State v. Adams
| Decision Date | 13 August 2019 |
| Docket Number | Docket: Fra-18-444 |
| Citation | 214 A.3d 496 |
| Parties | STATE of Maine v. Ross S. ADAMS |
| Court | Maine Supreme Court |
John Scott Webb, Esq. (orally), and Katherine M. Campbell, Esq., Saco, for appellant Ross S. Adams
James A. Andrews, Dep. Dist. Atty. (orally), Franklin County District Attorney Office, Farmington, for appellee State of Maine
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM,* JJ.
[¶1] In 2018, Ross S. Adams was convicted of unlawful sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2018), in the Unified Criminal Docket (Franklin County, Mullen, J. ) after a jury trial. During the State's direct examination of the victim at the trial, the court admitted in evidence as past recollection recorded, see M.R. Evid. 803(5), a video recording of a forensic interview that had been conducted of the victim shortly after the crime occurred in 2014, when she was seven years old. On appeal, Adams asserts that the court's evidentiary ruling was erroneous because the State had not established the proper foundation required by that exception to the hearsay rule and because the admission of the video violated his constitutional right to confront the witness, see U.S. Const. amend VI.1 We affirm the judgment.
[¶2] We draw the following account of this case from the evidence as seen in the light most favorable to the State, see State v. Pelletier , 2019 ME 112, ¶ 2, 212 A.3d 325, and from the procedural record.
[¶3] In the fall of 2013, the victim was six years old and lived in Massachusetts with her mother. The mother became romantically involved with Adams, and shortly after that relationship began, Adams moved into the mother and victim's home and, around the same time, started sexually abusing the victim.
[¶4] In July of 2014, Adams, the mother, and the victim moved to Farmington. From that time until October 9, 2014, Adams repeatedly sexually assaulted the victim, sometimes inside the house and other times outside, by touching her genitals and digitally penetrating her.
[¶5] On October 10, 2014, the victim travelled to Florida to visit her father. A few days later, she disclosed the abuse to her father. He contacted Florida's child services agency, which opened an investigation that led to a forensic interview conducted of the victim on October 20, 2014. The victim remained with her father in Florida and was still living with him when the trial was held in 2018.
[¶6] In November of 2014, Adams was charged with one count of unlawful sexual contact of a child under the age of twelve, with penetration, 17-A M.R.S. § 255-A(1)(F-1). After he was indicted for that charge several months later, he pleaded not guilty.
[¶7] The court conducted a two-day jury trial in June of 2018.2 On the first day of the trial, the State presented the testimony of the victim's mother and the victim, who then was eleven years old. During the State's examination of the victim, she testified that Adams had abused her a "lot" of times and that the incidents occurred both inside and outside the house where they were living. The victim recalled one specific incident that had occurred outside the house; she testified to conduct by Adams that would satisfy the elements of the charge, and she also described some of the surrounding circumstances. When asked about incidents of abuse that had occurred inside the house, the victim testified that there had been more than one such incident, that she thought that one had occurred in a bedroom, but that she did not have a specific memory of a particular incident. When the State inquired about the forensic interview, the victim testified that she remembered talking to the interviewer in Florida, that she had a clear memory of the abuse then, and that she had told the interviewer the truth.
[¶8] Based on that testimony, the State offered in evidence the video recording of the forensic interview.3 The court viewed the recording out of the jury's presence, heard argument from the parties, and, over Adams's objection, determined that the State had developed a proper foundation for the portions of the recording relating to incidents of abuse inside the house to be admitted as past recollection recorded. See M.R. Evid. 803(5).
[¶9] Given that ruling and after carefully preserving his objection to it, Adams agreed that most of the remaining portions of the recording could be admitted in evidence. This approach allowed Adams to cross-examine the victim about potential inconsistencies between her testimony and her statements on the recording. The recording was played for the jury while the victim, by agreement of the parties, remained outside the courtroom. In the recording, the then-seven-year-old victim told the interviewer details about the abuse that had taken place inside the house—what Adams did to her, where it happened, where her mother was at the time, and how it made her feel. The victim told the interviewer that the last time Adams had abused her was the day before she left Maine to visit her father in Florida.
