In re M.W. , 2016 UT App 217 ( 2016 )

2016 UT App 217THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF M.W.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.W.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Memorandum Decision
No. 20150359-CA
Filed November 3, 2016
Third District Juvenile Court, Salt Lake Department
The Honorable Kimberly K. Hornak
No. 1113251
Monica Maio and Robert L. Donohoe, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and JILL M.
POHLMAN concurred.
MORTENSEN, Judge:
¶1 M.W., a minor, challenges the juvenile court’s order
adjudicating him delinquent for committing one count of
sodomy on a child, an offense that would be a first degree felony
if committed by an adult. See Utah Code Ann. § 76-5-403.1(LexisNexis Supp. 2016). We affirm.
In re M.W.
¶2 In the summer of 2013, A.B. (ten years old) and M.W.
(thirteen years old) were playing soccer on a field near A.B.’s
home. 1 When the ball left the field of play, A.B. went to get it.
After A.B. picked up the ball, M.W. grabbed him and pulled him
down a nearby alleyway. Once in the alley, M.W. pulled down
A.B.’s pants, forced him onto the ground, and inserted his penis
into A.B.’s anus for about fifteen seconds. Afterward, M.W. told
A.B. that if he told anyone, M.W. would “rape [A.B.] harder.”
A.B. ran home, but reported nothing to his father because he
feared he would not be believed.
¶3 Before the assault, A.B. was a happy, well-adjusted boy
inclined toward cuddling and giving hugs to his family, playing
with friends, and often going to the nearby field to play soccer.
But afterward, he was not the same. He started wetting his bed,
complaining of anal pain, and withdrawing from family and
friends. He seemed sad, thought that he could not “live any
longer,” and expressed suicidal thoughts. Whenever A.B. saw
M.W., A.B. would act paranoid. A.B. thought M.W. was looking
in the windows of his home and feared that M.W. was going to
come in and grab him at night.
¶4 In the spring of 2014, in the presence of one or more peers,
A.B. accused M.W. of raping him. M.W. confronted the issue by
going to A.B.’s home to speak with A.B.’s parents about the
accusation. At the door of A.B.’s home, M.W. appeared very
nervous with his arms crossed and one of his legs constantly
shaking. M.W. told A.B.’s father that A.B. was accusing him of
rape. A.B. also came to the door, was visibly upset, pointed his
finger at M.W., and repeated that M.W. “pulled down his pants
and stuck his wiener in [A.B.’s] butt.”
1. On appeal from a delinquency adjudication, we recite the facts
in the light most favorable to the juvenile court’s decision. See In
re J.F.S., 803 P.2d 1254, 1254 (Utah Ct. App. 1990).
20150359-CA 2 2016 UT App 217In re M.W.
¶5 The day after the front door confrontation, A.B.’s parents
took him to Primary Children’s Medical Center where A.B. was
examined by a doctor (Doctor) certified in child-abuse pediatrics,
which focuses on diagnosing and treating victims of sexual
abuse. The examination included a medical interview of A.B. “to
hear about what happened to guide [Doctor’s] diagnosis and
treatment.” Doctor asked A.B. the reason for the visit, and he
responded that he “was raped.” When asked for more details,
A.B. responded that it happened “[o]ne summer ago” and that a
“kid named [M.W.]” “stuck his wiener in my butt.”
¶6 The State filed a petition accusing M.W. of sodomy on a
child. The juvenile court held a bench trial at which five
witnesses testified. A.B. gave his personal account of the rape
and identified M.W. as the perpetrator. A.B.’s father testified that
M.W. came to their front door and told him about A.B.’s
allegation. Both A.B.’s father and A.B.’s mother related
additional information about the confrontation at the front door,
including A.B.’s statement that M.W. “raped me.” A detective
who investigated the incident (Detective) testified that M.W. told
her multiple times that A.B. had accused him of rape. M.W. does
not appeal the admission of any of this testimony.
¶7 Additionally, Doctor testified concerning A.B.’s interview
responses:
Q. And as part of that medical history what did he
tell you?
A. Well, when I asked him that question he said, “I
was raped.” That was his answer.
Q. Did you ask him any questions about that
answer?
A. I did. I asked him when this had happened. And
he said, “One summer ago.” And the meaning was
20150359-CA 3 2016 UT App 217In re M.W.
the summer of 2013. And I asked him who had
done that. And he said, “A kid named [M.W.]”
[M.W.’s counsel]: Objection, your Honor, hearsay.
Motion to strike.
The Court: Overruled. A doctor can rely upon out-
of-court statements or inadmissible evidence in
forming her opinion. Go ahead.
¶8 Doctor also opined that the changes in A.B.’s behavior,
including bedwetting, mood changes, and the desire for self-
harm, were consistent with a child who had been sexually
abused. She confirmed that she did not find any physical
evidence of abuse, but did not find this absence unusual given
the time between the event and the exam.
