In criminal proceedings, judges typically don't let someone else testify as to what someone else has told them. It's called hearsay.
There is an exception, however. When judges determine that what was said was an "excited utterance" that statement is often allowed.
Excited utterances must take place after a startling event, they must be said soon after that event and the words must relate to that event.
Deputy County Attorney Fran Maffetone recently tried to convince a judge that statements a little boy made to three different people back in March fit the excited utterance scenario.
The judge agreed in two of the instances.
According to court testimony and documents, the father of an 11-year-old boy with Down Syndrome woke up around 1 a.m. March 1 after hearing the boy moving around.
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He found the boy in the bathroom changing out of his PJ bottoms and into a pair of swimming trunks. The boy told his dad that a bad man had come into his room and molested him.
Initially, the dad didn't believe the boy but later found muddy footprints in the room and called the sheriff's department.
The boy made similar statements to the first deputy on the scene and later to the lead detective on the case.
Jeffrey Sexton was arrested and charged with burglary, child molestation and sexual conduct with a child.
It turns out a deputy had seen him parked outside the boy's house sometime before the 911 call. When he was brought in for questioning, deputies discovered he was wearing underwear that matched the description of the underwear worn by the "bad man."
Sexton's DNA was also found on a beer can found next to the boy's house.
Sexton's attorney, John Sando, said none of the boy's statements should be allowed in because of timing. In each instance, Sexton said the boy had time to reflect on what he was going to say, so they weren't excited utterances.
The boy's dad went to bed a few hours before his son woke him up, so it's unclear when the alleged molestation actually occurred, Sando argued.
There was also a delay between the 911 call and the time the deputy arrived and even more time between the call and the detective's interview with the boy.
The dad and the first deputy on the scene described the boy as being very upset, agitated and talkative even hours after the alleged event. The detective could only recall that the boy became sad after noticing his dad was upset.
Santa Cruz County Superior Court Judge James Soto is allowing the statements the boy made to the deputy and to his dad, but not those he made to the detective.
Judge Soto is handling the case because the boy is related to someone who works within Pima County Superior Court.
Sexton's trial is expected to begin Feb. 1.
