State v. Vigil

• Decision Date: 27 January 2012
• Docket Number: No. S–11–434.,S–11–434.
• Citation: 283 Neb. 129,810 N.W.2d 687
• Parties: STATE of Nebraska, appellee, v. Jorge VIGIL, appellant.
• Court: Nebraska Supreme Court

283 Neb. 129

810 N.W.2d 687

STATE of Nebraska, appellee,

v.Jorge VIGIL, appellant.

No. S–11–434.

Supreme Court of Nebraska.

Jan. 27, 2012.

Syllabus by the Court

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.

4. Rules of Evidence: Hearsay. Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), is based on the notion that a person seeking medical attention will give a truthful account of the history and current status of his or her condition in order to ensure proper treatment.

5. Rules of Evidence: Hearsay. Under the federal and Nebraska rules of evidence, statements admissible under the medical diagnosis and treatment exception are not restricted to statements made by the patient, and the statements need not be made to a physician.

6. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements made by a child victim of sexual abuse to a forensic interviewer in a medical setting may be admissible under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), even though the interview has the partial purpose of assisting law enforcement's investigation of the crimes.

7. Rules of Evidence: Hearsay. Statements gathered strictly for investigatory purposes do not fall under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008).

8. Rules of Evidence: Hearsay: Proof. Statements having a dual medical and investigatory purpose are admissible under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), only if the proponent of the statements demonstrates that (1) the declarant's purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional.

9. Rules of Evidence: Hearsay: Appeal and Error. Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding made by the trial court in determining the admissibility of the evidence under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), and an appellate court reviews that determination for clear error.

10. Rules of Evidence: Hearsay. The appropriate state of mind of the declarant under Neb. Evid. R. 803(3), Neb.Rev.Stat. § 27–803(3) (Reissue 2008), may be reasonably inferred from the surrounding circumstances.

Jennifer A. Birmingham, Chief Deputy Madison County Public Defender, and Melissa A. Wentling, Norfolk, for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.

CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and MOORE, Judge.

McCORMACK, J.

NATURE OF CASE

The issue in this case is whether statements of a child sexual assault victim to a forensic interviewer working for the child advocacy department of a hospital are admissible under the Nebraska Evidence Rules hearsay exception for “[s]tatements 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.” ¹ The interview, which was reported to the supervising physician for diagnostic and treatment purposes, was also shared with law enforcement so that the child victim could be spared the trauma of multiple interviews. The appellant, Jorge Vigil, argues that because some time had passed since the sexual assaults and the victim did not see the physician that day, the primary purpose of the interview was for law enforcement purposes and it should not fall under rule 803(3). Vigil asserts that he was clearly prejudiced by the trial court's failure to grant his motion in limine to exclude the interview from trial.

BACKGROUND

Vigil was charged with two counts of sexual assault of a child in the first degree. The victim, D.S., was his stepdaughter. Prior to the trial, Vigil filed a motion in limine seeking to exclude a video-recorded interview of D.S. on the ground that it was inadmissible hearsay. The trial court denied the motion. At trial, Vigil renewed his hearsay objection to the evidence. The trial court overruled the objection and allowed the interview into evidence. The court found that the interview fell under rule 803(3), the medical purpose exception to the hearsay rule.²

The interview in question was conducted on September 15, 2010. In the early morning hours of that same day, D.S. had told her mother that Vigil had repeatedly forced her to perform oral sex on him over the course of the previous 2 years. D.S. was 12 years old at the time she reported the abuse. The sexual abuse began when she was 10 years old.

D.S.' mother testified that she drove D.S. to the local sheriff's office to report the abuse the same day D.S. reported it. An investigator at the sheriff's office, Michael Bowersox, was their principal contact. Bowersox testified that both D.S. and her mother were crying and visibly upset. After a short conversation, Bowersox ascertained that D.S. had possibly been sexually abused and advised D.S.' mother to take D.S. immediately to the Northeast Nebraska Child Advocacy Center (CAC) located in a local hospital.

Bowersox explained that it was the policy of the sheriff's office to send children who allege sexual abuse to the CAC to make sure they are medically screened and receive proper followup care. He believed that D.S. needed such medical services. Bowersox also explained that the CAC provides a “one-stop shop,” because the CAC usually allowed law enforcement to observe the forensic interview conducted at the hospital before the medical examination. Bowersox explained that this relationship between the CAC and law enforcement was devised to protect the child victim from having to repeat the telling of harmful events to multiple interviewers.

Bowersox told D.S.' mother that, at the hospital, D.S. would be interviewed by a forensic interviewer and that a doctor or nurse would conduct a medical examination. The mother testified that Bowersox explained to her the process they would go through at the CAC and what medical procedures would be performed. She was aware that law enforcement would likely be able to view the interview.

The mother testified that when she took D.S. to the hospital, the only thing on her mind was whether “my daughter was okay.” The mother testified that she was concerned about possible medical issues stemming from the abuse. Particularly, she was worried that D.S. might have contracted herpes from Vigil. The mother noted that D.S. had been “complaining a lot” about being “sick in her throat” over the course of 2010. The mother testified that she was also concerned about her daughter's mental health, especially after “hold [ing] whatever feelings she were [sic] having for two years.”

On the way to the hospital, the mother explained to D.S. what would occur upon their admission to the hospital. She told D.S. that she would be subjected to a physical examination. In particular, the mother told D.S. that she would probably “have something that we adults call Pap smear.” D.S. understood this was a medical procedure. D.S. had seen doctors before, but had not yet had a gynecological examination.

The mother also told D.S. she would be interviewed at the hospital. The mother testified that she explained to D.S. the purposes of the interview. She did not “exactly” tell D.S. that the interview might serve a law enforcement purpose. Rather, she told D.S. that the interview “was a process we had to go through to clarify everything that has been happening the past two years.”

D.S. testified that she understood she was going to a hospital and that she was expecting to see a doctor and have a physical examination on that day. D.S. testified that she was worried “something might be wrong” with her. D.S. elaborated she had been told that Vigil had “a sickness.” She testified, “[H]e had it and he made me do things I didn't want to and I was afraid I had gotten it.” D.S. described that Vigil did not use a condom during the assaults. D.S. testified that she later learned the “sickness” was herpes.

D.S. testified that she and her mother entered the hospital through the front entrance. D.S. was then signed in as a patient of the hospital. D.S. was sitting next to her mother when she signed the patient service agreement. D.S. and her mother were also given a patient service brochure. After that, D.S. was taken into an interview room. D.S. was reasonably familiar with medical examinations and procedures, and she testified that she believed “it was very important to tell the whole truth” when talking to the people at the hospital.

Kelli Lowe, a forensic interviewer for the CAC, conducted the interview of D.S. Lowe testified that the CAC is a department of the hospital. Lowe's educational background is in counseling and social sciences. She also has training through the National Children's Advocacy Center in how to interview child sexual assault victims and how to assist a physician with assault examination kits. Lowe stated that she typically assists the physician when a physical...