¶9 M.W. did not testify at trial. However, the juvenile court
allowed M.W. to play a recording of his interview with Detective
wherein M.W. repeatedly denied A.B.’s accusation. In that
recording the detective explained the story that A.B. had told:
[Detective]: And he says that you grabbed him and
took him into the alley next to the school and that
you did rape him. And that’s what he’s telling me,
and that’s what he’s telling his parents.
...
Well, I just - - I’m just wondering why he’s telling
me this.
[M.W.]: I’m actually impressed by his ability to
describe something that didn’t, you know.
[Detective]: Because he’s, I guess he had an exam
with the doctors. And also . . . it’s a forensic exam
20150359-CA 4 2016 UT App 217In re M.W.
that we ask for. And he told the doctor[2] the same
thing that he’s told me.
With Detective having just informed M.W. what A.B. had told
her, it is clear that the “same thing” means that M.W. raped him.
¶10 The juvenile court found beyond a reasonable doubt that
M.W. had committed sodomy on a child and entered a
disposition order. M.W. appeals, arguing that the juvenile court
erred by admitting and relying on Doctor’s statement that A.B.
told her that M.W. had raped him. We review the juvenile
court’s ruling on evidence for abuse of discretion. We “will not
reverse the [juvenile] court’s ruling[s] on evidentiary issues
unless it is manifest that the [juvenile] court so abused its
discretion that there is a likelihood that an injustice resulted.” In
re G.C., 2008 UT App 270, ¶ 9, 191 P.3d 55 (citation and internal
quotation marks omitted).
¶11 M.W. further asserts that without Doctor’s testimony,
there was insufficient evidence to find him delinquent. “When a
challenge to the sufficiency of the evidence is raised, ‘[w]e
review the juvenile court’s factual findings based upon the
clearly erroneous standard.’” In re J.C., 2016 UT App 10, ¶ 13, 366
P.3d 867 (quoting In re S.O., 2005 UT App 393, ¶ 12, 122 P.3d
686) (alteration in original). Under that standard, we will set
aside the juvenile court’s decision only if the decision is against
the clear weight of evidence or we form “a definite and firm
conviction that a mistake has been made.” In re S.L., 1999 UT
App 390, ¶ 20, 995 P.2d 17 (citation and internal quotation marks
omitted). Because of the advantaged position of the juvenile
court in assessing credibility and personalities, and also due to
the juvenile court judges’ special training, experience, and
2. It is unclear from the record whether the doctor referenced by
Detective was Doctor or another medical professional.
20150359-CA 5 2016 UT App 217In re M.W.
interest in their field and devoted attention to cases within their
jurisdiction, we defer to the juvenile court and afford it wide
latitude. In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680.
¶12 Even if we were to determine that the juvenile court erred
in admitting the evidence, we will not disturb an adjudication if
we conclude that the error was harmless. In re P.N., 2011 UT
App 221, ¶ 5, 262 P.3d 429 (citing State v. Ramsey, 782 P.2d 480,
485 (Utah 1989)). M.W.’s appeal fails because admission of the
challenged evidence was harmless for two reasons.
¶13 First and foremost, M.W. offered essentially the same
evidence himself. While claiming it was error for the juvenile
court to allow Doctor to relate the person A.B. identified as the
perpetrator, M.W. offered the recorded statement of Detective,
which indicated that a doctor had told her that A.B. identified
M.W. as the perpetrator. In other words, M.W. advances the
argument that Doctor cannot testify as to the hearsay statement
of A.B., yet in a different hearsay statement (a recording no less)
of Detective, Detective can relate the hearsay statement of a
doctor describing the same hearsay statement of A.B. The end
result remains. M.W. put into evidence the same statement he
now claims the juvenile court erroneously admitted elsewhere in
the record.
¶14 Second, every other witness related the exact same
information—that A.B. identified M.W. as the perpetrator. And
M.W. himself provided the same information through other
evidence. Therefore, the testimony of Doctor was merely
cumulative and any error in its admission was harmless. See In re
J.M., 2006 UT App 158U, para. 2 (“[E]ven if the statements were
inadmissible hearsay, their admission was harmless because the
evidence was cumulative.”).
¶15 Our determination that Doctor’s testimony was harmless
also resolves the question of whether sufficient evidence existed
outside Doctor’s testimony to support M.W.’s adjudication. The
20150359-CA 6 2016 UT App 217In re M.W.
testimony of Doctor disclosing that A.B. identified M.W. as the
perpetrator was hardly the keystone of the State’s case. And
because identical evidence from other witnesses identified M.W.
as A.B.’s assailant, there was sufficient evidence to adjudicate
M.W. delinquent even if Doctor’s testimony is ignored.
¶16 Affirmed.
20150359-CA 7 2016 UT App 217