The PEOPLE, Plaintiff and Respondent, v. Ricky Lee BROWN, Defendant and Appellant.
In this appeal from convictions for sexual offenses against a child, we conclude the victim's complaint that acts of molestation had occurred was admissible under the fresh complaint doctrine even though the disclosure was elicited by questioning from an adult who observed the victim to be withdrawn and crying and asked what was wrong. In so holding, we disagree with In re Cheryl H. (1984) 153 Cal.App.3d 1098, 200 Cal.Rptr. 789, which states that responses to questioning are not admissible as fresh complaints. As we shall explain, the no-questioning rule of Cheryl H. is not supported by the authorities upon which that court relied in fashioning the principle. Moreover, the rule is inconsistent with the purpose of the fresh complaint doctrine, which is premised on the common belief that the victim of a sex crime will complain of it and which permits the prosecution to show the fact of a complaint in order to forestall the assumption that no complaint was made and, therefore, that the offense did not occur. In our view, the purpose of the fresh complaint doctrine is achieved not only through introduction of evidence that the victim volunteered a verbal complaint about having been sexually molested, but also is advanced through evidence that the victim complained about the molestation in response to questioning or engaged in nonverbal conduct indicating something wrong had occurred.
We also conclude that, even though made approximately two months after the last act of molestation, the complaint was “fresh” for purposes of the fresh complaint doctrine because the victim's delay in disclosing the molestation was reasonable under the circumstances of this case.
In the unpublished portions of our opinion, we reject defendant's contentions that the trial court erroneously denied his challenges for cause to two prospective jurors and erred in a variety of other rulings, and that the prosecutor committed misconduct. Accordingly, we shall affirm the judgment.
While he was living with Martina S. and her minor daughter, Audrey, from August 1984 until May 1990, defendant engaged in numerous sexual acts with Audrey, including oral copulation, digital penetration, attempted sexual intercourse due to the inability to achieve penetration, and sexual intercourse. The acts began while Audrey was 8 years old and continued until she was 12. They occurred when Martina was at work or away from the home and while defendant, who was unemployed, “stayed home and took care” of Audrey and her infant siblings.
Defendant was convicted of nine counts of lewd and lascivious conduct with a child under the age of 14. (Pen.Code, § 288, subd. (a); further section references are to the Penal Code unless otherwise specified.) As to two counts, the jury found defendant had substantial sexual contact with a victim under age eleven years. (§ 1203.066, subd. (a)(8).) As to six counts, the jury found defendant had substantial sexual contact while occupying a position of special trust. (§ 1203.066, subd. (a)(9).) Defendant admitted allegations that he had served two prior separate prison terms. (§ 667.5, subd. (b).) He was sentenced to a prison term of 26 years.
Defendant told Audrey she “should never tell anybody” about his sexual acts with her because “people would hate [her]” if she did. Nevertheless, after her mother, Martina, stopped cohabiting with defendant in May 1990, and moved with her children from the residence they shared with him, Audrey “wanted to tell somebody” about the molestations. Although she was “scared” to do so, she chose to tell another juvenile, her best friend, Maria M., since Audrey “knew [Maria] wouldn't tell anybody.” Audrey asked Maria not to say anything to others because, in Audrey's words, “I wanted people to hear it from me if I want to tell somebody, not from my friend.”
A month later, when she was 12 years old and had completed the 6th grade, Audrey went to live with her “adoptive father,” Fernando R., and her “stepmom,” Diana R., whom she had not seen for the past five years.1 One evening between five and six weeks after she moved in with them, Audrey appeared “very withdrawn.” As Diana began talking with her, Audrey started to cry and began “clinging” to Diana. Audrey “just wouldn't let [Diana] go. She was crying very hard.” Audrey was reluctant to talk with Diana. She “kept drawing her legs towards her body and then putting them down and up.” Over the course of a three-hour period, Diana “sort of pried ․ out” of Audrey the fact she had been molested by defendant. Initially, Audrey had been afraid to tell Diana about the molestations because, in Audrey's words, “I knew if I told my stepmother she would have told my mom and tell [sic ] my sisters. [¶] And I just didn't want anything to go wrong.” After confiding in Diana, Audrey decided to tell her mother, Martina, about the molestations, and did so later.
