Kathleen DeChant v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

KATHLEEN DECHANT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-501

September 28, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR 03-1240-1]

HON. WILLIAM A. STOREY,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Kathleen DeChant was convicted in a Washington County jury trial of rape for which she received a sentence of 480 months in the Arkansas Department of Correction. On appeal, she argues that the trial court erred in admitting testimony from the mother of the three-year-old victim concerning statements that the victim allegedly made because the statements were hearsay and violated her rights under the confrontation clause. DeChant also argues that the trial court erred in failing to suppress the statement that she made to police. We affirm.

At trial, Kimberly Gilbert, the mother of the victim S.W., testified that DeChant was a close personal friend and quite often spent time with her children. On the day in question, DeChant had offered to take S.W. overnight to give Gilbert some respite because Gilbert had been taking care of her sick infant son. Gilbert accepted the offer without hesitation, and DeChant picked up S.W. Later, DeChant called and offered to have S.W. spend the night, but she also requested a change of clothes because S.W. had wet her pants. At about 5:30p.m., Gilbert's husband, Jerry, took the clothes to DeChant. Jerry told Gilbert that there was

a man at DeChant's apartment. Gilbert called questioning DeChant about who was there, and DeChant informed her that the man that Jerry had seen was the landlord. Gilbert inquired about how S.W. was doing, and DeChant told her that S.W. was fine.

According to Gilbert, at approximately 1:00 a.m., DeChant knocked on her door, "freaking out" and "hysterical and crying" because S.W. had a nightmare and was unsure how to deal with it. Jerry brought DeChant back to the bedroom. S.W., who was dressed only in panties and a t-shirt and wrapped in her favorite blanket, crawled into Gilbert's lap. DeChant related that in her sleep, S.W. had said, "No, no, no don't pull down my panties." DeChant asked her if S.W. was being molested, and Gilbert said that she assured DeChant that it was not happening. S.W. wanted to return to DeChant's residence, and Gilbert allowed the child to go.

The next day, at 1:30 p.m., Gilbert met S.W. and DeChant at Sarah Phillips's house. She noticed that S.W. was wearing a brand new outfit that DeChant had bought because "[S.W.] wanted it." DeChant had left the clothes that S.W. had come in at her residence. According to Gilbert, DeChant again asked if S.W. was being molested, and Gilbert once again assured her that it was not happening. At 3:00 p.m., Gilbert took S.W. home and told her to get undressed for a bath because DeChant "has cats at her house and I don't like how [S.W.] comes home with the smell of cats." Gilbert discovered blood in S.W.'s pants.

Gilbert called S.W., who was playing alone at the time, over to talk to her, but S.W. "was scared because she didn't want to go back up there and talk to me." Over DeChant's hearsay and confrontation-clause objection, Gilbert testified that S.W. "started shaking and crying and she's like mama, I don't want to get in trouble and I said baby, you're not going to get in trouble, I said you got to tell me what's going on and she said Kat hurt my privates." According to Gilbert, she immediately took S.W to the emergency room at Washington Regional Medical Center.

Gilbert further testified that she later talked to state investigator Martha Wells about the incident. She noted that during the interview, S.W. pulled down her pants to demonstrate what happened. At that time Gilbert turned over the blood-stained pants that S.W. had been wearing when she returned from the overnight visit with DeChant.

Michelle Diane Smith, a registered nurse at Washington Regional Hospital, testified that she assisted in the examination of S.W. after Gilbert informed her that she believed S.W. had been sexually assaulted. Smith stated that the examination revealed that S.W.'s vaginal area was red and swollen and that there was a small tear in the child's perineal area. She noted that prior to the exam, S.W. had been bathed, so they did not "do a rape kit."

Carla M. Jamerson, a forensic nurse examiner for the Children's Safety Center in Springdale, testified that upon referral from the Arkansas State Police, she had examined S.W. two days after the alleged incident. She stated that her examination revealed a "split" in S.W.'s hymenal ring. Jamerson opined that the injury was caused by "blunt force" from something other than a sharp object being inserted into the vaginal area. Over DeChant's objection, Jamerson also opined that the nature of the injury would be "inconsistent" with being self-inflicted by a child because it would be "painful" to "touch to the point of injury."

