Appellant Lindo Omar Castillo was convicted of misdemeanor sexual abuse of a minor when he touched the breast of his fourteen-year-old stepdaughter, E.M.
I. Background
At two o’clock in the morning on December 25, 2010, Francisco Martinez called 911 to report that he had witnessed “something inappropriate” between appellant and Martinez’s fourteen-year-old sister, E.M. Sometime after the call, police responded to E.M.’s home at 1021 Lamont Street, Northwest, Washington, D.C., where she resided with her mother and appellant. Crying and appearing “hysterical” and “upset,” E.M. told Officers Diane Durham and Jose Gonzalez that her stepfather had grabbed her breast. Martinez also reported to Officer Gonzalez that he had observed appellant touch his sister’s breast. At trial, however, both siblings testified that they recollected little from the December 25th incident, claiming to have been intoxicated.
The evidence against appellant consisted exclusively of three accusations admitted into evidence under the spontaneous utterance exception to the hearsay rule: (1) E.M.’s report to Officer Durham; (2) E.M.’s report to Officer Gonzalez; and (3) Martinez’s report to Officer Gonzalez.
Officer Durham tеstified that she had been working a shift that started at 9 p.m. on December 24, 2010, and ended at 6 a.m. the following morning. Although she could not remember what time she arrived at E.M.’s residence, she testified that she responded within two minutes of receiving “a run from the dispatcher.” According to Officer Durham, Martinez was “calm [and] normal” when she arrived at the house. E.M., however, “was very upset. She was crying. She was hysterical.”
At this point, the government sought to introduce E.M.’s hearsay statements by probing, “what did [E.M.] tell you?” In response tо appellant’s objection, the government argued that “this is clearly an excited utterance.... [because Officer Durham] stated [that E.M.] was hysterical. [Officer Durham] arrived within minutes of the [dispatch].” The trial court sustained appellant’s objection because “[t]here has to be some temporal relationship between the state of excitement” and the alleged incident.
Officer Durham could not testify to an “exact time that [the incident] happened because [E.M.] didn’t give me the exact time.” To narrow down a time frame, the government asked Officer Durham whether she “learn[ed] from the complainant what day the alleged incident took place.” Officer Durham responded that it had happened on the night she “received ... the assignment, the 25th.” The government again sought to introduce E.M.’s statements, but appellant objected and argued that the temporal connection remained unsatisfied: “[A]ll we know now is ... [that] according to the witness[,] there was an incident. And at the time the police officer arrived, sometime thereafter, the witness was upset and hysterical.” Appellant added, “there is no evidence that ... her hysteria is a result of this incident.” Shifting its focus from whether there was a temporal connection between the event and E.M.’s statement to whether there was a causal connection, the trial court then instructed the government, “[t]hat [is] the link you need to make.”
To establish the causal link, the government elicited from Officer Durhаm that “[E.M.] was upset because she had a[n] incident that happened with her stepfather[,] the same incident that [Officer Durham] responded] to the call for.” Appellant objected that Officer Durham was speculating, and the trial court decided to “provisionally hear more detail” and allow the government to lay a foundation. As permitted by this ruling, the prosecutor then asked Officer Durham what E.M. said while she was “hysterical,” and Officer Durham replied, “[E.M.] stated to me that she was in the kitchen and her stepfather grabbed her breasts. Her brother saw it. And the stepfather ran out the rear door of the kitchen. And she continued to cry, and speak a little Spanish, and I just continued to try to calm her down [un]til[ ] we could get some translators.” The trial court overruled appellant’s objection and received E.M.’s report to Officer Durham as a spontaneous utterance.
B. Officer Gonzalez’s testimony
Officer Gonzalez also testified as the government’s witness. During his 9 p.m. to 6 a.m. shift, Officer Gonzalez reported to E.M.’s residence because he “was the only Spanish-speaking officer in the 3rd District” and was needed as a translator. Officer Gonzalez could not specify when he arrived at the house, except to note that it was before the arrival of another officer (not Officer Durham) who had responded to the scene.
