This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-1941

 

Jerry James Kirk,

Appellant,

vs.

State of Minnesota,

Respondent.

 

Filed August 24, 1999

Affirmed

Amundson, Judge

Ramsey County District Court

File No. K7-98-530

Greg J. Rebeau, 411 North Lexington Parkway, Suite G, St. Paul, MN 55104 (for appellant)

Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

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

 

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges his conviction of two counts of criminal sexual conduct in the first degree for acts he perpetrated against his daughter. Appellant contends that the district court committed reversible error when it admitted out-of-court statements by his daughter about the sexual abuse pursuant to Minn. R. Evid. 803(24).

FACTS

At issue are statements made by appellantís daughter, K.K., to four persons. At the time the statements were made, K.K. was twelve years old. On January 28, 1998, K.K. spoke with Annette Walseth, a school counselor. She told Walseth that her father had been sexually abusing her for the past three to four years and that the last incident occurred on January 23, 1998. Walseth immediately called the police to report the sexual abuse. Officer Sarah Nasset responded and interviewed K.K. that same day. After the interview, K.K. received a forensic interview and medical assessment by pediatric nurse with specialized training in child abuse assessment, Mary Mackenburg, at Midwest Childrenís Resource Center. The case was also reported to the Ramsey County Human Services Department, and assigned to Judy Behr, a child protection intake worker. Behr interviewed K.K. on February 2, 1998.

K.K. was removed from her home and placed in a shelter. However, K.K.ís mother, Debrah Breezee was allowed to drive her to and from school while K.K. was living at the shelter. On February 11, 1998, the day that Kirk was charged, K.K. was allowed to return home. On February 13, 1998, Breezee took K.K. to Kirkís lawyerís office, where K.K. signed a written recantation of the abuse. At trial, K.K. testified that her allegations of sexual abuse perpetrated against her by her father were false.

D E C I S I O N

This court reviews a district courtís evidentiary rulings for abuse of discretion. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). "A defendant who claims that the trial court erred in admitting evidence bears the burden of showing the error and any resulting prejudice." Id. A district courtís finding of fact are reviewed for clear error. State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998). Kirk argues that the courtís reliance on K.K.ís out-of-court statements violated the hearsay rule because the statements did not have sufficient guarantees of trustworthiness.

Minn. R. Evid. 803(24) creates what has been termed a "catchall exception" to the hearsay rule and allows hearsay to be admitted in cases in which the declarant testifies, subject to certain conditions. State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985). The key condition being that there are circumstantial guarantees of trustworthiness which are equivalent to those surrounding statements that fit within the twenty-three specific exceptions created by Rule 803. Id.

In determining whether the district court properly exercised its discretion when it admitted as substantive evidence K.K.ís out-of-court statements to four different persons pursuant Minn. R. Evid. 803(24), we determine whether such statements had sufficient guarantees of trustworthiness as demonstrated by the totality of the circumstances that surrounded the actual making of the statements. See State v. Larson, 472 N.W.2d 120, 125 (Minn. 1991) (focusing not on all circumstances including evidence at trial, but only those circumstances actually surrounding the making of the statement). Circumstances that this court can consider include the childís mental state and the consistency and repetition of the statements. Id. at 125-26. Additionally, we may also consider

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) (citing Idaho v. Wright, 497 U.S. 805, 820-27, 110 S. Ct. 3139, 3149-52 (1990)).

Kirk first contends that the fact that K.K. made similar and consistent statements to four different people is evidence that the statements lack the requisite level of reliability. To support his contention, Kirk cites no law, but claims that the fact that K.K. was interviewed by three persons in one day and gave consistent statements to all three is evidence only that she was prevented from clarifying her story.

The evidence presented to the district court was that K.K. not only provided the same story to all three persons with whom she spoke on January 28, 1998, but that she also relayed the same story with sincerity and consistency to another person on February 2, 1998. This fact defeats Kirkís argument that K.K. was never given an opportunity to clarify or recant when she provided these statements. The district court did not abuse its discretion in finding that K.K.ís consistency demonstrated that the statements were inherently reliable. See Larson, 472 N.W.2d at 125 (consistent statements demonstrate reliability).

