People v. Raley (2 Cal. 4th 870, 1992)

Opinion

MOSK, J.

Defendant David Allen Raley was convicted by a jury of first degree murder (Pen. Code, § 187) of Jeanine G., with personal use of a deadly weapon (§ 12022, subd. (b)). The jury found true two special circumstance allegations: murder in the commission of a kidnapping (§ 190.2, subd. (a)(17)(ii)), and torture murder (§ 190.2, subd. (a)(18)). The jury also found defendant guilty of attempted murder of Laurie M. (§§ 664,187), and found true allegations defendant personally used a deadly weapon and inflicted great bodily injury. (§§ 12022, subd. (b), 12022.7.) In addition, the jury convicted defendant of attempted oral copulation by force against Jeanine G. (§§ 664, 288a, subd. (c)), with use of a deadly weapon (§ 12022.7); oral copulation by force against Laurie M. (§ 288a, subd. (c)), with use of a deadly weapon and great bodily injury (§§ 12022, subd. (b), 12022.7); and two counts of kidnapping (§ 207) with use of a deadly weapon and infliction of great bodily injury (§§ 12022, subd. (b), 12022.7).

At the conclusion of the first penalty trial, the jury was unable to reach a verdict. At the conclusion of the second penalty trial, the jury fixed the penalty at d^ath. This appeal is automatic. We conclude that we should reverse the conviction for attempted oral copulation, but otherwise affirm the judgment.

I. Facts

A. Guilt Phase

1. Prosecution Case

Defendant was a security guard who worked at the Carolands mansion in Hillsborough. The mansion was not open to the public, but defendant gave unauthorized tours of the place occasionally to young people, usually high school age girls. Witnesses who had taken these tours said defendant asked them to go into rooms and scream, to demonstrate how soundproof the place was. His tours were marked by some salacious commentary. He insisted that one young woman go into a safe, and commented to her that he could kill someone in the basement and no one would hear any screams.

On Saturday, February 5,1985, Laurie M., age 17, and Jeanine G., age 16, came to look at the mansion. Jeanine asked if they could tour the place, and defendant agreed on condition the young women park their car where it could not be seen. He took them on a tour, and commented that sometimes guards received sexual favors in exchange for tours. As the tour concluded, defendant said that police dogs had arrived, and that they should hide or he would lose his job. He led them to a safe in the basement. The young women begged not to be hidden there, but defendant assured them he would not close the door. Once the two were inside, he did close the door. After about five minutes, they heard him again, calling out Laurie’s name in a teasing, sing-song voice. Defendant announced he would let the young women out only if they agreed to remove their clothes. He directed them to throw out their clothes as he opened the safe, then he handcuffed their hands behind their backs as they emerged in their underwear. He had a large knife in his hands, and told them they would have to “fool around” with him for five minutes, then he would release them.

He took them to a workroom where a rope was already connected to the leg of a bench. He tied the rope to Laurie’s handcuffs. He led Jeanine away, and Laurie heard her scream. Defendant and Jeanine returned after about 15 minutes. She was dressed, and appeared frightened. Her lips and face were purple, possibly with cold, and the back of defendant’s pants was dusty. Defendant gave his coat to Jeanine, tied her to the workbench, and then led Laurie to a kitchen. He had a knife on a table nearby and a club hanging from his belt. He ordered Laurie to remove her underclothing, and directed her to “kiss me and like it.” She tried, but was unable to comply. Defendant told her to get on her knees, and to unbuckle his pants. He told her to “play with him” and “suck him.” She touched her mouth to his penis and gagged, and said she could not do it. He directed her to “play with him,” and she manually manipulated him until he ejaculated. He asked to “come inside” and she refused. He told her to get dressed, and said he would let both of them go, but would kill them if they told anyone what had happened.

Defendant walked with the two young women to a door near the safe, saying he would let them go. Jeanine said she wanted to go first because she had the keys to the car. Defendant handcuffed Laurie to the door, and left with Jeanine. Laurie heard bumping and running noises, and the two ran back to her, defendant gripping the young woman’s arm. Defendant told Jeanine to wait there. She was fearful and told Laurie that defendant had hit her with the club. Defendant returned and led Jeanine away. There were more bumping noises, and the sound of Jeanine’s screams lasted for 15 minutes. Then there was a dragging sound.