1. E.M.’s report to Officer Gonzalez
When Officer Gonzalez arrived at the house, he first spoke with E.M.’s mother
On cross-examination, defense cоunsel elicited from Officer Gonzalez that E.M. reported the touching only after she had calmed down. “Before [Officer Gonzalez] had a conversation with [E.M.] about the details” of what happened, he “calmed her down.” Although E.M. continued to cry, “she was actually calmed down” at the time she reported appellant’s conduct to Officer Gonzalez. On redirect, however, Officer Gonzalez explained that when E.M. told him “I can[not] believe this is happening to me,” he said, “calm down, what happened?” “Right at that time,” E.M. told Officer Gonzalez that “her stepfather had touched her breast.” According to Officer Gonzalez, these statements were made in one uninterrupted conversation.
2. Martinez’s report to Officer Gonzalez
On direct examination, Officer Gonzalez also described his interaction with Martinez. When asked how Martinez had appeared, Officer Gonzalez stated: “[Martinez] was really upset. When I first got on the scene, he was constantly ... moving side by side inside the house.... [Martinez] told [another] officer that he broke the window because he was upset about what he observed in the kitchen.” The government then sought to elicit from Officer Gonzalez statements that Martinez had made about what he had observed. Over objection, the trial court allowed Officer Gonzalez to respond that Martinez had “stated that he observed his stepfather touch his sister’s breast in the kitchen and that’s why he was upset.”
On cross-examination, Officer Gonzalez testified that “at the time ... I told [Martinez] to calm down and evеn though he was upset ... he calmed down.” Martinez remained crying, but “he was [not] screaming like he was when [Gonzalez] first came into the house.” Officer Gonzalez further acknowledged that Martinez “was able to calmly tell [Gonzalez] what happened.” On redirect, Officer Gonzalez testified that Martinez made the statement about ten minutes after pacing around and screaming and that Martinez “was screaming ... to everyone that ... he was upset because he observed ... his stepfather touching] his sister’s breast.”
C. The Trial Court’s Findings and Ruling
The trial court credited both Officer Durham’s testimony and Officer Gonzalez’s testimony. Addressing the discrepancy between Officer Durham’s account of Martinez’s demeanor — he was “calm” — and Officer Gonzalez’s account — he was “really upset” — the trial court did not doubt its ability to credit Officer Durham because “we don’t know when she got there” and whether it was before or after Officer Gonzalez. The trial court reaffirmed its earlier ruling receiving E.M.’s statement to Officer Durham as an excited utterance.
In total, the trial court admitted three statements as excited utterances: (1) E.M.’s report to Officer Durham, “the essence of the words, ‘He grabbed my breast and he left afterwards,’ ” (2) E.M.’s report to Officer Gonzalez “that the stepfather grabbed the child’s breast,” and (3) Martinez’s report to Officer Gonzalez “that the stepfather grabbed the child’s breast.” Relying on these statements, the trial court found appellant guilty of the charge beyond a reasonable doubt. Appellant timely appealed.
II. Analysis
Appellant contends that the trial court incorrectly admitted E.M.’s and Martinez’s out-of-court statements as spontaneous utterances because the government adduced insufficient evidence to show that (1) the siblings were “in the state of nervous excitement necessary for a spontaneous utterance”; and (2) their declarations were made “within a short enough time of the alleged touching to prеclude reflection.”
“ ‘Because the decision whether a statement is admissible as a spontaneous utterance depends on the particular facts of each case and is thus a discretionary matter,’ ” we review such a decision for an abuse of discretion. In re L.L.,
A. The Hearsay Exception for Excited Utterances
If a party seeks to admit an out-of-court statement under the excited utteranсe exception to the hearsay rule, the statement must be “a spontaneous declaration, not only tending to explain the act or occurrence with which it is connected but also indicating a spontaneous utterance of a thought while under the influence of that act or occurrence, with no opportunity for premeditation or deliberation.” Brown v. United States,
(1) the presence of a sеrious occurrence which causes a state of nervous excitement or physical shock in the declarant, (2) a declaration made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon his statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.
Id. (internal quotation marks omitted).
