No. 98,449
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TYLER C. PENN,
Appellant.
SYLLABUS BY THE COURT
1. K.S.A. 60-422(c) disallows proof of general bad or good character and limits character evidence impeaching or supporting a witness' credibility to the traits of honesty or veracity or their opposites.
2. K.S.A. 60-422(d) limits the manner of proving the character traits of honesty or veracity or their opposites as affecting the credibility of a witness by disallowing evidence of specific instances of the witness' conduct. This limits K.S.A. 60-446, which allows proof of character by opinion testimony and evidence of reputation.
3. Under K.S.A. 60-447, evidence of specific instances of conduct other than evidence of conviction of a crime that tends to prove the trait to be bad is inadmissible.
4. When a trait of a person's character at a specified time is material, evidence of the person's reputation in the community in which the person lives or in a group with which the person habitually associates is admissible to prove the truth of the person's reputation. K.S.A. 60-460(z).
5. Under the facts of this case, the defendant failed to establish a sufficient foundation to introduce opinion testimony and evidence of the complaining witness' general reputation for untruthfulness under K.S.A. 60-446 where the impeaching witnesses had limited contact with the complaining witness, had been acquainted with the complaining witness for only a brief period of time, and had not been part of the community in which the complaining witness lived.
6. A contemporaneous objection to alleged prosecutorial misconduct is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection.
7. An appellate court applies a two-part test to evaluate alleged violations of an order in limine. The appellate court first determines whether there was a violation of the order in limine. If the order in limine was violated, the appellate court next determines whether the testimony substantially prejudiced the defendant. The burden is on the defendant to show substantial prejudice.
8. When a violation of an order in limine is based upon a defendant's allegation of prosecutorial misconduct, an appellate court considers three factors in determining whether the violation substantially prejudiced the defendant. First, was the prosecutor's misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, does the admission of the statement indicate ill will by the prosecutor? Third, is the evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor's violation of the order in limine changed the result of the trial? Before the third factor can ever override the first two factors, the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967), must be met.
9. Under the facts of this case, the prosecutor's violation of an order in limine did not substantially prejudice the defendant where the prosecutor did not exhibit ill will, where the prosecutor's violation was very brief and occurred only once during the trial, and where the evidence was overwhelming.
Appeal from Sedgwick District Court; REBECCA PILSHAW, judge. Opinion filed February 27, 2009. Convictions affirmed, sentences vacated in part, and case remanded with directions.
Rachel Pickering, of Kansas Appellate Defender Office, for appellant.
Kristi L. Barton, assistant district attorney, Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, for appellee.
Before ELLIOTT, P.J., GREEN and MARQUARDT, JJ.
GREEN, J.: Tyler Penn appeals from his jury trial convictions and sentences for four counts of rape and one count of sexual battery. Penn first argues that the trial court erred in excluding evidence of victim N.R.'s dishonesty. We disagree. Because Penn never established a sufficient foundation to introduce opinion testimony and evidence of N.R.'s general reputation for untruthfulness in the community where she lived under K.S.A. 60-446, the trial court properly excluded the evidence at trial. Next, Penn contends that the prosecutor's questioning of him during cross-examination, which violated the trial court's order in limine, constituted prosecutorial misconduct. We again disagree. Although the prosecutor's questioning was a violation of the order in limine, the record demonstrates that the violation did not substantially prejudice Penn.
Next, Penn maintains that the trial court erred in assessing attorney fees against him by failing to consider his financial resources or the burden those fees would impose on him, as required by K.S.A. 22-4513. We agree. Based on State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), we remand the case with directions for the trial court to comply with K.S.A. 22-4513 concerning the assessment of attorney fees. Finally, Penn contends that the trial court erred in using his criminal history to increase his criminal history score. We disagree. Because Penn's argument is controlled by State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), we are unable to grant him relief on this issue. Accordingly, we affirm Penn's convictions; we vacate the portion of his sentences assessing attorney fees; and we remand the case to the trial court with directions to comply with Robinson and K.S.A. 22-4513 concerning the assessment of attorney fees.
