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                SUPREME COURT OF ARKANSAS
                                     No.   CR-12-1129

JAMES E. MONTGOMERY                             Opinion Delivered   March 20, 2014
                   APPELLANT
                                                APPEAL FROM THE GREENE
V.                                              COUNTY CIRCUIT COURT
                                                [NO. CR-08-129]

STATE OF ARKANSAS                               HONORABLE BARBARA HALSEY,
                                APPELLEE        JUDGE

                                                REVERSED AND REMANDED.


                         PAUL E. DANIELSON, Associate Justice


       Appellant James Montgomery appeals from the order of the circuit court denying his

petition for postconviction relief that he filed pursuant to Arkansas Rule of Criminal

Procedure 37.1 (2010). Montgomery was convicted for the rape of his granddaughter, K.M.,

who at the time was six years old. He was sentenced to twenty-five years’ imprisonment in

the Arkansas Department of Correction; the court of appeals affirmed his conviction and

sentence. See Montgomery v. State, 2010 Ark. App. 501 (Montgomery I). Following his appeal,

Montgomery filed a timely petition for postconviction relief, which the circuit court denied

without holding a hearing. Montgomery appealed the circuit court’s order of denial, and this

court affirmed in part and reversed and remanded in part for a hearing because it was not

apparent from the face of the petition or the record that Montgomery was not entitled to

relief on some of his claims. See Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189

(Montgomery II). In accord with our mandate, the circuit court held a hearing on those Rule
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37 claims of Montgomery’s specified in our opinion and entered its order denying him relief.

Montgomery now appeals that order and asserts two points on appeal: (1) that the circuit

court erred in its finding that his trial counsel did not render ineffective assistance of counsel

when counsel failed to object to various witnesses’ testimony that he claimed improperly

bolstered the child victim’s credibility, and (2) that the circuit court erred in its finding that

his trial counsel was not ineffective for failing to object to inadmissible testimony regarding

the behaviors of child sexual-abuse victims. We reverse and remand for a new trial.

       This court does not reverse the denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. See Golden v. State, 2013 Ark. 144, ___ S.W.3d ___. A

finding is clearly erroneous when, although there is evidence to support it, the appellate court,

after reviewing the entire evidence, is left with the definite and firm conviction that a mistake

has been made. See id. In making a determination on a claim of ineffective assistance of

counsel, this court considers the totality of the evidence. See id. Our standard of review

requires that we assess the effectiveness of counsel under the two-prong standard set forth by

the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). See

id.

       In asserting ineffective assistance of counsel under Strickland, the petitioner must show

that counsel’s performance was deficient. See Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

This requires a showing that counsel made errors so serious that counsel was not functioning

as the counsel guaranteed the petitioner by the Sixth Amendment. See id. The reviewing

court must indulge in a strong presumption that counsel’s conduct falls within the wide range


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of reasonable professional assistance. See id. The defendant claiming ineffective assistance of

counsel has the burden of overcoming that presumption by identifying the acts and omissions

of counsel which, when viewed from counsel’s perspective at the time of trial, could not have

been the result of reasonable professional judgment. See id.

       In order to satisfy the second prong of the Strickland test, the petitioner must show that

counsel’s deficient performance prejudiced the defense, which requires showing that counsel’s

errors were so serious as to deprive the petitioner of a fair trial. See id. In doing so, the

petitioner must show that there is a reasonable probability that the fact-finder’s decision would

have been different absent counsel’s errors. See id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the trial. See id.

       For his first point on appeal, Montgomery argues that the circuit court erred in failing

to find his trial counsel, Mark Rees, ineffective, because Mr. Rees failed to object to

testimony that Montgomery contends served to improperly bolster the credibility of the child

victim.   Montgomery claims that he was prejudiced by the repeated, improper and

inadmissible opinions on the child’s credibility in that the case against him relied almost solely

on the credibility of the child victim. Montgomery challenges the circuit court’s findings

with respect to several witnesses. We conclude that Montgomery was prejudiced by his trial

counsel’s failure to object to certain testimony by Trish Smith, and it is on this basis that we

reverse and remand for a new trial.

       Here, Montgomery challenges the trial testimony of Trish Smith, a social worker at

Arkansas Children’s Hospital, who was questioned about the allegations by K.M. that


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Montgomery’s inappropriate touching of her took place while K.M. and Montgomery were

under a blanket watching television, with K.M.’s grandmother sitting on the other side of

Montgomery:

       PROSECUTOR:         Well, let me ask you, Trish, based upon your experience in
                           dealing with victims of sexual abuse and [K.M.] is telling you a
                           scenario about how it’s her, it’s the alleged perpetrator, and then
                           this other lady. Is that believable? Is that plausible on any other
                           cases that you’ve ever worked that involved digital penetration
                           or any type of sexual abuse?

       MS. SMITH: Well, it doesn’t require a whole lot of motion or even necessarily to
                  take her clothes off. He could have been reaching inside of her pajamas
                  or her panties without disturbing anything else while you’re watching
                  TV.

       PROSECUTOR:         Anything about the incident that she describes about that
                           occurring, anything to cause you to believe that, that is not real,
                           that could not have happened just because of another person
                           being in possible close proximity?

       MS. SMITH: No. And I don’t know that grandmother was awake, I mean, that she
                  was present. She could have fallen asleep. I don’t know. And I don’t
                  know that [K.M.] knew.

