In the Matter of the Welfare of:  K.R.O., Child.

In the Matter of the Welfare of:  K.R.O., Child. A04-2080, Court of Appeals Unpublished, October 4, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2080

 

 

In the Matter of the Welfare of:  K.R.O., Child.

 

 

Filed October 4, 2005

Affirmed Willis, Judge

 

Mille Lacs County District Court

File No. J2-03-50644

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant K.R.O.)

 

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

Janice S. Kolb, Mille Lacs County Attorney, Heather A.B. Griesert, Assistant County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN  56353 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            This appeal is from an adjudication of delinquency, finding that appellant committed first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2002) (sexual penetration with a victim under the age of 13).  Appellant argues that (1) the district court abused its discretion by admitting into evidence at trial the Cornerhouse interview with the five-year-old victim and in ruling that the victim was competent to testify and (2) the district court erred by failing to properly place the victim under oath or affirmation before she testified.  Because we conclude that admission of the statement was, at most, harmless error, and that no other error occurred, we affirm.

FACTS

            Appellant K.R.O. was charged in a juvenile-delinquency petition with engaging in sexual penetration with Z.G., a five-year-old neighbor girl, on September 6, 2003, when K.R.O. was 13 years old.  The petition alleged that K.R.O. digitally penetrated the victim while they were briefly together in the victim's apartment without adult supervision.

            At trial, the state called Z.G. as a witness.  When she entered the courtroom, she immediately said, "I'm scared."  Her father was provided to her as a support person.  The district court asked Z.G. a series of questions bearing on her competency as a witness.  To many of these questions, as well as to the follow-up questions by counsel, Z.G. gave no audible response.  The district court then ordered a brief recess, and the prosecutor explained when they returned that she had been talking to Z.G. "about talking out loud."  The district court then made a series of statements to Z.G. about the need to tell the truth in court; to each statement, Z.G. responded, "Okay."  The district court then questioned Z.G. about "pinkie promises," a term the child had used before, and Z.G. agreed that she understood what a promise was.  The following exchange then occurred between the district court and Z.G.:

Q         What I need to have you promise here today is that you will always tell the truth.

 

A         Okay.

 

Q         Can you promise you will always tell the truth?

 

A         Yes.

 

Q         And you know what that means?

 

A         Yeah.

 

Q         If you tell a lie, are you breaking your promise?

 

A         Yeah.

 

            At this point, defense counsel questioned Z.G. about what had occurred during the recess and whether she saw any difference between "pinkie promises" and what she was expected to say in court.  Z.G. responded that she did not know whether there was a difference.  The district court then questioned Z.G., and she again affirmed that she would tell the truth in court. The district court ruled that Z.G. "is competent and she has been sufficiently affirmed to testify here."

            In her testimony, Z.G. indicated that she remembered K.R.O. coming to her home once but said she did not know if anyone touched her then.  After a number of other unresponsive answers, the prosecutor asked Z.G. if anyone ever touched her "privates," and she replied that K.R.O. did.  She testified that K.R.O. touched her under her clothes with his finger, and it hurt.  Z.G. testified that when her mother came home, she "told her the truth" about what "[K.R.O.] did to me." 

            On cross-examination, Z.G. again testified that K.R.O. improperly touched her.  She testified that sometimes she remembered that touch, and sometimes she did not.

            Following Z.G.'s testimony, the district court viewed the videotape of the Cornerhouse interview.  In the interview, Z.G. told the social worker who was interviewing her that she knew she was there to "tell you something."  After going through the pictures of a male and a female, showing parts of the body, Z.G. said she did not get any bad touches.  She said there were not parts on her body that should not be touched and denied that anyone had ever touched her genitals.

            Finally, the social worker told Z.G. that "it's not okay for me" when people engage in bad touches with children.  She then went through a list of some of the people Z.G. knew, then asked if K.R.O. had touched her in a bad place.  Z.G. said she did not know, but quickly changed her mind, saying he had touched her on her genitals.  Z.G. said that K.R.O. touched her under her clothes with his finger while they were in the living room and that it hurt.  She then said that she had told her mom about it and that it was the truth. 

            After viewing the videotape, the district court found that Z.G.'s language was appropriate for her age; that there was no evidence of coaching; that the questions were not suggestive, but instead "fairly open-ended"; and that the answers represented Z.G.'s own thought process.  The district court ruled the tape had "sufficient indicia of reliability" under Minn. Stat. § 595.02 to be admitted.

            Z.G.'s mother testified that on September 6, 2003, she had left K.R.O., his younger brother, and Z.G. in the apartment for about 30 minutes while she went across the street to get K.R.O.'s mother.  When she returned, Z.G. told her mother that K.R.O. had touched Z.G. on her private parts.  Z.G.'s mother testified that she noticed redness on Z.G. that evening when she gave her a bath, and she also testified that she and Z.G. went to K.R.O.'s house later that evening and that Z.G. went up to K.R.O. and said to him, "I told my mom."

