author: Pope, Presiding Judge. Smith, Judge,

text:
    A99A1639.
    CORNELIUS et al. v. MACON-BIBB COUNTY HOSPITAL AUTHORITY et al.
    (533 SE2d 420)
   Pope, Presiding Judge.

M. L. Crump, Emma Crump’s husband, and Dexter Cornelius, as administrator of her estate, brought a wrongful death action against Dr. John Williams, Dr. Alan Stevick, and the Macon-Bibb County Hospital Authority d/b/a Medical Center of Central Georgia (“MCCG”) arising out of Mrs. Crump’s death at the hospital. The case proceeded to trial, and a jury returned a defense verdict. Mr. Crump and Mr. Cornelius (jointly referred to as “Crump”) appeal, questioning four evidentiary rulings, disqualification of a juror, and sufficiency of the evidence.

Mrs. Crump, a 55-year-old woman, appeared at the emergency room (“ER”) at MCCG on December 4, 1993, with a complaint of lower abdominál pain and painful urination. She exhibited symptoms of urinary tract infection and was diagnosed as having that. An x-ray of her abdomen was reported as showing air fluid levels in the intestine, which could indicate an ileus, a nonfunctioning portion of the intestine. The significance of this finding was disputed at trial. She was given antibiotics for the infection and sent home.

Mrs. Crump returned to the ER on December 8 with complaints of nausea, vomiting, abdominal pain, and loss of appetite; she reported that she began experiencing these symptoms after taking the prescribed medications. Her medications were changed, and on December 9, a repeat x-ray again showed air fluid levels in the bowel. Again the significance of this finding was disputed at trial. Her diagnosis for this visit was urinary tract infection and acute gastritis.

On December 22, she returned to the ER a third time with complaints of upper abdominal pain, nausea, and vomiting. She had a normal pulse and temperature, but her blood pressure was now elevated. She had a history of high blood pressure and was on medications. A nurse noted that Mrs. Crump was “moaning.” An abdominal x-ray again showed air fluid levels which were read by the ER physician as a mild ileus. The patient was treated for peptic ulcer disease and then discharged.

On Saturday, December 25, at 4:05 p.m. she again came to the ER, this time by ambulance, complaining of continued nausea, vomiting, and abdominal pain. The emergency medical technicians reported that they witnessed episodes of nausea and vomiting. Mrs. Crump’s family was with her, and they were upset and wanted something done. This time her pulse was elevated, her blood pressure was up, and her ketone level had increased significantly. There is conflicting testimony concerning whether she was in severe pain and concerning the significance of the ketone level.

An abdominal x-ray showed a soft tissue density in the lower left abdomen. The ER physician, Dr. Meacher (not a defendant in this action), following hospital procedures, called defendant Dr. Williams, a first year surgical resident, for a consultation. (Emergency room physicians have responsibility for the patients while they are in the ER, but a hospital doctor must authorize admitting a patient to the hospital.) Dr. Meacher told Dr. Williams about the patient, that she had been to the ER four times that month, and that she said that nobody was doing anything for her. There is a dispute concerning whether Dr. Meacher told Dr. Williams that he thought Mrs. Crump needed to be admitted and whether they disagreed about admitting her. Before Dr. Williams saw the patient, Dr. Meacher prescribed several medications for the vomiting, some of which may cause drowsiness and ease pain.

Dr. Williams examined the patient and found that she had diffuse, cramping abdominal pain. According to his examination, she did not have signs of more severe pain. He reviewed her medical records for all four visits to the ER, and he saw the mass on the x-ray. Although he did not know what the mass was, he thought that it resembled fecal material in the descending colon and concluded that it was not a finding that needed immediate attention. Dr. Williams diagnosed peptic ulcer disease, gastroenteritis, or gall bladder disease. He then contacted his chief resident, Dr. Stevick, another defendant, and they discussed the case on the telephone. There is an issue of fact concerning whether Dr. Williams told Dr. Stevick about the unidentified mass on the x-ray. There is also an issue of fact as to whether hospital policies required Dr. Stevick, as the chief resident, to actually examine the patient himself, which he did not do. Thereafter, at about 8:00 that night, Dr. Williams, with Dr. Stevick’s approval, discharged Mrs. Crump, with an appointment to return Monday morning for an ultrasound and a visit to the general surgery clinic. There is a dispute about whether hospital procedures required Dr. Williams to obtain the ER doctor’s approval for the discharge. The hospital radiologist read the x-ray (after the patient had already left the ER) as showing a “soft tissue density in the lower left quadrant of the abdomen,” and he flagged the x-ray for review Monday morning.

On December 27, Mrs. Crump returned to the ER by ambulance, with abdominal pain, nausea, and vomiting. About an hour after admission she had no blood pressure. She was intubated, and an emergency CT scan was done. The CT scan showed loops of small bowel in the area where the mass was on the earlier x-ray. The patient was then taken to the operating room for exploratory surgery. A nearly two-foot-long section of small bowel from the lower left quadrant of her abdomen was removed, a portion of which was dead, gangrenous, and perforated. There was some question at the time of surgery as to whether the remaining bowel was viable. Since there was doubt, and the patient was very ill, the surgeons elected not to reattach the intestine, with the plan to allow the patient to stabilize and to reconnect the bowel in 24 to 48 hours. On December 28 the patient died before an attempt could be made to do the second surgery. The pathologist’s report on the piece of bowel was “segmental ischemic bowel with perforation,” meaning that the segment of bowel died due to lack of blood flow to that segment.

Experts on both sides agreed that the disease responsible for Mrs. Crump’s death is a rare and highly fatal disease that is notoriously difficult to diagnose. They strongly disagreed about when Mrs. Crump was first affected by the disease and about whether it had anything to do with her first two visits to the ER. Further, the plaintiff’s expert radiologist characterized the finding on the December 25 x-ray that there was a soft tissue mass as a “subtle finding” and stated that he would not expect a surgeon to see it.

The family brought a wrongful death suit against the hospital, Dr. Williams, and Dr. Stevick, under the theory that failure to admit, Mrs. Crump on December 25, in the face of continued abdominal pain, worsening vital signs, and the mass on the x-ray, was a breach of the standard of care and that had she been admitted and more thoroughly examined, surgery would have been performed before the segment of bowel became gangrenous and perforated, and she would not have died. A jury found for the defendants.

1. Crump asserts the court erred in refusing to allow two hypothetical questions.

(a) During the trial Dr. Stevick was asked the hypothetical question, “whether a patient who has pain out of proportion to the physical findings, nausea, vomiting, tachycardia and an unidentified mass on x-ray should be admitted to the hospital.” The court did not allow this question on the ground that there was no evidence in the record on which to base this question, specifically, no evidence that Mrs. Crump had “pain out of proportion to the physical findings.”

It is true that “[a]n expert witness is not permitted to give his opinion, in answer to a hypothetical question, based on facts not placed in evidence by other witnesses.” (Citations and punctuation omitted.) Horton v. Eaton, 215 Ga. App. 803, 806 (3) (452 SE2d 541) (1994); Kines v. City of Rome, 220 Ga. App. 732, 733 (470 SE2d 311) (1996). But that requirement is not applicable where the witness “is a defendant in the case and not merely an expert testifying as to the proper standard of conduct.” Cambron v. Canal Ins. Co., 246 Ga. 147, 150 (5) (269 SE2d 426) (1980) (decided under former Ga. Code Ann. § 38-1710). “The right of cross-examination, thorough and sifting, which belongs to every party as to the witnesses against him, is especially applicable where the witness is the opposite party to the cause on trial.” Smith v. Davis, 76 Ga. App. 154, 158 (2) (45 SE2d 237) (1947).

