State v. Robinson, CR-86-0076-PR

• Decision Date: 07 April 1987
• Docket Number: No. CR-86-0076-PR,CR-86-0076-PR
• Citation: 153 Ariz. 191,735 P.2d 801
• Parties: , 55 USLW 2589 The STATE of Arizona, Appellee, v. Michael Eugene ROBINSON, Appellant.
• Court: Arizona Supreme Court

Page 801

735 P.2d 801

153 Ariz. 191, 55 USLW 2589

The STATE of Arizona, Appellee, v. Michael Eugene ROBINSON, Appellant.

No. CR-86-0076-PR.

Supreme Court of Arizona, In Banc.

April 7, 1987.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Galen H. Wilkes, Phoenix, for appellee.

Elledge & Kelliher, P.C. by John F. Kelliher, Jr., Sierra Vista, for appellant.

FELDMAN, Vice Chief Justice.

A jury convicted defendant, Michael Eugene Robinson, of two counts of sexual conduct with a minor and two counts of child molestation. See A.R.S. §§ 13-1405, -1410. Robinson was sentenced to consecutive maximum terms of fourteen years for each count. The court of appeals affirmed the convictions and sentences. State v. Robinson, 153 Ariz. 188, 735 P.2d 798 (App.1986). We accepted review to examine three questions: (1) whether A.R.S. § 13-1416 (Supp.1986), a statutory hearsay exception, unconstitutionally infringes on this court's rulemaking powers; (2) whether the challenged hearsay statements could have been admitted under the Arizona Rules of Evidence; and (3) whether the imposition of consecutive sentences violated A.R.S. § 13-604(H). Rule 31.19(c)(4), Ariz.R.Crim.P., 17 A.R.S. (Supp.1986). We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, -4035.

I. FACTS

Robinson's primary argument challenges hearsay statements admitted pursuant to A.R.S. § 13-1416. A good deal of the evidence against Robinson, however, is not hearsay or is not challenged. We review this evidence before turning to the challenged evidence.

In 1984, Robinson lived with his family in Huachuca City, Arizona. He had two children, Cari, an eight-year-old stepdaughter, and Robert, age four. While his wife worked at Fort Huachuca, Robinson babysat his children and two neighborhood children, Nicole, age five, and Amy, age three.

On August 22, 1984, Nicole complained to her mother at breakfast that her vagina hurt. Nicole's mother discovered blood on Nicole's panties and a bruise on her labia. When asked what had happened, Nicole said Cari had poked her with a pencil. Asked if she had told Robinson what had happened, Nicole responded that she had, but that Robinson had only laughed. Nicole's mother then went to Robinson's trailer and asked about the incident. Robinson said he did not know what Nicole was talking about, but he then went to Nicole's trailer and told Nicole to tell her mother that "I didn't know nothing about it." Nicole then said, "Mommie, I lied, I didn't tell Mike."

Nicole's grandmother, a registered nurse, arrived and she too examined Nicole. Although she did not think the injury serious, she suggested that she and Nicole's mother take Nicole to their employer, Dr. Kroft, for examination. Before they left, Robinson told Nicole's mother, "I didn't touch [Nicole]. I promise, I didn't touch her. I don't know what happened." During the course of that day, Robinson made other statements denying that he had done anything to Nicole. He also called Nicole's mother at work four or five times to inquire about Nicole's condition and the doctor's examination. Robinson's denials were not prompted by accusations of wrongful conduct.

Dr. Kroft's examination revealed a nickel-sized bruise on Nicole's labia minora and a tear in her forchette, the area at the bottom of the vaginal opening. Dr. Kroft testified that these injuries were inconsistent with being poked with a pencil, but were consistent with simulated intercourse.

Robinson was charged with having improper sexual contact with Nicole and his stepdaughter, Cari. Cari testified via videotape at Robinson's trial, stating that Robinson did "nasty stuff" to her and Nicole on two occasions. ¹ On the first occasion, according to Cari, Robinson told Cari and Nicole to come into the bedroom with him. He then closed the door and told the girls to take off their clothes and get in bed. Cari testified that Robinson then took his clothes off and "put his weewee in my mouth" until "yucky stuff came out." Cari then got off the bed and Robinson did the same thing to Nicole. Cari testified that on the second occasion, she, Nicole, Amy, and Robert were all in the bedroom. Robinson again told Cari and Nicole to undress and get in bed. Then, Cari testified, Robinson "put his weewee in where it counts--in my private parts" and moved up and down. Cari then left the bed and Robinson did the same thing to Nicole. Robinson told Cari "don't tell nobody about it" or "I would get in trouble and Nicki would too." When asked if she had ever poked Nicole with a pencil, Cari said, "Not really, Nicki even told her mom that I didn't really do it. She was just scared."

