Drumbarger v. State

• Decision Date: 21 March 1986
• Docket Number: No. A-770,A-770
• Citation: 716 P.2d 6
• Parties: Wayne DRUMBARGER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 6

716 P.2d 6

Wayne DRUMBARGER, Appellant, v. STATE of Alaska, Appellee.

No. A-770.

Court of Appeals of Alaska.

March 21, 1986.

Robert H. Wagstaff, Anchorage, for appellant.

Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and SINGLETON and CARLSON, ^* JJ.

OPINION

BRYNER, Chief Judge.

Wayne Drumbarger was convicted, following a jury trial, of three counts of sexual assault in the first degree and three counts of sexual abuse of a minor. Former AS 11.41.410(a)(4); former AS 11.41.440(a)(2). Prior to sentencing, the state dismissed two of the first-degree sexual assault charges. Superior Court Judge James A. Hanson sentenced Drumbarger to consecutive presumptive terms totaling twenty-one years in prison. Drumbarger appeals, challenging his conviction and sentence on numerous grounds. We affirm the conviction but remand for resentencing.

FACTS

During May and June of 1983, Drumbarger lived in Wasilla with his wife, Lynette, and his two children. One day Lynette walked into their home and saw Drumbarger standing next to the bed with his pants unzipped. T.D. was lying on the bed. Her underpants were off and there was a white substance on her abdomen, which Lynette identified as semen. Lynette asked T.D. what had happened, and the girl responded that she "had sucked his [Drumbarger's] bottom." When Lynette asked T.D. if she meant Drumbarger's penis, T.D. said yes. Lynette then spoke with Drumbarger, who admitted having sexual contact with T.D. but denied sexually penetrating the child.

The following year, a neighbor of Drumbarger's heard that T.D. had been sexually assaulted by her father. The neighbor asked Drumbarger if the report was true. Drumbarger admitted molesting T.D., and the neighbor reported the information to the Division of Youth and Family Services. Alaska State Trooper Rollie Port subsequently contacted and interviewed T.D., who told Trooper Port that she had "sucked" her father's penis.

Port later interviewed Drumbarger. Drumbarger admitted sexually abusing his daughter on three separate occasions between April and June of 1983. According to Drumbarger, on each occasion, he initially had T.D. perform fellatio on him; he then "balled" the child. Drumbarger explained that, by "balling," he meant that he rubbed his penis and testicles on T.D.'s abdomen and between her legs until he ejaculated. Drumbarger told Port that, after the third incident, his wife discovered his assaultive conduct toward T.D. He claimed that no further incidents of abuse occurred.

Based on this confession, the state charged Drumbarger with one count of first degree sexual assault (fellatio) and one count of sexual abuse of a minor ("balling") for each of the three incidents of molestation. He thus faced a total of six charges. Lynette Drumbarger testified before the grand jury that indicted Drumbarger. Drumbarger's confession was related to the grand jury by Trooper Port. T.D. also appeared before the grand jury. During her testimony, she was accompanied by Lynette Drumbarger, who was given special leave by the presiding judge of the superior court to be present during her daughter's grand jury testimony.

HEARSAY

At Drumbarger's trial, the state did not call T.D. as a witness. Instead, it relied on the testimony of Lynette Drumbarger and Trooper Port, both of whom were permitted to give testimony concerning out-of-court statements in which T.D. described her father's sexual assaults. This testimony was admitted over the objection of Drumbarger's trial counsel. Dr. George Brown was also permitted to testify, over a hearsay objection by the defense, about a conversation he had with T.D. while examining the child. Drumbarger claims on appeal that admission of T.D.'s statements violated the hearsay rule. Each of the statements Drumbarger challenges on hearsay grounds will be considered individually.

A. Lynette Drumbarger's Testimony.

At trial, Lynette Drumbarger was permitted to testify concerning T.D.'s statement that she had sucked Drumbarger's "bottom." Drumbarger objected to this testimony on hearsay grounds. He renews the objection on appeal. We conclude, however, that T.D.'s statement was admissible under the hearsay exception for excited utterances.

