State v. Timmerman

2009 UT 58
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20080206
Plaintiff and Appellee,
v.
F I L E D
Travis Dee Timmerman,
Defendant and Appellant. 	September 4, 2009
---
Third District, West Jordan
The Honorable Michele M. Christiansen
No. 071401378
Attorneys: 	Mark L. Shurtleff, Att’y Gen., J. Frederic Voros, Jr.,
Laura B. Dupaix, Asst. Att’ys Gen., for plaintiff
Richard G. Uday, Jason A. Schatz, Salt Lake City,
for defendant
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	Travis Timmerman was charged with attempted rape,
forcible sexual abuse, and assault. 	At the preliminary hearing,
the victim, Mrs. Timmerman, invoked her spousal privilege not to
testify against her husband. 	The State then introduced into
evidence Mrs. Timmerman’s previous statements to the police and
to a sexual assault nurse. 	With those statements, the magistrate
bound Mr. Timmerman over for trial. 	Mr. Timmerman subsequently
filed a motion to quash the bindover. 	The district court denied
the motion and held that the admission of Mrs. Timmerman’s
statements did not violate Mr. Timmerman’s constitutional rights
or Mrs. Timmerman’s spousal testimonial privilege. 	Mr. Timmerman
now appeals the district court’s denial of his motion. 	We are
asked to consider whether the Confrontation Clauses of the United
States Constitution and Utah Constitution apply to preliminary
hearings and whether the spousal testimonial privilege embodied
in the Utah Constitution applies to a spouse’s voluntary, out-of-
court statements. 	We affirm the trial court.

1 Mr. Timmerman was also charged with commission of domestic
violence in the presence of a child, but the magistrate dismissed
that charge at the preliminary hearing.
No. 20080206 	2
BACKGROUND
¶2 	During the early morning hours of June 30, 2007, the
Timmermans’ neighbor heard a woman screaming “Stop it!” and “Help
me!” 	The neighbor thought the screams came from the Timmermans’
house. 	Around 7:00 a.m., the neighbor notified the police.
Officer McLelland responded and spoke with Mrs. Timmerman.
During their conversation, Officer McLelland observed bruises on
her arms and face. 	He asked Mrs. Timmerman to fill out a witness
statement. 	In her three-page statement, Mrs. Timmerman wrote
that Mr. Timmerman repeatedly hit her and tried to force her to
have anal and vaginal intercourse.
¶3 	Another police officer, Detective Harding, interviewed
Mrs. Timmerman and asked her to submit to a sexual assault
examination at the hospital. 	When Mrs. Timmerman arrived at the
hospital, a sexual assault nurse examined her and filled out a
Sexual Assault Nurse Examination (SANE) report. 	In the report,
the nurse cataloged Mrs. Timmerman’s bruises and her statements
that Mr. Timmerman hit her and tried to have forced sex with her.
¶4 	Mr. Timmerman was charged with attempted rape, a first-
degree felony; forcible sexual abuse, a second-degree felony; and
assault, a class B misdemeanor. 1 	At the preliminary hearing, the
State called Mrs. Timmerman as a witness, but she invoked her
spousal privilege not to testify against her husband. 	Instead,
Officer McLelland and Detective Harding testified for the State,
and the State introduced Mrs. Timmerman’s witness statement and
SANE report. 	Mr. Timmerman objected to the admission of the
statement and the report on the grounds that they violated Mrs.
Timmerman’s spousal privilege and Mr. Timmerman’s confrontation
rights under the federal and state constitutions. 	The magistrate
admitted both documents and bound Mr. Timmerman over for trial.
¶5 	In his motion to quash the bindover before the district
court, Mr. Timmerman argued that his confrontation rights under
the federal and state constitutions were violated because he
could not cross-examine Mrs. Timmerman at the preliminary hearing
regarding her out-of-court statements. 	He also argued that the
magistrate had ignored Mrs. Timmerman’s spousal privilege when he
admitted her out-of-court statements into evidence. 	Without Mrs.
Timmerman’s statements, there was insufficient evidence to bind
Mr. Timmerman over for trial on the attempted rape charge. 	The

