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The People v. Timothy Brian Mercer


February 8, 2012


(Super. Ct. No. CRF09281)

The opinion of the court was delivered by: Robie , J.

P. v. Mercer



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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. The victim lies a little.

The victim did not know where she learned the word "private" and could not remember telling Mary that she did not know where on her body defendant touched her. She remembered that it was nighttime when defendant touched her, but then she admitted she was guessing. She did not remember what was going on before he touched her or what happened after he touched her. She thought she was eight when defendant first touched her, then she said she was guessing, then she said she did not know.

She remembered meeting with Mary and the prosecutor (Melanie) and telling them that defendant touched her in an inappropriate spot. She learned the word "inappropriate" from R. B.

The time defendant got on top of her, he touched her "private," too. She was sleeping before it happened. She did not remember anything else about any of the times defendant touched her.

The Evidence Code section 402 hearing on Dr. O'Donahue's proposed testimony was held the day after the victim finished testifying. At the outset of the hearing, the court indicated that defense counsel needed to address both Dr. O'Donahue's qualifications and the relevance of his proposed testimony "under the evidence that has been presented to date."

Following the examination of Dr. O'Donahue, the court determined that he qualified "as an expert in the area of forensic interviewing," including "the psychological factors that can cause memory to be influenced by suggestibility." The court then stated that they "still need[ed] to address the relevance of the testimony of Dr. O'Donahue in this particular case where the only thing that [the court has] with regard to evidence is testimony of the mother and the child." The prosecutor asked for an offer of proof. Defense counsel stated that he intended to "question the doctor . . . as to the relevance of the child's statements at trial with regard to the examination that -- consultation he has done, report he has generated." Upon further inquiry by the court, defense counsel stated that he planned to play the videotape of the MDIC interview and have Dr. O'Donahue explain what things out of the interview were "concerning with regard to suggestibility."

The prosecutor objected to the playing of the tape of the interview on the ground that defense counsel "did not file a motion pursuant to [Evidence Code section] 1360 in a timely fashion to admit the tape." The prosecutor described this as "a foundational as well as a hearsay objection."

Defense counsel responded that "[a]n expert can rely on hearsay to form [his or her] opinion if that is what experts in that area generally rely on" and therefore defendant did not "need a hearsay exception for the expert . . . to explain to the jury how he formed these opinions on the video that he watched." On the subject of a motion under Evidence Code section 1360, defense counsel responded that he had not expected to play the videotape until he heard the victim's testimony and consulted with his expert about what she said. When the court noted there had not been "the hearing for 1360," defense counsel responded that Evidence Code section "1360 is [not] necessary when you are talking about the . . . foundation of the expert's opinion."

The prosecutor argued that "an expert cannot be used to put inadmissible hearsay before the jury," and defense counsel responded that he was "not admitting the tape as evidence," although he was planning to show it to the jury. The court said that "[i]f the tape is played to the jury, it's evidence." Defendant responded that "the foundation for the tape of the MDIC interview" could be laid by the interviewer, Mary Barr, and the tape itself was "admissible as a basis for the expert's opinion." The court asked for "case law on that" and stated its understanding that the videotape would be "hearsay because it's an out-of-court statement used to prove the truth of it."

Following a recess, defense counsel conceded he had no case on point, but the videotape was not "being offered for the truth of the matter asserted. It is being offered as a basis for the expert's opinion, and to the extent that there are portions that are prior consistent and inconsistent statements, they are admissible even though they are hearsay."

The trial court reiterated its view that the videotape would be hearsay even if offered as the basis for the expert's opinion. The court then asked defense counsel to identify "what statements by either the child or the mother that you intend to in some way refute by testimony concerning improper forensic interviewing." When defense counsel referred to "prior inconsistent statements [the victim made] during the interviews in response to certain questions," the court responded, "There isn't any interview before the Court." The court went on to say that it did not "see how there is any relevancy at this point to [Dr. O'Donahue's] testimony concerning forensic interviewing unless in your case you intend to call Mary Barr, and then at that point I would be reconsidering but at this point I'm not seeing that there is any relevance to his testimony." The prosecutor continued to argue for exclusion of the videotape and, as a consequence, exclusion of the expert's testimony as well. For his part, defense counsel continued to argue that "[t]here are significant inconsistent statements that the expert can talk about," and "[t]he fact that she" "described the abuse in a completely different manner in her interviews" "goes to suggestibility."