Detective Darrell Hignite of the Springdale Police Department juvenile division testified that he was assigned to investigate the alleged sexual assault of S.W. He stated that he first contacted the victim's mother and State Police investigator Martha Wells, and based on his conversations with these individuals, DeChant was identified as a suspect. He then talked with Nurse Charla Jamerson prior to contacting DeChant. According to Detective Hignite, on June 10, 2003, he and his partner, Detective Motsinger, went to DeChant's residence at Black Oak Apartments and asked her to come to the police station. DeChant complied, and prior to the interview, she was given Miranda warnings. DeChant agreed to speak with them.

Detective Hignite stated that, in the interview, DeChant claimed that S.W. walked out of the bathroom with a three-to-four inch vibrator inserted in her vagina and that Dechant had to pull it out. He stated further that DeChant told him that the child had turned on the vibrator and that when she removed it, the child was bleeding. DeChant also told him that she had another, much larger "massager" that S.W. had placed between her legs.

Detective Charles Motsinger also testified about the interview, stating that he videotaped while Detective Hignite spoke with DeChant, then went into the room when Detective Hignite left. He stated that DeChant also told him that S.W. had inserted a vibrator in her vagina, but later also admitted that the middle finger of her right hand had "accidentally" slipped into S.W.'s vagina, up to the "hilt" of her hand. He noted further that DeChant conceded that she might have inserted her index finger as well. According to DeChant, her fingers had "slipped" inside the child because they were coated with lotion which she had on her hands during and after the bath. On cross-examination, Motsinger admitted that, at the time he had questioned DeChant, he had not actually seen the medical reports. He noted, however, that when DeChant told him that she had "slipped" her fingers into S.W.'s vagina, she seemed "relieved." The videotaped interview was played for the jury. It corroborated the detectives' testimony concerning the incriminating statements that DeChant had made.

DeChant first argues that the trial court erred in overruling her objection to Kimberly Gilbert's statement about what S.W. said on the grounds that it was hearsay. Citing Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001), which she urges us to find analogous, she contends that the statement did not qualify as an "excited utterance" because Gilbert testified S.W. did not give a spontaneous statement, but rather responded to her mother's questioning; while S.W. was "upset" at the time of the questioning, her mental and physical condition seemed "normal"; and Gilbert had not noticed "anything at all" unusual about S.W. during the nearly twelve hours between the time of the alleged molestation and the making of the statement. DeChant asserts that Gilbert's observations of S.W.'s demeanor was not consistent with a child who was in a "period of excitement" in response to an event. We agree.

A trial court's ruling on matters pertaining to the admission of evidence is within the discretion of the trial court and will not be set aside absent abuse of discretion. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). Under Rule 803(2) of the Arkansas Rules of Evidence, an excited utterance, defined as a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," is excepted from the hearsay rule. In determining whether a statement qualifies as an excited utterance, the trial court must consider several factors: the lapse of time (which is relevant, but not dispositive), the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Lewis v. State, supra. In addition, "[i]n order to find that 803(2) applies, it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation." Id. (citing United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)). Additionally, our supreme has held "[f]or the ... exception to apply, there must be an event which excites the declarant. Also, the statements must be uttered during the period of excitement and must express the declarant's reaction to the event." Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994).

Here, S.W.'s statement occurred a substantial length of time - nearly twelve hours- after the alleged event, and from Gilbert's testimony, it is apparent that the "period of excitement" for S.W. had lapsed. Furthermore, S.W.'s alleged statement was made in response to her mother's questioning. While we are mindful that the mere fact that the declarant makes a statement in response to questioning is not determinative of whether they are the product of the event, see Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), our case law requires that the evidence reflect that the statement was spontaneous, excited, or impulsive as a direct product of the event itself, and in this case, we believe that the act of questioning produced the reflection and deliberation that removes the child's statement from the excited utterance hearsay exception. See Lewis v. State, supra.