We will not reverse a decision of the trial judge concerning whether to allow a hypothetical question unless there is an abuse of discretion. See Lefler v. State, 210 Ga. App. 609, 611 (5) (436 SE2d 777) (1993). But here, the question should have been allowed because the defendant may be thoroughly questioned about his actions and how he might have acted under different circumstances. Cambron, 246 Ga. at 150 (5).

We cannot say that the error was harmless. Crump’s case is based on several assertions that all place Dr. Stevick at the center of possibly preventing Mrs. Crump’s death. Crump claims that: given Mrs. Crump’s December medical history and Dr. Williams’ lack of experience, Dr. Williams was not qualified to decide whether to admit her; Dr. Stevick was responsible for the decision; Dr. Williams may not have fully communicated Mrs. Crump’s history or the x-ray findings to Dr. Stevick during the telephone call; Dr. Stevick should have personally examined the patient, and hospital policies required him to do so; if Dr. Stevick had known the full information and examined Mrs. Crump, he would have admitted her to the hospital on that day; and she would have received life-saving treatment as a result.

Generally, when there is cumulative evidence of the excluded testimony the error may be harmless. And here, another defense witness was asked the same question. But, the evidence may not be cumulative because “[t]his court cannot speculate as to what may have been [Dr. Stevick’s] answer to the [cross-examination] question or its effect on the jury.” Hyles v. Cockrill, 169 Ga. App. 132, 140 (312 SE2d 124) (1983).

Further, Dr. Stevick made several admissions, which combined with the excluded question, could have gone a long way toward proving part of Crump’s case. Dr. Stevick testified that if Dr. Williams had mentioned that there was an unknown mass shown on the x-ray, he — Dr. Stevick — “would have said, well, hold on, I’ll be there or bring it up and let me look at it, whatever I’m doing.” And he testified:

Certainly, if you’re implying that a patient has been seen four times for an unexplained abdominal pain that is worsening and their clinical situation is worsening, the fourth time they came in with what I thought was a related worsening picture, I would keep that patient in the hospital.

This statement did not include all the facts related to Mrs. Crump’s condition that were included in the question excluded by the court. If Dr. Stevick had answered that he would admit someone to the hospital who had these symptoms, that would strengthen Crump’s case.

Although Hyles is concerned with hypothetical questions posed to an expert witness, we find its reasoning also applicable here. Where “the subject matter of the hypothetical question . . . [is] a highly contested and vital issue at trial, . . . ‘the exclusion of competent testimony in respect thereto is a substantial error, and not a mere technical one.’ [Cit.]” Hyles, 169 Ga. App. at 140. Also,

A material abridgement or denial of the substantial right of cross-examination of opposing witnesses is material error and requires the grant of a new trial. As a general rule it is better that cross-examination should be too free than too much restricted.

(Citations and punctuation omitted.) Id.

Cases cited by the defendant for the proposition that the evidence would have been cumulative are not on point, in part because they concern nonparty expert witnesses and in part because of their facts. Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 351 (6) (270 SE2d 883) (1980) (proffer of excluded direct testimony by one Firestone expert witness was the same as given by another witness and substantially the same as given by at least two other witnesses); Warmack v. Mini-Skools, Ltd., 164 Ga. App. 737, 738 (1) (297 SE2d 365) (1982) (testimony from the same witness duplicated the excluded direct testimony from the party’s own witness). Here, the excluded testimony is the unknown answer of an important cross-examination question posed to one of the principal defendants. It was harmful error to exclude the question.

(b) During the trial, Crump asked Dr. McGinnis, the defendants’ expert, “whether hospitals all over the country admit people to find out what is causing abdominal pain.” The court excluded the question because Dr. McGinnis earlier answered a similar question that asked “whether people were admitted to a hospital to find out what was causing a problem”

A defendant is entitled to thorough and sifting cross-examination, OCGA § 24-9-64, and the scope of such examination is within the sound discretion of the trial court. This discretion will not be disturbed on appeal unless manifestly abused. Sanders v. State, 181 Ga. App. 117, 121 (3) (351 SE2d 666) (1986).

The exchange between Crump’s counsel and Dr. McGinnis went as follows: “Q: Is it true that people are admitted to hospitals to find out what is causing a problem? A: When it’s indicated.” Then Crump’s counsel asked a series of questions about the December ER visits for abdominal pain. Then he asked,

Q: Now, Doctor, isn’t it true that patients are admitted to hospitals all over this country to find out what is causing abdominal paint
MEEKS: Objection. Asked and answered. I think he’s already covered that and the Doctor said “when indicated.”
COURT: I agree. Next question.

In this setting, the word “indicated” means to “point to as the required treatment.” Webster’s New World Dictionary (3rd college ed. 1988), p. 687. Thus, Dr. McGinnis’ answer to the first question can be understood as people are admitted to the hospital if a “problem” points to admission as the required treatment. The second question asked whether people are admitted to the hospital when they have “abdominal pain.” It is true that Dr. McGinnis could have answered either yes, no, or “when indicated.” But, common sense tells us the answer to that question can only be “when indicated.” Everyone has abdominal pain from time to time, and it is a matter of common sense that hospitalization is not always required. Thus, the question was too general and not sufficiently tailored to the facts to elicit a meaningful answer. The two questions were sufficiently similar in this regard, and the court did not abuse its discretion in prohibiting an answer to the second question.

2. Crump also contends that the verdict is against the weight of the evidence and the principles of justice and equity and that, therefore, he is entitled to a new trial. Because we reverse and remand for a new trial, we need not address this enumeration.

3. We next address enumerations of error likely to recur on retrial.

Crump asserts that allowing testimony of the Crumps’ temporary separation was error under Wright v. Dilbeck, 122 Ga. App. 214, 216 (2) (176 SE2d 715) (1970).

The trial court granted Crump’s motion in limine excluding testimony about the Crumps’ temporary separation and Mr. Crump’s subsequent remarriage, provided however, that Crump did not open the door to such testimony. In the opening statement, Crump’s attorney said, “Emma Crump was a loving mother, a wonderful mother. She was a loving wife. She and Mr. Crump had been together since 1963.” The court then reversed its ruling to the limited extent of allowing testimony of the simple fact that there was a period of time the two were separated. On cross-examination, Mrs. Crump’s daughter confirmed that there was a period of about three months that Mr. Crump lived with someone else, but by the time Mrs. Crump died, Mr. and Mrs. Crump had reconciled.

OCGA § 51-4-2 provides that the surviving spouse in a wrongful death action may recover the full value of the life of the decedent. Wright holds that marital problems do not reduce the measure of damages or the damages recoverable. Wright, 122 Ga. App. at 216 (2). And, Crump had dismissed his claim for loss of consortium. Thus, the information was irrelevant and inadmissible. But the court had discretion to allow limited testimony in response to Crump’s opening statement that the couple had been together since 1963. The court fashioned a limited remedy to the limited opening of the door regarding how long the couple had been together. If the statement had been made in testimony, it could have been impeached, OCGA § 24-9-82. We find no abuse of discretion.

