State of Minnesota, Respondent, vs. David U. Alfaro, Appellant.

State of Minnesota, Respondent, vs. David U. Alfaro, Appellant. A04-1055, Court of Appeals Unpublished, January 23, 2007.

This opinion will be unpublished and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

A04-1055

 

State of Minnesota,

Respondent,

 

vs.

 

David U. Alfaro,

Appellant.

 

Filed January 23, 2007

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. K8-03-1623

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant David Alfaro initiated this appeal to challenge his conviction of malicious punishment of a child.  This court affirmed, holding that the victim's out-of-court statements were admissible as prior statements of identification under Minn. R. Evid. 801(d)(1)(C).  State v. Alfaro, 2005 WL 1668898 (Minn. App. July 19, 2005), review granted and stayed (Minn. Sept. 28, 2005) (stayed pending decision in State v. Robinson, 718 N.W.2d 400 (Minn. 2006)).  After the supreme court issued its decision in Robinson, it vacated this court's opinion and remanded for reconsideration of the admissibility of the out-of-court statements in light of Robinson.  Because we conclude that the statements are admissible under the residual exception, we affirm.

FACTS

            Appellant was charged with a single count of malicious punishment of a child for striking his eight-year-old son, D.A.C., on February 10, 2003, and causing substantial bodily harm.  Appellant brought the child to school the following day with facial injuries, including a broken front tooth that appellant claimed D.A.C. had suffered in gym class the previous day.

            After appellant left the school, D.A.C. made statements to his teacher, the principal, a police officer, the school nurse, and a nurse at Midwest Children's Resource Center (MCRC), indicating that appellant had punched him the day before, causing the injuries.  At a pretrial hearing, the district court ruled that D.A.C.'s statements to the school nurse and to the MCRC nurse were admissible under the medical-diagnosis exception to the hearsay rule.  Minn. R. Evid. 803(4).  The court ruled that the other out-of-court statements were not admissible. 

At trial, D.A.C. testified that he remembered seeing the school nurse and telling her what happened, but he would not answer questions about what he said.  D.A.C. testified that he did not remember seeing a nurse at MCRC.  D.A.C. denied that appellant broke his tooth or punched him. 

The school principal testified that appellant told her that D.A.C. said that he had been injured during gym class.  The principal later spoke with the physical-education teacher and Donna LaNasa, the school nurse. The physical-education teacher said that there had been no injury in the gym class, and that the activity, a non-contact game, was not of a nature to cause such an injury.  LaNasa did not remember D.A.C. coming to her office with an injury.

The principal and LaNasa took D.A.C. out of his class and brought him to the nurse's office, where LaNasa met with D.A.C. alone.  LaNasa testified that D.A.C. denied getting hurt in gym class the day before.  When she asked D.A.C. how he got hurt, he said that his dad hit him.  LaNasa testified that D.A.C. was reluctant to talk to her.  She testified that the purpose of her exam was to see whether a report of abuse should be filed, but she did not discuss the purpose of the interview with D.A.C.

Several hours later, a police officer took D.A.C. to Children's Hospital where he was seen in the emergency room and then at the hospital's MCRC, which diagnoses and treats sexual and physical abuse in children.  Kristine Clark, a registered nurse and case manager specializing in assessing child abuse, examined and interviewed D.A.C.  She testified that D.A.C. had been brought in for placement in the Ramsey Shelter Program, an emergency foster care program.  Clark testified that she told D.A.C. that she was a nurse, conducted a physical examination, and photographed the injuries.  But Clark testified that she did not tell D.A.C. the purpose of the examination.  She asked D.A.C. why he was at the hospital, and he pointed to the injuries on his face.  She asked him how it happened, and he said he was hit, indicating that it was with a closed fist.  When Clark asked D.A.C. who hit him, he said his dad had.  Clark testified that she was dressed in street clothes when she talked with D.A.C., and that she did not use leading questions in the interview. 

Appellant testified that D.A.C. told him that he fell while playing basketball.  Appellant denied hitting his son and breaking his tooth.  The jury found appellant guilty of malicious punishment of a child. 

In its earlier opinion, this court affirmed the admission of the out-of-court statements made by D.A.C. without reaching a conclusion on the medical diagnosis exception, the grounds stated by the district court.  We held that the statements were non-hearsay statements of identification under Minn. R. Evid. 801(d)(1)(C).  Alfaro, 2005 WL 1668898, at *2.  The supreme court reversed based on its holding in State v. Robinson, 718 N.W.2d 400 (Minn. 2006), and remanded for reconsideration in light of that opinion.

D E C I S I O N

            This court reviews evidentiary rulings for a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  The supreme court's remand requires this court to reconsider, in light of Robinson, our review of the trial court's decision that D.A.C.'s out-of-court statements were covered by the medical-diagnosis exception.  The state argues, in the alternative, that the statements are admissible under the residual exception.  The supreme court's Robinson opinion discusses both the medical-diagnosis exception and the residual exception.