On the afternoon of April 18, 2006, N.R., a 17-year-old student at North High School, walked into the office of the school counselor, Jan Knabe, just after the lunch period had ended and asked to call her foster mother. N.R. had a speech impediment and hearing problems and received special education services at North High School. Knabe noticed that N.R. was trembling, that N.R.'s shoulders were shaking, and that N.R. was beginning to cry. When Knabe asked N.R. why she wanted to call her foster mother, N.R. asked if an 18-year-old person could get into trouble for having sex with a 17-year-old girl.
Knabe told her that it depended upon whether both people agreed to it. N.R. stated that she did not agree to it. Knabe then called the school administrator and N.R.'s foster mother, R.H. The police were notified about the alleged rape.
N.R. told Knabe that she thought she was going to hang out with Penn, but he made her have sex with him. N.R. said that Penn had not worn a condom and she was worried that she might become pregnant. Knabe testified that when N.R. was describing the incident, she was wringing her hands and crying and had to stop talking a few times in order to catch her breath. When R.H. got to Knabe's office, she noticed that N.R. was visibly upset and was sitting in a chair in the fetal position.
N.R.'s Police Interview in Knabe's Office
Officer Stephanie Hosmer was sent to Knabe's office to investigate the alleged rape. Hosmer testified that upon speaking with N.R., she could tell that N.R. was somewhat mentally challenged. N.R. told Hosmer that she had been in the hallway at school that day when a classmate named Tyler, whom N.R. later identified as Penn, asked her if she wanted to come with him to his "cousin's" house and "hang out." N.R. and Penn were in two classes together, graphic arts and United States history. N.R. told Hosmer that she thought she and Penn were going to just watch television and "hang out." N.R. and Penn walked to a grocery store, where Penn's "cousin" picked them up and drove them to her apartment. It was later discovered that the girl who picked them up was not Penn's cousin but was Penn's close friend, Shineta Horton.
N.R. told Hosmer that as she and Penn were walking up the stairs to the apartment, N.R. hesitated and Penn put one hand on her shoulders and one hand on her waist and guided her up the stairs. After they got inside the apartment, Penn took N.R. upstairs to a loft area. Penn sat down and pulled N.R. down on his lap. Penn then asked N.R. if she liked looking in a mirror. N.R. said that she told Penn yes, but she was unsure of what Penn was talking about. N.R. told Hosmer that there was a mirror resting on the floor of the loft.
N.R. told Hosmer that Penn asked her if she wanted to see his penis. N.R. told Penn no, but Penn unzipped and pulled down his pants. Penn then took N.R.'s hand and put it on his penis. Although Penn tried to keep N.R.'s hand on his penis, N.R. pulled her hand away. When N.R. stood up, Penn grabbed her waist and started to unbutton and unzip her pants. N.R. said that she told Penn, "Please don't," but he pulled down her pants.
N.R. said that Penn told her several times to take off her clothes and shoes. N.R. told Hosmer that she felt like she had no choice but to do what he said. N.R. took off her pants. Penn told N.R. to lay down. Penn then took off N.R.'s underwear and told her that the first time would hurt. Penn tried to put his face between N.R.'s legs, but N.R. told him she did not want to do that and closed her legs. N.R. told Hosmer that Penn kissed and bit both of her breasts. N.R. stated that Penn then "shoved his dick in my crotch." N.R. told Hosmer that the vaginal intercourse lasted about 15 to 20 minutes, during which Penn kept repeating that it would hurt.
According to Hosmer, N.R. stated that she told Penn, "[P]lease stop, it's hurting me." Penn then told N.R. that they were going to try a new thing. Penn laid on his back, grabbed N.R. by the hands, and told her that he wanted her to "suck his dick." N.R. told Penn that she did not want to do that. Penn then told N.R. to turn around, and N.R. said that Penn put her on her hands and knees. N.R. said that Penn put his penis in her rectum. After a couple of minutes, Penn had N.R. get on her back again. N.R. stated that Penn again put his penis into her vagina. When N.R. told Penn to stop, he said to let him finish. Penn then pulled away and ejaculated on N.R.'s stomach.
