# State v. Zimmerman

> Idaho Supreme Court · April 2, 1992 · 121 Idaho 971

URL: https://www.frixlaw.com/law-library/cases/9626571

## Case

- **Full name:** STATE of Idaho, Plaintiff-Respondent, v. John Asa ZIMMERMAN, Defendant-Appellant
- **Court:** Idaho Supreme Court
- **Decided:** April 2, 1992
- **Citations:** 121 Idaho 971; 829 P.2d 861; 1992 Ida. LEXIS 86
- **Precedential status:** Published
- **Opinion:** Concurrence by Bakes
- **Judges:** Johnson, Bakes, McDevitt, Boyle
- **Cited by:** 109 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626571

## How later opinions describe it (automated extraction)

- holding that five-year-old’s statement made at least five days after incident was not excited utterance
- holding that “a psychologist does not provide ‘medical’ treatment as contemplated by” I.R.E. 803(4)
- noting that child did not make statements to psychologist for purposes of medical treatment

## Opinion text

BAKES, Chief Justice,
specially concurring:
I concur in Parts 1(A) and 1(C), Part II, and Part III of the Court’s opinion. As to Part 1(B), the hearsay statement concerning the child’s statement that, “No, I’m not going to tell my Dad’s secret. You tell him,” ordinarily I would agree that such a statement made two weeks after an event would not constitute an excited utterance for purposes of I.R.E. 803(2). However, I don’t believe that the “startling event or condition” necessarily has to be the criminal event, in this case the sexual abuse of the child. For example, if a person is sexually abused or assaulted by a person, and inadvertently is confronted by the assailant two weeks later and makes a spontaneous and excited utterance at that confrontation, as the result of “the stress or excitement caused by the [original] event or condition,” it could constitute an excited utterance under I.R.E. 802(2). In this case the child, on being confronted by a police officer, made the statement that, “No. I’m not going to tell my Dad’s secret. You tell him.” Whether or not the unanticipated appearance of a police officer to a child victim is a sufficiently “startling event or condition” under I.R.E. 803(2) to constitute an excited utterance, made while the declarant was under the stress or excitement caused by the original event or condition, is a factual determination for the trial court. The question of whether the unanticipated appearance of the police officer was a sufficiently “startling event” and whether or not the child was still under the “stress” caused by the original sexual molestation was a question for the trial court. It is a very close question in this case whether or not these circumstances constitute an unreasonable extension of the excited utterance exception contained in I.R.E. 803(2). My inclination is to affirm the trial court on this issue.
However, I concur with the majority that the “sleep-talk” statements were clear error. There is just no way of knowing whether the statements, “Don’t, Daddy, don’t,” or “No, Daddy, no,” were motivated by sexual molestation, the threat of a spanking, or a subconscious response to the father’s insistence that he is going to take the child back to its mother. I agree with the Court that this error is not harmless.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626571. Public record. Not legal advice.