State v. Ackerman

• Decision Date: 03 March 1998
• Docket Number: No. 15604-4-III,15604-4-III
• Citation: 90 Wn.App. 477,953 P.2d 816
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Karl Duane ACKERMAN, Appellant.

Page 477

90 Wn.App. 477

953 P.2d 816

STATE of Washington, Respondent, v. Karl Duane ACKERMAN, Appellant.

No. 15604-4-III.

Court of Appeals of Washington,

Division 3,

Panel Two.

March 3, 1998.

Donald D. Hackney, Hackney, Peven, Schwartz and Beukelman, Paul J. Wasson, II, Spokane, for Appellant.

Kevin M. Korsmo, Spokane County Prosecutor's Office, Spokane, for Respondent.

KATO, Judge.

Karl Ackerman was convicted of second degree child molestation. The court imposed a Special Sexual Offender Sentencing Alternative (SSOSA) sentence. Contending the court erroneously admitted (1) hearsay testimony based upon he alleged unavailability of the victim; (2) his confession; and (3) privileged testimony from his counselor, he appeals. Mr. Ackerman also contends the evidence was insufficient to support his conviction. We affirm.

On February 2, 1996, the State charged Mr. Ackerman with one count of second degree child molestation. The information alleged that between October 1, 1994, and October 9, 1995, Mr. Ackerman molested P.K., his stepdaughter, who was born November 25, 1981.

The court held hearings on several pretrial motions. The court determined that P.K. was unavailable to testify so the State could introduce certain hearsay statements at trial. The court also admitted Mr. Ackerman's confession. Although he contended the admission of his confession violated the corpus delicti rule, the court concluded the rule was met by the admissible hearsay statements.

Mr. Ackerman waived his right to a jury. At the conclusion of bench trial, the court found Mr. Ackerman guilty of second degree child molestation. P.K. appeared at the sentencing hearing and asked the court for leniency. Although concluding Mr. Ackerman manipulated P.K.'s not appearing at trial, the court imposed a SSOSA sentence. Mr. Ackerman appeals.

Finding P.K. unavailable, the court considered the admission of several hearsay statements under the fact of complaint doctrine. One of P.K.'s classmates testified P.K. told her in October 1995 that she had been sexually abused. Another classmate said P.K. informed him in November or December 1995 that she was abused. P.K.'s school counselor also testified that in October 1995, P.K. said she had been abused. Under the fact of complaint doctrine, the court admitted these hearsay statements. It also permitted Melinda Stafford, P.K.'s treatment counselor, to testify. ¹ Ms. Stafford stated P.K. told her that Mr. Ackerman had fondled her breasts over the last year. The court admitted this testimony under the medical treatment exception. Mr. Ackerman contends the admission of the hearsay testimony was error.

The trial court's decision on the admissibility of evidence may be reversed only on a showing of manifest abuse of discretion. State v. Quigg, 72 Wash.App. 828, 835, 866 P.2d 655 (1994). Mr. Ackerman has shown no such abuse here.

The fact of complaint or "hue and cry" doctrine is a case law exception to the hearsay rule. State v. DeBolt, 61 Wash.App. 58, 63, 808 P.2d 794 (1991). It allows the State in a sex offense case to present evidence in its case in chief that the victim made a timely complaint to someone after the assault. State v. Alexander, 64 Wash.App. 147, 151, 822 P.2d 1250 (1992). Details of the complaint and the identity of the offender are not permitted. Id.

In the pretrial hearing on admissibility, P.K.'s schoolmates and the school counselor testified P.K. made a complaint of abuse and they further provided details of her statements. But at trial, the court only allowed testimony that P.K. stated she had been abused. These statements establishing that she made timely complaints were properly admitted under the fact of complaint doctrine. DeBolt, 61 Wash.App. at 63, 808 P.2d 794.