Kirk next argues that the statements lack the requisite guarantees of trustworthiness because K.K. had a motive to fabricate her statements. Kirk suggests that her motive was to have him removed from the home because she believed that this would result in fewer restrictions on her freedom. At trial K.K. did testify to this, but the district court also had before it evidence to the contrary. Specifically, there was evidence that K.K.ís mother, not Kirk, was responsible for decisions limiting K.K.ís freedom. Specifically, Kirk testified that it was Breezee who wanted to prevent K.K. from participating on the volleyball team. Walseth testified that K.K. was unhappy about her mother being too strict with her and that she perceived her father as lenient. Therefore, the district court did not abuse its discretion in concluding that K.K.ís out-of-court statements were "intrinsically reliable" and had "particular guarantees of trustworthiness" because it had evidence before it that K.K.ís proffered motivation for fabricating her original story was unreliable.

Kirkís final argument is that K.K.ís recantation itself is evidence that the out-of-court statements are untrustworthy. Kirk goes so far as to assert that the hearsay exception utilized by the district court was not intended to be used when a declarant has recanted. Case law supports a contrary conclusion. In State v. Soukup, the court held that the district court properly admitted prior hearsay statements of a child victim stating that his father had assaulted him where the child recanted at trial. State v. Soukup, 376 N.W.2d 498, 501 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985). Additionally, this courtís analysis is to consider only those circumstances immediately surrounding the actual making of the out-of-court statements and K.K.ís recantation is outside this scope. Lanam, 459 N.W.2d at 661.

The district court found the circumstances surrounding K.K.ís recantations suspect, and that they in no way destroyed the trustworthiness of K.K.ís original allegations of abuse. The district courtís findings are supported by evidence produced both at the pretrial hearing and at trial. First, the district court had before it evidence that K.K.ís explanation for her motive to fabricate the allegations against her father was unreliable. Next, the district court found that K.K.ís mother was instrumental in bringing K.K. to Kirkís attorneyís office where she provided her recantation. The court found that Kirk exercised "a considerable amount of control over" Breezee and that she was compliant with this control.

Finally, K.K.ís explanation for the results of her medical examination also indicates that her recantation is suspect. At the pretrial hearing, Kirk provided the state with an alternate explanation for the physical findings from K.K.ís medical exam. K.K. repeatedly asserted that she had never had a boyfriend and that the evidence gathered during her medical exam indicating she had experienced repeated sexual intercourse was a result of being sexually abused by her father. At the time of the pretrial hearing, K.K.ís story changed and she claimed that she had a boyfriend with whom she had sexual intercourse on three occasions after school in the girlís bathroom. However, both Walseth and Behr testified that for K.K.ís new statement to be true, the jury would have to infer that K.K. had sex three times in one week with another sixth grader whom she had known only two weeks and who did not confirm Kís story, but looked surprised when told of it.

The district court did not abuse its discretion in finding that K.K.ís hearsay statements had substantial guarantees of trustworthiness. K.K. testified at trial and was subject to cross-examination. K.K. admitted to making the out-of-court statements and to their substance. All of K.K.ís prior statements were consistent, and the statements were consistent with the medical testimony. There was no evidence before the court that suggested that any of the witnesses had reason to fabricate their testimony or had preconceived notions about K.K. or her original statements. Further, there is no evidence that any of the witnesses asked suggestive questions. Finally, there was evidence suggesting that K.K.ís recantation was suspect as the product of outside influence. We find the district court did not abuse its discretion by allowing the out-of-court statements, and that Kirkís challenges to the statementsí guarantees of trustworthiness are unfounded.

Kirk also suggests that admission of the out-of-court statements violated his right to confrontation that is guaranteed by the Sixth Amendment of the U.S. Constitution and made applicable to the states by the Fourteenth Amendment. However, where a witness testifies at trial, admits to making the prior statements, and is available for cross examination by defense counsel, no confrontation problem is presented by the admission of that witnessí out-of-court statements as substantive evidence. Soukup, 376 N.W.2d at 501.

Here, K.K. testified at trial, admitted making the prior statements to Walseth, Officer Nasset, Mackenburg, and Behr, and was available for cross-examination. Therefore, Kirkís right of confrontation was not violated. Because there is ample evidence to support the district courtís finding that the out-of-court statements had sufficient guarantees of trustworthiness and K.K. was available at trial for cross-examination, we affirm.

Affirmed.