Medical Diagnosis or Treatment

The supreme court in Robinson held that a statement of identification made by a declarant identifying a perpetrator who is well-known to the victim is not admissible under Minn. R. Evid. 801(d)(1)(C).  State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006).  The court also held that statements made by an adult victim of domestic assault to two nurses were not admissible under the medical-diagnosis exception to the hearsay rule.  Id. at 407.  The court declined to adopt a "categorical rule" that out-of-court statements made by victims of abuse are always admissible under the medical-diagnosis exception.  Id. at 405. 

The Robinson court did not "foreclose the possibility" it would adopt a categorical rule of admissibility for such statements.  Id. at 407.  It held, however, that there was "an insufficient evidentiary foundation" to show that the identity of the assailant "was reasonably pertinent" to medical diagnosis or treatment.  Id.

The medical-diagnosis exception provides that a statement is not excluded by the hearsay rule if it is "made for purposes of medical diagnosis or treatment" and describes symptoms "or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Minn. R. Evid. 803(4). Robinson looked at four factors in rejecting the use of the medical-diagnosis exception in that case:  (1) the lack of a "pattern of coercive behavior" or abuse; (2) the lack of evidence that the declarant was seeking treatment for emotional or psychological harm; (3) the lack of evidence that the nurses were concerned about those types of harm; and (4) the lack of medical expert testimony showing the identity of the assailant was relevant to diagnosis or treatment.  718 N.W.2d at 407.

            Here, as in Robinson, there was a lack of any evidence that appellant engaged in a pattern of coercive behavior or abuse against D.A.C.  There was also a lack of evidence that D.A.C. was seeking treatment for emotional or psychological harm, although given his age and the fact that D.A.C. did not volunteer for the interviews, it is doubtful how relevant this Robinson factor is here.

            As to the third Robinson factor, although there is no evidence explicitly establishing that the nurses were concerned about emotional or psychological harm, they both saw signs of such harm in D.A.C. and felt responsible for his emotional and psychological well-being.  LaNasa, the school nurse, testified that D.A.C. was very reticent, looking down at the floor, and that he "shut down" and wouldn't answer questions after she called for the Spanish-language interpreter.  LaNasa testified that she was a mandated reporter of child abuse, and that she filled out a Child Protection Report.  Clark, the children's center nurse, testified that D.A.C. was brought in for possible placement in emergency foster care.  She testified that he was tearful and reluctant to talk to her. 

            It seems clear that LaNasa, a school employee responsible for a student's general well-being, and Clark, who was assessing D.A.C.'s need for foster-care placement, were concerned about any emotional or psychological harm to D.A.C., as well as his strictly medical needs.  This concern was not present in Robinson, which involved an adult woman visiting a hospital for treatment of physical injuries.  See Robinson, 718 N.W.2d at 402. 

            The last Robinson factor, the lack of medical expert testimony that the assailant's identity is important to medical diagnosis or treatment, weighs against applying the medical-diagnosis exception.  But it may be important to note that the nurses who questioned D.A.C. were trying to determine the nature of the cause of his injury as much as the identity of the person who struck him (if assault was the cause).

            It is more likely here than in Robinson that the nurses conducting the interviews were concerned about emotional or psychological harm.  But Robinson does not hold that such a concern, by itself, makes the identity of an assailant "reasonably pertinent" to medical diagnosis or treatment.  In fact, the court in Robinson, by clarifying past cases that seemed to suggest to the district court a categorical rule of admissibility, at least for child sexual abuse victims, seems to require more.  See id. at 404-05.  The court indicates that, in an individual case, it would look at "the seriousness of the assault, the frequency of the abuse against the victim, the type of domestic relationship, or the presence or absence of emotional or psychological harm."  Id. at 407.  Those factors are inconclusive in this case.  The assault was fairly serious, there was a family relationship, and there was evidence of at least some emotional harm, but there was little or no evidence of frequent abuse.

            Although there is more evidence of a concern about emotional or psychological harm here than in Robinson, there is less evidence that D.A.C.'s statements were elicited for a medical purpose.  Although LaNasa was the school nurse, she conceded that there was no need for emergency treatment of the injury, and that she provided no other medical treatment.  Similarly, Clark saw D.A.C. only after he had been seen in the emergency room.  Her interview appears to have been intended more to assess the need for foster-care placement than to serve any medical function.

            We conclude that although the statements made by D.A.C. come close to falling within the medical-diagnosis exception, we need not decide that issue because the statements were admissible under the residual exception.

            Residual Exception

            In the district court, the prosecutor argued the residual exception to the hearsay rule as a basis for admitting D.A.C.'s statements.  But the state did not argue this alternative theory in its initial brief, and this court's earlier opinion does not discuss it.  Thus, appellant argues that the state has forfeited the issue.  But this court has already decided the hearsay issue based on a theory (prior statement of identification) not argued by either party, citing State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).  Under Hannuksela, this court could apply the residual exception even if the state had never raised it as an alternative theory of admissibility.  Therefore, we conclude the issue is not waived.