4. The trial court refused to allow Crump to publish to the jury the autopsy pictures of Mrs. Crump’s bowel fearing that they were gruesome and would be unduly prejudicial. This decision was not error.

OCGA § 24-2-1 provides that “[ejvidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” Questions of relevancy are left to the sound discretion of the judge. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (2) (256 SE2d 916) (1979). Autopsy photographs are particularly likely to be gruesome and should be carefully screened for relevancy. Ramey v. State, 250 Ga. 455, 456 (1) (298 SE2d 503) (1983). Autopsy photographs made by the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only after the autopsy. Brown v. State, 250 Ga. 862, 866-867 (5) (302 SE2d 347) (1983). The court is permitted to balance the relevancy of the photographs against their tendency to be inflammatory and prejudicial. Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 779-780 (13) (403 SE2d 235) (1991).

In the present case, there was some question about the viability of the remaining bowel. The defendants contend that the disease Mrs. Crump had could have killed her anyway because it could affect the remaining bowel. Dr. Parker testified that the remaining bowel was viable, but he did not refer to the photographs. The jury was never given any explanation for what they would see in the autopsy photographs. Crump contends that a layperson could tell from the photographs that the remaining bowel was viable. However, after reviewing the photographs and knowing that the patient was dead at the time they were made, this Court is certain that a layperson could not make such a judgment without expert assistance. In addition, Crump was able to sufficiently question the pathologist about the condition of the bowel at the time of the autopsy. Given the gruesome and inflammatory nature of the photographs, the trial court in the present case did a proper balancing of the risk of undue prejudice versus the relevance of the pictures. O’Neal, 198 Ga. App. at 779-780.

5. During the trial, the x-rays and CT scans were stipulated into evidence. But the trial court refused to allow them to go into the jury room during deliberations, and Crump asserts error. Crump, however, did not object at the time the judge made the decision and thereby waived review on appeal. However, given that there will be a new trial, we will address the issue.

“The object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” OCGA § 24-1-2. Further:

Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.

(Citations and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990). Any evidence is relevant that “logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” (Citations and punctuation omitted.) Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 338 (3) (c) (319 SE2d 470) (1984). “But the trial judge may exercise discretion in excluding relevant evidence upon a determination that its probative value is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice or of misleading the jury. [Cit.]” Kicklighter v. Woodward, 267 Ga. 157, 161 (4) (476 SE2d 248) (1996).

Decided March 30, 2000

Reconsideration denied April 13, 2000

Ruffin & Dell, Charles L. Ruffin, Adrienne Goebel, for appellants.

Pursley, Howell, Lowery & Meeks, Roy H. Meeks, Jr., Tisinger, Tisinger, Vance & Greer, Kevin B. Buice, for appellees.

Here, the x-rays and CT scans were central to the dispute between the parties. They were not merely demonstrative evidence. Testimony from both Crump’s and the defendants’ experts described and explained the contents of the x-rays and CT scans. Although a layperson is not competent to read and analyze these items for the purpose of diagnosing a patient, it is possible for a layperson to look at them for the purpose of making simple observations and verifying the witnesses’ testimony. However, one could argue that they would confuse the jury. It is within the court’s discretion to determine whether the possible prejudicial effect outweighs the relevance of the evidence. Kicklighter, 267 Ga. at 161 (4). If there is no showing of prejudicial effect, the evidence should be admitted and submitted to the jury for their deliberations.

6. Crump’s remaining enumeration of error is moot.

Judgment reversed.

Miller, J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I fully concur in the result reached by the majority and in Divisions 1 (b) through 6. I write specially because I cannot concur fully with the majority’s analysis in Division 1 (a). In my view, regardless of what Dr. Stevick answered, his answer would have been cumulative, because both sides presented testimony going to this issue. Nevertheless, I agree that the hypothetical posed to Dr. Stevick and excluded by the trial court went to an aspect of the case that was “highly contested and vital,” Hyles v. Cockrill, 169 Ga. App. 132, 140 (312 SE2d 124) (1983), and the case therefore must be remanded for a new trial.

       The doctors’ choice of this procedure is not at issue in this case.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1697.
    ATKINS v. THE STATE.
    (533 SE2d 152)
   Blackburn, Presiding Judge.

Langston Leonard Atkins appeals his convictions, following a jury trial, for two counts of aggravated child molestation, one count of child molestation, and two counts of enticing a child for indecent purposes. Atkins was tried for separate offenses against two victims, J. B. and D. K. On appeal, Atkins contends that: (1) the evidence was insufficient to support the verdict against him; (2) the trial court erred by permitting a pediatrician who examined D. K. to testify regarding the medical history given by the victim; and (3) the trial court erred by limiting his cross-examination of a psychologist who treated J. B. For the reasons set forth below, we affirm.

1. Atkins first contends that the evidence was insufficient to support the verdict against him.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Atkins] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(a) J. B. testified that, in September 1995 when he was 14 years old, he became acquainted with Atkins, a rap singer and music promoter who had given a speech at his high school. J. B. later auditioned for Atkins in the hopes of starting a career as a singer. Over the several weeks that followed, Atkins molested J. B. three times. Prior to the final act of molestation, anal intercourse, Atkins asked J. B. if he had ever “freaked,” a euphemism for anal intercourse, and told him “if you wanna be a rapper, you gotta go through it.”

Two days later, J. B. informed his mother about Atkins’ actions, and she reported the matter to the police. J. B. recounted his story to Officer Lewis, Detective Paul Warner, and Dr. Carlos Delgado. In addition, J. B. sought counseling from Pat Lawyer, a psychotherapist working for the Georgia Center for Children.

(b) D. K. testified that he met Atkins at a mall where Atkins was selling audiotapes. Sometime later, D. K. ran into Atkins again at a nightclub. That night, Atkins asked D. K. to drive him to an apartment complex where, while parked in a dark area, Atkins forced D. K. to have anal intercourse with him. Prior to the act of molestation, Atkins asked D. K. whether he was a freak, just as he had done with J. B.

D. K. told his best friend about the incident immediately, and he later described the molestation to his aunt and mother when he feared that Atkins was HIV positive. After reporting the crime to the police, D. K. was examined by Dr. Jane Wilkov, a pediatrician, who confirmed that the details of his story and symptoms were consistent with descriptions of abuse by molestation victims.

Atkins was arrested at his home on October 19, 1995, where he was hiding in his attic underneath rolls of insulation, and he was subsequently convicted by a jury for the crimes which form the subject of this appeal.

(c) This evidence was more than ample to support the verdict against Atkins, and it makes no difference whether or not there was any evidence corroborating the acts of molestation described by J. B. and D. K.

Sexual offenses against children necessarily occur in secret. This is one reason that Georgia law does not require corroboration of a child molestation victim’s testimony. Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984); see Baker v. State, 245 Ga. 657, 664 (5) (266 SE2d 477) (1980); see also OCGA § 24-4-8. Accordingly, “taking the victim [s’] testimony as true, as we must, it alone was clearly sufficient to authorize [Atkins’] conviction of the (offenses as charged) under the standard set forth in Jackson v. Virginia, (supra).” Bryant v. State, 226 Ga. App. 135, 136 (486 SE2d 374) (1997).

Cantrell v. State, 231 Ga. App. 629, 630 (500 SE2d 386) (1998).

