Blake v. State, 95-306

• Decision Date: 25 February 1997
• Docket Number: No. 95-306,95-306
• Citation: 933 P.2d 474
• Parties: David Alfred BLAKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 474

933 P.2d 474

David Alfred BLAKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-306.

Supreme Court of Wyoming.

Feb. 25, 1997.

Sylvia Lee Hackl, State Public Defender; and Donna Domonkos, Assistant Appellate Counsel (argued), for Appellant (Defendant).

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Assistant Attorney General (argued), for Appellee (Plaintiff).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

LEHMAN, Justice.

David Alfred Blake (Blake) was convicted of two counts of second degree sexual assault of his stepdaughter in violation of W.S. 6-2-303(a)(vi) (1988). ¹ Although the victim did not testify at trial, the district court permitted a treating physician to testify to statements made by the victim which identified Blake as the perpetrator. The primary issue on appeal is whether the admission of the victim's statements under the exception to the hearsay rule articulated in W.R.E. 803(4) violated Blake's sixth amendment right to confront his accuser.

We affirm.

ISSUES

Blake presents the following issues:

I. Was the appellant's Sixth Amendment right to confront his accuser violated when Dr. Bowers testified identifying the appellant as the assailant without calling the seventeen year old alleged victim to the stand?

II. Can the appellant's conviction stand when the State failed to prove an essential element of the crime?

The State counters with these issues:

I. Whether the district court properly admitted statements made by the victim to a physician under a "firmly rooted exception" to the rule prohibiting hearsay and did not violate appellant's right to confront witnesses against him.

II. Whether the evidence is sufficient to sustain appellant's convictions of second degree sexual assault.

FACTS

Responding to a report of alleged sexual abuse of a sixteen-year-old girl, an investigator from the Department of Family Services (DFS), together with an officer from the sheriff's office, interviewed the victim at a local high school. Following the interview, the victim was transported to the hospital emergency room for medical examination. During the course of the examination, and in response to questions by Dr. Mary Bowers, the victim stated that she had been forcibly subjected to sexual intercourse by her stepfather, Blake, numerous times over the previous several years.

Blake was interviewed later that same day at the sheriff's office. Blake confessed to having sexual intercourse with his stepdaughter for the past three to four years and, at the conclusion of the interview, he reviewed and signed a typed statement which embodied his statements and confession. He was then placed under arrest.

At trial, neither the State nor Blake called the victim to the witness stand. The State relied upon Blake's typed confession, Dr. Bowers' testimony, testimony of the nurse who assisted Dr. Bowers in the examination of the victim, testimony by the DFS investigator, testimony by the officer who interviewed the victim, and testimony by the officer who interviewed and obtained a confession from Blake. Over a continuing objection by defense counsel, the district court allowed Dr. Bowers to testify concerning what the victim stated to her during the sexual assault examination, including the victim's statements identifying Blake as the sexual assault perpetrator, pursuant to W.R.E. 803(4). The jury returned a verdict of guilty, convicting Blake of two counts of

second degree sexual assault. Blake timely appeals.

HEARSAY EVIDENCE

A. Admissibility

Rulings on the admissibility of evidence are discretionary, and such rulings by a district court will not be upset absent a clear abuse of discretion. Vit v. State, 909 P.2d 953, 956 (Wyo.1996); Hodges v. State, 904 P.2d 334, 340 (Wyo.1995); Curl v. State, 898 P.2d 369, 373 (Wyo.1995). An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. Herdt v. State, 891 P.2d 793, 801 (Wyo.1995); Martinez v. State, 611 P.2d 831, 838 (Wyo.1980). The burden is upon appellant to demonstrate such abuse, i.e., that the court acted in a manner exceeding the bounds of reason and could not rationally conclude as it did. Herdt, at 801; Armstrong v. State, 826 P.2d 1106, 1111 (Wyo.1992); Pearson v. State, 811 P.2d 704, 707 (Wyo.1991).

