ANNAPOLIS – When a child services agent talked to a mentally-disabled 15- year-old girl about possible abuse by her stepfather, the agent’s testimony about that conversation was hearsay and shouldn’t have been used to convict Timothy Van Nixon, according to the Maryland Court of Special Appeals.
The Wednesday ruling overturned two of Nixon’s child abuse counts and two of his sexual abuse counts. His convictions on three other related counts were upheld.
The Wicomico County Circuit Court had allowed agent Catherine Beers to testify to what the girl had said in the interviews, ruling that a special legal exception that allows hearsay testimony applied in this case.
The appeals court upheld one count of child abuse, one count of attempted second-degree rape and one count of third-degree sexual offense because the lower court relied on the victim’s testimony rather than Beers’ testimony to convict Nixon.
“I would have liked all the counts to have been reversed,” said Amy Brennan, assistant public defender for Nixon, adding that Beers’ testimony affected all seven counts.
“Once you’ve heard it, you’ve heard it,” said Brennan.
The state argued Beers’ notes were better evidence of the incidents that occurred than the girl’s testimony because she testified at trial months later and was mentally disabled.
Carol Davis, a certified social psychologist, testified the girl had a mental age of about 6. Brennan, however, said she did not think the exception allowing hearsay testimony was meant to be used so broadly. The original court allowed the state to ask Beers about her interviews with the girl, who reported that her stepfather sexually abused her at night in her bedroom on several different occasions from January 1998 to October 1999. The girl drew a picture and used a drawing of a clock to depict these events and the time they occurred. Despite the defense objection, the Circuit Court admitted the drawing as evidence. Several defense witnesses testified to the girl’s untruthful nature. The girl’s mother testified her daughter was not a truthful person and was not alone with Nixon on Oct. 9, 1999, one of the times she claimed to have been abused. Parents do not always believe their children when they report instances of sexual abuse, said Carol Mumma, director of the Wicomico County Department of Social Services. “Credibility of the child is always an issue,” she added. During the trial, the Wicomico County Department of Social Services removed the girl from her mother’s home. Mumma would not say whether the department returned the girl to her mother after the trial ended. Either side can appeal to the Court of Appeals, but neither has decided what they will do yet.
– 30 – CNS 09-06-01