State v. Rojas, 93-380

• Decision Date: 23 November 1994
• Docket Number: No. 93-380,93-380
• Citation: 524 N.W.2d 659
• Parties: STATE of Iowa, Appellee, v. Rene ROJAS, Appellant.
• Court: Iowa Supreme Court

Page 659

524 N.W.2d 659

STATE of Iowa, Appellee, v. Rene ROJAS, Appellant.

No. 93-380.

Supreme Court of Iowa.

Nov. 23, 1994.

Rehearing Denied Dec. 20, 1994.

Linda Del Gallo, State Appellate Defender, and Ahmet S. Gonlubol, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Sheryl A. Soich, Asst. Atty. Gen., Thomas S. Mullin, County Atty., and Carol J. Chase, Asst. County Atty., for appellee.

Considered by HARRIS, P.J., and CARTER, NEUMAN, ANDREASEN and TERNUS, JJ.

ANDREASEN, Justice.

The issue in this appeal is whether the court properly admitted a social worker's videotaped interview of a child sex abuse victim under Iowa Rule of Evidence 803(24) and Iowa Code section 910A.14(3) (1991) after the victim recanted her videotaped statements at trial. The district court found the defendant guilty of the criminal charges and entered judgment and sentence. The defendant's appeal was transferred to the Iowa Court of Appeals which affirmed the judgments. We granted defendant's application for further review. We now affirm the decision of the court of appeals and the district court judgments.

I. Background.

Rene Rojas was charged and convicted in a bench trial of three counts of sexual abuse in the second degree and one count of indecent contact with a child for abusing his ten-year-old daughter B.R. See Iowa Code §§ 709.3(2) and 709.12. Rojas was also charged and convicted of four counts of sexual abuse in the second degree for abusing A.M., the eight-year-old daughter of his long-time companion, Eva Farias. The two cases were consolidated for trial. Rojas appeals only the convictions relating to B.R.

During the investigation of the abuse, B.R. was interviewed by a social worker, Katie Boley. The interview was videotaped. B.R was also given a medical exam for signs of sexual abuse. The examining doctor opined that B.R.'s hymen had been penetrated repeatedly with an object as large as a finger or an erect male penis and that her rectum had also most likely been penetrated. The doctor did not ask about the abuse in the course of the examination because B.R. had already been interviewed by Boley.

At trial A.M. testified that Rojas had abused her on numerous occasions and that she had seen Rojas on top of B.R., but she could not remember whether their clothes were on or off. When B.R. testified, she recanted her previous allegations that her father was the one who abused her. She testified that her cousin Pepe had abused her, not her father. B.R. admitted she told Boley that her father had touched her. She said she had not told the truth because Eva's mother had threatened her. Rojas testified that Eva's mother was mad at him for beating up Eva, so she threatened both girls, telling them to falsely accuse him of sexual abuse.

Seven days before the trial the State filed a notice of its intent to use hearsay and videotape evidence at trial pursuant to Iowa Rule of Evidence 803(24) and Iowa Code section 910A.14(3) (1993). Finding the videotape to be trustworthy, the court admitted it under the residual exception to the hearsay rule. Rojas appeals the court's decision.

II. Scope of Review.

We generally review the admissibility of evidence under rule 803(24) for abuse of discretion. State v. Brown, 341 N.W.2d 10, 21 (Iowa 1983) (Larson, J., dissenting). Our review of Rojas' Sixth Amendment right to confrontation claim, however, is de novo. State v. Gregg, 464 N.W.2d 431, 432 (Iowa 1990).

III. Turecek Violation.

Rojas argues that the State committed a Turecek violation by calling B.R. to testify, knowing she would recant her allegations, solely for the purpose of admitting the videotape interview to impeach her recantation. See State v. Turecek, 456 N.W.2d 219, 225 (Iowa 1990) ("The State is not entitled ... to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible."); State v. Tracy, 482 N.W.2d 675, 679-80 (Iowa 1992) (admission of alleged victim's testimony to impeach recantation of her prior allegations of sexual abuse was reversible error). There is no Turecek violation here because we find the videotape was admissible under rule 803(24). Therefore, it would have been admissible regardless of whether B.R. testified. As a result, it was not admitted to impeach B.R.'s testimony. Rather, it was offered as admissible direct evidence of sexual abuse.