The trial court ruled that "with the evidence that [is] before the Court" "[a]t this point in time," the court was going to exclude Dr. O'Donahue's testimony "on the basis of relevance" because "[t]here has been no testimony elicited regarding the interviews."*fn2

After a recess, the court stated that "the videotapes of the victims may be allowed into evidence" "with a proper Evidence Code [section] 1360 examination," but they had "not had a 1360 hearing." When defense counsel asked for one, the court stated it was not willing to do so "on the last day of trial." Defense counsel reiterated that "in consulting with [his] expert about what the child said on the stand, [he] believed it [wa]s necessary at this point to show the tape," and "it was never [his] intention to submit that tape until [he] talked to [his] expert" about the victim's trial testimony. The prosecutor continued to object, asserting that she "would have presented the case in a different fashion" if defense counsel had "disclosed an intent to utilize the [videotape] further in advance of trial."

Defense counsel argued that the videotape was important because the manner in which, during the interview, the victim described being touched was "not consistent with child abuse" and that was their "defense." Nonetheless, the trial court continued to refuse to admit the videotape. The prosecutor immediately stated her intent to rest.

The first witness the defense called was Mary Barr. Barr testified that R. B. had told her the victim was a heavy sleeper, although R. B. had testified in court that she was not. Barr also testified that R. B. told her the victim was lying on her right side during the incident, while R. B. had testified in court that the victim was laying on her left side. Defense counsel then elicited Barr's testimony that she had interviewed the victim twice, the first time on April 23, and that interview was videotaped. When defense counsel asked if the victim had stated during the interview that defendant had sex with a knee between his legs, the prosecutor objected on the ground of hearsay, and the trial court sustained the objection. Defense counsel argued, "it's [a] prior inconsistent statement," and the prosecutor responded, "There is no such evidence before the jury, your Honor." Outside the presence of the jury, the court took the position that because the victim did not testify that defendant had sex with a knee between his legs, but instead her statement to that effect came in through R. B.'s testimony, anything the victim said (or did not say) to Barr on the subject could not constitute a consistent or inconsistent statement because defense counsel had "to question [Barr] about what [the victim] said on the stand and show how [what she said in the interview] is consistent or inconsistent with what [the victim] said on the stand under penalty of perjury." Thus, the court ordered that "for purposes of this jury trial . . . there [are to] be no questions concerning statements, other than statements that were made by the witness on the stand."

At that point, defense counsel informed the court that he was "going to be asking [Barr] . . . about the particular details that [the victim] gave . . . Barr because [it was his] position that her failure to repeat those statements on the witness stand [wa]s a prior inconsistent statement." Counsel went on to explain that "the child made certain allegations on the stand about sexual conduct" and his "expert t[old] [him] that the fact that she didn't relate the same details that she did in a previous interview is inconsistent. That makes them prior inconsistent statements."

After a break, the court initially told defense counsel that he "would be able to question on the questions that [he] said" based on authority the court had reviewed, but when the prosecutor questioned how the victim's failure to make certain statements to Barr that she had testified to at trial made what she said to Barr "inconsistent with her testimony at trial," the court answered that it did not. The court then proceeded to elicit from defense counsel the statements the victim had made at the interview that he contended were inconsistent with her testimony at trial.

The court precluded defense counsel from examining Barr about the victim's statement during the interview that her back was slimy after defendant got on her because the victim had testified at trial that she did not remember what happened after defendant got on her. The court did say it would allow defense counsel to inquire about the victim's physical behavior during the interview. The court did not, however, allow defense counsel to inquire about "waving of the arms when Ms. Barr asked [the victim] how she was touched on her privates," because the court sustained the prosecutor's hearsay objection "as to what question that Ms. Barr asked the child during the interview." The court allowed defense counsel to ask about the victim's description of her body parts, which was different at the time of the interview. But the court did not allow defense counsel to inquire whether Barr asked the victim questions about whether R. B. was mad at defendant.

