State v. Lenaburg, 860194

• Decision Date: 28 September 1989
• Docket Number: No. 860194,860194
• Citation: 781 P.2d 432
• Parties: STATE of Utah, Plaintiff and Respondent, v. George Edward LENABURG, Defendant and Appellant.
• Court: Utah Supreme Court

Page 432

781 P.2d 432

STATE of Utah, Plaintiff and Respondent, v. George Edward LENABURG, Defendant and Appellant.

No. 860194.

Supreme Court of Utah.

Sept. 28, 1989.

James L. Shumate, Cedar City, for defendant and appellant.

David L. Wilkinson, Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

HOWE, Associate Chief Justice:

Defendant George Edward Lenaburg appeals his conviction of aggravated sexual abuse of a child, Utah Code Ann. § 76-5-404.1 (Supp.1986) (amended, Supp.1989), a first degree felony.

Defendant shared a trailer home with James Hunting, Karen Pace, their infant son, and Pace's five-year-old daughter. On the evening of September 4, 1985, Hunting was away from the home. Karen Pace put her daughter to bed in the living room and then went to bed in her own room. Defendant went to bed in his room at the other end of the trailer. Sometime later, Pace was awakened by her daughter's screams. She testified that she saw defendant, holding a knife in the living room and her daughter, standing in the kitchen, "holding herself." Drops of blood were on the kitchen tile. Pace then went back to bed, because defendant told her she was having a bad dream. She took some medication before returning to bed. She testified that she was awakened again by her daughter's screams, and she ran to the living room and saw her daughter lying on the floor with her panties removed, her nightgown pulled up, and defendant kneeling over her. Defendant claimed he did not get up after going to bed that evening and presented evidence that Pace suffered from psychotic delusions.

On September 6, the child was examined by Evan Thorley, a physician's assistant. Dr. Paul Barney was present for the vaginal examination. Thorley found a recent tear, approximately two millimeters in length, in the vaginal synechia. He also found her hymen was not intact. The child was interviewed by Marjorie Schuldt of the Division of Family Services. A videotape of the interview was made following the procedures outlined in Utah Code Ann. § 77-35-15.5(1) (Supp.1986) (amended, Supp.1989). Defendant was subsequently charged with sexual abuse, and a pretrial hearing on the admissibility of the tape was held on January 6, 1986. The trial court found that (1) the videotape fully conformed to the requirements of section 77-35-15.5(1); (2) the child was unavailable as a witness under section 77-35-15.5(1)(h) based on expert testimony that she would suffer serious mental and emotional strain if required to testify at trial; and (3) under the criteria listed in Utah Code Ann. § 76-5-411(2) (Supp.1986) (amended, Supp.1989), the interests of justice would be served best by admission of the taped statements. The court also found that alternatively the tape qualified for admission under rules 803(24) and 804(b)(5) of the Utah Rules of Evidence.

The child was not present at the trial, and the videotape and the transcript of Schuldt's interview were admitted into evidence over defendant's objection. He called four witnesses who testified that he did not have a reputation for being a child abuser. Two of those witnesses testified that his reputation for truth and honesty was good. On cross-examination, the prosecution asked defendant's character witnesses if they would change their opinions if they knew of a circumstance where defendant had acted inappropriately with other young girls. Three of the witnesses stated that such an incident, if proved, may affect their opinions. On rebuttal, the prosecution called a witness who testified that defendant had acted inappropriately with her two young daughters some four and one-half years earlier at a holiday dinner.

Defendant objected to using specific instances of conduct to prove bad character. He also objected on the ground that the testimony should be excluded under rule 403 of the Utah Rules of Evidence. Defendant's objections were overruled, and the jury returned a verdict of guilty from which he now appeals.

