State v. Webb

• Decision Date: 21 July 1989
• Docket Number: No. 20890,20890
• Citation: 779 P.2d 1108
• Parties: STATE of Utah, Plaintiff and Appellee, v. Daniel Lawrence WEBB, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1108

779 P.2d 1108

STATE of Utah, Plaintiff and Appellee, v. Daniel Lawrence WEBB, Defendant and Appellant.

No. 20890.

Supreme Court of Utah.

July 21, 1989.

Walter F. Bugden, Jr., Salt Lake City, James L. Shumate, Cedar City, and Edward K. Brass, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Kimberly K. Hornak, Salt Lake City, for plaintiff and appellee.

ZIMMERMAN, Justice:

Defendant Daniel Webb appeals from a jury verdict finding him guilty of aggravated sexual abuse of a child, a first degree felony, for which he was given a minimum mandatory prison sentence of three years. See Utah Code Ann. § 76-5-404.1(3)(b), (4) (Supp.1984). He contends, inter alia, that the trial court erred in ruling that hearsay statements by the eighteen-month-old alleged victim, who was not present at trial, qualified for admission into evidence under section 76-5-411(1) of the Code. Utah Code Ann. § 76-5-411(1)(b) (Supp.1988). We reverse the conviction.

The evidence presented at trial will be summarized. The alleged victim was eighteen months old at the time of the incident and is the daughter of Webb and his former wife, Cindy. Webb visited his daughter at Cindy's apartment in Ferron, Utah, on Sunday, September 30, and Monday, October 1, 1984. On Sunday, Cindy was with Webb and the child at the apartment. On Monday, Webb had sole custody of the child while Cindy worked. She returned to the apartment in the late afternoon where Webb, Cindy, and the child had dinner. Cindy then gave the child a bath. She testified that as she lowered the child into the bath water, the child said, "Ow bum." After the bath, Cindy examined the child's bottom. During that examination, the child said, "Ow bum daddy." According to Cindy, the child's anus was red and swollen and "looked kind of like it does when you have hemorroids [sic]."

After Webb left, Cindy took the child to the Price Pediatric Clinic, where she was examined by a Dr. Ammerman. The doctor, a pediatrician, observed an anal tear. At his direction, a photograph of the child's bottom was taken. The photograph was admitted into evidence at trial. Dr. Ammerman opined that the child had been abused.

Dr. Snelling, a pediatric resident at Primary Children's Medical Center and the University of Utah Medical Center, examined the child on Wednesday, October 3rd, two days after the visit to Dr. Ammerman. Dr. Snelling testified that her examination did not reveal a tear, a fissure, or any bruising of the anal area. She opined that the child had not been abused.

Dr. Palmer, a pediatrician at Primary Children's Medical Center and the University of Utah Medical Center who specializes in child sexual abuse, reviewed the medical records, the report of Dr. Snelling, and the photograph. He testified that "if it is an injury, if it is, it represents a fissure rather than a tear." Dr. Palmer explained that a tear "tends to be a deeper injury such as obstetrical kinds of tears associated with delivery of the baby," while a fissure is superficial "like the cracks we all get in our lips when we get them dry." He was of the opinion, however, that the photograph showed only mucous membrane and not a fissure or an injury. Dr. Palmer stated that given the amount of traction apparent in the photograph where the buttocks were pulled back to give a good picture of the anus, any fissure or tear present would have resulted in visible moisture and blood in the photograph. Yet in the photograph, no blood and little moisture is present. Dr. Palmer also testified that bruising occurs along with an anal tear and will not heal in 48-72 hours, which in this case was the time period between the child's visit to Dr. Ammerman and the examination by Dr. Snelling. Dr. Palmer was unable to find bruising in the photograph of the child's bottom.

During trial, Webb objected on grounds of hearsay and lack of foundation to the admission of testimony concerning his daughter's out-of-court statements. The trial court, after holding a hearing out of the presence of the jury, overruled the objections and permitted the testimony to be received. The court concluded that section 76-5-410 of the Code ¹ made the child a competent witness and that section 76-5-411(1)(b) of the Code authorized the admission of the hearsay, despite the absence of the child at trial. Utah Code Ann. §§ 76-5-410, 411(1)(b) (Supp.1988).

The jury convicted Webb of aggravated sexual abuse of a child. He was given a minimum mandatory sentence of three years in prison. Utah Code Ann. § 76-5-404.1(3)(b) (Supp.1988). Thereafter, the trial court issued a certificate of probable cause, and Webb was released on bond pending the disposition of this appeal.

