In the Matter of the Welfare of: G.E.F., Child.

In the Matter of the Welfare of: G.E.F., Child. A06-1778, Court of Appeals Unpublished Decision, October 16, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1778

 

In the Matter of the Welfare of:

G.E.F., Child.

 

Filed October 16, 2007

Affirmed

Ross, Judge

 

Jackson County District Court

File No. JV-06-45

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3230 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Robert C. O'Connor, Jackson County Attorney, Jackson County Courthouse, 405 Fourth Street, Suite 2D, Jackson, MN 56143 (for respondent)

 

Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

 

This case concerns the trial of a 13-year-old boy accused of sexually abusing two young girls, one five years old and the other eight.  On appeal from a delinquency adjudication for first- and second-degree criminal sexual conduct, G.E.F. asserts that the district court violated his Sixth Amendment rights by admitting videotaped statements of one of the alleged victims, a five-year-old girl who did not testify and whom G.E.F. did not have a prior opportunity to cross-examine.  Because the interview during which the girl gave her statements was conducted in accordance with Minnesota Statutes, section 626.556, and the primary purpose of the interview was to assess and protect the child's health and welfare, the statements were nontestimonial.  The district court properly admitted the statements, and we affirm.

FACTS

In May 2006 the state filed a delinquency petition alleging that G.E.F. had committed four counts of first-degree criminal sexual conduct against C.A.W.  The state later amended its petition to include one count of second-degree criminal sexual conduct for a separate incident against K.B.

The district court found that C.A.W., who was five years old, was not competent to testify at trial.  The state then moved to admit a videotaped interview of C.A.W. conducted by Sonya Becker, a child-protection social worker.  Becker had conducted the interview after C.A.W.'s father notified social services that someone told him that G.E.F. had molested C.A.W.  Becker contacted the Jackson County Police Department after receiving the report.  Becker and police officials determined that C.A.W. should be interviewed, and Becker arranged to use the police department's "soft room" to question her the following afternoon.  The soft room is specifically designed for interviews with children.

Becker interviewed C.A.W. while another social worker watched the interview on a closed-circuit television in a separate room.  Becker conducted the interview using the CornerHouse protocol, which uses nondirective questioning.  The protocol structures the interview to begin with questions designed to develop the interviewer's rapport with the child, followed by questions to discern the child's understanding and identification of human anatomy, questions about types of touch, and questions focused on abuse and how and by whom the child may have been touched.  The interviewer ends by answering the child's questions and reminding the child about safety. C.A.W.'s interview was recorded on videotape and audiotape.

G.E.F. objected to the state's motion to admit the videotaped statements into evidence at trial, arguing that admitting the statements would violate his Sixth Amendment right of confrontation.  The district court held that the statements were nontestimonial and admissible.  The state played the videotape at trial.  During the interview, using her own terminology C.A.W. told Becker that G.E.F. had taken her down by a river, partially undressed her, touched her buttocks and vagina with his hand, digitally penetrated her vagina, and put his penis in her mouth.  She said he threatened to throw her in the river if she did not cooperate.  Another juvenile testified that he saw G.E.F. near the river holding C.A.W.  He stated that C.A.W. was crying and that, although both were clothed, G.E.F. "was touching her and in her vagina and she didn't like it."

The district court determined that K.B., who was six years old, was competent to testify.[1]  She testified that G.E.F. touched her breasts and buttocks through her clothing.

The court found G.E.F. guilty of all charges and adjudicated him delinquent.  G.E.F. appeals, arguing that the district court violated his right to confront C.A.W. by admitting her videotaped statements.

D E C I S I O N

A defendant in a criminal prosecution has the right "to be confronted with the witnesses against him."  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  To protect this right, testimonial statements are inadmissible unless the declarant is unavailable to testify at trial and the defendant had an earlier opportunity to cross-examine the declarant.  Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004); State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).  We review de novo whether the admission of evidence violated a defendant's right to confront witnesses.  State v. Wright, 726 N.W.2d 464, 472 (Minn. 2007) (Wright III).

It is undisputed that C.A.W. was unavailable to testify and that G.E.F. did not have an opportunity to cross-examine her.  See Minn. Stat. § 595.02, subd. 3 (2006) ("An unavailable witness includes an incompetent witness.").  Our review is therefore limited to determining whether C.A.W.'s statements were testimonial and subject to the Confrontation Clause of the Sixth Amendment.  See Davis v. Washington, 126 S. Ct. 2266, 2273 (2006) ("It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.").