N.R. told Hosmer that Penn leaned over the railing of the loft and called for Horton to throw him up some paper towels. Penn then wiped himself off with the paper towels, got dressed, and went downstairs. Penn came back upstairs with wet paper towels and cleaned her off. Penn told N.R. to put on her clothes. After N.R. got dressed, she and Penn walked downstairs and left the apartment with Horton. Horton drove N.R. and Penn back to the grocery store. When N.R. got out of the car, Penn gave her a hug and told her not to tell anyone about their business. Penn got back in the car with Horton, and N.R. walked back to school. Upon returning to school, N.R. went immediately to Knabe's office.
When Hosmer asked why N.R. had reported the incident, N.R. stated that she was a good girl and that she did not want to keep any secrets from her foster mother. N.R. told Hosmer that she and Penn were not boyfriend and girlfriend and had never talked about dating. N.R. said that she did not want to go back to school because she was afraid of retaliation. N.R. stated that she was upset because she was supposed to be going to prom and had purchased a prom dress but no longer wanted to go.
Identification of Penn
After describing the incident to Hosmer, N.R. agreed to undergo a sexual assault examination and to show Hosmer where Horton's apartment was located. As they were driving through the parking lot of the apartment complex, N.R. pointed out the vehicle that Horton had been driving. As N.R. was pointing out Horton's apartment, a black male later identified as Penn came out of the door of the apartment complex. When N.R. saw Penn, she stated, "That's him, that's him," and then ducked down in her seat. Hosmer called back to the officers who were following her through the parking lot and told them that N.R. had identified Penn.
Evidence at Horton's Apartment
Immediately after Penn was arrested, Horton consented to the search of her apartment. Horton told an investigating officer that she had assumed that N.R. was Penn's girlfriend. Horton said that there had been no public display of affection between N.R. and Penn in her presence, but she assumed that Penn and N.R. had engaged in sexual intercourse while they were upstairs.
Inside Horton's apartment, crime scene investigators located and collected used paper towels. In addition, the investigators observed a reddish-brown stain on the carpet in the loft area. This stain was located in the area where N.R. had described the incident taking place.
Sexual Assault Exam Evidence
Jennifer Dyck, a sexual assault exam nurse, examined N.R. around 4:15 p.m. on April 18, 2006. As part of her examination, Dyck learned that N.R. was on four different prescribed medications, including Zoloft, Abilify, Trileptal, and Seroquel. Upon talking with N.R., Dyck noticed that N.R. had slower intellectual functioning skills and a speech impediment. Moreover, Dyck noticed that N.R. spoke in broken sentences. Dyck testified that it was necessary for her to be very concrete and specific with N.R. about what Dyck needed to know.
When Dyck questioned N.R. about her level of pain during the alleged incident, N.R. stated that her pain was at a level 10 (out of 10) when Penn put his penis in her vagina the first time. N.R. said that her pain was at a level 3 during the anal intercourse. N.R. told Dyck that her pain was at a level 8 during the second vaginal intercourse. N.R. further told Dyck that she was experiencing lower abdominal pain during the examination. N.R. rated her pain at the time of the examination at a level 2 or 3.
During the sexual assault examination, Dyck found a partial tear to N.R.'s hymen that was actively bleeding. There was also an abrasion and purple and red bruising to the hymen. In the space between the anus and the female sex organ, Dyck discovered a 2.5 millimeter laceration. Dyck further discovered a jagged-edge tear to N.R.'s cervix. Dyck testified that injuries to the cervix are rare and that a tear would indicate a significant amount of force. According to Dyck, the sexual assault program at the hospital had been in existence since 1994, and they saw about 400 patients each year. Out of all those patients, Dyck estimated that only about 10 had any cervical injury. Dyck testified that N.R.'s injuries were consistent with blunt force trauma.
DNA Evidence
Following N.R.'s sexual assault examination, officers obtained a search warrant to collect bodily fluids from Penn. Presumptive testing on the swabs collected from Penn's penis, scrotum, and left hand indicated the presence of blood. Testing on the swabs from N.R.'s lower abdomen confirmed the presence of semen. In addition, presumptive testing of the vaginal and anal swabs collected from N.R. indicated the possible presence of blood. A presumptive test on the swabs from N.R.'s breasts indicated the possible presence of saliva. The DNA profile found on the swabs from N.R.'s abdomen was consistent with the DNA profile of Penn. Moreover, the DNA mixed profile found on the penis swabs of Penn was consistent with the combined profiles of N.R. and Penn.