When Barr took the stand again, defense counsel elicited testimony that her first interview of the victim was a forensic interview, which is an interview conducted based on "standards that the interviewer has." Barr further testified that the original recording of a forensic interview goes to the investigating agency, and she keeps a copy. Defense counsel then turned to "what happened in the interview." When counsel tried to examine Barr about whether the victim's behavior at the interview was consistent with her behavior on the witness stand, the trial court sustained a relevance objection. The trial court then sustained several objections to questions about how the victim behaved during the interview, until the court allowed Barr to testify that the victim was antsy and had trouble sitting still. The court then sustained a relevance objection to a question about whether Barr had to ask the victim questions multiple times to get an answer from her. The court sustained an objection to the question whether the victim had trouble answering questions on the ground of vagueness, but then overruled an objection to the question of whether it was common that Barr had to ask the victim questions multiple times to get an answer from her.*fn3 Barr testified that on two or three occasions she did have to ask the victim the same question a couple of different times.

Thereafter, Barr testified that the victim did not refer to her vagina as her "privates" during the interview, but instead called it her "cookie." Barr also testified that the victim called her breasts her "attic."

After Barr, defense counsel called Dr. O'Donahue to testify, and the court asked for an offer of proof. Defense counsel made a lengthy offer of proof as to the subject of his intended examination of Dr. O'Donahue, much of which included asking him about details of the interviews that had not been brought out in counsel's examination of Barr. The court noted this and asserted that "there is much of [the] proposed offer of proof that is not relevant or allowable under hearsay for Dr. O'Donahue to testify about." Defense counsel argued again that the basis of Dr. O'Donahue's opinion could be hearsay, and it did not matter that the material "hasn't come out at trial." The trial court disagreed, explaining that because the court had excluded the videotape of the interview, "while he may base [his opinions] upon observations that he has made, there is not to be reference to the points that have been excluded on the basis of hearsay. You can't get it in that way." Defense counsel asked again that the videotape be admitted, and the court repeated that it was "inadmissible hearsay" "pursuant to 1360." The court explained that Dr. O'Donahue would be allowed to testify "in the area of forensic interviewing and psychological factors that can cause memory to be influenced by suggestibility . . . in the areas that were brought out on the witness stand by either [R. B.] . . . , but I am specifically excluding the areas of the MDIC interview except for the few prior consistent statements that the jury is aware of." The court later summarized that defense counsel could "ask [Dr. O'Donahue] anything concerning the testimony that was given on the stand or any prior inconsistent statements that were revealed by Ms. Barr in h[er] testimony."

Just before Dr. O'Donahue testified, the court sustained the prosecutor's objection to Dr. O'Donahue testifying about the information he reviewed in preparing for the case, on the ground that he was "not going to be offering an opinion based on his review of the materials," but was "going to be answering hypothetical questions posed by counsel based on evidence that was received at trial." The court then instructed Dr. O'Donahue as follows about what testimony would be permitted:

"You will be limited in your testimony to answers of hypotheticals pertaining to the testimony of [R. B. and the victim], and prior inconsistent statements that were testified to by Mary Barr. The taped interview is not in evidence, and the statements or conduct at the MDIC interview is not in evidence, and you are ordered not -- during your testimony not to refer to specific statements or comments that are made in the MDIC interview, any reports pertaining to those interviews or make any reference to having observed or listened to the interviews. You may address, when posed by counsel, the significance of the statement made by [the victim] that it is easy to lie, which she also referred to in open court. You may address the significance put in place of the testimony of [R. B.] that when she saw the Defendant in the room, it didn't seem right with regard to suggestibility. You may address the significance that you placed on the testimony of [R. B.], that initially the [victim] indicated that nothing was wrong; and thereafter, in response to a further question, said that, yes, there was something that she wanted to speak about. . . . You may address the significance of her testifying approximately a year and a half later after the alleged event with regard to memory as it is influenced by suggestibility. You may address the significance that you attached to [the victim's] inability to remember whether the Defendant had moved his hand when touching her privates and also indicating that she did not remember what happened after he moved her legs apart. You may further address the significance of the assault occurring at night. And when questioned by the Defense saying that she was guessing, you may address the significance that [the victim] first reported the abuse at Camp Far West, according to [the victim] at one side of the proceedings, and according to the mother in the middle of the night at their home. You may address the significance of Mary [Barr] having to ask a question two to three times during the forensic interview with regard to forensic interviewing. You may also address the variation in terms for sexual organs: 'cookie' at the interview versus 'privates' at the time of trial, 'chest' or 'boobs' at the time of trial versus 'ATTIC' as it pertains to the psychological factors that can cause memory to be influenced by suggestibility. You may also address any other psychological factors that can cause memory to be influenced by suggestibility and without limiting that comment. You may address in general the extent of recall that a child witness of age ten would be expected to have and the psychological factors that can cause memory to be influenced by suggestibility." In response to a question from Dr. O'Donahue, the court instructed him that he could not testify about hearing the witness give different statements about whether defendant moved his hand when he touched her, but he could testify "in general terms what some of the features might be that would cause that to occur."

After qualifying Dr. O'Donahue as an expert "in the area of forensic interviewing and also in the area of psychological factors that can cause memory to be influenced by . . . suggestibility," defense counsel asked him if "techniques employed in a forensic interview [can] have an effect or influence on the answers given by those interviewed." The court sustained the prosecutor's objection on the ground the question was "[b]eyond the scope of the Court's order."

Thereafter, the court sustained an objection and motion to strike with regard to a question that elicited testimony from Dr. O'Donahue that a leading question by an interviewer is "probably" "the most important" factor relating to suggestibility. After a conference out of the presence of the jury, however, Dr. O'Donahue was allowed to testify generally to "psychological factors that can cause memory to be influenced by suggestibility." Defense counsel was also allowed to elicit testimony from Dr. O'Donahue through hypothetical questions about the significance, from a suggestibility standpoint, of three things that were in evidence -- specifically, (1) R. B.'s feeling that "something didn't seem right" when she saw defendant with his hand on the victim; (2) the victim's statement that "it's easy to lie"; and (3) the fact that Barr had to ask the victim some questions two or three times to get an answer.*fn4 Dr. O'Donahue was also allowed to testify that the fact that an incident of sexual abuse occurred a year and one-half earlier would not account for a lack of core detail in a 10-year-old's description of the abuse. Thereafter, Dr. O'Donahue testified that core details a child victim could be expected to remember clearly included: (1) whether the abuser's hand moved when he touched the child's vagina; (2) whether the abuse happened at night; and (3) when the child first reported the abuse.

After defendant waived his right to testify, the defense rested.

Preliminary instructions, opening statements, all of the testimony, the remainder of the instructions, and closing arguments spanned September 1, 2, and 3, 2010. The jury commenced its deliberations at 9:00 a.m. on September 7, 2010. At 11:08 a.m., the court received a request for a readback of the victim's entire testimony. Thereafter, at 2:45 p.m., the court received a note that the jury was "split." The court brought the jury back, gave the jurors further instructions, and then sent them back to deliberate further at 2:56 p.m.

At 10:11 a.m. on September 8, the court received a request for a readback of the testimony of Barr and Dr. O'Donahue. That afternoon, at 2:34 p.m., the jury sent notice that it was "still at a stand still" and "still split." The court told defendant and counsel that if no juror believed further deliberation, clarification, instruction, or readback would result in a verdict, the court was going to declare the jury hopelessly deadlocked. When the jury came back into the courtroom, the foreperson said they were split 8-4. In response to the court's inquiry, two jurors stated their belief that further clarification of "what could make someone's testimony credible" would assist them. Accordingly, the court reread a number of instructions to the jury and sent the jury back for further deliberation at 2:58 p.m.