Following Crawford, the Minnesota Supreme Court set forth a multifactor test to determine whether a statement was testimonial.  State v. Wright, 701 N.W.2d 802, 812-13 (Minn. 2005) (Wright II), vacated 126 S. Ct. 2979 (2006).  After Wright II, the court clarified that this test focuses primarily on the declarant's purpose in speaking and the government interrogator's purpose in questioning.  State v. Bobadilla, 709 N.W.2d 243, 250 (Minn. 2006).  It held that the court should look to "whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial."  Id.at 252.  The Bobadilla court applied an objective standard, focusing on whether a reasonable government questioner or declarant would, under the circumstances, exhibit that purpose.  Id. at 253.  Using this test, in two cases the court addressed fact patterns similar to the case now before this court.

In Bobadilla, the district court admitted a child-protection worker's videotaped interview of a three-year-old sexual-abuse victim after finding the child incompetent to testify.  The supreme court agreed that the statements were nontestimonial.  Id. at 256.  It held that the interview was conducted according to Minnesota Statutes, section 626.556, which sets forth the procedure for reporting, investigating, and responding to threats to children's health and welfare.  Id. at 254-55.  The court found that the interview's "overriding purpose" was to "assess[] whether abuse occurred, and whether steps were therefore needed to protect the health and welfare of the child."  Id. at 255.  Any purpose of interviewing the child to produce a statement for trial, the court held, "was at best incidental" to this main purpose.  Id.

In Scacchetti, the district court admitted videotaped statements and a doctor's testimony after the doctor examined a three-year-old sexual-abuse victim.  State v. Scacchetti, 711 N.W.2d 508, 510 (Minn. 2006).  The court focused on the identity and purposes of the questioner, and it held that the statements were nontestimonial because they were obtained from a nongovernmental actor whose purpose was to assess the child's medical condition.  Id. at 51415.

The supreme court recently reexamined Bobadilla and Scacchetti in light of the United States Supreme Court's distinction between testimonial and nontestimonial statements in Davis.  In Krasky, the district court held that statements made by a six-year-old to a nurse practitioner were testimonial.  We affirmed, interpreting Davis to affect the impact of Bobadilla and Scacchetti because the supreme court had relied on Wright II and "[n]either opinion reflects the more direct approach of Davis, which examines only whether police are seeking information about past events that may relate to a future prosecution and that it is not sought for a purpose of rendering emergency assistance."  State v. Krasky, 721 N.W.2d 916, 921 (Minn. App. 2006).  But the supreme court reversed and explicitly reaffirmed the precedential value of Bobadilla and Scacchetti.  State v. Krasky, 736 N.W.2d 636, 642-43, (Minn. 2007).  The court stressed that Davis was limited to its facts and the proper focus to determine whether a statement is testimonial remains on the primary purposes for eliciting and making the statement.  Id.

In light of the supreme court's most recent decision, we conclude that C.A.W.'s statements were nontestimonial.  Factually, this case is similar to Bobadilla because C.A.W. was interviewed at a law-enforcement center by a child-protection worker using the CornerHouse protocol, and the interview occurred several days after the report of abuse.  Becker followed the statutory procedure for responding to a report of suspected child abuse. Section 626.556 requires social-services agencies and law enforcement to coordinate their efforts after receiving a report that a child has been sexually abused, and the statute further requires that interviews be videotaped.  Minn. Stat. § 626.566, subds. 10(a), (j)(2) (2006); see also Bobadilla, 709 N.W.2d at 255 (noting that "[a]voiding multiple interviews is a critical concern when dealing with children").  The purpose of the statute is to "protect children whose health or welfare may be jeopardized through a physical abuse, neglect, or sexual abuse."  Minn. Stat. § 626.566, subd. 1 (2006).  The section is not directed toward "the prosecution of criminals or the collection of evidence for trial."  Krasky, 2007 WL 2264711, at *4; see also Bobadilla,709 N.W.2d at 254(holding thatprimary purpose in interviewing child in accordance with section 626.556 is to assess the child's safety, not prepare a statement for trial).  Becker's purpose in conducting the interview was to comply with the statutory procedure, and her primary concerns were what had happened to C.A.W. and the state of C.A.W.'s current health and welfare.  Becker used nondirective questioning to elicit and assess this information.  Although Becker did not interview C.A.W. until four days after the alleged abuse and the suspect was not a family or household member, "[t]he harms of child abuse are not limited to the abused child's physical well-being."  Krasky, 2007 WL 2264711, at *4.  The record does not suggest that Becker's primary purpose in interviewing C.A.W. or C.A.W.'s primary purpose in speaking to Becker was to produce evidence for trial.

We hold that C.A.W.'s statements were nontestimonial.  The district court therefore properly admitted them.

Affirmed.

[1]   The record includes conflicting references to K.B.'s age.  The district court referred to K.B. as being six years old.  K.B. testified that she is eight years old.  The age discrepancy is not relevant to the issues on appeal.