When the prosecutor asked Audrey who was the first adult she told about the molestations, defendant objected on the ground the evidence sought to be elicited was “not within any fresh complaint type of theory․” The trial court overruled the objection and permitted Audrey and Diana to relate the fact of their conversation and the manner in which Audrey confided in Diana that defendant had molested her, but otherwise did not permit the witnesses to relate the substance of the conversation.
As he did in the trial court, defendant contends Audrey's statement to Diana should have been excluded because it does not satisfy the fresh complaint doctrine. He argues: “First, Audrey's ‘complaint’ to Diana [ ] did not, in fact, qualify as a complaint because it occurred in response to questioning.” In support of this contention, defendant cites Cheryl H., supra, 153 Cal.App.3d 1098, 200 Cal.Rptr. 789, which stated that, to be admissible as a “fresh complaint,” the complaint “must have been volunteered,” i.e., “not a response to questions” (id., at p. 1129, 200 Cal.Rptr. 789), and People v. Fair (1988) 203 Cal.App.3d 1303, 250 Cal.Rptr. 486, which relied on Cheryl H. for the proposition that a complaint of sexual molestation is not admissible under the fresh complaint doctrine when the out-of-court disclosure is elicited by questioning (id., at p. 1313, 250 Cal.Rptr. 486).
We decline to follow this no-questioning rule because, as we shall explain, it is not supported by the authorities upon which Cheryl H. relied in fashioning the principle, and it is inconsistent with the purpose of the fresh complaint doctrine.
In the prosecution for a sex offense, proof of a complaint about the offense made by the victim to a third person at a time not too remote from the alleged offense may be admissible under the “fresh complaint doctrine.” (People v. Burton (1961) 55 Cal.2d 328, 351, 11 Cal.Rptr. 65, 359 P.2d 433; Fair, supra, 203 Cal.App.3d at p. 1307, 250 Cal.Rptr. 486; People v. Clark (1987) 193 Cal.App.3d 178, 181, 238 Cal.Rptr. 230; Cheryl H., supra, 153 Cal.App.3d at pp. 1128–1129, 200 Cal.Rptr. 789; People v. Meacham (1984) 152 Cal.App.3d 142, 158, 199 Cal.Rptr. 586.) “[A]lthough details [of the sexual offense as told to a third party by the complainant] cannot be recounted, it can be shown by the People ‘that the complaint related to the matter inquired into, and not a complaint wholly foreign to the subject’; that is, the alleged victim's statement of the nature of the offense and the identity of the asserted offender, without details, is proper.” (Burton, supra, 55 Cal.2d at p. 351, 11 Cal.Rptr. 65, 359 P.2d 433, italics omitted.) The complaint is admitted only to show the victim made a complaint. Because it is not admitted for the truth of the matter stated, the evidence is not hearsay. (Clark, supra, 193 Cal.App.3d at p. 181, 238 Cal.Rptr. 230; Cheryl H., supra, 153 Cal.App.3d at p. 1129, 200 Cal.Rptr. 789.) 2
“[T]he theory of admissibility of evidence of a complaint which is consistent with [the victim's] testimony and which is not a spontaneous declaration which might be excepted from the hearsay objection is this: It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” (Burton, supra, 55 Cal.2d at p. 351, 11 Cal.Rptr. 65, 359 P.2d 433; see also People v. Wilmot (1903) 139 Cal. 103, 105, 72 P. 838, overruled on another point in Burton, supra, 55 Cal.2d at p. 352, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Hubbell (1942) 54 Cal.App.2d 49, 63, 128 P.2d 579.)
In explaining the rationale for the doctrine, Burton relied in part on Dean Wigmore's statement of the theoretical basis for fresh complaint evidence: “[W]hen a woman charges a man with rape, and testifies to the details, and the accused denies the act itself, its very commission thus coming into issue, the circumstance that at the time of the alleged rape the woman said nothing about it to anybody constitutes in effect a self-contradiction․ It was entirely natural, after becoming the victim of an assault against her will, that she should have spoken out. That she did not, that she went about as if nothing had happened, was in effect an assertion that nothing violent had been done. [¶] Thus, the failure of the woman, at the time of an alleged rape, to make any complaint could be offered in evidence ․ as a virtual self-contradiction discrediting her present testimony. [¶] ․ So, where nothing appears on the trial as to the making of such a complaint, the jury might naturally assume that none was made, and counsel for the accused might be entitled to argue upon that assumption. As a peculiarity, therefore, of this kind of evidence, it is only just that the prosecution should be allowed to forestall this natural assumption by showing that the woman was not silent, i.e., that a complaint was in fact made.” (4 Wigmore, Evidence (Chadbourn Rev.1972) § 1135, p. 298; italics and fn. omitted.)