[¶10] After the video was played for the jury, the victim resumed her testimony and was cross-examined by Adams, during which he replayed parts of the recording to set up some of his questions. While testifying, the victim could not remember saying certain things to the forensic interviewer four years earlier, and she was unable to recall details of the incidents of abuse about which Adams was questioning her.
[¶11] The jury found Adams guilty of the single count of unlawful sexual contact. The court later denied Adams's motion for a new trial, see M.R.U. Crim. P. 33, or judgment of acquittal, see M.R.U. Crim. P. 29(b), and sentenced Adams to a seventeen-year prison term with all but ten years suspended and ten years' probation. This appeal followed. See 15 M.R.S. § 2115 (2018).
[¶12] Adams asserts that, for two reasons, the court erred by admitting evidence of the victim's out-of-court statements contained in the recording. First, Adams argues that the State failed to develop a proper foundation for past recollection recorded as required by Maine Rule of Evidence 803(5) and our interpretive caselaw.4 Second, Adams contends that even if the recording were admissible pursuant to the Maine Rules of Evidence, its admission violated his Sixth Amendment right to confront a witness against him because, given the victim's limited memory at trial, he was unable to "reasonably cross-examine" her about her recorded statements. See U.S. Const. amend. VI. We address these contentions in turn.5
[¶13] "We review the court's foundational findings or implicit findings to support admissibility of evidence for clear error, and we will uphold those findings unless no competent evidence supports the findings." State v. Cruthirds , 2014 ME 86, ¶ 16, 96 A.3d 80 (quotation marks omitted). The court's ultimate determination that evidence is "admissible as a recorded recollection is deferentially reviewed for an abuse of its considerable discretion." Id. ¶ 17 (quotation marks omitted). Here, the court did not make explicit foundational findings and was not asked to do so, although the court's ruling followed an extended colloquy with counsel during which the applicable legal principles were explicitly articulated by both the court and the parties.
[¶14] Pursuant to the recorded recollection exception to the hearsay rule, evidence is not excluded by the general rule barring the admission of hearsay when the out-of-court statement satisfies the following requirements: (1) it relates to a matter the witness once knew about but cannot recall well enough at trial to testify fully and accurately; (2) it was made or adopted by the witness when the matter was fresh in the witness's memory; and (3) it is an accurate record of the witness's past knowledge.6 See M.R. Evid. 803(5) ; see also State v. Gorman , 2004 ME 90, ¶ 27, 854 A.2d 1164. These foundational criteria may be established "independent of the declarant's testimony as to present memory." Gorman , 2004 ME 90, ¶ 29, 854 A.2d 1164. When the witness is unable or unwilling to testify from present memory, "it is within the discretion of the trial court to determine whether the foundational requirements of Rule 803(5) have been satisfied on a case-by-case basis, whether by direct or circumstantial evidence." Id. ¶ 28 (quotation marks omitted).
[¶15] The first foundational element as stated above actually has two components that focus on different timeframes: the predicate evidence must show that, at the time the declarant made the out-of-court statement, she knew about the subject of the statement, and it must show that, at the time the declarant testifies at trial, her recollection has failed to the point where she is unable to testify about the matter fully and completely. See M.R. Evid. 803(5)(A). Here, the court did not err by implicitly finding that both of these circumstances existed. In the video, the victim, who then was seven years old, told the interviewer about her life in Maine, about the acts that Adams committed against her while she was living there, and specifically and in detail about the assaults that took place inside the house. Further, at trial the victim testified that, although Adams had sexually assaulted her numerous times inside the house, she generally could not remember where the abuse had occurred and did not have a clear or specific memory of the other aspects of that abuse. The record supports the court's implicit foundational findings that the victim's recorded descriptions of Adams's assaults against her were of matters she once knew about but, at trial, could not recall well enough to testify fully and accurately.
[¶16] The court was also entitled to find that the State had presented evidence to satisfy the second criterion for admission of the recording, namely, that the victim had made the statements when her memory of the abuse...
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