This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-95-1701

State of Minnesota,

Respondent,

vs.

Brian Joseph Phillips,

Appellant.

Filed May 21, 1996

Affirmed

Harten, Judge

Hennepin County District Court

File No. 94111693

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Jean E. Burdorf, Staff Attorney, C-2000 Government Center, 300 S. Sixth St., Minneapolis, MN 55487 (for Respondent)

John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant challenges his criminal sexual conduct conviction, claiming that the admission into evidence and display to the jury of a videotaped interview with the minor victim violated his constitutional right of confrontation. Appellant also challenges the district court's upward durational departure in sentencing. We affirm both the conviction and the sentence.

FACTS

In November 1994, R.W., a three-year-old girl, attended daycare at the home of Wanda Al-Ahad, a licensed daycare provider. Appellant, who was Al-Ahad's boyfriend, lived with Al-Ahad and sometimes interacted with the daycare children. On November 29, 1994, R.W. told Al-Ahad that appellant had put his penis in her mouth. R.W. later repeated the allegation to her mother, to an interviewing specialist from Cornerhouse Child Abuse Evaluation Center, and to a psychologist. Appellant was eventually charged with first degree criminal sexual conduct.

Before trial, the district court ruled that R.W. was not competent to testify, but it admitted into evidence and displayed to the jury a 34-minute videotape of R.W.'s Cornerhouse interview. The jury convicted appellant, and the district court imposed a 150-month sentence, granting the state's request for a departure from the 86-month presumptive sentence.

D E C I S I O N

1. Appellant first argues that the admission of the videotape violated the Confrontation Clause of the Sixth Amendment, which grants an accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. [1] The district court admitted the videotape under Minn. R. Evid. 804(b)(5), the residual hearsay exception.

Because the residual exception is not a "firmly rooted" hearsay exception, the United States Supreme Court has held that the Confrontation Clause requires a showing that a statement is supported by "particularized guarantees of trustworthiness" before it may be admitted into evidence thereunder. Idaho v. Wright, 497 U.S. 805, 818, 110 S. Ct. 3139, 3148 (1990), quoted in State v. Larson, 472 N.W.2d 120, 125 (Minn. 1991), cert. denied, 502 U.S. 1071 (1992).

[T]he relevant circumstances, for purposes of this inquiry are not the totality of the circumstances and all the corroborating evidence in the case but only "those circumstances that surround the making of the statement and that render the declarant particularly worthy of belief."

State v. Scott, 501 N.W.2d 608, 616 (Minn. 1993) (quoting Wright, 497 U.S. at 819, 110 S. Ct. at 3148); see also State v. Lonergan, 505 N.W.2d 349, 355 (Minn. App. 1993) (applying Wright analysis to admission of videotaped interview of alleged child sexual abuse victim), review denied (Minn. Oct. 19, 1993). Whether a statement is supported by sufficient guarantees of trustworthiness is a legal question that we review de novo. State v. Salazar, 504 N.W.2d 774, 776-77 (Minn. 1993). [2]

In Wright, the United States Supreme Court identified a number of factors to be considered in determining the reliability of a child's hearsay statement regarding sexual abuse, including

spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age and a lack of a motive to fabricate.

Scott, 501 N.W.2d at 617 (citing Wright, 497 U.S. at 821-22, 110 S. Ct. at 3150). In addition, the Minnesota Supreme Court has recognized the relevance of

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.

State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990), cert. denied, 498 U.S. 1033 (1991).

For instance, in Lanam the Minnesota Supreme Court applied the above factors in holding that the admission of various statements by a child sexual abuse victim did not violate the Confrontation Clause. Id. at 661-62. In particular, the court noted that the child's initial statement regarding the abuse was spontaneous; that the child was consistent in describing the abuse and identifying the abuser; that the child had no apparent motive to fabricate; and that the statements (including the statement that the defendant had "peed" in her mouth) were not the type of statements one would expect a three-year-old child to fabricate. Id. at 661.

In Scott, however, the supreme court held that audiotaped statements made by a child alleging sexual abuse were not sufficiently reliable to pass muster under the Confrontation Clause. 501 N.W.2d at 619. The supreme court distinguished Lanam, noting that the initial statement had been made in response to a separate sexual abuse allegation against the defendant; that there had not been a consistent repeating of the same story; that the questions were suggestive and sometimes leading; and that it was not known whether the child had a motive to fabricate. Id. at 618-19. The supreme court also stated that the allegations of sexual abuse were less lurid than in Lanam and that the allegations were not made "in language one would not expect a nine-year-old to know." Id. at 618.

