State v. Loughton, 20661

• Decision Date: 25 November 1987
• Docket Number: No. 20661,20661
• Citation: 747 P.2d 426
• Parties: STATE of Utah, Plaintiff and Respondent, v. Paul A. LOUGHTON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 426

747 P.2d 426

STATE of Utah, Plaintiff and Respondent, v. Paul A. LOUGHTON, Defendant and Appellant.

No. 20661.

Supreme Court of Utah.

Nov. 25, 1987.

Gary H. Weight, Provo, for defendant and appellant.

David L. Wilkinson, David B. Thompson, Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

Defendant Paul Loughton was charged with sexual abuse of his three-year-old daughter. He was convicted of lewdness involving a child, a class A misdemeanor. He appeals.

In July of 1983, defendant and his wife separated. She filed for divorce in October of 1983, and the trial was set for February of 1984. She had custody of the couple's three-year-old daughter, and he had visitation rights during the separation pending the trial. In January of 1984 on the way home from a visit with her father, the little girl reportedly said to her mother: "Guess what, daddy didn't poke my bottom this time." Defendant's wife filed a criminal complaint charging him with sexually abusing their daughter.

The child was examined by a medical doctor, William Palmer, and a psychologist, Ann Tyler. They prepared reports for the criminal investigation and subsequent prosecution of defendant. Dr. Tyler interviewed the child on two occasions; both of the interviews were videotaped. Dr. Howell, a court-appointed psychologist, was present during the second interview. He also filed a report.

Defendant filed three pretrial motions seeking a bill of particulars and "production of documents and things." ¹ The prosecution delivered the doctors' reports and the mother's journal entries, but not the videotaped interviews. During the trial, the prosecution filed notice of its intent to introduce the videotapes as evidence at trial.

Defendant also filed pretrial motions seeking a judicial determination of the competency of the child as a witness and the admissibility of the child's out-of-court statements. Defendant challenged the validity of Utah Code Ann. § 76-5-410 (1978, Supp.1983), ² which makes a child victim of sexual abuse under ten competent to testify without prior qualification, and § 76-5-411, ³ which allows for the admission of a child victim's out-of-court statements regarding sexual abuse. The district court ruled that section 76-5-410 was controlling and therefore declined to make a judicial determination as to the child's competency to testify. It also ruled that section 76-5-411 was valid on its face, but declined to decide what particular evidence would be admissible under that section until trial.

At trial, the child was called as a witness for the prosecution and was cross-examined by the defense. The child's out-of-court statements made to her mother and to the doctors were admitted over defendant's objections, as were the videotapes of the interviews with Dr. Tyler. In its closing argument, the prosecution asked the court to consider lewdness involving a child, a misdemeanor under Utah Code Ann. § 76-9-702.5 (1978, Supp.1987), ⁴ as a lesser included offense. Defendant waived his right to a jury trial, and the trial judge found him guilty of lewdness involving a child.

I.

Defendant contends that section 76-5-411 denied him his right to equal protection of the law because the statute arbitrarily distinguishes between victims under ten years of age and those over ten years of age. ⁵ He argues that an accused whose alleged victim is under ten can be convicted on hearsay testimony that would not be admissible if the alleged victim were over ten years of age, thus denying the accused equal protection.

The legislature's power to make classifications is not disputed. However, those classifications may not be arbitrary and capricious and must bear a reasonable relationship to the purpose of the legislation. Lyte v. District Court of Salt Lake County, 90 Utah 377, 62 P.2d 1117 (1936); Texas Oklahoma Express v. Sorenson, 652 P.2d 285 (Okla.1982); see Thompson v. Salt Lake City Corp., 724 P.2d 958 (Utah 1986); Malan v. Lewis, 693 P.2d 661 (Utah 1984); see generally 16A Am.Jur.2d Constitutional Law §§ 740, 746, 753, 817 (1979).