Defendant returned for Laurie and pulled her toward a dark hallway. She resisted, and he stabbed her in the abdomen. She fell, and they struggled. He stabbed her 35 times, and hit her with his club. He left momentarily and returned with a carpet, into which he rolled her. He dragged her out of the mansion and put her in the trunk of his car, where Jeanine already was, bloody, with her hands tied behind her back. Laurie thought they remained in the trunk for two hours before the car moved.

During the period of this ordeal in the mansion, a police officer who was acquainted with defendant arrived at the mansion to discuss defendant’s purchase of a citizens band radio. He found the gates wired shut, a circumstance he had never seen before in his patrol of the area. The front door of the mansion was locked. The officer sounded defendant’s car horn. Two or three minutes later defendant appeared. He agreed to pay a deposit for the radio, but appeared very nervous and did not want to talk.

Defendant’s shift ended at 4 p.m. His supervisor arrived at the mansion at 5:15, and defendant told him he could not fill in for his tardy relief any longer, as he had an appointment with his father at 6 p.m.

Laurie testified that the two women journeyed in the trunk of defendant’s car for an hour or so. They arrived in the garage of the home defendant shared with his father and sister, and defendant opened the trunk. He rubbed Laurie’s arm, and granted her request to get out to stretch her legs. He did the same for Jeanine. When they complained of the cold, he gave them a sleeping bag or blanket. He cleaned the blood from the trunk. Laurie tried to converse with him, but he was unresponsive. She asked what he would do with them, but received no reply. She asked to be taken to a hospital, and said she would never tell who had injured them. He gave her what she described as a “death stare,” a look of hatred. Defendant went out and returned with a rifle, which he pointed at Laurie, commenting that if she were not silent, his friend “Bob” would have to kill her.

There were sounds of voices, and defendant hurriedly threw the young women back in the trunk and told them “Bob” had arrived, and they should be quiet and he would try to convince “Bob” not to kill them.

From the point of view of the other residents of the home, the evening was ordinary. Defendant emerged from the garage a little after 7 p.m., and refused dinner on the ground that he wasn’t feeling well. He joined his sister in watching television, and in a game of Monopoly that lasted until about 11 p.m. He commented to his father, who returned home after midnight, that he had cleaned out the garage. Some friends drove up to show him their new car stereo. He sat with them in their car, complaining he had eaten a bad doughnut and was not feeling well. He moved his car from the garage to a spot across the street.

During the night, Laurie awoke to find the car moving. Defendant stopped the car several times, even opening the trunk once. Laurie asked if he had taken them to a lake, and defendant said, “No, but it’s close enough.” Then he beat her around the head and neck with his club 10 or 11 times. He threw her, still tied bound, down a ravine. He kicked her further down the ravine, saying, “here, be with your friend.” She rolled down next to Jeanine. At daylight, Laurie crawled up the hill and flagged down help. One of her rescuers thought of applying first aid, but found her wounds too numerous and severe. One of the men, Mr. Masinter, reported that as he crouched near Jeanine, they could hear onlookers mention the word rape. She became distraught, explaining that defendant had not raped them, but had made them take off their clothes and “fool around” with him.

Emergency room treatment was ineffective for Jeanine: she bled to death from her many wounds and died on an operating table. An autopsy disclosed 41 stab wounds and a skull fracture. One treating doctor was of the opinion that a laceration to Jeanine’s neck may have caused air to be aspirated into the blood vessels. He stated the cause of death as bleeding and exposure. Laurie suffered a punctured abdomen and lacerations to the head, chest and thighs, as well as contusions to the head.

2. Defense Case

Defendant presented evidence that he was not the only security guard at Carolands mansion who gave unauthorized tours to young people, and he also presented evidence that his own tours sometimes included boys.

