State v. Messner

• Decision Date: 18 August 1998
• Docket Number: No. 980040,980040
• Citation: 1998 ND 151,583 N.W.2d 109
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kevin MESSNER, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 109

583 N.W.2d 109

1998 ND 151

STATE of North Dakota, Plaintiff and Appellee, v. Kevin MESSNER, Defendant and Appellant.

Criminal No. 980040.

Supreme Court of North Dakota.

Aug. 18, 1998.

Terence P. Devine, State's Attorney, Lakota, for plaintiff and appellee.

Richard Edward Edinger, Moorhead, for defendant and appellant.

MESCHKE, Justice.

¶1 Kevin Messner appealed a criminal judgment on jury verdicts finding him guilty of two counts of gross sexual imposition. We hold the trial court did not breach the Confrontation Clause nor abuse its discretion in admitting statements by a five-year-old victim to an interviewer and in allowing related evidence. We affirm.

I

¶2 On May 3, 1996, the mother of five-year-old A.M. contacted the sheriff of Nelson County to report her suspicions A.M. had been sexually abused. On several occasions, she had witnessed eight-year-old J.M. behaving inappropriately with little girls including A.M. The mother was primarily concerned with stopping the sexual misconduct of J.M., but she also suspected Kevin Messner.

¶3 On May 14, 1996, Randy Slavens, a social worker for the North Dakota Department of Human Services, videotaped his interview with A.M. This was the first interview of A.M. During the interview, when asked if anybody touched her in the genital area, A.M. said "Kevin does it." Through the use of drawings and anatomically correct dolls, A.M. described in detail being sexually abused by J.M. and Messner.

¶4 Messner was tried by a jury in November of 1997. A.M.'s mother testified about several incidents she had seen. Once, she saw Messner moving A.M. back and forth upon himself in a sexual manner. Another time, she caught Messner with a hand down A.M.'s pants. Another time still, she found A.M. and J.M. naked and in physical contact with each other in Messner's home after Messner denied the children were there.

¶5 On objection by Messner, the court kept the jury from seeing the videotape of A.M.'s interview. The trial court also refused to allow testimony by a relative of the victim and by another social worker about unrecorded out-of-court statements by A.M., but the court allowed the interviewer to tell the jury what A.M. told him during the taped interview about being sexually abused by Messner. At trial, A.M., who was then six, gave limited and hesitant testimony. Her testimony was somewhat confused and inconsistent, but confirmed she had been sexually abused by Messner.

¶6 The defense subpoenaed Dr. Miller, a pediatrician, to testify by telephone. He had examined A.M. on November 21, 1996, and he testified her condition was completely normal. However, on cross-examination, he testified the results of the examination were completely compatible with the type of abuse described by A.M.

¶7The jury returned verdicts finding Messner guilty on two counts of gross sexual imposition. Messner appealed the convictions.

II

¶8 Messner contends the trial court committed reversible error by allowing the social worker to testify about what A.M. said when he interviewed her. Messner argues his federal constitutional rights were violated because the Confrontation Clause of the Sixth Amendment to the Constitution of the United States, applicable to the states through the Fourteenth Amendment, declares "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." ¹ As State v. Wicks, 1998 ND 76, p 17, 576 N.W.2d 518, explained, our standard of review for a claimed violation of a constitutional right is de novo.

¶9 In this case, the Confrontation Clause was satisfied because the declarant, A.M., was available for cross-examination and actually testified in court. See California v. Green, 399 U.S. 149, 157-64, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). When a child-victim is available at trial for cross-examination about her prior out-of-court statements, the Confrontation Clause is not violated by admission of her prior statements. Johnson v. Lockhart, 71 F.3d 319, 320-21 (8th Cir.1995); Dolny v. Erickson, 32 F.3d 381, 385-86 (8th Cir.1994); United States v. Tome, 3 F.3d 342, 351-52 (10th Cir.1993); United States v. Spotted War Bonnet, 933 F.2d 1471, 1473-74 (8th Cir.1991); Story v. Collins, 920 F.2d 1247, 1255 (5th Cir.1991). State v. Rojas, 524 N.W.2d 659, 664 (Iowa 1994), explained: "Although mere physical presence of the declarant is not sufficient to satisfy the Constitutional requirement, a perfectly satisfactory cross-examination is not required."

