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HomeMy WebLinkAbout99-0849 CRIMINALCOMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : No. 99-0849 CRIMINAL : CHARGE: (1) INVOLUNTARY DEVIATE JUAN A. ORTIZ Defendant (2) (3) SEXUALINTERCOURSE STATUTORY SEXUAL ASSAULT SEXUALASSAULT IN RE: HEARING PURSUANT TO 42 Pa.C.S.A. §5985.1 et. seq. OPINION HOFFER, P.J. FACTS On April 18, 1999, defendant Juan A. Ortiz was arrested on charges involving involuntary deviate sexual intercourse with his three-year-old daughter. The incident was allegedly revealed by the child on April 17, 1999, to her mother as they were watching television together in their home at 504 Market Street, Lemoyne, Cumberland County (Notes of Testimony of Hearing dated 11/5/99 (hereinafter "N.T.') 5-6). In April 1999, the defendant was also living in the home, although he was staying on the third floor while the mother and children stayed on the first and second floors (N.T. 6). The mother and defendant were not going through divorce or any other legal proceedings regarding custody at that time (N.T. 6). The victim's mother, Bonnie Morgan, testified that on April 17, 1999, while the defendant was at work, she, her sister and her four children were at the residence (N.T. 7). At one point the victim took off her underwear and threw them on the floor (N.T. 9). She then opened her legs and began to touch herself in the vagina. Ms. Morgan had never seen her daughter do such a thing, and told her to put back on her underwear. After she did so, the victim walked over to her mother and said, "Daddy has been licking my puddy" (N.T. 10). "Puddy" is the term the victim and her family use for her vagina (N.T. 10). After the victim made this statement, her mother asked her to repeat what she had said, and she did so three or four more times (N.T. 10). According to Ms. Morgan, the victim's six-year-old brother also told her that he had seen the defendant take the victim up to the third floor, lay her on the bed, and ask if he could lick her "puddy" (N.T. 19). He reported that even after the victim said no, the defendant did it anyway. He said his father was not aware that he witnessed the incident (N.T. 19). Ms. Morgan immediately called the police and Children and Youth Services after the victim told her of this incident (N.T. 11). The victim was then interviewed by the police, where she again said that her father had licked her "puddy" (N.T. 13). After the police interview, the victim was seen by a nurse at Harrisburg Hospital. Ms. Morgan explained that prior to April 17, 1999, she had noticed that the victim's vagina had some redness and the child herself had complained that her privates hurt (N.T. 7-8). Ms. Morgan thought this pain and redness was due to the fact that the victim was not wiping herself properly, and thus she had not taken the child to a doctor before this incident (N.T. 8). Karen Fake, a Sexual Assault Forensic Examiner, or SAFE nurse, performed the examination on the victim at Harrisburg Hospital on April 17, 1999. She stated that the child was "pretty withdrawn and did not talk" (N.T. 40). During the examination, Ms. Fake saw a small red tear, or abrasion, around the bottom of the victim's vagina (N.T. 43). She described the abrasion as "slightly separated and slightly reddened" (N.T. 43). Sandra Gibson was the caseworker for Cumberland County Children and Youth who was assigned to the case (N.T. 28). She met with Ms. Morgan and her children, including the victim, at the police station on the evening of April 17, 1999, after the victim was examined at Harrisburg Hospital. She interviewed the victim at the police station alone (N.T. 26-27). During the interview, Ms. Gibson took the child to the bathroom in an attempt to explain what "private" meant in terms the child could understand. While in the bathroom, the child explained that she goes to the bathroom with her "puddy" and pointed to her private area (N.T. 32). Then, she stated that her father had put his tongue on her "puddy" (N.T. 32). Since the incident, Ms. Morgan has been taking the victim to a therapist once a week (N.T. 17-18). She testified that she has noticed a change in the child's demeanor and personality. The child has some bad days when she wants to hit and scream and throw things (N.T. 15-16). She has also observed the child sitting on top of a doll and moving back and forth on it in her sleep (N.T. 16). The victim's therapist, Bridgette Weible, a Clinical Therapist for Family and Children Services, has noticed similar behavior in the child (N.T. 52-62). She testified that the victim would play with dolls and indicate that the dolls were sad and scared of their dad (N.T. 53). She also testified that the child covered her dolls with several layers of clothing, which she believes served as a self-protective function. She stated, "children often use baby dolls to represent themselves, and I think the layering of the clothing...meant that she wanted to protect herself" (N.T. 60). She also observed the child take two baby dolls and have them kiss a male baby doll down the front of the male doll, which the child called the "man baby doll" (N.T. 61). Ms. Weible did not ask, nor did the victim speak, about whether her father had licked her vagina. Overall, Ms. Weible testified that the victim's behavior was "very similar to the play of children that have been sexually abused," and that the child meets the criteria and exhibits symptoms of post-traumatic stress disorder (N.T. 61). She also stated that "testifying in a criminal trial would be emotionally overwhelming" and that it would be "re-traumatizing to her" (N.T. 61-62). Finally, Ms. Weible stated that this communicate at trial (N.T. 62). emotional distress could inhibit her ability to DECISION Under 42 Pa.C.S.A. §5985.1(a), referred to as the Tender Years Exception, certain statements made out of court by a child victim are admissible.