State v. Duffy

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 91-283


 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Sean Duffy                                   Unit No. 1, Bennington Circuit

                                              December Term, 1991


 Paul F. Hudson, J.

 Gary Kessler, Supervising Appellate Prosecutor, Montpelier, for plaintiff-
   appellee

 Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      ALLEN, C.J.   Defendant appeals from his conviction of sexual assault
 on a minor, 13 V.S.A. { 3252(a)(3), arguing that the court erred by admit-
 ting hearsay statements of the putative victim.  We affirm.
      On July 31, 1989, the three-and-one-half-year-old victim informed a
 day-care provider that his stepfather had sexually assaulted him.  After
 asking some further questions to confirm the boy's remarks, the teacher
 called the Department of Social and Rehabilitation Services (SRS), who sent
 an investigator to interview the boy.  A police detective, trained as a
 juvenile investigator, joined the SRS investigator and took notes at the
 interview.  The boy repeated his account of recent sexual contact between
 his stepfather and him, this time in greater detail.  That same afternoon,
 defendant was arrested and processed for sexual assault, the crime for which
 he was convicted approximately ten months later.
      Defendant first contends that the evidence does not support the court's
 determination that the statements were trustworthy.  See V.R.E. 804a(a)(4)
 (court must find that "the time, content and circumstances of the statements
 provide substantial indicia of trustworthiness").  Defendant failed to raise
 this argument in his motion in limine or at trial.  Further, he does not
 argue on appeal, nor do we conclude upon review of the record, that the
 court's determination as to the trustworthiness of the statements con-
 stituted plain error, if any error at all.  Therefore, we need not address
 this issue.  See State v. Gallagher, 150 Vt. 341, 347-48, 554 A.2d 221, 225
 (1988).
      Defendant also contends that statements made by the putative victim to
 the SRS investigator were not admissible because they were "taken in prepa-
 ration for a legal proceeding."  See V.R.E. 804a(a)(2).  He argues that the
 court misconstrued Rule 804a(a)(2) because the basis of its ruling was that
 no legal proceeding had been initiated at the time the statements were
 taken.  Rule 804a(a)(2), he points out, precludes the admission of state-
 ments taken "in preparation of a legal proceeding" in addition to statements
 made subsequent to the defendant's appearance before a judicial officer.  He
 further argues that legal proceedings are in preparation as soon as the SRS
 investigator performs the initial interview because substantiated written
 reports produced from the interview must be maintained by the Department and
 can be expunged only through statutorily provided legal proceedings.  None
 of these arguments indicate that Rule 804a(a)(2) was intended to exclude any
 and all statements made to SRS caseworkers during the investigative inter-
 view of putative victims.
      We agree that Rule 804a(a)(2) excludes statements made in preparation
 for legal proceedings even if such proceedings have not yet begun, and that
 SRS interviews often result in either criminal charges being brought against
 the accused or expungement proceedings being brought by the accused.  These
 conclusions, however, do not support defendant's argument.  The trial court
 did not rely solely on the fact that investigative interviews precede the
 initiation of legal proceedings, but also on the investigative nature of the
 interview and the fact that the investigators do not decide whether to
 initiate criminal proceedings against the accused abuser.  The fact that
 statements are recorded and may be used in legal proceedings does not
 necessarily indicate that they are taken "in preparation of" such pro-
 ceedings.  SRS investigators are more concerned with protection of the
 child than prosecution of the accused.  See State v. Curtis, ___ Vt. ___,
 ___, 597 A.2d 770, 772 (1991) (communications made to SRS caseworkers "are
 made for the purpose of investigation, so as to enable the state to take
 appropriate protective measures").  The focus of the investigation is not
 "making a case" against the accused, but ascertaining the reliability of the
 accusations so that the child can, if necessary, be protected.
      The exclusion of any and all statements made during an SRS
 investigative interview would thwart the very purpose of Rule 804a, which is
 to allow the "often highly trustworthy" early communications of child
 victims "to reach the [factfinder] when there is minimal risk of fabrica-
 tion."  See Reporter's Notes, V.R.E. 804a.  The admissibility of trustworthy
 early communications is particularly crucial because of "the high proba-
 bility of a child victim recanting a statement about being abused sexually."
 State v. Gallagher, 150 Vt. at 347, 554 A.2d  at 225.  Due to the short time
 frame of the statutory reporting requirements, see 33 V.S.A. {{ 4913(a) and
 4915(a), SRS investigators are often among the first persons to talk
 directly to children who may have been abused.  In view of its purpose, it
 is unlikely that Rule 804a was meant to exclude this significant source of
 potentially trustworthy information without any determination as to its
 reliability.  Indeed, a review of the House and Senate Judiciary Committee
 hearings on the bill creating Rule 804a reveals that the committee members
 assumed that the statements made to SRS caseworkers would be admissible if
 the court found those statements to be trustworthy.  See Hearing on S.49
 before the Senate Judiciary Committee (March 7, 1985) at 4, 5; Hearing on
 S.49 before the House Judiciary Committee (April 10, 1985) at 21.
      We conclude that statements made by putative victims during SRS's
 initial investigation into allegations of sexual abuse are not necessarily
 "taken in preparation for a legal proceeding," and that the court did not
 err in its determination with regard to the out-of-court statements in the
 instant matter.
      Affirmed.

                               FOR THE COURT:


                               ______________________________________________
                               Chief Justice