3 	No. 20080206
district court held that confrontation rights under the federal
and state constitutions do not apply to preliminary hearings and
that out-of-court statements made by spouses to third parties are
not excluded under the spousal testimonial privilege.
¶6 	Mr. Timmerman subsequently filed this interlocutory
appeal. 	We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(h) (2008).
STANDARD OF REVIEW
¶7 	Interpretations of federal and state constitutions are
questions of law. 	Grand County v. Emery County, 2002 UT 57, ¶ 6,
52 P.3d 1148. 	When the review of a district court’s denial of a
motion to quash a bindover implicates questions of law, we review
for correctness, giving no deference to the district court’s
legal conclusions. 	See State v. Rhinehart, 2006 UT App 517, ¶ 8,
153 P.3d 830.
ANALYSIS
¶8 	Mr. Timmerman argues that the right to confrontation in
preliminary hearings is guaranteed by the Sixth Amendment of the
United States Constitution and by article 1, section 12 of the
Utah Constitution. 	He also argues that the spousal testimonial
privilege found in the Utah Constitution prevents the use of out-
of-court, voluntary statements.
I. 	THE CONFRONTATION CLAUSES OF THE UNITED STATES
CONSTITUTION AND THE UTAH CONSTITUTION
DO NOT APPLY TO PRELIMINARY HEARINGS
A. 	The Sixth Amendment Does Not Require Confrontation
at State Preliminary Hearings
¶9 	The Sixth Amendment of the United States Constitution,
which applies to both federal and state criminal prosecutions,
grants the accused “the right . . . to be confronted with the
witnesses against him.” 	U.S. Const. amend. VI. 	See Crawford v.
Washington, 541 U.S. 36, 40 (2004); Pointer v. Texas, 380 U.S.
400, 403 (1965). 	Recently, the Supreme Court held in Crawford
that the Sixth Amendment right to confrontation applies to out-
of-court testimony admitted into evidence at trial. 	541 U.S. at
67. 	A party can only introduce a witness’s testimonial
statements into evidence if the witness is unavailable to testify
at trial and the opposing party had a prior opportunity to cross-
examine. 	Id. at 68. 	To reach this holding, the Court traced the
historical development of confrontation rights. 	The Court

No. 20080206 	4
referenced confrontation rights in pretrial proceedings in its
comprehensive historical analysis, but the narrow issue before
the Court was whether the accused’s confrontation rights were
violated at trial. 	Id. at 38. 	The Court resolved the issue by
defining the scope of confrontation rights at trial. 	Id. at
67–68. 	Mr. Timmerman now argues that Crawford extends to
preliminary hearings. 	We disagree.
¶10 	Crawford’s holding does not extend to preliminary
hearings in state proceedings. 	In State v. Rhinehart, the court
of appeals held that Sixth Amendment confrontation rights apply
only to trials and not to Utah’s preliminary hearings. 	2006 UT
App 517, ¶ 14, 153 P.3d 830. 	It reasoned that Crawford’s
“exhaustive discussion of the Confrontation Clause . . . never
indicated that [the clause] applies at preliminary hearings.”
Id. ¶ 12. 	Also, the court of appeals emphasized that the
discussion in Crawford never expressly stated that the Supreme
Court overruled its precedent limiting Sixth Amendment
confrontation rights to trial. 	Id. ¶ 13; see also Pennsylvania
v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion) (“The
opinions of this Court show that the right to confrontation is a
trial right. . . .”); California v. Green, 399 U.S. 149, 157
(1970) (“[I]t is this literal right to ‘confront’ the witness at
the time of trial that forms the core of the values furthered by
the Confrontation Clause.”); Barber v. Page, 390 U.S. 719, 725
(1968) (“The right to confrontation is basically a trial
right.”). 	Additionally, the court of appeals relied on the
Supreme Court’s decision in Gerstein v. Pugh, 420 U.S. 103
(1975), to reason that allowing confrontation rights at
preliminary hearings would not significantly increase the
reliability of the probable cause determination. 	Rhinehart, 2006
UT App 517, ¶ 13.
¶11 	Mr. Timmerman argues that the decision in Rhinehart was
incorrect and should be reversed. 	He faults the court of appeals
for its reliance on two Supreme Court cases: 	Pennsylvania v.
Ritchie, and Gerstein v. Pugh. 	Specifically, Mr. Timmerman
argues that the court of appeals improperly relied on Ritchie
because it was a plurality opinion. 	However, in citing to
Ritchie, the court of appeals also cited to two majority
opinions, Barber v. Page and California v. Green, that explicitly
limited confrontation rights to trial. 	We agree with the court
of appeals that Barber, Green, and Ritchie establish Supreme
Court precedent confining the Sixth Amendment Confrontation
Clause to trial.
¶12 	Mr. Timmerman also asserts that the court of appeals
improperly relied on Gerstein. 	He argues first that the case is