2. Atkins erroneously contends that Dr. Wilkov testified that she believed that D. K. told her the truth about his molestation, thereby giving her conclusion as to the ultimate issue of Atkins’ guilt, and that the trial court erred in allowing such testimony.

In fact, Dr. Wilkov testified only that the medical history given by the victim was consistent with what she would expect from a victim of molestation. She based this conclusion on a list of physical symptoms described to her by D. K. Using her specialized knowledge as a pediatrician, Dr. Wilkov assessed these physical symptoms to reach her diagnosis that they were consistent with symptoms suffered by a molestation victim. Because Dr. Wilkov’s analysis of D. K.’s symptoms required her training and expertise as a pediatrician, the inference drawn by her from the symptoms, namely her diagnosis, was beyond the ken of the jurors. Therefore, as discussed more fully below, her testimony was admissible.

On the other hand, Dr. Wilkov did not give any testimony usurping the jury’s function of drawing inferences and conclusions not beyond their ken. Dr. Wilkov did not conclude that D. K. had actually been molested or, if so, that Atkins had committed the act. Dr. Wilkov explicitly testified that she could not give an opinion as to either the victim’s credibility or whether any molestation had actually occurred based on the current absence of physical evidence of molestation. As such, Dr. Wilkov’s testimony presents no error.

Existing precedent from both this Court and our Supreme Court supports the admission of Dr. Wilkov’s testimony.

The general rule concerning the admissibility of expert testimony as to the ultimate issue is this: An expert may not testify as to his opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors.

(Punctuation omitted.) Thompson v. State, 233 Ga. App. 364 (1) (504 SE2d 234) (1998). Furthermore, questions of witness credibility are completely within the province of the jury. Brannon v. State, 266 Ga. 667, 668 (469 SE2d 676) (1996).

Here, the record shows that, after reporting the molestation to the police, D. K. was referred to Dr. Wilkov, a pediatrician specializing in treating abused children. Dr. Wilkov examined D. K. several months after the molestation, and as a part of his medical history, D. K. described the symptoms he suffered directly following the anal penetration. Specifically, D. K. told Dr. Wilkov that “it felt like cold was getting in my body,” it “hurt to use the bathroom [and was h]ard to sit,” and his bowel movements were “[m]ucousy at first with a little blood.” Dr. Wilkov testified that, although D. K. was not still suffering from these symptoms at the time she examined him, she would not expect to find any physical evidence of molestation several months after the alleged event.

During direct examination, Dr. Wilkov was questioned whether the symptoms described by D. K. in giving his medical history were consistent with those about which abuse victims might complain. Over Atkins’ objection, Dr. Wilkov then testified, based on D. K.’s description of his symptoms:

My opinion was that [D. K.] was able to give me a credible history, of anal penetration!,] . . . describe the trauma . . . [and] the physical findings were normal at the time of my exam, which is what I would’ve expected, based on literature. And, therefore, I thought everything was very consistent, with him having been molested.

Subsequently, on cross-examination, Atkins’ counsel repeatedly asked Dr. Wilkov questions relating to the veracity of the victim, including what her conclusion would have been if D. K. had lied about the history of anal penetration. Dr. Wilkov replied:

Well, I think that’s not up to me to judge whether the history is the truth or not. I’ve got a child that comes to me that is able to describe some . . . physical findings, that is able to describe them while I’m doing my physical exam. ... I just have to do a physical exam and base a conclusion just on a physical exam.

(Emphasis supplied.)

Thus, in response to questions from Atkins’ counsel, Dr. Wilkov made it clear that she was not giving her opinion as to D. K.’s veracity or whether or not an act of molestation had actually occurred. Moreover, she never attempted to link Atkins to any act of molestation that may have occurred. Dr. Wilkov merely gave her opinion as to whether the symptoms described by D. K. were consistent with those reported by known victims of abuse by anal penetration. The medical history is a part of a physical exam. The question is whether or not the physician may testify concerning the medical history absent objective evidence of molestation on examination. We hold that the physician can so testify. The physician explained that the absence of physical evidence of molestation was not unusual given the fact that the examination occurred several months after the alleged act.

In this case,

[t]he witness . . . did not testify that in her opinion the [child] had been abused ... by [Atkins]. Rather, the questions and answers were phrased in terms of whether the results of the witness’s professional observations and testing of the [child] were consistent with a child who has been abused. This conclusion is within the bounds of permissible expert testimony.

(Punctuation omitted.) Jones v. State, 232 Ga. App. 505, 506 (3) (502 SE2d 345) (1998).

This result is well supported by precedent in this State. In State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986), our Supreme Court established a very broad view regarding the admissibility of a pediatrician’s opinion that a child had actually been abused based on a physical examination and medical history. In that case, the Supreme Court held:

[The expert’s] opinion that the child had been sexually abused was based on her physical examination of the child as well as on the history related to her by the child. This opinion was admissible under the rule that medical opinions concerning a patient’s physical condition are admissible in evidence even when they are based in part on the physical history elicited from the patient. . . . There is no question that [the expert] was competent as an expert — a pediatrician with expertise in child molestation. Nor is there any question that her conclusion that the child had been molested was one which the jurors would not ordinarily be able to draw for themselves. Thus, [the expert’s] opinion was admissible . . . [, and] the fact that her testimony indirectly, though necessarily, involved the child’s credibility does not render it inadmissible.

(Footnotes omitted.) Id. at 449-450.

Subsequent to this decision, this Court followed suit, finding in a number of cases that a pediatrician could opine, based on a physical examination of the victim, that an act of molestation actually occurred, as long as the expert did not also specifically name the defendant as the perpetrator. See, e.g., Strickland v. State, 212 Ga. App. 170, 173 (4) (441 SE2d 494) (1994); Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992); Johnson v. State, 186 Ga. App. 77, 78 (366 SE2d 409) (1988).

With its decision in Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987), however, our Supreme Court appeared to restrict the broad admissibility of an expert’s conclusion that molestation actually occurred. In Allison, a professor testified regarding the characteristics of child sexual abuse syndrome. Then, a child therapist, based on:

his observations of the [victim], his discussions with others who had counseled her, and the results of a battery of psychological tests that he [had] administered, . . . [testified that the victim] “does definitely appear to fall into [child sexual abuse] syndrome. ... In my professional opinion, she has been sexually abused.”

Id. at 851-852. No direct tangible evidence of physical abuse was admitted into evidence.

Our Supreme Court held:

The jury, having the benefit of extensive testimony as to the lineaments of the child abuse syndrome, as well as testimony that this child exhibited several symptoms that are consistent with the syndrome, was fully capable of deciding — upon their own — whether the child in fact was abused, and, if so, whether [the defendant] did it. For that reason, the admission of this aspect of the [child therapist’s] testimony [that molestation actually occurred] was incorrect. (Compare State v. Butler, [supra].)

(Emphasis in original.) Allison, supra at 853 (6). Thus, under Allison, the Supreme Court set forth a rule that, where evidence of an abuse syndrome is admitted and no tangible physical evidence of abuse is presented, an expert cannot testify that abuse actually took place but can testify that the victim’s symptoms are consistent with a determination that the victim is suffering from an abuse syndrome. Because the expert in Allison had no direct physical evidence of abuse, only evidence gained through discussions with the victim and observations of her behavior, the expert was prevented from giving an opinion as to the ultimate issue of fact, i.e., that molestation actually occurred.

