State v. Brown

¶1The controlling issue in this case is whether trial court should have admitted into evidence a police officer’s description of defendant’s picture identification by a five-year-old sexual abuse victim who was unavailable as a witness. Defendant, appealing following his conviction of second-degree sexual abuse (a violation of Iowa Code sections 709.1(3) and 709.3(2)), asserts this was hearsay and reversible error. Agreeing, we reverse and remand for new trial.

¶2There was adequate evidence to support the jury’s verdict that defendant committed a sexual assault on the victim, a five-year-old neighbor boy. The trial was complicated by defendant’s successful pretrial motion to exclude the victim’s testimony on the ground the latter did not have sufficient age, maturity and mental capacity to understand the nature and obligations of an oath.

¶3A police officer, however, was permitted to testify, over hearsay objection, that the victim had selected defendant out of a photographic array when asked “to point out an individual, if one did exist, of the individual that hurt him.”

¶4When questioned by an officer at the police station shortly after the incident, defendant made statements that placed the victim in defendant’s apartment partially disrobed and crying. This officer testified defendant at three intervals also stated that “if he [the defendant] admitted to raping a child that he would be sent to the penitentiary.” Defendant appeals on this issue, based on his hearsay objections and on trial court’s refusal to grant his motion to suppress all of his statements to- the police. Defendant’s motion alleged the police failed to obtain a valid waiver of his Miranda rights, and to provide him with the support of a family member upon request. The motion further alleged defendant’s statements were not voluntarily made, the latter contention apparently based upon his borderline mental retardation.

¶5I. Admission of Victim’s Pretrial Identification of Defendant in Photographic Array.

¶6In compliance with the court’s pretrial ruling, the victim was never called to the witness stand during the trial.

¶7The victim’s mother and a friend described the victim’s return to their apartment, crying and bleeding from the rectum. His statements at that time, which confirmed the assault and its occurrence in defendant’s apartment, were testified to by these witnesses over hearsay objections. No appeal has been taken from the admission of this evidence as an excited utterance.

¶8The victim was then taken to the hospital for further examination. Meanwhile, defendant had consented to be taken to the police station for questioning. He also consented to his picture being taken. Pictures of other persons with similar features were selected, and an officer took all the photographs to the hospital for the victim’s viewing. The victim was in a hospital bed. At that time, according to the officer, he was *13“not crying or hysterical or anything” but was “calm.” The officer laid six photographs on the child’s hospital bed and asked the child “to point out an individual, if one did exist, of the individual that hurt [you].” Only then did the child select defendant’s picture.

¶9In resisting defendant’s hearsay objection, the prosecution argued this evidence was admissible under the excited utterance exception to the hearsay rule, see State v. Ogilvie, 310 N.W.2d 192, 196 (Iowa 1981). The State now concedes in its appellate brief that this exception is inapplicable, and admitted in oral argument the spontaneity undergirding the excited utterance exception was lacking in the deliberate and considered reflection and judgment ordinarily required to select a specific face out of an array of look-alike pictures. See State v. Stevens, 289 N.W.2d 592, 596 (Iowa 1980) (“This [excited utterance] exception to the hearsay rule applies generally in criminal prosecutions when the statement is made under the influence of the excitement of the incident rather than on reflection or deliberation.”).

¶10Although we have often allowed use of the “excited utterance” or “res ges-tae” hearsay exception despite the fact that the out-of-court declarant, like this victim, was responding to a question, the questions in those cases were “not calculated to elicit information which would otherwise have been withheld,” State v. Watson, 242 N.W.2d 702, 704 (Iowa 1976). Furthermore, the declarants in those cases were not “calm” but upset. See Ogilvie, 310 N.W.2d at 196 (declarant sexual abuse victim “still upset”); State v. Haines, 259 N.W.2d 806, 810 (Iowa 1977) (“irrefutable evidence the child made the statements while in an excited state”); Watson, 242 N.W.2d at 704 (declarant rape victim described as “pretty well shook up”). See also State v. Swanson, 228 N.W.2d 101, 103 (Iowa 1975) (In making identifying statement to police, de-clarant victim described as- “emotional, upset, crying and sobbing, hysterical and very distraught.”). Although we are sorely tempted to admit the victim’s identification here under the “excited utterance” exception, the rule can only “support the admission of a hearsay statement by a child of tender years in a sexual assault case if the foundation criteria of the rule are met.” People v. Kreiner, 415 Mich. 372, 379, 329 N.W.2d 716, 720 (1982). The State has conceded correctly that they are not present in this case.

