State v. Doe

• Decision Date: 20 December 2004
• Docket Number: No. 29560.,29560.
• Citation: 140 Idaho 873,103 P.3d 967
• Parties: In the Interest of John Doe, A Juvenile. STATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant.
• Court: Idaho Court of Appeals

103 P.3d 967

140 Idaho 873

In the Interest of John Doe, A Juvenile.

STATE of Idaho, Plaintiff-Respondent, v. John DOE, Defendant-Appellant.

No. 29560.

Court of Appeals of Idaho.

December 20, 2004.

David John Knowlton, Ogden, Utah, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Judge.

John Doe appeals from the intermediate appellate order of the district court affirming the trial court's finding that Doe falls within the purview of the Juvenile Corrections Act (JCA) for committing lewd conduct upon a child under the age of sixteen. We affirm.

I. FACTUAL AND PROCEDURAL SUMMARY

Doe, a fourteen-year-old Utah resident, was camping with his family and other relatives at their property in Caribou County, Idaho as part of an annual Memorial Day get-together. After the group finished dinner in a one-room farmhouse located on the property, Doe and his four-year-old niece, E.L., began to "roughhouse" on the upper level of a bunk bed. After being told to settle down several times, Doe and E.L. left the farmhouse to play outside. Approximately twenty minutes later the adults heard E.L. crying hysterically. E.L.'s mother ran outside and found her daughter, who reported that Doe had "put his finger in her bum and that it hurt really bad." Inside the farmhouse, a few seconds later, a still hysterical E.L. repeated her statement to her mother and grandmother and pointed at her vaginal area to show where Doe had put his finger. A subsequent medical examination showed bruising to the introitus area of E.L.'s genitalia. The examining physician later testified that he concluded the injury had been caused by some sort of "penetrating trauma."

The state filed a juvenile petition against Doe, charging lewd conduct with a minor under sixteen years of age, I.C. § 18-1508. After an evidentiary hearing, the magistrate found Doe to be under the purview of the JCA, and ordered a suspended commitment to the Idaho Division of Juvenile Corrections. The magistrate placed Doe on probation for three years and entered a restitution order against Doe's parents. Doe appealed the magistrate's decision to the district court. The district court affirmed the magistrate's finding that Doe fell under the purview of the JCA and also affirmed the restitution order except to the extent that Doe's parents were ordered to pay restitution. Doe appeals from the district court's appellate decision and argues that the magistrate (1) abused his discretion in admitting certain hearsay statements; (2) denied Doe his constitutional right to confront witnesses; (3) erroneously admitted evidence of uncharged conduct; and (4) abused his discretion in ordering restitution.

II. STANDARD OF REVIEW

On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993).

III. ANALYSIS

A. Hearsay and Right to Confrontation

Doe argues that the magistrate abused his discretion in admitting statements made by E.L. to her mother and grandmother at the farmhouse as well as statements made by E.L. and her mother to the attending physician because the statements were hearsay. Doe also contends that the admission of these statements violated his constitutional right to confront witnesses. We address these issues in turn.

1. Farmhouse statements

The magistrate admitted three of E.L.'s farmhouse statements into evidence finding that the statements fell under the excited utterance exception to Idaho's hearsay rule. The magistrate specifically allowed into evidence (1) E.L.'s statement to her mother that Doe had "put his finger in her bum and that it hurt really bad," (2) E.L.'s reiteration of that statement, a few seconds later, to her mother and grandmother, and (3) E.L.'s pointing to her vaginal area in response to a question from her mother about where Doe had put his finger.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." I.R.E. 801(c); State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct.App.1994). Hearsay is inadmissible unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the Idaho Supreme Court. I.R.E. 802. The excited utterance exception to the hearsay rule authorizes the admission of hearsay if the testimony recounts a "statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition." I.R.E. 803(2). To fall within the excited utterance exception, an out-of-court statement must meet two requirements. First, there must be a startling event that renders inoperative the normal reflective thought process of the observer and second, the declarant's statement must be a spontaneous reaction to that event rather than the result of reflective thought. State v. Parker, 112 Idaho 1, 4, 730 P.2d 921, 924 (1986); State v. Hansen, 133 Idaho 323, 325, 986 P.2d 346, 348 (Ct.App.1999). Whether a statement falls within the excited utterance exception is left to the sound discretion of the trial court. State v. Bingham, 116 Idaho 415, 421, 776 P.2d 424, 430 (1989); Hansen, 133 Idaho at 325, 986 P.2d at 348. The decision to admit or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that discretion. State v. Hoover, 138 Idaho 414, 419, 64 P.3d 340, 345 (Ct.App.2003).

