*1 STEWART, case) J., participate court’s verdict criminal are not does herein; GREENWOOD, weight evidence, against the clear of the Court of Appeals Judge, sat. if appellate court otherwise reaches definite and firm conviction that a mistake verdict) made, findings (or
has been Walker,
will be set aside.” State v. (Utah 1987); Ashe,
P.2d State v. (Utah The find-
ings they will not be disturbed unless
clearly Coates, erroneous. Lemon v. (Utah 1987). P.2d This Court must Utah, STATE of Plaintiff and give regard opportunity due Respondent, credibility “trial court to 52(a). witnesses.” R.Civ.P. Utah Rule George LENABURG, Edward 52(a) applies in criminal cases virtue of Appellant. Defendant 77-35-26(7) Utah (Supp.1989). Code Ann. §
No. 860194. there Because is substantial ev Supreme Court of Utah. physical idence that the victim suffered injury after defendant entered or remained Sept. 1989. apartment unlawfully in her with the intent felony assault,
to commit a or an Utah 76-6-203(1) (1978,
Code Supp.1989), Ann. § “clearly
the fact finder was erroneous”
in convicting aggravated bur
glary. It to find was reasonable that de purpose upon illegal
fendant had the entry necessary commit an if assault order engage activity in sexual with the victim.
This intent was made manifest when he unlawfully
continued to remain on the
premises subsequently wrestled with
her, floor, her, choked threw her to the couch,
threw her on the and fondled her Further, finding
breasts. that defen
dant aggravated committed sexual assault 76-5-405(1) to Utah Code Ann. §
(1978, Supp.1989) supported by is well police
evidence. The officers’
concur with the victim’s that defendant victim, lying fondling on the her and
struggling with her. His conduct caused Therefore,
her bodily injury. finding erroneous,
not clearly and we will not dis appeal.
turb it on
Affirmed.
HALL, C.J., DURHAM and
ZIMMERMAN,JJ., and PAMELA T.
GREENWOOD, Appeals
Judge, concur. *2 Shumate, City, L. Cedar for defen-
James appellant. dant and Wilkinson, Dorius, L. Earl P. Salt David plaintiff respondent. City, Lake HOWE, Justice: Associate Chief George Lenaburg ap- Edward Defendant aggravated peals his conviction of sexual of a Ann. abuse Utah Code (amended, (Supp.1986) Supp. 76-5-404.1 § 1989), degree felony. a first Defendant shared a trailer home with Pace, Hunting, James Karen their infant son, five-year-old daughter. and Pace’s On 4, 1985, evening September Hunting away put from the home. Karen Pace was living in daughter her to bed room and then in her room. Defen- went bed own dant went to bed his room at the other later, Pace end of the trailer. Sometime daughter’s by her screams. was awakened defendant, she hold- She testified that saw ing living a knife in the room and her kitchen, “holding daughter, standing Drops of were on the herself.” blood bed, then kitchen tile. Pace went back having defendant told her she was took some medication a bad dream. She returning to bed. She testified before again by daughter’s her she was awakened screams, living and she ran to the room and daughter lying on the floor with saw her removed, pulled nightgown her panties kneeling De- up, over her. get up he after fendant claimed did evening presented going to bed psychotic Pace suffered from evidence that delusions. September the child was examined
On
Thorley,
physician’s assistant.
by Evan
vagi-
Barney
present for the
Paul
was
Dr.
Thorley found a recent
nal examination.
tear, approximately two millimeters
vaginal synechia. He also
length, in the
not intact. The child
hymen
found her
by Marjorie Schuldt of the
was interviewed
A
Family
Division of
Services.
following the
interview was made
procedures
against
outlined
Utah Code Ann.
to confront witnesses called
77-35-15.5(1)
(amended,
(Supp.1986)
him guaranteed by
as
the sixth amendment
Supp.1989).
subsequently
Defendant was
to the United States
Constitution
abuse,
charged
pretrial
sexual
and a
I,
article
section 12 of the Utah Constitu-
*3
admissibility
hearing
tape
on the
of the
tion. The denial of confrontation was
6,
January
1986. The trial
Brooks,
was held on
raised in State v.
