Appeals court hears dispute over excluded Department of Children's Services records in Harper appeal

An appellate panel heard competing arguments over whether the trial court improperly excluded Department of Children's Services (DCS) records in the appeal of Miss Harper's sexual-assault conviction.

Ben Russ, attorney for the defendant Miss Harper, told the court he planned to reserve three minutes of rebuttal and focused his argument on two issues: whether the trial court erred by treating DCS materials as untimely under Rule 4.12 and whether the records were improperly excluded as irrelevant under Rule 401. "She didn't have access to this information 10 days prior to trial," Russ said, arguing the records were delivered to the trial court under seal and that defense counsel therefore could not meet the ordinary pretrial filing deadline.

Russ said the DCS files include multiple referrals to the victim's household over several years, including a 2013 referral involving a man identified in the records as Adrian Dowell, a registered offender. He argued those prior contacts, even if some were ultimately dismissed by DCS, could show an alternate source for the juvenile accuser's knowledge of sexual matters and thus were appropriate for cross-examination and jury consideration. "If there is an alternate reason that JG is making this allegation," Russ argued, "exploring it on cross-examination . . . would be critical." He also described evidence in the record suggesting an aunt had threatened to report the family to DCS, which the defense contends could have provided a motive for fabrication.

Ryan Davis, arguing for the state, urged the court to affirm the trial court's rulings. Davis told the panel the defense's 4.12 motion and related requests were filed during trial and therefore untimely, and he said the exception to timeliness requires due diligence by the party offering the evidence. "If the trial court has the records and counsel knows enough about the subject matter to subpoena them in the first place," Davis said, counsel should have sought access sooner, the state argued. He added that the defense did not clearly lay out how the prior DCS referrals would concretely demonstrate bias or explain the source of the victim's detailed testimony.

Davis also argued that any error would have been harmless because the record, in the state's view, includes two confessions, the victim's testimony and a forensic interview that together support the verdict. "It was harmless because we have two confessions, we have the victim's testimony, and we have the forensic interview," he said.

Russ acknowledged he had not been the trial attorney and said some matters could have been presented differently at trial, but reiterated that under a relevancy standard the DCS material met the low bar of Rule 401 and could be admissible to show possible sources of the victim's knowledge.

The panel did not announce a decision at the argument. The court thanked counsel for their briefs and arguments and moved on to the next case.