Simply stated, the fresh complaint doctrine is premised on the general notion that the victim of a sex crime who acts “as if nothing had happened” may be perceived as having effectively indicated that nothing improper occurred. Thus, the purpose of “fresh complaint” evidence is to anticipate and fend off this inference by showing that the victim did not go about as if nothing had happened, i.e., that a complaint was made.
In asserting that, to be admissible under the fresh complaint doctrine, the complaint cannot be made in response to questioning, defendant suggests the evidence must show more than the fact the victim did not act “as if nothing had happened.” In effect, he argues the evidence must show the victim reacted to the abuse in a particular manner: by volunteering a verbal complaint about the incident. Defendant's argument is supported by Cheryl H., supra, 153 Cal.App.3d at p. 1129, 200 Cal.Rptr. 789 and its progeny, Fair, supra, 203 Cal.App.3d at p. 1313, 250 Cal.Rptr. 486 and Clark, supra, 193 Cal.App.3d at p. 182, 238 Cal.Rptr. 230, which follow Cheryl H. without analysis.
Cheryl H. states: “But to be admissible [as a fresh complaint], the complaint must have been volunteered a short time after the sexual assault. (People v. Hubbell, supra, 54 Cal.App.2d 49, 56 [128 P.2d 579]; People v. Orduno (1978) 80 Cal.App.3d 738, 745–746 [145 Cal.Rptr. 806], cert. den. Orduno v. California (1979) 439 U.S. 1074 [99 S.Ct. 849, 59 L.Ed.2d 41]; People v. Figueroa (1901) 134 Cal. 159, 162 [66 P. 202].) That is, it must truly be ‘fresh’ and it must truly be in the nature of a ‘complaint’ and not a response to questions. Thus, in People v. O'Donnell (1938) 11 Cal.2d 666, 670 [81 P.2d 939], disapproved on other grounds in People v. Friend (1958) 50 Cal.2d 570 [327 P.2d 97], the California Supreme Court held inadmissible a mother's testimony about her three-year-old's out-of-court statement telling her the defendant had molested and raped the child. The child's statement was made about a half hour after the assault but in response to the mother's questions about what had happened. The Supreme Court held this was not a complaint tied into the res gestae ‘but a declaration of a past event.’ (Ibid.) Similarly, a Court of Appeal excluded a mother's testimony about her six-year-old child's statement that the defendant had molested her even though the statement was made shortly after the assault. In this instance the child offered this statement only after being spanked and the court held ‘the original statement made to the mother was one not in the nature of a complaint․’ (People v. Ewing (1925) 71 Cal.App. 138, 143 [234 P. 917].)” (Cheryl H., supra, 153 Cal.App.3d at p. 1129, 200 Cal.Rptr. 789, emphasis added.)
Cheryl H. 's reliance on O'Donnell is misplaced for two reasons. First, O'Donnell did not discuss or apply the fresh complaint doctrine. The question there was not whether the fresh complaint doctrine permitted introduction of the fact of a complaint in order to forestall an assumption that no complaint was made. Rather, the issue posed was whether the substance of the complaint (i.e., the accused put his finger into the victim's vagina and rectum) could be admitted as part of the “res gestae” of the offense. (11 Cal.2d at pp. 668, 670, 81 P.2d 939; cf. Burton, supra, 55 Cal.2d at p. 351, 11 Cal.Rptr. 65, 359 P.2d 433.) 3 Second, although Cheryl H. asserts the “child's statement [in O'Donnell ] was made ․ in response to the mother's questions about what had happened” (153 Cal.App.3d at p. 1129, 200 Cal.Rptr. 789), the facts of O'Donnell do not establish the victim's complaint was obtained by questioning.4
Because O'Donnell did not address the fresh complaint doctrine and was not based on questioning of the child victim, it does not support Cheryl H. 's holding that a fresh complaint may not be in response to questioning. Cases are not authority for points not discussed or considered. (People v. Hill (1974) 12 Cal.3d 731, 766, fn. 34, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds, People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.)
