State v. Eldredge

773 P.2d 29, 101 Utah Adv. Rep. 15, 1989 Utah LEXIS 6, 1989 WL 7826
CourtUtah Supreme Court
DecidedFebruary 1, 1989
Docket20558
StatusPublished
Cited by147 cases

This text of 773 P.2d 29 (State v. Eldredge) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Eldredge, 773 P.2d 29, 101 Utah Adv. Rep. 15, 1989 Utah LEXIS 6, 1989 WL 7826 (Utah 1989).

Opinions

ZIMMERMAN, Justice:

Defendant Richard M. Eldredge appeals from his jury conviction of four counts of sodomy on a child, in violation of section 76-5-403 of the Code. He makes several claims of error relating to, inter alia, the following: admission of the child victim’s testimony and hearsay statements, exclusion of polygraph evidence and evidence of a witness’s bias, sufficiency of the evidence, and failure to grant a motion for a new trial or an arrest of judgment based on exculpatory evidence discovered after trial. We affirm.

When Eldredge’s son was two years old, Eldredge and the boy’s mother, Suzanne Sanchez, separated and then divorced. Sanchez was awarded custody of their son, and Eldredge was granted visitation rights. At a hearing held a year and a half later, Sanchez unsuccessfully sought modification of the divorce decree to reduce the frequency of Eldredge’s visits. Within a few months of the hearing, Sanchez reported to the sheriff’s office that she suspected Eldredge of sexually abusing their son.

Shortly after that report was made, Thomas Harrison, a social worker and director of the Child Sexual Abuse Program in the Department of Psychiatry at Primary Children’s Medical Center, interviewed the boy and concluded that he was probably the victim of sexual abuse. Harrison immediately reported this conclusion to the sheriff’s office and began treating the child, which he continued to do for approximately one year.

Eldredge was charged and tried on four counts of sodomy on a child, a first degree felony. See Utah Code Ann. § 76-5-403 (Supp.1979). At trial, several witnesses, including the victim, the victim’s mother, and Harrison, testified for the prosecution. The boy, then five years old, used anatomically correct dolls to demonstrate his testimony of oral sexual abuse. Although his testimony was somewhat confused and contradictory, the boy did state that he was telling the truth when he testified that Eldredge had committed the oral sodomy.

Sanchez testified that her son had exhibited bizarre behavior and symptoms of illness shortly after returning from various visits with Eldredge. Specifically, she said that on one occasion, the child told her to look at and taste his penis because it tasted good. And on several occasions after vis[31]*31its, the boy demonstrated disassociative behavior such as lapsing into unresponsive states during which he removed all of his clothing and pretended to be a dog, appeared to be stunned, or sobbed uncontrollably. Immediately after visits, the child was often pale and vomited or had diarrhea, according to Sanchez’s testimony.

Harrison testified that when he and the child discussed sexual abuse, the boy exhibited the same types of disassociative behavior and symptoms described by Sanchez. The child lapsed into various imaginary animal characterizations and expressly refused to be himself. He suffered from enuresis and encopresis (uncontrolled urination and defecation) and attributed his behavior to the imaginary animals. Harrison then discussed professional literature on child sexual abuse, compared the boy’s behaviors and symptoms to those described in the literature, and concluded that they were consistent with the child’s having been the victim of sexual abuse.

Harrison also testified that during their therapy sessions, the boy had described and demonstrated the physical acts of abuse by using anatomically correct dolls and had attributed the abuse to Eldredge. Harrison repeated various other out-of-court statements made to him by the boy, such as the child’s description of El-dredge’s erection and ejaculation. He testified that such a young child’s ability to describe and demonstrate sexual acts strongly indicated personal exposure to and involvement in those acts and that in his opinion, the boy was the victim of sexual abuse. Finally, he testified that it was his opinion that the child’s statements made during therapy were truthful, including his statements attributing the sexual abuse to Eldredge.

Several witnesses testified for the defense. Eldredge took the stand and denied the abuse. The jury found him guilty, in October 1984, on all four counts. The trial court sentenced him to four concurrent terms of imprisonment, each for five years to life, under the first degree felony sentencing provisions of the Code. See Utah Code Ann. §§ 76-3-203(1) (1978). Eldredge appeals. We will consider his claims of error seriatim.

Eldredge first asserts that the trial court’s retroactive application of sections 76-5-410 and -411 of the Code ran afoul of the federal ban on ex post facto laws because it operated to narrow the scope of his federal constitutional right to confront the witnesses against him.1 See U.S. Const, art. I, § 10, amends. VI, XIV. Section 76-5-410 provides that a child victim of sexual abuse shall be considered competent to testify at trial without prior qualification.2 Utah Code Ann. § 76-5-410 (Supp.1983). Section 76-5-411 makes such a child’s out-of-court statements regarding the abuse admissible if certain requirements are met, even if the evidence would otherwise be inadmissible hearsay.3 Utah Code Ann. [32]*32§ 76-5-411 (Supp.1983). Pursuant to these statutes, the child, who was five years old at the time of trial, testified and some of his out-of-court statements were admitted. Eldredge terms the trial court’s reliance on sections 76-5-410 and -411 “ex post facto” because those statutes became effective after the crimes were committed but before the trial.

The first step in resolving this claim is to determine the scope of the federal constitutional prohibition against ex post facto laws. The United States Supreme Court has defined as ex post facto any law that operates to make criminal an act that was innocent when done, to increase the punishment for a crime after its commission, or to allow conviction on less proof in amount or degree than was required when the offense was committed.4 See Dobbert v. Florida, 432 U.S. 282, 292-94, 97 S.Ct. 2290, 2297-99, 53 L.Ed.2d 344 reh’g denied, 434 U.S. 882, 98 S.Ct. 246, 54 L.Ed.2d 166 (1977); Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925); Thompson v. Missouri, 171 U.S. 380, 383-85, 387, 18 S.Ct. 922, 923-24, 924-25, 43 L.Ed. 204 (1898); Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884). Under this definition, “Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage.” Hopt, 110 U.S. at 589, 4 S.Ct. at 210; accord Underwood v. State, 111 Tex.Crim. 124, 125, 12 S.W.2d 206, 206 (1927); State v. Clevenger, 69 Wash.2d 136, 140-42, 417 P.2d 626, 629-30 (1966); State v. Slider, 38 Wash.App.

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Bluebook (online)
773 P.2d 29, 101 Utah Adv. Rep. 15, 1989 Utah LEXIS 6, 1989 WL 7826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eldredge-utah-1989.