He also presented the testimony of a physician, expert in treatment of shock, who was of the opinion that Jeanine had received improper care in the emergency room, that she had a 70 percent chance of survival when she was admitted, and that if she had been treated better for hypothermia she might well have survived. He was of the opinion that the treating physician was confused and “in over his head.”

B. Penalty Phase

1. Prosecution Case

At the retrial of the penalty phase, in addition to offering evidence regarding the charged crimes, the prosecution presented evidence of three incidents that had occurred when defendant was a teenager. Two witnesses alleged that he had committed lewd acts with them when they were small children, and another recounted an incident in which defendant had locked her in a camper and made her undress while he took photographs of her and another child.

There was also evidence that defendant’s parents assured neighbors who complained about these incidents that defendant would receive psychiatric treatment. After three appointments, defendant’s father called off the treatment, saying there was no need for it.

Laurie also testified that she still had a useless finger that defendant had fractured, and that she had a scar on her head and was dizzy at times. She said defendant never expressed any remorse to her.

2. Defense Case

Several young people testified regarding uneventful tours defendant had given them of the Carolands mansion, and one testified about another security guard who had frightened her and invited her and her group to return for an evening to “party.”

Paramedics testified that both women were conscious and alert when they were rescued, and that in fact, Jeanine’s blood pressure was better than that of Laurie.

Two women testified that defendant was kind to women and protective of them, that he was never angry or crude, but always gentle. They said he was a caring, quiet, lonely person.

Defendant’s sister testified that defendant’s mother was an alcoholic who had been emotionally and physically abusive to him. Defendant’s father confirmed this. A police officer testified that defendant had cooperated with the police and admitted culpability voluntarily. A tape of defendant’s statement to the police was played, and it revealed how distraught defendant was at what he had done.

Defendant had no prior misdemeanor or felony convictions.

3. Rebuttal

The prosecutor called several witnesses in rebuttal who testified that defendant pestered women, followed them home, and pressed unwanted attention on them. There was also evidence that he had the school transcripts of several classmates from high school. In addition, a former neighbor of defendant’s family testified that she thought defendant had good parents and that she did not believe his mother was a heavy drinker.

Defendant’s mother testified that she was never violent or verbally abusive with her children, that she was not an alcoholic, and that defendant’s father and sister were liars.

Another witness said she was friendly with defendant, and that after his arrest he said he could not remember what happened, that another person was involved, and that he would plead insanity and be out of jail in six months. He told her that Jeanine and Laurie brought up sex, and that he then “went crazy.” He later said he knew he had committed the crime, that he wanted to kill himself and that he believed he must have been crazy to have committed the crime.

II. Discussion

A. Issues Affecting the Trial of Guilt

1. Sufficiency of the Evidence

a. Murder

The prosecution proceeded upon alternate theories that the murder of Jeanine was premeditated and that it was a torture murder. According to defendant, neither theory was proved.

Having reviewed the entire record in the light most favorable to respondent, we conclude that a rational trier of fact could have found the essential elements of each theory of first degree murder beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].)

We determine whether there was evidence of planning, motive or method that demonstrates a premeditated murder. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942]; see also People v. Pensinger (1991) 52 Cal.3d 1210, 1237 [278 Cal.Rptr. 640, 805 P.2d 899]; People v. Hernandez (1988) 47 Cal.3d 315, 349-350 [253 Cal.Rptr. 199, 763 P.2d 1289].) Typically we sustain verdicts of first degree murder when there is evidence of planning, motive and method; when evidence of all three types is not present, we require “either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.” (People v. Pensinger, supra, 52 Cal.3d at p. 1237; see also People v. Edwards (1991) 54 Cal.3d 787, 813-814 [1 Cal.Rptr.2d 696, 819 P.2d 436].)

Our review of the record discloses evidence of all three types. With respect to evidence of planning, the record reveals that days before the killing defendant remarked to Ms. Klatt that it would be possible to kill someone in the basement of Carolands mansion and “no one would ever know.” His experiments with other young girls who visited the mansion informed him that the safe was quite soundproof. He was supplied with rope, handcuffs and the murder weapon when he removed his victims from the safe, and when he took them from the safe into an adjoining room, Laurie noticed that there was a rope already tied to the bench, ready for her bondage.