The court admitted Ms. Stafford's comments under the medical treatment exception to hearsay. Regardless of the availability of the declarant, the hearsay rule does not exclude "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." ER 803(a)(4). Statements made to counselors in child abuse or rape situations are encompassed by this exception. See State v. Sims, 77 Wash.App. 236, 239, 890 P.2d 521 (1995); State v. Florczak, 76 Wash.App. 55, 65, 882 P.2d 199 (1994), review denied, 126 Wash.2d 1010, 892 P.2d 1089 (1995); State v. Bishop, 63 Wash.App. 15, 24-25, 816 P.2d 738 (1991), review denied, 118 Wash.2d 1015, 827 P.2d 1011 (1992). Statements attributing fault to a member of the victim's immediate household may be reasonably pertinent to treatment and are thus admissible because it is "relevant to the prevention of recurrence of injury." State v. Butler, 53 Wash.App. 214, 221, 766 P.2d 505, review denied, 112 Wash.2d 1014 (1989). Moreover, identity is important since child abuse can involve psychological as well as physical injury and there is a risk of further injury if the child and the abuser live in the same household. State v. Ashcraft, 71 Wash.App. 444, 859 P.2d 60(193). Ms. Stafford, P.K.'s counselor, said P.K. related to her that Mr. Ackerman had fondled her breasts and kissed her. P.K. also told Ms. Stafford the incidents had been going on for one year and occurred in the home. The counselor indicated the goal of the family was to reunify. P.K.'s statements to her were made for purposes of medical treatment. Moreover, attribution of fault to Mr. Ackerman was relevant in the context of the clinical goal to reunify the family. See Sims, 77 Wash.App. at 240, 890 P.2d 521. The court properly admitted Ms. Stafford's testimony under ER 803(a)(4).

Mr. Ackerman nonetheless contends that these hearsay statements were inadmissible because he was denied his right of confrontation when the State failed to show P.K. was unavailable or her statements were reliable.

The confrontation clause of the Sixth Amendment, made applicable to the states by the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI; Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990). The confrontation clause of the Washington Constitution guarantees the accused the right "to meet the witnesses against him." Const. art. 1, sec. 22 (amend.10). The protection afforded by both clauses is identical. Florczak, 76 Wash.App. at 71, 882 P.2d 199.

As originally interpreted, the federal confrontation clause required the state to either produce the declarant or show that the declarant was unavailable as a witness. Florczak, 76 Wash.App. at 68, 882 P.2d 199 (citing Wright, 497 U.S. at 814, 110 S.Ct. at 3145-3146). Once a witness was shown to be unavailable, the state also had to show the witness's statements bore adequate indicia of reliability to be admissible. Id. But in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the Supreme Court held that a declarant's hearsay statement may be admissible, even if the declarant is available as a witness but does not testify, as long as the statement's reliability is demonstrated. When the proffered testimony has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule or is supported by a showing of particularized guarantees of trustworthiness, the Confrontation Clause is satisfied. Wright, 497 U.S at 816, 110 S.Ct. at 3147 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)).

The court admitted P.K.'s statements to her mental health therapist, Ms. Stafford, pursuant to the hearsay exception for medical treatment. ER 803(a)(4). This is a firmly rooted exception to the hearsay rule and satisfies the reliability requirement. White, 502 U.S. at 355 n. 8, 112 S.Ct. at 742 n. 8; Florczak, 76 Wash.App. at 68, 882 P.2d 199.

The trial court found P.K. was unavailable for purposes of admitting hearsay under the fact of complaint doctrine. But if her hearsay statements bear adequate indicia of reliability, they are admissible notwithstanding her availability as a witness. ² White, 502 U.S. at 353-54, 112 S.Ct. at 741.

The trial court did not find, nor is there a claim, that the fact of complaint doctrine is a firmly rooted exception to the hearsay rule. The reliability of P.K.'s statements must thus be supported by particular guarantees of trustworthiness. Those guarantees must be drawn from the totality of the circumstances surrounding the making of the statements and must render the declarant particularly worthy of belief. Wright, 497 U.S. at 820, 110 S.Ct. at 3149. The record details these circumstances. P.K.'s statements were spontaneous and initially made to two classmates who were good friends of hers. They noticed she had appeared sad and uncomfortable that day. No one prompted her to make the complaints of sexual abuse. P.K. was upset and crying when she made her statements to the school counselor, whom she did not want to see. There was no reason for P.K. to lie about the abuse. The totality of the circumstances demonstrates there were particularized guarantees of trustworthiness supporting her statements, which went only to the fact P.K. made a complaint and revealed nothing about details of the abuse or the identity of the offender. Mr. Ackerman was not denied his right to confrontation under the federal and state constitutions by admission of the hearsay statements under the fact of complaint doctrine. See Florczak, 76 Wash.App. at 68-70, 882 P.2d 199.

Assuming the hearsay was inadmissible, Mr. Ackerman claims the court erred by admitting his confession in violation of the corpus delicti rule. ³ However, we have already determined that the hearsay statements were properly admitted under the medical treatment exception and fact of...