State v. Allen, CR-87-0087-PR
| Citation | 157 Ariz. 165,755 P.2d 1153 |
| Decision Date | 02 June 1988 |
| Docket Number | No. CR-87-0087-PR,CR-87-0087-PR |
| Parties | STATE of Arizona, Appellee, v. Jeffrey Don ALLEN, Appellant. |
| Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.
D. Jesse Smith, Tucson, for appellant.
The defendant, Jeffrey Don Allen, was convicted of one count of child molestation and was sentenced to seven years' imprisonment. He appealed his conviction, but the Court of Appeals affirmed it. State v. Allen, 157 Ariz. 163, 755 P.2d 1151 (Ariz.Ct.App., 1987). We granted his petition for review.
On review, the defendant raised two issues: (1) that the trial court erred in ruling that the child victim was unavailable; and (2) that the reception in evidence, without objection, of testimony from experts held inadmissible in State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986), and State v. Moran, 151 Ariz. 378, 728 P.2d 248 (1986), was fundamental error. Due to our disposition of the first issue, we need not reach the merits of the second.
The victim was a six-year-old child named Cara. She did not testify at the trial. All the evidence about the crime charged came Cara's life since she was 3 years old had been extremely unpleasant. Her father repeatedly beat her and her mother. Eventually Cara and her mother moved into a women's shelter and her mother sought a divorce. Shortly thereafter, her father kidnapped her and hid from the police until he was arrested. During the period Cara was held by her father they lived in a van with "some girl that he had picked up somewhere along the line." (R.T. of Jan. 15, 1986, at 71).
[157 Ariz. 167] from the testimony of her mother and an investigating police officer. 1
Both before and after her abduction, Cara was in therapy. The therapists observing Cara at play formed a belief that Cara had been sexually abused by her father. 2
The defendant is a single male in his mid-twenties. He had no prior criminal history. At the time of trial, he managed his own business and was a licensed realtor associated with a national brokerage firm. He attended Pima College in Tucson where he obtained an Associate Degree in business administration.
The defendant met Cara's mother at a party in the apartment complex where Cara and her mother lived. 3 The defendant and Cara's mother began to socialize and were sexually intimate on at least one occasion. On that occasion Cara was aware that the defendant and her mother had spent the night together.
On April 29, 1985, approximately two weeks after the defendant and Cara's mother had spent the night together, mother and daughter attended a therapy session where a film strip, Penelope Mouse, was shown. This film is about a very human mouse who is touched in a private place by her mouse uncle. Penelope Mouse then tells her mother mouse, teachers and counselors, what her uncle did, and they reward her and make her feel good.
On their way home after the session, Cara's mother discussed the film with her daughter. While reiterating the film's message that certain types of touching by a friend or a stranger is wrong and it is permissible to speak up about it, Cara stated "They already did." (R.T. of Jan. 15, 1986, at 25). When asked who, Cara stated "Robbie and Jeff [defendant] did." 4 (Id.) [The Mother]: [Cara] said that--she said that when he went to his [defendant's] house that he would make her lay down on the bed, his bed, in his bedroom and that he would lock the door, then he would take a shower. He would come out with just a towel around him.
[157 Ariz. 168] She then related how the defendant had allegedly molested her on one occasion while baby-sitting. 5
She said that then he would take the towel off and stand in front of her, and that then he would get into the bed with her. And she would be laying on her back and that he would be laying on his side, facing her, and he would rub his penis up against her leg.
....
Q You started to say Jeff would put his penis against her; what else? Please continue.
A Against her leg and she used the term humped. I asked her: What do you mean by humped?
She said: You know, he rubbed up against me and then he peed on my leg. And she said: Then he held me down and he wouldn't let me get down and wash it off. And then she said: Then I got up and the door was locked.
And she couldn't get out of the room. 6
(R.T. of Jan. 10, 1986, at 26; R.T. of Jan. 15, 1986, at 25-26).