Even more important, in our view, is the evidence of defendant’s conduct after he had taken the young women to his home. Defendant had many hours in which to contemplate and plan while his victims bled. His threat that “Bob” might kill them could be understood to refer to his own plans. His journey to dispose of his victims’ bodies included several stops which the jury could infer were to allow him to select the most remote spot where the young women would not be rescued and subsequently identify him. His plan did not include any result but death; when Laurie begged to be taken to a hospital, he gave what she called “the death stare.”

A rational trier of fact could readily conclude that defendant’s motive for the killing was to avoid detection for the sexual offenses he committed against Laurie and Jeanine. (See People v. Hernandez, supra, 47 Cal.3d at p. 350; People v. Haskett (1982) 30 Cal.3d 841, 850 [180 Cal.Rptr. 640, 640 P.2d 776].)

Defendant claims that the manner of the killing did not show premeditation. He argues that the stab wounds were not such that would necessarily cause death, that he cared for the two women while he had them in his garage, and that when he dumped them down the ravine, they were still alive. He explains the knife attack as an explosion of violence that was a “ ‘mere unconsidered or rash impulse hastily executed.’ ” (People v. Anderson, supra, 70 Cal.2d at p. 27.)

The evidence supports a contrary conclusion. There was no evidence that the victims provoked defendant (compare People v. Miller (1990) 50 Cal.3d 954, 993 [269 Cal.Rptr. 492, 790 P.2d 1289]). A rational trier of fact could reject the “rash impulse” theory upon receiving evidence that after he attacked her defendant rolled Jeanine up in a rug, deposited her in the trunk of his car, and returned to inflict his second quarter-of-an-hour knife attack of the day. Evidence regarding the second attack tends to contradict the argument that the first attack was an unconsidered explosion of violence.

Even if we were to agree that it could only be concluded the many stab wounds defendant inflicted on each woman were part of an unreflective explosion of violence, his calculated decision to let them bleed for the next 18 hours, to refuse medical attention, to beat them about the head and to dump them on a winter night into an isolated ravine supports the conclusion that he premeditated the death of Jeanine. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1023-1024 [248 Cal.Rptr. 568, 755 P.2d 1017] [premeditated murder when defendant knowingly permitted victim to bleed to death as he kept her captive in car].)

There is also sufficient evidence to support a conclusion that defendant killed with the intent to torture. “Torture murder is ‘murder committed with a wilful, deliberate and premeditated intent to inflict extreme and prolonged pain.’ ” (People v. Pensinger, supra, 52 Cal.3d at p. 1239, quoting People v. Steger (1976) 16 Cal.3d 539, 546 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206].) The culpable intent is one to cause pain for “ ‘the purpose of revenge, extortion, persuasion or for any other sadistic purpose.’ ” (People v. Wiley (1976) 18 Cal.3d 162, 168 [133 Cal.Rptr. 135, 554 P.2d 881]; see also People v. Bittaker (1989) 48 Cal.3d 1046, 1101 [259 Cal.Rptr. 630, 774 P.2d 659]; People v. Davenport (1985) 41 Cal.3d 247, 267 [221 Cal.Rptr. 794, 710 P.2d 861].)

The intent to inflict extreme and prolonged pain may be inferred from the circumstances of the crime. (People v. Morales (1989) 48 Cal.3d 527, 559 [257 Cal.Rptr. 64, 770 P.2d 244].) On the other hand, “we have cautioned against giving undue weight to the severity of the victim’s wounds, as horrible wounds may be as consistent with a killing in the heat of passion, in an ‘explosion of violence,’ as with the intent to inflict cruel suffering.” (People v. Pensinger, supra, 52 Cal.3d at p. 1239.)