Defendant first
In State v.
contends that admission
19 Utah
57 P.
(1899),
interview
him
denied
the defendant was convicted of
(Utah
Nelson,
State v.
daugh-
attempted rape
six-year-old
his
1986),
trial,
stated:
ter.
the child took the stand
we
At
tell,
said,
am
“I am afraid
right
The essence
confrontation
Id. at
P. at
my papa.”
afraid
accusing
opportunity to
wit
have
judge then
the defen-
542. The trial
seated
subject
in court and
to cross-exami
ness
courtroom, some
dant in
corner of the
nation,
credibility
so that bias
can be
witness,
twenty-four
from the
and had
feet
E.g.,
of fact.
evaluated
finder
jury
turn her chair toward the
witness
Anderson,
P.2d
State
see
The defen-
so that
could not
him.
she
(Utah
physically
If the
witness
de-
appeal
dant
on
that he was
contended
subject
cross-examination,
present and
guaranteed
nied
confrontation
*4
here,
as occurred
these values would
by
I,
12 of
article
section
the Utah Consti-
Jolley,
v.
See State
seem to be satisfied.
tution
he could neither hear nor
582,
(Utah 1977);
State
585-86
see
as she testified. This
the witness
276,
(Conn.
Mastropetre, 400 A.2d
281
conviction, stating:.
Court reversed his
Under the constitution and statutes
In a recent decision of the United States
right
the
the accused had a
to be
state
Iowa,
Coy
Court,
U.S.-,
Supreme
487
trial,
present
at the
be confronted
2798,
(1988),
108 S.Ct.
L.Ed.2d 857
an
him,
against
the
and to meet
witnesses
being
as
statute was struck down
in
Iowa
also had
his accusers face
face. He
right
violation of
defendant’s
con-
against
right
appear
and defend
guaranteed by the
frontation
sixth amend-
preferred against
him in
accusation
ment' of the
Constitution
United
person
and
counsel. He had
placing
States. The statute allowed the
witnesses,
right,
only
not
to examine the
and
screen between
child witness
into the face
witness
but to see
of each
so that the
could not
witness
see
him,
against
to hear
testifying
while
and
all,
the defendant at
the defendant
but
given upon
He
the stand.
through
dimly
hear her and
see her
could
seen, hear
right
had the
to see and be
All
the screen.
members of
heard,
reg-
and be
under such reasonable
right
by the
agreed that the
conferred
con-
By our
ulations as the law established.
A
clause was not absolute.
ma-
frontation
clearly
manifest
constitution it is
made
jority of the Court held that
the screen
that
shall
and con-
no man
be tried
impossible eye-to-eye
contact
in
and
demned
secret
unheard.
the two
the defendant and
child
between
Mannion,
512-13,
P.
State v.
19 Utah at
right of con-
was violative of his
witnesses
at 544.
frontation,
any
least in
at
the absence
only
justice
One
of this Court concurred
finding
the witnesses
that
individualized
expressed
opinion
in the
and
result
at-,
Id.
protection.
special
needed
only
right
confrontation includes
2803, 101
at 867. Two
at
L.Ed.2d
S.Ct.
prosecution
for the
are
that the witnesses
dissented,
justices
expressing that under
trial,
present
at the
examined
earlier
the Court’s
decision California
presence
hearing
and within
Greene,
158,
1930,
149,
90 S.Ct.
and
jury,
opportunity
an
accused
(1970),
the defen-
26 L.Ed.2d
for
afforded the defendant
cross-examina-
only
have the
entitled to
witness-
dant was
opined
right did
justice
tion. The
that the
subject
testimony given
oath and
es’
under
permitted
that the defendant be
include
cross-examination
to unrestrictive
immediately the witness
to sit
front of
opportunity
have
jury
ob-
have
intimi-
position
when
would cause
such
the witnesses in
serve the demeanor of
prevent
eliciting
dation
of testimo-
statements,
aiding
making their
thus
ny.
Id.
at
tends that
cross-examination
there and she told
“to
was
dispensed
properly
was
with because the
he
George
gun
She stated that
had a
“[a]nd
child victim
found
the trial court to
was
he had
all
shoot hisself
blood
[sic]
as that term is defined
be “unavailable”
continued, “And that’s
over.” The child
77-35-15.5(1)(h), quoted
subsection
above.
happened
just
and he was
about to
what
Ann. 76-5-411 makes a child
Utah Code
die,
along
Jenny.” The
then
came fat
child
statement admissible
victim’s out-of-court
George
continued that
had a “monster
qualifies
if the statement
as evidence
hand”;
George
then died but now he
77-35-15.5(1),
under section
sub
admission
mommy.
“turned back into
But he still
ject
judge
to a determination
sleeps
gun.”
with a
Further on in the
justice
will best be served
interest
interview, the child stated that defendant
the admission. Utah Code Ann.
77-35-
§§
wearing
then relat-
mask.
child
76-5-411(2).