¶11The State now urges us to adopt the theory codified in Federal Rules of Evidence 803(24) and 804(b)(5), the residual or catchall exceptions to the hearsay rule. These rules, carrying the same numbers, are now incorporated in the Iowa Rules of Evidence, but had not been adopted at the time of defendant’s trial. Both allow the court to admit hearsay if it is contained in

[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.1

¶12We note, initially, that this court previously has declined to apply a federal rule involving out-of-court identification to an Iowa criminal case, see State v. Holmes, 325 N.W.2d 114, 116 (Iowa 1982). One reason given in Holmes was that thé rule in question had not “enjoyed consistent legislative support.” Id.

¶13The residual hearsay exceptions have a similarly checkered legislative history, and *14although they have now been adopted in Iowa, it is important to note the Congressional admonition that:

It is intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in Rules 803 and 804(b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions.

¶1428 U.S.C.A. Rule 803, Historical Note at 583. See also United States v. Cain, 587 F.2d 678, 681 (5th Cir.1979); United States v. Bailey, 581 F.2d 341, 346 (3d Cir.1978). In fact, according to one commentator, the listing of specific exceptions which precedes rule 803(24) was prompted by fears that the open-ended approach would “unduly minimize the predictability of rulings at trial, increase the hazards of trial preparation and give too great a measure of discretion to the trial judge.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence 803(24)[01] at 803-286 (1981).

¶15However, even if we were to hold that the new Iowa rule was applicable to defendant’s trial, the State’s case would not be helped by that holding. Before hearsay evidence can be admitted pursuant to the rule, the trial court must determine that the conditions of the rule are met. This requires five specific findings by the trial judge (trustworthiness, materiality, necessity, notice, and service of the interests of justice). These findings “should be made explicitly on the record,” 4 J. Weinstein, supra, at 803-290. Clearly, this was not done here, and the trial court’s admission of the identification as an excited utterance will not substitute for the detailed weighing and balancing required to satisfy the residual exceptions’ exacting specifications.

¶16Furthermore, the “guarantees of trustworthiness” that foundation admission under the rule are lacking here. Although there is substantial authority for the proposition that children are by nature innocent and inherently trustworthy, almost all of these cases are based on the excited utterance exception. In the overwhelming majority of these cases, a distressed child has blurted out to his or her parent a garbled story of sexual abuse. The undoubted reliability of these statements comes not only from the child’s evident distress but also from the childlike nature of the narrative, see United States v. Nick, 604 F.2d 1199, 1201 (9th Cir.1979) (“The child’s terminology has the ring of verity and is entirely appropriate for a child of tender years.”); State v. Bloomstrom, 12 Wash.App. 416, 419-20, 529 P.2d 1124, 1126 (1974) (“nature of the [child’s] description tends to lend authenticity”), and the inability of a child to concoct a story based on the unknown world of sexual experience. See People in Interest of O.E.P., 654 P.2d 312, 318 (Colo.1982) (“A child ... is hardly adept at the type of reasoned reflection necessary to concoct a false story relating to a bizarre sexual experience.”); State v. Posten, 302 N.W.2d 638, 640 (Minn.1981) (finding it “highly unlikely that a six year old would have the capacity to concoct a story like this”). As the court explained in State v. Padilla, 110 Wis.2d 414, 427, 329 N.W.2d 263, 270 (1982), “the young victim’s account of the present sexual assault must be true because the victim can have no other source for the considerable knowledge of the details of sexual intercourse.” The foreign acts, in effect, speak through the child victim because his or her knowledge of them suggests a previous firsthand experience with sex.

