State v. McAway

• Decision Date: 23 May 1995
• Docket Number: No. 20682,20682
• Citation: 896 P.2d 962,127 Idaho 54
• Court: Idaho Supreme Court
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Henry Clyde McAWAY, Defendant-Appellant. Boise, December 1994 Term

Page 962

896 P.2d 962

127 Idaho 54

The STATE of Idaho, Plaintiff-Respondent, v. Henry Clyde McAWAY, Defendant-Appellant.

No. 20682.

Supreme Court of Idaho,

Boise, December 1994 Term.

May 23, 1995.

Alan E. Trimming, Ada County Public Defender, Richard D. Toothman, Deputy Public Defender (argued), Boise, for appellant.

Alan G. Lance, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen. (argued), Boise, for respondent.

SILAK, Justice.

This is an appeal from a conviction of two counts of lewd conduct with minor children, specifically, the appellant's stepdaughter and daughter. Appellant also appeals from two concurrent sentences of twenty years determinate

[127 Idaho 57] with an indeterminate term of up to life. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

In 1988, Candi Crill was a single mother living in Boise, Idaho with her two-year-old daughter, B. She met the appellant Henry McAway (McAway) through acquaintances, and when McAway moved to Boise from California in June 1988 and needed a place to live, Ms. Crill invited him to stay with her. A relationship began, and shortly thereafter, Ms. Crill became pregnant. Crill and McAway were married in the fall of 1988. Their daughter, K., was born in March 1989.

At the time of his marriage to Crill, McAway was on medication for a psychiatric problem which he told Crill was manic depression. He did not work and stayed home with B. In August 1988, McAway began to show symptoms of mental illness. He was thereafter committed to State Hospital South and diagnosed as schizophrenic. After his release in October 1988, he was referred to mental health services for continued treatment and monitoring of his medication. He exhibited no signs of serious mental health problems until March 1990.

In retrospect, Crill was concerned about B.'s reaction to McAway. Crill and her mother both noticed that B. did not want to be left alone with McAway. Crill noticed that B. became withdrawn, angry and verbally abusive. B. also became compulsive about brushing her teeth and washing her hands.

Crill also noticed that K. had begun to experience difficulties. At first she grew normally, but she stopped growing at about three or four months, despite the fact that she wanted to nurse constantly. Crill also noticed spotting of blood in K.'s diapers.

In February 1990, McAway stopped taking his medication. One day in April, he took K. into a back room and told Crill that he was going to take K. with him to heaven. The police were called and were able to talk McAway into handing over K. He was later placed at State Hospital South.

In May 1990, B. told her mother McAway had touched her in a way she did not like, and had also touched K. and that he had forced her to touch K. Crill then brought her daughters to be examined by a doctor at the CARES (Children at Risk Evaluation Services) unit in Boise. The doctors opined that both girls had been sexually abused.

During B.'s visit to the CARES unit, she was also interviewed by a registered nurse with extensive training and experience in interviewing children. The interview was videotaped. Although B. did not give a detailed account of the sexual abuse, her statements indicated that McAway had been the perpetrator of the abuse.

In the months that followed, B.'s behavior became alarming: she attempted self-mutilation and showed suicidal tendencies. In April 1991, B.'s psychological condition and behavior had deteriorated to the point that she was hospitalized for five weeks.

In June 1991, McAway was charged by indictment with two counts of lewd conduct with minor children pursuant to I.C. § 18-1508. The case did not go to trial until May 1993 due to protracted proceedings concerning McAway's competence to stand trial. During the trial, B., then seven years old, testified that McAway sexually abused her. On cross-examination, defense counsel inquired as to whether her mother had instructed her to accuse McAway. B. testified in the negative. The state then sought to have the CARES videotape introduced into evidence. The tape was admitted over the objections of defense counsel.

The jury found McAway guilty of both counts of lewd conduct with minor children, and he was thereafter sentenced to two concurrent determinate periods of twenty years with indeterminate terms of up to life in prison. McAway appeals both his conviction and his sentence.

II. ISSUES ON APPEAL

1. Whether the district court acted properly in admitting the videotape of the CARES interview of a four year old

[127 Idaho 58] child named as the victim of lewd conduct.