¶10 "[T]he question is whether there is 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " Spotted War Bonnet, 933 F.2d at 1474. "The concerns animating the Confrontation Clause are satisfied as long as the defendant has the opportunity to expose weaknesses in the witness' testimony." Tome, 3 F.3d at 352. Tome at 352 (citing United States v. Owens, 484 U.S. 554, 559-60, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) and Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)), added: "Forgetfulness, for example, does not render cross-examination constitutionally infirm because the defense can use the witness's poor memory and trial demeanor to attack the witness's credibility."

¶11 Here, Messner had the opportunity for effective cross-examination. The incidents with him happened more than a year and a half before trial. For her age, A.M. testified in open court as well as could be expected about a subject so personal and sensitive as sexual abuse. In his cross-examination of her, Messner tested whether A.M. had been coached, and he established A.M. did not remember very much. We conclude Messner's confrontation rights were not violated.

¶12 Even if A.M. were deemed unavailable for cross-examination, it does not necessarily follow Messner's confrontation rights were compromised. The Confrontation Clause does not require an accused be given the absolute right to confront and cross-examine an adverse witness. See Idaho v. Wright, 497 U.S. 805, 813-14, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The United States Supreme Court has "consistently held that the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause." Id. at 813, 110 S.Ct. 3139. In Wright, 497 U.S. at 814-16, 110 S.Ct. 3139, the Court explained the hearsay statements of an unavailable child-victim of sexual abuse may be admissible under the Confrontation Clause, if the statement bears adequate indicia of reliability upon a showing of particularized guarantees of trustworthiness. We look at that subject next.

III

¶13 Messner argues A.M.'s statements to the social worker were inadmissible as hearsay. Generally, we review a trial court's evidentiary rulings under an abuse of discretion standard. State v. Christensen, 1997 ND 57, p 5, 561 N.W.2d 631. A trial court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. Id. at p 5.

¶14 A young child's statement about sexual abuse can be admissible under one of the many exceptions to the general rule against hearsay evidence:

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.

N.D.R.Ev. 803(24). Messner contends A.M.'s statements to the social worker lacked sufficient guarantees of trustworthiness for admissibility under this exception. We disagree.

¶15 In assessing the admissibility of a child's hearsay statement about sexual abuse under the Confrontation Clause, the United States Supreme Court has identified several factors to consider in deciding whether there are particularized guarantees of trustworthiness. Factors to consider include spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of motive to fabricate. Idaho v. Wright, 497 U.S. at 821-22, 110 S.Ct. 3139. These factors are also the relevant ones under N.D.R.Ev. 803(24) for deciding whether A.M.'s statements have sufficient guarantees of trustworthiness.

A. Spontaneity and Consistent Repetition

¶16 When asked if anybody touched her in the genital area, A.M. unexpectedly said "Kevin does it" without having been asked what Messner had done. Before her interview with the social worker, no one had questioned A.M. about Messner. A.M. had not told her mother about the abuse.

¶17 During the interview, A.M. repeatedly said Messner gave her bad touches and he was not her friend. There were some inconsistencies but, through the use of anatomical dolls, A.M. described in detail being sexually abused by Messner. A.M. also consistently differentiated between J.M. and Messner.

B. Mental State of the Declarant

¶18 The videotape of A.M.'s interview depicted an alert five-year-old giving intelligent and candid, although sometimes hesitant, answers. She appeared animated during the videotaped interview, except when she withdrew into a fetal position when discussing intimate body parts. A.M. was more descriptive and assertive when using dolls, and A.M. insisted on using a different male doll to distinguish Messner from J.M. She corrected the social worker when he confused Messner with J.M.

C. Use of...