State v. Klein, 89-0132-CR

Decision Date23 August 1989
Docket NumberNo. 89-0132-CR,89-0132-CR
Citation447 N.W.2d 539,152 Wis.2d 88
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Raymond J. KLEIN, Defendant-Appellant.
CourtWisconsin Court of Appeals

Circuit Court, Sheboygan County.

AFFIRMED.

APPEAL from a judgment and an order of the circuit court for Sheboygan county: Daniel P. Anderson, Judge.

Before BROWN, P.J., and SCOTT and NETTESHEIM, JJ.

SCOTT, Judge.

Raymond J. Klein appeals from a judgment convicting him of first-degree sexual assault, contrary to sec. 940.255, Stats., and from an order denying him postconviction relief under sec. 974.06, Stats. Klein claims the trial court erred in admitting as excited utterances the statements of the child victim and in declaring her unavailable as a witness. We conclude that the statements were properly admitted and the child properly declared unavailable. We affirm the judgment and order.

Klein was convicted of sexually assaulting S.G., age three. At the time of the assault, Klein was visiting at the home of a friend, Guadalupe Rosales. S.G. is the daughter of L.G., a friend of Rosales. Klein had never met either L.G. or S.G. before that day.

Rosales and L.G. went out for the evening, leaving Rosales' brother, Juan Santoya, to babysit for S.G. and Rosales' two children. Klein remained after the women left.

At some point in the evening, Santoya was in the basement with Rosales' children; S.G. was upstairs where Klein was watching TV and drinking beer. Santoya testified that he heard S.G. say, "[N]o ... don't touch me ... ow" and went upstairs to investigate. There he saw Klein on the couch holding S.G. on his lap, his hand inside her pants "[touching] her private parts."

After observing "two or three more times to make sure," Santoya made his presence known when S.G. again protested and began to cry. Klein then put S.G. down and "fix[ed] his pants." S.G. looked "scared." Santoya asked her if the "man in there touch[ed]" her. She responded, "[H]e pee-pee" and said he had put his hand "in her." Santoya confronted Klein with S.G.'s accusations. Klein denied them and left. Santoya called the police.

S.G.'s mother, located by the police, returned home to find S.G. "real upset." Asked by her mother what happened, S.G. replied, "[H]e touched my pee-pee," referring to her vagina. Klein was arrested and charged with first-degree sexual assault.

Before trial, a hearing was held to determine, for confrontation purposes, the availability of S.G., by then three and one-half years old. Based on the testimony of S.G.'s mother and that of a protective services social worker, the court found S.G. unavailable to testify.

Klein ultimately was convicted of first-degree sexual assault. His sentence, an indeterminate term of not more than sixty months in the county jail, was stayed. He was placed on five years' probation, a condition of which was nine months in the county jail, the first four and one-half months without work release privileges. Further conditions mandated alcohol assessment and forbade unsupervised contact with any child under the age of eighteen.

After trial, Klein sought postconviction relief under sec. 974.06, Stats., on three claims. He alleged that the trial court erred in admitting as "excited utterances" S.G.'s statements to her mother and babysitter, in declaring S.G. unavailable as a witness, and in denying his trial counsel's motion to adjourn. The latter claim is not raised on appeal. His motion was denied. Klein now appeals both the judgment of conviction and the order denying his postconviction motion.

We first determine whether S.G.'s out-of-court statements, unquestionably hearsay, were admissible as an exception to the hearsay rule. The admission of evidence is within the discretion of the trial court. State v. Dwyer, 143 Wis.2d 448, 457, 422 N.W.2d 121, 124 (Ct.App.1988). However, discretion contemplates factual findings based upon an examination of the evidence and the application of those facts to proper legal standards. Id. We will not find an abuse of discretion unless the factual findings are unsupported by the evidence or the court has applied an erroneous view of the law. Id.

The trial court found S.G.'s statements to be admissible as excited utterances under sec. 908.03(2), Stats., which provides:

Hearsay exceptions; availability of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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(2) EXCITED UTTERANCE. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Klein disputes the applicability of the excited utterance exception. First, he argues that it was the mother and babysitter, not S.G., who were panicked and upset. Second, he argues that S.G.'s statements that Klein touched her were not spontaneous, but were offered in response to questions.

We note at the outset that Klein did not object at trial to the admission as excited utterances of S.G.'s out-of-court statements. His right to raise it on appeal is waived. See State v. Marshall, 113 Wis.2d 643, 653, 335 N.W.2d 612, 617 (1983). Even if that were not so, neither of Klein's objections persuades us.

The excited utterance exception to the hearsay rule is given a broad and liberal construction when applied to young children. State v. Padilla, 110 Wis.2d 414, 419, 329 N.W.2d 263, 266 (Ct.App.1982). Stress and spontaneity are the key determinants. Id. at 421, 329 N.W.2d at 267. There can be little doubt that a three-year-old child would be stressed when improperly fondled, especially by a man she did not know. Furthermore, S.G.'s mother, babysitter, and a registered nurse who examined S.G. at the hospital emergency room all testified that S.G. looked "scared," "real upset" or "frightened." The facts and that testimony, we are satisfied, fulfill the "stress" requirement.

Klein's second objection, that S.G.'s statements were not spontaneous, also fails. Just because a child sexual assault victim's statements are not volunteered but made in response to questions, it does not necessarily rob them of their spontaneity. Bertrang v. State, 50 Wis.2d 702, 707, 184 N.W.2d 867, 870 (1971). The rule instead asks whether the statements proceeded from natural feeling, without external constraint. Padilla, 110 Wis.2d at 421, 329 N.W.2d at 267. The underlying basis for the excited utterance exception is that people instinctively tell the truth, but when they have time to stop and think, they may lie. Id. at 418, 329 N.W.2d at 266.

Only moments elapsed between the time Santoya saw S.G. on Klein's lap and...

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