EX PARTE HOPPER v. << (2025)

CONCURRING OPINION

Applicant seeks relief from his convictions for aggravated sexual assault of a child and indecency with a child. He claims, among other things, that he was convicted in part on false, material testimony given by the sexual assault nurse examiner about the age of the vaginal injuries she examined. The State and the habeas court agree that her testimony on this point was false and material, but the record shows neither falsity nor materiality.

According to trial testimony, the complaining witness told her school counselor on March 6, 2017, that at 2:36 that morning, Applicant—her stepfather—had digitally penetrated her vagina and touched her breasts. She underwent a sexual assault exam in the mid-afternoon of March 7, 2017, and again reported that she was last assaulted the day before at around 2:00 a.m. The sexual assault exam revealed a tear and two abrasions on her vagina. The nurse examiner, Amber Chancellor, testified that the injuries were consistent with the complainant's report of feeling pain on urination after the assault. Applicant makes no complaint about the foregoing testimony.

Rather, the disputed testimony concerned the age of the injuries. Chancellor testified that the injuries seemed to be less than 48 hours old; her supposedly false testimony consists of two excerpts italicized below and labeled “A” and “B.” In Excerpt A, Chancellor testified that the injuries appeared less than 48 hours old; in Excerpt B, she said that the injuries were reported to her to have been inflicted about 37 hours before the exam and that 37 is less than 48:

Q. [Prosecutor] I want to talk a little bit about timing. Are you able to definitively say when this trauma occurred?

A. In a healthy person, I can give you an estimate that usually says this was less than 48 hours ago or this has been longer than so many days.

Q. Okay. [A] And in this case, are you able to say whether this trauma occurred less than 48 hours or more than 48 hours?

A. They appeared to be less than 48 hours. The healing on the skin tear specifically because there was not a lot – of the whitening of the tissue around the tear that happens when it heals. It was fairly new.

Q. And what time did you conduct this exam?

A. Around 3:00 p.m.

Q. Okay. On March 7th?

A. 7th, yes.

Q. Okay. [B] It was reported to you that this trauma occurred sometime around 2:00 in the morning on March 6th. Correct?

A. Yes.

Q. Okay. By my math, that's about 37 hours; is that –

A. Correct.

Q. Less than 48 hours?

A. Correct.

The habeas court found the above excerpts false based on the affidavit of SANE Kim Basinger. But Basinger's affidavit does not support the falsity finding with respect to either Excerpt A or B. As detailed below, Excerpt A conforms to the type of testimony that Basinger said is acceptable for a nurse examiner to give, and Basinger did not challenge the accuracy of Excerpt B.

I will start with Excerpt B. Basinger did not suggest that Chancellor's testimony about the reported timing of the assault was false or that 37 is not less than 48. There is no evidence that Excerpt B was false. It warrants no further discussion.

As for Excerpt A, Basinger asserted three different things, the first implied and the second and third explicit. The implied assertion does not address the testimony given by Chancellor, and the explicit assertions are contradictory: one says that Chancellor's testimony was false, and the other says that it was not.

First, Basinger's implied assertion does not address Chancellor's testimony. Basinger said that she had been hired to give an opinion about whether a nurse examiner “can opine that an injury is at least 48 hours old based on its appearance[,]” and she implied that such an opinion would be false. But Chancellor did not offer such an opinion; she opined that the injuries were less—not more—than 48 hours old, and she supported her opinion not only by their appearance but also by the complainant's report of pain on urination. Basinger's suggestion that a SANE is out of bounds if she testifies that an injury is more than 48 hours old based only on the injury's appearance does not support a finding that Chancellor testified falsely when she testified to the opposite—namely, that the injuries were less than 48 hours old based on both their appearance and the report of pain.

Second, Basinger's explicit assertions are contradictory. Basinger explicitly asserted that “applying a specific time range to the age of an injury is not scientifically sound.” I will assume that “less than 48 hours” is a “specific time range” that she would deem out of bounds. If that is what she meant, she contradicted herself with her assertion that a nurse examiner may describe injuries and their locations “and can opine if the findings are consistent or not with the patient history.” In short, according to Basinger, a nurse examiner may testify that the injuries are consistent with the complainant's report that she suffered an assault less than 48 hours before the exam, but a nurse examiner may not say that the injuries seem to be less than 48 hours old.

If the injuries were consistent with an assault reportedly committed less than 48 hours before the exam, then the injuries appeared to be less than 48 hours old. If the former is not false, then neither is the latter. And for that same reason, the supposedly false testimony could not have been material, either.

The habeas court's findings about the falsity and materiality of Chancellor's testimony are not supported, but its findings about the remainder of Applicant's claims are supported, and I concur in the Court's judgment denying relief on all claims.