A statement is an excited utterance if it relates "to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Alaska Rule of Evidence 803(2). Whether a statement qualifies as an excited utterance necessarily depends on the facts of each case, and a ruling by the trial court on the issue will not be reversed unless clearly erroneous. Lipscomb v. State, 700 P.2d 1298, 1306 (Alaska App.1985). T.D.'s statement was made immediately after she was discovered by her mother and moments after she had been sexually assaulted by her father. The statement itself addressed the circumstances of the assault. Other courts have not hesitated to find that similar statements by sexual assault victims qualified as excited utterances. See, e.g., United States v. Nick, 604 F.2d 1199, 1202 (9th Cir.1979); Lancaster v. People, 615 P.2d 720 (Colo.1980); State v. Bouchard, 639 P.2d 761 (Wash.App.1982). We hold that admission of Lynette Drumbarger's testimony concerning T.D.'s statement was not barred by the hearsay rule.

B. Trooper Port's Testimony.

Trooper Port was also permitted to testify concerning a statement made by T.D. when she was interviewed by Port. Prior to Port's testimony, Drumbarger's trial counsel, in cross-examining Lynette Drumbarger, implied that T.D. did not understand what a penis was when, after telling Lynette that she had sucked Drumbarger's "bottom," she indicated that, by "bottom," she meant "penis." In response to this cross-examination, the state attempted to establish, through Port's testimony, that T.D. knew what the word penis meant.

Port was questioned about his initial interview with T.D. Specifically, Port was asked if T.D. said anything to him indicating that she understood what a penis was. Over Drumbarger's hearsay objection, Port was allowed to testify, in relevant part, as follows:

[Prosecutor] Q: And could you ... tell us precisely what [T.D.] said which indicates she understands what part of her (sic) body her daddy's penis is?

* * *

[Trooper Port] A: I asked her this question if I can go ahead and ... read it. [T.D.], can you and I talk about you and your dad for a minute? Okay. [T.D.], has your daddy ever done anything to make you feel bad? The answer, I sucked his penis. Oh? When did that happen? And we continue on and then there's more.

Q: Okay. And were there other specific discussions regarding things she did to his penis or things he did with her hands?

A: Yes.

Drumbarger argues that this testimony was impermissible hearsay.

Under the Alaska Rules of Evidence, hearsay is defined to include any "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A.R.E. 801(c). In this case, the stated purpose of allowing Port to testify about T.D.'s out-of-court statement was not to prove the truth of the matter asserted in T.D.'s statement--that is, that T.D. had engaged with Drumbarger in an act of fellatio--but rather to establish that T.D. knew what a penis was and understood her mother's previous reference to the word. Thus, under A.R.E. 801(c), Port's testimony technically did not amount to hearsay.

Drumbarger nevertheless argues that the testimony went beyond what was necessary to establish T.D.'s knowledge and that the nonhearsay purpose of the testimony was only a pretext for its admission. We reject this argument. Certainly, the trial court had broad discretion to exclude the challenged evidence if the court concluded that its probative value as nonhearsay was outweighed by potential prejudice stemming from the possibility of its use as hearsay. See A.R.E. 403 (allowing exclusion of relevant evidence when probative value is outweighed by the potential for prejudice). In the circumstances of the present case, however, several factors militate against finding that the trial court abused its discretion in admitting the evidence.

First, T.D.'s understanding of the word "penis" was affirmatively called into question by Drumbarger's trial counsel during Lynette Drumbarger's cross-examination. The issue was actually in dispute.

Second, T.D.'s out-of-court statement to Port was by no means the state's primary evidence of Drumbarger's sexual assault. To the contrary, Drumbarger's confession to Trooper Port was admitted in its entirety. Lynette Drumbarger testified concerning the statements T.D. made when Lynette discovered Drumbarger and T.D. together. Lynette Drumbarger also fully described T.D.'s appearance on that occasion, which provided strong circumstantial evidence of sexual assault. Given the compelling nature of this evidence, we believe it unlikely that the jury would have given undue weight to the challenged testimony for its impermissible hearsay purpose.

Third, and most significant, is the fact that the jury was independently aware of the statements T.D. gave to Port concerning Drumbarger's sexual acts. The full text of Drumbarger's confession to Port was admitted without objection for the jury's consideration. The confession consisted of questions by Port and answers by Drumbarger, which made it clear that, prior to Drumbarger's confession, T.D. had spoken with Port and had described her father's sexual acts. ¹ Thus, to the extent the jury might have been inclined to use Port's trial testimony for its impermissible hearsay purpose, that use could not have been prejudicial, because the jury had already heard evidence disclosing the substance of T.D.'s statement to Port.

In summary, we hold that Port's testimony concerning T.D.'s statement was not...