N.R.'s Interview on the Evening of the Incident
Detective Lisa Walker interviewed N.R. on the evening of April 18, 2006. According to Walker, when N.R. began to describe the incident at Horton's apartment, N.R. brought her knees up to her chest and rolled herself into a ball. Walker testified that N.R. told her that she felt like she was partly responsible for what had happened. According to Walker, N.R. started blaming herself because she had had uneasy feelings about going with Penn.
Penn went to trial on charges of one count of sexual battery in violation of K.S.A. 21-3517; three counts of rape by force or fear in violation of K.S.A. 2005 Supp. 21-3502(a)(1)(A) with alternative counts of rape when the victim is incapable of giving consent in violation of K.S.A. 2005 Supp. 21-3502(a)(1)(C); one count of rape when the victim is incapable of giving consent in violation of K.S.A. 2005 Supp. 21-3502(a)(1)(C) with no alternative count; and one count of aggravated criminal sodomy by force or fear in violation of K.S.A. 2005 Supp. 21-3506(a)(3)(A) with an alternative count of aggravated criminal sodomy when the victim is incapable of giving consent in violation of K.S.A. 2005 Supp. 21-3506(a)(3)(C).
N.R.'s Testimony
Consistent with her earlier statements, N.R. testified that she told Penn several times during the incident that it hurt and to stop. N.R. testified that she never yelled for help during the incident, but that she was hurting and was crying inside. N.R. testified that she did not agree to have sexual intercourse with Penn.
Additional Evidence by the State
R.H., who was N.R.'s foster mother from February 2006 to July 2006, testified that N.R. never told her that she had agreed to any of the sexual activity with Penn. According to R.H., N.R. was lower functioning, had a hard time understanding what people were communicating to her, and had the maturity level of a 13- or 14-year-old child. R.H. testified that N.R. had been on several different medications, one of which was for hallucinations, when N.R. lived with her. According to R.H., N.R. was impressionable and wanted the boys to like her but did not know how to accomplish that.
Penn's Testimony
During his testimony at trial, Penn admitted that he and N.R. had engaged in sexual intercourse at Horton's apartment on April 18, 2006. Nevertheless, Penn testified that the sexual intercourse was consensual and that N.R. had initiated the sexual activity. According to Penn, while they were waiting for Horton to pick them up at the grocery store, he and N.R. were flirting and hugging each other. Penn testified that he asked N.R. if she had ever been intimate with anyone and she responded that she had not. Penn further testified that he asked N.R. if she was curious about doing anything intimate and that N.R. had responded that she was very interested.
According to Penn, after they arrived at Horton's apartment, he asked N.R. if she wanted to see Horton's artwork. Penn then walked upstairs, and N.R. followed him. Penn sat on a folding chair, and N.R. came over and sat on his lap. Penn then put his arm around N.R.'s waist, and they started kissing. Penn testified that N.R. put her hand on his jeans in the area of his penis. According to Penn, N.R. got on her knees and he pulled his penis out of his jeans. Penn testified that N.R. then grabbed his penis.
Penn testified that he asked N.R. if she was still interested in having sex with him, and N.R. responded, "Sure." Penn then asked N.R. whether she was a virgin by lack of opportunity or because she wanted to remain a virgin. According to Penn, N.R. responded that she had never had the opportunity. Penn told N.R. that she had lots of opportunity now and asked what was holding her back. N.R. responded, "Nothing." According to Penn, he told N.R. that they could not have sex with their clothes on, so N.R. took off her clothes. Penn testified that he then engaged in sexual intercourse with N.R., first on top of her, then underneath her, then behind her, and then on top of her again. Penn testified that he never penetrated N.R.'s rectum.