2 See Whitman v. Superior Court, 820 P.2d 262, 270 (Cal.
1991) (“[I]t is doubtful that the federal confrontation clause
operates to bar hearsay evidence offered at a preliminary hearing
(continued...)
5 	No. 20080206
not on point, but that if it is on point, language therein
supports full rights of confrontation at preliminary hearings
because the opinion contemplates a difference between the nature
of a probable cause determination at an arraignment as opposed to
a preliminary hearing. 	See 420 U.S. at 119–20. 	We disagree with
Mr. Timmerman’s interpretation of Gerstein for three reasons.
First, Gerstein failed to clarify the relevant differences
between an arraignment and a preliminary hearing. 	Importantly,
the Court did not discuss whether the difference requires an
accused to have confrontation rights at a preliminary hearing.
At most, the Court observed only that “adversary procedures are
customarily employed” in preliminary hearings; it did not go any
further to require that such procedures be used. 	Id. at 120.
Second, our recent case law establishes that there is no
difference between the probable cause determinations in
arraignments and in preliminary hearings. 	See, e.g., State v.
Virgin, 2006 UT 29, ¶ 18, 137 P.3d 787 (“[T]he probable cause
that the prosecution must establish in a preliminary hearing
. . . is the same as the probable cause that the prosecution must
show to obtain an arrest warrant.”); State v. Clark, 2001 UT 9,
¶ 16, 20 P.3d 300 (“[W]e see no principled basis for attempting
to maintain a distinction between the arrest warrant probable
cause standard and the preliminary hearing probable cause
standard. . . . 	Therefore, at both the arrest warrant and the
preliminary hearing stages, the prosecution must present
sufficient evidence to support a reasonable belief that an
offense has been committed and that the defendant committed
it.”). 	And third, preliminary hearings are pretrial procedures
unique to and varied within the states; no such procedure is
required by the United States Constitution. 	The Supreme Court
emphasized this point in Gerstein: 	“[S]tate systems of criminal
procedure vary widely. . . . 	[W]e recognize the desirability of
flexibility and experimentation by the States.” 	420 U.S. at 123.
In fact, a state could eliminate preliminary hearings entirely
and not infringe on federal constitutional rights. 	Gerstein’s
dicta and our case law therefore do not support Mr. Timmerman’s
proposition that confrontation rights apply at preliminary
hearings.
¶13 	Accordingly, we hold that the federal Confrontation
Clause does not apply to preliminary hearings. 	In so doing, we
note that a substantial number of jurisdictions have reached the
same conclusion. 2