¶17It is, in fact, exactly this rationale which permits the introduction of this victim’s statements to his mother and her friend, placing the assault in defendant’s apartment. However, the boy’s later identification of the photograph contained no such indicia of reliability. In making it, he was not showing a forced awareness of a realm of experience ordinarily hidden from young children; he was merely responding with a single gesture to a very ordinary and narrowly focused question. Indeed, the identification, made at the behest of a foreign *15authority figure and in response to a very specific question, partakes far more of the character of testimony at trial than it does of the character of an excited utterance. And, although a finding of incompetence to testify relates primarily to a potential witness’s understanding of the oath, it also suggests a lack of either the maturity or the mental capacity required to answer questions truthfully. Where there is nothing else to indicate a propensity either for truth telling or for the truthfulness of a particular statement, that statement cannot be admitted.

¶18There was, of course, no opportunity for defense counsel to question the victim’s identification through cross-examination, although one commentator on the federal rules has stated that hearsay evidence should be allowed under rule 803(24) only if “the evidence is of a kind where cross-examination would not enhance reliability.” 4 J. Weinstein, supra, at 804-122. The importance of cross-examination when dealing with identification testimony is underscored by Federal Rule of Evidence 801(d)(1)(c), now adopted in the Iowa Rules of Evidence and assigned the same number. This rule removes a statement of prior identification from the realm of hearsay altogether if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.” (Emphasis added.)

¶19Possibly following this rationale, several courts do allow the admission of out-of-court identifications when the out-of-court identifier testifies at trial and is available for cross-examination. See People v. Gould, 54 Cal.2d 621, 626, 354 P.2d 865, 867, 7 Cal.Rptr. 273, 275 (1960); Rice v. United States, 437 A.2d 582, 583 (D.C.1981); State v. Lasley, 306 Minn. 224, 228, 236 N.W.2d 604, 607 (1975), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796 (1977); Fells v. State, 345 So.2d 618, 622 (Miss.1977). However, the overwhelming majority of jurisdictions do not admit out-of-court identifications when the declarant does not testify and is not available for cross-examination. See People v. Howard, 198 Colo. 317, 320, 599 P.2d 899, 901 (1979); Knight v. State, 373 So.2d 52, 53 (Fla.Dist.Ct.App.1979), cert. denied, 385 So.2d 761 (Fla.1980); People v. White, 33 Ill.App.3d 523, 530, 338 N.E.2d 81, 87 (1975); Preston v. Commonwealth, 406 S.W.2d 398, 404 (Ky.1966), cert. denied, 386 U.S. 920, 87 S.Ct. 886, 17 L.Ed.2d 792 (1967); State v. Arbuthnot, 367 So.2d 296, 298 (La.1979); State v. Williams, 598 S.W.2d 830, 833 (Tenn.Crim.App.1980) (exclusion based on confrontation, not hearsay grounds). But see State v. Simmons, 52 N.J. 538, 247 A.2d 313 (1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969) (incompetent victim’s out-of-court identification of defendant held reliable because of her extreme and spontaneous agitation during the showup). See also Annot., 71 A.L.R.2d 449, 482 (1960).

¶20Because we believe that “the weight of authority and the best judicial reasoning requires the exclusion of such evidence,” People v. Howard, 198 Colo. at 320, 599 P.2d at 902, we now hold that the residual hearsay exceptions ordinarily cannot be used to admit evidence of an out-of-court identification when the identifying declarant does not testify at trial and is not available for cross-examination. Thus, the evidence showing the victim’s identification of the defendant should not have been admitted. Because we have decided that the identification is inadmissible hearsay, we need not reach the problem of defendant’s sixth amendment right to confront the out-of-court witness against him, see State v. Williams, 598 S.W.2d at 833.

