People v. Chard , 15 Brief Times Rptr. 310 ( 1991 )

Justice ERICKSON

concurring in part and dissenting in part.

Richard Chard was found guilty by a jury of five counts of aggravated incest. The trial court sentenced Chard to fourteen years imprisonment. I agree with the standard created by the majority to determine whether a minor victim of a sexual assault can be required to submit to a physical examination and therefore concur in part. However, I dissent in part because the trial court did not apply the standard which this court has now created. I would remand for a new hearing to determine whether the denial of the defendant’s motion for a medical examination under the new standard should have been granted. If the motion is granted, a new trial is required.

R.S., the defendant’s daughter, lived with her mother and stepfather in California. The defendant father lived in Steamboat Springs, and had summer visitation privileges with R.S. in 1986. Not long after R.S. returned to California, she complained of pain in her “tutu” (vagina). Her mother found evidence of sexual abuse but did not take R.S. to a doctor for more than six months. When a medical examination was made, it was discovered that both the vagina and anal orifices were enlarged. This medical examination and a subsequent psychological examination resulted in the filing of charges against the defendant.

Prior to trial, the defendant filed a motion to require R.S. to undergo a second physical examination. The defendant denied that he had assaulted his daughter and contended that such an examination was necessary to-prepare his defense because the only examination of R.S. was conducted a full six months after the incident allegedly occurred. The defendant contended that the sexual assaults were committed by R.S.’s stepfather. A second physical examination may have produced evidence of whether R.S. was the victim of continuing sexual abuse, and would have been relevant to the question of whether the defendant or the stepfather had committed the abuse.

After hearing the testimony of an expert witness, the trial court denied the defendant’s motion, concluding that the benefits to be derived from the physical examination of R.S. were too speculative. The court did not, however, as the majority states, weigh the competing interests and conclude that the trauma and embarrassment to R.S. would outweigh any benefits the defendant might obtain from the examination.

The majority sets forth a new standard for determining whether a trial court should order an involuntary physical examination of a minor victim of a sexual assault at the request of the accused. The standard announced by the majority was not applied by the trial court. The court of appeals concluded that the denial of the defendant’s motion for a physical examination required reversal and a new trial. In my view, the new standard requires that we remand this case to the trial court for a new hearing on the defendant’s motion to have R.S. submit to a physical examination. We cannot speculate on how the trial court would have ruled if it had applied the newly created standard or test. Bond v. District Court, 682 P.2d 33, 40 (1984); see also Cacic v. Cacic, 164 Colo. 103, 106, 432 P.2d 768, 769 (1967) (not the function of the supreme court to search the record and supply findings); Carpenter v. Donohoe, 154 Colo. 78, 80-81, 388 P.2d 399, 401 (1964) (same); Risbry v. Swan, 124 Colo. 567, 580, 239 P.2d 600, 607 (1951) (supreme court may not usurp trial court’s prerogative to make findings and draw conclusions).

I would therefore direct the court of appeals to remand the case to the trial court with directions to allow the defendant to present evidence demonstrating the compelling need for a physical examination of R.S. If the trial court concludes, applying the new standard, that the defendant is not entitled to have R.S. submit to a physical examination, the judgment and sentence should be affirmed. However, if the trial court determines that the defendant's motion should have been granted, a new trial should be granted.

Accordingly, I concur in part and dissent in part.