Monday, December 19, 2005

Conviction reversed when impeachment evidence used to show element of crime

[CASE] Division 3 reverses a conviction because the only evidence for one element of the crime was hearsay evidence introduced for impeachment. State v. Clinkenbeard, --- P.3d ---, 2005 WL 3164814 (Wash. App. Nov. 29, 2005), Find,
Washington Courts website

The defendant was a school bus driver. He became friendly with a student when she was in fifth grade and maintained contact for many years, even after she no longer rode his bus. After she turned 18, he left his wife and moved close to the student. The state alleged that he had sex with her and prosecuted him under a statute that makes it unlawful for a school employee to have sex with any student while still a student, if the employee is at least five years older than the student. The defendant was 44 years older than the student.

At trial, the student testified that they had not had sex. As impeachment evidence, the court allowed hearsay statements -- one from a friend and one from a detective.

On appeal, the defendant unsuccessfully challenged the consitutionality of the statute (RCW 9A.44.093(1)(b)).

The court found it impermissible to allow the hearsay testimony to be used to show that the defendant had, in fact, had sex with the student. And, since that was the only testimony as to that element of the crime, the court reversed the conviction for insufficient evidence.

(Note: this is the second time I've posted about this case and the last one. That's because my earlier posts were dropped from the system. Computers: very handy, but sometimes things go wrong.)

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