¶21The admission of hearsay is presumed to be prejudicial error unless the contrary is affirmatively established. State v. Webb, 309 N.W.2d 404, 411 (Iowa 1981); State v. Horn, 282 N.W.2d 717, 724 (Iowa 1979). In State v. Galvan, 297 N.W.2d 344 (Iowa 1980), we approved the admission of one non-verbal communication by a two-year-old witness, but refused to find a second, less dramatic communication merely cumulative, or “to speculate on the likelihood that the jury would ignore the evidence,” id. at 348. See also People v. *16Prophet, 101 Mich.App. 618, 624, 300 N.W.2d 652, 655 (1980) (conviction reversed because of the extreme prejudice which attaches when the hearsay identification testimony is given by a policeman).

¶22We, too, refuse to speculate on the effect of the officer’s identification testimony. We therefore reverse defendant’s conviction. We briefly treat the remaining issues to guide court and counsel in the new trial upon remand.

¶23II. Admissibility of Defendant’s Statements to Police.

¶24Defendant argues his statements to the police should have been suppressed on Miranda and general voluntariness grounds, as well as under the exclusionary rule announced by this court in State v. McAteer, 290 N.W.2d 924 (Iowa 1980) (telephone call to family and lawyer). Miranda, however, applies only when a defendant is in custody. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977); Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966); State v. Cook, 330 N.W.2d 306, 311-13 (Iowa 1983); Bizzett v. Brewer, 262 N.W.2d 273, 277-78 (Iowa 1978). On the record before us, we find defendant was not in custody when his interrogation occurred. He accompanied officers to the police station voluntarily and was at no time subjected to either physical or verbal restraint. He was left entirely alone at various points during his interview, and he believed, correctly, that he was free to leave whenever he chose. Because the police did not so restrict defendant’s freedom as to render him in custody, neither Mirandawarnings nor the procedures outlined in McAteerwere required.

¶25Defendant’s statements to the police therefore were admissible as long as they were voluntarily made. After reviewing the totality of the circumstances as we are constitutionally required to do, see State v. Whitsel, 339 N.W.2d 149, 153 (Iowa 1983); State v. Hodges, 326 N.W.2d 345, 347 (Iowa 1982), we find that the State has met its burden of proof on this issue. Although defendant is mentally deficient, this mental subnormality is not, by itself, enough to render him incapable of making a voluntary statement. See State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976); State v. Connor, 241 N.W.2d 447, 454 (Iowa 1976); State v. Winfrey, 221 N.W.2d 269, 273 (Iowa 1974); State v. Fetters, 202 N.W.2d 84, 88-90 (Iowa 1972). Defendant was questioned on an intermittent basis for two and one-half hours. The questioning took place during normal waking hours, and was done in a part of the police station with which the defendant was familiar. Only one officer confronted defendant, and that officer took pains to advise him of his constitutional rights. Finally, defendant convincingly demonstrated his understanding of the police proceedings and his willingness to participate in them during his suppression hearing and trial. There was no error in the admission of his statement to the police.

¶26Defendant asserts it was reversible error for the court to permit the police officer’s testimony that defendant repeatedly stated “if he [defendant] admitted to raping a child that he would be sent to the penitentiary.” Defendant variously objected to the question on the ground the answer (which was before the court through an in-chambers offer) would be hearsay, and not an admission, and its probative value would be outweighed by its prejudice to the defendant. In his appellate brief defendant contends that only a speculative inference would support the testimony as an admission2 and that any probative value of his statements was outweighed by the resulting prejudice.

¶27Our rule is that evidence that has a minimum of probative quality but is highly prejudicial generally must be exclud*17ed. State v. Wallace, 259 Iowa 765, 770, 145 N.W.2d 615, 619 (1966). Balancing this equation is primarily for the trial judge, who may receive the evidence if it affords a basis for a reasonable inference on a point in issue. Id., see State v. Hickman, 337 N.W.2d 512, 515-16 (Iowa 1983); State v. Fuhrmann, 257 N.W.2d 619, 624-25 (Iowa 1977).

¶28In this case defendant’s responses to the officer’s questioning placed the victim in his apartment, partially disrobed and crying. The obvious defense contention was that nonetheless the police were unable to obtain a confession of the assault. Further, the defense was contending defendant’s statements were involuntary.

