State v. Muhle, 20060340.

• Decision Date: 22 August 2007
• Docket Number: No. 20060340.,20060340.
• Citation: 737 N.W.2d 636,2007 ND 131
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Shannon Renee MUHLE, Defendant and Appellant.
• Court: North Dakota Supreme Court

737 N.W.2d 636

2007 ND 131

STATE of North Dakota, Plaintiff and Appellee, v. Shannon Renee MUHLE, Defendant and Appellant.

No. 20060340.

Supreme Court of North Dakota.

August 22, 2007.

Mark R. Boening, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Ross W. Brandborg, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Shannon Muhle appeals from the district court judgment entered after a jury convicted her of gross sexual imposition and abuse or neglect of a child. Concluding that the children's pre-trial statements were properly admitted, that the prosecutor did not violate discovery rules, and that the evidence supports the verdict, we affirm.

I

[¶ 2] Shannon and Andrew Muhle are married and have three minor children, S.M., K.E., and G.E. On August 31, 2005, Tammy Anderson of Cass County Social Services interviewed all three Muhle children because of G.E.'s alleged sexual contact with a neighbor girl and with his half sister, S.M. Detective Timothy Runcorn took notes and made an audio recording of the interviews. According to Detective Runcorn's notes, both G.E. and S.M. had sexual contact with their parents, and K.E. had watched them. His notes also revealed that Andrew Muhle played a "secret game" with S.M. that included oral sex and intercourse, and that "sometimes Mom watches." During the interview, S.M. said this occurred in her parents' bedroom and downstairs on the couch. S.M. said the last time this happened was "Saturday." K.E. said he "spies" on his father and S.M. while they have "lots of sex." K.E. said Shannon Muhle did not know about it. K.E. also said that S.M. and G.E. have had sex in the basement. K.E. said he had heard Shannon Muhle say "let's go have sex" to G.E. K.E. said he then watched them go downstairs and listened to them making the same noises he had heard his mother and father make when they have sex. G.E. did not provide many details other than his statement that "bad things" happened at home. Anderson and Runcorn ended the August 2005 interview after they concluded they had enough evidence to remove the children and place them in protective custody. When they told G.E. that all three children would be taken away from their parents, he became "extremely upset" and said "we're not supposed to talk about that stuff any more." On the basis of the interviews and the examination of S.M., the Muhle children were placed in foster care. K.E. and G.E. were placed together, and S.M. was placed with another foster family.

[¶ 3] On September 1, 2005, Alonna Norberg, M.D., examined S.M. Dr. Norberg is a board-certified pediatrician who specializes in the diagnosis of child maltreatment including sexual abuse. According to Dr. Norberg's testimony, an accurate diagnosis requires taking a medical history directly from the child if the child is capable of understanding the questions and is developmentally able to articulate complaints, which she said S.M. was capable of doing. Furthermore, she testified that recording the child's terminology is important. Dr. Norberg testified that minor injuries to the genitalia of a child S.M.'s age heal within two to seven days and do not typically leave scars. Dr. Norberg testified S.M.'s main complaint to her was: "That daddy put his penis in my pussy," and "about her daddy peeing on her pussy, putting things into her hole or her pussy." Dr. Norberg discovered redness, abrasions, and cuts on S.M.'s genitalia. On the basis of the medical history and the physical examination, Dr. Norberg concluded that S.M. was the victim of "penetrating sexual abuse."

[¶ 4] In October 2005, the State charged Shannon Muhle with abuse or neglect of S.M. The State alleged that she "was aware of, but did nothing to stop, the fact that her husband, Andrew Bice Muhle, engaged in a sex act with their daughter, S.M. . . ." The State also charged Shannon Muhle with gross sexual imposition, alleging "that on one or more occasion ... Shannon Renee Muhle engaged in a sex act with G.E. . . ." The State charged Andrew Muhle with two counts of gross sexual imposition and abuse or neglect of a child.

[¶ 5] In May 2006, the State prepared the children to testify at trial; however, the prosecutor did not take notes or otherwise record the witness preparation sessions. Before trial, the State moved the court to determine whether audiotaped August 2005 interviews with the children were admissible. After a hearing, the district court ruled the statements of S.M. and K.E. were admissible. The court said it would not rule on the admissibility of G.E.'s statement because the State did not state an intent to offer that out-of-court statement at trial.

[¶ 6] On May 10-12, 2006, Shannon and Andrew Muhle were tried together before a jury. In his opening statement, the prosecutor referred to the likelihood that the content of the August 2005 interviews would be offered into evidence — if the children testified and were subject to cross-examination. The State told the district court that it would not be offering G.E.'s August 2005 statement. All three of the Muhle children testified and were subject to cross-examination at trial. At the time of trial, the three children were nine, seven, and five years of age. The statements of S.M. and K.E. were offered and admitted into evidence, except for the portion of their statements about being spanked, which were redacted by order of the court. The district court decided those statements might prejudice the defendants and confuse the jury, especially in light of the neglect or abuse charges. The jury listened to the audiotaped interviews, and they were given transcripts to follow during the playing of the tape. The transcripts were not offered as evidence.

[¶ 7] At trial, Shannon Muhle denied ever having sex with any of her children and denied knowing about any abuse of the children by her husband. The jury found Shannon Muhle guilty on all counts. She now appeals.

[¶ 8] The district court had jurisdiction of the criminal proceeding under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] Muhle contends the district court erred in admitting the children's prior out-of-court statements.

[¶ 10] "We review a district court's evidentiary ruling under an abuse-of-discretion standard." State v. Sevigny, 2006 ND 211, ¶ 24, 722 N.W.2d 515. "A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law." Id. (internal quotation and citation omitted).

[¶ 11] A child's out-of-court statements about sexual abuse are admissible under N.D.R.Ev. 803(24), which provides:

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) (emphasis added); see, e.g., State v. Blue, 2006 ND 134, ¶ 26, 717 N.W.2d 558.

[¶ 12] State v. Messner set forth factors to be considered for Rule 803(24) trustworthiness: (1) "spontaneity and consistent repetition" of the statements, (2) "the mental state of the declarant," (3) "use of terminology unexpected of a child of similar age," and (4) "a lack of motive to fabricate." State v. Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109 (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining "particularized guarantees of trustworthiness" under the [Confrontation] Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.

Wright, 497 U.S. at 822, 110 S.Ct. 3139. These factors have continuing vitality despite our having partially overruled Messner in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004):

The district court erred as a matter of law in determining the child was unavailable and that "reliability and trustworthiness" can supersede the constitutional demand of confrontation. The "reliability and trustworthiness" factors found in [State v.] Hirschkorn, 2002 ND 36, ¶¶ 12-13, 640 N.W.2d 439 and Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109, were created in reliance upon Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) and its progeny. The reliability and trustworthiness factors are still to be used for nontestimonial statements. United States v. Brun, 416 F.3d 703, 707 (8th Cir.2005). But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. To the extent Hirschkorn, 2002 ND 36, 640 N.W.2d 439, and Messner, 1998 ND 151, 583 N.W.2d 109, contradict the holding in Crawford, they are necessarily overruled.

Blue, 2006 ND 134, ¶ 21, 717 N.W.2d 558; see, e.g., Sevigny, 2006 ND 211, ¶¶ 25-27, 722 N.W.2d 515 (applying the Messner factors). Furthermore:

"A [district] court must make explicit findings as to what evidence it relied upon regarding the factors and explain its reasons for either admitting or excluding the testimony so a defendant can be assured the required...