Our Supreme Court took this rule one step further in Harris v. State, 261 Ga. 386 (405 SE2d 482) (1991). In that case, a physician was directly asked, based on his physical examination of the victim, whether he believed that the victim had been sexually molested. Over objection, the expert answered affirmatively. Despite the fact that the opinion was based on a physical examination rather than an abuse syndrome, of which no evidence of the latter was admitted, the Supreme Court held that the issue was controlled by Allison, supra, and the testimony was inadmissible. Therefore, pursuant to Harris, a pediatrician, based on her physical examination of the child as well as on the history related to her by the child, may no longer opine directly that an act of abuse actually occurred, despite the fact that Butler has never been overruled. On the other hand, as pointed out by Justice Hunt in his dissent, which was joined by Chief Justice Clarke and Justice Fletcher, a pediatrician may testify that her findings are consistent with the occurrence of molestation.

Allison and Harris strike a balance between the admission of evidence essential to the jury’s determination whether abuse occurred and the prevention of an expert from usurping that determination. As the pediatrician in Butler pointed out, “in most cases of child molestation there is no physical evidence of abuse.” Id. at 449. Therefore, as in the case now before us, most of the evidence of abuse will be comprised of the medical history provided by the victim. The medical history, in turn, is made up of a list of discrete medical and/ or psychological symptoms. The average juror, lacking training as a physician, psychiatrist, or psychologist, cannot draw an inference on his or her own whether these symptoms are indicative of molestation or abuse. Therefore, an expert should be allowed to testify that the symptoms and history described by the child were consistent with the occurrence of molestation. And while this evidence might indirectly reflect on the victim’s credibility, it would nonetheless be admissible, as would any relevant evidence linking any defendant to any crime.

To stop the expert from overstepping his or her bounds and invading the province of the jury, he or she is prevented from definitively stating that molestation or abuse actually occurred. This is the appropriate result, as the determination of this ultimate issue may turn on numerous facts in evidence beyond the medical or psychological evidence which requires the specialized knowledge of the expert to understand. In other words, although it may be beyond the ken of the jury to determine whether certain physical and psychological symptoms were consistent with abuse, it would not be beyond their ken to determine whether an expert’s opinion that the symptoms were consistent with abuse in conjunction with all of the other evidence elicited at trial proves that the victim was both molested and molested by the defendant.

Applying this analysis to the case now before us, Dr. Wilkov’s testimony would be admissible. She explicitly told the jury that she was not giving her opinion as to the actual occurrence of the molestation or the victim’s credibility. Dr. Wilkov testified that her lack of physical findings and interview of the victim produced results which were consistent with the occurrence of molestation. She did not testify that D. K. was actually molested. She did not testify that Atkins molested D. K. Dr. Wilkov’s testimony would be admissible under Allison as expanded by Harris because she never testified that molestation occurred, only that her findings were consistent with molestation. On one side of the scale, this testimony served the necessary function, which was beyond the ken of the jury, of linking D. K.’s medical symptoms, namely a feeling of “cold inside him,” pain when sitting, and blood and mucus in his stool, to anal penetration. On the other side of the scale, this testimony left the ultimate determinations of D. K.’s molestation and the identity of the molester completely up to the jury. Therefore, the expert testimony in this case fits directly into the category of admissible evidence set out in Allison and Harris, and it strikes the precarious balance envisioned therein.

The fact remains, however, that this case is, in fact, distinguishable from Butler, Allison, and Harris because Dr. Wilkov not only provided admissible testimony on direct examination, but she also buttressed Atkins’ case by explicitly telling the jury that she was not judging the credibility of anything the witness told her. Not only did Dr. Wilkov not invade the province of the jury, but she drew a line in the evidentiary sand, pointed it out to the jury, and let them know she had no intention of crossing it. This testimony sets this case apart and, by itself, makes Atkins’ enumeration meritless.

Thus, for all of the reasons set forth above, the trial court did not err in allowing Dr. Wilkov’s testimony into evidence.

3. Finally, Atkins contends that the trial court erred by limiting his cross-examination of a psychologist who treated J. B. regarding the content of their discussions. We disagree.

During the trial, the State called Lawyer as a witness. On direct, Lawyer testified that she was a psychotherapist who worked for the Georgia Center for Children, an organization which provides both forensic interviewing services to the Fulton and DeKalb County Police Departments and free psychotherapy to victims of physical abuse.

Atkins contends that he should have been allowed to cross-examine J. B.’s therapist about the substance of her meetings with J. B., which, pursuant to a motion in limine brought by the State, the trial court prevented Atkins from doing. The trial court based its ruling on the issue of privilege. In response to Atkins’ contentions, the trial court replied: “[J. B.’s therapist] cannot go into detail about what that counseling was all about, any more than you can.” The trial court further explained to Atkins that he could not allow him to engage in a fishing expedition into privileged areas without evidence showing that it was necessary.

The record is clear that Atkins understood the nature of the trial court’s ruling and acquiesced in it on the applicability of privilege to the testimony of J. B.’s therapist. In response to the trial court’s explanation for its ruling, Atkins agreed, explicitly stating: “Well, certainly, there’s a privilege that exists between the patient and the health care provider in that context.” Atkins argued only that, despite the privilege, he should be allowed to cross-examine J. B.’s therapist regarding the substance of her sessions with J. B.

Atkins, however, did not make a proper showing of the necessity of such a line of questioning.

The privilege established by OCGA § 24-9-21 (5) prohibits the defendant from engaging in a “fishing expedition” regarding a witness’ consultations with a [psychologist]. Therefore, a defendant may not explore such evidence unless he makes allegations sufficient to establish a prima facie need for its discovery by a proper motion for a pretrial hearing. At the ensuing inquiry, the [psychologist] would be available to the defendant for discovery of his findings and any statements made by the patient-witness to him material to the issues on trial. The trial court must, consistent with the demands of due process, then delineate those communications available to the defense for use at trial. Conversely, any communications not central to the defense must remain privileged and inadmissible at trial.

Bobo v. State, 256 Ga. 357, 360 (4) (349 SE2d 690) (1986).

In this case, Atkins neither made a motion for a pretrial hearing on the matter nor gave the court a compelling reason to violate the psychologist-patient privilege. In response to the State’s motion in limine, Atkins set forth a supposition that J. B. might be receiving counseling, in part, due to a strained relationship with his mother. However, Atkins told the trial court that he had no evidence to support his theory. Thus, due to the complete absence of any evidence from Atkins that it would be necessary to violate J. B.’s psychologist-patient privilege, the trial court did not err by limiting Atkins’ cross-examination of J. B.’s therapist and thereby preventing him from engaging in a fishing expedition to dredge up evidence of domestic problems totally unrelated to the act of molestation.

Moreover, regardless of whether a privilege attached to the therapist’s testimony, Atkins could have, within the scope of the court’s limiting order, cross-examined the witness sufficiently to defeat any suggestion that the therapist saw the victim only because he had been sexually abused. Atkins could have asked the therapist to confirm that she sees children for reasons other than sexual abuse, to confirm that she was not testifying about the subject matter of her counseling sessions, and to confirm that, therefore, she was not testifying that the victim had in fact been sexually abused but only that she had seen the victim. Thus the court’s order limiting the scope of cross-examination did not prevent the defendant from countering the harmful suggestion. Any disparity in inferential evidence in this case did not result from the trial court’s ruling on the State’s motion in limine. Rather, the disparity arose from Atkins’ choice not to thoroughly examine J. B.’s therapist on the nature of her expertise and practices.

