State v. Bellotti, C6-85-751

• Decision Date: 04 March 1986
• Docket Number: No. C6-85-751,C6-85-751
• Citation: 383 N.W.2d 308
• Parties: STATE of Minnesota, Respondent, v. Anthony J. BELLOTTI, Appellant.
• Court: Minnesota Court of Appeals

Page 308

383 N.W.2d 308

STATE of Minnesota, Respondent, v. Anthony J. BELLOTTI, Appellant.

No. C6-85-751.

Court of Appeals of Minnesota.

March 4, 1986.

Review Denied April 24, 1986.

Syllabus by the Court

1. The trial court did not err in admitting into evidence out-of-court statements made by two child sexual abuse victims to a doctor.

2. The trial court did not err in admitting out-of-court statements under Minn.Stat. § 595.02, subd. 3 (Supp.1985).

3. Minn.Stat. § 595.02, subd. 3, is constitutional on its face.

4. The trial court did not violate appellant's constitutional right to confront witnesses when it admitted out-of-court statements under § 595.02, subd. 3.

5. The trial court did not commit reversible error in admitting a medical doctor's opinion that two children had been sexually abused. Although the doctor's opinion that a child was truthful was error,

in the context of this case it does not require reversal.

Hubert H. Humphrey, III, State Atty. Gen., Thomas Foley, Ramsey Co. Atty., Darrell C. Hill, Susan E. Gaertner, Asst. Ramsey Co. Attys., St. Paul, for respondent.

Irving Nemerov, Minneapolis, for appellant.

Heard, considered and decided by SEDGWICK, P.J., and RANDALL and CRIPPEN, JJ.

OPINION

SEDGWICK, Judge.

Appellant, Anthony Bellotti, was charged with two counts of second degree criminal sexual conduct under Minn.Stat. § 609.343(a). Each count involved a different child.

At the pretrial hearing the trial court denied Bellotti's motion to suppress certain out-of-court statements by the children. The court also found one victim incompetent to testify, and the other competent to testify.

The jury found appellant guilty of both counts and acquitted him of a third count not involved on appeal. The trial court denied appellant's motion for a new trial and entered judgment of conviction. We affirm.

FACTS

At trial, T.C., age four, testified that she played a "pee-er" game and a "bubble gum game" in her friend C.B.'s bedroom with her friend's father. Using anatomically correct dolls, she testified that C.B.'s father took down his pants and touched his "pee-er" in front of the children. She stated that he also took down her pants and C.B.'s pants and touched each one's "pee-er" with his finger. T.C. demonstrated this by touching the genitals of the female doll. She identified C.B.'s father as appellant.

P.C., T.C.'s mother, testified about how the incident came to her attention. T.C. had been playing at Bellotti's house on September 15. While getting ready for church the next day, T.C. volunteered that "[C.B.'s] daddy is an icky man. Right, mommy?" When asked what she meant, she elaborated: " 'Because he makes you play bubble gum games with your pee-er.' " P.C. understood "pee-er" to mean the vaginal area, as well as the penis. When P.C. asked what kind of games, T.C. replied "her daddy pulls down my pants and checks my pee-er, and pulls down [C.B.'s] pants and checks her pee-er, and pulls down his own pants and he checks his own pee-er." After returning from church, P.C. called the police. Later that day she observed a "big hunk of bubble gum stuck on the front of the pants that [T.C.] had worn that afternoon." Appellant does not challenge the admission of this hearsay testimony.

Sgt. Lisa Millar interviewed T.C. at the St. Paul Police Department on September 19, 1984. She testified that T.C. told her that C.B.'s dad had touched her on her "pee-er" and demonstrated with anatomically correct dolls by taking off the girl doll's underpants and rubbing her finger in the genital area of the doll. T.C. told Sgt. Millar that appellant had pulled down C.B.'s pants and done the same thing to her. T.C. also demonstrated how appellant was "checking his pee-er" by pulling down the adult male doll's pants and fondling the penis. Afterwards, C.B.'s father gave her bubble gum.

On September 20, C.B., also age four, was interviewed at the St. Paul Police Department by Ann Foster, a social worker with the Ramsey County Human Services Child Abuse Unit. She testified that C.B. demonstrated, using anatomically correct dolls, that her father touched her genitals and T.C.'s genitals with his hand. She also demonstrated to Foster that both children had touched her father's penis, curling her fingers around the penis of the adult male doll.