15.5(1)(g),
making
that de
lay
ed that defendant
on her and when
termination,
required
to consid
did,
replied
asked
he
he
what
she
bit
age
maturity of the
er the
her with his mouth on her cheek and that
abuse,
nature and duration of the
the rela
got
he
legs
blood on both of her
with his
offender,
tionship
and the
*5
hands.
of the assertion and of the child. This
The child’s mother was a witness to the
statutory requirement
reliability paral
However,
incident.
she did not
requirement
reliability
lels the
laid down
defendant
gun
had a
or wore a mask.
Brooks,
539,
by
inus
State v.
638 P.2d at
by
child, along
Those statements
held,
where we
based on the United States
her, assertion that defendant had a monster
Supreme
Roberts,
decision in
Ohio v.
hand and that he died and
turned back
.then
66,100
2539,
448
at
S.Ct. at
65
U.S.
L.Ed.2d
mother,
into her
coupled with the state-
608,
hearsay
at
was admissible if the
ment
happened
long,
the incident
a
witness were unavailable but his out-of-
long
ago,
time
raise serious
doubts
our
reliability.
court statement bore indicia of
reliability
minds as to the
of the child’s
bar,
In the case at
the trial court found
Although
statements.
Mrs. Schuldt en-
expert opinion
adduced at trial that
explain
thought
deavored to
what she
the child was
as
unavailable
a witness be-
statement,
child meant
her fantasized
cause she would suffer serious mental and we
left
accuracy
are
with doubt as to the
required
emotional strain if
retell anyone
the child’s version
Taking
of the incident.
alleged
about the
incident
abuse. The
whole,
the child’s statement as a
think
we
court further determined that the interests
test,
that it fails the
and there-
justice
would be served
admission of
fore, it was error for the trial court to have
statement,
videotaped
which it found to
affording
admitted it into evidence without
giving
be reliable. After
due deference to
any right
of cross-examination.
findings
and conclusions of the trial
court,
agree
we cannot
that the child vic-
It
tape
follows that
was also
tim’s
can
statement
be viewed as reliable
inadmissible for the same reasons under
qualify
so
as to
admission without hav-
rules
of the Utah
ing
subjected to
been
cross-examination.
Evidence,
Rules of
which the trial court
days
was made two
after
separate
held formed
independent
Schuldt,
by Marjorie
incident
who was a basis for its admission. These rules re
protective services worker for the Utah
quire guarantees of trustworthiness which
Family
Division of
Services. After a
here,
lacking
unlike in State v. Robin
lengthy
subject,
lead into the
Mrs. Schuldt
son,
191,
(1987),
153 Ariz.
it, the evidence should be excluded under ZIMMERMAN, concurring opinion of J. general proscription in rule contained DURHAM, crimes, (dissenting): 404 that other Justice “[e]vidence wrongs prove or acts is not admissible to focusing I dissent. convinced am person in character order show primarily language on of Utah Code conformity that he acted in therewith.” 77-35-15.5, Ann. as the this briefs opinion majority The trial did court stated case and as has testimony done, important within was “not the ambit of therefore obscures the point testimony rule under that the 403.” Even circumstances of child victims specific may adequately where evidence of of con cases instances abuse be treated rules, Evidence, promulgated duct are allowed under the the trial the Utah Rules analyze this this may court should under Court. There exist a even type rule can legitimate question 'regarding legisla- 403.1 This be highly may power prejudicial evidentiary ques- tend to confuse ture’s to determine jury. the issues before the A careful tions statute in view of the revisions to weighing probative Constitution, of the relevance and article VIII of the Utah effec- 1, 1985, July value of such should made including and tive following struck language balance between the need for its 4: section prejudicial introduction and the effect the supreme adopt The court shall rules of testimony may have before such evidence procedure and evidence to be used McClain, is received. See State courts of legislature this state.... (Utah 1985); P.2d 604-05 State v. For procedure amend the rules of syth, (Utah 1982) 1176-77 evidence adopted supreme court (Stewart, J., concurring). upon a vote of two thirds all of members both legislature. houses reversed, Defendant’s conviction *7 the is for a case remanded new trial. case, issue That is not us in before this but