At 11:37 a.m. on September 9, the court received a request for a readback of the victim's testimony after lunch. The court honored the jury's request. Thereafter, at 3:12 p.m., the jury returned a verdict of guilty.

The trial court denied probation and sentenced defendant to the upper term of eight years in prison. Defendant timely appealed.



Sufficiency Of The Evidence

Defendant contends the evidence was insufficient to prove he sexually molested the victim because "the case rested entirely on the word of [the victim] and her mother." In his view, the victim's testimony was "rife with inconsistencies and failure to recall," not to mention "inherently improbable." As for R. B., he contends her testimony was both inconsistent and biased.

The rules governing defendant's arguments are well established. "It is not the function of appellate courts to weigh evidence." (People v. Headlee (1941) 18 Cal.2d 266, 267.) "[U]ncertainties or discrepancies in witnesses' testimony raise only evidentiary issues that are for the jury to resolve." (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) "It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict." (People v. Ozene (1972) 27 Cal.App.3d 905, 910.)

"Where, however, the evidence relied upon by the prosecution is so improbable as to be incredible, and amounts to no evidence, a question of law is presented which authorizes an appellate court to set aside a conviction. [Citation.] Under such circumstances an appellate court will assume that the verdict was the result of passion and prejudice. [Citation.] To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed. The improbability must be apparent; evidence which is unusual or inconsistent is not necessarily improbable." (People v. Headlee, supra, 18 Cal.2d at p. 267.)

Here, the victim testified that defendant touched her on her "private" at night while she was in bed. Whatever inconsistencies there might have been in the victim's testimony, or between the testimony of the victim and R. B., or between the victim's testimony and her statements to Barr in the MDIC interview, we cannot reject the jury's apparent belief of the victim's testimony that defendant sexually molested her unless the prosecution's evidence -- taken as a whole -- was inherently improbable. That is not the case.

Most of what defendant argues in his brief amounts to no more than mere uncertainties and inconsistencies in the prosecution's evidence. Only in two regards does he raise anything that is suggestive of improbability. First, he contends the victim's "initial report [of the abuse] contained the physically impossible statement that [defendant] had sex (presumably with her) with a knee between his legs." Second, he contends "[t]he circumstances of the alleged molest were . . . inherently improbable" because "[a]ccording to the testimony, [the abuse] took place while [the victim's] adopted sister was in the same room and while [R. B.] was in the master bedroom on the same floor of the house."

As to defendant's first point, R. B. did testify that when she asked the victim what they needed to talk about, the victim told her (among other things) that defendant "had sex with a knee between his legs." As defendant contends, this statement does describe something that appears physically impossible, but only if the victim's statement is taken literally. Rather than taking the statement literally, however, the jury reasonably could have understood that what the victim was trying to describe was something she did not otherwise have experience with or understand: namely, that defendant had an erection. Understood in this manner, the victim's statement did not describe something that was physically impossible, and therefore we have no basis for rejecting the victim's testimony on the basis of this statement.

As to defendant's second point, there is nothing inherently improbable in defendant sexually molesting the victim while another child -- whom R. B. described as "a very sound sleeper" -- was asleep in the same room and R. B. was in another bedroom on the same floor. Contrary to defendant's argument, this case is nothing like People v. Lang (1974) 11 Cal.3d 134, where five members of the Supreme Court concluded that the sexual molestation described by two child victims might have been "physically impossible" and their testimony "demonstrably false." (Id. at p. 139.) In that case, nine-year-old twin sisters both claimed that, in separate incidents under almost identical circumstances at a birthday party for the defendant, he placed them on his lap while sitting in a reclining chair in the living room "in full view of various party-goers," put his hand in their vaginas, and continued his molestation of them from three to five minutes in the presence of between six and 12 other adults. (Id. at pp. 136-137.) As the Supreme Court majority stated, "a strong argument could have been made that the twins' testimony was inherently improbable and insubstantial" because "[e]ach child, using almost identical words, told of unsuccessfully resisting separate but identical assaults by defendant in the presence of from six to twelve other persons, none of whom saw either assault."*fn5 (Id. at p. 139.)