Penn testified that N.R. never told him to stop and never pulled away from him. Moreover, Penn testified that N.R. never indicated that he was hurting her. Penn testified that when he and Horton dropped off N.R. at school, he and N.R. hugged and kissed. Penn denied telling N.R. to remain quiet about the situation.
After a 3-day trial, the jury found Penn guilty of all the charges, including the alternative counts, except for the charge of aggravated criminal sodomy. The jury acquitted Penn of the charge of aggravated criminal sodomy. Penn was sentenced to a controlling sentence of 166 months in prison.
I. Did the trial court err in excluding evidence of N.R.'s dishonesty?
First, Penn contends that the trial court committed reversible error by preventing him from presenting opinion and reputation testimony of N.R.'s dishonesty, which violated his right to present a complete defense. Under the Kansas and United States Constitutions, a criminal defendant has a right to present the theory of his or her defense. The exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. State v. White, 279 Kan. 326, Syl. ¶ 3, 109 P.3d 1199 (2005). Whether a defendant's constitutional rights have been violated is a question of law over which an appellate court exercises unlimited review. See State v. Chambers, 36 Kan. App. 2d 228, 232, 138 P.3d 405, rev. denied 282 Kan. 792 (2006). Nevertheless, the right to present a defense is subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).
When reviewing a trial court's decision to admit evidence, an appellate court first determines whether the evidence is relevant. Once relevance is established, an appellate court applies the evidentiary rules governing the admission and exclusion of evidence as a matter of law or in the exercise of the trial court's discretion, depending on the contours of the evidentiary rule question. When the issue involves the adequacy of the legal basis for the trial court's decision, appellate courts apply a de novo standard. State v. Moore, 39 Kan. App. 2d 568, 583-84, 181 P.3d 1258, rev. denied 286 Kan. ___ (2008).
K.S.A. 60-420, which governs the admissibility of evidence affecting credibility, states:
"Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility."
K.S.A 60-422 limits the admissibility of evidence affecting the credibility of a witness. Some of the limitations under K.S.A. 60-422 are:
"As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible."
In State v. Lewis, 252 Kan. 535, 536-37, 847 P.2d 690 (1993), our Supreme Court explained the limitations imposed by K.S.A. 60-422:
"In substance K.S.A. 60-422(c) disallows proof of general bad or good character and limits character evidence impeaching or supporting a witness's credibility to the traits of honesty or veracity or their opposites. K.S.A. 60-422(d), on the other hand, limits the manner of proving such character traits as affecting the credibility of a witness by disallowing evidence of specific instances of the witness's conduct. This limits K.S.A. 60-446, which allows proof of character by opinion testimony and evidence of reputation.
"'Thus, a witness's credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness's past conduct. [Citations omitted.]'"
As explained in Lewis, K.S.A. 60-446 allows proof of character by opinion testimony and evidence of reputation. In addition, K.S.A. 60-446 allows evidence of specific instances of the person's conduct, but that is limited by K.S.A. 60-447:
"When a person's character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person's conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448." K.S.A. 60-446.
K.S.A. 60-447(a) limits the admissibility of evidence of specific instances of the person's conduct to those that resulted in a criminal conviction: "[E]vidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible."
Evidence Pertaining to N.R.'s Credibility
After the first trial had commenced in this case, the prosecutor turned over to defense counsel an email she had received from Jennifer Mackey, one of N.R.'s caseworkers from Youthville, concerning N.R. The prosecutor had emailed Mackey for help in ensuring N.R.'s appearance in court. A portion of the response email from Mackey read as follows:
"[N.R.] is one of the greatest manipulators, and has learned that she can lie and make up accusations to get her way. It has worked for her every time.
"I don't mean to sound harsh, but this girl has done so many things to harm other people's life, and she has no remorse. It is all about [N.R.]
"[N.R.] is not as slow and as needy as she comes across. She plays that a great deal. She knows what she is doing. She is lazy and wants to do what she wants for attention.
"Myself and my colleague ha[ve] had her on our caseloads for over three and-a-half years, so we know this kiddo well."
The trial court granted a mistrial in order to give defense counsel sufficient time to adequately investigate the new development. The second trial was then held several weeks after the mistrial occurred.