its existence underscores the wisdom of considering the interface this of statute HALL, C.J., concurs. evidentiary rules promulgated the ZIMMERMAN, (concurring): Justice Court. I will respond briefly majori- the to ty’s statutory analysis, but will also ad- I opinion concur in the of Justice Howe. questions dress the raised the under Utah I only express my point write to view on of Rules Evidence. majority correct- reached —the 77-35-15.5, ness trial court’s determination that protect- Section in addition to hearsay testimony could admitted ing be child’s mental and emotional well- being, child witness was “not avail- preserve protect to seeks court,” able to as that might term evidence that otherwise be rendered 76-5-411(l)(b) unavailable, used in occasionally section the Code. acts of I suffi- conclude the evidence was not defendant himself. Child victims sexual are, cient to demonstrate the child was group, unwilling abuse as a often “unavailable”; therefore, constitutionally Testifying confused witnesses. court hearsay reli- concerning past even if the evidence had been sexual abuse contrib- able, un- psychological it should not have been admitted ute trauma caused ini- issues, misleading 1. Rule of Evidence states: jury, Utah Rules or or consid- relevant, "Although may be excluded if time, delay, erations of undue waste of or need- probative outweighed substantially its by value is presentation less of cumulative evidence.” danger prejudice, of unfair confusion of admission of evidence preservation and may lead to reluc- tially by the abuse and only generally are inability testify. persons from who tance and ultimate type this of crime. first-hand witnesses to may prevent judicial process itself The testifying. are Courts mental of added While the avoidance According adults. designed by and for not alone be ade- strain to the child would the formalized psychiatrists, to some the defen- quate to allow a limitation on atmosphere, which tends to courtroom cross-examination, the de- right to dant’s truthfully, encourage adults men- causing a serious sire to avoid victim child, particularly a may intimidate the testimo- preservation plus tal harm crime. already traumatized child might unobtainable ny that otherwise be Despite attempts by judges and attor- circum- justifies some limits under some for a neys make accommodations right to cross-ex- stances of a defendant’s system the basic nature of circumstances, I Those amine victims. testify- change. The fear of difficult to think, very similar to circumstances surroundings is com- ing in formalized hearsay evidence is ad- under which other the defen- pounded the victim sees when mitted to the rules of evidence. the defendant threat- again. dant Often underlying Rules of philosophy The Utah harm if she ever tells ens the child with 803(24) supports the Evidence child, un- crime. The anyone about the may be consti- view that section 77-35-15.5 threats can aware that defendant’s videotaped tutionally applied and that the out, may change her longer carried no in this properly admitted Furthermore, testifying may testimony. judge specifically trial found case. The damaging as the psychologically be as videotaped the victim’s experience Consequently, on initial was. into evidence at trial could be admitted psychologists, the advice of counselors rules, as under under of these as well both to allow their child parents often refuse agree. Ann. 77-35-15.5. Utah Code goes unpunished to testify; the abuser sec- Although majority opinion treats harming the child further. avoid separate particu- tion 77-35-15.5 as a irony is obvious: of this situation exception on admission larized ban designed bring the system, abuser rules hearsay, an examination of justice, reality further abuses vic- 804(b)(5)provides an alter- established goes Additionally, tim. the abuser often the admission native method because, the child’s testimo- free without analyzed. The ad- videotape may be to convict ny, the evidence is insufficient videotape did not contravene mission of the him. opinion hearsay majority as the rule Note, Testimony Videotaping the an existing states, light proper but was Necessary Protection Abused Child: view, prop- my exceptions to the rule. *8 Compromise or the Child Unwarranted is to treatment of section 77-35-15.5 er Rights? Constitutional of Defendant’s the “catchall” ex- incorporating it as view (citations L.Rev. 464-65 1986 Utah apply- of ceptions in the rules evidence Note, omitted); Comprehensive A see also testimony. videotaped ing prior them to Hearsay Approach to Child Statements 804(b)(5) 803(24) pro- and rule Both rule Cases, 83 Colum.L.Rev. in Sex Abuse ex- exceptions evidence otherwise for vide (Nov.1983). Use of unconvention- 1749-51 of it falls within ambit cluded because al, obtaining of child vic- alternative means 803(24) excep- provides an hearsay. Rule permit to utilize tims’ can courts tion for totally might be that otherwise evidence specifically covered statement not as to useless. [a] unavailable or so confused be exceptions but hav- any foregoing use, properly restricted to en- when Such guarantees circumstantial ing equivalent reliability, public in the inter- sure is thus trustworthiness, if the court deter- that allow children est. Statutes (A) offered the statement is mines that or the fear of either the defendant without fact; (B) the of a material for as evidence atmosphere create a method courtroom rule; (2) hearsay the state- point probative on the tions is more statement evidence of a material any ment is “offered as offered than other it is for which fact”; (3) pro- that the statement is “more pro- proponent can which evidence point” any on the than other reason- efforts; (C) bative through reasonable cure evidence; (4) the admis- ably procured purposes of these rules general with “the of the statement is accord sion justice will best be the interests of purposes rules and general [the] of the statement served admission (5) notice is justice”; interests into evidence. used at given that the statement will be 804(b)(5) identically, but Rule is worded if requirements, In to these trial. addition the declarant is unavail- applies only when 804(b)(5), evidence offered under rule 803(24) able, may used to while rule be declarant must be shown to be unavail- regardless evidence of whether admit 804(b)(5). 