State v. Hirschkorn

• Citation: 2002 ND 36,640 N.W.2d 439
• Decision Date: 21 February 2002
• Docket Number: No. 20010094.,20010094.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Lance E. HIRSCHKORN, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

640 N.W.2d 439

2002 ND 36

STATE of North Dakota, Plaintiff and Appellee, v. Lance E. HIRSCHKORN, Defendant and Appellant.

No. 20010094.

Supreme Court of North Dakota.

February 21, 2002.

Cynthia Mae Feland, Assistant States Attorney, Bismarck, for plaintiff and appellee.

Wayne D. Goter, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Lance E. Hirschkorn appealed from a criminal judgment entered on a jury verdict finding him guilty of class B felony gross sexual imposition for engaging in sexual contact with a female under the age of 15 years. We conclude the trial court abused its discretion in admitting the child's hearsay statements about sexual abuse into evidence because the prosecutor failed to satisfy the foundational requirements for admitting the statements under N.D.R.Ev. 803(24). We further conclude admission of the evidence was obvious error affecting Hirschkorn's substantial rights under N.D.R.Crim.P. 52(b), and we reverse and remand for a new trial.

I

[¶ 2] On October 21, 1999, a mother was with her children in their home when she discovered her five-year old daughter in a bedroom with her pants pulled down and a Ken doll between her legs. When the mother asked her daughter what she was doing, the daughter told her "Uncle Lance told me not to tell." The mother called "Ask-A-Nurse" for assistance, and was told the information would be reported to the Burleigh County Sheriff's Department. Deputy Sheriff Gary Schaffer contacted the mother and arranged a meeting with Deb Osowski, a forensic interviewer at a Bismarck child advocacy center. During Osowski's October 27, 1999 interview with the child, the child indicated "Uncle Lance" had touched her "privates" in his bedroom at her grandmother's ranch near Wing. Lance Hirschkorn lives with his mother near Wing and is the younger brother of the child's father, who is divorced from the mother.

[¶ 3] On October 29, 1999, law enforcement officers obtained a warrant to search Hirschkorn's residence, seized videotapes from his bedroom, and arrested Hirschkorn. Hirschkorn was interviewed by Schaffer upon his arrival at the Sheriff's Department, and answered "I guess" or "I suppose" to questions tending to implicate him in having had sexual contact with the child. Hirschkorn was charged with gross sexual imposition in violation of N.D.C.C.§ 12.1-20-03(2)(a).

[¶ 4] On September 13, 2000, eight days before trial, the State moved under N.D.R.Ev. 803(24) to allow hearsay statements of the child admitted into evidence. Following a hearing on September 19, 2000, the trial court granted the motion, ruling the mother and Osowski could testify about statements the child had made to them about sexual abuse. The child testified at trial, but did not remember anyone touching her in a "bad place." The mother and Osowski testified about what the child had told them, but the trial court did not allow admission of a videotape of Osowski's interview with the child into evidence. Schaffer also testified, and an audiotape of his interview with Hirschkorn was played for the jury. Hirschkorn, his mother, and the child's father were called to testify by the defense. The jury returned a guilty verdict, and Hirschkorn was sentenced to ten years imprisonment, with seven years suspended.

II

[¶ 5] On appeal, Hirschkorn argues the trial court erred in granting the State's motion to allow the child's hearsay statements into evidence and in allowing Schaffer and Osowski to testify about the truthfulness of statements made to them.

[¶ 6] At trial, Hirschkorn did not make a hearsay objection to the testimony of the mother and Osowski about what the child told them. In State v. Wiest, 2001 ND 150, ¶ 6, 632 N.W.2d 812, we held, even if a defendant objects at the pretrial hearing on a N.D.R.Ev. 803(24) motion, failure to object at trial to testimony of a child victim's out-of-court statement regarding sexual abuse limits our inquiry to determining whether its admission into evidence constitutes obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). To establish obvious error, the defendant has the burden of showing (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law. State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658.

[¶ 7] The applicable legal rule in this case is N.D.R.Ev. 803(24):

Child's statement about sexual abuse. An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:

(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; 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 which is the subject of the statement.

