(Super. Ct. No. CRF09281)
The opinion of the court was delivered by: Robie , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Timothy Brian Mercer guilty of committing a lewd or lascivious act on a child under the age of 14 after the trial court refused to allow him to play for the jury a videotaped forensic interview of the victim and precluded a defense expert from testifying about the interview. On appeal, defendant contends (among other things) that the trial court prejudicially erred in excluding the videotape and limiting his expert's testimony.
We agree. Contrary to the trial court's conclusion, the videotape was not hearsay because defendant was not offering the tape to prove the truth of any matter stated in the interview -- most particularly, that he touched the victim inappropriately. On the contrary, he wanted the videotape in evidence to show that the victim's allegation that he molested her was not true by having his expert on suggestibility offer opinions based on a comparison of the recorded interview and the victim's trial testimony.
By excluding the videotape and the defense expert's intended testimony based on the tape, the trial court prejudicially deprived defendant of a fair opportunity to raise a reasonable doubt about the truth of the victim's allegations against him. As demonstrated by the jurors themselves, who requested numerous readbacks of testimony and twice declared they were split, the case was a close one. The second time the jurors declared they were split, two jurors specifically indicated their belief that further clarification of "what could make someone's testimony credible" would assist them. Under these circumstances, there is a reasonable probability that defendant would have received a better result if the trial court had not erroneously limited his ability to challenge the credibility of the victim's allegation of molestation. Accordingly, we will reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and R. B. were married for 16 years. In June 2006, they took the victim, who was born in 2000, into their home as a foster child, and they adopted her in 2008. They also had a second foster child in their home, who was 15 months younger than the victim and whom they were in the process of adopting.
The family lived in a two-story home in Marysville. The children shared a bedroom on the second floor that was down the hall from the master bedroom.
According to R. B., she and the children were home alone on April 18, 2009 (a Saturday), when she awoke around 2:00 a.m. to the sound of the back door opening downstairs. She heard defendant come upstairs and saw the light in the hallway bathroom, which was used as a night light for the children, go off. She thought defendant had gone into the bathroom and closed the door.
A few minutes after hearing defendant come in the house, R. B. heard the victim "yelp" or "gasp" -- a sound she had previously heard the victim make when she was woken up -- and after thinking about it for a moment, R. B. got up and walked over to the children's room. There she saw defendant standing over the victim's bed with his left hand on her. R. B. could not see defendant's hand because of where he was standing in relation to the victim, but she could tell his hand was on the victim by the way his arm was positioned. She could not tell if his arm was moving. The victim was on her side facing defendant, and while her pajamas did not appear to be disarranged, the covers appeared to have been pushed off her midsection, though they still covered her shoulders and her feet. (R. B. admitted that the victim sometimes takes the covers off herself.)
R. B. stood in the doorway for a moment. Feeling that the situation did not seem right, she asked defendant what he was doing; startled, he said he was tucking the victim in. R. B. went and sat on the victim's bed, and defendant left the room. R. B. asked the victim if she felt okay, and the victim said she did. R. B. also asked why the victim was awake in the middle of the night, and the victim shrugged. R. B. was concerned that the victim was not feeling well because she felt a little warm. R. B. was also concerned about why defendant had been in the room with his hand on the victim. She asked the victim if there was something they needed to talk about, and when the victim said there was, they went downstairs so R. B. could take her temperature without waking the younger child and could talk to her away from defendant.
In the meantime, defendant had been going in and out of the children's bedroom, asking R. B. what was wrong and explaining that he was tucking the victim in because she was thrashing around in bed.
After taking the victim's temperature, R. B. took her into the family room, where they sat on the couch. R. B. asked her what they needed to talk about, and after a moment of silence the victim said, "'Daddy does weird things at night.'" R. B. asked the victim what she meant by "weird things," and after another moment of silence, the victim said that defendant "had taken off his pants in front of her and that he had touched her under her clothes and that he had sex with a knee between his legs." R. B. asked the victim where defendant had touched her, and she indicated "her private areas" by saying "down, down."
The victim asked R. B. if she would not tell defendant what the victim had told her, but R. B. said, "'I don't know right now.'" After awhile, R. B. put the victim back to bed and went to bed herself.
While R. B. had been talking with the victim, defendant came downstairs several times, asking what was wrong and why R. B. did not just send the victim to bed as she had done before when the victim was not feeling well. Every time he came back in the room, he was more irritated and aggravated. After R. B. put the victim to bed, defendant asked her what was wrong and what the victim had told her. He also wanted to know what warranted her disrespect and disobedience when he told her to put the victim to bed and why she would not answer his questions.