803(24), able. Utah R.Evid. See available. declarant is requirements I believe that all of these exceptions to the hear- These “catchall” met in this case and that the video- were intended, used, say and should be rule were taped testimony properly admitted un- reliable evidence from prevent otherwise rule, “un- der either as the declarant was simply being from trial because it excluded meaning available” for trial within the specific excep- does not fit into one 804(b)(5). rule tions. I reach the conclusion that prior adop- decided [the cases] analysis was “unavailable” based on inde- Rules, the tion of the Federal admissibili- pendent of the of that term in definition ty hearsay evidence was resolved 77-35-15.5(l)(h), Utah Code Ann. al- assessing relevancy, need and though provides I believe that that section insisting compliance on with a instead of unavailability a method which particular exception. ap- class The same properly child victim determined. ruling prof- proach be used on should 804(a)(4) provides Utah Rule of Evidence 803(24). pursuant to Rule fers made that a witness is unavailable when the wit- Berger, 4 J. Weinstein & M. Weinstein’s present ness “is unable to be or ¶[ Evidence, 803(24)[01],at 803-372 to -373 hearing at the because of death or then (1988). analysis applies prof- This existing physical or mental illness or in- 804(b)(5), fers since the made under rule added.) firmity." (Emphasis believe only requirements rules differ their con- adequate was introduced at cerning availability of the declarant. infirmity” trial from which the “mental Although possibly provide could both rules this victim could be found. (when hearsay a basis for the admission of pretrial hearing At a on defendant’s mo- unavailable), the declarant is suppress videotape, expert tion to two conceivably Rule be relied will concerning the witnesses testified mental upon only more than Rule very young (five-year- trauma which the guarantees circumstances where of old) already victim had suffered as a result inordinately high, trustworthiness of the assault and the further trauma kind cross-ex- evidence is of a where forcing retestify her to could create. reliability, amination would not enhance testified, expert Marjorie The first who hearsay admitted in should evidence be Schuldt, the worker who conducted social *9 an individual case to Rule victim, videotaped interview with 803(24) if is available and the declarant forcing testified that the victim to appear. does not “seriously impact” would her. In answer Id. at 804-173. In order to introduce evi- questions concerning to defense counsel’s dence or impact under either rule on the child if counsel were to findings: (1) techniques the trial court must make question “using my five her testified, that style,” the statement has “circumstantial “I don’t Schuldt believe guarantees equivalent you of it.” Schuldt trustworthiness” she wants to tell about specific excep- “regardless to those of whether found the other also testified that
441
not,
wrongful procurement, he cannot com-
present or
the child
the defendant was
competent
if
to
severely impacted.”
plain
admitted
would still be
place
that
has
supply the
of
which he
Loveless,
Tony
also
expert,
The second
kept away. The Constitution does not
opinion
in his
testified that
person against
an
guarantee
accused
emotional or mental
would suffer serious
consequences of his own
legitimate
required
to
stress if she were
about
wrongful
grants
privi-
acts.
It
him the
again.
inter-
testing
incident
After
being
lege of
confronted with the wit-
victim,
viewing the
Loveless felt “at this
him;
against
voluntarily
if
nesses
but
he
it
to her
time that would be detrimental
away,
in-
keeps the witnesses
he cannot
her
emotional welfare to have
relive
privilege.”
on his
sist
sexual
He stated:
situation [the
abuse].”
Rice,
(quoting
F.2d
Reyn-
709
at 1102-03
had,
experiences that I’ve
...
In the
olds,
98 U.S. at
rehashing
reliving
negative
or
ex-
Rice,
In
defendant’s
perience causes them
of sexual
associates
[victims
keep
him
develop
to
an attitude
them-
threatened the witness
order to
about
abuse]
I
point,
testifying
at trial.
trial court
selves .... At this
believe
going through
healing pro-
this
that this
exception
she’s
found
satisfied
reliability”
if
of
think that
it were
that “indices
surrounded the
cess ....
evidence;
again,
therefore,
dredge up
that she would have a
a state-
evidence of
tougher
dealing
get-
previously
time
with
that the
had
it and
ment
witness
ting
despite
it.
at trial
police
over
admitted
opportunity
lack of an
for the
defendant
observations,
upon
it was
Based
these
cross-examine the witness.