Blake asserts that the admission of the hearsay statements made by the victim to Dr. Bowers was erroneous because the identity of the perpetrator was not necessary for the diagnosis or treatment of the victim. According to Blake, such statements were hearsay and did not fall within the medical/diagnosis treatment exception to the hearsay rule.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." W.R.E. 801(c). The statements of the victim to which Dr. Bowers testified constitute hearsay within this definition. Although hearsay evidence is ordinarily inadmissible, it may be received into evidence when it falls within one of the exceptions to the hearsay rule. W.R.E. 802; Owen v. State, 902 P.2d 190, 195 (Wyo.1995).

The trial court, after receiving argument from both counsel, allowed Dr. Bowers to relate the victim's statements pursuant to W.R.E. 803(4), which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

(4) Statements for purposes of medical diagnosis or treatment.--Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment[.]

We acknowledge the general rule that statements attributing fault or identity usually are not admissible under rules identical to W.R.E. 803(4). Goldade v. State, 674 P.2d 721, 725 (Wyo.1983). However, we have held that in situations involving physical or sexual abuse of children, statements made by a child victim to a medical professional may be admitted. ² Goldade, 674 P.2d 721; Stephens v. State, 774 P.2d 60, 72 (Wyo.1989); Betzle v. State, 847 P.2d 1010, 1017 (Wyo.1993); Owen v. State, 902 P.2d at 195. Statements of identification in child abuse cases are admitted because of the special character of diagnosis and treatment in sexual abuse cases. Betzle, at 1019.

This court first had occasion to address this issue in Goldade. In that case, we upheld the admission of statements by a child victim to the treating physician under W.R.E. 803(4). In so holding, we noted that child abuse is a unique and special problem encompassing more than physical injury. The State has expressed special concern for that problem in Wyoming's child protection statutes, and physicians and other medical personnel play a special role in detecting and In Stephens, we emphasized that a proper foundation is essential to justify admission of identity statements under W.R.E. 803(4). We cited with approval the two-part test set forth in United States v. Renville, 779 F.2d 430 (8th Cir.1985), which encompasses the foundation requirement. 774 P.2d at 72-73. The Renville test requires that, first, the declarant's motive in making the statement is consistent with the purposes of promoting treatment or diagnosis and, second, that the content of the statement is reasonably relied on by a physician in treatment or diagnosis. Id. at 72 (quoting Renville, 779 F.2d at 436). Because the case was remanded for a new trial, we did not decide whether the statements in Stephens were admissible.

dealing with the problem of child abuse. Goldade, 674 P.2d at 725-27.

More recently, this court applied the Renville test in Betzle, 847 P.2d at 1017, and Owen, 902 P.2d at 196. In both those cases, we upheld the admission of hearsay testimony of an expert witness as to the identity of the perpetrator under the W.R.E. 803(4) exception, finding the two-part test was met.

Our inquiry now turns to whether in this case the requirements of the Renville two-part test were fulfilled. At trial, Dr. Bowers testified as follows:

Q. What was the purpose of the examination?

A. The purpose of the examination was to provide health care because of an alleged sexual assault.

Q. Did you perform any specific examination on her?

A. Yeah. I performed a comprehensive physical examination on her, including a pelvic examination.

* * *

Q. Okay. Could you please just describe generally what you normally would do, what you normally do, the procedure you normally follow in a rape kit examination.

A. The kit itself has specific instructions for the health care provider; and I usually begin by explaining what the purpose of the examination is to the patient and by taking a history from that patient about what has happened to them so that I can properly use the kit, collect specimens, so that I can also provide appropriate medical care.

* * *

Q. Could you describe [victim's] condition at the time?

A. [Victim] was a very--very subdued, very quiet young lady. She was--we use the term "in no acute distress." She wasn't medically unstable; but she was quite withdrawn, seemed somewhat exhausted.

* * *

Q. All right. Now, during the course of your examination did you have an opportunity to ask [victim] any questions?

A. Before proceeding with the exam, I asked her a number of questions to help direct my exam and determine what might be appropriate.

Q. Okay. Generally speaking, what types of questions would you have asked?

A. I ask general questions about what kinds of assault she may have been subjected to, what kind of sexual contact may have occurred, what she remembers of what had occurred, whether or not--whether or not she was aware of body fluids present in her, whether or not she...