When they arrived home, the mother called the defendant and asked him to come over so that she could speak with him. When the defendant replied he was unable to come over, the mother insisted and stated that she wanted to discuss "Something you shouldn't have done to a little girl." (R.T. of Jan. 15, 1986, at 28). The defendant's reply to this statement was "Oh, fuck." (Id.) Thereafter Cara's mother reported the matter to the police, and Cara repeated the incident to a police officer.
Cara attended an individual therapy session on May 1, 1985, two days after her conversation with her mother. Cara's therapist congratulated her for her disclosure to her mother and the police. As the session proceeded, Cara drew a picture of a male monster. She placed a hand of the monster on its genitals and described what was occurring in the picture. Besides stating that the monster was "touching" himself, Cara said that the monster "jacks off with his weinie." (R.T. of Jan. 14, 1986, at 11-14; R.T. of Jan. 16, 1986, at 56-57). When asked who the monster was, Cara failed to identify it. 7
Prior to trial, the state moved to videotape the child's testimony. The defense made no objection. The trial court granted the motion, but the child was unable to continue the deposition once the questions began to focus on the alleged molestation. At no time, then or afterwards, was the defense able to cross-examine Cara. Thereafter, the state filed a motion to introduce the statements of the child pursuant to A.R.S. § 13-1416 (The Minor Sexual Victim Testimony Act). 8
At the hearing on this motion, the trial court ruled, without objection from the defense, that the child was unavailable and the statements would be admissible at trial. The trial court based the unavailability ruling solely upon the prosecutor's statement that the child was unable to testify. 9 However, at trial, the state's experts 10 testified that the child had suffered extreme mental anguish and would suffer further adverse effect if made to testify.
The only evidence about the details of the alleged offense came from witnesses who testified about what Cara had told them. Expert testimony was offered to support the child's statements. One expert testified, without objection, that only three percent of reported molestations are false. 11 No objection was raised to this testimony. In response to the prosecutor's question whether the child could be "transferring what had happened to her from somebody else onto Mr. Allen," another expert witness replied that she did not believe so. (R.T. of Jan. 16, 1986, at 69). This second expert also testified that the child had been molested by her father and "remolested" by the defendant. When asked for the basis of her belief she replied: "The police reports, her sharing of what exactly happened with Jeff and Robbie, the way she was able to verbalize that, her behaviors are real evident." (Id.) Again, no objection was made to this testimony. 12 No physical evidence of sexual abuse was presented by the prosecution. The defendant took the stand in his own defense and denied ever having molested the child. The jury found the defendant
[157 Ariz. 170] guilty, and he was sentenced to the presumptive term of seven years.
The defendant challenges the admission of the child's out-of-court statements contending that there was not an adequate showing that she was unavailable.
The burden is on the state to prove unavailability when it offers a declarant's out-of-court statements. State v. Robinson, 153 Ariz. 191, 203, n. 15, 735 P.2d 801, 813, n. 15 (1987). However, absent fundamental error, the failure to object is a waiver of any error. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981).
In the present case, the trial judge witnessed the child's inability to express herself at the videotaping session. Both the state's experts and the victim's mother testified at trial that Cara was extremely distraught and was unable to discuss the incident any further. Whether the foregoing provided a sufficient basis to support the ruling of the trial court we need not decide 13 because the defendant waived the issue by failing to object.
In the usual case, the rejection of the defendant's grounds for challenging the admission of the hearsay would end the matter. However, we note that while this case was in the appellate review process, we issued our opinion in Robinson, holding that A.R.S. § 13-1416 unconstitutionally infringed upon this court's rule-making authority and undermined "fundamental judicial and constitutional values and processes" required in the truth-finding function of criminal trials. 14 Robinson, 153 Ariz. at 197, 735 P.2d at 807.
Robinson is applicable to the present case since it was pending review when the Robinson decision was announced. State v. Nunez, 135 Ariz. 257, 258, 660 P.2d 858, 859 (1983). However, the defense counsel never objected to the hearsay statements offered pursuant to A.R.S. § 13-1416. We have held that the rule of waiver is equally applicable even when the error may be of constitutional magnitude. State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973) (); State v. Holder, 155 Ariz. 83, 745 P.2d 141 (1987) (...
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