Submitted June 26, 2013.
[Copyrighted Material Omitted]
James Klein, Alice Wang, Fleming Terrell, and Jonathan W. Anderson, Public Defender Service, were on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Eric Zwicker and Kristina L. Ament, Assistant United States Attorneys, were on the brief for appellee.
Before GLICKMAN and OBERLY, Associate Judges, and NEWMAN, Senior Judge.
OBERLY, Associate Judge:
Appellant Lindo Omar Castillo was convicted of misdemeanor sexual abuse of a minor when he touched the breast of his fourteen-year-old stepdaughter, E.M. On appeal, appellant contends that the trial court committed reversible error by admitting the statements of E.M. and her brother under the spontaneous utterance exception to the hearsay rule. We agree and reverse.
At two o'clock in the morning on December 25, 2010, Francisco Martinez called 911 to report that he had witnessed " something inappropriate" between appellant and Martinez's fourteen-year-old sister, E.M. Sometime after the call, police responded to E.M.'s home at 1021 Lamont Street, Northwest, Washington, D.C., where she resided with her mother and appellant. Crying and appearing " hysterical" and " upset," E.M. told Officers Diane Durham and Jose Gonzalez that her stepfather had grabbed her breast. Martinez also reported to Officer Gonzalez that he had observed appellant touch his sister's breast. At trial, however, both siblings testified that they recollected little from the December 25th incident, claiming to have been intoxicated.
The evidence against appellant consisted exclusively of three accusations admitted into evidence under the spontaneous utterance exception to the hearsay rule: (1) E.M.'s report to Officer Durham; (2) E.M.'s report to Officer Gonzalez; and (3) Martinez's report to Officer Gonzalez.
A. Officer Durham's Testimony
Officer Durham testified that she had been working a shift that started at 9 p.m. on December 24, 2010, and ended at 6 a.m. the following morning. Although she could not remember what time she arrived at E.M.'s residence, she testified that she responded within two minutes of receiving " a run from the dispatcher." According to Officer Durham, Martinez was " calm [and] normal" when she arrived at the house. E.M., however, " was very upset. She was crying. She was hysterical."
At this point, the government sought to introduce E.M.'s hearsay statements by probing, " what did [E.M.] tell you?" In response to appellant's objection, the government argued that " this is clearly an excited utterance.... [because Officer Durham] stated [that E.M.] was hysterical. [Officer Durham] arrived within minutes of the [dispatch]." The trial court sustained appellant's objection because " [t]here has to be some temporal relationship between the state of excitement" and the alleged incident.
Officer Durham could not testify to an " exact time that [the incident] happened because [E.M.] didn't give me the exact time." To narrow down a time frame, the government asked Officer Durham whether she " learn[ed] from the complainant what day the alleged incident took place." Officer Durham responded that it had happened on the night she " received ... the assignment, the 25th." The government again sought to introduce E.M.'s statements, but appellant objected and argued that the temporal connection remained unsatisfied: " [A]ll we know now is ... [that] according to the witness [,] there was an incident. And at the time the police officer arrived, sometime thereafter, the witness was upset and hysterical." Appellant added, " there is no evidence that ... her hysteria is a result of this incident." Shifting its focus from whether there was a temporal connection between the event and E.M.'s statement to whether there was a causal connection, the trial court then instructed the government, " [t]hat [is] the link you need to make."
To establish the causal link, the government elicited from Officer Durham that " [E.M.] was upset because she had a[n] incident that happened with her stepfather[,] the same incident that [Officer Durham] respond[ed] to the call for." Appellant objected that Officer Durham was speculating, and the trial court decided to " provisionally hear more detail" and allow the government to lay a foundation. As permitted by this ruling, the prosecutor then asked Officer Durham what E.M. said while she was " hysterical," and Officer Durham replied, " [E.M.] stated to me that she was in the kitchen and her stepfather grabbed her breasts. Her brother saw it. And the stepfather ran out the rear door of the kitchen. And she continued to cry, and speak a little Spanish, and I just ...