Because the molestation the victim claimed here did not have any of the indicia of improbability present in Lang -- or any other such indicia for that matter -- we cannot overturn the judgment against defendant on the ground of inherent improbability. The evidence here was of sufficient substance to sustain defendant's conviction against a challenge for insufficiency.


Exclusion Of Videotape And Limitation Of Expert Testimony

Defendant contends the trial court erred in excluding the videotape of the MDIC interview and in limiting Dr. O'Donahue's testimony accordingly. We agree.

The trial court excluded the videotape on the ground that it was inadmissible hearsay and because admission of the tape had not been sought before trial in compliance with section 1360 of the Evidence Code. Defendant contends (among other things) that "[t]he taped interview[] w[as] admissible for a proper non-hearsay purpose," namely "to show what manipulations had been directed at [the victim] which resulted in her statements being unreliable." Defendant contends "[t]he tape[] w[as] necessary to provide the basis for [Dr. O'Donahue's] explanation of factors involved in the biasing or suggestibility of a child witness as a result of improper forensic interviewing techniques."

Evidence Code section 1360 provides that "[i]n a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if" certain conditions are met. (Evid. Code, § 1360, subd. (a).) A statement may not be admitted under this statute "unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement." (Id., subd. (b).)

By definition, "'[h]earsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) This is known as the hearsay rule. (Id., subd. (c).)

Because, by its very nature, Evidence Code section 1360 operates as an exception to the hearsay rule, it follows that the statute applies only if the statement at issue qualifies as hearsay evidence -- that is, if it is an out-of-court statement "offered to prove the truth of the matter stated."

Here, it is quite clear that defendant was not seeking to offer the videotape of the MDIC interview into evidence to prove the truth of any matter stated by the victim in that interview, particularly the truth of any statement she made about defendant's alleged sexual molestation of her. On the contrary, defendant was seeking to offer the videotape into evidence for the exact opposite reason -- to prove that what the victim accused him of in the interview (and at trial) was not true. He intended to do this by playing the videotape of the interview for the jury, then having his expert on suggestibility, Dr. O'Donahue, identify potential sources of suggestibility and bias in the interview.

Because defendant did not seek to offer the videotape of the interview for the truth of anything the victim stated in the interview, the tape was not hearsay evidence and therefore was not subject to Evidence Code section 1360. The trial court erred in concluding otherwise.

The People contend that "it does not appear that this specific ground of admissibility was offered to the trial court." The People are wrong. When the court asked defense counsel for "case authority" supporting admission of the videotape, counsel responded, "I don't have a case at this point, Your Honor. But I don't believe it's being offered for the truth of the matter asserted. It is being offered as a basis for the expert's opinion . . . . It is not hearsay, Your Honor. It is not being offered for the truth of the matter asserted." (Italics added.)

Defense counsel was exactly right -- he did not seek to admit the videotape into evidence to prove the truth of any statement recorded on that tape, but rather to prove the victim's accusation of molestation was not true, by having his expert testify about the various suggestibility factors in the interview that potentially influenced the victim to make an untrue accusation. Thus, the tape was "being offered as a basis for the expert's opinion," and defense counsel did all that he needed to do to raise "this specific ground of admissibility . . . to the trial court."

The People contend the entire videotape would not have been admissible in any event and "any attempt to [admit the entire tape] would have still been met with an arguably valid objection." That argument is of no moment. At the very least, those portions of the videotape on which Dr. O'Donahue intended to rely to support his opinion that the victim was subjected to various suggestibility factors were admissible. To what extent the videotape contained portions that might have been excluded because Dr. O'Donahue did not rely on them was never explored because of the trial court's erroneous ruling that the entire videotape was subject to exclusion as hearsay evidence. Because the court excluded the entire tape, the parties and the court never got a chance to explore just how much of the tape would have been admissible to provide a complete basis for Dr. O'Donahue's opinions.

