State v. Nelson, 20327

• Decision Date: 16 September 1986
• Docket Number: No. 20327,20327
• Citation: 725 P.2d 1353
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Dale L. NELSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1353

725 P.2d 1353

The STATE of Utah, Plaintiff and Respondent, v. Dale L. NELSON, Defendant and Appellant.

No. 20327.

Supreme Court of Utah.

Sept. 16, 1986.

Don R. Peterson, Provo, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant Dale L. Nelson appeals his conviction for attempted sexual abuse of a child, a third degree felony. He argues that the admission of a hearsay statement of the child victim contravened the express limitations of subsection 76-5-411(1) of the Code, which makes such statements admissible only under specified circumstances. Alternatively, defendant contends that the statute allowing the admission of such testimony is unconstitutional because it denied him his right to confront a witness against him as guaranteed by both article I, section 12 of the Utah Constitution and the sixth amendment of the United States Constitution. We disagree and affirm the conviction.

On February 4, 1984, the victim, then aged eight, was visiting her paternal grandparents. The girl had been upstairs with her grandfather when, according to the trial testimony of her grandmother, she came downstairs and stated, "Grandpa pulled down my zipper." The incident was reported and subsequently investigated by Patti Winn, a detective with the Orem Police Department. On February 8th, Detective Winn interviewed the victim at her home. According to Winn's trial testimony, the victim said that defendant pulled her up onto his lap, unzipped the front of her pants, pulled her underpants aside, and rubbed her genitals. He stopped when another grandchild entered the room.

Winn also testified at trial regarding a pretrial interview she had with defendant. In the interview, defendant at first denied the incident, stating that his daughter-in-law, the victim's mother, was "out to get him." However, later in the interview he admitted to drinking some bourbon and fondling the child in the hope that he could overcome a sexual dysfunction of some twelve years' standing. ¹

At a bench trial on September 20, 1984, the State called the victim and Detective Winn as its only witnesses. On direct examination, the child testified that she knew Detective Winn, that Winn had talked with her during the previous winter, that she knew the difference between lying and telling the truth, and that she had told Winn the truth. She did not describe the incident in question. On cross-examination, defense counsel did not ask the child any questions about the substance of her conversation with Winn or about the alleged incident. There was no redirect examination, and the child was dismissed. The prosecution's version of the incident came in through Detective Winn as she described her interviews with the victim and with defendant.

Defendant testified that he was concerned about some unspecified prior occurrence involving his granddaughter. To explore that concern, he requested that the child come over to where he was sitting. He then asked her whether anyone had pulled down her zipper, demonstrating by doing so himself. Defendant stated that he did not unzip the child's pants below her navel, nor did he fondle her or tell Detective Winn that he had done so. He further stated that because he suffered from an ailment called Perone's Disease, he was incapable of feeling any sexual desire. The court found defendant guilty of attempted sexual abuse of a child. This appeal followed.

Defendant first contends that the out-of-court statements of the victim should not have been admitted because the prerequisites for such admission set out in subsection 76-5-411(1) were not satisfied. As it read at the time of defendant's trial, subsection 76-5-411(1) provided as follows:

(1) Notwithstanding any other provision of law or rule of evidence, a child victim's out of court statement regarding sexual abuse of the child is admissible into evidence though it does not qualify under an existing hearsay exception, so long as: (1) the child testifies; or (2) in the event the child does not testify, there is other corroborative evidence of the abuse. Before admitting such a statement into evidence, the judge shall determine whether the general purposes of the evidence are such that the interest of justice will best be served by admission of the statement into evidence. In addition, the court shall consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, the reliability of the assertion, and the reliability of the child witness, in deciding whether to admit such a statement.

1983 Utah Laws ch. 88, § 30 (emphasis added). ²

Because there was no "other corroborative evidence of the abuse," as required by subsection (1)(2) of the statute, the propriety of admitting the victim's out-of-court statements as direct evidence of the crime depends initially on whether the child "testifies" within the meaning of subsection (1)(1). Defendant contends that this subsection is not satisfied if the victim merely takes the stand; rather, it requires that the victim testify about the incident that constitutes the grounds for the criminal charges. We reject this argument as a matter of statutory construction. The statute requires only that the child declarant testify; it does not require that his or her testimony cover any specific subject matter.

This reading of the statute is consistent with the apparent purpose of subsections 76-5-411(1)(1) and (1)(2). When the two preconditions on the admission of hearsay statements by child victims there set out are read together, it appears that the legislature thought that adequate corroboration for the admission of hearsay statements by the victim would be provided if the victim was present in court to corroborate the hearsay or if there was other extrinsic evidence supporting the truth of the hearsay statements. Given this reasoning, the statute appears to be satisfied if the victim takes the stand and is subject to examination on the substance of the hearsay statement. No real purpose would be served by imposing a mechanical requirement that the child make an in-court formalistic statement of the substance of the out-of-court declaration before the hearsay is admitted. It should be enough that the victim is available at trial for examination on the matter.

In the present case, as noted infra, the victim was available to testify on cross-examination regarding the subject matter of the hearsay declarations. Therefore, the corroborative function the legislature apparently intended to be fulfilled by the requirement that the child testify was satisfied. The fact that defense counsel did not elicit any testimony on the point cannot be used as a basis for excluding the out-of-court hearsay. Defendant's conviction therefore cannot be set aside on the basis that the statutory requirements relating to the admission of hearsay statements were not satisfied. ³

Defendant next contends that even if the statutory requirements were met, the admission of hearsay statements pursuant to the statute violates his right to confront witnesses guaranteed by the state and federal constitutions. U.S. Const. amend. VI; Utah Const. art. I, § 12. Defendant makes two subsidiary arguments. First, he constitutionalizes his statutory construction argument by contending that unless the victim takes the stand and testifies about the incident in question, he will not be "confronted by the witnesses against him." Utah Const. art. I, § 12; see U.S. Const. amend. VI. This argument is without merit. The United States Supreme Court has stated that "where the declarant is not absent, but is present to testify and to submit to cross-examination ... the admission of his out-of-court statements does not create a confrontation problem" under the federal constitution. California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1970). There is nothing in Green to suggest that the witness's testimony on direct examination must cover any particular subject matter. Although the issue has not been decided under the Utah Constitution, we are not persuaded that the rule should be different. 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).

Defendant's alternative constitutional argument is that even though the victim took the stand and was subject to cross-examination, his right to confrontation was denied because the child was not amenable to a full and fair cross-examination for two reasons. First, he contends that because the prosecutor did not inquire into the substance of the conversation between the child and the detective, cross-examination on the details of the alleged abuse incident would have been beyond the scope of direct examination. Second, he asserts that the child was so...