People of Territory of Guam v. Ignacio

• Decision Date: 18 November 1993
• Docket Number: No. 92-10582,92-10582
• Citation: 10 F.3d 608
• Parties: PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Anthony Camacho IGNACIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 608

10 F.3d 608

PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Anthony Camacho IGNACIO, Defendant-Appellant.

No. 92-10582.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 2, 1993.

Decided Nov. 18, 1993.

Joaquin C. Arriola, Jr., Arriola, Cowan & Bordallo, Agana, Guam, for defendant-appellant.

J. Andrew Artero-Boname, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam, Appellate Division.

Before: D.W. NELSON and NORRIS, Circuit Judges, and TANNER, District Judge. ^*

D.W. NELSON, Circuit Judge:

Anthony Camacho Ignacio ("Ignacio") appeals from a ruling of the District Court of Guam, Appellate Division affirming his jury conviction for first degree criminal sexual conduct. The jury found that Ignacio had sexually molested a three-year-old girl, and the court sentenced him to seven years imprisonment. We have jurisdiction under 48 U.S.C. Sec. 1424-3(c).

Ignacio makes three claims on appeal: (1) that the court's admission of certain hearsay statements violated the Confrontation Clause; (2) that the court erred in excluding evidence about a defense theory of third-party culpability; and (3) that the evidence was insufficient to support the conviction. We find that three of the four hearsay statements to which Ignacio objects were properly admitted. With respect to the fourth, the victim's statements to a social worker, we hold that they were not admissible under the medical diagnosis or treatment exception. In this case, however, the admission of such evidence was harmless beyond a reasonable doubt. None of the other claims has merit. Accordingly, we affirm the conviction.

I. FACTUAL & PROCEDURAL BACKGROUND

On January 29, 1991, the child victim was left in the care of Melinda Ignacio, her mother's first cousin and the defendant's wife. Although the Ignacios are the victim's second cousins, she refers to Melinda Ignacio as "Auntie Lin" and Anthony Ignacio as "Uncle Ton". Melinda Ignacio left the victim in the care of the defendant for approximately one hour while she attended a meeting at her daughter's school. When she returned home, the victim approached her and said "Auntie Lin, Uncle Ton touched my pee-pee." She immediately checked the child's genital area. She described the child's vagina as red, swollen, and producing a yellow mucous. [RT Vol. II 55-58.] Melinda Ignacio confronted her husband; he denied the victim's accusations. She then gave the victim a bath. Melinda Ignacio never discussed these events with the victim's mother. [RT Vol. II 58-60.]

That same evening, while having her regularly scheduled bath, the victim would not let her sister Sheila wash her vaginal area, saying that it hurt a lot. Sheila examined the victim's vagina, which was swollen and hard to the touch. She reported this to the victim's mother. The victim's mother then called the Navy Hospital emergency room, explained the situation, and was given an appointment with a pediatrician at the first possible time, two days later.

Dr. McCaffrey, the hospital's head of pediatrics, examined the victim on January 31, 1991. He knew only that the patient had complained of genital pain, so he proceeded to examine her vaginal area. He testified that he found

a small tear that could be seen in the posterior fourchette which is the lower portion where the labia come down and connect; there was a tear, small tear, down in that area ... I could see it with the naked eye.... And looking down with the otoscope, it was confirmed; it was very clear; a tear just jumped right out. [Q: Were you able to determine how old the tear was?] ... If I had to guess how old it was, I would say maybe a day or two old. It was no older than that.

[RT Vol. II 148.] He examined the hymen and found it intact, but testified that "you can have an intact hymen and still have penetration." [RT Vol. II 165.]

Based upon these observations, the doctor suspected child sexual molestation, and he proceeded to investigate this possibility with the child and the mother. He asked the victim's mother if she had any concerns [I]t's a tough thing to do with a little girl, who especially is three, that age range is kind of tough. You don't want to intimidate them too much. But, just trying to talk to her a little bit and play with her a little bit and asking her if anyone could have hurt her down there and touched her down there and actually asked mom for her word for her genitalia, and mom, I believe, said it was pee-pee. And asked her if anyone could have touched her or hurt her and at first she kind of sat there.... And then, after questioning her at one point, very lowly, she started to whisper and I could, at some point, she got a little bit louder; I could hear what she was saying. What it sounded like she was saying was uncle Tome (phonetic) ...

about or knowledge of any sexual abuse and she said she did not. He then tried to elicit information from the victim.