Loveless’s recommendation that the victim
required
appear
court
not be
before the
Carlson,
In United States v.
547 F.2d
and retell
account
sexual abuse
(8th Cir.1976),
Eighth
Circuit
of its
effect on her emo-
adverse
Appeals
Court
stated:
recovery
tional
and health. This
The Sixth Amendment
not stand
does
a
un-
supports
finding
“unavailability”
protect
as a shield to
accused from
804(a)(4).
der rule
chicanery....
‘A
his own misconduct
ought
recognized exception
right
A
defendant who murders witness
permitted
right
invoke
confrontation witnesses exists when the
not be
procured
prohibit
himself has
the “ab
the use of his
defendant
confrontation
Graham,
Right
exception
“The
sence” of
witness. “One
accusation.’
[to
Hearsay
Rule: Sir
is where it
Confrontation and the
confrontation]
One,” 8
Raleigh
has
Walter
Loses Another
found
defendant
occasioned
(1972).
Similarly, by threat
the witness’ silence
of violence
Crim.L.Bull.
strong
the'
coupled
of ‘other
should not
afforded
existence
clause if
surrounding
protection
evi
of the confrontation
indices of
”
Marshall,
silencing a
objective of
Rice
709 F.2d
he achieves his
dence.’
drastic,
effec-
(6th Cir.1983)
equally
but
(quoting Mayes
witness
less
Sow
have
ders,
(6th Cir.1980)). The
means.
would
F.2d
tive
defendant]
[The
had
to confront
been able
witness]
court
noted:
[the
Reynolds United
[1878]
the U.S.
States,
Supreme
he not taken
ness’s]
“unavailability” at trial.
steps to
assure [the
wit-
recognized
([1978])
25 L.Ed.
determined that
at 1359. The court
Id.
protect
did not
confrontation clause
in fa-
policy
weighed
public
considerations
consequences of suc-
defendant from the
finding
that an accused waived
vor
of a witness:
cessful intimidation
had
when his actions
right to confrontation
witness
inability
to confront the
gives
“The
the accused caused
Constitution
permit
profit
“To
the defendant
right to a
at which he should be
at trial.
trial
*10
contrary to
would be
against
from such conduct
confronted with
witnesses
under-
him;
sense and the
public policy,
if
common
but
a witness
absent
purpose
such
lying
they
of the confrontation clause.”
assertions. But
should not be
precluded
determining
Id.
child
legitimately
witness is
rea-
unavailable
I
policy
believe that the same
issues and
son of
or mental
infir-
emotional
illness or
analysis may apply
some
cases where
mity,
majority
sug-
as I
opinion
believe
prior videotaped testimony of
child vic-
gests.
sought
of sexual abuse is
to be admit-
tims
place
at
presence
ted
trial
child’s
opin-
disagree
majority
also
with the
assuming
testimony,
live
there are
and
suf-
remaining require-
ion’s conclusion that the
reliability.
indicia of
The victim’s
ficient
ments for admission under rule
(even
unavailability
inability
absolute
in were
not met. It
clear that the testimo-
cases)
is sometimes a
some
direct
ny was offered as evidence of a material
shame, humiliation,
result of the
and se-
fact.
It
clear
is also
it
more
trauma
psychic
physical
vere
and
that sex- probative
point
on the
for which it was
exploitation
young
assault and
cause in
ual
any
offered than
other
damaged
are so
children. Some children
procured
could have been
vic-
because the
experiences
they
literally
their
tim was the
sole first-hand witness
de-
in public
unable to recount them a
setting
fendant’s
It
acts.
is less clear
strangers.
The mental trauma of the
tape
admission of the
inwas
the interests
act
initial
or acts of sexual abuse creates
justice
and that it demonstrated “circum-
inability
the child
or unwillingness
victim’s
guarantees
stantial
of trustworthiness.”
testify. Although
some cases the However,
balance,
upon
I believe that the
keep
may overtly
defendant
the child from videotaped testimony met both
these
testifying by threatening
her,
him or
in requirements.
inability
most cases the
of the witness to
Although
responses given by
some
subtly
is more
associated with the
videotaped
may
victim in her
interview
defendant. The
alone
abuse
is often
clarification,
explanation
have needed
as
enough
child,
traumatize
and the
observes,
the majority opinion
the testimo-
recounting of
or the
the abuse
reconfronta-
ny was on the whole consistent
may
of the defendant
be so emotional-
tion
fluency
five-year-
any
and articulateness of
ly disturbing
keep
as
child from
old. It
ways
was in all contextual
reliable.