            The social worker who interviewed Z.G. testified that she was trained at Cornerhouse to do forensic interviews of sexual-assault victims.  She testified that she interviewed Z.G. on September 8, 2003, at the Princeton Police Department.  On cross-examination, she testified that there was a process for conducting interviews using the Cornerhouse method that called for her to talk to Z.G. first about body parts and then about inappropriate touches.  She conceded that she told Z.G. that she had information that K.R.O. had touched her inappropriately. 

            The district court issued an order concluding that the offense had been proved beyond a reasonable doubt.  A disposition order was later entered placing K.R.O. on probation.  This appeal followed.

D E C I S I O N

            K.R.O. argues first that the district court abused its discretion by finding that Z.G. was competent to testify.  A determination of the competency of a witness is within the sound discretion of the district court.  State v. Sime, 669 N.W.2d 922, 925 (Minn. App. 2003).  A district court's finding of competency will not be reversed absent a clear abuse of discretion.  State v. Cermak, 350 N.W.2d 328, 332 (Minn. 1984).

            To determine a child's competency to testify, the district court must conclude that the child is capable of telling the truth and is able to recall facts.  Sime, 669 N.W.2d at 926.  Here, the district court conducted a lengthy examination of Z.G., appropriately addressing her ability to recall facts and her capacity to tell the truth.  The record of that examination establishes that Z.G., while having difficulty with abstract questions and with giving verbal responses, could recall facts and had the capacity to tell the truth.  K.R.O. cites a number of instances in which Z.G. gave no response, or an inadequate response, to the questions posed.  But the record shows that in those instances Z.G. could not follow the question or failed to give a verbal response, not that she could not recall facts or lacked the capacity to tell the truth.  We note that the prosecutor occasionally interpreted Z.G.'s non-verbal responses.  But a court reporter would typically note similar interpretations in the transcript of a hearing.  (The hearing in this case appears to have been recorded on tape, not by stenographic means.)  Despite these limitations, the examination of Z.G. indicated that she could relate facts, knew the difference between the truth and a lie, knew what a promise was, and understood that she was promising to tell the truth in court.  Therefore, the district court did not clearly abuse its discretion by ruling she was competent to testify.

K.R.O. also argues that the district court failed to administer an oath or affirmation to Z.G. before taking her testimony.  The Minnesota Rules of Evidence require that every witness "shall be required to declare that the witness will testify truthfully, by oath or affirmation."  Minn. R. Evid. 603.  A child witness's affirmation that she knows what the truth is and is promising to tell the truth is sufficient.  See State v. Mosby, 450 N.W.2d 629, 633 (Minn. App. 1990) (holding that child witness's affirmation that she knew the difference between the truth and a lie and was supposed to tell the truth in court satisfied rule 603), review denied (Minn. Mar. 16, 1990); State v.  Morrison, 437 N.W.2d 422, 428 (Minn. App. 1989) (holding that child who indicated she knew what the truth was and what a lie was and nodded when asked to promise to tell the truth was administered the equivalent of an oath), review denied (Minn. Apr. 26, 1989).

            The district court twice elicited from Z.G. a promise to tell the truth in court.  Although K.R.O. argues that these statements did not qualify as an "affirmation" under Morrison, he fails to show how they differ significantly from the promise made by the witness in that case.  We conclude that the district court elicited an adequate affirmation from Z.G.

            K.R.O. also argues that the admission of Z.G.'s out-of-court statement violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), but he does not support that argument with citation to any authority applying Crawford when the declarant testifies at trial.  The Supreme Court in Crawford "reiterate[d] that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements."  541 U.S. at 59 n.9, 124 S. Ct. at 1369 n.9.  Z.G. testified at trial, and defense counsel cross-examined her.  Thus, there was no violation of the Confrontation Clause under Crawford in admitting Z.G.'s out-of-court statement.  Although K.R.O. argues that Z.G. should not have testified because she was incompetent, that does not affect the Crawford analysis.  K.R.O. does not argue that the nature of Z.G.'s testimony was such that he was effectively denied the right to cross-examine her.  We note that Z.G. remembered being interviewed by the social worker and, therefore, was subject to at least some cross-examination concerning the circumstances of that interview.

            K.R.O.'s final argument is that Z.G.'s videotaped interview with the social worker did not have sufficient indicia of reliability to be admitted as hearsay.  He argues that Crawford effectively invalidates Minn. Stat. § 595.02, subd. 3 (2004), the statute authorizing admission of reliable hearsay statements of child witnesses.  Alternatively, he argues that the statement did not have sufficient indicia of reliability under the statute.  In particular, he argues that the safeguards recommended for interviews of child-abuse complainants were not followed.