Although she went back to bed, R. B. did not sleep, and at 5:00 a.m., she called her parents to see if they would take the children while she filed a police report and called the social worker involved in the second child's adoption. After quickly taking the children out of the house and to her parents' house, R. B. made arrangements to meet the social worker, called an attorney about filing for a restraining order against defendant, and called the police. She claimed she had no previous plans to divorce defendant or seek a restraining order against him until this incident occurred.
R. B. filed a police report that day, and then she and the children went to Camp Far West. Two days after the incident, on Monday, she filed for divorce. Defendant's and R. B.'s marriage was dissolved in October 2009, and in January 2010, she married a man she had reconnected with in late June 2009 and had started dating in October 2009.
On April 23, 2009 -- five days after the incident -- the victim was interviewed by Mary Barr, a criminal investigator for the district attorney's office. The interview was videotaped.*fn1 (This interview is sometimes referred to as the MDIC interview.)
In June 2009, defendant was charged with two counts of committing a lewd or lascivious act on a child under the age of 14. Ultimately, however, the information filed in November 2009 included only one charge, which was alleged to have occurred some time after the victim's ninth birthday.
In August 2010, shortly before trial was set to begin, the prosecution filed an in limine motion requesting an Evidence Code section 402 hearing regarding the qualifications and proposed testimony of a defense expert, William O'Donahue, Ph.D. Dr. O'Donahue's report, which was attached to the prosecution's motion, showed that Dr. O'Donahue had investigated for defense counsel whether there were "any factors such as suggestibility that m[ight] be indicative of a false memory or a false allegation" in the case. The report showed that Dr. O'Donahue had reviewed (among other things) the videotape of the MDIC interview of the victim and an audiotape of an interview of the victim by Barr and the prosecutor on October 15, 2009. Dr. O'Donahue's report included a lengthy evaluation of each interview to determine, based on 18 points, "the possibility of influences on the child's report" of molestation. Dr. O'Donahue identified numerous "[p]roblematic interviewing techniques," and concluded "[o]nly 5 of the 18 factors could be ruled out as a source of bias in the first interview."
The court granted the request for an Evidence Code section 402 hearing to determine whether Dr. O'Donahue was qualified to testify as an expert in the area of child suggestibility. In advance of the Evidence Code section 402 hearing, defendant filed a brief on the admissibility of expert testimony on psychological factors affecting a child witness's suggestibility, memory, and ability to perceive and communicate. Defendant stated that he would move to have Dr. O'Donahue qualified as an expert witness on topics such as, "[p]sychological factors that can cause memory to be influenced by suggestibility" and "[p]sychological factors present in interviewing techniques that can cause memory to be influenced by suggestions."
Before the Evidence Code section 402 hearing was conducted, R. B. and the victim testified. R. B. testified to the facts set forth above. For her part, the victim testified that defendant had touched her on her "private" under her clothes more than once. This occurred when she was eight years old. In addition to touching her "private," defendant moved her legs. This occurred when she was nine years old. It was nighttime, and she had been sleeping with her pajamas on. Defendant took her pajama bottoms off and moved her legs apart while she was on her stomach. He then touched her "private" with his finger. She did not remember what he did with his finger, and she did not see whether his clothes were on or off. Later, however, she testified she was "pretty sure [his finger] was moving around."
The victim remembered telling Mary (presumably Mary Barr, the investigator who conducted the MDIC interview) that defendant lay on top of her once. She did not know if his pants were on or off and she did not remember what he did when he lay on her. She thought this was the same time that he took her pajama bottoms off. She remembered showing Mary what defendant did when he was on top off her, and she was pretty sure he moved a little bit. She did not remember how he moved, even when given an opportunity to show with two stuffed bears. She did, however, show Mary how he moved using the bears. She remembered doing an interview with Mary on videotape, and she told Mary the truth in that interview about what happened. Now, however, she did not remember some things because it happened a long time ago.
After defendant touched her "private" and lay on top of her, the victim did not tell her mother (R. B.) right away because she was scared. It was daytime when she told R. B. Later, however, the victim testified that the first time she told her mother about the touching was when they went downstairs to the family room and talked about it, which was at nighttime. She did not remember what she told R. B. that night.
On cross-examination, the victim testified that the first time she told R. B. about the touching was in the daytime when they were camping at Camp Far West, which was after she talked to R. B. in the middle of the night. There were other times she told R. B., before they talked in the middle of the night, but she could not remember when.
The victim remembered telling Mary that it is better to tell the truth, but it is so easy to lie. ...