Likewise, because there was no questioning of the complaining victim in Figueroa, supra, 134 Cal. 159, 66 P. 202, that case does not support Cheryl H. 's holding that a complaint made in response to questioning does not qualify as a fresh complaint.
Questioning of the victim prior to her complaint of sexual misconduct did occur in Ewing, supra, 71 Cal.App. 138, 234 P. 917, a case cited by Cheryl H. However, that questioning was not pertinent to the court's analysis. The defendant in Ewing molested a child in a garage across from her home. When the victim returned home, her mother spanked her and asked what the defendant had done to her. The child replied the defendant had kissed her. Ewing held this statement was “not the character of complaint contemplated by” the fresh complaint doctrine because it was “not in the nature of a complaint, but was elicited from the child only after a spanking had been administered to her․” (Id., at p. 143, 234 P. 917.) In other words, the child did not complain or act as if anything wrong had happened. Because it was the spanking, rather than a complaint about defendant's conduct, which caused the minor to disclose the kissing, the child's statement was not within the fresh complaint doctrine. Since the court did not attach any importance to the mother's questioning of the minor, Ewing is not authority for the proposition that responses to questions are inadmissible under the fresh complaint doctrine. (Hill, supra, 12 Cal.3d at p. 766, fn. 34, 117 Cal.Rptr. 393, 528 P.2d 1.)
Precomplaint questioning of the victim also occurred in Hubbell, supra, 54 Cal.App.2d at p. 63, 128 P.2d 579, cited by Cheryl H. However, the Hubbell court did not seize upon this as a basis to exclude evidence of the complaint. Rather, the complaint was held to be inadmissible because it was not fresh, having been made almost ten months after the alleged act of molestation. (Id., at pp. 63–66, 128 P.2d 579.) Therefore, Hubbell, like Ewing, does not support the no-questioning rule espoused in Cheryl H.
Although it does not so indicate, Cheryl H. 's holding that responses to questioning are not admissible as fresh complaints may have been derived from language in another case cited by Cheryl H. The court in Orduno, supra, 80 Cal.App.3d 738, 145 Cal.Rptr. 806 concluded that, to be admissible under the fresh complaint doctrine, the statement “must be made under circumstances indicating it was a complaint, and not simply a response to questioning.” (Id., at p. 745, 145 Cal.Rptr. 806; emphasis added.) We interpret this language as a recognition that, under the fresh complaint doctrine, the victim must appear to be complaining about the act, i.e., not simply behaving “ as if nothing had happened.” (4 Wigmore, op. cit. supra, at p. 298.) Orduno should not be read to stand for the converse proposition that, where the circumstances suggest the victim is disturbed by a sexual act, only the victim's volunteered statements can qualify as fresh complaints.5
Inexplicably, although citing Burton, supra, 55 Cal.2d 328, 11 Cal.Rptr. 65, 359 P.2d 433, a pivotal California Supreme Court case recognizing the fresh complaint doctrine, Cheryl H. overlooked the fact the Burton victim's complaint was made in response to questioning. The seven-year-old victim had been left with her stepfather while her mother was away from the home. When the victim's mother returned after midnight, she saw her daughter was still awake. The mother asked why the victim was not asleep, and the daughter “ ‘said she just couldn't go to sleep.’ ” Later, the mother told her daughter, “ ‘You mustn't story to me․ What's the matter with you? Why can't you go to sleep? ․ You better tell the truth.’ ” The victim then said her stepfather had sexually molested her. (Id., at p. 337, 11 Cal.Rptr. 65, 359 P.2d 433.) Despite the fact the victim's complaint to her mother was made in response to questioning, the Supreme Court held the prosecution could “show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” (Id., at p. 351, 11 Cal.Rptr. 65, 359 P.2d 433; see also People v. Pacheco (1963) 220 Cal.App.2d 320, 324–325, 33 Cal.Rptr. 735.)
Therefore, a careful review of the cases cited by Cheryl H. reveals no authority to support its conclusion that complaints made in response to questioning are not admissible under the fresh complaint doctrine. To the contrary, that conclusion is inconsistent with the California Supreme Court's holding in Burton.