            The Supreme Court in Crawford criticized the use of reliability as a standard for determining whether admission of certain out-of-court statements violates the Confrontation Clause.  541 U.S. at 61-63, 124 S. Ct. at 1370-71 (noting that "[r]eliability is an amorphous, if not entirely subjective, concept").  But as Crawford recognized, rules governing admission of hearsay are a separate and independent protection for the defendant.  See id. at 51, 124 S. Ct. at 1364 (noting that some out-of-court statements may be unreliable and, therefore, excludable under hearsay rules, while not implicating the Confrontation Clause).  Crawford does not cast doubt on the use of reliability as a factor in determining whether out-of-court statements satisfy the exceptions to the rule against hearsay.

            This court reviews the district court's evidentiary rulings for a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Out-of-court statements made by children under ten years of age describing sexual or physical abuse may be admitted into evidence (if not otherwise admissible under the rules) if the child testifies at the trial or hearing and the district court finds "that the time, content, and circumstances of the statement and the reliability of the person to whom the statement is made provide sufficient indicia of reliability."  Minn. Stat. § 595.02, subd. 3(a), (b).

            The district court found that the social worker used open-ended rather than suggestive questions in interviewing Z.G., that the child used age-appropriate language and showed no signs of coaching, and that her answers represented her own "thought process."  Therefore, the district court concluded that the statement had sufficient indicia of reliability to be admissible.

            Z.G.'s interview with the social worker occurred only two days after the incident.  Although it occurred at the police station, the investigating officer did not participate in the interview but instead viewed it on closed-circuit TV in another location.  Z.G.'s mother was not present during the interview.  And, as the district court found, there were no signs that the mother had coached Z.G., who, the transcript indicates, was quite reluctant to talk about the subject.  Moreover, the mother testified that she did not pursue the subject after Z.G. reported to her that K.R.O. had touched her.

            The social worker used leading questions at two points in the interview.  But in the first instance, in response to the question "Has anybody ever touched your pee-pee?" Z.G. responded, "No."  Because Z.G. did not give the anticipated response, it appears that the question was not unduly suggestive.  In the second instance, the social worker stated, "I got some information, [Z.G.], that [K.R.O.] may have touched you in a place that was not okay.  Will you tell me about that?"  Z.G. responded that she would, and, after first stating that she did not know what happened, admitted that K.R.O. had touched her on her "pee-pee."  Here, despite her initial hesitancy, Z.G.'s ultimate response indicates that she may have been influenced by the leading nature of the question.

            The other statutory factors, however, indicate that the statement elicited during the interview was reliable.  The social worker had been trained at Cornerhouse in the interviewing of alleged sexual-abuse victims and testified that she had interviewed 50 to 80 children.  This training and experience tended to make her a reliable interviewer.  And, although K.R.O. argues that appropriate safeguards were not followed during the interview, our supreme court has not required that interviewers follow a particular protocol.  Instead, it has, as to statements made by child complainants generally, looked to the circumstances "surrounding the making of the statements."  State v.  Salazar, 504 N.W.2d 774, 776 (Minn. 1993).

These circumstances . . . include, but are not limited to, whether the statements were spontaneous, whether the person talking with the child had a preconceived idea of what the child should say, whether the statements were in response to leading or suggestive questions, whether the child had any apparent motive to fabricate, and whether the statements are the type of statements one would expect a child of that age to fabricate.

 

Id. at 777 (quotation omitted).

            In State v. Scott, 501 N.W.2d 608, 618-19 (Minn. 1993), the supreme court reversed the admission of a child's statement relating sexual-abuse allegations made to a police officer and a social worker.  But in Scott the first portion of the interview was not recorded.  Id. at 611.  The police officer asked most of the questions, and the interview was conducted in the presence of the nine-year-old child's mother.  Id. at 610.

Scott was decided under a Confrontation Clause analysis, with the supreme court concluding that the interview was not "reliable enough to overcome the presumption that cross-examination of the declarant would be useful."  Id. at 619.  Here, Z.G. testified and was cross-examined, thereby satisfying the Confrontation Clause.  The only issue is whether the statement was reliable enough to be admissible, in the face of a hearsay objection, under Minn. Stat. § 595.02, subd. 3.  Unlike the statement in Scott, the statement here was not elicited in the presence of the child's mother or through police questioning, or even in the presence of a police officer.  We conclude that Z.G.'s statement was sufficiently reliable to be admissible under Minn. Stat. § 595.02, subd. 3.

            Even if Z.G.'s statement to the social worker were inadmissible hearsay, reversal is not required unless there is a reasonable possibility that the erroneously admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  The state presented Z.G.'s spontaneous report of the sexual abuse to her mother, the mother's observation of some physical evidence corroborating the abuse, and her testimony regarding Z.G.'s spontaneous statement to K.R.O. the same day ("I told my mom.").  In light of this evidence, it is unlikely the court would have given any appreciable weight to a statement that merely repeated what Z.G. had told her mother and did so in a much less-convincing manner.  We note that the fact-finder, the district court, was presumably more experienced with assessing statements such as Z.G.'s than a jury would be and that the district court itself had engaged in a similarly difficult questioning of Z.G. on the subject of her competency.  We conclude that even if admission of the hearsay statement were error, there is no reasonable possibility that it significantly affected the verdict.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.