State v. Lenaburg

HOWE, Associate Chief Justice:

Defendant George Edward Lenaburg appeals his conviction of aggravated sexual abuse of a child, Utah Code Ann. § 76-5-404.1 (Supp.1986) (amended, Supp. 1989), a first degree felony.

Defendant shared a trailer home with James Hunting, Karen Pace, their infant son, and Pace’s five-year-old daughter. On the evening of September 4, 1985, Hunting was away from the home. Karen Pace put her daughter to bed in the living room and then went to bed in her own room. Defendant went to bed in his room at the other end of the trailer. Sometime later, Pace was awakened by her daughter’s screams. She testified that she saw defendant, holding a knife in the living room and her daughter, standing in the kitchen, “holding herself.” Drops of blood were on the kitchen tile. Pace then went back to bed, because defendant told her she was having a bad dream. She took some medication before returning to bed. She testified that she was awakened again by her daughter’s screams, and she ran to the living room and saw her daughter lying on the floor with her panties removed, her nightgown pulled up, and defendant kneeling over her. Defendant claimed he did not get up after going to bed that evening and presented evidence that Pace suffered from psychotic delusions.

On September 6, the child was examined by Evan Thorley, a physician’s assistant. Dr. Paul Barney was present for the vaginal examination. Thorley found a recent tear, approximately two millimeters in length, in the vaginal synechia. He also found her hymen was not intact. The child was interviewed by Marjorie Schuldt of the Division of Family Services. A videotape of the interview was made following the procedures outlined in Utah Code Ann. § 77-35-15.5(1) (Supp.1986) (amended, Supp.1989). Defendant was subsequently charged with sexual abuse, and a pretrial hearing on the admissibility of the tape was held on January 6, 1986. The trial court found that (1) the videotape fully conformed to the requirements of section 77-35-15.5(1); (2) the child was unavailable as a witness under section 77-35-15.5(l)(h) based on expert testimony that she would suffer serious mental and emotional strain if required to testify at trial; and (3) under the criteria listed in Utah Code Ann. § 76-5-411(2) (Supp.1986) (amended, Supp. 1989), the interests of justice would be served best by admission of the taped statements. The court also found that alternatively the tape qualified for admission under rules 803(24) and 804(b)(5) of the Utah Rules of Evidence.

The child was not present at the trial, and the videotape and the transcript of Schuldt’s interview were admitted into evidence over defendant’s objection. He called four witnesses who testified that he did not have a reputation for being a child abuser. Two of those witnesses testified that his reputation for truth and honesty was good. On cross-examination, the prosecution asked defendant’s character witnesses if they would change their opinions if they knew of a circumstance where defendant had acted inappropriately with other young girls. Three of the witnesses stated that such an incident, if proved, may affect their opinions. On rebuttal, the prosecution called a witness who testified that defendant had acted inappropriately with her two young daughters some four and one-half years earlier at a holiday dinner.

Defendant objected to using specific instances of conduct to prove bad character. He also objected on the ground that the testimoñy should be excluded under rule 403 of the Utah Rules of Evidence. Defendant’s objections were overruled, and the jury returned a verdict of guilty from which he now appeals.

Defendant first contends that admission of the videotape interview denied him the right to confront witnesses called against him as guaranteed by the sixth amendment to the United States Constitution and by article I, section 12 of the Utah Constitution. The denial of confrontation was raised in State v. Brooks, 638 P.2d 537 (Utah 1981) and in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In each case, a transcript of testimony given by a witness at a preliminary hearing was admitted into evidence at a subsequent trial. Ohio v. Roberts, 448 U.S. at 60, 100 S.Ct. at 2536, 65 L.Ed.2d at 604, and State v. Brooks, 638 P.2d at 538. Great emphasis was placed on the indicia of reliability inherent in such testimony and the opportunity the defendant had to face his accuser and to probe the testimony of the witness through cross-examination. The ability to probe the veracity of the testimony through cross-examination lies at the core of the right of confrontation. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076,13 L.Ed.2d 934, 937 (1965); State v. King, 24 Utah 482, 486, 68 P. 418, 419 (1902).

