TROY CHAUPETTE a/k/a TROY W. CHAUPETTE
STATE OF MISSISSIPPI
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/01/2012. TRIAL JUDGE: HON. PRENTISS GREENE HARRELL.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, bye: GEORGE T. HOLMES, PHILLIP W. BROADHEAD, THOMAS FORTNER, THOMAS SCHWARTZ, JOHN A. HOWELL.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.
BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, PIERCE AND COLEMAN, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Troy Chaupette was convicted of fondling his four-year-old great-niece. He appeals his conviction, alleging the trial court erred by: 1) allowing two fact witnesses to provide expert testimony; 2) permitting an improper comment on the victim's truthfulness; and 3) admitting cumulative, hearsay testimony from six witnesses under the tender-years exception. Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.
FACTS AND PROCEDURAL HISTORY
¶2. Following Hurricane Katrina, Troy Chaupette and his mother lived with his niece, Ann, and her four-year-old daughter, Claire, in a home owned by his sister and Ann's mother, Ellen., On October 16, 2005, Claire repeatedly hit her mother in the vagina while saying " what's that, what's that."  Concerned, Ann asked Claire where she had learned that behavior. Claire replied " Uncle Troy" and told Ann that
[Troy] came and got her out of bed one night, brought her into the bathroom and sat her on the toilet and scooted her down and placed one hand in his pants and the other hand -- his finger into her vagina, what she called a mini cat . . . . And then when he was done, he brought her back into [Ann's] room and placed
her in the bed and told her not to tell her mom, go back to sleep.
Claire also reenacted the event. After Claire fell asleep, Ann called Ellen, who advised her to lock the bedroom door and volunteered to contact the necessary authorities. In the morning, Ellen called the Department of Human Services (DHS). Lilly Crawford, a social worker with DHS, interviewed Claire two days later. During her interview, Claire told Crawford that
[H]er Uncle Troy had touched her mini, meaning her vagina area, with his finger. She held up her index finger showing [Crawford] which finger. When [Crawford] asked her whether or not the uncle touched her over her clothes or under her clothes, she stated that he touched her on the inside of her clothes that she was wearing. She stated that she was on the toilet when the incident occurred and that she had been sleeping. She stated that her mama was asleep at the time of the incident. She stated that no one else had ever touched her like that before. She also stated that the uncle didn't hurt her at that time.
Crawford also interviewed Ann and Ellen. Based on Crawford's interviews, DHS turned the case over to law-enforcement authorities. The day after their DHS interviews, Ann took Claire to see her pediatrician, Dr. Johanna Dupont. Dr. Dupont conducted an external examination of Claire's genitalia and found no physical injury. However, based on her discussion with Ann and Claire, she diagnosed Claire as being sexually abused. On November 11, 2005, Ann filed a molestation report with the Picayune Police Department. As a result, Officer Monica Jacobsen interviewed Claire, Ann, Ellen, and Troy. During her interview, Claire identified her vagina area as her " mini" and told Officer Jacobsen that " [h]er Uncle Troy came into the bedroom, told her it was wake-up time and picked her up from the bed, brought her into the bathroom and sat her on the potty and touched her mini." Claire also provided details regarding the color of the bathroom and what she was wearing at the time of the abuse. Following her investigation, Officer Jacobsen concluded that there was sufficient evidence to forward the case to the grand jury. In December 2005, Claire began receiving therapy from Deslie Banano. During therapy, Claire told Banano " [Uncle Troy] touched my mini. And while she did that, she pointed to her vagina. She said that he had brought her into the bathroom while her mommy was sleeping and had touched her " mini."
¶3. In addition to these witnesses, both Claire and Troy testified at trial. Claire identified Troy and testified that " [h]e got me out of my mom's bed and brought me to the bathroom while I was asleep . . . I woke up and I saw he touched my private part . . . [with] his finger."  Troy denied all the allegations against him and suggested that Ellen, his sister, made the allegations up because she was angry at him for talking to her ex-best friend. He also mentioned that he had participated in the investigation and that he consistently had denied all the allegations against him.
¶4. Troy was convicted of one count of child-fondling and received a fifteen-year prison sentence. Troy timely appealed and raised the following issues, which have been restated for purposes of clarity:
I. Claire's pediatrician and therapist were allowed to provide expert testimony without satisfying the requirements of Rule 702 of the Mississippi Rules of Evidence.
II. Claire's therapist was allowed to comment improperly on her truthfulness.
III Hearsay testimony from six witnesses admitted under the tender-years exception was cumulative and unfairly prejudicial.
¶5. Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.
LAW AND ANALYSIS
I. Expert Testimony from Dupont and Banano
¶6. Dr. Johanna Dupont, a pediatrician, and Deslie Banano, a psychotherapist, testified as witnesses for the State regarding their treatment of Claire. It is undisputed that neither was tendered as an expert witness. At trial, Troy objected to Dr. Dupont's diagnosis testimony and Banano's treatment testimony, claiming both were providing impermissible expert testimony without first being presented as experts. He raises the same argument on appeal.
¶7. A trial court's admission of testimony is reviewed for an abuse of discretion. " We give great deference to the discretion of the trial judge," and " unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, [the trial judge's] decision will stand."  Moreover, we " may reverse a case only if, the admission or exclusion of evidence results in prejudice and harm or adversely affects a substantial right of a party." 
¶8. " There is often a very thin line between fact and opinion" testimony. We find Dupont's testimony crossed the line from fact to opinion testimony when she offered her diagnosis of Claire. The question presented is whether this was a lay opinion pursuant to Rule 701 or an expert opinion governed by Rule 702. Before providing expert opinion testimony, a witness must be qualified, tendered, and accepted as an expert under Rule 702 of the Mississippi Rules of Evidence. In contrast, lay witnesses can provide opinion testimony only if it is " rationally based on the[ir] perception . . . [and] helpful to the clear understanding of the testimony or the determination of a fact in issue."  But if an opinion is based on scientific, technical, or other specialized knowledge, it can be admitted only under the guidance
of Rule 702 as an expert opinion. An opinion is based on " scientific, technical, or other specialized knowledge" if " the witness must possess some experience or expertise beyond that of the average randomly selected adult " to express the opinion. A physician can testify without being accepted as an expert regarding: 1) " the facts and circumstances surrounding the care and treatment of the patient" ; 2) " what his records about the patient reveal" ; and 3) " what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient."  However, a physician cannot testify about the significance of a patient's condition  or industry standards  without first being accepted as an expert. Troy argues that Dupont's diagnosis testimony and Banano's treatment testimony entered into the realm of expert testimony.
A. Dr. Johanna Dupont
¶9. Troy challenges the trial court's ruling which allowed Dr. Dupont to state that she had diagnosed Claire as sexually abused. The disputed testimony ...