In addition to Cari's testimony, the state presented testimony from Dr. Davis, the psychologist treating Nicole. She explained traumatic stress disorder, and testified that she had diagnosed Nicole as suffering acute post-traumatic stress disorder. Dr. Davis identified the relevant stressor as sexual abuse. She also testified that Nicole's behavioral changes--nightmares, wetting the bed, anger, inconsistent stories of the alleged events--were consistent with sexual abuse having occurred. ²

Nicole did not testify at Robinson's trial. She had attempted to testify at Robinson's previous trial, which ended in a hung jury. The judge presiding at the second trial found Nicole legally "unavailable" to testify due to an existing mental infirmity. ³ See Rule 804(a)(4), Ariz.R.Evid., 17A A.R.S. ⁴ Because Nicole's in-court testimony was unavailable, four of her out-of-court statements were introduced at trial pursuant to A.R.S. § 13-1416. Robinson challenges the introduction of these statements.

Dr. Kroft, Nicole's physician, testified that as she was preparing to swab Nicole's mouth to obtain a culture, Nicole said, "Mike put his weenee in there." Dr. Davis also testified that Nicole said Mike, her babysitter, had kissed her and placed his penis in her "privates" and in her mouth.

Danielle Parr also testified at trial. Danielle, a twelve-year-old, agreed to babysit Nicole on August 22 after Nicole was examined by Dr. Kroft. Danielle did not know why Dr. Kroft had examined Nicole. When she asked, Nicole said Cari had "poked a pencil up her butt." Nicole drew three pictures while she was with Danielle. Without any prompting by Danielle, Nicole explained that the pictures were, respectively, "a weenee ... with white stuff coming out," a picture of herself, nude, "when Mike was going to play a game ... with [me]," and a picture of Mike smiling.

Nicole's permanent babysitter, Carol Decker, testified about an incident that occurred on September 18, 1984. According to Ms. Decker, Nicole had gone across the street to play with a neighbor. The neighbor's mother saw Nicole put something in her mouth and asked her to open her mouth. Nicole refused to open her mouth and began crying. She then ran back to her trailer and jumped in Ms. Decker's lap. Nicole was sobbing and hyperventilating; it took Ms. Decker about twenty minutes to calm her. When Nicole did calm down, Ms. Decker asked her what was wrong.

I said, "Nicki, what's wrong. Why are you crying like this?" And she kept crying for a few minutes, and then calmed down, and then she told me that [the neighbor's] mother wanted her to open her mouth. And I said, "why?" And she said, "because I put something in my mouth." And I said, "well, why wouldn't you open your mouth," and she said, "I can't anymore." I said, "why?" "Because it's bad." And I said, "what do you mean it's bad?" And she said, "because of what Mike did," and I said, "well, what did Mike do?" And she said, "he put his thing in my mouth."

Robinson testified in his own defense. He denied touching or molesting Nicole or Cari and he recounted, in remarkable detail, his actions on the days the crimes allegedly occurred. He also denied telling Nicole's mother that he had not touched Nicole.

II. HEARSAY TESTIMONY

The testimony of Dr. Kroft, Dr. Davis, Danielle Parr, and Carol Decker relating Nicole's out-of-court statements was hearsay. Rule 801. Hearsay is admissible only if it falls within a recognized exception. Rule 802. In this case, the trial court admitted Dr. Davis's testimony under A.R.S. § 13-1416 and as a "statement[] for purposes of medical diagnosis or treatment." Rule 803(4). The other three hearsay statements were admitted pursuant to A.R.S. § 13-1416, which provides:

A. A statement made by a minor who is under the age of ten years describing any sexual offense performed with or on the minor by another person or any act of physical abuse of the minor, which is not otherwise admissible by statute or court rule, is admissible in evidence in any criminal or civil proceeding if both of the following are true:

1. The court finds, in an in camera hearing, that the time, content and circumstances of the statement provide sufficient indicia of reliability.

2. Either of the following is true:

(a) The minor testifies at the proceedings.

(b) The minor is unavailable as a witness, provided that if the minor is unavailable as a witness, the statement may be admitted only if there is corroborative evidence of the statement.

B. A statement shall not be admitted under this section unless the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

(emphasis added). ⁵

Robinson challenges the hearsay statements admitted against him on several grounds. He first argues that A.R.S. § 13-1416 unconstitutionally infringes on this court's authority to make procedural rules--specifically, the Arizona Rules of Evidence. Robinson then recognizes, as he must, that even if A.R.S. § 13-1416 is unconstitutional, the trial court's decision to admit the hearsay statements under the statute was harmless if the statements could have been...