The videotape in the instant case was made pursuant to subsection (1) of section 77-35-15.5, which authorizes the making of a visual and aural recording on film of a child victim’s oral statement. The oral statement may be recorded prior to the filing of criminal charges as was done in the instant case. Attorneys for the parties may not be in the child’s presence or question the child. The tape is admissible in evidence provided, inter alia, the requirements of subsection (h) are met:

(h) The child is available to testify and to be cross-examined at trial, either in person or as provided by Subsection (2) or (3), or the court determines that the child is unavailable as a witness to testify at trial under the Utah Rules of Evidence. For purposes of this subsection “unavailable” includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or mental strain if required to testify at trial.

In State v. Mannion, 19 Utah 505, 57 P. 542 (1899), the defendant was convicted of attempted rape of his six-year-old daughter. At trial, the child took the stand and said, “I am afraid to tell, because I am afraid of my papa.” Id. at 508, 57 P. at 542. The trial judge then seated the defendant in the corner of the courtroom, some twenty-four feet from the witness, and had the witness turn her chair toward the jury so that she could not see him. The defendant contended on appeal that he was denied his right of confrontation guaranteed by article I, section 12 of the Utah Constitution because he could neither hear nor see the witness as she testified. This Court reversed his conviction, stating:.

Under the constitution and statutes of the state the accused had a right to be present at the trial, to be confronted by the witnesses against him, and to meet his accusers face to face. He also had the right to appear and defend against the accusation preferred against him in person and by counsel. He had the right, not only to examine the witnesses, but to see into the face of each witness while testifying against him, and to hear the testimony given upon the stand. He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established. By our constitution it is clearly made manifest that no man shall be tried and condemned in secret and unheard.

State v. Mannion, 19 Utah at 512-13, 57 P. at 544.

One justice of this Court concurred only in the result and expressed his opinion that the right of confrontation includes only that the witnesses for the prosecution are present at the trial, are examined in the presence and within the hearing of the accused and jury, and an opportunity is afforded the defendant for cross-examination. The justice opined that the right did not include that the defendant be permitted to sit immediately in front of the witness when such position would cause intimidation and prevent the eliciting of testimony. Id. at 517, 57 P. at 545.

Later cases have stressed the indispensi-bility of the right to cross-examine. In State v. Nelson, 725 P.2d 1353, 1356 (Utah 1986), we stated:

The essence of the confrontation right is the opportunity to have the accusing witness in court and subject to cross-examination, so that bias and credibility can be evaluated by the finder of fact. E.g., State v. Anderson, 612 P.2d 778, 785 (Utah 1980). If the witness is physically present and subject to cross-examination, as occurred here, these values would seem to be satisfied. See State v. Jolley, 571 P.2d 582, 585-86 (Utah 1977); State v. Mastropetre, 400 A.2d 276, 281 (Conn.1978).

In a recent decision of the United States Supreme Court, Coy v. Iowa, 487 U.S.-, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), an Iowa statute was struck down as being in violation of the defendant’s right of confrontation guaranteed by the sixth amendment' of the Constitution of the United States. The statute allowed the placing of a screen between a child witness and the defendant so that the witness could not see the defendant at all, but the defendant could hear her and dimly see her through the screen. All members of the Court agreed that the right conferred by the confrontation clause was not absolute. A majority of the Court held that the screen which made impossible eye-to-eye contact between the defendant and the two child witnesses was violative of his right of confrontation, at least in the absence of any individualized finding that the witnesses needed special protection. Id. at-, 108 S.Ct. at 2803, 101 L.Ed.2d at 867. Two justices dissented, expressing that under the Court’s earlier decision in California v. Greene, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970), the defendant was only entitled to have the witnesses’ testimony given under oath and subject to unrestrictive cross-examination and to have the jury have the opportunity to observe the demeanor of the witnesses in making their statements, thus aiding the jury in assessing their credibility. Id. at -, 108 S.Ct. at 2806, 101 L.Ed.2d at 870-71.