            Under the residual exception, the court may admit out-of-court statements that, although not falling within one of the specific hearsay exceptions, have "equivalent circumstantial guarantees of trustworthiness."  Minn. R. Evid. 803(24).  The application of the residual exception was also addressed in Robinson, where the court clarified that "the proper analysis . . . is to use ‘the totality of the circumstances approach, looking to all relevant factors bearing on trustworthiness' to determine whether the extrajudicial statement has ‘circumstantial guarantees of trustworthiness' equivalent to the other Rule 803 hearsay exceptions."  Robinson, 718 N.W.2d at 408 (citations and quotations omitted).

            In Robinson, although the district court ruled the statements inadmissible under the residual exception, the supreme court pointed out that the district court had erroneously concluded that it could not consider other evidence corroborating the hearsay statement.  Id. at 409.  The court held that the victim's statements were admissible under the residual exception because (1) they were volunteered by the victim "without suggesting or leading questions," (2) the victim's identification of the perpetrator remained consistent (until her recantation at trial), (3) the victim had no motive to lie, (4) the victim made consistent statements to two different nurses within a short time, and (5) there was other evidence corroborating the hearsay statements and contradicting the victim's trial testimony.  Id. at 410.

            This court has already noted that D.A.C. had no motive to fabricate his statements.  Alfaro, 2005 WL 1668898, at *3.  It is also true, as in Robinson, that consistent statements were made to two different nurses within a relatively short time span.  Although appellant argues that there were inconsistencies between D.A.C.'s statement to LaNasa and his statement to Clark, these related to tangential details, such as whether other family members were home when appellant hit him.  As to the essential details that appellant hit him in the face with a closed fist, D.A.C.'s statements were consistent.

            Appellant points out that there is no evidence that D.A.C. consistently accused appellant all the way up to trial, and that the county initiated a child-protection proceeding during which D.A.C. could have repeated the accusation.

            The supreme court in Robinson placed significant weight on the existence of other evidence either corroborating the out-of-court statement or contradicting the later "recanted version."  718 N.W.2d at 410. 

            Appellant argues that there was no evidence contradicting the alternative theory that D.A.C. was injured during gym class.  But the gym teacher testified that she observed no injuries that day, and her testimony generally established the improbability of an injury that serious going unnoticed.  Both the principal and D.A.C.'s teacher testified that the school nurse had not been called, the teacher saw no injuries to D.A.C., and it was extremely unlikely that D.A.C. could have been so seriously injured in gym class without anyone, including other children, noticing it.  Thus, there was evidence making it very unlikely that D.A.C. was injured as appellant claimed.

            As appellant points out, there was little evidence corroborating D.A.C.'s statements that his father punched him.  But the evidence contradicted appellant's claim of an accidental injury in gym class, an account that was likely to have been created to cover up an intentional injury.

            Thus, a comparison of this case with Robinson supports admission of the statements under the residual exception.  The statements were made, in general, without suggestive or leading questions, D.A.C. had no apparent motive to lie, and he made the same basic statement to two different nurses within a short period of time (several hours).  And there is evidence contradicting the only asserted alternative theory of accidental injury.

            This court has identified a non-exclusive list of considerations relevant to the assessment of "equivalent trustworthiness" under the residual exception as follows:

The voluntariness of the statement; the possibility for some reward or gain for the declarant; the presence or absence of firsthand knowledge as a basis for the statement; the presence or absence of corroboration, such as repetition of the statement; the degree of detail of the declarant's recollection . . .; the identity of the recipient of the statement; time and place of the statement; and the opportunity or lack thereof for cross-examination of the declarant.

 

State v. Bernardi, 678 N.W.2d 465, 469 (Minn. App. 2004) (citations omitted).

            D.A.C.'s statements were voluntary, without any reward or gain attached, and were based on firsthand knowledge.  There was corroboration in the form of a repetition of the statement the same day, and contradiction of the only alternative theory.  The identity of LaNasa particularly, as the school nurse whom D.A.C. knew and would have trusted, seems a guarantor of trustworthiness.  The school setting of the first statement enhances its trustworthiness, and appellant had an opportunity to cross-examine D.A.C.

In summary, D.A.C.'s statements have many of the guarantees of trustworthiness of statements admissible under the medical-diagnosis exception.  They also have circumstantial guarantees of trustworthiness under the residual exception.  The residual exception should not be used to justify admission of statements that fail to qualify under one of the specific hearsay exceptions.  See State v. Byers, 554 N.W.2d 744, 748 (Minn. App. 1996) (rejecting use of residual exception to expand boundaries of former-testimony exception), aff'd as mod. 570 N.W.2d 487 (Minn. 1997).  But D.A.C.'s statements have additional indicia of reliability, beyond those of the medical-diagnosis exception, that we conclude are sufficient to satisfy the residual exception.

We also note that D.A.C. made the accusation against appellant to a school nurse he knew, who was part of the school staff, and thus a major authority figure in his life.  Moreover, the accusation was not only against his family interests, but directly contradicted the account he had just heard his father give to school authorities. 

We conclude that D.A.C.'s statements, although not necessarily satisfying the requirements of the medical-diagnosis exception, have sufficient guarantees of trustworthiness to fall within the residual exception.  Thus, there was no abuse of discretion in the district court's decision to admit them.

Affirmed. 

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