Because the trial court erred in excluding the videotape as hearsay, the court likewise erred in limiting the examination of Dr. O'Donahue to "the testimony that was given on the stand or any prior inconsistent statements that were revealed by Ms. Barr in h[er] testimony." Dr. O'Donahue should have been allowed to express his opinion about all of the potential suggestibility factors that were raised by the MDIC interview, and the jury should have been allowed to see that interview so that the jury could fairly determine if, and to what extent, the victim's molestation accusation might have been influenced by what occurred during the interview.

Defendant contends that "Dr. O'Donahue's testimony about factors of suggestibility that influence memory and proper forensic interviewing techniques based on the contents of the forensic interview[] here was critical to [his] defense." He further contends that the "[t]he trial court's ruling limiting Dr. O'Donahue's testimony violated" his federal constitutional right to present a defense, and thus "it must be determined whether the court's error was harmless beyond a reasonable doubt."

The People contend that if there was any error, it was one of state law only, and the question is "whether it is reasonably probable the jury would have returned a more favorable verdict had the videotape been admitted."

Defendant is correct that "[t]he state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense." (People v. Lucas (1995) 12 Cal.4th 415, 456.) What he fails to persuade us of, however, is that the trial court's erroneous exclusion of the videotape and corresponding erroneous limitation of Dr. O'Donahue's testimony violated that guarantee. "The trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense." (In re Wells (1950) 35 Cal.2d 889, 894.) Accordingly, the question is whether it is reasonably probable defendant would have received a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) "[A] 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)

In support of his argument that such a reasonable probability existed, defendant argues as follow:

While Dr. O'Donahue "explained what suggestibility is and discussed the biasing effects of leading questions, repetitive questions, parental concern and jumping to conclusions before questioning a child, defined social conformity press, and discussed what one would expect in terms of a 10 year old's memory for core details of a traumatic event and the significance of a child stating it is easy to lie," he was "prepared to testify to a far broader range of potential biasing factors playing into the suggestibility analysis" if the videotape had been admitted and he had been allowed to testify based on his viewing of it. Defendant further contends that without access "to the videotaped interview[], [the jury] had no framework by which to evaluate what the expert did testify to concerning child witness suggestibility and were left to wonder what [the victim] [m]ight have said in her interview[]."

Defendant points out that even the prosecutor admitted to the jury that the victim's credibility was the central issue in the case.*fn6 He further contends that the evidence against him was "not overwhelming," there was no corroborating physical evidence, and the credibility of the victim's mother (his wife at the time) "was suspect." Additionally, he points out that the jury twice requested a readback of the victim's testimony, also requested a readback of Barr's and Dr. O'Donahue's testimony, and twice indicated that it was "split" or at "a stand still."*fn7 In his view, all of these factors are indicative of a close case and demonstrate, at the very least, a reasonable chance that the result would have been more favorable to him if the trial court had not improperly limited his evidence.

In response, the People first argue that "the record before this Court doesn't contain the videotape or a transcript of the interview," and while Dr. O'Donahue's report does contain a "second-hand summary" of the interview, the People are "unwilling to accept blindly [Dr. O'Donahue's] summary of that interview." What the People are willing to accept is not germane, however. The question of prejudice is one for this court to decide, and it is up to us to determine whether prejudice has adequately been shown based on the record that is before us. In that regard, we have no reason to doubt that Dr. O'Donahue accurately summarized the interview in his report. We certainly have no reason to believe that he falsified or misreported those aspects of the interview on which he specifically relied in identifying potential factors of suggestibility that were present in the interview.

Furthermore, as we have noted, defense counsel made a lengthy offer of proof as to the subject of his intended examination of Dr. O'Donahue, much of which would have included asking him about details of the interviews that had not been brought out in counsel's examination of Barr. From this offer of proof, too, we may discern how the limitations the trial court imposed on Dr. O'Donahue's testimony based on the court's erroneous view that the videotape of the MDIC interview was hearsay impacted defendant's case. Thus, the absence of the videotape from the record does not preclude us from finding prejudicial error.