Moreover, the no-question rule of Cheryl H. is at odds with the reason for the fresh complaint doctrine. As we have noted, the fresh complaint doctrine is premised on the common belief that the victim of a sex crime will complain of it. Thus, the doctrine permits the prosecution to show the fact of a complaint for the purpose of forestalling the assumption that none was made and, therefore, that the offense did not occur. (Burton, supra, 55 Cal.2d at p. 351, 11 Cal.Rptr. 65, 359 P.2d 433.) Stated another way, the purpose of the doctrine is to anticipate and fend off the inference the victim acted “as if nothing had happened.” (4 Wigmore, op. cit. supra, at p. 298.)
In our view, the purpose of the fresh complaint doctrine is achieved not only through introduction of evidence that the victim volunteered a verbal complaint about having been sexually molested, but also is advanced through evidence that the victim complained about the molestation in response to questioning.
As this case demonstrates, victims of sexual molestation often are “reluctant to disclose or discuss the sordid episodes.” (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099, 215 Cal.Rptr. 45.) This is particularly so in cases where a child victim is instructed not to tell anyone about the molestation and is told that something bad will happen if the victim discloses the acts. While such a victim may be reluctant to volunteer a complaint about the molestation, he or she may be anxious to disclose the crime if someone the victim trusts were to ask if there was a problem.
Defendant has presented no rational reason, and we can think of none, why a person who voices a complaint of sexual molestation should not be deemed to have complained within the meaning and purpose of the fresh complaint doctrine simply because the complaint was prompted by an inquiry. That the victim's complaint followed a question does not detract from the fact the victim complained, i.e., did not act as if nothing had happened. (Burton, supra, 55 Cal.2d at p. 351, 11 Cal.Rptr. 65, 359 P.2d 433.) Because, like a volunteered complaint, a complaint made in response to questioning establishes the victim of a sex crime did not act as if nothing had happened, it is admissible to forestall an assumption that no complaint was made and, therefore, that the offense did not occur. (Ibid.)
Moreover, common sense leads us to reject Cheryl H. 's no-questioning rule because it can result in absurd consequences; under that rule, admissibility of a fresh complaint would depend not on the victim's expression of irritation, pain or suffering but on whether a good Samaritan happened to ask if anything was wrong before the victim verbalized the complaint. Such a rule makes no sense, particularly in cases like this, because the natural reaction of a parent or friend who observes a child engaging in nonverbal conduct which indicates suffering is to ask what is wrong. It would be unreasonable, and contrary to the purpose of the fresh complaint doctrine, to prohibit evidence of a verbal complaint simply because it was prompted by the inquiry of someone who asked what was wrong before the victim volunteered the complaint. (See People v. Costa (1953) 40 Cal.2d 160, 168–169, 252 P.2d 1.)
Accordingly, we conclude Audrey's verbal complaint that defendant had sexually molested her was admissible under the fresh complaint doctrine even though it was not volunteered, but was disclosed in response to questioning. We also conclude Audrey's disclosure constituted a complaint within the meaning of the fresh complaint doctrine despite the fact that Diana “sort of pried it out” of her over a period of three hours. A disclosure of sexual molestation “ becomes no less of a fresh complaint” by reason of the victim's reticence to tell about the molestation. (Fair, supra, 203 Cal.App.3d at p. 1309, 250 Cal.Rptr. 486; cf. In re Damon H. (1985) 165 Cal.App.3d 471, 476, 211 Cal.Rptr. 623 [in the circumstance of a spontaneous declaration, the fact the victim “was hesitant to explain his crying ․ did not make his declaration any less spontaneous”].) Although Audrey was reluctant to “discuss the sordid episodes” (Roscoe, supra, 168 Cal.App.3d at p. 1099, 215 Cal.Rptr. 45), there is no question that, in ultimately disclosing defendant's acts, Audrey was complaining about them.
The trial court also properly admitted evidence of Audrey's conduct prior to her verbal disclosure of the sexual molestations. Like the voicing of a complaint about sexual abuse, a victim's nonverbal conduct can be a powerful indicator that something wrong has happened. As a matter of common usage, a “complaint” is not limited to the verbal expression of grief; it may be manifested by conduct which “give[s] sign of physical suffering or pain” or indicates “sorrow or suffering.” (The Oxford English Dictionary (1978) vol. 2, p. 722.)
Here, Audrey in effect “complained” of defendant's conduct by communicating nonverbally her suffering prior to being questioned by Diana. That Audrey did not verbalize the reason for her discontent until she was questioned does not detract from the fact her withdrawn behavior followed by clinging and crying effectively communicated that something was wrong and showed that Audrey was not going about “as if nothing had happened.” (4 Wigmore, op. cit. supra, at p. 298.) Her nonverbal conduct became no less of a complaint by reason of her reluctance to verbally communicate her problem. (Cf. Fair, supra, 203 Cal.App.3d at p. 1309, 250 Cal.Rptr. 486; cf. Damon H., supra, 165 Cal.App.3d at p. 476, 211 Cal.Rptr. 623.)
Therefore, we conclude Audrey's nonverbal conduct, i.e., her withdrawn behavior followed by clinging and crying, which unquestionably expressed her pain and suffering, constituted a complaint within the meaning of the fresh complaint doctrine.6
In a second attack on the evidence, defendant contends Audrey's complaint should have been excluded on the ground it was not “fresh” since it occurred at least two months after the last possible act of molestation. We disagree.
To be admissible under the fresh complaint doctrine, the victim's complaint must have been made within a reasonable time after the offense. (Clark, supra, 193 Cal.App.3d at p. 182, 238 Cal.Rptr. 230; People v. Deletto (1983) 147 Cal.App.3d 458, 479, 195 Cal.Rptr. 233.) Any reason for the victim's delay in making a complaint may be taken into account in determining whether it was made within a reasonable period after the offense. (Clark, supra, 193 Cal.App.3d at p. 182, 238 Cal.Rptr. 230; Meacham, supra, 152 Cal.App.3d at pp. 158–159, 199 Cal.Rptr. 586; People v. Brown (1973) 35 Cal.App.3d 317, 324, 110 Cal.Rptr. 854; People v. Bianchino (1907) 5 Cal.App. 633, 636–637, 91 P. 112.)
Where adequate justification exists for the delay, the complaint is admissible despite the fact it occurred months after the crime. For example, Clark held admissible a complaint made by the five-year-old victim over seven months after the act of molestation. Before the offense, the victim “had neither demonstrated any knowledge of sexual matters nor witnessed any sexual conduct. Further, she was told to keep the incident secret.” Seven and one-half months after the molestation, a class on molestation was given to her kindergarten. The teacher “talked about touching that is appropriate and touching that is not” and instructed the children that they should tell someone if they had been touched inappropriately. The Sunday after this class the victim volunteered to her mother that the victim had been molested by Clark. In upholding admission of this complaint, the court noted that children who have been sexually molested by a member of the family “may not know that what has happened to them is wrong” and, thus, may not have the impetus to make an immediate complaint. (Id., at p. 182, 238 Cal.Rptr. 230.) However, once the victim in Clark “became aware of what had happened to her,” she promptly made the complaint. Thus, the court held “the complaint was ‘fresh’ in the sense of [the victim's] cognizance and, in light of the rationale behind [the fresh complaint] doctrine, was properly admitted.” (Ibid.)
Audrey's delay in manifesting a complaint is readily explained by her change of circumstances. While she was living with him, defendant had warned Audrey not to tell anyone about the molestations, suggesting people would hate her if she did. It was not until her mother and she moved away from defendant that Audrey developed the courage to disclose the molestations. Although she was “scared” to do so, she “wanted to tell somebody” and chose another juvenile, her best friend Maria. In complaining about the molestations by defendant, Audrey asked Maria not to tell others because Audrey “wanted people to hear it from [her] ․ not from [her] friend.” In addition, she did not want her mother to learn about the molestations because Audrey “didn't want anything to go wrong.” Approximately a month after leaving the residence she shared with defendant, Audrey began living with her “stepmom,” Diana. Because Audrey had not seen Diana for five years, it is understandable that she was reluctant to confide in Diana. Nevertheless, she did so after she had lived with Diana for approximately five to six weeks, when she apparently felt comfortable enough to display her emotions or no longer could control them.
We conclude Audrey's delay in complaining to Diana about the molestations was reasonable. In our view, it would be unreasonable and inconsistent with the purpose of the fresh complaint doctrine to demand more from a frightened 12–year–old victim who had been warned by defendant not to tell, who was concerned about her relationship with her mother (defendant's girlfriend when he molested the victim), and who had been left by her mother with people she had not seen since she was seven years old. Under these circumstances, Audrey's complaint was sufficiently “fresh” to come within the fresh complaint doctrine.
