Kandiyohi County District Court File No. K6-03-942.
Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Crippen, Judge.*fn1
The victim's videotaped statement to a child-protection worker and police detective was testimonial in nature and inadmissible under Crawford v. Washington, 124 S. Ct. 1354 (2004), because the victim was unavailable to testify at trial, and the defendant did not have a prior opportunity to cross-examine him.
The opinion of the court was delivered by: Toussaint, Chief Judge
Affirmed in part, reversed in part and remanded
Appellant Orlando Bobadilla challenges his convictions of first and second-degree criminal sexual conduct, arguing that the trial court abused its discretion in its evidentiary rulings and that the evidence is insufficient to support his convictions. We conclude that the trial court properly admitted the victim's statement to his mother and Bobadilla's statement against interest, and properly excluded Bobadilla's statement denying the allegations against him. However, because the victim's videotaped statement to the child-protection worker and police detective was testimonial in nature, and Bobadilla was not given the opportunity to cross-examine the witness, we reverse in part and remand for a new trial.
On Friday, May 2, 2003, Melissa Camarillo took her three-year-old son, T.B., to visit his father for the weekend. T.B.'s father lived with several relatives, including his brother, appellant Orlando Bobadilla. Camarillo testified that after picking T.B. up on Sunday at 11:00 p.m., she changed his pull-up and noticed that the area around his anus was red and irritated. When she mentioned this to T.B., he appeared nervous and began playing with his hair. T.B.'s mother reassured him that he could tell her anything and asked him again what happened. T.B. told his mother that "Uncle Orlando had put his finger in his booty."
T.B.'s parents took him to the hospital that night, where he was examined by Sandra Savage, M.D., who testified that she observed an abnormal erythema or redness around T.B.'s rectum that did not appear to be a diaper rash. She did not see any ulcerations or lesions that would lead her to believe that T.B. had a chronic problem in that area of his body. Dr. Savage opined that the injury was consistent with T.B.'s disclosure that Bobadilla had penetrated T.B.'s anus with his finger, but also stated that it could be consistent with other causes.
Several days later, Cherlynn Molden, a child-protection worker, and Matthew Akerson, a police detective, conducted a videotaped interview of T.B. at the Kandiyohi County Law Enforcement Center. Molden testified that she first drew pictures of T.B. and his parents. She also showed him a picture and asked him to name certain body parts. Later in the interview, Molden asked T.B. whether anyone had hurt his body, and he replied, "Orlando did." Molden then asked T.B. how appellant had hurt him, and T.B. replied, "[H]e does stuff to my booty . . . he put his finger in my booty." When asked to identify his "booty" on the diagram, T.B. pointed to his buttocks.
Molden also asked T.B. specific questions regarding the circumstances surrounding the alleged sexual assault. First, Molden asked T.B. where and how many times the incident occurred. T.B. replied that it occurred "one time" while he was lying down in his "dada's" room. Next, Molden asked T.B. if Bobadilla said anything when the incident occurred, and T.B. replied that Bobadilla said he was "sorry." Finally, Molden asked T.B. where his father was at the time of the incident, and T.B. replied that his father went downstairs to get the "kitty."
Based on T.B.'s statement to his mother and the videotaped interview, the state charged Bobadilla with first and second-degree criminal sexual conduct. On September 2, 2003, the trial court conducted a competency hearing and concluded that T.B. was not competent to testify at trial. Nonetheless, during a pretrial hearing, the court admitted T.B.'s statement to his mother and his videotaped interview. The court found that the time, content, and circumstances of the statements and the reliability of the recipients of those statements provided sufficient indicia of reliability. But the court excluded, as hearsay, Bobadilla's statement to Detective Akerson denying the charges against him.
At Bobadilla's trial, T.B.'s mother and father, Dr. Savage, Molden, and Detective Akerson testified for the state. The videotaped interview was played for the jury, and Molden testified about the contents of the interview. T.B.'s father testified that he left T.B. alone only when he went to retrieve the cat, and that he was downstairs for a matter of seconds. He ...