State v. Sorenson, 86-0124

• Decision Date: 18 December 1986
• Docket Number: No. 86-0124,86-0124
• Citation: 135 Wis.2d 468,400 N.W.2d 508
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald D. SORENSON, Defendant-Appellant. * CR.
• Court: Wisconsin Court of Appeals

Page 508

400 N.W.2d 508

135 Wis.2d 468

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald D. SORENSON, Defendant-Appellant. ^*

No. 86-0124 CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 13, 1986.

Opinion Released Dec. 18, 1986.

Opinion Filed Dec. 18, 1986.

Teresa M. Elguezabel and La Follette & Sinykin, Madison, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Daniel J. O'Brien, Asst. Atty. Gen., for plaintiff-respondent.

Before GARTZKE, P.J., DYKMAN and EICH, JJ.

GARTZKE, Presiding Judge.

Ronald Sorenson appeals from a judgment of conviction for first-degree sexual assault. Sec 940.225(1)(d), Stats. The complainant is Sorenson's seven-year-old daughter. The dispositive issue is whether sufficient evidence was presented at the preliminary hearing to bind him over for trial. That issue turns on whether the trial court properly admitted hearsay evidence at the preliminary hearing. We conclude that the court erred and reverse.

Defendant's daughter refused to testify at the preliminary hearing. The trial court declared her an unavailable witness. The state then called a social worker who testified over objection that by demonstration through the use of anatomically correct dolls, the child said that defendant and her uncle had sexual intercourse with her. The child's statement that her father had intercourse with her came one hour into the social worker's interview with her and was in response to a question whether any family member other than her uncle had had sexual intercourse with her. The interview was held March 15, 1985, "within six weeks" after the alleged assaults had occurred. The only other evidence presented by the state at the preliminary hearing was a medical report that the child had had vaginal intercourse. The court bound the defendant over for trial on the basis of this evidence.

A preliminary examination is held to determine whether "there is probable cause to believe a felony has been committed by the defendant." Sec. 970.03(1), Stats. If probable cause has been shown, the court must bind the defendant over for trial, but if the court does not find such probable cause, it must discharge the defendant. Sec. 970.03(7) and (9).

A defendant is entitled to appellate review of the validity of his bindover for trial even after trial and conviction. See, e.g., State v. Olson, 75 Wis.2d 575, 250 N.W.2d 12 (1977); State ex rel. McCaffrey v. Shanks, 124 Wis.2d 216, 224, 369 N.W.2d 743, 748 (Ct.App.1985).

Appellate review of the bindover is de novo. We "examine the factual record [of the preliminary] ab initio and decide as a matter of law whether the evidence constitutes probable cause." State v. Williams, 104 Wis.2d 15, 22, 310 N.W.2d 601, 605 (1981).

The rules of evidence, including the hearsay rules, apply to preliminary hearings. Mitchell v. State, 84 Wis.2d 325, 330, 267 N.W.2d 349, 352 (1978). No special exceptions exist for a preliminary hearing. For that reason the Mitchell court refused to adopt a rule permitting the admission of hearsay evidence at preliminary hearings. Mitchell, 84 Wis.2d at 334, 267 N.W.2d at 354.

Although the admission of evidence is discretionary, that discretion is abused and the trial court errs if it fails to apply accepted legal standards. State v. Alsteen, 108 Wis.2d 723, 727, 324 N.W.2d 426, 428 (1982). When determining whether probable cause was shown to justify a bindover, we must therefore take into account only properly admitted evidence, excluding erroneously admitted hearsay evidence.

The trial court admitted the social worker's testimony on an expanded interpretation of the hearsay exception for former testimony. Sec. 908.045(1), Stats. Rather than rely on that ground, the state argues that two alternative hearsay exceptions support the ruling.

The first exception is statements against interest, sec. 908.045(4), Stats. We hold the exception is inapplicable. It applies to a statement which when made so far tended to make the declarant an object of hatred, ridicule or disgrace that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. Id. The state contends that because the child would be subjected to her father's hatred and to ridicule by those who may not believe her, her statement to the social worker was against her interest. The record, however, is devoid of evidence that when she told the social worker her father had had intercourse with her, the child was aware that she would be subject to her father's hatred or to the ridicule of others. ¹

The state also relies on the residual exception in sec. 908.045(6), Stats., under which hearsay testimony "having comparable circumstantial guarantees of trustworthiness" may be admitted. Using the factors for the "excited utterance" exception for children discussed in Bertrang v. State, 50 Wis.2d 702, 708, 184 N.W.2d 867, 870 (1971), the state argues that the child's statement to the social worker is trustworthy and therefore qualifies for the residual exception.

"The residual exception thus focuses ... on the character of the statements and the circumstances under which they are made...." Mitchell, 84 Wis.2d at 333, 267 N.W.2d at 353. The Bertrang court used the same rationale when it held that a trial court did not abuse its discretion by admitting a mother's testimony that the day after an alleged assault her nine-year-old child told her about the assault. The Bertrang court applied the "res gestae" exception, the key elements of which it described as "contemporaneity and spontaneity." 50 Wis.2d at 706, 184 N.W.2d at 869.

The Bertrang court concluded that although the trial court had admitted the mother's testimony on grounds other than contemporaneity and spontaneity, the undisputed facts satisfied both elements. 50 Wis.2d at 708, 184 N.W.2d at 870. Whether those elements are satisfied is therefore a question of law if, as here, the historical facts are undisputed. Those facts are the circumstances surrounding the interview as described by the social worker.

We conclude that the facts surrounding the interview satisfy neither the element of contemporaneity nor that of spontaneity. Since the interview was held "within" six weeks of the alleged offense, a full six weeks may have elapsed between the time of the offense and the time the statement was given. A six-week interval destroys the possibility of contemporaneity. Spontaneity is absent. A child's statement given one hour into an interview in response to a social worker's questions, is an evoked statement and is not spontaneous. ²

We conclude that the trial court abused its discretion when it admitted the testimony of the social worker to the effect that the child said defendant had assaulted her. Since no other evidence was submitted at the preliminary hearing to establish that fact, probable cause was not shown. Defendant should have been discharged and not bound over for trial. ³

We conclude that because defendant was improperly bound over for trial, the judgment of conviction must be reversed.

Judgment of conviction reversed.

EICH, Judge concurring...