State v. Carver

• Decision Date: 21 January 1986
• Docket Number: No. C5-85-711,C5-85-711
• Citation: 380 N.W.2d 821
• Parties: STATE of Minnesota, Respondent, v. James CARVER, Appellant.
• Court: Minnesota Court of Appeals

Page 821

380 N.W.2d 821

STATE of Minnesota, Respondent, v. James CARVER, Appellant.

No. C5-85-711.

Court of Appeals of Minnesota.

Jan. 21, 1986.

Review Denied March 27, 1986.

Syllabus by the Court

1. Trial court did not abuse its discretion in finding that two five-year old children were competent witnesses.

2. Hearsay statements by children who were unavailable as witnesses were improperly admitted under Minn.Stat. § 595.02, subd. 3.

3. There was insufficient evidence to support two convictions of first degree criminal sexual conduct.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Tom Foley, Ramsey Co. Atty., Darrell C. Hill, Asst., St. Paul, for respondent.

Douglas Thomson, Deborah Ellis, St. Paul, for appellant.

Heard, considered and decided by POPOVICH, C.J., LESLIE and NIERENGARTEN, JJ.

OPINION

NIERENGARTEN, Judge.

Appellant James Carver was convicted by a Ramsey County District Court jury of three counts of first degree criminal sexual conduct, Minn.Stat. § 609.342, (a) (Supp.1985), and four counts of second degree criminal sexual conduct, Minn.Stat. § 609.343, (a) (Supp.1985). Carver contends the trial court abused its discretion when it found two children competent to testify and that the procedures used to determine competency were improper. Carver further contends that the trial court erred in admitting hearsay statements under Minn.Stat. § 595.02, subd. 3 and that his right to confront witnesses was violated. Carver also raises sufficiency of evidence and sentencing issues.

FACTS

Carver was charged on November 6, 1984 with seven crimes allegedly committed August 23, 1984 in his garage in West St. Paul:

I. Second degree criminal sexual conduct with R.K., age 5;

II. First degree criminal sexual conduct with M.A.W., age 5;

III. Second degree criminal sexual conduct with M.A.W.;

IV. First degree criminal sexual conduct with M.M.W., age 2;

V. Second degree criminal sexual conduct with M.M.W.;

VI. First degree criminal sexual conduct with C.C., age 3; and

VII. Second degree criminal sexual conduct with C.C.

Carver was arrested on August 26, 1984 and advised of his Miranda rights. He told the arresting officer that he had been in Little Falls since August 22nd but later told a police investigator that four children were playing in his yard, but were never in his house or garage.

The state sought trial testimony from M.A.W. and R.K., both age five, and C.C., age three. The trial court, with both counsel and defendant present, conducted a preliminary examination of the children in the absence of the jury to determine if they were competent to testify. The prosecutor also questioned the children, but defense counsel was only allowed to submit written questions through the court. The court found that only the two five-year-olds, M.A.W. and R.K., were competent to testify.

The prosecution offered the testimony of a doctor who had examined the children and concluded that they had been sexually abused. She reported various statements made in the course of her examination and questioning of the children. Only a few brief statements were made by C.C. and M.M.W., the youngest children. The state also offered testimony by the mother of M.A.W. and M.M.W. that they once said that appellant had orally penetrated them. The record does not disclose any of the circumstances surrounding this initial allegation of sexual penetration. Defense counsel objected to the testimony on the grounds of hearsay and stated that Minn.Stat. § 595.02 was unconstitutional.

The trial court admitted the testimony of the doctor and the mother under Minn.Stat. § 595.02, subd. 3. By the time this ruling was placed on the record they had already testified, the state had rested, and appellant had decided to testify. The court stated that the two witnesses were "reliable persons" and found that:

the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability.

Carver testified that he saw the four children in the alley by his garage and they asked if they could see his turtle. Carver refused and the children got mad and called him gay. Carver said that he made "a mistake" when he told the police he was out of town; he denied any sexual activity with the children.

The jury found Carver guilty on all seven counts. Carver's motion for a new trial was denied and he was sentenced as follows:

Count II: 43 months executed.

Count IV: 43 months executed to be served consecutive to the sentence on Count II.

Count VI: 65 months to be served concurrently with previous sentences.