Furthermore, Atkins was limited by his failure to follow statutory procedures to authorize the admittance of privileged testimony in light of his knowledge that J. B.’s therapist would testify as she had at the prior trial of this case which resulted in a mistrial because of a hung jury. We note that the State did not seek any testimony from J. B.’s therapist which violated J. B.’s privilege.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Eldridge and Phipps, JJ, concur. Barnes, J., concurs in judgment only.

Decided March 30, 2000

Reconsideration denied April 13, 2000.

Lynn M. Friedewald, for appellant.

Langston L. Atkins, pro se.

J. Tom Morgan, District Attorney. Robert M. Coker, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A99A1900.
    PORTER v. THE STATE.
    (532 SE2d 407)
   Smith, Judge.

Andrea Lee Porter was indicted jointly with her husband, Thomas Porter, on charges stemming from the abuse of Andrea Porter’s son. The son, who was then four years old, was living with his natural father and visiting his mother and her husband for a thirty-day summer visitation. Thomas Porter was charged with aggravated child molestation, aggravated sexual battery, and aggravated battery. They were charged jointly with two counts of cruelty to children and contributing to the deprivation of a minor. They were tried jointly, and a jury found both Porters guilty on all charges.

Thomas Porter admitted the abuse. He testified that he accidentally burned the child’s leg with an iron while he was ironing his military uniforms and beat him “off and on” with his hands, his fists, and a pillow from the time the visitation began. He also testified that he burned the child’s anus, rectum, and scrotum with a hot curling iron several times; that he hit him in the stomach, head, and penis; and that he choked him “until his eyes started to roll back” before releasing him. Thomas Porter is not a party to this appeal. Andrea Porter (hereinafter “Porter”) appeals from the judgment entered on the jury’s verdict, raising five enumerations of error. We find that the evidence was sufficient to support her convictions, that her trial counsel provided effective assistance, and that the trial court did not err in admitting evidence of similar transactions or allowing improper cross-examination of Porter’s character witnesses, as alleged by Porter. We conclude, however, that it was error to exclude the testimony of a psychologist regarding Porter’s behavior and that this error was not harmless. Porter must therefore be retried.

1. Porter contends the evidence was insufficient to support her convictions for cruelty to children and contributing to the deprivation of a minor.

(a) OCGA § 16-5-70 (b) provides that cruelty to children in the first degree is committed when one “maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” Count 4 of the indictment charged Porter, along with her husband, with cruelty to children for maliciously causing her son “cruel and excessive physical and mental pain by striking [him] on the legs, feet and back, and burning said child with a candle.” Although Porter correctly points out that no evidence presented at trial showed that the child was burned with a candle, it was not necessary that the State prove that the boy was injured in every way set forth in the indictment; these details were merely descriptive of the offensive act. Cole v. State, 162 Ga. App. 353, 354 (2) (291 SE2d 427) (1982).

A person is a party to a crime,

only if he [or she]: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

OCGA § 16-2-20 (b). The State was therefore required only to prove either that Porter abused her son herself or that she was a party to her husband’s abuse of him.

This the State accomplished. First, the victim’s father testified that the child told him that the damaging abuse was inflicted by both Porter and her husband and that Porter “slapped and hit” him. This alone was sufficient to support Porter’s conviction on Count 4.

Second, the State presented evidence that authorized the jury to find that Porter was a party to the crime committed by her husband. Porter’s husband testified that the abuse began on a Monday and continued until Thursday, when the child lost consciousness and stopped breathing. At that time Porter’s husband called her, and she left work, rushed home, and transported the child to the hospital. The State presented expert evidence that the rectal injury would have affected the victim’s walking and prevented him from sitting down. According to Porter’s husband, this injury occurred one day before the victim was taken to the hospital; according to the doctor who examined the child at the hospital, it occurred two or three days earlier. The medical evidence also showed that the child had a five-inch burn on his left leg, which was several days old. Porter’s husband admitted that the abuse had been going on for two or three days. Yet incredibly, Porter testified that she saw her son every evening when she returned from work and that she never noticed anything wrong. She noticed only a small burn from the iron on her son’s leg, even though she swam with the children Wednesday afternoon and cuddled with them that evening.

Further, the State presented the testimony of witnesses from Porter’s workplace indicating that Porter was aware of the abuse. Coworkers testified they heard Porter talking to her husband on the telephone Thursday morning, telling him that his form of discipline was child abuse and that she would not tolerate it. She was aware that her husband had been abused as a child himself. But even though she knew her husband was frustrated with the boy and might do something she considered child abuse, she did not leave work and go home. The evidence therefore also supports Porter’s conviction on Count 4 as a party to the crime committed by her husband.

(b) Count 5 of the indictment charged Porter with maliciously causing her son cruel and excessive physical and mental pain by failing to take him for necessary medical treatment. Porter argues that no evidence was presented that such treatment was necessary before the child stopped breathing, at which time it is undisputed that she rushed home and brought him to the hospital. OCGA § 16-5-70 (b). We do not agree. The State presented overwhelming evidence that the abuse inflicted on Porter’s son took place over a period of several days, during which time Porter was present and in close contact with the victim each and every evening. The State also presented evidence that the child’s suffering would have been obvious, simply because of the nature of his injuries. A doctor , testified that the child’s injuries would have been extremely painful to him unless he was unconscious. Yet Porter did nothing to alleviate the child’s suffering until he stopped breathing.

(c) Porter argues that Count 6 is simply “a rehashing” of Count 5 and the two counts should have merged. We find no merit in this argument. Count 5 is a crime against the person, requiring proof that Porter caused her son unnecessary pain. Count 6 charged Porter with causing her son to be deprived within the meaning of OCGA § 15-11-2 (8) by depriving him of care necessary for his physical health. It is an offense against health and morals; it requires no showing of cruel or excessive pain but instead requires a showing of deprivation within the meaning of OCGA § 15-11-2. Although the two charges are based on similar facts, they have differing elements, and each requires proof of a fact not required to prove the other. Olsen v. State, 191 Ga. App. 763, 764-765 (1) (382 SE2d 715) (1989). The jury was therefore authorized to find Porter guilty of both. On each of these counts, the evidence was sufficient to authorize the jury to find Porter guilty beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Porter contends the trial court improperly permitted the vietim’s father to testify over objection that after prior visits to Porter, the child had returned home bearing various minor injuries. Porter characterizes this as similar transaction evidence and argues that it was inadmissible because the State failed to give prior notice, as required by Uniform Superior Court Rule 31.3. The Supreme Court of Georgia indeed so held in Loggins v. State, 260 Ga. 1 (388 SE2d 675) (1990) and Maxwell v. State, 262 Ga. 73, 74-75 (2) (414 SE2d 470) (1992). These cases, however, were overruled in Wall v. State, 269 Ga. 506 (500 SE2d 904) (1998), which held that the rule was not applicable to occurrences categorized as prior difficulties between defendant and victim. The rationale in Wall is that a defendant’s prior acts toward the victim are admissible as evidence demonstrating motive, intent, or bent of mind toward the victim, thereby establishing “a logical, probative connection between the crime charged and the prior difficulty. [Cit.]” Id. at 509. Because the relationship between the defendant and the victim is usually relevant, it is not surprising that the nature of that relationship is subject to proof at trial. Id. at 510 (Fletcher, P. J., concurring specially). What is required, however, is that the trial court instruct the jury that the evidence is admitted for a limited use. Id. at 509. In this case, that was done. The jury immediately received an instruction that the evidence was admitted for the limited purpose of showing, as the trial court put it, “the relationship between the victims, alleged victims, and the defendant and to show the defendants’ motive, intent, bent of mind in committing the alleged acts against the victim.” The trial court also told the jury to consider the evidence only for that purpose and no other purpose. We therefore find no error.