Thus,
testifying
may
at
it
all.
be that the
While some statements included in the in-
defendant’s
only
criminal conduct not
emo-
wholly
terview
not seem
logical to an
tionally harms the
but
some
adult, their
meaning
relevance and
were
cases assures that
the evidence of the
explained by the social worker
inter-
who
crime
light
will never come to
in the court-
viewed the victim.1 The technical trust-
room. The
in such
cases has
videotaped
worthiness
successfully
witness,
silenced
just
as
was assured
surely
fulfillment of the re-
outright
as if
threats were used. Of
quirements
course,
of Utah
Ann.
Code
determination whether this is
77-35-15.5(l)(a) through (g).
in fact
hear-
the case will
After
factual one and
ing
dependent
will be
things
experts
on such
two
as the
reviewing
age,
pain
videotape,
child’s
violence
the trial
associated
assault,
with the
found that
were
temp-
and the child’s own
there
“sufficient
indicia
psychological disposition.
guarantees
erament and
Tri-
of trustworthi-
judges
readily
al
should not
pro-
accede to
ness in the information set forth in the
testations of
inability
testify.
tape
video
They
to allow the
admission
investigate
should thoroughly
tape
and test
video
under Rules
hearing
1. In
suppress
on the motion to
hap-
for the victim to state that the abuse had
Schuldt,
videotape,
worker,
Marjorie
the social
pened
long,
long,
long, long
ago
“a
time”
al-
testified that the
statements
though
only
the abuse in this case had occurred
concerning defendant and a “monster hand”
earlier,
days
two
as this demonstrated that the
and “monster mask" were consistent with state-
trying
put
victim was
event behind
ments often made
child victims of sexual
forget
it.
about
abuse. She also testified that it was not unusual
*11
Robinson,
Ariz.
Rules of Evi-
State
the Utah
of
(1987),
Supreme
the Arizona
P.2d 801
judge
The trial
further stated:
dence. ...”
hearsay state-
admission of
examined the
are
the can-
findings ...
on
based
[T]he
The
in a child sexual abuse case.
ments
witness,
forthrightness
the
and
of
dor
hearsay stat-
although
found that
the
court
intelligent,
under-
that she
the fact
the
ad-
under which
statements were
ute
wrong
is able to
stands
unconstitutional,
the state-
was
mitted
imaginary
the
from that
distinguish
rules
properly
were
admitted under
ments
real,
the
experiences
that the
which is
804(b)(5).
court deter-
The
are
realm of
describes
outside the
victim
spontaneity,
the
mined that
the victim’s
that
experience
young
of such
her
extent of
consistency
retellings,
of
the
ring
language the child
has the
used
acts,
knowledge
the cor-
her
about sexual
appropriate
a child of
and is
to
of truth
of
testimony,
and the lack
roboration of
young
too
to
age,
child is
guaranteed
for the victim to lie
a motive
for or the results
understand
reasons
of
Id.
trustworthiness
the statements.
assault, the
the Defen-
fact that
very
I think
Additionally,
811-12.
at
opportunity
to commit
dant had
noted,
young
court
“A
child’s
logically, the
crime,
young
inability
and the
of such
so unusual
spontaneous statements about
story
tell a
as she told
child to
such
personal experience, made soon after
the ex-
having
subjected
been
without
event,
as
the child’s
are at least
reliable as
in-
This list is
periences she described.
later,
testimony, given
af-
in-court
months
of some of
observations
dicative
interroga-
ter innumerable interviews
indicate
the Court which would
memo-
may have
the child’s
tions
distorted
reliability.
trustworthiness
The
that the
ry.” Id. at 814.
court found
Moreover,
judge’s
in addition to the trial
by admitting
justice
were served
ends
concerning the
demeanor
findings
victim’s
reliable,
probative evi-
type
highly
“this
physi-
testimony,
and the content of her
concluded,
at 812.
court
dence.” Id.
the reliabili-
supports
cal evidence of abuse
evidence,
“Fortunately, the
rules of
ty
videotaped testimony. Corrobora-
law,
in
origin
their
the common
have
relayed
was
tion of the events
enough
problem
meet the
flexible
provided by medical evidence that the vic-
I
at 813.
believe
child sexual abuse.” Id.
vaginal synechia
recently been
tim’s
had
that similar indicators of trustworthiness
testimony in
testimony
present in the victim’s
torn and
of the victim’s were
of her
case and
the admission
mother.