¶29It is obvious the statements reflected defendant’s awareness of his situation and the consequences of any statements made by him. In addition, it bore upon defendant’s state of mind, knowledge and motivation in his denial of sexual contact. We hold trial court rightly could have concluded the obvious relevancy of this testimony prevailed over considerations of its prejudicial impact. As throwing some light on this issue, see State v. Odem, 322 N.W.2d 43, 47 (Iowa 1982); State v. Williams, 256 N.W.2d 207, 208 (Iowa 1977); State v. McDonald, 190 N.W.2d 402, 405 (Iowa 1971); State v. Olson, 260 Iowa 311, 318-19, 149 N.W.2d 132, 136 (1967); 29 Am.Jur.2d Evidence §§ 601, 611, 646, 650 (1967).

¶30We find no error in these rulings.

¶31For the reasons provided in division I, however, we reverse and remand for new trial.

¶32REVERSED AND REMANDED.

¶35(dissenting).

¶36I respectfully dissent from division I and the result of the majority opinion. I would affirm the conviction.

¶37I. Contrary to the foreign authorities cited and the holding in division I, we have previously followed the approach taken by the majority of courts that “although a child is incompetent to testify, testimony as to his or her spontaneous declarations or res gestae statement is nevertheless admissible.” Annot., 15 A.L.R.4th 1043, 1047 (1982).

¶38In State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980), we said:

[T]he question [of admissibility of hearsay testimony] is not controlled by the fact that the witness’s daughter was undoubtedly not competent to take an oath as a witness. The authorities make it clear that admissibility in such cases does not turn on the competence of the child to take the oath, but on the spontaneity of the utterance or act described.

¶39In State v. Haines, 259 N.W.2d 806, 810 (Iowa 1977), in response to defendant’s questioning the admissibility of hearsay testimony on the grounds that the out-of-court statements were made by a two and one-half year old child who did not testify and was not found by the trial court to be competent to testify, we said:

[NJormally the competency of the declar-ant is not a factor in determining whether hearsay testimony comes under the res gestae exception. We adhere to the view that even though the declarant was a very young child, the trial court was not required to make further inquiry as to the admissibility of the hearsay testimony. Other courts have allowed out-of-court declarations of young children to come into the record under the res ges-tae doctrine without meeting any further requirements.

¶40(Citations omitted.)

¶41I agree with the astute observation made by the court in United States v. Nick, 604 F.2d 1199, 1202 (9th Cir.1979), where it said in response to the defendant’s contention that the admission of a witness’s hearsay testimony, concerning the out-of-court statements made by a child who was not subject to cross-examination because *18deemed to be an incompetent witness, was in violation of the Confrontation Clause:

If the sole method by which the confrontation clause could be satisfied was the opportunity to cross-examine the declar-ant in court either at the time the statement was made or at the time the statement was offered, the infant’s statement could never be received in evidence.

¶42Therefore, I would not exclude the out-of-court identification of the defendant by the five-year-old victim just because the victim was precluded by court ruling from testifying.

¶43II. I also believe the evidence of the out-of-court photo array identification of the defendant by the five-year-old victim was properly admissible within the trial court’s discretion as an “excited utterance” exception to the hearsay rule. See State v. Ogilvie, 310 N.W.2d 192, 196 (Iowa 1981) (adopted “excited utterance” exception to hearsay rule as defined by Fed.R.Evid. 803(2) and rejected the use of “res gestae” terminology when used to describe a situation which comes within the excited utterance exception); Iowa R.Evid. 803(2) (adopted Fed.R.Evid. 803(2) to be effective July 1, 1983).

¶44The “excited utterance” exception is defined to mean: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ogilvie, 310 N.W.2d at 196; see Iowa R.Evid. 803(2). The trial court has discretion to determine whether a statement is induced by stress of excitement caused by the startling event or condition. Id.