In the videotaped interview in the instant case, R.W. stated that appellant had placed his penis in her mouth during her nap time. In response to questioning, R.W. stated that the action felt "yucky" and that the penis was hard. She stated that "pee," which was hot and "itching" her, came out of appellant's penis, into her mouth, and down into her "tummy." Her demonstration of appellant's conduct with an anatomically-correct doll matched her description of the incident.

It is true that the interviewer knew of the alleged abuse beforehand. Also, the credibility and originality of R.W.'s story was somewhat problematic given Al-Ahad's testimony that she had related to the children her own sexual abuse experience, which included the abuser's placing his penis in her mouth.

Nevertheless, we find the instant case more closely aligned to Lanam than to Scott. R.W.'s first reference to the abuse in the interview was spontaneous and not in response to a question about the abuse; when the interviewer asked R.W. when she went to daycare, she said, "[W]hen [appellant's] not by me because he puts his penis in my mouth." R.W.'s statements about the particular act were consistent, and she had no motive to fabricate such a story. The interviewer's questions were generally open-ended; they were not suggestive or leading and did not betray a preconceived idea about how R.W. should answer. The interviewer did tend to repeat R.W.'s answers, but only to make sure of what R.W. had said. Most importantly, as in Lanam, one would not expect a three-year-old child to be familiar with the act that R.W. ably described and demonstrated. Finally, the interview took place only one week after R.W. reported the incident, and the district court found that R.W. then had the capacity to remember the incident accurately.

We hold that the admission into evidence and display to the jury of the videotaped interview did not violate appellant's rights under the Confrontation Clause. Accordingly, we affirm appellant's conviction.

2. Appellant also challenges the district court's upward departure from the presumptive sentence. Under the sentencing guidelines, the district court may depart from the presumptive sentence if the case involves "substantial and compelling circumstances." Minn. Sent. Guidelines II.D. The decision to depart is within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

We conclude that the district court did not abuse its discretion in sentencing appellant. Here, the age and vulnerability of the victim alone justified the departure. See State v. Partlow, 321 N.W.2d 886, 887 n.1 (Minn. 1982) (even though offense required victim to be under age 13, absolute vulnerability of victim, age two years and ten months, justified aggravation of sentence).

The departure was also supported by the following factors cited by the district court: R.W.'s psychological and physical injuries, including stomach aches, an inability to sleep, and a fear that she would contract an illness if she reported appellant's actions; the timing of the assault, which occurred during R.W.'s nap time and caused R.W. to feel insecure; the oral penetration and ejaculation, with the resulting possibility of disease; and the abuse of a position of trust and authority by appellant, who lived at the site of the daycare and interacted regularly with the children. See Minn. Sent. Guidelines II.D.2.b.(2) (particular cruelty as aggravating factor); State v. Carpenter, 459 N.W.2d 121, 128 (Minn. 1990) ("Abuse of positions of trust and authority are aggravating factors justifying a durational departure."); State v. Mortland, 399 N.W.2d 92, 95 (Minn. 1987) (psychological damage as aggravating factor); State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (position as babysitter and psychological damage as aggravating factors, victim's vulnerability increased because she was asleep when the abuse began), review denied (Minn. Feb. 28, 1990).

Affirmed.


Footnotes

[1]The Minnesota Constitution's Confrontation Clause has been applied consistently with its federal counterpart. See State v. Lanam, 459 N.W.2d 656, 661-62 (Minn. 1990) (single analysis in determining whether confrontation rights under either constitution violated), cert. denied, 498 U.S. 1033 (1991).

[2]Some deference, however, may be due a district court's resolution of questions of fact. See Larson, 472 N.W.2d at 126 n.2 (no need to remand to district court where there were no significant disputed factual issues relating to the circumstances surrounding the making of the statements in question). Thus, we note the district court's finding, made after the competency hearing, that R.W. had sufficient capacity at the time of the Cornerhouse interview to recall accurately the incident of abuse, which allegedly occurred approximately one week before the interview.