~ This Court ~ 42 Pa.C.S.A. §5985.1(a)states: An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18 Pa.C.S.A. Ch. 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by finds that under this exception, the out-of-court statements made by the three-year- old and noted in testimony through her mother, Bonnie Morgan, are admissible. Several factors should be considered when determining whether the statements made by the victim have the requisite indicia of reliability. "Such factors include, but are not limited to: 1) the spontaneity and consistent repetition of the statement(s); 2) the mental state of the declarant; 3) the use of terminology unexpected of a child of similar age; and, 4) the lack of motive to fabricate." Commonwealth v. Hanawalt, 419 Pa. Super. 411, 422, 615 A.2d 432, 438 (1992). The child's statements fit into many of these factors, showing that her statements are precisely the type of hearsay statement the statute intended to admit into evidence. First, the child made the statement "my daddy licked my puddy" very spontaneously. She was watching television with her mother and siblings when she took off her underwear and began to touch herself. Only after putting her underwear back on, as her mother had requested, and without any further prompting did she statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness. make the statement that her father had licked her vagina. Similarly, after her initial statement, the child proceeded to repeat the statement at her mother's request. Ms. Morgan only asked the child to repeat herself. She asked "three, four more times, what did you say, honey? And...each time she said the same thing, daddy has been licking my...puddy with his tongue" (N.T. 10). The child also repeated this statement to the police and the Children and Youth worker, Ms. Gibson, without any suggestion by those professionals of what to say. The mental state of the victim is also an important factor in determining the reliability of the statements. She was described by many of the witnesses at trial as shy and withdrawn. She also is scared of her father and many other men. These behaviors show the child's mental state and are strong indications of the reliability of her statements. Additionally, the child was using words and phrases that are not common to most three-year-olds, such as describing the act of her father "licking" her vagina. Even though the term "puddy" was used to describe the private area in the Ortiz family, it is unexpected that a three year old would know enough about sexual acts to claim that her father "licked" her vagina. See, State v. Kuone, 243 Kan. 218,221- 222, 757 P.2d 289, 292-293 (Kan. 1988) (holding that the hearsay statement by the child met the requisite indicia of reliability because the child spoke of sexual acts that had been performed on her by her father). Finally, not only was there no evidence to suggest that the child had any motive to fabricate such a story, the other evidence that did come out at trial in fact corroborates her story. Her brother also told the mother that he saw the father lick his sister's vagina, without any prompting from the mother (N.T. 19-20). Similarly, the SAFE nurse found a red abrasion on the child's vagina, supporting the reliability of the child's statement. The Commonwealth is also required to prove under the statute that the child is "unavailable" Pa.C.S.A. §5985.1(a). In order to find that a child is "unavailable," the court must determine, based on the evidence, "that testimony by the child as a witness will result in the child suffering child cannot reasonably communicate." serious emotional distress such that the Pa.C.S.A. §5985.1(a.1). In making this determination, the Court may "(1) observe and question the child victim either inside or outside the courtroom, (2) hear testimony of a parent, custodian or other persons, such as a person who had dealt with the child victim in a medical or therapeutic setting." 42 Pa.C.S.A. §5985.1(a.1). The testimony of the child's mother and therapist both show the "serious emotional distress" that testifying in court would cause the child. Both noted that her demeanor has changed and that, if asked about this issue, she would most likely not be able to communicate. Further, the child's therapist described the detrimental effect testifying would have on her fragile emotional state. Such evidence is precisely what this statute was referring to in reference to the "unavailability" of the child to testify. Thus, because the child was "unavailable," and the time, content and circumstances of her statement provide sufficient indicia of reliability, her hearsay statements are admissible. The Commonwealth's Motion to grant the Tender Years Exception and admit the three-year-old's hearsay statements is granted.