¶45A comprehensive analysis of the standards to be applied in determining whether statements made by a child sexual abuse victim are within the excited utterance exception is provided in United States v. Iron Shell, 633 F.2d 77, 85-86 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981), wherein the court stated:

The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of [the excited utterance exception], Nor is it controlling that [the child’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the [excited utterance] exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that [the excited utterance exception] applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation .... We note at this point that our role is somewhat limited. We are not to substitute our judgment for that of the district court. We are only to reverse where we find that the admission of this testimony constituted an abuse of discretion.

¶46(Citations omitted.)

¶47The events in Iron Shellcentered around the sexual assault of a nine-year-old girl. Shortly after the assault took place, a time approximated to be somewhere between forty-five minutes and one hour, fifteen minutes, the child was asked a single question by a law enforcement officer: “What happened?” In response, the child made statements concerning the actions of the defendant that were subsequently recounted at trial by the officer. The officer also testified that the child was not hysterical and was not crying during the time when her statements were made. The court held, based on the above standards, that the district court did not abuse its discretion in admitting the officer’s testimony concerning the child’s out-of-court statements even though there was testimony that “the declarant was calm and unexcited.” The court stated in summary:

We find that in these circumstances considering the surprise of the assault, its shocking nature and the age of the de-clarant, it was not an abuse of discretion *19for the trial court to find that [the child] was still under the stress of the attack when she spoke to [the officer]. It was not unreasonable, in this case, to find that [the child] was in a state of continuous excitement from the time of the assault.

¶48Id. at 86.

¶49Other courts have been willing to give a broad and liberal interpretation to the “excited utterance” exception when dealing with statements made by young children. See State v. Padilla, 110 Wis.2d 414, 419, 329 N.W.2d 263, 266 (Wis.Ct.App.1982). The court in Padillabased its support of a liberal “excited utterance” exception for statements made by young children on the following observations:

In this special circumstance, the court has held that stress is present even some time after the triggering event. This ascertainment of prolonged stress is born of three observations. First, a child is apt to repress the incident. Second, it is often unlikely that a child will report this kind of highly stressful incident to anyone but the mother. Third, the characteristics of young children work to produce declarations “free of conscious fabrication” for a longer period after the incident than with adults. It is unlikely a young child will review the incident and calculate the effect of the statement.

¶50Id.(Citations omitted.)

¶51Relying on this liberal standard, Wisconsin cases have held out-of-court statements made by child sexual abuse victims to be admissible even though the statements have not been made immediately following the incident. The court in Padillaheld that the passage of a three-day period between the alleged assault and the ten-year-old’s reporting of the incident to her mother did not take her statements out of the excited utterance exception to the hearsay rule because “[i]n the case of young assault victims, the spontaneity is observed to occur at longer time periods from the event than is normally the case with adults.” See also State ex rel. Harris v. Schmidt, 69 Wis.2d 668, 230 N.W.2d 890 (1975); Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974); Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971).

¶52There exists case authority from this court that supports applying a more liberal interpretation of the excited utterance exception to statements made by young children who are victims of sexual assault. In State v. Galvan, 297 N.W.2d at 347, we found no abuse of trial court’s discretion in admitting the hearsay testimony of a witness concerning the unique behavior of her two-year-old daughter which she had observed two days after the date of the event in question. We said:

[The child’s behavior] appears in every way to have been spontaneous and unsolicited. The passage of two days, especially for so young a child, leaves it close enough to the transaction so that a trial court could have believed any presumption of fabrication was excluded.

¶53Id.(Emphasis added.)

