State v. Young

161 P.3d 967 (2007)

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Nature of the Case

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Facts

D met 11-year-old K.L. on a bus while K.L. was with her adult friend and babysitter of more than three years, Anne Johnson. Johnson lived across the street from K.L. When Young asked Johnson for her telephone number, Johnson gave him K.L.'s number because she was “always over there” at K.L.'s house. When Johnson decided later that day that she no longer wanted to speak with D, he began calling K.L.'s mother, Kayla. Young and Kayla commenced a romantic relationship. On May 2, 2002, D spent the night at Kayla and K.L.'s house. Kayla was at work and D was still at the house when K.L. and her seven-year-old brother returned home from school. Johnson was in her residence across the street with Jason Barnes and other friends, including Perry Lomax. Barnes testified that K.L. came crying to the door of the house and “ran in” asking for Johnson. Johnson testified that K.L. told her that D had instructed K.L. to clean her bedroom and bathroom. K.L. then said that while she was cleaning, Young put his hand down her pants “underneath her panties and grabbed her butt.” K.L. also described how Young attempted to put money “down her back pocket” and tried to “undo her belt.” K.L. was crying throughout their conversation. Johnson described K.L. as appearing “really scared” and “upset.” At one point, Johnson tried to give K.L. a hug but K.L. backed away and would not hug her. Johnson testified that K.L. had never done that before. Barnes testified that K.L. showed him the money D gave her and that he had never seen her so upset. Lomax said K.L. did not stop crying and described her as “borderline hysterical.” Barnes walked across the street and asked D what happened. D replied, “‘I don't [know] what you're talking about. I don't want the police here. I don't want no trouble.’” Barnes and Lomax then returned to K.L.'s house to confront D. Nobody answered the door and someone was seen jumping over the fence and out of the backyard. Barnes testified that the person jumping over the fence was D. K.L. wrote a letter recanting her statements that D had touched her inappropriately. The letter stated that K.L. fabricated the story because she was angry with D for trying to go out with Johnson and her mother. After considering the reliability of the hearsay statements, the trial court admitted them as excited utterances. At trial, K.L. said she made it all up. K.L. testified that D did not touch her inappropriately and that Johnson told her to tell Barnes and the others that Young had put his hands down her pants. D was convicted of attempted child molestation in the first degree. D had two prior rape convictions, one as a juvenile and one as an adult. The trial court sentenced him to life imprisonment without the possibility of release. D appealed. The Court of Appeals affirmed. D appealed for review on the excited utterance issues only.