2 (...continued)
held to determine whether probable cause exists to hold the
defendant for trial.”); People v. Felder, 129 P.3d 1072, 1074
(Colo. Ct. App. 2005) (“Indeed, had the Court intended the rule
of Crawford to apply at the pretrial stage, it would have
revisited its prior decisions refusing to recognize a Sixth
Amendment right of pretrial confrontation.”); Gresham v. Edwards,
644 S.E.2d 122, 124 (Ga. 2007) (“[There is] no indication in
Crawford of a change from the Court’s previous statements that
the right of confrontation is a trial right . . . .”); State v.
Sherry, 667 P.2d 367, 376 (Kan. 1983) (“There is no
constitutional right to allow the accused to confront witnesses
against him at the preliminary hearing.”); Sheriff v. Witzenburg,
145 P.3d 1002, 1003 (Nev. 2006) (“We conclude that the Sixth
Amendment Confrontation Clause and Crawford do not apply at a
preliminary examination.”); State v. Rivera, 192 P.3d 1213, 1218
(N.M. 2008) (concluding that the Confrontation Clause does not
apply to pretrial suppression hearings); People v. Brink, 818
N.Y.S.2d 374, 374 (N.Y. App. Div. 2006) (“We reject the
contention of defendant that Crawford v. Washington applies to
his pretrial suppression hearing and that reversal is required
because his right of confrontation was violated at that
hearing.”) (citations omitted); State v. Woinarowicz, 720 N.W.2d
635, 641 (N.D. 2006) (“The Sixth Amendment right to confrontation
is a trial right, which does not apply to pretrial suppression
hearings.”); Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super.
Ct. 1991) (“[T]he right to confrontation is a trial right.”);
State v. Jones, 259 S.E.2d 120, 122 (S.C. 1979) (“Hearsay
testimony does not render a preliminary hearing unlawful.”);
Vanmeter v. State, 165 S.W.3d 68, 74 (Tex. Crim. App. 2005) (“We
have carefully read Crawford for any signal the Supreme Court
intended its holding to apply at pretrial suppression hearings
and have found nothing to signal such an intention.”); State v.
Padilla, 329 N.W.2d 263, 268 (Wis. Ct. App. 1982) (“Of course,
there is no constitutional right to confront witnesses at a
preliminary examination.”).
No. 20080206 	6
B. 	The Right to Confront Witnesses at a Preliminary
Hearing No Longer Exists Because of the Amendment
to Article 1, Section 12 of the Utah Constitution
¶14 	Pursuant to article I, section 12 of the Utah
Constitution, the accused has the right to “be confronted by the
witnesses against him.” 	In 1980, this court analyzed the
application of Utah’s Confrontation Clause to preliminary
hearings and held that “a strict reading of the language of
Section 12 would provide the accused the entire panoply of
guaranteed rights at the preliminary examination.” 	State v.

3 We also reject Mr. Timmerman’s argument that hearsay, in
order to be reliable, must be subject to cross-examination. 	His
(continued...)
7 	No. 20080206
Anderson, 612 P.2d 778, 782 (Utah 1980). 	In 1995, however,
article I, section 12 was amended. 	The amendment narrowed the
scope of Utah’s Confrontation Clause by adding a second
paragraph:
Nothing in this constitution shall preclude
the use of reliable hearsay evidence as
defined by statute or rule in whole or in
part at any preliminary examination to
determine probable cause or at any pretrial
proceeding with respect to release of the
defendant if appropriate discovery is allowed
as defined by statute or rule.
Utah Const. art. I, § 12. 	Rule 1102(a) of the Utah Rules of
Evidence codified the amendment: 	“Reliable hearsay is admissible
at criminal preliminary examinations.” 	Mr. Timmerman,
nonetheless, argues that confrontation rights should apply at
preliminary hearings because of the continuing viability of
Anderson and the historical application of confrontation rights
to preliminary hearings prior to the constitutional amendment.
¶15 	The plain language of the amendment expressly allows
reliable hearsay in preliminary hearings. 	By allowing hearsay,
the amendment clearly removed confrontation rights from the
preliminary hearing stage and overruled Anderson’s holding on
this point. 	The Advisory Committee note to Utah Rule of Evidence
1102 acknowledges as much: 	“To the extent that State v. Anderson
prohibited the use of hearsay evidence at preliminary
examinations, that case has been abrogated.” (Citations omitted).
Although we have recently cited to Anderson, these references
have been for the proposition that the purpose of a preliminary
hearing is to ferret out groundless claims. 	See Virgin, 2006 UT
29, ¶ 20; Clark, 2001 UT 9, ¶ 10. 	Such references cannot
resurrect a holding that has been abrogated by a constitutional
amendment.
¶16 	In sum, we hold that the plain language of the 1995
amendment to article I, section 12 of the Utah Constitution
removed the constraints of Utah’s Confrontation Clause from
preliminary hearings. 	Admission of evidence at preliminary
hearings is exclusively governed by the reliable hearsay language
in the Utah Constitution and rule 1102 of the Utah Rules of
Evidence. 3