Defendant argues that he inflicted only three serious stab wounds on Jeanine, and that they were not of a nature to cause death if left untreated. He argues that he inflicted the stab wounds in an unconsidered explosion of violence, not in a premeditated effort to cause cruel suffering. He also argues that far from intending to cause pain, he offered comfort to his victims. He points out that he allowed them to leave their underwear on when they complained of cold, lent Jeanine his jacket, was forbearing in his sexual requests, let them stretch their legs after several hours in the trunk of his car, and gave them sleeping bags when he threw them into the ravine.

We are well aware that the definition of torture murder requires proof of intent to cause pain and suffering beyond the pain of death. (People v. Steger, supra, 16 Cal.3d at pp. 543-544.) Here, during a 15-minute attack, defendant inflicted 41 knife wounds on Jeanine, while she screamed. He also inflicted a crushing blow to her skull. The jury could reasonably conclude that this series of painful injuries was calculated to cause grievous, prolonged pain. (People v. Hindmarsh (1986) 185 Cal.App.3d 334, 349 [229 Cal.Rptr. 640].) Defendant points to no evidence that Jeanine offered resistance or provocation and there was no evidence of intoxication. Thus the claim that the attack was an unpremeditated explosion of violence is unpersuasive.

We are satisfied, as we have said above, that even if a reasonable jury were to regard defendant’s knife attack on his victims as an explosion of violence, his treatment of the two women after that attack demonstrates the intent to cause severe and prolonged pain. He closed them into the trunk of his car for hours, wrapped in rugs and bleeding from multiple wounds. Jeanine was bound as well as confined. He knew that their condition was desperate: he had cleaned the blood from his car trunk and refused with ire Laurie’s request that they be taken to a hospital. He forced them to reenter the trunk, and kept them there, again for hours. He beat Laurie again and tossed both girls down a remote ravine on a winter night. The circumstantial evidence speaks not of a momentary impulse, but of an intentional infliction over many hours of grievous pain: the pain of close confinement, of loss of hope with loss of blood, of wounds left untreated and of exposure to the elements. We conclude a reasonable trier of fact could find that degree of calculated deliberation required to sustain a first degree murder verdict on a torture-murder theory.

b. Oral Copulation

Defendant argues there was insufficient evidence to sustain the conviction for attempted oral copulation of Jeanine. Again, it is our obligation to review the entire record, and drawing all reasonable inferences in favor of respondent, to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, 26 Cal.3d at p. 576.) We conclude the evidence on this count is insufficient.

Section 288a provides that oral copulation “is the act of copulating the mouth of one person with the sexual organ ... of another” and is a felony when “the act is accomplished against the victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury »»

Laurie testified that defendant told them he would not let them out of the safe where he had them confined unless they took off their clothes. He said the two young women would have to “fool around” with him for five minutes and then he would let them go. He handcuffed them both and took Jeanine away. Laurie heard a scream. Fifteen minutes later, defendant returned with Jeanine, whose face and lips were purple, apparently with cold, and who appeared frightened. Defendant had his jacket off and the seat of his pants was dusty. He took Laurie into another room, armed with the knife, and instructed her to kiss him. Then he directed her to unzip his pants and orally copulate him. She touched her mouth to his penis and gagged; thereupon he directed her to manipulate his penis manually until he ejaculated.

There was further evidence that defendant had sexually assaulted Jeanine. One of her rescuers, Michael Masinter, testified that when the dying young woman heard male voices on the road saying she had been raped, she cried for several minutes, saying that she did not want anyone to know that she had been raped. She explained through her tears that she “hadn’t really been raped. That he made them take off their clothes and fooled around with them.”

There is thus clear and substantial evidence o:f a forcible sexual attack of some kind on Jeanine and of a forcible oral copulation on Laurie. However, there is no evidence of the particular nature of the sexual assault on Jeanine, apart from an inference that because defendant committed a forcible oral copulation against Laurie, he may have attempted to do the same against her companion. Respondent argues that defendant told the young women they would have to “fool around” with him, and that he committed an act of forcible oral copulation against Laurie. From this evidence respondent infers that to defendant, “fool around” meant oral copulation. Finally, respondent would have us infer that when Jeanine told her rescuer defendant had made the women “fool around” with him, the term must have meant the same to her as respondent would have us infer it meant to defendant.