Defendant contends, however, the complaint was not “fresh” because it was made “after Audrey's motive to fabricate came into effect, not before.” Under defendant's theory of the case, “Audrey's motive to fabricate charges against [defendant] arose out of the disputes surrounding the breakup of [his] relationship with her mother.” Defendant has waived this point by failing to assert it in the trial court. (Evid.Code, § 353, subd. (a); People v. Morris (1991) 53 Cal.3d 152, 187–188, 279 Cal.Rptr. 720, 807 P.2d 949.) In any event, the point lacks merit. As we have noted, fresh complaint evidence is admitted to forestall an inference the victim fabricated her testimony because the lack of a fresh complaint could be perceived as inconsistent with an allegation that molestation occurred. The presence of evidence that the victim purportedly had a motive to falsely accuse the defendant does not require the exclusion of evidence the victim acted consistent with her allegation by complaining about the molestation. In such circumstances, the defense may argue the allegation is false and the related behavior, i.e., the complaint, was feigned.7
The judgment is affirmed.
1. Audrey's mother, Martina S., had a previous relationship with Fernando R. He “considers himself” to be Audrey's “adoptive father,” although he is not her biological father and has not formally adopted her. Audrey calls Fernando's wife, Diana R., her “stepmom.” For simplicity and to avoid confusion, we shall refer to Diana R. as “Diana.”
2. Defendant complains that the jury could have used Audrey's statement as substantive evidence he committed the offenses because the trial court “did not instruct the jury to limit its use of the evidence to any special purpose.” However, absent a request, the trial court has no duty to give an instruction limiting the purpose for which evidence may be considered. (Clark, supra, 193 Cal.App.3d at pp. 182–183, 238 Cal.Rptr. 230.) Since defendant did not request a limiting instruction, the trial court was not required to give one. (Ibid.)
3. O'Donnell explained that, to come within the rule allowing declarations to be admitted as part of the res gestae, the complaint must “ ‘have been uttered contemporaneously with and grow out of the act upon which they have a bearing so as to be spontaneous and not narrative;’ ” must “ ‘qualify, illustrate, explain and unfold its character or significance,’ ” and must “ ‘be connected with it in such a manner that the declaration and the act form a single and indivisible transaction.’ ” (11 Cal.2d at p. 670, 81 P.2d 939, quoting People v. Mahoney (1927) 201 Cal. 618, 621, 258 P. 607.) O'Donnell ruled the child's statement was not part of the res gestae because it was not uttered contemporaneously with the molestation but was “a declaration of a past event.” (Ibid.)
4. O'Donnell states: “Mrs. Pedersen accompanied by Mrs. Jannsch proceeded to the bathroom where they found the baby. She was bleeding between her legs and from her crotch. Mrs. Pedersen then went to the living room, where appellant was sitting in a chair with his eyes closed apparently asleep. She shook him and asked him what he had done to the baby. He replied that she must have fallen and cut herself. Mrs. Pedersen then returned to the bathroom and the child still crying, informed her in simple language that appellant had put his finger into her vagina and rectum.” (11 Cal.2d at p. 668, 81 P.2d 939.)
5. Like Cheryl H., the court in Orduno erroneously believed the mother in O'Donnell “questioned the child, who related what defendant had done.” (Orduno, supra, 80 Cal.App.3d at p. 745, 145 Cal.Rptr. 806.)
6. For nonverbal conduct indicating pain and suffering to be admissible under the fresh complaint doctrine, the totality of the evidence must lead to a reasonable inference that the nonverbal expression of grief relates to the prior act of sexual molestation, i.e., is a complaint about that sexual misconduct. Here, Audrey's verbal complaint gave meaning to her prior nonverbal complaint. However, our opinion should not be construed to require that, in order to be admissible as a fresh complaint, nonverbal conduct must be followed by a verbal expression which ties the nonverbal complaint to the sexual molestation. The nexus may be established by circumstantial evidence.
7. In addition to presenting evidence that Audrey complained to her friend, Maria, and her “stepmom,” Diana, the prosecutor was permitted to show Audrey later told her mother and law enforcement officers about the molestations. Defendant contends Audrey's “subsequent statements to her mother and the various authorities are even less acceptable [than her statements to Diana] under the fresh complaint doctrine.” Assuming he is right, defendant is unable to establish prejudice due to the cumulative nature of this evidence.
FOOTNOTE. See footnote *, ante.
SCOTLAND, Associate Justice.
DAVIS, Acting P.J., and RAYE, J., concur.