3 (...continued)
argument hinges on Crawford’s discussion of testing reliability
by cross-examination. 	However, Crawford discusses reliability in
the context of a witness’s statement introduced at trial being
subjected to cross-examination at some point. 	Crawford v.
Washington, 541 U.S. 36, 68–69 (2004). 	If we were to require
hearsay at preliminary hearings to be subject to cross-
examination, we would essentially remove the ability to introduce
hearsay and negate the 1995 constitutional amendment expressly
allowing hearsay. 	Instead, hearsay must be reliable as defined
by rule 1102 of the Utah Rules of Evidence. 	Mr. Timmerman has
not challenged the reliability of the witness statement or the
SANE report, so we do not address reliability here.
No. 20080206 	8
II. 	THE TRIAL COURT PROPERLY DENIED THE MOTION TO QUASH
BECAUSE THE CONSTITUTIONAL SPOUSAL TESTIMONIAL PRIVILEGE
APPLIES ONLY TO COMPELLED, IN-COURT TESTIMONY
¶17 	Mr. Timmerman argues that the trial court erred when it
allowed Mrs. Timmerman’s out-of-court statements into evidence
even though Mrs. Timmerman invoked her spousal privilege not to
testify against her husband. 	Utah recognizes two different
spousal privileges: 	the spousal testimonial privilege and the
spousal communications privilege. 	The spousal testimonial
privilege is defined in article I, section 12 of the Utah
Constitution: 	“[A] wife shall not be compelled to testify
against her husband, nor a husband against his wife.” 	The Utah
Rules of Evidence codifies the privilege in rule 502(a). 	In
contrast, the spousal communications privilege, as codified in
Utah Code section 78B-1-137 and Rule 502(b) of the Utah Rules of
Evidence, protects confidential communications between spouses
during their marriage. 	However, the accused spouse cannot invoke
the spousal communications privilege if the accused spouse is
charged with a crime. 	Utah R. Evid. 502(b)(4)(C). 	Mr. Timmerman
argues that the privileges were violated, but since Mr. Timmerman
is accused of a crime against his spouse, he cannot invoke the
spousal communications privilege. 	See Utah R. Evid.
502(b)(4)(C)(i). 	Hence, only the spousal testimonial privilege
is at issue here.
¶18 	Mr. Timmerman argues that Mrs. Timmerman’s out-of-court
statements were improperly admitted after she invoked her spousal
testimonial privilege. 	Mr. Timmerman relies on the following
language from this court’s decision in State v. Carter: 	“The
State is free to interrogate and receive information from a
witness spouse on any matter, including confidential
communications, so long as the witness spouse’s statement is not

9 	No. 20080206
introduced into evidence at trial over the objections of the
accused spouse.” 	888 P.2d 629, 639 (Utah 1994). 	But Mr.
Timmerman improperly relies on Carter. 	This court construed the
spousal privilege in Carter as it existed in Utah Code section
78-24-8(1). 	At that time, this court noted that Carter was
limited to cases implicating that statute and did “not determine
the nature or scope of the marital privilege embodied in
superseding rules 502 and 507” of the Utah Rules of Evidence
because Carter had been charged with the crime before the rules
came into effect. 	888 P.2d at 638 n.10. 	Furthermore, the
language of the superseded statute prevented spouses only from
being “examined as to any communication made by one to the other
during the marriage.” 	Utah Code Ann. § 78-24-8(1) (1985)
(emphasis added). 	This superseded statute codified the spousal
communications privilege, not the spousal testimonial privilege
at issue here. 	Because Carter is based on an outdated statute
and concerns the spousal communications privilege, it is not
determinative in this case.
¶19 	Article I, section 12 of the Utah Constitution
provides, “[A] wife shall not be compelled to testify against her
husband.” 	In examining the language of the privilege, we
recognize that a privilege should be “strictly construed in
accordance with its object,” Jackson v. Kennecott Copper Corp.,
495 P.2d 1254, 1257 (Utah 1972), because of its “undesirable
effect of excluding relevant evidence.” 	Munson v. Chamberlain,
2007 UT 91, ¶ 14, 173 P.3d 848. 	Because a privilege withholds
“relevant information from the factfinder, it applies only where
necessary to achieve its purpose.” 	Fisher v. United States, 425
U.S. 391, 403 (1976).
¶20 	The purpose of the spousal testimonial privilege is to
foster “the harmony and sanctity of the marriage relationship.”
Trammel v. United States, 445 U.S. 40, 44 (1980). 	If spouses
were forced to testify against each other, then “the testifying
spouse would be placed in the unenviable position of either
committing perjury or testifying to matters that are detrimental
to his or her spouse, which could clearly lead to marital
strife.” 	State v. Robertson, 932 P.2d 1219, 1227 (Utah 1997),
overruled on other grounds by State v. Weeks, 2002 UT 98, ¶ 25
n.11, 61 P.3d 1000.
¶21 	Construing the privilege strictly, according to its
plain language and in light of its purpose, we interpret the
spousal testimonial privilege to apply only to compelled
testimony, or in other words, involuntary, in-court testimony.
We believe this narrow interpretation of the privilege will not
serve to exclude relevant testimony or extend the privilege