¶54Additional authority in support of bringing the child’s out-of-court identification within the “excited utterance” exception may be found in United States v. Nick, 604 F.2d at 1202. In Nick, a three-year-old boy was sexually assaulted by his babysitter. When the mother arrived to pick up the boy, he was asleep with his pants unzipped. After bringing the child home, the mother observed what appeared to be semen on the child’s clothing. She then asked the child if the babysitter had done anything to him. The child responded that “[the babysitter] stuck his tutu in my butt.” The child also stated that the babysitter had hurt him and made him cry. The court upheld the district court’s admission of the mother’s testimony concerning the out-of-court statements made by the child over the hearsay objection entered by the defendant on the grounds that such statements were within the excited utterance exception to the hearsay rule in Rule 803(2) of the Federal Rules of Evidence. The court found that the record amply sustained the district court’s conclusion that the child was “suffering distress from the assault when he told his mother what happened and identified [the *20babysitter] as the perpetrator of the offense.” Id. at 1202. See also In the Interest of O.E.P., 654 P.2d 312 (Colo.1982) (statements made by four-year-old to foster mother and social worker concerning sexual abuse by her mother were admissible as an excited utterance exception even though made the day following the alleged sexual abuse); People v. Woodward, 21 Mich.App. 549, 175 N.W.2d 842 (1970) (six-year-old sodomy victim’s statements made in a hospital shortly after the attack and in response to policewoman’s questions were admissible because they were deemed to be within the res gestae of the offense); State v. Roy, 214 Neb. 204, 333 N.W.2d 398 (1983) (two-year-old sexual abuse victim’s answer of “daddy” made in response to emergency room nurse’s question: “Who hurt you?”, was admissible as an excited utterance exception); State v. Simmons, 52 N.J. 538, 247 A.2d 313 (1968) (police officer’s testimony concerning an incompetent witness’s extra-judicial identification, made from her hospital bed, was not inadmissible hearsay), cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969); Johnston v. Ohls, 76 Wash.2d 398, 457 P.2d 194 (1969) (police officer’s testimony concerning an extra-judicial statement made by a four-year-old child — who was “presumably not competent to testify” — from her hospital bed in the emergency room, was not inadmissible hearsay because the declaration came within the res gestae exception to the hearsay rule); State v. Bloomstrom, 12 Wash.App. 416, 529 P.2d 1124 (1974) (statements made by an eight-year-old sexual abuse victim to her mother shortly after having been brought home by the defendant were deemed admissible as an excited utterance exception). See generally Annot., 89 A.L.R.3d 102 (1979).

¶55Relying on these authorities, I fail to discern how the trial court’s admission of the hearsay testimony concerning the child’s out-of-court identification of the defendant can be viewed as an abuse of its discretion. The identification was made by the child victim in the hospital only a short time after the attack had occurred. It is self evident that the physical and emotional state of the child was not the best or he would not have been placed in the hospital after the attack upon him. If the passage of two days is “close enough to the transaction so that the trial court could have believed any presumption of fabrication was excluded,” State v. Galvan, 297 N.W.2d at 347, and if a child’s statements made in response to his mother’s questioning, and made after being awakened from sleeping, are deemed to be “excited utterances,” United States v. Nick, 604 F.2d at 1202, then, a fortiori, the child victim’s identification in this case, made a short time following the attack while in the hospital, should be permitted to come within the “excited utterance” exception to the hearsay rule.

¶56III. I believe the State concedes too much in agreeing, on appeal, that the out-of-court identification evidence was not an “excited utterance.” The trial court determined that it was within the excited utterance exception, and I agree.

¶57In Newmire v. Maxwell, 161 N.W.2d 74, 80 (Iowa 1968), we stated:

We are firmly committed to the rule that ... we must affirm the trial court if any sufficient basis appears therefor in the record, even though the ruling was placed upon a different ground. In the ordinary appeal the burden rests upon the appellant to demonstrate error and this is not done if the record shows proper support for the ruling complained of.

Where a learned judge’s decision is right for the wrong reason it is nevertheless right.

The rules just stated apply even though the party who was successful in the trial court does not seek to uphold the ruling on the ground suggested.

¶58(Citations omitted.) (Emphasis added.) See also Oxley v. Oxley, 262 N.W.2d 144, 151 (Iowa 1978).

¶59It is only logical to reason that if we would uphold a ruling of a trial court for a reason other than the one relied on by the trial court, we should be able to affirm the ruling for the same reason relied on by *21the trial court even though the appellee no longer relies on the trial court’s reasoning. I do not believe we are precluded from considering the validity of the trial court’s ruling, and its basis therefore, just because the appellee abandons it on appeal.

¶60Because the trial court was correct in allowing the identification evidence, I would affirm.