IV. Residual Exception.

Rojas argues that the videotape was improperly admitted under the residual exception to the hearsay rule in Iowa Rule of Evidence 803(24). The rule provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

....

(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can produce through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

The requirements for admissibility under the residual exception are five-fold: trustworthiness, materiality, necessity, service of the interests of justice, and notice. Brown, 341 N.W.2d at 14.

Iowa Code section 910A.14(3) makes special provision for admission of recorded statements of children describing sexual abuse. The statute provides:

The court may upon motion of a party admit into evidence the recorded statements of a child, as defined in section 702.5, describing sexual contact performed with or on the child, not otherwise admissible in evidence by statute or court rule if the court determines that the recorded statements substantially comport with the requirements for admission under Iowa rules of evidence 803(24) or 804(b)(5).

We read section 910A.14(3) as making it clear that the residual exception to the hearsay rule may be used to admit statements made by a child sex abuse victim when the requirements of the exception are met. The statute does not change the analysis under rule 803(24).

A. Trustworthiness.

Upon review of the videotape, we believe it has sufficient circumstantial guarantees of trustworthiness. The interviewer asked B.R. open-ended, non-leading questions. See United States v. Grooms, 978 F.2d 425, 427 (8th Cir.1992) (open-ended questions asked by interviewing agent supported circumstantial guarantees of trustworthiness). When B.R. said that her father had done bad things, Boley asked "What kind of bad things?" B.R. responded, "He put his thing on my thing." B.R. said she called her "thing" a "vagina" and her father's "thing" a "penis." Boley did not use the word "vagina" and "penis" in the interview until after B.R. supplied them. Boley also asked questions such as "How were your clothes" to which B.R. answered that her shirt was on, but her pants and underwear were down. In response to non-leading questions, B.R. also told her how her father's clothes were and that she had seen something white on her vagina which came from her father's penis. The non-leading questions Boley asked were not the kind that would prompt a child to fabricate the responses B.R. gave. See State v. Larson, 472 N.W.2d 120, 126 (Minn.1991), cert. denied, 502 U.S. 1071, 112 S.Ct. 965, 117 L.Ed.2d 131 (1992). In addition to providing a fairly detailed account of the abuse itself, B.R. remembered details such as where other family members were when the abuse occurred. See State v. Lonergan, 505 N.W.2d 349, 355 (Minn.App.1993) (child's good memory of details is a circumstantial guarantee of trustworthiness). B.R. also indicated that sometimes her vagina hurt when she went to the bathroom.

B.R.'s videotaped statements and descriptions about the abuse have a ring of veracity. See Grooms, 978 F.2d at 427 (citing United States v. Nick, 604 F.2d 1199, 1204 (9th Cir.1979)). The descriptions she gave, such as something white coming from her father's penis, are beyond the experience of the average ten-year-old. See State v. Sorenson, 143 Wis.2d 226, 249, 421 N.W.2d 77, 86 (1988) ("A young child is unlikely to fabricate a graphic account of sexual activity because it is beyond the realm of his or her experience."). Her statements were consistent throughout the interview. See Doe v. United States, 976 F.2d 1071, 1079 (7th Cir.1992) (reliability is generally enhanced when a child consistently repeats statement). We also note that the videotape is more reliable than many other forms of hearsay because the trier of fact could observe for itself how the questions were asked, what the declarant said, and the declarant's demeanor.

B. Other Requirements.

Because the videotape contained B.R.'s statement that Rojas sexually abused her, the materiality requirement is clearly met. Also, because the statement was the best direct evidence implicating Rojas as B.R.'s abuser, it was the most probative evidence linking Rojas to the crime. See Brown, 341 N.W.2d at 24 (Larson, J., dissenting). We are also satisfied that admitting the evidence serves the interests of justice. The appropriate showing of reliability and necessity were made, and admitting the evidence advances the goal of truth-seeking expressed in Iowa Rule of Evidence 102. See id. Rojas also received adequate notice of the State's intention to use the videotape at trial. We find the videotape was...