Welfare of L.E.P., In re

• Decision Date: 06 May 1999
• Docket Number: No. C-3-98-268,C-3-98-268
• Parties: In the Matter of the WELFARE OF L.E.P., Juvenile.
• Court: Minnesota Supreme Court

Page 163

594 N.W.2d 163

In the Matter of the WELFARE OF L.E.P., Juvenile.

No. C-3-98-268.

Supreme Court of Minnesota.

May 6, 1999.

Syllabus by the Court

Suppression of a videotaped interview of a 7-year-old victim of suspected sexual abuse significantly reduced the likelihood of successful prosecution of the charged offender for purposes of the critical impact test.

The videotaped interview offered by the state is admissible under Minn.Stat. § 595.02, subd. 3 (1998) as a statement of a child under age 10 regarding sexual abuse because the circumstances surrounding the making of the videotape provide sufficient indicia of reliability and there is corroborative evidence.

Michael A. Hatch, Atty. Gen., St. Paul, Thomas J. Harbinson, Scott County Atty., Susan K. McNellis, Asst. County Atty., Shakopee, for appellant.

John M. Stuart, State Public Defender, Rick E. Mattox, Asst. First Judicial Public Defender, Prior Lake, for respondent.

Heard, considered, and decided by the court en banc.

O P I N I O N

STRINGER, J.

L.E.P. was charged as a juvenile with first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subds. 1(a) and 2 (1998) for allegedly engaging in criminal sexual conduct with his 7-year-old cousin, K.M.P. on August 9, 1997. The state moved to admit a videotaped statement made by K.M.P. to a nurse practitioner on August 18, 1997 under Minn.Stat. § 595.02, subd. 3 (1998) (admitting statements of child about sexual abuse), Minn. R. Evid. 803(4) (hearsay exception for statements made for purposes of medical diagnosis or treatment), or Minn. R. Evid. 803(24) (residual hearsay exception). Following a pretrial hearing the trial court denied the state's motion and suppressed the videotape holding that the medical treatment exception did not apply and that the videotape lacked sufficient indicia of reliability for purposes of admissibility under the statute or the residual hearsay exception. On the state's appeal the court of appeals affirmed the trial court, holding that the state had not met its burden of showing that suppression would have a critical impact on the state's case and thus the court did not reach the merits of the suppression order. In re Welfare of L.E.P., No. C3-98-268, 1998 WL 405035, * 1 (Minn.App. July 21, 1998). We reverse, holding that the critical impact threshold of review was met and the trial court erred in suppressing the videotape.

In July of 1997, 7-year-old K.M.P. went on a two-day camping trip with her 14-year-old sister K.C.P., her aunt, and her aunt's three children, including 17-year-old L.E.P. The group went horseback riding together during the day and at night the campers slept in the aunt's motorhome. On the second evening K.M.P. whispered to her sister that L.E.P. had "touched her peepee." K.C.P did not ask any questions about what K.M.P. meant, but told K.M.P. that they would have to tell their mother.

Approximately a week later K.C.P. told her mother that K.M.P. "had some things to talk to her about." K.M.P. initially refused to talk stating that L.E.P. "would be mad at her" and "wouldn't like her anymore," but K.M.P. did eventually tell her mother that L.E.P. exposed himself to her in the motorhome. K.M.P.'s mother did not at that time ask any questions to clarify what exactly had happened, but later that same day she talked to her husband about what K.M.P. had told her. They decided to keep K.M.P. and L.E.P. apart but to do nothing more because "the family situation [was] rather tense." K.M.P. was angry when her mother told her to stay away from L.E.P. because she liked him and liked to visit his family's farm.

On August 9, 1997 a second alleged assault took place--the assault for which L.E.P. is charged--when K.M.P. and L.E.P. attended a wedding reception with their families near Jordan, Minnesota. At approximately 9:45 p.m. K.M.P.'s mother left the reception and went to the 30-foot motorhome where she and K.M.P. had been staying to get some cassette tapes. As she went to the front of the motorhome she heard a noise and turned to see K.M.P. next to the beds at the back of the motorhome pulling down her shirt and looking scared. L.E.P.'s shoes were on the floor next to a bed. K.M.P.'s mother asked her who was with her and K.M.P. responded that it was L.E.P. When L.E.P. identified himself, K.M.P.'s mother told him to put on his shoes and get out.

After L.E.P. left, K.M.P. told her mother that L.E.P. had kissed her on the cheeks and "boobs" but denied that anything else had happened. On the following Tuesday evening however, K.M.P. spontaneously revealed to her mother that L.E.P. had "put his peepee between her legs" while her underwear and pants were down and K.M.P. pulled her legs apart to demonstrate. K.M.P. told her mother that she hadn't told her earlier because "I didn't want [L.E.P.] to be mad at me." K.M.P. repeated the same story to her mother the following night. On Thursday, August 14, K.M.P's mother reported the incident to the police. Following her report, the Scott County Sheriff's Department contacted Midwest Children's Resource Center (MCRC), a medical clinic of Children's Hospital and a regional center for the medical examinations of children with alleged physical and sexual abuse concerns, to make arrangements for an examination of K.M.P.

