State v. Giles

772 P.2d 191, 115 Idaho 984, 1989 Ida. LEXIS 47

• Court: Idaho Supreme Court
• Decided: March 30, 1989
• Docket: 17034
• Status: Published

Opinions

BAKES, Justice.

Defendant Robert L. Giles (Giles) appeals his conviction on the second of two counts of lewd conduct with minor children under the age of sixteen years. Giles was jointly charged with Laura Lee Wright who was also convicted for the same crimes which were jointly committed against her two daughters, aged 514 (older daughter) and 214 (younger daughter) when the crimes were charged. Giles and Wright were jointly tried and convicted by the same jury. The defendant Giles filed a separate appeal with regard to his conviction of lewd conduct with the younger daughter. We affirm.

The older daughter was bom April 1, 1981, to Laura Wright and Louis Wright, who separated from one another on September 22, 1982. Her parents reached an informal agreement whereby each parent would have custody of their daughter for consecutive 6-month periods. The younger daughter was bom April 4, 1984, to Laura Wright and the defendant Robert Giles. She was living with them at the time the lewd conduct was committed.

On October 7, 1986, Louis Wright took custody of the older daughter pursuant to the agreement. On November 8, 1986, the older daughter revealed to Cynthia Goodman, Louis Wright’s girlfriend, that she had been sexually abused by her mother and Giles. The older daughter also stated that her younger half-sister had been sexually abused as well.¹ The following day, November 9, 1986, Goodman reported the sexual abuse of the two girls to the police. Examinations of the older daughter that day by three doctors revealed an abrasion near the vaginal opening, no evidence of a hymenal ring, a fairly large bruise on the left upper leg and a slightly larger vaginal opening than would be expected for a girl her age. One of the three, Dr. Jambura, a pediatrician with extensive experience in child abuse cases, testified that it was “highly possible that vaginal penetration had been occurring on a relatively regular basis.”

That same day, the younger daughter was taken from her mother and Giles and into custody by a police officer and a social worker. The next day, Dr. Jambura examined the younger daughter. His examination revealed some redness and bruises in the early stages of healing on the inner surface of the labium majora and the labium minora and some scarring on the back portion of the vagina. The healing area around the vagina was inflamed and swollen. Dr. Jambura explained that it is very difficult to bruise the labium minora and the bruising on the surfaces of both labia suggested that forcible contact was made with the inner genital area. He testified that these injuries were “strongly suggestive of sexual abuse with vaginal contact.” Dr. Jambura believed the trauma occurred approximately 2-3 days prior to the examination.

During Dr. Jambura’s examination of the younger daughter, the two engaged in conversation. Over defense objection, Dr. Jambura testified at trial regarding this conversation:

A. [By Dr. Jambura] ... She started to carry on a very relaxed animated conversation. I then proceeded to just gently start asking questions about, “Well, how are things at home,” you know, those sorts. Gently moving into the domestic situation and then moved into four questions in particular, as I reflected in my records, “Do you play with daddy? Does Daddy play with you? Does daddy touch you with his pee-pee? Do you touch his pee-pee?” And again we then established what was meant by pee-pee, it was a generic term for genital area.

Q. [By the prosecutor] Before you get into that, what was, as best you recollect, what was her response to the question “Do you play with daddy?”

A. Yes, we play — I remember her making a comment about yes we play a lot and expanding on that and talking about spending time with daddy.

Q. And “Does daddy play with you?” Was there any response?

A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unaffected by the question.

Q. And then what did you say and her response?

A. When I asked her “Does daddy touch you with his pee-pee,” she did admit to that. When I asked, “Do you touch his pee-pee,” she did not have any response.

Q. Excuse me. Did you notice any change in her affect or attitude in that line of questioning?

A. Yes.

Q. What did you observe?

A. She would not — oh, she did not talk any further about that. She would not elucidate what exactly — what kind of touching was taking place, or how it was happening. She did, however, say that daddy does do this with me, but he does it a lot more with my sister than with me.

Q. And how did she offer that last statement? Was that in response to a question or was that just a volunteered statement?

A. That was a volunteered statement as I sat and waited for her to respond, again after she sort of clammed-up, and that was the next statement that she made after just allowing some silence to occur.

Giles raises one issue on appeal: whether the trial court properly allowed Dr. Jambu-ra to testify concerning the out-of-court statements made to him by the younger daughter.

We first note that the trial court conducted a voir dire examination of the younger daughter to determine whether she was capable of communicating to the jury. He determined that she was not and counsel agreed.

We recently decided a case with unfortunate similarity to this case. In State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988), we held that hearsay statements of a three-year-old sexual abuse victim were properly admitted under the hearsay exception contained in I.R.E. 803(24), concluding that the trial court’s admission of such a statement was a proper exercise of discretion where the court had considered all of the factors set out in I.R.E. 803(24). We held:

To be admissible under I.R.E. 803(24), the court must determine that (A) the statement has circumstantial guarantees of trustworthiness equivalent to those in Rules 803(1) to 803(23), (B) the statement is offered as evidence of a material fact, (C) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (D) the general purposes of the rules of evidence, and the interests of justice, will best be served by admission of the statement into evidence. Further, (E) a statement may not be admitted under I.R.E. 803(24) unless its proponent gives the adverse party adequate notice and information regarding use of the statement. Once these elements are met, the I.R.E. 803(24) exception is equally as valid as any other hearsay exception, such as the universally accepted present sense impression and the excited utterance exceptions, etc.