He also takes issue with Ms. Smith being questioned regarding her thoughts on whether

K.M.’s mother, Vonda Montgomery, had coerced K.M. into making the allegations against

him:

       PROSECUTOR:         Based upon your conversation that you had with the mother, do
                           you feel that she in any way coerced the child into the statements
                           that she made to you?

       MS. SMITH: No. I don’t think she did and [K.M.] didn’t act like this was anything
                  that was coerced at all.




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       Montgomery asserted that Mr. Rees should have objected in each instance.1 At the

Rule 37 hearing, Mr. Rees acknowledged that there was “probably some opinion [testimony]

in there” about both the credibility of the accusations and “how people generally respond in

child abuse cases.” He testified that, at the time, he was under the assumption that Ms. Smith

could testify “to her opinion and to what the child told her” pursuant to a pretrial ruling by

the circuit court. He admitted that he did not object to the testimony. In addition, Mr. Rees

testified that he did not know if “opinion evidence of coercion” was admissible. In its order,

the circuit court found that Mr. Rees’s failure to object to Ms. Smith’s testimony on the basis

that it went to K.M.’s credibility was a matter of trial strategy.

       In order to demonstrate prejudice for a failure to object, Montgomery must have

submitted facts to support the proposition that Mr. Rees could have raised a specific,

meritorious argument and that failing to raise that specific argument would not have been a

decision supported by reasonable professional judgment. See, e.g., Lambert v. State, 2012 Ark.

150 (per curiam). Relying on the decisions of this court in Buford v. State, 368 Ark. 87, 243

S.W.3d 300 (2006); Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000); and Logan v.

State, 299 Ark. 255, 773 S.W.2d 419 (1989), Montgomery claims that this court has deemed

inadmissible any testimony by a witness that expresses an opinion on the truthfulness of other

testimony, such as the testimony by Ms. Smith.

       This court has consistently recognized that an expert’s or a witness’s testimony opining


       1
         We note that while Mr. Rees received assistance from another attorney with
Montgomery’s case, Mr. Rees served as lead counsel, and Montgomery’s allegations of
ineffective assistance are directed toward Mr. Rees’s representation only.

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or directly commenting on the truthfulness of a victim’s statement or testimony is generally

inadmissible. See, e.g., Keck v. State, 2012 Ark. 145; Buford, 368 Ark. 87, 243 S.W.3d 300;

Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Logan, 299 Ark. 255, 773 S.W.2d 419.

See also Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541; Cox v. State, 93 Ark. App. 419,

220 S.W.3d 231 (2005). The rationale behind this rule is that such testimony invades the

province of the jury. See, e.g., Buford, 368 Ark. 87, 243 S.W.3d 300. Indeed, the jury alone

determines the credibility of the witnesses and apportions the weight to be given to the

evidence. See id.

       At first blush, Ms. Smith’s testimony regarding K.M.’s allegations might not appear to

directly comment on K.M.’s credibility or truthfulness; however, a closer inspection reveals

that her testimony not only conveys Ms. Smith’s opinion that K.M.’s version of events was

conceivable or possible, but that K.M.’s allegations were believable as well. In other words,

the “essence” of Ms. Smith’s testimony is that she thought that K.M. was telling the truth.

E.g., Logan, 299 Ark. at 257, 773 S.W.2d at 420 (holding that it was clear from the

hypotheticals posed to the doctor-witnesses that the doctors were informing the jury of their

opinions that the victim was telling the truth). Similarly, Ms. Smith’s testimony that she did

not believe K.M. had been coerced by her mother can only be considered an opinion

pertaining to K.M.’s credibility.

       In light of our precedent, it is clear to this court that Mr. Rees could have raised a

specific, meritorious argument as to Ms. Smith’s testimony set forth above and that

Montgomery has therefore met the first requirement of Strickland by showing that Mr. Rees’s


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performance was deficient for failing to do so. Mr. Rees’s testimony at the Rule 37 hearing

makes evident that his failure to object was not a matter of trial strategy as the circuit court

found but was the result of his misunderstanding of the circuit court’s pretrial ruling regarding

Ms. Smith’s testimony and his incognizance of this court’s prior decisions. Simply put, Mr.

Rees’s failure to raise the specific, meritorious argument was not a decision supported by

reasonable professional judgment.

       We further hold that Montgomery has also satisfied Strickland’s second requirement that

Mr. Rees’s deficient performance prejudiced Montgomery’s defense. We observed in

Montgomery II that Montgomery’s “case turned on the credibility of the child-victim.” 2011

Ark. 462, at 19, 385 S.W.3d at 203. See also Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391

(1987) (observing that the uncorroborated testimony of a child rape victim is sufficient

evidence to sustain a conviction). As such, we are compelled to conclude that, because Ms.

Smith’s testimony included her impermissible opinion on K.M.’s truthfulness and the

credibility of K.M.’s claims, there is a reasonable probability that the jury’s decision would

have been different absent Mr. Rees’s failure to object. Accordingly, it is on the basis of this

testimony by Ms. Smith that we reverse the circuit court’s order denying relief under Rule

37 and remand for a new trial.

       While Montgomery asserts other instances in which he claims that his counsel’s

assistance was ineffective, we need not address the merits of those claims, as we have already

determined that Montgomery is entitled to a new trial on the foregoing basis. See, e.g.,

Rackley v. State, 2014 Ark. 39; Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996).

       Reversed and remanded.

       Jeff Rosenzweig, for appellant.
       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.

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