On Monday, August 18, K.M.P. was taken by her mother to MCRC for the examination. K.M.P.'s mother testified at the omnibus hearing that she explained to K.M.P. that she needed to talk to a nurse about what had happened with L.E.P. K.M.P. was examined by Mary Mackenburg, an experienced certified pediatric nurse practitioner who had performed approximately 86 examinations of children believed to be the victims of child abuse. Mackenburg followed MCRC protocol for the examination, including an initial interview with the child followed by a physical exam. At the omnibus hearing Mackenburg testified that the purpose of the interview was "to discuss with [the child] their allegations of physical or sexual abuse," and the purpose of the physical exam was "to rule out any physical injuries or medical problems."

Mackenburg began by speaking to K.M.P.'s mother alone for several minutes about K.M.P.'s health history and how the concern came to her attention. She then met with K.M.P. alone in an examination room. The entire interview and physical exam were audio-taped but only the interview was visually recorded; the physical exam took place in another part of the exam room where the voices of K.M.P., Mackenburg, and K.M.P.'s mother can be heard but their images cannot be seen on the videotape.

The videotape was played at the omnibus hearing. After a few minutes of conversational questions, Mackenburg talked to K.M.P. about the difference between truth and falsity and said that she was going to talk with K.M.P. about "things that are true and really happened. Okay?" K.M.P. replied, "Okay." Mackenburg showed K.M.P. anatomically correct drawings of a boy and girl and had her name the body parts. K.M.P. correctly identified "nipples" and "butt" on both the girl and boy drawings and identified the girl's genitalia as a "private" and the boy's as a "weiner." When K.M.P. denied ever seeing a boy's "weiner," Mackenburg remarked that K.M.P.'s mom "told me that she thought maybe something happened with your cousin [L.E.P.]?" K.M.P. replied, "Um, well, I saw his weiner."

Q [Mackenburg]: Where were you when you saw his weiner?

A. [K.M.P.] Um--he um--when we were at my cousin Heidi's house, you know, he was right behind me and he pushed me into the motorhome and then he laid--I said, no, I don't want to lay on the bed. And he said, yes, lay on the bed. And I said, no. Then he laid me on the bed, you know, and he took my shoes off and he pulled down my pants and put his weiner in between my legs.

Q. He did?

A. Uh-huh.

Q. Did he pull down your underpants too?

A. Yeah. And he pulled down his pants too.

Q. And he pulled down his pants.

A. Too.

Q. Okay. So did you see his weiner?

A. Yeah.

Q. Okay. And he put his weiner between your legs?

A. Right in here in my peepee. (demonstrating)

Q. In your peepee. How did that make your peepee feel?

A. It hurts.

Q. It hurts. Does it still hurt now?

A. Huh-uh. (no)

Q. Okay. How did it make your feelings feel?

A. Feeling really, um, sad, you know.

Q. Make you sad?

A. Yeah. But I know, um--I told him to get off me but he didn't. And I said "are you done yet" and he said "almost." And he didn't get off me.

When asked, K.M.P. willingly demonstrated how L.E.P. had laid on top of her and "moved his butt up and down." She volunteered that L.E.P. had kissed her on her neck and "boobs" and "on my peepee too." Mackenburg asked if anything came out of L.E.P.'s "weiner" and K.M.P. said yes, some "white thing" which got on the bed and made the bed "a little bit" wet. Mackenburg then asked if K.M.P. had seen L.E.P.'s "weiner" before that day and K.M.P. answered "Well, yeah." She stated that when she was still in first grade L.E.P. had carried her into a shed on his family's farm and did "the same thing." K.M.P. then denied remembering any more details and Mackenburg did not press her.

Upon completion of the interview, K.M.P. moved to an examining table and the physical exam began. K.M.P.'s demeanor changed as she began to worry about whether the genital examination would hurt. K.M.P. became increasingly anxious and upset, often crying and whimpering even though Mackenburg showed K.M.P. the coloposcopic camera she would use and demonstrated that the machine would not touch or hurt her. K.M.P. did however separate her labia and point to her perineum and mucus membranes when asked to show where L.E.P. had touched her. Mackenburg was unable to complete the coloposcopic exam but a visual examination of K.M.P.'s genitalia did not disclose any injuries.

While Mackenburg was attempting to complete the genital exam, K.M.P. denied several times that L.E.P. had hurt her:

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