Before this Court, Webb argues, inter alia, that the trial court erred in admitting the testimony regarding the child's out-of-court statements. Webb acknowledges that under section 76-5-411(1)(b), hearsay statements of a child who is an alleged victim of sexual abuse may be admitted into evidence. However, he contends that one of the preconditions section 76-5-411(1)(b) sets for admission was not satisfied. Specifically, he contends that the State did not show that the "child [was] not available to testify in court." Id. Section 76-5-411 reads in material part:

(1) Notwithstanding any rule of evidence, a child victim's out of court statement regarding sexual abuse of that child is admissible as evidence though it does not qualify under an existing hearsay exception, if:

(a) the child is available to testify in court or as provided by Subsection 77-35-15.5(2) or (3);

(b) in the event the child is not available to testify in court or as provided by Subsection 77-35-15.5(2) or (3), there is other corroborative evidence of the abuse; or

(c) the statement qualifies for admission under Subsection 77-35-15.5(1).

(2) Prior to admission of any statement into evidence under this section, the judge shall determine whether the interest of justice will best be served by admission of that statement. In making this determination the judge shall consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child. ²

....

(4) For purposes of this section, a child is a person under the age of 12 years.

Utah Code Ann. § 76-5-411 (emphasis added). ³

Admission of hearsay statements by child sexual abuse victims is relatively new to our law. Until the enactment of section 76-5-410, which effectively made it impossible to challenge the competency to testify of a child sexual abuse victim, it was almost certain that the testimony of a child as young as the victim here would not be admissible. Cf. State v. Cooley, 603 P.2d 800, 802-03 (Utah 1979) (admission of testimony of three-year-old witness over defendant's objection was error when court failed to examine witness to determine competency). However, in 1983, sections 76-5-410 and 76-5-411 were enacted as part of a package that made it easier to introduce children's testimony in child sexual abuse cases and that imposed harsher sentences on offenders. 1983 Utah Laws ch. 88, §§ 29, 30. In 1985, the legislature further liberalized the rules of evidence by permitting the admission of children's testimony taken out of the presence of the court and, under some circumstances, out of the presence of the defendant or defendant's counsel. 1985 Utah Laws ch. 74, § 3; see Utah Code Ann. § 77-35-15.5 (Supp.1985). These statutes are not unique to Utah. In substance, section 76-5-411 is derived from provisions first enacted in Washington state, and the videotaping and other out-of-the-presence-of-the-court provisions of section 77-35-15.5 follow the pattern set by statutes in many other states. Compare Utah Code Ann. § 76-5-411 (Supp.1983) with Wash.Rev.Code § 9A.44.120 (1987) (enacted 1982). See Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806, 811-16 (1985) [hereinafter Note, 98 Harv.L.Rev. 806].

Because these statutes have removed long-standing barriers to the admission of certain forms of hearsay evidence and, under certain circumstances, reduced a defendant's ability to challenge that evidence through the traditional methods of face-to-face confrontation and cross-examination, they raise serious constitutional questions. See State v. Nelson, 725 P.2d 1353, 1355 n. 3 (Utah 1986); Note, 98 Harv.L.Rev. 806. We have had relatively little occasion to address the constitutional implications of section 76-5-411 (or of the related provisions of sections 76-5-410 and 77-35-15.5). In State v. Nelson, we held that the admission of a child's out-of-court statements under subpart (1)(a) of section 76-5-411 does not deprive a defendant of confrontation rights because the child declarant must still be available for cross-examination, even if the defendant does not, in fact, conduct such an examination. 725 P.2d at 1357. But until today, we have not addressed subsection 76-5-411(1)(b), which provides for the admission of hearsay even when the declarant is not available for cross-examination. ⁴

In the rush to facilitate the prosecution of child sexual abuse cases, we must be wary of measures that may infringe the right of confrontation, one of the core elements of the right to due process of law. See Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); cf. State v. Rimmasch, 775 P.2d 388, 390-93 (1989). In State v. Anderson, 612 P.2d 778 (Utah 1980), we summarized the values protected by the constitutional right of confrontation, which is preserved by both the sixth amendment to the United States Constitution and article I, section 12 of the Utah Constitution. U.S. Const. amend. VI; Utah Const. art. I, § 12:

Classically, the primary object of the constitutional right of confrontation is to prevent depositions and ex parte affidavits from being used against the accused at trial in lieu...