Count I: 34 months to be served concurrently.

Carver's convictions on the three lesser included offenses (counts III, V, and VII) were vacated.

ISSUES

1. Did the trial court abuse its discretion when it found two five-year-old children competent to testify?

2. Did the trial court err in admitting hearsay statements under Minn.Stat. § 595.02, subd. 3?

3. Was the evidence sufficient to support appellant's convictions?

ANALYSIS

I

In Minnesota, every person of sufficient understanding may testify in a criminal proceeding. See Minn.Stat. § 595.02, subd. 1 (1984). Several exceptions include:

children under ten years of age, if [they] lack capacity to remember or to relate truthfully facts respecting which they are examined, are not competent witnesses. A child describing any act of sexual contact or penetration performed on or with the child by another may use language appropriate for a child of that age.

Minn.Stat. § 595.02, subd. 1(f) (1984).

Determination of witness competency rests in the discretion of the trial judge whose finding will not be reversed unless it is a clear abuse of discretion. State v. Cermak, 350 N.W.2d 328, 332 (Minn.1984); State v. Amos, 347 N.W.2d 498, 501 (Minn.1984).

Carver contends that the trial court abused its discretion when it found R.K. and M.A.W. competent to testify without examining them on the substance of their trial testimony. We disagree. The language of the statute contemplates only that the child be able to "relate truthfully facts respecting which they are examined." Minn.Stat. § 595.02, subd. 1(f) (1984). The trial court, in cases of this nature, "should not elicit from the child the anticipated testimony concerning the alleged offense, recognizing the suggestibility of young children." Moll v. State, 351 N.W.2d 639, 643 (Minn.Ct.App.1984).

The trial court, the prosecutor, and defense counsel examined the children on various factual matters. The court evaluated their responses and concluded that R.K. and M.A.W. were competent to testify. The statute does not require more.

Carver also challenges the procedures used at the competency hearing, contending that the trial court erred by permitting the prosecutor to examine the children and limiting defense counsel to written questions.

This court has set forth in detail the procedures to be used at competency hearings. See Moll, 351 N.W.2d at 643-45. Here the defendant's role at the hearing clearly exceeded the minimum participation by a defendant recommended in Moll.

II

Minn.Stat. § 595.02, subd. 3 provides that:

An out-of-court statement made by a child under the age of ten years * * * alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child by * * * another, not otherwise admissible by statute or rule of evidence, is admissible in evidence if:

(a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

(b) the child * * * either:

(i) testifies at the proceedings; or

(ii) is unavailable as a witness and there is corroborative evidence of the act; and

(c) the proponent of the statement notifies the adverse party of his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which he intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Minn.Stat. § 595.02, subd. 3 (Supp.1985). Subdivision 3 was added in 1984. See 1984 Minn.Laws ch. 588, § 5. The statute is a legislative enactment of an exception to the hearsay rule. See Minn.R.Evid. 802.

Here the trial court specifically relied on Minn.Stat. § 595.02, subd. 3 in admitting hearsay statements made by all four children to a doctor and the mother of two of the children. The statute requires that the trial court hold a hearing and make different findings depending on whether a child is available or unavailable as a witness. See Minn.Stat. § 595.02, subd. 3. Two of the children, M.A.W. and R.K., testified at trial; C.C. was found incompetent to testify and the state did not offer the testimony of M.M.W., the youngest child.

A. Statements by M.A.W. and R.K.

When a child is available as a witness, the trial court may admit his or her hearsay statements if it finds that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide "sufficient indicia of reliability." Minn.Stat. § 595.02, subd. 3(a). Our review of the record has convinced us that the trial court properly admitted the statements made by these two children because their trial testimony was largely consistent with their earlier statements and Carver had an opportunity to cross-examine them. This court has upheld the admission of similar hearsay statements under Minn.R.Evid. 803(24). See D.A.H. v. G.A.H., 371 N.W.2d 1, 3-4 (Minn.Ct.App.1985), pet. for rev. denied (Minn. Sept. 19, 1985); In re M.N.D. v. B.M.D., 356 N.W.2d 813, 818 (Minn.Ct.App.1984).

However, the trial court's apparent failure to hold a hearing before the admission of the hearsay testimony is...