Defendant first contends that admission of the videotape interview denied him the right to confront witnesses called against him as guaranteed by the sixth amendment to the United States Constitution and by article I, section 12 of the Utah Constitution. The denial of confrontation was raised in State v. Brooks, 638 P.2d 537 (Utah 1981) and in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In each case, a transcript of testimony given by a witness at a preliminary hearing was admitted into evidence at a subsequent trial. Ohio v. Roberts, 448 U.S. at 60, 100 S.Ct. at 2536, 65 L.Ed.2d at 604, and State v. Brooks, 638 P.2d at 538. Great emphasis was placed on the indicia of reliability inherent in such testimony and the opportunity the defendant had to face his accuser and to probe the testimony of the witness through cross-examination. The ability to probe the veracity of the testimony through cross-examination lies at the core of the right of confrontation. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965); State v. King, 24 Utah 482, 486, 68 P. 418, 419 (1902).

The videotape in the instant case was made pursuant to subsection (1) of section 77-35-15.5, which authorizes the making of a visual and aural recording on film of a child victim's oral statement. The oral statement may be recorded prior to the filing of criminal charges as was done in the instant case. Attorneys for the parties may not be in the child's presence or question the child. The tape is admissible in evidence provided, inter alia, the requirements of subsection (h) are met:

(h) The child is available to testify and to be cross-examined at trial, either in person or as provided by Subsection (2) or (3), or the court determines that the child is unavailable as a witness to testify at trial under the Utah Rules of Evidence. For purposes of this subsection "unavailable" includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial.

In State v. Mannion, 19 Utah 505, 57 P. 542 (1899), the defendant was convicted of attempted rape of his six-year-old daughter. At trial, the child took the stand and said, "I am afraid to tell, because I am afraid of my papa." Id. at 508, 57 P. at 542. The trial judge then seated the defendant in the corner of the courtroom, some twenty-four feet from the witness, and had the witness turn her chair toward the jury so that she could not see him. The defendant contended on appeal that he was denied his right of confrontation guaranteed by article I, section 12 of the Utah Constitution because he could neither hear nor see the witness as she testified. This Court reversed his conviction, stating:

Under the constitution and statutes of the state the accused had a right to be present at the trial, to be confronted by the witnesses against him, and to meet his accusers face to face. He also had the right to appear and defend against the accusation preferred against him in person and by counsel. He had the right, not only to examine the witnesses, but to see into the face of each witness while testifying against him, and to hear the testimony given upon the stand. He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established. By our constitution it is clearly made manifest that no man shall be tried and condemned in secret and unheard.

State v. Mannion, 19 Utah at 512-13, 57 P. at 544.

One justice of this Court concurred only in the result and expressed his opinion that the right of confrontation includes only that the witnesses for the prosecution are present at the trial, are examined in the presence and within the hearing of the accused and jury, and an opportunity is afforded the defendant for cross-examination. The justice opined that the right did not include that the defendant be permitted to sit immediately in front of the witness when such position would cause intimidation and prevent the eliciting of testimony. Id. at 517, 57 P. at 545.

Later cases have stressed the indispensibility of the right to cross-examine. In State v. Nelson, 725 P.2d 1353, 1356 (Utah 1986), we stated:

The essence of the confrontation right is the opportunity to have the accusing witness in court and subject to cross-examination, so that bias and credibility can be evaluated by the finder of fact. E.g., State v. Anderson, 612 P.2d 778, 785 (Utah 1980). If the witness is physically present and subject to cross-examination, as occurred here, these values would seem to be satisfied. See State v. Jolley, 571 P.2d 582, 585-86 (Utah 1977); State v. Mastropetre, 400 A.2d 276, 281 (Conn.1978).

In a recent decision of the United States Supreme Court, Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), an Iowa statute was struck down as being in violation of the defendant's right of confrontation guaranteed by the sixth amendment of the Constitution of the United States. The statute allowed the placing of a screen between a child witness and the defendant so that the witness could not see the defendant at all, but the defendant could hear her and dimly see her through the screen. All members of the Court agreed that the right conferred by the confrontation clause was not absolute. A majority of the Court held that the screen which made impossible eye-to-eye contact between the defendant and the two child witnesses was violative of his right of confrontation, at least in the absence of any individualized finding that the witnesses needed special protection. Id. at ----, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. Two justices dissented, expressing that under the Court's earlier decision in California v. Greene, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970), the defendant was only entitled to have the witnesses' testimony given under oath and subject to...