Doe asserts that E.L.'s statements do not meet either of the requirements necessary to fall within the excited utterance exception. Doe contends that one might "only speculate" that E.L. was crying in response to some act committed by Doe. Doe argues that the existence of some startling event in this matter can be identified only by assuming the truthfulness of E.L.'s statement. Accordingly, Doe asserts that the occurrence of some startling event in this case needed to be "established independent of the child's declaration." Doe offers no legal authority for this argument. Failure to provide legal citations waives the issue. I.A.R. 35(a)(6); State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Furthermore, Doe's argument ignores the corroborative testimony of the examining physician which indicated that the physical injury occurred by penetrating trauma.

In ruling on the admissibility of a statement under the excited utterance exception, the trial court considers the totality of circumstances surrounding the statement. Hoover, 138 Idaho at 419, 64 P.3d at 345. The circumstances to be considered include the amount of time that elapsed between the startling event and the statement, the nature of the condition or event, the age and condition of the declarant, the presence or absence of self-interest, and whether the statement was volunteered or made in response to a question. Hansen, 133 Idaho at 325, 986 P.2d at 348.

With regard to these circumstances, the evidence in this case established that E.L. made the statements within minutes of having suffered injury, as soon as her mother reached her; that the injury suffered was of an intimate and shocking nature; that E.L. was only four years old; and that the statements were made in response to her mother asking what was wrong upon finding E.L. crying hysterically. We conclude, in light of the evidence presented, that the magistrate was within his discretion in determining that E.L.'s statements were not the product of reflective thought. Accordingly, we also conclude that the magistrate did not abuse his discretion in determining that E.L.'s statements to her mother and grandmother, made moments after she was discovered crying hysterically, fell within the excited utterance exception to Idaho's hearsay rule. See State v. Kay, 129 Idaho 507, 927 P.2d 897 (Ct.App.1996); State v. Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct.App.1996); State v. Valverde, 128 Idaho 237, 912 P.2d 124 (Ct.App.1996); State v. Stover, 126 Idaho 258, 881 P.2d 553 (Ct.App.1994).

Doe also contends that the admission of E.L.'s statements at the farmhouse violated his constitutional right to confront witnesses. Doe, relying on Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), argues that those statements possess no particularized guarantees of trustworthiness and should have been excluded.

In Wright, the United States Supreme Court reiterated and applied an approach adopted in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for determining when statements admissible under an exception to the hearsay rule also satisfy the Confrontation Clause. The Roberts formulation requires that the prosecution generally must demonstrate the unavailability of the declarant whose out-of-court statement it wishes to use against the defendant; and once the unavailability is established, the statement is admissible only if it bears adequate indicia of reliability. Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 607. Roberts held that reliability can be inferred where the evidence falls within a "firmly rooted hearsay exception," but if a firmly rooted hearsay exception is not applicable, the Confrontation Clause precludes admission of the evidence unless the prosecution shows the statement carries "particularized guarantees of trustworthiness." Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.

Subsequent to the parties' briefing in this case, the Supreme Court released its opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which significantly altered Confrontation Clause analysis. Under Crawford, the initial focus is upon whether the statement was testimonial in nature and, if so, whether the defendant had an opportunity to cross-examine the...