The People next argue that "any further testimony from [Dr.] O'Don[a]hue regarding the interview techniques used by Barr apparently would have been largely cumulative to that testimony already received." The People base this argument on the fact that "the trial court ruled that [Dr.] O'Don[a]hue could . . . testify to a wide range of points as related to 'suggestibility,'" and defendant "was free to elicit from [Dr.] O'Don[a]hue all of the factors that contribute to suggestibility had he chosen to do so."

What the People fail to appreciate, however, is that -- other than by reference to very limited aspects of the interview defendant was allowed to bring out by examining Barr -- defendant was prevented from tying the various general factors of suggestibility to which Dr. O'Donahue testified, or could have testified, to the actual interview of the victim here. From defendant's offer of proof we can discern that there were numerous aspects of the MDIC interview that the court's ruling prevented Dr. O'Donahue from testifying about. Specifically, had he not been limited by the trial court, it appears Dr. O'Donahue would have testified about the significance of the following facts: (1) that the victim did not make any allegations specific to the evening of the incident during the interview; (2) that during the interview the victim was never asked if R. B. was mad at defendant; (3) that at the interview the victim did not give a coherent narrative about what happened; (4) that during the interview the victim said she did not know where on her body she was touched, claiming "it's been so long"; (5) that after the victim said she did not know if defendant touched her when she was eight, Barr asked her the same leading question again; (6) that the victim failed to mention in her testimony that defendant left during the molestation but came back again, which she described during the interview; and (7) that when the victim was asked during the interview if defendant touched her "cookie," she waved her arms in the air. Dr. O'Donahue also would have testified whether the statements the victim made during the interview were consistent with the detail normally to be expected of a description of sexual assault by an eight- to 10-year-old.

In short, there appears to have been nothing cumulative about the testimony Dr. O'Donahue was precluded from giving. Had the trial court not erroneously excluded the videotape of the interview and Dr. O'Donahue's testimony about it, the jury would have seen firsthand how the victim was interviewed and how she described (or did not describe) defendant's alleged molestation of her within days of the event R. B. claimed to have witnessed, and the jury would have heard Dr. O'Donahue's opinions about the significance of many things that the victim said or did not say during that interview, and how that related to suggestibility and raised the possibility that the victim's claim of molestation was not as credible as the jury otherwise might have thought it was.

While acknowledging that "the credibility of [the victim] was at the heart of this case," the People assert that "the jury was certainly capable of evaluating th[e] testimony [she gave] on their own and any additional testimony on 'interview techniques' would not have made a difference." But as the foregoing discussion shows, the testimony Dr. O'Donahue was precluded from giving did not encompass mere "interview techniques." Rather, it encompassed his professional assessment of how the interview of the victim within days of the event R. B. claimed to have witnessed could have affected the victim's credibility because of potential factors of suggestibility. With the assistance of Dr. O'Donahue's complete testimony, the jury might have taken a different view of the victim's credibility, and it is quite possible there would have been at least a hung jury.

Without a doubt, this was a close case. There were inconsistencies between the victim's testimony and R. B.'s testimony, as well as internal inconsistencies in the victim's testimony by itself. There was no physical evidence, and R. B. herself did not actually see any molestation. The jury's deliberations took up just about the same amount of time as the rest of the trial (three days), and in the course of its deliberations the jury reheard the testimony of all but one of the witnesses (R. B.), rehearing the victim's testimony twice. Additionally, the jury twice declared that it was split, and on the second split two of the jurors made it clear that what they were stuck on was the issue of credibility.

Based on the totality of the circumstances, we conclude it is reasonably probable defendant would have received a more favorable result if the trial court had not erred in excluding the videotape of the MDIC interview and limiting Dr. O'Donahue's testimony based on that interview. Accordingly, the trial court's errors were prejudicial, and defendant is entitled to reversal of the judgment against him and a new trial. Because we must reverse, we need not address defendant's remaining contentions on appeal.*fn8


The judgment is reversed.

We concur: BLEASE , Acting P. J. HOCH , J.

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