3. Porter maintains the trial court erred in allowing improper cross-examination of her character witness. Porter called as a character witness an attorney with the Legal Assistance office at Fort Penning, where she had been employed. On direct examination, the witness was asked the statutory questions regarding knowledge of character. See OCGA § 24-9-84. The State then cross-examined the witness, asking him if he had heard that Porter’s son had bruises when he returned to his father from visits with Porter, that her son did not want to visit Porter, that Porter was more interested in the welfare of her husband than that of her son after bringing him to the hospital, and that she told another co-worker that her husband had himself been abused as a child and that she was going to stick by him. The State also asked the witness whether he had personal knowledge of Porter beating the child or allowing her husband to beat him. The defense objected to these questions, and the objection was overruled. “Once a defendant opens the door for character evidence, specific events may be used in testing the extent and foundation of the [witness’s] knowledge and the correctness of his testimony on direct examination.” (Citations and punctuation omitted.) Morrison v. State, 232 Ga. App. 846, 847 (502 SE2d 470) (1998). See also Banks v. State, 113 Ga. App. 661 (1) (149 SE2d 415) (1966). This was the procedure used by the State, and we find no error.

4. Porter alleges that she received ineffective assistance of counsel. She argues that trial counsel’s presentation of this character witness was “disastrous” and that he failed to present other witnesses who could have testified to Porter’s good character or examine Porter on this subject.

To prevail on a claim of ineffective assistance of counsel, it must be shown both that counsel’s performance was deficient and that but for this deficiency the outcome of the trial would have been different. A strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999). The trial court’s determination that Porter was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous. McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998).

Although trial counsel asked the witness only three of the four statutory questions regarding character, counsel for Porter’s husband and co-defendant posed the fourth statutory question. The fact that trial counsel did not ask the fourth question himself could not have materially affected the outcome of the trial. Trial counsel testified at the hearing on the motion for new trial that he interviewed but did not call the other witnesses for various strategic reasons. Although Porter claims it was ineffective assistance not to bring out the fact that she had been awarded several Army commendation medals, trial counsel testified that having been in the Army himself, he knew that these medals were not necessarily evidence of exemplary conduct or good character. He also was aware that Porter did not have a spotless military record, having learned from a former commanding officer that she had been reprimanded for causing a disturbance in a theater when she worked for him. The trial court found that trial counsel had provided effective assistance.

The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. The fact that appellant and . . . present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.

(Citations and punctuation omitted.) McCant, supra.

5. Porter contends the trial court erred in excluding the testimony of a psychologist concerning her behavior. .

Before trial, the State moved in limine to prevent the defense from calling Dr. Ellen Speyer, a licensed clinical psychologist, whose report was tendered to the court before the trial. The State intertwined two arguments for excluding the evidence: that the evidence was inadmissible because of its psychological nature, the defense having given no notice of an insanity defense; and that the testimony went to the ultimate issue, which was in the province of the jury and not a proper area for expert opinion. The trial court granted the motion to exclude the testimony.

In an offer of proof outside the presence of the jury, Dr. Speyer testified that she evaluated Porter at the request of the Army, which was considering a possible court martial. She administered various psychological tests and submitted her report to the Army. Summarizing the results of her evaluation, Dr. Speyer testified that Porter’s personality “is centered around the whole ability to be able to block out things that she doesn’t want to see” and that “her whole psychological makeup is almost designed to not see things that are too painful to see.” The doctor testified that this usually happens when one is subjected to some type of abuse or severe emotional distress as a child. She could not say whether Porter actually was herself subjected to such abuse, but she stated that generally that is how such mechanisms are formed.

Porter’s counsel then argued that Porter’s defense was that she had no knowledge of the abuse her husband was inflicting on her son. He argued that the psychologist’s testimony and report were admissible to show that in her expert opinion Porter was not aware of the signs and symptoms of the abuse, even though a normally perceptive person would have been aware. His argument was that such evidence was admissible, just as evidence of a vision impairment or other sensory difficulty would be admissible, not as evidence of diminished mental capacity but as evidence of impaired perception. The court again found the evidence inadmissible.

Dr. Speyer’s report, which is included in the record although not given to the jury, recites that:

just as a hysterically blind person has nothing in fact wrong with their eyesight, but they do not allow themselves to be aware of visual information and function “as if” blind for the most part, so Andrea Porter functions as if blind of the events going on around her if they are too threatening, frightening, or painful. It is my clinical conclusion that she is capable of actually not seeing signs of physical abuse between her husband and her children, even if those signs appear to most people to be too obvious or large to ignore. It is as if her entire personality structure is specifically designed to make her blind to such things.

Relying upon Pyron v. State, 237 Ga. App. 198 (514 SE2d 51) (1999) (physical precedent only) and Loper v. Drury, 211 Ga. App. 478 (440 SE2d 32) (1993) (physical precedent only), the State argues that because no evidence was presented of any childhood abuse administered to Porter, Dr. Speyer’s testimony lacks a factual basis and the trial court correctly excluded it. But in Pyron, we found that the trial court actually abused its discretion in excluding expert evidence regarding proper techniques for interrogating children. And in Loper, we acknowledged the rule that generally expert witnesses may not base their opinions on facts not within the expert’s personal knowledge and not otherwise admitted into evidence. Id. at 481 (1) (b). But we also recognized that a number of exceptions exist to this rule, including those for “scientific works and other learned sources of information pertaining to the expert’s profession. [Cits.]” Id. at 482 (1) (b). In Loper, the expert’s reliance upon a letter not admitted into evidence did not come within any of these exceptions. But here, Dr. Speyer was undoubtedly relying upon learned sources from her profession in stating that a certain psychological characteristic commonly is found in persons who were abused as children. As such, it was not excludable on this basis.

Moreover, Dr. Speyer did not testify she concluded that Porter’s condition was the result of childhood trauma, for which conclusion no factual basis was presented. She had a strong factual basis, in the testing she administered and her interview with Porter, for the conclusion to which she testified: that Porter exhibited symptoms of a psychological condition in which she blocked out and essentially denied excessively painful phenomena.

Neither was Dr. Speyer’s testimony inadmissible as going to the ultimate issue of whether Porter did have knowledge of her husband’s abuse. “It is well settled that an expert may give an opinion or conclusion even on the ultimate issue when that conclusion is beyond the ken of the average layman. [Cit.]” Beecher v. State, 240 Ga. App. 457, 458 (2) (523 SE2d 54) (1999). In this case, it is clear that the jury would have no way of reaching a conclusion on this issue without the testimony of the expert.