We apply the abuse of discretion standard of review to a trial court's evidentiary rulings under N.D.R.Ev. 803(24), and we will not reverse unless the trial court acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. State v. Messner, 1998 N.D. 151, ¶ 13, 583 N.W.2d 109. [¶ 8] Hirschkorn first argues the State's motion was untimely because it was made only eight days before trial and he received less than 24 hours notice of the hearing on the motion. Hirschkorn claims he was prejudiced by the untimely notice because he had no time to serve subpoenas on witnesses to testify at the hearing and his defense counsel had inadequate time to prepare.

[¶ 9] Rule 803(24)(a), N.D.R.Ev., does not specify a deadline for bringing a motion to admit a child's statement about sexual abuse, but merely requires that a hearing be held "upon notice in advance of the trial of the sexual abuse issue." Most courts have adopted a flexible approach to the similar notice requirement under the residual exception to the hearsay rule. See 5 J. McLaughlin, Weinstein's Federal Evidence § 807.04[2] (2nd ed.2001); N.D.R.Ev. 807. Here, Hirschkorn's major complaint about the timeliness of the notice is unfair surprise. The proper remedy for unfair surprise is a continuance. State v. Gross, 351 N.W.2d 428, 433 (N.D.1984). A judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation. Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790. Hirschkorn did not request a continuance. Consequently, we conclude the alleged untimeliness of the State's motion and the hearing is not error.

[¶ 10] Hirschkorn also argues the State failed to establish a legal foundation for the use of the child's hearsay statements. Although this Court discussed N.D.R.Ev. 803(24) in Messner, 1998 N.D. 151, 583 N.W.2d 109, we have not addressed the procedural requirements for the "hearing" contemplated by the rule, and the rule itself does not expressly set them forth. The Explanatory Note to N.D.R.Ev. 803 states that paragraph (24) "is modeled in part after the Colorado and Utah statutes on a child victim's out-of-court statement regarding sexual abuse." The courts of Colorado and Utah have construed their similar rules codified in Colo.Rev.Stat. § 13-25-129 and Utah Code Ann. § 76-5-411 on various occasions, and their decisions on the subject are deserving of our consideration. See Wiest, 2001 ND 150, ¶ 7, 632 N.W.2d 812.

[¶ 11] Enactment of child-hearsay rules is intended to ensure that child abusers do not go free merely because the prosecutor is unable to obtain witnesses to the abuse other than the child, who is unable to testify about the abuse. Stevens v. People, 796 P.2d 946, 951 (Colo.1990). See also Annot., Validity, Construction, and Application of Child Hearsay Statutes, 71 A.L.R. 5th 637 (1999). While the child-hearsay rule permits the admission of otherwise inadmissible hearsay evidence in order to facilitate prosecution, the rule's requirements are also intended to safeguard the accused's right to confront the witnesses testifying against him. People v. Juvenile Court, 937 P.2d 758, 760 (Colo.1997). The child-hearsay rule is intended to balance the interests of the accused and the interests of the truth-seeking process. Wiest, 2001 ND 150, ¶ 7,632 N.W.2d 812. Indicia of reliability and guarantees of trustworthiness are constitutionally required before admission of hearsay statements to preserve the Sixth Amendment's basic interest in requiring "confrontation," even though an accused cannot directly confront the hearsay declarant. Idaho v. Wright, 497 U.S. 805, 814-16, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Messner, 1998 N.D. 151, ¶ 12,583 N.W.2d 109; Stevens, 796 P.2d at 952. Because of the importance of the accused's confrontation rights, the safeguards built into the child-hearsay rule must be strictly observed. State v. Loughton, 747 P.2d 426, 432 (Utah 1987).

[¶ 12] Although witness testimony is often given at hearings conducted under the child-hearsay rule, courts have ruled a determination that a witness's testimony contains sufficient indicia of reliability and guarantees of trustworthiness can be made without a hearing at which witnesses testify. See Juvenile Court, 937 P.2d at 761; People v. Guajardo, 262 Ill.App.3d 747, 201 Ill.Dec. 431, 636 N.E.2d 863, 871 (1994); State v. Nelson, 725 P.2d 1353, 1355 (Utah 1986). Consequently, in People v. Bowers, 801 P.2d 511, 520 (Colo.1990), the Colorado Supreme Court ruled a trial court's determination on reliability may be supported solely by a prosecutor's offer of proof. See also People v. Moss, 260 Ill.App.3d 272, 196 Ill.Dec. 685, 630 N.E.2d 850, 856 (1993...