No. 20080206 	10
beyond its narrow purpose. 	Further, admitting an out-of-court
statement into evidence does not force one spouse to testify
against the other or tempt the testifying spouse to commit
perjury.
¶22 	Criticism of the spousal testimonial privilege further
bolsters this narrow interpretation. 	The privilege enables
“abusers to silence their victims” and makes the testifying
spouse “vulnerable to coercion from the defendant-spouse and his
lawyer.” 	Amanda H. Frost, Updating the Marital Privileges: 	A
Witness-Centered Rationale, 14 Wis. Women’s L.J. 1, 34 (1999).
Similarly, the Advisory Committee of the Utah Rules of Evidence
is convinced that the justifications for the spousal testimonial
privilege are insufficient: 	“[The privilege] does not promote
marital felicity, is based on the outmoded concept that the
husband and wife are one, and causes suppression of relevant
evidence.” 	Utah R. Evid. 502 advisory comm. note. 	The Advisory
Committee recommends that only the spousal communications
privilege be preserved and the spousal testimonial privilege be
repealed. 	However, such a change is dependent on a
constitutional amendment to article I, section 12 that would
remove the spousal testimonial privilege.
¶23 	In this case, the introduction of Mrs. Timmerman’s
statements into evidence at the preliminary hearing did not
violate her spousal testimonial privilege, which protects a
spouse from giving involuntary, in-court statements. 	Mrs.
Timmerman was not forced to testify at the preliminary hearing.
She invoked her privilege and was dismissed from the witness
stand. 	In lieu of her in-court testimony, the State introduced
Mrs. Timmerman’s witness statement and her statements in the SANE
report. 	Mrs. Timmerman made those statements voluntarily. 	She
was not forced to attend a sexual assault examination or write a
witness statement. 	Because the statements were neither compelled
nor in-court, the spousal testimonial privilege does not apply.
¶24 	We also note that barring the statements would not
comport with the justifications for the privilege. 	Whatever
degree of marital harmony that previously existed between the
Timmermans was most likely absent when Mrs. Timmerman voluntarily
gave her statements to the police and to the sexual assault
nurse. 	Blocking her statements from admission into evidence at
the preliminary hearing would promote excluding relevant evidence
more than it would promote marital harmony. 	Furthermore, Mrs.
Timmerman was not placed in a position where she had to choose

4 Although out-of-court, voluntary statements may be used at
a preliminary hearing despite the invocation of the spousal
testimonial privilege, we recognize that those same statements
may conflict with the Confrontation Clauses of both the federal
and state constitutions if introduced at trial; in such cases,
the statements could only be admitted if the declarant was
unavailable and the defendant had a prior opportunity to cross-
examine. 	See Crawford, 541 U.S. at 68.
5 Mr. Timmerman also argues in two paragraphs that the
witness statement and the SANE report lacked proper foundation.
We decline to address the issue because it was inadequately
briefed. 	See Loveland v. Orem City Corp., 746 P.2d 763, 770
(Utah 1987). 	An issue is inadequately briefed if the argument
“merely contains ‘bald citations to authority [without]
development of that authority and reasoned analysis based on that
authority.’” 	Smith v. Four Corners Mental Health Ctr., Inc.,
2003 UT 23, ¶ 46, 70 P.3d 904 (alteration in original) (quoting
State v. Thomas, 961 P.2d 299, 305 (Utah 1998)). 	Here, Mr.
Timmerman included no citations to authority to support his
claim.
11 	No. 20080206
either to perjure herself or harm her husband because she was not
forced to testify in court. 4
¶25 	Because the spousal testimonial privilege does not
apply to the voluntary, out-of-court statements given to the
police and to the sexual assault nurse, the trial court properly
held that the spousal testimonial privilege was not violated and
denied the motion to quash the bindover. 5 	We therefore affirm.
---
¶26 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.