record shows that the geneticist essentially answered the question by explaining that because thе nephew was not tested, there was no way of calculating the probability he was the father. The question could not have been answered any better than it was.
The Defendаnt also argues the trial court should have allowed testimony that the victim had once accused her mother’s live-in boyfriend of sexual abuse. The Defendant does not argue thаt this testimony was probative of some possible defense that the victim fabricated the charges in retaliation of an exercise of authority by a parent or guardian figurе. Cf. Gutierrez v. State,
The Defendant relies upon cases in which the courts held that due to the victim’s age or mental capacity, the jury might perceive the victim as naive and thus should have been allowed to consider evidence that might help them evaluate the victim’s testimony of sexually explicit matters. See Bisbee v. State,
The Defendant raises two other issues, which we affirm without comment. Finding no merit to the Defendant’s arguments, we affirm his convictions and sentence.
AFFIRMED.
Dissenting Opinion
dissenting.
The key question in this case is whether the trial judge properly barred defendant from asking the state’s DNA population frequency expert on cross-examination whether he could exclude the defendant’s nephew as the father of the child. The question was relevant to a defense that the nephew had sexual relations with victim and was thе father of the child born to the victim.
Under Brim v. State,
The state’s population frequency expert testified on direct examination that in his opinion the probability was 99.99 + % that defendant was the sоurce of the DNA. He explained that his analysis determined a probability of paternity as against a randomly selected individual from defendant’s population base.
The probative power of DNA evidence in a criminal trial is the equivalent оf the 1,000 pound behemoth in the wrestling match. It outweighs all other challengers. Consequently I believe that judges have special obligations to insure that the behemoth has not been improperly unleashed. Thus the population frequency statistics
The probability testified by the witness was bеtween the defendant on the one hand, and a randomly selected individual from the rest of the subject population on the other. The 99% probability given by the expert was that the DNA in question did not have its source in the rest of the population. In other words he did not attempt to quantify any probability between the defendant and the nephew— only between the defendant and the rest of the world.
Defendant’s question on cross-examination thus addressed a different population, so to speak. He wanted to know in essence whether the 99% probability applied to members of defendant’s family. For purposes of judging any prejudice in excluding the question, it is irrelevant that the probabilities are 99% that a randomly selected individual from the rest of defendant’s racial population can be excluded as the source. Defendant was entitled to cross-examine the population frequency expert to make the point that his probabilities were limited to sources outside the family.
I do not understand the logic of the trial judge in excluding the question and its answer. Thе fact that the nephew’s DNA has not been analyzed does not yield any possible conclusion that it is irrelevant to ask whether the expert’s existing analysis excluded the nephew as well. He did not ask the expert to state a probability that the nephew actually was the source. This latter question — not posed by defendant— would conceivably require analysis of the nephew’s DNA. But thе only question asked, whether the 99% probability excluded the nephew, did not require such an analysis. It merely made clear that what appears to be all but conclusive — for sо the average juror is likely to regard any authoritative 99.99 + % probability — is not at all decisive on the single individual who, because of the blood relationship, bears some common DNA characteristics.
I would reverse for a new trial.
Notes
. There was other evidence to the effect that the nephew shared the same home with the victim and defendant, that the nephew had the opрortunity, that he had been found alone with the victim, that the victim would walk through the nephew's room on her way to the bath; that the victim's aunt thought that the nephew was the father of the child. The trial judge also excluded evidence that the victim had several years before told police that her mother's then live-in boyfriend had abused her when it was not true. I believe it was also error to exclude this latter testimony as well.
. He identified three population bases: Caucasian, African-American and Hispanic.
. The premise for the question is thаt the defendant and his nephew share some common DNA characteristics which the rest of the subject population do not have or have in very limited numbers.
. The nephew was killed after police investigated this case. There was testimony that when the victim became pregnant her older brother was visibly upset, got a gun and threatened to shoot thе father. The trial judge also excluded evidence to the effect that the police suspected the older brother in the murder of the nephew. This evidence was admittedly on the margin of admissibility. When exculpatory evidence is doubtful, in my opinion it should be admitted.