Finally, this issue does not relate to an insanity defense. It has to do with the presentation of psychological evidence that falls short of being an insanity defense. USCR 31.1 provides that “notices of the intention of the defense to raise the issue of insanity or mental illness . . . shall be given and filed at least ten [10] days before trial unless the time is shortened or lengthened by the judge.” In addition, USCR 31.4 (B) provides: “Except for good cause shown, the issue of insanity shall not be raised in the trial on the merits unless notice has been filed and served ahead of trial as provided in these rules.” In Johnson v. State, 262 Ga. 527, 529 (422 SE2d 648) (1992), the Supreme Court said:

It is important to note that to the extent the notice provisions of Rules 31.1 and 31.4 operate to prevent a criminal defendant from presenting relevant evidence, the defendant’s ability to confront adverse witnesses and present a defense is diminished. Thus, the rules unquestionably implicate the Sixth Amendment. That is not to say that rules of exclusion are unenforceable. The right to present relevant testimony is not without limitation. The right may in appropriate cases bow to accommodate other legitimate interests in the criminal trial process. The notice requirement of Rule 31.4 undoubtedly serves legitimate state interests in protecting against surprise and undue delay, given the state’s difficulty in responding to defense psychiatric testimony without its own expert evaluation of the defendant. Hence, failure to comply with the notice requirement may in some cases justify even the severe sanction of preclusion. However, the trial court must consider whether the state’s legitimate interests may be satisfied without resort to the preclusion of what might be the defendant’s only defense.

(Citations and punctuation omitted.) Id. at 529-530 (1). In Johnson, the Supreme Court held that the State was not completely surprised by the psychological testimony, and the record did not demonstrate that permitting the excluded evidence would have worked to delay the trial or compromised the State’s ability to respond. Id. at 530.

Here, too, the State could not have been completely surprised by the psychological testimony, as it moved in limine to exclude it. And in this case, we are persuaded that excluding the evidence did preclude Porter’s only defense. Given these factors, and the fact that the testimony did not present an insanity defense but offered an expert’s opinion on an issue beyond the ken of the jury, we conclude that the trial court abused its discretion in refusing to admit the evidence. Porter must be retried.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

On Motion for Reconsideration.

On motion for reconsideration the State makes a number of arguments seeking to persuade this court that our reversal of Porter’s conviction was misguided. Because several of these arguments have superficial appeal and the State advocates its position persuasively, we take this opportunity to note that we have carefully considered the arguments raised and to expand on our reasoning regarding several of these points.

First, the State contends we have overlooked the Supreme Court’s decisions in Selman v. State, 267 Ga. 198 (475 SE2d 892) (1996) and Lewandowski v. State, 267 Ga. 831 (483 SE2d 582) (1997). Contrary to the State’s contention, we considered these cases carefully and concluded that they did not demand the result desired by the State under the facts present here. It is true that in both cases the Supreme Court held it was not error to refuse to admit psychological testimony proffered by the defendant after he initially rejected defenses of mental illness or insanity. But in both cases, the particular facts involved in the defense raised rendered the defendant’s unique psychological condition irrelevant because his conduct was required to be judged by a “reasonable man” standard. Selman was charged with malice murder. He sought to introduce expert psychological testimony to show his lack of intent or malice at the time he shot the victim, arguing that his fear of the victim made the case “like a battered woman syndrome case.” Selman, supra at 200 (3). But the offer of proof itself showed that very little similarity existed between Selman’s feelings and those of a battered woman. Id. at 200, n. 3. And the Supreme Court noted that Selman’s defense was in the nature of a justification defense and:

[although] OCGA § 16-3-21 (d) (2) provides for the admissibility of relevant expert testimony regarding the condition of the mind of a defendant in a situation of abuse, it has not otherwise changed the rule in homicides where justification is raised as a defense, namely, that justification is based upon the fears of a reasonable person, not upon the reasonable fears of the defendant.

(Citations, punctuation and footnote omitted.) Id. at 200-201 (3).

The same is true of Lewandowski, supra. There, the defendant was charged with malice murder. He sought to show that his crime was really voluntary manslaughter. His defense was that the victim provoked him by committing adultery and the psychological and emotional impact upon him caused him to kill her. He sought to introduce expert psychological testimony, claiming it was necessary for the jury to understand his state of mind. The Supreme Court held that the defendant’s state of mind was irrelevant, because voluntary manslaughter required the jury to decide whether the provocation was sufficient to excite deadly passion in a reasonable person, not in this particular defendant. Id. at 832.

In this case, no “reasonable man” standard is involved. Instead, to prove that Porter was a party to causing her son unnecessary pain and depriving him of medical treatment, it was necessary that the State show that she knew her son suffered such pain and required medical treatment. The State offered evidence that a reasonable person would have known. Porter’s sole defense was this compelling psychological testimony, based upon valid psychological testing commissioned by the Army, that she suffered from a, psychological condition that impaired her knowledge and perception of such painful facts that might be obvious to others. Her psychological condition was not irrelevant, as in Selman and Lewandowski; it was crucial to her defense.

We certainly agree with the State that psychological testimony must usually be excluded when the defendant has not given notice of reliance upon an insanity defense. But as the Supreme Court noted in Johnson v. State, 262 Ga. 527 (422 SE2d 648) (1992), the rules of exclusion that normally bar such testimony when the defendant has rejected an insanity defense must yield when other legitimate interests demand admission of the evidence. This is just such a case. Given the State’s lack of surprise and the crucial nature of the evidence, under these particular facts it should have been admitted.

Second, we cannot agree with the premise upon which most of the State’s argument depends: that the issue of Porter’s knowledge is really an issue of intent. The State cites five cases to support the proposition that “[t]his court has often indicated that the questions of knowledge and intent are closely linked.” All but one of these cases do not support the State’s proposition. And the remaining case, Callaway v. State, 230 Ga. App. 369, 370-371 (2) (496 SE2d 349) (1998), although closer, does not state that knowledge and intent are always identical. They are not. In this case, the State was certainly required to prove Porter’s general criminal intent to harm her son. In addition, however, because of the nature of several of the crimes with which she was charged and because her husband admitted that he was the perpetrator of the crimes in that he beat and burned Porter’s son, the State was required to show that Porter had knowledge of her husband’s actions. That is very different from criminal intent. It was for the jury to decide whether Porter had the requisite knowledge, but it was important that their decision be made upon all the facts. If, indeed, Porter suffered from a psychological condition that caused her not to become aware of painful facts, the only way the jury could know about such a condition was through expert testimony. Psychological diagnosis was not within the jury’s ken. Once armed with this testimony, they could choose to believe it or not in concluding whether Porter had the requisite knowledge, and they could then fairly decide her fate.

Decided March 24, 2000

Reconsideration denied April 13, 2000

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Julia Slater, Assistant District . Attorney, for appellee.

Motion for reconsideration denied.

       We note, however, that some testimony was presented regarding statements made by Porter’s daughter regarding the abuse of her brother. Because any such testimony is hearsay, it should not be admitted upon retrial.

       The State makes much of testimony that Porter was aware of her husband’s abuse because she was overheard telling him on the telephone that his form of discipline was child abuse and that he should not abuse the children anymore. But Porter testified and explained these overheard statements. She testified that the phone calls related to her awareness that her husband was placing her son in warm and cold baths, of which she did not approve.