[RT Vol. II 155.]

After the examination, Dr. McCaffrey referred the victim and her mother to a social worker, who interviewed them the same afternoon. Although the victim was non-communicative during her conversation with the social worker (the social worker eventually resorted to having the victim's mother ask his questions), she made one statement, to the effect that the defendant was the perpetrator.

Ignacio's first trial ended with a hung jury. Upon retrial, the jury found him guilty of first degree criminal sexual conduct. He appealed to the District Court of Guam, Appellate Division, which affirmed the conviction. He timely appealed to this court.

II. STANDARD OF REVIEW

We review de novo decisions of the District Court of Guam, Appellate Division. Guam v. Yang, 850 F.2d 507, 509 (9th Cir.1988) (en banc). Thus, this court reviews the decision of the trial court, the Superior Court of Guam, as if it had not been heard previously by an appellate court.

We review de novo Ignacio's claim that the trial court's admission of certain hearsay evidence violated the Confrontation Clause. United States v. George, 960 F.2d 97, 99 (9th Cir.1992). We review for abuse of discretion a claim that the trial court improperly excluded evidence of third-party culpability. United States v. Adrian, 978 F.2d 486, 492 (9th Cir.1992). Although these questions involve interpretation of the Guam Code of Evidence, we note that the Guam Code is identical to the Federal Rules of Evidence, and thus we follow the federal courts' interpretation of the federal rules. Guam v. Agualo, 948 F.2d 1116, 1118 (9th Cir.1991) (citing Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir.1985)).

With regard to Ignacio's claim that there was not sufficient evidence to support his conviction for first degree criminal sexual conduct, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational jury could have found the essential elements of the crime beyond a reasonable doubt. United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992).

III. ADMISSION OF HEARSAY STATEMENTS

Ignacio claims that the trial court's admission of hearsay evidence relating to the child victim's disclosure of the act of the sexual assault and the identity of the perpetrator violated the Confrontation Clause. The evidence consisted of the victim's statements to a pediatrician, a social worker, her sister Sheila, and Melinda Ignacio. After determining that the child victim was unavailable as a witness, ¹ the trial court admitted the testimony of the doctor and the social worker under the hearsay exception for statements made in the course of medical diagnosis or treatment (6 Guam Code Ann. Sec. 803(4) and Fed.R.Evid. 803(4)). The court admitted Sheila's testimony under the present sense Child sexual abuse cases raise unique issues regarding the admissibility of hearsay statements and the defendant's right to confront persons providing evidence against him. In such cases, the need for the victim's out-of-court statements about the crime is likely to be great. As it is unlikely that there will be witnesses other than the accused and the victim, the victim's out-of-court statements are often the only evidence of the crime. Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Col.L.Rev. 1745, 1749-51 (1983).

impression exception (6 Guam Code Ann. 803(1) and Fed.R.Evid.Rule 803(1)). Melinda Ignacio's testimony was admitted under the excited utterance exception (6 Guam Code Ann. Sec. 803(2) and Fed.R.Evid.Rule 803(2)).

At the same time, these distressing cases raise the spectre of fabricated or exaggerated charges, either because of pressure from adults in the child's life or from adult investigators. See Eileen A. Scallen, Constitutional Dimensions of Hearsay Reform: Toward a Three-Dimensional Confrontation Clause, 76 Minn.L.Rev. 623, 652 (1992). Thus, these cases pit the state's interest in admitting what may be the only evidence of a crime against the state's interest in ensuring that the defendant's rights (including the right to confront one's accusers) are given the utmost respect. As we consider the defendant's claim, we are mindful of this tension.

The Confrontation Clause limits the conditions under which hearsay evidence can be admitted, but it does not bar such evidence completely. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Hearsay evidence which is sufficiently reliable, either because it falls within a "firmly rooted hearsay exception" or is supported by "particularized guarantees of trustworthiness," does not violate the Confrontation Clause. Id. at 816, 110 S.Ct. at 3147. See also George, 960 F.2d at 99. ²

A. Statements Admitted Under the Medical Exception

The trial court found that the child victim's statements to a pediatrician and to a social worker regarding the nature of the molestation and the identity of the perpetrator fell within the...