NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD D. DEZARN, )
) Court of Appeals No. A-3500
Appellant, ) Trial Court No. 3AN-89-4629
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1226 - May 29, 1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Mark C. Rowland,
Judge.
Appearances: R. Scott Taylor, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Donald D. Dezarn was convicted of first-degree sexual
abuse of a minor, AS 11.41.434(a)(1), following a bench trial in
the Anchorage superior court. He appeals his conviction, arguing
that the superior court should not have admitted an out-of-court
statement of the victim and that, without this challenged
evidence, the State could not satisfy the corpus delicti rule.
We affirm.
Dezarn was convicted of sexually abusing a two-year-old
girl, S.F.. Dezarn had been living with S.F.'s mother, but they
had had a falling out, and Dezarn was in the process of moving
out of the residence. Nevertheless, on June 13, 1989, Dezarn was
left to care for S.F. while her mother was at work.
That evening, Dezarn was in and out of the house,
moving his belongings to his brother's residence. About fifteen
minutes after Dezarn had left for the last time, S.F. and her
mother went by car to visit a friend. While they were driving,
S.F. was unusually quiet. S.F.'s mother asked her if anything
was wrong. S.F. replied, "Mommy, Don licked my vagina." Dezarn
subsequently confessed, both to a police investigator and to his
mother, that he had sexually abused S.F..
Dezarn's trial began in early December. S.F. was
unable to recollect or meaningfully relate the events of June 13;
Superior Court Judge Mark C. Rowland ruled that she was
incompetent to testify. However, Judge Rowland ruled that S.F.'s
statement to her mother in the car was admissible, through her
mother's testimony, both as an excited utterance under Alaska
Evidence Rule 803(2) and under the residual hearsay exception
contained in Evidence Rule 804(b)(5).
THE COURT: I'm going to find that the
statements are admissible, that there's suffi
cient foundation under both 803 and 804. And
first of all, it should be understood that
the finding of incompetency with regard to
[S.F.'s] testimony at trial ... does not
logically apply to [her] report to [her]
mother [which is] under consideration in this
hearing.
First of all, with regard to the excited
utterance exception: The event which was
reported was certainly an exciting event,
even for a child this age, it was so unusual
as to be exciting, I believe. I believe she
was still under the influence of the event at
the time she made the report, based upon the
change of mood which took place just prior to
the report. That 4 hours had passed, of
course, [is] of significance, but I don't
think dispositive. I don't think a mechanis
tic analysis - so many minutes, so many hours
- is appropriate. It's only one factor to be
considered, and it should be considered ...
in conjunction with her age, the nature of
the stimulus, ... and the circumstances exist
ing at the time the report was made.
I've considered that it was the child's
first opportunity to report to a reliable
adult privately, in my judgment, and that was
her mother. [Dezarn] was in and out, appar
ently present right up until the time of the
report. ... So, really, at the time [S.F.]
got into the car, it was the first time that
she had an opportunity to report privately to
a reliable and safe adult, from her point of
view. And that report was made within 4 or 5
minutes after that situation presented
itself.
I find nothing in the testimony that
would be a discernible motive for the child
to report falsely. She apparently - her
mother says that she may have been angry at
him before, but she described her
relationship, she said she loved Don, I be
lieve at one hearing here. There's nothing
to indicate that she was hostile to the
defendant at any time. ... It seems unlikely
that a child of this age, frankly, would
construct such a report for her own purposes.
It's so outside of her normal experience as
to make that unlikely. I've considered that
it was not a response to any suggestive
inquiry by another person. It certainly was
[in response] to an inquiry as to why she was
quiet, but that's not a suggestive inquiry.
And it appears to me that the report was
totally spontaneous. I can find no reason in
the evidence that would suggest a purpose for
reflection and deliberation, and, as I
suggested before, perhaps it's not even
possible for the child to have reflected and
deliberated as to how such a report could be
used for her own purposes ... .
Following this ruling, the parties agreed to a bench
trial before Judge Rowland and stipulated to the evidence
outlined above. Judge Rowland found Dezarn guilty.
On appeal, Dezarn argues that S.F.'s out-of-court
statement should not have been admitted. He then argues that,
without S.F.'s statement, the State had no evidence to
corroborate his confessions and thus the State failed to satisfy
the corpus delicti rule. Armstrong v. State, 502 P.2d 440, 447
(Alaska 1972); Drumbarger v. State, 716 P.2d 6, 12 (Alaska App.
1986).
A trial judge's ruling that a particular out-of-court
statement qualifies as an excited utterance depends on the
specific facts of the case and is, in effect, a finding of fact
regarding the declarant's state of mind at the time of the
utterance. For this reason, the trial court's ruling will not be
reversed on appeal unless it is shown to be clearly erroneous.
Lipscomb v. State, 700 P.2d 1298, 1306 (Alaska App. 1985).
