ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 01-187

November 28, 2001

RODNEY MILLER SR. APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

At a bench trial Rodney Miller Sr. was found guilty of second-degree battery and permitting child abuse of his four-year-old son, R.M., and was sentenced as a habitual offender to serve forty-five years in prison. Miller argues on appeal to this court that the trial court erred in permitting Dr. James Swindoll to testify as an expert witness on the diagnosis and treatment of physically and sexually abused children. We disagree and affirm.

After summer visitation with appellant, R.M. returned home with two black eyes, a scarred neck, an injured finger, bite marks,and scratches. Kristie Hollis, the boy's mother, stated that R.M. told her that appellant and appellant's girlfriend had bitten him. R.M. was five years old at the time of trial, and he testified that his father and LaChandra, the girlfriend, had bitten him and that his father had held him down while LaChandra bit his penis. R.M. stated that they had put "a string" around his neck and that his father had made him drink beer. In a taped statement introduced into evidence, appellant attempted to explain each and every mark on the child's body. In a later statement to police, appellant said that his girlfriend admitted harming the boy.

Dr. James Swindoll testified that he is a second-year resident physician at Arkansas Children's Hospital. He stated that he was doing a pediatric residency where he does both in-patient and out-patient work. In the in-patient setting, he dealt with a variety of general pediatric problems and also worked in the intensive care units, including the neonatal and pediatric units. In the out-patient setting, he testified that he worked in a general pediatric clinic as well as the emergency room where he would care for abused children who were admitted to the hospital. Dr. Swindoll testified that he had had specialized training through Dr. Jerry Jones at the Children's House where the Team for Children at Risk works in dealing with physically and sexually abused children. He stated that the training included lectures and the viewing of videos and photographs. During voir dire examination by defense counsel,Dr. Swindoll stated that he had started his internship on July 1, 1999, and that the rotations he spoke of actually occurred during his fourth year of medical school. He agreed that he had less than a year of experience in actually seeing patients.

After the trial court ruled that Dr. Swindoll was qualified to testify as an expert on the physical and sexual abuse of children, Dr. Swindoll testified that he examined R.M. on July 29, 1999, in the emergency room. He testified that the boy had dark circles or bruising under both eyes, an abrasion on his cheek, and cuts and bruising on his neck that were consistent with a ligature injury. It was Dr. Swindoll's opinion that there was a substantial likelihood of death had the activity causing the ligature injury been prolonged. Dr. Swindoll testified that R.M. had a healing abrasion on his shoulder, had scratches on his back, and had red bruises on his abdomen. He stated that the boy had lesions on both arms and had ulcerated lesions on his forefinger and buttocks. Dr. Swindoll said that the ulcerated lesions, which were deep and shallowed out, appeared to be consistent with cigarette burns. He also testified that there were ulcerated lesions and scabbing on the boy's penis and that, because of the linear pattern, they appeared to be bite marks. Dr. Swindoll stated that the lesion on R.M.'s finger was also consistent with a bite mark.

Arkansas Rule of Evidence 702 provides that if scientific, technical, or other specialized knowledge will assist the trier offact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of that discretion. Breslau v. McAlister, 72 Ark. App. 124, 35 S.W.3d 321 (2000).

Appellant argues that the trial court did not err in permit ting Dr. Swindoll to testify that he observed injuries on the boy when he examined him on July 29, 1999, but that the trial court erred in allowing Dr. Swindoll to characterize those injuries as a "ligature injury," "cigarette burns," and "bite marks." Appellant points out that Dr. Swindoll had been a pediatric resident for less than a month when he examined the boy and that his training was not exclusively in areas of pediatrics having to do with child abuse. We do not agree that the trial court abused its discretion in allowing Dr. Swindoll to testify as an expert. The trial court could reasonably have found that Dr. Swindoll had acquired enough expertise by the time of his trial testimony, whether or not he was qualified to draw such conclusions at the time he examined R.M. in the emergency room. See Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (Ark. App. 1980). It was for the court to determine whatweight should be afforded Dr. Swindoll's testimony in light of his experience.

Affirmed.

BIRD and ROAF, JJ., agree.