I believe that the trial
was
this
justice.
testimony
the interest of
concluding
testimony
was
correct
agree
trustworthy and
his assess-
was
error,
uphold
we
“In the absence
clear
ment of this factual issue.
underly-
judge’s factual
a trial
assessment
suppres-
grant
deny a
ing a decision to
was
Lastly, the admission of the evidence
Branch, 743 P.2d
sion motion.” State
justice. Although
the interests
(Utah 1987);
see also State
it
majority opinion concludes that was
(Utah
Bullock,
P.2d
means
there were alternative
find no
analysis, I can
Based on the above
gath-
which the
could have been
un-
in the factual assessment
“clear error”
would have allowed defendant
ered which
deny
judge’s decision to
derlying the trial
victim,
opportunity
an
cross-examine
rules
suppression
motion
expert
I
that the
believe
804(b)(5).
803(24) and
supports
adequately
in this case
witnesses
un-
videotape
was
the conclusion
witness
that the
therefore hold
would
any means.
As
under
evidence.
properly
available
admitted into
was
hearing
earlier,
the trauma
upon
pretrial
Based
the assessments of
at
noted
retelling
videotape
could be
likely
any
result from
whether the
determine
abuse,
admitted,
experts
as to the
surrounding the
the admis-
testified
events
two
“unavailability”
as defined
victim’s
sion of the
into evidence
child
77-35-15.5(l)(h).
testi-
From this
justice.
the interest of
section
*12
mony,
judge
that
improperly
by
the trial
concluded
the
occasion was
admitted
the
judge.
videotape
be
evidence trial
could
admitted into
at trial
the
“unavail-
and that
victim was
However, because I believe there
nowas
77-35-15.5(l)(h)
pursuant
able”
to section
in the
of the
I
videotape,
error
admission
forcing
due to
the fact
her
reach a
the
would
different conclusion on
would cause her serious emotional harm.
question of a new trial. When evidence
stated,
victim],
judge
The trial
if she
“[The
admitted,
been
trial
improperly
has
the
appear
person
were
in
required
judgment
appeal
court’s
will be reversed on
trial,
at the
suffer
emotional
would
serious
only when there is
likeli-
“reasonable
Therefore,
or mental strain.
[the victim]'is hood” that a different result would have
unavailable as a witness in this case.”
been reached had the evidence been exclud-
Marjorie
Schuldt
testified
Knight,
ed. See State v.
procedural requirements
technical and
(Utah 1987).
919-20
This Court has inter-
77-35-15.5(l)(a) through (g)
section
were preted this
as requiring
standard
reversal
met.
In light of the evidence that
whenever
error erodes confidence
seriously
testify-
victim would suffer
jury’s
verdict.
Id.
trial,
ing at
I
requirements
believe that the
I
believe
the error was harmless
videotape pursuant
inclusion of
given
jury-
this case. An instruction
77-35-15.5(1)
section
were also met and
purpose
clarified the
for which the rebuttal
properly
that the trial
ruled
on this
was to
evidence
be used.
Instruction No.
issue.
23 states:
Lastly,
properly
videotape
was also
[Ojther
by
evidence has been received
admitted
to the constitutional
the Court ...
rebutt
such evi-
[sic]
protection
right
standard for the
of the
good
dence of
reputation
character and
confrontation enunciated
the United
defendant, George
Edward Lena-
Supreme
Roberts,
States
Ohio
burg,
purpose only.
and for this
Stated
56, 63,
100 S.Ct.
way,
goes
another
such evidence
re-
(1980),
L.Ed.2d 597
adopted
and
this
good
butt
the evidence of
character
[sic]
Brooks,
Court in State
tified that *13 night since grandmother afraid victim was
abuse the abuse
staying in the trailer home where evi- presence of this
had occurred. record, the remedi- along with in the
dence instruction, supports jury impact of the
al verdict. jury’s in the
continued confidence
Therefore, admission of I believe that the harmless, and would
affirm defendant’s convictions. OSTLER,
Ralph Plaintiff and
Appellant, COMPANY, INC., TRANSFER
ALBINA Wheeler, Roe,
Stanley R E. and F &
Inc., Defendants, Third-Party Plaintiffs Respondents, Ostler, OSTLER, Stephen Gary K.
Wanda Ostler, Yyron Ostler, R. Dale F. Ost-
W.
ler, Ostler, Donnell B. Mae Sonda Ostler,
Ostler, Ralph Ostler, Brian L. O. Ostler, Ostler,
Carlyle Margaret E. Ostler, Stephen
Nathan J. as heirs of Ostler,
Ostler, Gary Ostler, Dale Cars, Ostler,
Eugene Third- Go d/b/a
Party Defendants.
No. 880228-CA. Appeals Utah.
Sept. 1989.
Rehearing Denied Oct. 1989.