State v. Eldredge, 20558

• Citation: 773 P.2d 29
• Decision Date: 01 February 1989
• Docket Number: No. 20558,20558
• Parties: STATE of Utah, Plaintiff and Appellee, v. Richard M. ELDREDGE, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 29

773 P.2d 29

STATE of Utah, Plaintiff and Appellee, v. Richard M. ELDREDGE, Defendant and Appellant.

No. 20558.

Supreme Court of Utah.

Feb. 1, 1989.

Rehearing Denied March 30, 1989.

Stewart M. Hanson, Jr., Michael W. Homer, Charles P. Sampson, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

ZIMMERMAN, Justice:

Defendant Richard M. Eldredge appeals from his jury conviction of four counts of sodomy on a child, in violation of section 76-5-403 of the Code. He makes several claims of error relating to, inter alia, the following: admission of the child victim's testimony and hearsay statements, exclusion of polygraph evidence and evidence of a witness's bias, sufficiency of the evidence, and failure to grant a motion for a new trial or an arrest of judgment based on exculpatory evidence discovered after trial. We affirm.

When Eldredge's son was two years old, Eldredge and the boy's mother, Suzanne Sanchez, separated and then divorced. Sanchez was awarded custody of their son, and Eldredge was granted visitation rights. At a hearing held a year and a half later, Sanchez unsuccessfully sought modification of the divorce decree to reduce the frequency of Eldredge's visits. Within a few months of the hearing, Sanchez reported to the sheriff's office that she suspected Eldredge of sexually abusing their son.

Shortly after that report was made, Thomas Harrison, a social worker and director of the Child Sexual Abuse Program in the Department of Psychiatry at Primary Children's Medical Center, interviewed the boy and concluded that he was probably the victim of sexual abuse. Harrison immediately reported this conclusion to the sheriff's office and began treating the child, which he continued to do for approximately one year.

Eldredge was charged and tried on four counts of sodomy on a child, a first degree felony. See Utah Code Ann. § 76-5-403 (Supp.1979). At trial, several witnesses, including the victim, the victim's mother, and Harrison, testified for the prosecution. The boy, then five years old, used anatomically correct dolls to demonstrate his testimony of oral sexual abuse. Although his testimony was somewhat confused and contradictory, the boy did state that he was telling the truth when he testified that Eldredge had committed the oral sodomy.

Sanchez testified that her son had exhibited bizarre behavior and symptoms of illness shortly after returning from various visits with Eldredge. Specifically, she said that on one occasion, the child told her to look at and taste his penis because it tasted good. And on several occasions after visits the boy demonstrated disassociative behavior such as lapsing into unresponsive states during which he removed all of his clothing and pretended to be a dog, appeared to be stunned, or sobbed uncontrollably. Immediately after visits, the child was often pale and vomited or had diarrhea, according to Sanchez's testimony.

Harrison testified that when he and the child discussed sexual abuse, the boy exhibited the same types of disassociative behavior and symptoms described by Sanchez. The child lapsed into various imaginary animal characterizations and expressly refused to be himself. He suffered from enuresis and encopresis (uncontrolled urination and defecation) and attributed his behavior to the imaginary animals. Harrison then discussed professional literature on child sexual abuse, compared the boy's behaviors and symptoms to those described in the literature, and concluded that they were consistent with the child's having been the victim of sexual abuse.

Harrison also testified that during their therapy sessions, the boy had described and demonstrated the physical acts of abuse by using anatomically correct dolls and had attributed the abuse to Eldredge. Harrison repeated various other out-of-court statements made to him by the boy, such as the child's description of Eldredge's erection and ejaculation. He testified that such a young child's ability to describe and demonstrate sexual acts strongly indicated personal exposure to and involvement in those acts and that in his opinion, the boy was the victim of sexual abuse. Finally, he testified that it was his opinion that the child's statements made during therapy were truthful, including his statements attributing the sexual abuse to Eldredge.

Several witnesses testified for the defense. Eldredge took the stand and denied the abuse. The jury found him guilty, in October 1984, on all four counts. The trial court sentenced him to four concurrent terms of imprisonment, each for five years to life, under the first degree felony sentencing provisions of the Code. See Utah Code Ann. §§ 76-3-203(1) (1978). Eldredge appeals. We will consider his claims of error seriatim.