Section 76-5-411 is designed to allow into evidence out-of-court statements made by child victims of sexual abuse regarding the incidents. Such statements, made nearer to the time of the incident and removed from the pressure of a courtroom situation, could be the most accurate accounts of the incident available. A young child may not be able or willing to testify when placed in a stressful courtroom situation. Thus, the need for the statements made by the victim at the time the incident allegedly occurred, prior to trial, is clear. While it may be difficult to distinguish between a particular nine- or ten-year-old, there are clear distinctions in physical and emotional maturity between the victim in this case, a three-year-old child, and children over ten. The legislative classification is not arbitrary or capricious. Rather, it is reasonably related to the purpose of the legislation. Older children are better able to recall and relate the details of the incident; they are more able to fix the time of occurrence. Thus the need to admit their prior out-of-court statements is not as great. We do not find that the classification denied defendant his right to equal protection.

II.

Defendant maintains that he was denied the right of confrontation guaranteed him by both the state and federal constitutions. The United States Constitution, amendment VI and the Utah Constitution article I, section 12, give defendant the right to confront the witnesses called against him at trial. We have held that where a witness testifies at trial and is available for cross-examination, admission of the out-of-court statements of the witness under section 76-5-411 does not violate the defendant's right to confrontation. State v. Nelson, 725 P.2d 1353 (Utah 1986). This is in accord with the view taken by the United States Supreme Court in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

In the instant case, the child witness testified at trial. On cross-examination, the defense was successful in eliciting the following testimony supporting its theory of the case that defendant was merely putting medicine on the child.

Q. ... Do you know if your daddy ever put medicine on you or vaseline when you were red and sore?

A. That is what he did, that is what he did.

Q. That is what he did?

A. Yes.

Q. So he only touched you or poked you when he put something on you right?

A. He put medicine on it.

Q. When you were red?

A. Poked, that is what I meaned.

Q. Okay, no further questions on cross-examination.

Defendant was able to effectively cross-examine the child despite her young age. The persons relating the child's out-of-court statements were also subject to cross-examination concerning the statements. We cannot say, given the facts, that defendant was denied his right of confrontation.

III.

Can sections 76-5-410 and 76-5-411 be used to convict defendant of a charge "not amounting to sexual abuse"? Section 76-5-410 makes a "child victim of sexual abuse under the age of ten" competent to testify, and section 76-5-411 allows the admission of a "child victim's out-of-court statement regarding sexual abuse of that child." These extraordinary rules of evidence allow otherwise-inadmissible evidence to be used in trying a person charged with sexual abuse of a child. Defendant argues that these rules should not have been applied to convict him of lewdness involving a child which, by definition, is a crime "not amounting to ... sexual abuse" under section 76-9-702.5. He contends that the court determined the child was not a "victim of sexual abuse" as that term is defined. Thus, allowing the child to testify under section 76-5-410 and admitting the child's out-of-court statements under section 76-5-411 were improper.

Defendant's reading of the statute would require that there be a determination that the child was in fact a "victim of sexual abuse" before the hearsay testimony could be admitted or before the child could be allowed to testify under sections 76-5-410 and 76-5-411. Such a determination would require a trial within a trial. The purpose of these sections is to allow the court to hear what is often the only evidence that an abuse has taken place, the statements of the alleged victim. If a determination must be made prior to the admission of such evidence that the child was in fact a victim of sexual abuse, this purpose is defeated. The term "victim" as used in those sections is merely to identify the declarant and thus means an "alleged victim." Such a reading is consistent with the plain meaning and intent of the legislation. To read these sections as defendant suggests would require the court in many cases to find the defendant guilty before the prosecution could present its evidence. These sections were not intended to produce such a result.

Defendant was charged with sexual abuse of a child. Since the child was an alleged victim of sexual abuse and the statements were made "regarding sexual abuse of that child," allowing her to testify and admitting her out-of-court statements were proper under sections 76-5-410 and 76-5-411. The fact that a child's testimony or out-of-court statements were received pursuant to sections 76-5-410 and 76-5-411 does not preclude the prosecution from seeking a conviction on a lesser included offense.

IV.

Defendant's contention that sections 76-5-410 and 76-5-411 are void for vagueness is linked to his interpretation of those sections requiring a determination that the child is a victim before the statutes apply. We find defendant's contention without merit. The statutes as written do not leave "men of ordinary intelligence to guess at their meaning." Lanzetta v. New Jersey 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). The interpretation given these sections in State v. Nelson, supra, State v. Speer, 718 P.2d 383 (Utah 1986), and the instant case...