114 Idaho at 697, 760 P.2d at 36. As our prior cases hold, the trial court’s ruling admitting such evidence will not be reversed on appeal absent a showing that the court abused its discretion. State v. Terry, 98 Idaho 285, 561 P.2d 1318 (1977); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971).

As was the case in Hester, the trial court here did not abuse its discretion because all the requirements were met. All of the I.R.E. 803(24) requirements were addressed by the trial court in determining the admissibility of the hearsay evidence. The trial court evaluated the hearsay statements for relevancy, need and reliability. Hester, 114 Idaho 688, 760 P.2d 27 (1988). The trial court’s analysis here focused primarily on what appears to be the main source of contention surrounding the statements, i.e., their reliability. Besides arguing that the statements should be inadmissible because the younger daughter could not testify, appellant directed his challenge to an attack on the statements’ reliability. As indicia of unreliability, appellant cites the alleged suggestiveness of Dr. Jambu-ra’s questions (by referring to “daddy”) and the younger daughter’s alleged inability to recollect and communicate because of her age. Appellant attempts to distinguish between indicia of reliability and corroborative evidence, and suggests that the latter should not be considered in an I.R.E. 803(24) analysis. However, we said in Hester that for a statement “to be admissible under I.R.E. 803(24), the court must determine that ... the statement has circumstantial guarantees of trustworthiness ...,” and that “the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts .... ” 114 Idaho at 697, 760 P.2d at 36 (emphasis added). The analysis required by I.R.E. 803(24) and Hester contemplates that the trial court will look at all the other evidence to determine whether it tends to corroborate the hearsay statement, before the trial court concludes that the hearsay statement has the same circumstantial guarantees of trustworthiness equivalent to the other hearsay exceptions.

Appellant does not claim to have been denied adequate notice and information regarding use of the younger daughter’s statements to Dr. Jambura. Nor does appellant suggest that the statements are not offered as evidence of the material fact that Giles sexually abused the younger daughter. Thus, there is no question but that the statements are relevant. As previously discussed, ante at 986, 772 P.2d at 193, the younger daughter was judged unable to communicate in a trial setting and was therefore unable to be a witness at trial. Consequently, the hearsay statements made to Dr. Jambura were “more probative on the point for which [they were] offered than any other evidence which the proponent [could] procure through reasonable efforts.” I.R.E. 803(24)(B). Thus, there is a need for the statements.

The final step in the analysis concerns the statements’ reliability. The trial court here weighed the indicia of unreliability cited by Giles — the alleged suggestiveness of Dr. Jambura’s questions and the younger daughter’s alleged inability to recollect or communicate — against significant indicia of reliability. The trial court stated:

In this case, of course, there is physical evidence to corroborate that sexual abuse occurred. It also would seem to be the case that there is no motive to make up a story of this nature in a child of these years. We’re not talking about a pubescent youth who may fantasize. The nature of the statements themselves as to sexual abuse are such that they fall outside the general believability that a child could make them up or would make them up. This is simply not the type of statement, I believe, that one would expect a child to fabricate.²

We come then to the identification itself. Are there any indicia of reliability as to identification? From the doctor’s testimony it appears that the injuries testified to occurred at the time that the victim was in the custody of the Defendants. The [older daughter] has testified as to identification of perpetrators. Those— the identification of the perpetrators in this case are persons well known to the [younger daughter]. This is not a case in which a. child is called upon to identify a stranger or a person with whom they would have no knowledge of their identity or ability to recollect and recall. Those factors are sufficient indicia of reliability to permit the admission of the statements.

Under these circumstances, the statements have circumstantial guarantees of trustworthiness equivalent to the other hearsay exceptions. Furthermore, the interests of justice and the general purposes of evidence were best served by admission of these statements.

Having found the statements sufficiently reliable, the trial court stated, “It’s then up to the jury to determine if they [the statements] are. sufficiently reliable to give weight to in their determinations....” Giles was still able, during his defense, to present a witness, Dr. Thurber, to attack the statements’ reliability. He was also able to argue to the jury that they should not give weight to the statements. However, the jury concluded otherwise.

Accordingly, we conclude that the trial court did not err when it allowed Dr. Jambura to testify concerning the younger daughter’s statements to him. State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988), The conviction of defendant Giles is affirmed.

SHEPARD, C.J., and JOHNSON, J., concur.

1 . At trial, held May 6-12, 1987, the older daughter testified that Giles had intercourse with the younger sister while Laura held the younger sister’s legs and covered her mouth so she wouldn’t scream.

2 . We note, as an additional indicia of reliability, the absence of a custody battle over the younger daughter. Unsubstantiated accusations of sexual abuse sometimes arise when one parent seeks to terminate custodial rights of the other parent. The child's coached remarks may be sought for use as an evidentia-ry weapon by an unscrupulous parent. Testimony given under these circumstances may be unreliable and ruled inadmissible. Concern over such abuse is not present here, however. The younger daughter was taken directly from the custody of both parents and was then examined by Dr. Jambura when the statements were made.