As Corrected by the Court on March 17, 2015.
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. J-2013-593-D. HONORABLE THOMAS E. SMITH, JUDGE.
REVERSED AND REMANDED.
Holthoff & Richards, LLP, by: Amos J. Richards, for appellant.
Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.
DAVID M. GLOVER, Judge. ABRAMSON and HARRISON, JJ., agree.
DAVID M. GLOVER, Judge.
N.W., a juvenile, was charged with rape in a delinquency petition. After a hearing on the matter, the trial court found the allegation to be true, adjudicated N.W. delinquent, placed him on supervised probation, and ordered him to pay $685 in costs, fees, and restitution. N.W. now appeals, arguing that the trial court erred in admitting an interview of the child victim performed by the Children's Advocacy Center and that the trial court erred in not granting his motion for dismissal. We reverse and remand.
The facts of the case are as follows. A report was made to the Child Abuse Hotline on August 15, 2013, alleging that N.W. had sexually abused N.A.J., his four-year-old cousin, at some time between April and August 13, 2013. N.W. was fourteen at the time. Detective Jeff Reams of the Rogers Police Department was assigned the case on the same day the report was made; he learned that an interview with the Children's Advocacy Center (CAC) had been scheduled for N.A.J. on that afternoon; and he observed the interview of N.A.J. by Erin Kraner, a forensic interviewer for CAC, from an observation room outside the interview room (but he did not interview N.A.J. in addition to the interview performed by Kraner). Kraner's interview with N.A.J. was recorded. Reams recalled that he spoke with Kraner both before and after the interview of N.A.J., and he collected a taped copy of the interview Kraner had with N.A.J. He explained that the forensic interviewer, who is specifically trained to interview children, conducts one interview; the police can use that statement without having to interview the child again and again. Reams could not remember if he had communicated questions to Kraner to ask N.A.J., but stated it was common for him to have questions he wanted a victim to be asked.
The State attempted to call N.A.J. as a witness, but she refused to cooperate during the attempts to examine her. The trial court found that, although N.A.J. was competent, she was unavailable as a witness. The State then moved to have the tape of N.A.J.'s interview introduced through Kraner's testimony. N.W.'s counsel objected to the tape being played, arguing
that it would be testimonial and would violate N.W.'s right to confront his accuser under the United States Supreme Court case of Crawford v. Washington, and that the rules of evidence did not trump the right to confront witnesses. The State responded that the information contained in the interview was not testimonial. The trial court noted counsel's objection and allowed the State to call Kraner as a witness.
Kraner explained that CAC was a child-friendly facility that provides a comprehensive service for purposes of investigation so that a child only had to be interviewed once when multiple agencies were involved. Kraner described herself as a neutral fact-finding individual who was there to ask questions and elicit reliable information. She said that the only persons who were allowed in the observation room during an interview were the investigative personnel involved in that specific case, whether it was the Arkansas State Police, DHS, other law enforcement, or prosecutors. Kraner stated it was common protocol that, at the end of the interview, there is a break and discussion with the investigative entities to ensure that the interview covered everything that the investigative entity wanted to be covered. She testified that the police were involved in this interview.
At this point in the proceedings, the trial court viewed the videotape of the interview with N.A.J. In the interview, N.A.J. stated that N.W. had touched her all over her body; that he had touched her with his fingers while she was not wearing clothes; that N.W. had touched her chest under her clothes on her skin and that his hand stayed still; that he touched her butt with his hands and put his hand in her butt; and that he touched her " cuckoo." According to Kraner, after N.A.J. relayed this information, she stepped out of the room to see if there were any more questions she needed to ask, and when she returned, she asked N.A.J. about N.W. touching her " cuckoo," and N.A.J. said that he touched it one time with his hand.
After the playing of the taped interview, N.W.'s counsel again objected, arguing that the tape was testimonial and that she had not had an opportunity to cross-examine N.A.J. The trial court found that the purpose of the CAC was to interview children in a non-leading, non-coercive, and non-testimonial way; that N.A.J.'s testimony was reliable; that there were sufficient guarantees of trustworthiness; that cross-examination would be marginal, at best; and that N.A.J.'s statement was spontaneous and ...