Eldredge first asserts that the trial court's retroactive application of sections 76-5-410 and -411 of the Code ran afoul of the federal ban on ex post facto laws because it operated to narrow the scope of his federal constitutional right to confront the witnesses against him. ¹ See U.S. Const. art. I, § 10, amends. VI, XIV. Section 76-5-410 provides that a child victim of sexual abuse shall be considered competent to testify at trial without prior qualification. ² Utah Code Ann. § 76-5-410 (Supp.1983). Section 76-5-411 makes such a child's out-of-court statements regarding the abuse admissible if certain requirements are met, even if the evidence would otherwise be inadmissible hearsay. ³ Utah Code Ann § 76-5-411 (Supp.1983). Pursuant to these statutes, the child, who was five years old at the time of trial, testified and some of his out-of-court statements were admitted. Eldredge terms the trial court's reliance on sections 76-5-410 and -411 "ex post facto" because those statutes became effective after the crimes were committed but before the trial.

The first step in resolving this claim is to determine the scope of the federal constitutional prohibition against ex post facto laws. The United States Supreme Court has defined as ex post facto any law that operates to make criminal an act that was innocent when done, to increase the punishment for a crime after its commission, or to allow conviction on less proof in amount or degree than was required when the offense was committed. ⁴ See Dobbert v. Florida, 432 U.S. 282, 292-94, 97 S.Ct. 2290, 2297-99, 53 L.Ed.2d 344 reh'g denied, 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977); Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925); Thompson v. Missouri, 171 U.S. 380, 383-85, 387, 18 S.Ct. 922, 923-24, 924-25, 43 L.Ed. 204 (1898); Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884). Under this definition, "[s]tatutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage." Hopt, 110 U.S. at 589, 4 S.Ct. at 210; accord Underwood v. State, 111 Tex.Crim. 124, 125, 12 S.W.2d 206, 206 (1927); State v. Clevenger, 69 Wash.2d 136, 140-42, 417 P.2d 626, 629-30 (1966); State v. Slider, 38 Wash.App. 689, 693-95, 688 P.2d 538, 541-42 (1984) (statute similar to section 76-5-411). Similarly, the retroactive application of statutes that make previously inadmissible evidence admissible is not ex post facto. Thompson, 171 U.S. at 385, 387, 18 S.Ct. at 924, 924-25, reaffirmed in Beazell, 269 U.S. at 170-71, 46 S.Ct. at 68-69.

We must examine sections 76-5-410 and -411 in light of these rules to determine whether their application was ex post facto. Section 76-5-410 allows children to testify who might otherwise have been disqualified under prior law. See State v. Fulton, 742 P.2d 1208, 1217 (Utah 1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988). On its face, section 76-5-410 can be characterized as merely enlarging the class of persons competent to testify. And section 76-5-411 appears to do no more than allow the admission of otherwise inadmissible hearsay statements. Therefore, sections 76-5-410 and -411 do not appear to fall within the Supreme Court's definition of ex post facto laws.

Eldredge, however, argues that the Supreme Court has stated that the ex post facto provision prohibits retroactive application of laws that operate to deny a substantial right in existence when the crime was committed. See Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17 (1981); Thompson v. Utah, 170 U.S. 343, 354-55, 18 S.Ct. 620, 624, 42 L.Ed. 1061 (1898); Kring v. Missouri, 107 U.S. 221, 232, 235-36, 2 S.Ct. 443, 452, 454-55, 27 L.Ed. 506 (1883). He contends that the application of sections 76-5-410 and -411 to his case was prohibited by the ex post facto provision because it actually operated to deny his federal constitutional right to confrontation as it existed at the time the crimes were committed.

First, Eldredge contends that allowing his son to testify pursuant to section 76-5-410 effectively denied him his right to confrontation because when the boy took the stand, as the statute permitted, his testimony was so equivocal and confused as to make meaningful cross-examination impossible. We disagree. A review of the record demonstrates that Eldredge's cross-examination was very effective, so effective that the child recanted and denied the abuse. Therefore, we conclude that section 76-5-410 did not operate to deny Eldredge's federal confrontation right. See State v. Marcum, 750 P.2d 599, 602-03 (Utah 1988).

Second, Eldredge argues that admission of his son's out-of-court statements pursuant to section 76-5-411 violated his right to confrontation because he could not effectively cross-examine the boy. This Court has held on several occasions that the admission of such hearsay does not abridge a defendant's right to confrontation if the child victim is present and available to testify and...