Opinion
Docket No. 135973.
Decided March 19, 1991, at 9:00 A.M. Leave to appeal denied, 439 Mich. ___.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and Martha G. Mettee, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Stuart Lev and F. Michael Schuck), for the defendant on appeal.
Before: CYNAR, P.J., and WAHLS and GRIBBS, JJ.
ON REMAND
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and was sentenced to a term of twenty to fifty years' imprisonment. On appeal, we affirmed. People v Draper, 150 Mich. App. 481; 389 N.W.2d 89 (1986). However, by order of the Supreme Court, in lieu of granting leave to appeal, this case was remanded to the Court of Appeals for reconsideration in light of People v Beckley, 434 Mich. 691; 456 N.W.2d 391 (1990), and its companion case of People v Badour. 437 Mich. 872 (1990). Upon reconsideration, we reverse.
In Beckley, a plurality decision, a majority of the Supreme Court agreed that an expert witness may testify that the behavior of the child victim is consistent with that of child sexual abuse victims generally. However, the expert may not testify about whether the victim's allegations are truthful, or whether sexual abuse in fact occurred.
In this case, the experts, Rosemary Jalovaara and Linda Butterfield, both psychologists, testified about characteristics normally found in sexually abused children. Under Beckley, that testimony was proper because it assists the trier of fact without rendering an opinion regarding whether abuse had in fact occurred.
However, both experts went on to conclude that, in their opinion, the victim in this case had been sexually abused. We feel that this is the kind of testimony prohibited under Beckley. These opinions go beyond merely relating whether the victim's behavior is consistent with that found in other child sexual abuse victims. They are opinions on an ultimate issue of fact, which is for the jury's determination alone.
Consequently, defendant's conviction is reversed, and we remand this case for a new trial. We do not retain jurisdiction.