To be admissible as an excited utterance, an out-of-
court statement must have been made while the declarant was under
"a condition of excitement which temporarily still[ed] the
capacity [for] reflection and produce[d] utterances free of
conscious fabrication." Commentary to Evidence Rules 803(1)-(2),
third paragraph. The declarant's spontaneity, a product of the
emotions being experienced by the declarant, is the key factor in
determining the admissibility of the statement. Id. The trial
court must decide how long the declarant was at a level of
emotional excitement to produce a spontaneous out-of-court
statement.
Dezarn argues that S.F.'s statement should not have
been admitted because S.F. was not "excited" but instead was
subdued when she made the statement to her mother. Dezarn's
argument confounds effusiveness with the condition of excitement
or emotional stress required by the rule. Extreme emotion can
still a person's speech as well as evoke it. S.F.'s mother
testified that S.F. was unusually quiet, and Judge Rowland
concluded that S.F.'s withdrawn behavior was a symptom of her
emotional stress. This finding was not clearly erroneous.
Dezarn also argues that too much time elapsed between
the act of sexual abuse and S.F.'s statement to her mother for
the statement to have been spontaneous rather than the product of
reflection. The evidence at trial shows that as many as ten
hours may have elapsed between the act of cunnilingus and S.F.'s
statement to her mother in the car. Moreover, S.F. had been
playing with a friend, apparently peacefully, for three hours
before she told her mother about the abuse.
Dezarn relies upon Sluka v. State, 717 P.2d 394, 397-98
(Alaska App. 1986), in which this court held that a child's out-
of-court statements of physical abuse were not admissible as
excited utterances because (1) four hours had elapsed since the
assault the child described; (2) the child's statements were made
in response to concerted questioning by adults, including a
social worker and a pediatrician, who suspected child abuse
because of the extensive bruising on the child's body; and (3)
witnesses to the child's statements testified that the child was
happy and "aloof" when she made her statements.
Compared to the facts in Sluka, Dezarn's case involves
a similar, if not a substantially longer, interval between the
act of abuse and the child's statement reporting the abuse.
However, the amount of elapsed time is not the sole factor to be
considered. As the Commentary to Evidence Rule 803(2) notes,
"Obviously there are no pat answers [to the question of how long
the declarant's emotional excitement might persist], and the
character of the transaction or event will largely determine the
significance of the [elapsed] time." Id., fifth paragraph.
For example, in Morgan v. Foretich, 846 F.2d 941 (4th
Cir. 1988), the court upheld the admission of a four-year-old's
statements of physical abuse under Federal Evidence Rule 803(2)
even though the child's statements were made up to three hours
after the child had been returned home to her mother. Other
courts have upheld the admission of young children's statements,
despite long intervals between the statement and the event
described, when the statements were made at the child's first
substantial opportunity to inform a trusted adult. See People v.
Nevitt, 553 N.E.2d 368, 376 (Ill. 1990), upholding admission of a
three-year-old's statement uttered five hours after the assault;
and State v. Boston, 545 N.E.2d 1220, 1231 (Ohio 1989), upholding
admission of a three-year-old victim's statement made the day
after the incident. See also State v. Padilla, 329 N.W. 263, 267
(Wis. App. 1982), upholding admission of statements by a ten-year-
old child made three days after the incident.
In Dezarn's case, Judge Rowland found that an act of
cunnilingus was the type of event that would put a two-year-old
in a state of emotional excitement or stress. Judge Rowland also
found that S.F. went through a pronounced change of mood just
before she made her statement to her mother (that is, soon after
Dezarn left the house for the evening) - indicating that she was
experiencing emotional stress from the event. While Judge
Rowland recognized that S.F. had made the statement in response
to her mother's question, he found that the mother's question had
been a neutral, non-suggestive "What's wrong?".
Moreover, Judge Rowland concluded that S.F.'s several-
hour delay in bringing the event to her mother's attention was
explainable; Judge Rowland noted that S.F. reported the abuse to
her mother at the "first opportunity to report to a reliable
adult privately". Finally, Judge Rowland found no evidence of
pre-existing hostility between S.F. and Dezarn, and he concluded
that a two-year-old child would scarcely be capable of
calculatedly accusing an adult of sexual abuse.
Based on the record, these findings are not clearly
erroneous. We therefore conclude that Dezarn has not shown that
Judge Rowland committed error when he ruled that S.F.'s statement
to her mother was admissible as an excited utterance. Dezarn
concedes that excited utterances are a "firmly rooted hearsay
exception" and that therefore the admission of an out-of-court
statement under this exception does not violate the confrontation
clause. White v. Illinois, ___ U.S. ___, 112 S.Ct. 736, 742-43
and 742 n.8; 116 L.Ed.2d 848 (1992); Bourjaily v. United States,
483 U.S. 171, 181-84; 107 S.Ct. 2775, 2782-83; 97 L.Ed.2d 144
(1987); Lipscomb v. State, 700 P.2d 1298, 1308 n.10 (Alaska App.
1985).
Because we conclude that S.F.'s statement to her mother
was admissible under Evidence Rule 803(2), we need not reach
Judge Rowland's alternative ruling that S.F.'s statement was also
admissible under Evidence Rule 804(b)(5).
The judgement of the superior court is AFFIRMED.