Ann Foster referred both children to Dr. Carolyn Levitt for medical examinations. Levitt examined T.C. on September 25 at Children's Hospital. At trial, Levitt testified that T.C. told her that appellant had touched each child's "pee-er" with his hand, having pulled down T.C.'s pants, Levitt testified that T.C. told her that appellant pulled down his pants and touched his penis and that he touched C.B.'s genitals with his pee-er. After appellant pulled up his pants he gave both children bubble gum.

Levitt physically examined T.C., using the child's own body to determine where the sexual contact occurred. When Levitt touched her clitoris and asked if appellant had touched her there, T.C. replied affirmatively. She responded negatively to Levitt's questions about touching the entrance to her vagina and her rectum.

On October 3 Levitt interviewed and examined C.B. Levitt testified that C.B. indicated verbally that appellant had pulled down both girl's pants, touched them on the "pee-pee" with his finger while in her bedroom, and gave them bubble gum afterwards. C.B. told Levitt that her dad touched her genitals with his "pee-pee." On her own initiative, she demonstrated how he did this by getting off a chair and sitting on the floor. She "leaned back with her torso back, her knees drawn up and her legs spread apart, and said, 'Something like this.' "

Levitt physically examined C.B. When Levitt touched her clitoris, C.B. responded that her father had touched her there with his "pee-pee." While Levitt touched the entrance to her vagina, C.B. told Levitt that her father had also touched her there with both his "pee-pee" and his finger.

A police sergeant testified to appellant's confession to him that "he was in fact changing his daughter's diapers * * * and that while he was doing that [T.C.] walked up and stood along side of him and removed her clothes, and that he reached out and touched her on the vaginal area. He also said that he did touch [C.B.] on the vaginal area. * * * He said he couldn't explain his actions."

Anthony Bellotti testified that on the morning of the day in question he walked into C.B.'s bedroom to check whether her pants were wet because she had a habit of wetting her pants. He checked her pants and they were wet. He got a wash cloth and started cleaning her when T.C. pulled her pants down and said, "I'm wet. I'm wet too." He finished cleaning C.B., checked T.C., found that her pants were wet, and cleaned her with a wash cloth. He then put T.C. into his daughter's clothes and washed both children's clothes. When the clothes were done he put T.C. back into her clothes and took the children to Arby's.

ISSUES

1. Did the trial court err in admitting the statements made by T.C. and C.B. to Dr. Levitt?

2. Did the trial court err in admitting T.C.'s remaining out-of-court statements under Minn.Stat. § 595.02, subd. 3?

3. Did the trial court's admission of T.C.'s out-of-court statements violate appellant's constitutional right to confront witnesses?

4. Did the trial court err in admitting C.B.'s out-of-court statements under Minn.Stat. § 595.02, subd. 3?

5. Did the trial court's admission of C.B.'s out-of-court statements violate appellant's constitutional right to confront witnesses?

6. Did the trial court err in admitting Dr. Levitt's medical diagnosis of abuse and her opinion of T.C.'s truthfulness?

ANALYSIS

1. Statements of C.B. and T.C. to Dr. Levitt.

The trial court admitted statements of T.C. and C.B. to Dr. Levitt under Minn.R.Evid. 803(4), which allows admission of

[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.

Appellant claims that T.C. and C.B. did not make their statements to Dr. Levitt for the purpose of medical diagnosis or treatment, claiming that there was no "injury or illness" for which the patients sought treatment. We disagree. Appellant implies that sexual assault upon a child does not result in injury requiring medical investigation and diagnosis. When the police referred the children to Dr. Levitt, both had stated that they had been sexually assaulted. Their statements warranted medical examination and diagnosis.

Appellant also claims that the interviews with Dr. Levitt were made only for purposes of police investigation, and therefore were not conducted for a medical purpose. Disclosure of statements made for medical diagnosis is within Rule 803(4). Under these circumstances, considering the age of the children, and the fact that T.C. was available for cross-examination, there was no error. See State v. Serna, 290 N.W.2d 446 (Minn.1980). Before Dr. Levitt physically examined each child, she interviewed her to obtain an idea of what specific sexual contact, if any, may have occurred. The interviews also served to build trust between the doctor and the children to minimize the trauma of the physical examination. Therefore the statements made to Dr. Levitt before the physical examinations were admissible as medical histories pertinent to treatment. See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir.1980) (statements of sexual assault victim to doctor prior to physical examination admissible where they eliminate potential physical problems from the doctor's examination).

Dr. Levitt's testimony included statements of the children not admissible under Rule 803(4). Dr. Levitt testified that each child identified appellant as the man who had touched them. Such statements regarding...