We find these layers of inference far too speculative to support the conviction of this count. Oral copulation was not the only sexual activity defendant had in mind with his second victim; “fooling around” seemed to mean several things to him. It is also speculative to conclude that Jeanine would use the term in the same restricted sense respondent claims defendant intended to convey. “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work, [<][] ... A finding of fact must be an inference drawn from evidence rather than ... a mere speculation as to probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal.3d 1, 21 [249 Cal.Rptr. 119, 756 P.2d 843].)

Evidence is sufficient to support a conviction only if it is substantial, that is, if it “ ‘reasonably inspires confidence’ ” (People v. Morris, supra, 46 Cal.3d at p. 19), and is “credible and of solid value.” (People v. Green (1980) 27 Cal.3d 1, 55 [164 Cal.Rptr. 1, 609 P.2d 468], see also People v. Jennings (1991) 53 Cal.3d 334, 364 [279 Cal.Rptr. 780, 807 P.2d 1009].) We conclude, considering the record as a whole, that it is speculative to infer because defendant committed an oral copulation on one victim, he necessarily attempted the same crime on another victim. This inference does not appear to us of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt that defendant perpetrated an attempted oral copulation, as opposed to any other forcible sexual assault, against Jeanine. It is significant, in this connection, that the jury found not true the charged special circumstance allegation that the murder occurred in the commission or attempted commission of oral copulation.

Defendant may be understood to claim that the reversal of the conviction for attempted oral copulation requires reversal of the entire guilt verdict because “the unreliable nature of the evidence undermines the deliberations as to guilt . . . .” We reject the claim. Our conclusion that the evidence was insufficient does not mean that the evidence itself was inadmissible or inherently unreliable. Our conclusion simply is that the evidence, which was independently admissible as relevant to the question of defendant’s guilt for the other charged crimes, was not of sufficient substance to support the verdict on this count. Defendant propounds no theory under which the jury would have been influenced by the attempted oral copulation verdict in reaching a verdict as to any other count. Under the circumstances, it is not reasonably probable that in the absence of the error, the result would have been more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)

2. Other Evidentiary Claims

a. Admissibility of Statement of Jeanine

As we have already noted, the court admitted into evidence the testimony of Michael Masinter recounting statements of Jeanine regarding the sexual nature of defendant’s attack on her. Masinter stayed with her in the ravine after medical help had been summoned. As they waited, they heard bystanders say something about a rape having been perpetrated. The witness said Jeanine became upset and immediately “broke down” and started to cry. She said she didn’t want anyone to know that she had been raped. He left her to tell the bystanders to be quiet. She continued to cry for about five minutes. She regained her composure somewhat, and volunteered that “she hadn’t really been raped. That he made them take off their clothes and fooled around with them.” He told her not to worry about it and tried to calm her.

Defendant renews the objections made below that the statements of Jeanine were inadmissible hearsay and that they were subject to exclusion under Evidence Code section 352 as more prejudicial than probative. He argues for the first time that the admission of this evidence violated his state and federal constitutional rights to due process and to confront the witnesses against him. We reject the constitutional arguments because no objection on these grounds was raised below. It is “the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.” (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048]; see also People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [276 Cal.Rptr. 827, 802 P.2d 330] [objection on basis of Evid. Code, § 352, does not preserve constitutional objection]; People v. Gordon (1990) 50 Cal.3d 1223, 1240, fn. 2 [270 Cal.Rptr. 451, 792 P.2d 251] [objection on basis of Evid. Code, § 1101, does not preserve constitutional objection].) We observe on the merits, however, that we have rejected similar arguments in People v. Farmer (1989) 47 Cal.3d 888, 905-906 [254 Cal.Rptr. 508, 765 P.2d 940]. (See also People v. Gallego (1990) 52 Cal.3d 115, 176 [276 Cal.Rptr. 679, 802 P.2d 169].)

Evidence Code section 1240 provides for the admission into evidence of the spontaneous utterances of unavailable declarants: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [<][] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [