In re Andrey G.

• Decision Date: 09 May 2002
• Docket Number: No. 2000-406-Appeal.,2000-406-Appeal.
• Citation: 796 A.2d 452
• Parties: In re ANDREY G.
• Court: Rhode Island Supreme Court

796 A.2d 452

In re ANDREY G.

No. 2000-406-Appeal.

Supreme Court of Rhode Island.

May 9, 2002.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Virginia M. McGinn Aaron L. Weisman, Providence, for plaintiff. Paula Rosin, Melissa Austin Long, Kenneth L. Bond, Providence (respondent), for defendant.

OPINION

PER CURIAM.

The respondent, Andrey G. (respondent), appeals from a Family Court delinquency determination. The adjudication of delinquency was made after the Family Court hearing justice found that respondent committed first- and second-degree sexual molestation upon a minor, pursuant to G.L. 1956 §§ 11-37-8.1 and 11-37-8.3.

This case came before the Court for oral argument on April 9, 2002, pursuant to an order that directed both parties to appear to show cause why the issues raised by this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The facts pertinent to this appeal are as follows.

I Facts and Travel

The delinquency determination arose from the events of April 8, 2000, when respondent, then fifteen years old, was visiting the home of his good friend, Bryan A. (Bryan). Apparently, respondent and Bryan had just returned from playing basketball. Upon arrival at Bryan's house,the two boys settled down in the living room. Bryan's six-year-old sister, Mary,¹ was already in the room, playing with Barbie dolls. Shortly thereafter, Bryan went to the basement to use the computer and left respondent and Mary alone. Approximately two hours later, Mary's father, Gil A. (father) became concerned after Mary came into his room and asked for help buttoning up her pants. According to the father's testimony, he became suspicious when he noticed that Mary's face was "completely flushed" and "her eyes were wide open." The father also became alarmed when he went to the kitchen and saw respondent on the couch, stating, "his face had looked like he had just been doing something he wasn't supposed to be doing." Mary's father immediately told the boys to leave the house and put Mary in the car to drive her to Jamestown, where her mother was visiting friends.

Christine Barron, M.D. (Dr. Barron), a fellow in the Child Protection Program at Hasbro Children's Hospital, testified that she examined Mary on April 9, 2000, after Mary had disclosed sexual abuse to Emergency Department personnel. Doctor Barron testified that she interviewed each member of Mary's family, but left the interview of Mary to be done at the Child Advocacy Center (CAC). Doctor Barron asserted that she did not interview Mary herself because the CAC is specifically trained for such interviews. During the examination, however, Mary did name respondent as her abuser. Doctor Barron explained that she conducted a physical examination of Mary. She testified that Mary's parents had relayed to her that Mary had complained of vaginal pain and asked them to lock the door at night and put out a sign, barring respondent from the house. Moreover, Dr. Barron testified that Mary's parents told her that they noticed behavioral changes in their daughter, including fear during the night. Doctor Barron testified that it is unusual for a six-year-old child to experience vaginal pain, but said that the hymen is extremely sensitive and painful if touched. Doctor Barron then indicated that her physical examination did not reveal any cuts or abnormalities of Mary's hymen. According to Dr. Barron, however, 90 percent of hymen exams can appear normal, despite a patient's disclosure of penetration. Finally, Dr. Barron said that it would be very unlikely for a child to touch her own hymen.

Mary, who was found competent to testify, recounted the events of April 8, 2000. Mary said that she was playing with Barbie dolls in the living room when her brother left to use the computer, leaving her alone with respondent. Mary testified that she then retrieved a blanket and joined respondent, who was resting on the couch. Mary said that she put the blanket over herself and respondent, and he told her that he was going to sleep. Mary testified, however, that he remained awake and "put his hand on [her] privates."² She further testified that respondent first put his hands on top of her clothing and then unbuttoned her jeans and put his fingers under her clothing. Finally, Mary testified that respondent put his finger "inside of [her] privates" and then "put more fingers in it." Mary stated, "he was keep [sic] tapping me, and I didn't like it." Mary stated that after the encounter was over, she slid off the couch, and her father drove her to get her mother.

Mary next testified about the conversation that she had with her father on the way to Jamestown. She said that she told her father "the games were not true, and * * * the body was true, and he got a little angry at [respondent ]." Mary testified that when they reached Jamestown, she also told her mother what had happened.

Later in the trial, Mary's father took the stand. Besides the facts stated above, Mary's father testified that on April 8, 2000, he filed a complaint with the Newport Police Department on behalf of his daughter. He said that at about 4 p.m., he was sleeping in his bedroom, when respondent entered and asked him to play basketball. He testified that he told respondent to wait about twenty minutes, and went back to sleep. After his nap, he went to the basement, spent some time on the internet, and eventually went back to his bedroom. Shortly after he returned to his bedroom, Mary entered with her pants unbuttoned. After ordering the boys to leave the house, he put Mary in the car to get her mother. He then confronted his daughter about what had happened between her and respondent. Mary's father testified that she initially told him that she was playing tick-tack-toe, but when he told her that God wanted her to tell the truth, she told him that respondent touched her "private parts."

The respondent and Bryan also testified at the hearing. The respondent testified that he had never been alone on the couch with Mary, and denied ever having molested her.

After a long hearing, the Family Court justice found that respondent had committed first- and second-degree child molestation and later detained him at the Rhode Island Training School. The respondent filed a timely notice of appeal.

II Standard of Review

We previously have held that "[t]he deferential standard of review we follow when considering an appeal from an adjudication of delinquency is to review the record to determine `whether legally competent evidence exists therein to support the findings made by the Family Court trial justice.'" In re Ryan B., 739 A.2d 232, 235 (R.I.1999) (quoting In re Malik D., 730 A.2d 1070, 1072 (R.I.1999)). Furthermore, "[w]e give great weight to the findings and the decision made by the trial justice, and this Court will not disturb such findings unless they areincorrect as a matter of law or otherwise clearly wrong. " Id. (citing In re Malik D., 730 A.2d at 1072).

III Hearsay

The respondent first argues that the hearing justice erred by admitting hearsay testimony during the examination of both Mary's father and Dr. Barron. We will address the merits of each part of the argument separately.

First, respondent asserts that the hearing justice erred by allowing Dr. Barron to testify about what she had learned from both Mary and Mary's parents during her evaluation. According to respondent, the hearing justice erred by allowing Dr. Barron's testimony that: (1) Mary had told her that she had been sexually abused by respondent, (2) Mary's parents told her that Mary had complained of vaginal pain, (3) Mary had asked her parents to ban respondent from their house, and (4) Mary's parents had told her they noticed behavioral changes in their daughter and that she was very afraid at night.

Although the hearing justice overruled the objection, she did not clearly state her basis for doing so. However, respondent presumes that the hearing justice ruled pursuant to the medical diagnosis exception.

According to Rule 803(4) of the Rhode Island Rules of Evidence, "[s]tatements made for purposes of medical diagnosis or treatment" are admissible. However, such admissibility "hinge[s] on whether what has been related by the patient will assist or is helpful in the dia gnosis or treatment of [the patient's] ailment." In re Jessica C., 690 A.2d 1357, 1363 (R.I.1997) (quoting State v. Ucero, 450 A.2d 809, 815 (R.I.1982)). Moreover, "[t]he statements do not have to be made to a physician but could be made to any person * * * even a family member." Id. (quoting Advisory Committee's Note to Rule 803 at 1165).

In the instant case, the statements made by Mary's mother, about her daughter's reported vaginal pain were properly admissible under the medical diagnosis exception to the hearsay rule. However, Mary's statement that respondent had sexually abused her is clearly inadmissible because it merely assigned fault rather than assisted Dr. Barron in her medical diagnosis. Similarly, statements about Mary's fear of the night and her request that her parents put a sign on the door are inadmissible. We, however, do not agree that the hearing justice's admission of these statements was reversible error. Instead, it is clear from the transcript that the hearing justice, in reaching her decision, focused on Mary's testimony to determine that respondent had committed the sexual molestation beyond a reasonable doubt. In fact, according to the transcript, the hearing justice never even referred to any of the objectionable statements when she explained the reasoning for her decision.

The respondent also contends that the hearing justice committed reversible error by allowing Mary's father to testify about statements that...