Several days before the second trial, the trial court held a nonevidentiary hearing to determine the admissibility of testimony from Mackey and Amanda Pope, another one of N.R.'s Youthville caseworkers, to discuss the contents of the email. Penn argued that the email fell under opinion testimony and evidence of reputation. Determining that the email was inadmissible, the trial judge stated:
"I'm not going to allow it. Here's why. Because the employees at Youthville are basing their comments on what other people have said to them.
"Believe me, having been a foster parent for many years, I know that very little of the firsthand information, very much of the information that these people get is not firsthand.
"I will certainly consider testimony that these people may have based on their own personal observation. But conclusions based on hearsay, . . . are definitely not admissible."
In responding to the trial court's ruling, Penn told the trial court that Mackey and Pope would be testifying only about their personal interactions with N.R.:
"[Defense counsel:] And what we're offering is, they wouldn't be testifying as to any hearsay, they would be talking about their own personal interactions over that three and-a-half year time period with the alleged victim in this case.
"And we would ask for an opportunity to proffer that."
Noting that the proffer based on Mackey's and Pope's personal information would be allowed, the trial judge stated:
"I'll let him make the proffer, absolutely, but the proffer has to be made based on their own personal information, not on–this is just, it's a game of telephone where, you know, the stories get repeated over and over, and they lose their link to reality, I think, the more it gets repeated.
"So, if you want to proffer their testimony at the time of trial, then, yes, I will definitely allow that."
On February 27, 2007, the first day of the second trial, the trial court held a proffer hearing outside the presence of the jury. At the hearing, Mackey testified that she had been at Youthville since November 2005. Nevertheless, it was not until June 2006 that N.R. became a part of Mackey's caseload. Mackey testified that she was N.R.'s caseworker from June 2006 to January 2007. While she was N.R.'s caseworker, Mackey met with N.R. at least once a month and also spoke with N.R. by telephone at least six times each month.
Mackey testified about an incident in June or July 2006 where N.R. had made an accusation that her foster mother, R.H., had physically abused her and N.R. had run away from her foster home. According to Mackey, N.R. later told police and Mackey that she had made up the accusation because she wanted to get out of that foster home and live where there were horses.
Mackey testified that N.R. had made statements to her that she knew how to get what she wanted. Mackey further testified that other foster parents had reported that N.R. had bragged about being able to manipulate and lie to get her way. The State presented a July 2006 log from one of N.R.'s foster parents, which read in part: "[N.R.] bragged to the other girls she knows how to manipulate people. She told numerous lies to everyone in our home and everyone was very upset with her. A few of us confronted her and told her how wrong she was."
Mackey further testified that in December 2006, N.R. had made an accusation that the 33-year-old boyfriend of her foster mother had tried to touch her. According to Mackey, N.R. later decided that she was not upset about the incident. Nevertheless, Mackey admitted that she had never personally discussed this incident with N.R. Mackey also stated that N.R. had been assigned a new life skills worker who was male, but that "it was staffed that we needed to move him off of it because we were scared of accusations being made against him." Mackey testified that N.R. was then moved to a female life skills worker.
Mackey further testified that N.R. comes across as being slow, but that N.R. was not mentally impaired. Nevertheless, on cross-examination, Mackey admitted that a psychological evaluation in N.R.'s case file showed that N.R.'s IQ was in the below average range and indicated mild mental retardation.
Mackey testified that her opinion was that N.R. made false accusations on several occasions. Nevertheless, on cross-examination, Mackey conceded that her opinion was not that N.R. was generally untruthful:
"[Prosecutor:] When asked about your opinion to her truthfulness, your answer was: She makes false accusations on several occasions. Not that she is generally untruthful, isn't that correct?
"[Mackey:] I guess."
Mackey admitted that she could identify only two specific occasions where N.R. had been untruthful and that both were after April 18, 2006. One of those occasions was when N.R. had run away from her foster home, and the other was from the July 2006 log from one of N.R.'s foster parents. Further, Mackey acknowledged that she was not a part of the community in which N.R. lived.
Pope testified that she had been N.R.'s casewo