In the instant ease, the State contends that the right of cross-examination was properly dispensed with because the child victim was found by the trial court to be “unavailable” as that term is defined by subsection 77-35-15.5(1)(h), quoted above. Utah Code Ann. § 76-5-411 makes a child victim’s out-of-court statement admissible as evidence if the statement qualifies for admission under section 77-35-15.5(1), subject to a determination by the judge that the interest of justice will best be served by the admission. Utah Code Ann. §§ 77-35-15.5(1)(g), 76-5-411(2). In making that determination, the judge is required to consider the age and maturity of the child, the nature and duration of the abuse, the relationship to the offender, and the reliability of the assertion and of the child. This statutory requirement of reliability parallels the requirement of reliability laid down by us in State v. Brooks, 638 P.2d at 539, where we held, based on the United States Supreme Court decision in Ohio v. Roberts, 448 U.S. at 66,100 S.Ct. at 2539, 65 L.Ed.2d at 608, that hearsay was admissible if the witness were unavailable but his out-of-court statement bore indicia of reliability.

In the case at bar, the trial court found from expert opinion adduced at trial that the child was unavailable as a witness because she would suffer serious mental and emotional strain if required to retell anyone about the alleged incident of abuse. The court further determined that the interests of justice would be served by admission of the videotaped statement, which it found to be reliable. After giving due deference to the findings and conclusions of the trial court, we cannot agree that the child victim’s statement can be viewed as reliable so as to qualify for admission without having been subjected to cross-examination. The videotape was made two days after the incident by Marjorie Schuldt, who was a protective services worker for the Utah Division of Family Services. After a lengthy lead into the subject, Mrs. Schuldt asked the child, “Oh, has George [defendant] ever touched you?” She replied, “He just took my panties off and he got some blood on them.” When asked when that happened, she replied, “A long, long, long, long time.” She stated that her mother was there and she told George “to git.” She stated that George had a gun “[a]nd he shoot hisself [sic] and he had blood all over.” The child continued, “And that’s what happened and he was just about to die, then along came fat Jenny.” The child continued that George had a “monster hand”; that George then died but now he “turned back into mommy. But he still sleeps with a gun.” Further on in the interview, the child stated that defendant was wearing a mask. The child then related that defendant lay on her and when asked what he did, she replied that he bit her with his mouth on her cheek and that he got blood on both of her legs with his hands.

The child’s mother was a witness to the incident. However, she did not testify that defendant had a gun or wore a mask. Those statements by the child, along with her, assertion that defendant had a monster hand and that he died and .then turned back into her mother, coupled with the statement that the incident happened a long, long time ago, raise serious doubts in our minds as to the reliability of the child’s statements. Although Mrs. Schuldt endeavored to explain what she thought the child meant by her fantasized statement, we are left with doubt as to the accuracy of the child’s version of the incident. Taking the child’s statement as a whole, we think that it fails the reliability test, and therefore, it was error for the trial court to have admitted it into evidence without affording defendant any right of cross-examination.

It follows that the tape was also inadmissible for the same reasons under rules 803(24) and 804(b)(5) of the Utah Rules of Evidence, which the trial court held formed a separate and independent basis for its admission. These rules require guarantees of trustworthiness which are lacking here, unlike in State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), relied upon in the dissenting opinion.