The rationale underlying the exception is that the “utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection,” and thus the utterance is considered “particularly trustworthy.” Odemns,
In this case, the alleged sexual assault — and witnessing such an assault— certainly could be serious enough to cause a state of nervous excitement in the siblings. See Williams v. United States, 859 A.2d 130, 140 (D.C.2004) (“There can be no doubt that a sexual assault qualifies as [a] serious occurrence.”). And we are willing to assume, based on the testimony that the trial court credited, that E.M. was in a state of nervous excitement caused by the alleged groping when she mаde the statements to Officers Durham and Gonzalez.
The trial court was aware that a “temporal relationship” between the event and the statement was necessary, initially sustaining appellant’s objection because
“While the time element is not controlling, it is of great significance.” Odemns,
Neither Officer Durham nor Officer Gonzalez knew when the alleged groping had occurred. Officer Durham stated that it happened on the night she “received ... the assignment, the 25th,” but she was unable to further specify the timing. Though we do not mean to diminish the seriousness of the alleged incident, it was relatively minor compared with, for example, a gunshot wound, and thus we would be speculating if we inferred that it occurred close to the time Martinez called 911 at 2 a.m.
Here, we have a two-hour time span, at least, in which the event could have occurred and the statements could have been made, leaving plenty of time for reflection. Although E.M. was apparently “crying” and “hysterical” both when Officer Durham spoke with her аnd when Officer Gonzalez spoke with her, she could just as likely have “become distraught by reliving a traumatic experience,” and that would mean “she ha[d] reflected on the event” and “revived bad memories,” L.L.,
Rarely, if ever, have we upheld the admission of statements made more than one hour after the alleged incident, unless the declarant was a young child, see Odemns,
The uncertainty of timing is particularly important to the excited utterance inquiry in this case because the triggering event was a relatively minor assault. The seriousness of the startling event is relevant to the determination of whether the utterance occurred within a reasonably short period of time such that it was made spontaneously and without reflection. See Odemns,
In Odemns, we held that the admission of hearsay statements under thе excited utterance exception was error where de-clarant “was subjected to a frightening armed robbery” because the statements were made “an hour before she was interviewed” and not “immediately upon the hurt received.” Odemns,
We are even less convinced that Martinez’s statement to Officer Gonzalez constituted an excited utterance. On the 911 call, Martinez sounded calm, explaining the incident coherently and clearly and deliberately answering the operator’s questions.
The trial court no doubt thought carefully before admitting each statement as an excited utterance; indeed, a substantial portion of the trial was devoted to bench conferences discussing the admissibility of the statements. Nonetheless, the trial court’s “stated reasоns” for admitting the statements “do not rest upon a sufficient factual predicate,” and it was error to admit them. In re J.D.C.,
B. Harmless Error Analysis
Because the government cannot show that it is “highly probable” that the erroneously admitted statements did not contribute to the verdict, the trial court’s error was not harmless. Odemns,
For the foregoing reasons, the judgment of the Superior Court is
Reversed.
Notes
. D.C.Code § 22-3010.01 (Supp.2007).
. Gonzalez had known E.M. and her mother casually because he had a part-time job at a nearby supermarket.
. The trial court’s ability to reconcile Officer Gonzalez’s potentially inconsistent testimony by concluding that he likely meant ‘‘somewhat calmed down" when referring to E.M.’s and Martinez’s emotional states does not strike us as clearly erroneous. As the trial court reasoned, "in the context of those fast-moving events ... references to people being calm on cross-examination were kind of relative statements.” For reasons explained later, we are not convinced that, when he spoke to Officer Gonzalez, Martinez was "under the fresh emotional impact of a startling event” as opposed to reflecting upon what he had seen earlier. In re L.L.,
. In fact, Martinez did not call 911 from E.M.’s house, where the incident occurred, which tells us that the 911 call could not have been made immediately after Martinez observed the incident.
. Although the 911 recording was admitted for impeachment purposes only, "a trial court may rely on trustworthy hearsay in ruling on questions of admissibility.” Roberson v. United States,