J.B.M. v. State (In re J.B.M.)

J.B.M. v. State (In re J.B.M.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of J.B.M., a person under eighteen years of age.

______________________________

J.B.M.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020931-CA
 

F I L E D
(October 23, 2003)
 

2003 UT App 358

 

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Third District Juvenile, Salt Lake Department

The Honorable Charles D. Behrens

Attorneys: Ralph D. Crockett, Salt Lake City, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Orme.

GREENWOOD, Judge:

Defendant, J.B.M., appeals the trial court's adjudication that he committed sodomy on a child in violation of Utah Code Annotated section 76-5-403.1 (1999). We affirm.

Defendant argues that when the trial court admitted the victim's out-of-court statements, made to his mother, the court failed to make express findings as to the reliability of these statements as required by Utah Code Annotated section 76-5-411 (1999). "In the interests of judicial economy and stability of judgments . . . all contentions of error in trial court proceedings [must] be presented when an appeal is taken from a final judgment or order so that the trial court's judgments and rulings will not be upset after completion of appellate review." DeBry v. Cascade Enters., 935 P.2d 499, 502 (Utah 1997). Therefore, on appeal, we will not consider an issue at trial that is not raised by the parties in their appeal. See State v. Harry, 873 P.2d 1149, 1153 n.8 (Utah Ct. App. 1994).

In this case, the trial court found that the victim's out-of-court statements to his mother were admissible not only under section 76-5-411, but also under rule 803(1) of the Utah Rules of Evidence as present sense impressions. On appeal, J.B.M. failed to challenge the trial court's ruling that these statements were admissible under rule 803(1). Therefore, this court need not decide whether the trial court was correct in admitting the statements under section 76-5-411.(1) See Camp v. State, 991 S.W.2d 611, 614 (Ark. Ct. App. 1999) (holding that because one of trial court's stated grounds for admitting hearsay statements was not challenged on appeal, it was unnecessary to decide whether trial court erred in admitting the statements).

Defendant also argues that the trial court erred when it admitted the victim's videotaped statements, made to Detective Eric Brown, without making express findings as to the reliability of these statements as required by section 76-5-411. Whether the trial court correctly admitted statements made during a videotaped interview is a question of law that we review for correctness. See State v. Snyder, 932 P.2d 120, 125 (Utah Ct. App. 1997). Videotaped statements of child sex abuse victims or witnesses are generally admissible if they conform to the requirements of section 76-5-411 and rule 15.5(1) of the Utah Rules of Criminal Procedure. See Snyder, 932 P.2d at 131-33. However, in cases in which the person accused of child sex abuse is a juvenile, courts look to rule 29A(1) of the Utah Rules of Juvenile Procedure instead of rule 15.5(1) to determine the admissibility of videotaped statements. Therefore, videotaped statements of child victims or witnesses must meet the requirements of rule 29A(1) and section 76-5-411.

The trial court only admitted the victim's videotaped statements on the basis that they were reliable under section 76-5-411. However, the parties stipulated that the videotaped statements met all of the requirements of rule 29A(1) of the Utah Rules of Juvenile Procedure, with the exception of those requirements contained in subsection (g). The language in subsection (g) is almost identical to that of rule 15.5(1)(g) of the Utah Rules of Criminal Procedure.(2) This court has previously held that "[w]hile Rule 15.5 does not mandate the same in-depth inquiry as does section 76-5-411, the same policy of ensuring that the out-of-court statement . . . is 'sufficiently reliable and trustworthy and the interest of justice will best be served' is present." Snyder, 932 P.2d at 133 (quoting Utah R. Crim. P. 15.5(1)(g)). Therefore, if the trial court satisfied all of the requirements of section 76-5-411 when it admitted the videotaped statements, it also satisfied the requirements of rule 29A(1).

Section 76-5-411 requires that prior to admitting a child sex abuse victim's out-of-court statements, a trial court must consider "the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child." Utah Code Ann. § 76-5-411(2). Moreover, in "[a]ssessing the last factor, 'the reliability of the assertion and of the child,' a court may be required to consider some matters not specifically mentioned in the statute." State v. Pecht, 2002 UT 41,¶20, 48 P.3d 931 (quoting Utah Code Ann. § 76-5-411(2)). However, "trial courts should not consider the [section 76-5-411] statutory factors mechanically, and on review, the sufficiency of a trial court's findings should not hinge on mere technical adherence to the statutory factors." State v. Seale, 853 P.2d 862, 871 (Utah 1993).

Viewing the record as a whole, the trial court adequately considered the factors listed in section 76-5-411 and the "reliability" factors outlined in Pecht, when it ruled that the victim's videotaped statements were admissible. During the pre-trial evidentiary hearing, the State addressed in detail each of the section 76-5-411 factors. Moreover, after the victim testified, the trial court noted that his testimony "was generally consistent for a child his age with what [was] contained in the tape." Finally, in its written findings, the trial court concluded that "the statements made to the detective were consistent with what he told his mother and appropriate for his age. In the interview, [the victim] indicated that he understood the meaning of telling the truth. The detective did not ask inappropriate or leading questions." Therefore, we find no error on the part of the trial court when it admitted the victim's videotaped statements under section 76-5-411.(3)

Affirmed.

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Pamela T. Greenwood, Judge

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I CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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I CONCUR IN THE RESULT:

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Gregory K. Orme, Judge

1. In any event, it appears that the victim's statements to his mother did qualify as present sense impressions. See, e.g., State v. McMillan, 588 P.2d 162, 163 (1978) (admitting as a present sense impression and an excited utterance, a child's statement describing details of sexual abuse made minutes after the abuse occurred).

2. Rule 29A(1)(g) of the Utah Rules of Juvenile Procedure states that visual recording of the statements of a child victim or witness of sexual or physical abuse are admissible if "the court views the recording and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence."

Rule 15.5(1)(g) of the Utah Rules of Criminal Procedure states that visual recording of the statements of a child victim or witness of sexual or physical abuse are admissible if "the court views the recording before it is shown to the jury and determines that it is sufficiently reliable and trustworthy and that the interest of justice will best be served by admission of the statement into evidence."

3. J.B.M. also argues that the trial court violated his due process rights when it considered the admissibility of hearsay statements at the pre-trial evidentiary hearing, and then acted as trier-of-fact at his bench trial. Generally, we will not consider an issue--even a constitutional issue--which is raised for the first time on appeal, unless an appellant can demonstrate that: "(1) the trial court committed 'plain error,' or (2) there are 'exceptional circumstances.'" State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991) (citations omitted). J.B.M. failed to argue to the trial court that it violated his due process rights when it acted as both the gatekeeper of evidence and the trier of fact. Moreover, on appeal, J.B.M. does not claim that the trial court committed "plain error," or that there were "exceptional circumstances." Id. Therefore, this court will not address J.B.M.'s due process argument.