Opinion
Case No. 20030261-CA.
Filed October 7, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Randall N. Skanchy.
Heather Johnson, Lori Seppi, Robin K. Ljungberg, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Thorne.
MEMORANDUM DECISION
Thongchay Duanyai appeals his convictions of aggravated sexual abuse of a child and sexual abuse of a child. Duanyai argues, pursuant to Crawford v. Washington, 124 S. Ct. 1354 (2004), that the trial court denied him the opportunity to cross-examine the alleged victim, H.H., by ruling to admit a videotaped interview of H.H. We affirm.
While Crawford v. Washington, 124 S. Ct. 1354 (2004), was decided after Duanyai's trial, it nonetheless applies retroactively to Duanyai's case. In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the Court held "that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." Id. at 328. Duanyai's case was before us on direct review when the Crawford was decided.
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI.
Duanyai did not preserve his cross-examination argument in the trial court because his objection to the videotape lacked the required specificity. See State v. Brown, 856 P.2d 358, 361 (Utah Ct.App. 1993). Neither defense counsel nor the trial court mentioned cross-examination regarding H.H. Counsel only stated admission of the videotape was "unfair."
Nevertheless, we consider whether the trial court's ruling was plain error. To show plain error, Duanyai must show "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). The Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish." United States v. Owens, 484 U.S. 554, 559 (1988) (quotations and citation omitted). Duanyai has not demonstrated the existence of any trial court error regarding his opportunity for cross-examination. Thus, the trial court's ruling was not plain error.
Duanyai also argues that the trial court "impliedly" denied him the opportunity for cross-examination. Even assuming there was some error in the trial court's ruling, Duanyai waived any objection or invited the error. A party cannot object on appeal to that into which he led the trial court. See State v. Bullock, 791 P.2d 155, 159 (Utah 1989). Defense counsel did not ask to cross-examine H.H. and implied that he had not expected to cross-examine H.H. Additionally, in the pretrial hearing motion, defense counsel specifically stated that he believed that the videotape would be admissible. Thus, the court did not err because nothing it did denied Duanyai the opportunity to cross-examine H.H. Moreover, Duanyai's counsel waived any objection, or invited the error, if any, by his affirmative statements and omissions.
Duanyai makes additional arguments: (i) concerning the sufficiency of the trial court's findings under Utah Code section 76-5-411, see Utah Code Annotated section 76-5-411 (1989), and Utah Rule of Criminal Procedure 15.5 and (ii) concerning corroborating evidence. In Crawford, however, the Supreme Court overturned the reliability requirements of Ohio v. Roberts, 448 U.S. 56 (1980). See Crawford, 124 S. Ct. at 1374. Because theCrawford prior-opportunity-for-cross-examination rule offers a more robust interpretation of the rights under the Confrontation Clause than Roberts, Duanyai's Confrontation Clause rights were protected if he had an opportunity for cross-examination. See Crawford, 124 S. Ct. at 1373-74. We have held that Duanyai had that opportunity. Hence, Duanyai's reliability arguments are superfluous. Accordingly, we conclude that the trial court did not violate Duanyai's Confrontation Clause rights.
Because of our conclusion that the trial court did not commit reversible error in admitting the videotape evidence, we need not reach Duanyai's argument that, absent the videotape, there was insufficient evidence to support a conviction, and we do not need to address the State's preservation argument.
We affirm.
We Concur: Pamela T. Greenwood, Judge, William A. Thorne Jr., Judge.