Because we hold that the trial court erred in admitting S.W.'s hearsay statement, we need not address the merits of DeChant's confrontation clause argument. However, finding the statement inadmissible does not conclude our analysis. It is well settled that an evidentiary error may be declared harmless if the error is slight, and the remaining evidence of a defendant's guilt is overwhelming. Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997). Furthermore, we have repeatedly held that prejudice is not presumed and no prejudice results where the evidence erroneously admitted was merely cumulative. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

In embarking on harmless-error analysis in this case, we are mindful that we have not addressed DeChant's confrontation-clause argument. A deprivation of one's rights under the confrontation clause can be harmless as well and not mandate reversal if such error may be determined to be harmless beyond a reasonable doubt. See Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994). In Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987), our supreme court stated that

when determining whether the denial of a party's right to cross-examine a witness for possible bias is harmless error, the court considers a host of factors, including the importance of the witness's testimony, whether the testimony was cumulative, whether evidence existed that corroborates or contradicts the testimony of a witness, and the overall strength of the prosecution's case.

We will therefore apply the harmless-beyond-a-reasonable-doubt standard to our analysis.

Here, it is not disputed that S.W. was penetrated and that the penetration occurred when S.W. was in the exclusive care of DeChant. Indeed, in the videotaped interview that was played for the jury, DeChant herself admitted that S.W.'s vaginal area bled while the child was staying overnight at her apartment. Furthermore, DeChant admitted that she had inserted one or two fingers all the way into S.W.'s vagina. We are mindful that DeChant claimed that S.W.'s injury occurred when the child inserted a three-to-four inch vibrator into her own vagina, but find it to be of no moment. Not only is that story completely incredible, it is belied by DeChant's subsequent admission that she engaged in digital penetration of the child. Accordingly, we hold that the child's hearsay statement that "Kat hurt my privates" is at worst cumulative on the issue of who was responsible for S.W.'s injury, and therefore harmless beyond a reasonable doubt. See Lewis v. State, supra.

For her final point, DeChant argues that the trial court erred in denying her motion to suppress the videotaped interview because it violated Rule 2.3 of the Arkansas Rules of Criminal Procedure. She asserts that when Detectives Hignite and Motsinger came to her house, Motsinger essentially deceived her into believing that he wanted to discuss her pending shoplifting charges. Further, she argues that the detectives never advised her that she had no legal obligation to comply with their request to come to the police station, although she does concede that she was allowed to drive herself to the interview. Finally, DeChant asserts that, by Detective Hignite's own admission, the police officers only had "enough probable cause" to initiate contact. We disagree.

When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, and we will reverse the trial court's decision if it was clearly against the preponderance of the evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Any conflict in the testimony of different witnesses is for the trial court to resolve. Id. Rule 2.3 of the Arkansas Rules of Criminal Procedure states:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

However, if a police officer has probable cause to arrest, failure to give a Rule 2.3 warning is irrelevant. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

We hold that the trial court did not err in denying DeChant's motion to suppress because the police had probable cause to arrest at the time of DeChant's interview. Probable cause is defined as facts or circumstances within a police officer's knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). The police were aware of medical evidence that supported a conclusion that S.W. had been penetrated, and investigators had determined from their interview with Kimberly Gilbert that S.W. was in DeChant's exclusive care during the time period when the penetration had occurred. Thus, the police had sufficient facts to establish probable cause for an arrest.

Finally, regarding DeChant's reliance on a portion of Detective Hignite's suppression-hearing testimony that suggested that he believed the police lacked enough probable cause to arrest, we believe this point is disingenuous at best. In the first place, DeChant mischaracterizes the detective's testimony. He stated that the police had "at least enough probable cause to initiate contact." Moreover, later on in his testimony, Detective Hignite stated that he believed that he had enough probable cause to arrest. Second, and more importantly, a probable-cause determination does not turn on the subjective views of police; rather it is an objective question of law for the courts. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989).

Affirmed.

                    Neal and Vaught, JJ., agree.