We now proceed to examine whether the error was harmful. In analyzing errors, we are guided by the fundamental principle that all the rules relating to the conduct of criminal trials are meant to provide a fair, reasonable and practical means of doing justice. State v. Scandrett, 24 Utah 2d at 207, 468 P.2d at 642. Where the error is one in which the fundamental fairness of the procedure by which the result is reached is drawn into question so as to cast doubt on the result, then reversal is warranted. State v. Knight, 734 P.2d 913, 919 (Utah 1987). In analyzing irregularities at trial, our test for harmless error focuses on whether the error undermines our confidence in the verdict. When we are convinced that the error did not impact the fairness of the proceeding so that there is not a “reasonable likelihood of a more favorable result” absent the error, we will not overturn the verdict of the jury. State v. Fontana, 680 P.2d 1042, 1048 (Utah 1984); State v. Sandoval, 590 P.2d 346, 347-48 (Utah), cert. denied, 442 U.S. 932, 99 S.Ct. 2865, 61 L.Ed.2d 300 (1979); State v. Howard, 544 P.2d 466, 468-69 (Utah 1975); State v. Winkle, 535 P.2d 82, 83 (Utah 1975); State v. Oniskor, 29 Utah 2d 395, 399, 510 P.2d 929, 932, cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973); State v. Johnson, 25 Utah 2d 160, 162, 478 P.2d 491, 492 (1970); State v. Scandrett, 24 Utah 2d 202, 207, 468 P.2d 639, 642 (1970).

Applying that analysis to the instant case, we cannot say that the error in admitting the videotape was harmless. The tape was the most damning evidence presented at trial. Since defendant could not cross-examine the child concerning her statements made therein, he had no means to. explore the contradictory or confusing portions of her testimony. Without this opportunity, we cannot judge what cross-examination would have revealed or the light it would have cast on the remainder of the testimony. The testimony of the child’s mother was weakened because of her history of psychotic delusions. We must therefore reverse and remand the case for a new trial.

Inasmuch as the case is to be retried, we briefly discuss defendant’s contention that the trial court erred in allowing the prosecution to present evidence of specific instances of conduct to rebut his character witnesses. Admissibility of character evidence is governed by rule 404 of the Utah Rules of Evidence, which states:

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.

Defendant can offer evidence of his character, which the State can rebut; however, rule 405 of the Utah Rules of Evidence governs how this is to be done.

(a) Reputation or opinion. ... [Pjroof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is [an] essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

Since evidence of character is not an essential element of sexual abuse of a child, State v. Miller, 709 P.2d 350, 354 (Utah 1985), proof cannot be made under subsection (b); proof must be made under subsection (a) by “testimony as to reputation or ... in the form of an opinion.” The prosecution can inquire as to specific instances of conduct on cross-examination under subsection (a), but neither rule 405 nor rule 608 permits the prosecution to call witnesses in rebuttal to testify as to alleged specific instances of conduct of a defendant. “Bare, unproven allegations of ‘complaints’ of prior incidents of similar conduct have no relevancy to the issue of defendant’s truthfulness or veracity.” State v. Goodliffe, 578 P.2d 1288, 1290 (Utah 1978). The evidence offered by the prosecution was not admitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Utah R.Evid. 404(b). It was not proper proof of character under rule 405 or proper impeachment under rule 608. There being no specific exception to allow it, the evidence should be excluded under the general proscription contained in rule 404 that “[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”

The trial court also stated that the testimony was “not within the ambit of rule 403.” Even under circumstances where evidence of specific instances of conduct are allowed under the rules, the trial court should analyze this testimony under rule 403.¹ This type of testimony can be highly prejudicial and may tend to confuse the issues before the jury. A careful weighing of the relevance and probative value of such evidence should be made and a balance struck between the need for its introduction and the prejudicial effect the testimony may have before such evidence is received. See State v. McClain, 706 P.2d 603, 604-05 (Utah 1985); State v. Forsyth, 641 P.2d 1172, 1176-77 (Utah 1982) (Stewart, J., concurring).

Defendant’s conviction is reversed, and the case is remanded for a new trial.

HALL, C.J., concurs.

1 . Rule 403 of the Utah Rules of Evidence states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”