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State v. Barraza3/6/1990
HARRIS L. HARTZ, Judge.
Defendant received concurrent sentences on convictions of one count of kidnapping and two counts of second degree criminal sexual penetration (CSP II). His challenge to the CSP convictions rests on the alleged impropriety of testimony regarding rape-trauma syndrome (RTS) by Micki Curtis, the Sexual Assault Program Coordinator for Southwest Mental Health Associates. He does not challenge the kidnapping conviction. We granted oral argument, primarily to consider whether any error had been preserved. We affirm.
INTRODUCTION
RTS is a term appearing in psychiatric literature of the past fifteen years describing emotional reactions that victims of rape commonly experience. See A. Burgess L. Holmstrom, Rape Trauma Syndrome, 131:9 Am. J. Psychiatry 981 (Sept. 1974). Defendant's brief raises interesting questions regarding testimony about RTS. Given the apparently widespread use of such testimony in CSP prosecutions, guidance from this court on the implicated evidentiary questions would be helpful to prosecutors, defense counsel, and trial judges.
Unfortunately, this case does not present a suitable vehicle for us to accomplish more than providing few limited observations. Proper analysis of the subtleties arising in RTS testimony requires that the issue be focused in the trial court. When a specific objection is raised to such testimony, counsel for both parties can produce an appropriate record and the trial judge can exercise an informed discretion. We can then review whether that discretion was abused. See, e.g., ) (exclusion of RTS testimony was within sound discretion of trial court in balancing probative value of evidence against its capacity for improper prejudice). In this case, however, the most troubling contentions raised in defendant's brief either have no factual basis or were not preserved for appeal because they were not raised in the trial court. See SCRA 1986, 11-103(A).
Therefore, we need not address them to dispose of this appeal. Nor do we think it wise to utter dicta on subtle evidentiary matters without a record that presents the issues with greater clarity than does the record here. Nevertheless, this case may serve the purpose of alerting the bar and trial courts to issues worthy of careful consideration and to the need for a proper record if those issues are to receive appellate review.
We understand defendant's contentions on appeal to be: (1) the trial court erred in allowing testimony that the victim suffered from RTS; (2) RTS testimony cannot be used to establish the personal injury necessary to prove CSP II; (3) defendant should have received notice that the state intended to use RTS testimony, because he would then have moved for an independent psychiatric evaluation of the victim; (4) Ms. Curtis did not possess the medical qualifications to testify about the victim's physical manifestations of RTS, such as nausea, increased consumption of alcohol, and recurrence of asthma; (5) Ms. Curtis was not qualified to give expert testimony on RTS; (6) RTS testimony is inadmissible to prove the victim's lack of consent; and (7) use of the term "RTS" improperly encouraged the jury to believe that experts can determine whether a rape in fact occurred.
The first contention has no basis in fact. No one testified that the victim suffered from RTS. Ms. Curtis, the state's expert witness on RTS, carefully avoided making such an assertion. She referred to the "alleged rape" and testified only that the victim's alleged symptoms were consistent with those of victims of RTS. Therefore,
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