People v. Galloway
| Decision Date | 21 August 1986 |
| Docket Number | No. 84CA1169,84CA1169 |
| Citation | 726 P.2d 249 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brett A. GALLOWAY, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colo. State Public Defender, Gerald E. Piper, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Brett A. Galloway, appeals the judgments of conviction entered on jury verdicts finding him guilty of first degree sexual assault and sexual assault on a child. He contends that the trial court erred (1) in determining the victim to be a competent witness, (2) in admitting the hearsay statements made by the victim under the excited utterance, child victim of a sexual assault, and medical treatment exceptions to the hearsay rule, and (3) in admitting the hearsay statements by the victim pursuant to § 13-25-129, C.R.S. (1985 Cum.Supp.) in alleged violation of defendant's constitutional rights of confrontation and due process. We affirm.
On October 5, 1983, the victim, age 7, asked his mother if he could go to a nearby store with defendant. When the victim did not return home the victim's mother sent her other son, age 14, to look for him. The victim's brother found the victim running down the street and was immediately told by the victim that defendant "had goosed him."
When the victim arrived home he was trembling, crying, and unable to speak. His mother shook him and asked him what had happened, and he replied that defendant "had goosed him." The victim said that defendant had pulled down his own pants and those of the victim, had sat the victim on his lap, put his hand over the victim's mouth, and had moved up and down several times. The victim's mother immediately called the police, and the victim again described the incident to the responding officer.
The next day the victim's mother took the victim to the police station where he identified the defendant in a photo lineup and again described the sexual assault in detail to his mother and a detective. While the detective was away from the interview room, the victim told his mother that penetration had occurred. Thereafter, the victim was taken to Denver General Hospital for a physical examination.
A physician examined the victim and questioned him about the incident. The victim again described the sexual assault in detail.
Defendant first contends that the trial court erred when it determined that the victim was competent to testify under § 13-90-106(1)(b), C.R.S. (1985 Cum.Supp.). Defendant argues that the inconsistencies in the victim's testimony support a finding that the victim was incapable of relating the facts truthfully and, therefore, he should not have been permitted to testify. We disagree.
Section 13-90-106(1)(b)(II), C.R.S. (1985 Cum.Supp.), provides in pertinent part:
"This proscription [against testimony by children under ten years of age] does not apply to a child under ten years of age, in any civil or criminal proceeding for sexual abuse, sexual assault, or incest, when the child is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined."
Because this is a sexual assault case, this statutory subsection is applicable. In this statutory provision, the General Assembly has expressed an intent to encourage testimony of child victims in sex crime cases. The only limit placed on the child's testimony is that the child be able to "describe or relate ... the events or facts" upon which the child is examined. Further, the determination whether a witness is competent to testify is an issue committed to the sound discretion of the trial court. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980).
The trial court found that the victim's testimony showed that he knew the difference between truth and falsehood, and that the victim's description of the events surrounding the sexual assault were in appropriate language. While defense counsel's cross-examination raised inconsistencies in the victim's testimony, the trial court correctly noted that these inconsistencies in minor portions of the victim's testimony went to the weight of the evidence, not to the victim's competency. The trial court further found that the victim was capable of receiving just impressions of the facts, and was capable of relating those facts truly. Under these circumstances, we conclude that the trial court did not abuse its discretion.
Defendant next contends that the trial court erred in permitting the victim's mother, the police officer, and the physician to testify to statements made to them by the victim. The trial court admitted the statements pursuant to the excited utterance, medical treatment, and statement of a child victim describing a sexual act exceptions to the hearsay rule. We find no reversible error in the trial court's rulings.
CRE 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Although the elapsed time between the startling event and the declarant's statement is not without significance, it is not conclusive on the issue of admissibility, particularly when the declarant is a child. People v. Sandoval, 709 P.2d 90 (Colo.App.1985). The trial court is in the best position to determine whether the excited utterance exception applies. People v. Sandoval, supra.
The victim's statements to his mother occurred immediately after the incident, and his statements to the police officer were made approximately one hour later. In each instance, the trial court found that the victim was nervous and upset because of the alleged sexual assault. Consequently, we find the trial court did not err in admitting the testimony on this basis.
The victim's mother was permitted to testify to what the victim told her the day after the incident while the detective was absent from the interview room at the police station. The trial court admitted the statement under both the excited utterance exception and § 13-25-129, C.R.S. (1985 Cum.Supp.).
Section 13-25-129, C.R.S. (1985 Cum.Supp.), provides in pertinent part:
"An out-of-court statement made by a child ... describing any act of sexual contact, intrusion, or penetration ... performed with, by, or on the child declarant, not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay, is admissible in evidence in any criminal ... proceedings in which the child is a victim of an unlawful sexual offense ... if:
(a) The court finds ... that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(b) The child ...
(I) Testifies at the proceedings...."
The trial court's findings pursuant to this statute are supported by the evidence and will not be disturbed on appeal. Thus, the...
To continue reading
Request your trial
-
Cassidy v. State, 297
...... State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987); Stallnacker v. State, 19 Ark.App. 9, 715 S.W.2d 883 (1986); People v. Galloway, 726 P.2d 249 (Colo.App.1986); State v. Aguallo, 318 N.C. 590, 350 S.E.2d 76 (1986). Two other states, although not developing the ......
-
Stephens v. State
...that the statement was made to a doctor or other medical personnel during treatment does not justify admission. Horton; People v. Galloway, 726 P.2d 249 (Colo.App.1986); State v. Mueller, 344 N.W.2d 262 (Iowa App.1983); State v. Burgess, 465 A.2d 204 The Eighth Circuit, applying Rule 803(4)......
-
People v. District Court of El Paso County
...utterance exception 5 to the hearsay rule and was therefore admissible. Id. at 450, 615 P.2d at 721-22. See also People v. Galloway, 726 P.2d 249, 252 (Colo.App.1986). Similarly, where a child relates an incident of abuse to a physician for purposes of medical diagnosis or treatment, and un......
-
State v. Robinson, CR-86-0076-PR
...proper diagnosis and treatment. See, e.g., Renville, supra; Stallnacker v. State, 19 Ark.App. 9, 715 S.W.2d 883 (1986); People v. Galloway, 726 P.2d 249 (Colo.App.1986); Wilkins, supra; Aguallo, supra; State v. Garza, 337 N.W.2d 823 (S.D.1983); Goldade v. State, 674 P.2d 721 (Wyo.1983), cer......