(a) Whether the district court properly exercised its discretion in ruling that the probative value of the exhibit was not substantially outweighed by the danger of unfair prejudice, and whether it was otherwise admissible under I.R.E. 403.

(b) Whether the admission of the videotape was consistent with McAway's right of confrontation, where the child testified and was cross-examined at trial.

(c) Whether the admission of the videotape was consistent with McAway's right to due process.

2. Whether the district court properly exercised its discretion in sentencing McAway to serve two concurrent terms of 20 years to life for two counts of lewd conduct.

III. ANALYSIS

A. THE DISTRICT COURT PROPERLY ADMITTED THE VIDEOTAPE OF THE CARES INTERVIEW OF McAWAY'S STEPDAUGHTER, THE FOUR-YEAR-OLD CHILD NAMED AS ONE OF THE VICTIMS OF HIS LEWD CONDUCT.

1. The District Court Properly Exercised Its Discretion In Ruling That The Probative Value Of The Exhibit Was Not Substantially Outweighed By The Danger Of Unfair Prejudice, And That It Was Otherwise Admissible Under I.R.E. 403.

McAway argues that admission of the videotape was in violation of I.R.E. 403 because the probative value of the tape was outweighed by its undue prejudice. McAway claims that admission of the tape was an abuse of the hearsay rule because it was improperly used to bolster the credibility of the witness. We disagree.

Rule 403 of the Idaho Rules of Evidence provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The determination of whether relevant evidence is substantially outweighed by the other considerations set forth in I.R.E. 403 is within the discretion of the trial court. State v. Winn, 121 Idaho 850, 853, 828 P.2d 879, 882 (1992); State v. Enno, 119 Idaho 392, 405, 807 P.2d 610, 623 (1991). We hold that the district court properly exercised its discretion in admitting the CARES videotape of the interview with B. for several reasons.

First, pursuant to I.R.E. 403, the tape was relevant evidence as to the identity of the perpetrator of the sexual abuse. Secondly, there was no unfair prejudice to McAway as B. did not provide any details of the sexual abuse, but referred to the abuse only indirectly. Furthermore, the record indicates that CARES interviews must follow very specific guidelines, e.g., the interviewer is unaware of the nature and specifics of the allegations at the time of the interview; the interviewer attempts to obtain the information through the use of open-ended, non-leading questions; and the interviews are videotaped, with both the interviewer and the subject visible throughout the interview. Thirdly, the admission of the tape did not mislead the jury or cause any undue delay. Finally, with respect to the needless presentation of cumulative evidence element, we hold that this evidence was not needless as it was a prior consistent statement pursuant to I.R.E. 801(d)(1)(B). This rule provides:

(d) Statements which are not hearsay. A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive,....

The circumstances of this case are unique. The sexual abuse of B. took place over a two 2. The Admission Of The Videotape Was Consistent With McAway's Right of Confrontation, Where The Child Testified And Was Cross-Examined At Trial.

[127 Idaho 59] year period when B. was between the ages of two and four. However, due to questions regarding McAway's competency, the case was not tried until three years later, when B. was seven. At the trial, B. testified as to the abuse that had earlier taken place. On cross-examination, McAway attempted to elicit testimony which would support his claim that B.'s mother spent the three years before the trial programming her to say that McAway had abused her. The state then sought to introduce the videotape as a prior consistent statement to rebut McAway's charge of recent fabrication pursuant to I.R.E. 801(d)(1)(B). We hold that the videotape was admissible for this purpose. The most effective way for the jury to evaluate a claim of recent fabrication was to view B.'s conversation with a neutral interviewer, in her mother's absence, three years previously, very near to the time of the initial disclosure. The jury was able to see not only that B. named McAway as her abuser at that time, but that she did so spontaneously and without prompting. Thus, the videotape had substantial probative value on the issue of whether there had been recent fabrication or improper influence. Weighed against this, there was little danger of unfair prejudice.

McAway argues that even if the videotape was admissible under I.R.E. 803(24), the catchall exception to the hearsay rule, its admission violated the Confrontation Clause of the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, because the videotape was simply a device to...