Lonnie C. Mclaury v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 89

APRIL TERM, A.D. 2013

July 18, 2013

LONNIE C. McLAURY,

Appellant
(Defendant),

v. S-12-0240

THE STATE OF WYOMING,

Appellee
(Plaintiff).

Appeal from the District Court of Laramie County
The Honorable Michael Davis, Judge

Representing Appellant:
Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
and Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and
Christyne Martens, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, JJ., and GOLDEN, J., Retired.

HILL, J., delivered the opinion of the Court. BURKE, J., filed a specially concurring
opinion, in which VOIGT, J., joins.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] A jury convicted Lonnie McLaury of sexual assault in the first degree in violation
of Wyo. Stat. Ann. § 6-2-302(a)(iii). On appeal, McLaury contends that the district court
abused its discretion when it allowed a sexual assault nurse examiner (SANE nurse) to
testify, over his objection, as to the statements made by the victim during the physical
examination of her. We affirm the district court.

ISSUE

[¶2] McLaury presents one issue:

Did the trial court abuse its discretion in allowing hearsay
testimony?

FACTS

[¶3] On September 27, 2010, the victim and her boyfriend went to visit a friend at his
apartment. Lonnie McLaury was also there. While watching television, the victim and
her boyfriend fell asleep. The victim was awakened by McLaury digitally penetrating her
vagina. She realized the person was McLaury and immediately woke her boyfriend, who
told McLaury to stop, grabbed his arm, and threatened to cut his fingers off. The victim
and her boyfriend immediately left the apartment.

[¶4] After leaving, the victim and her boyfriend drove to the Cheyenne Police
Department where they reported the incident. The police officer then asked the victim if
she would like to go to the hospital, and she stated that she would. A police report was
filed after the victim’s report and after the examination at the hospital.

[¶5] Based on the police report, McLaury was charged with one count of first degree
sexual assault under § 6-2-302(a)(iii). The case went to jury trial, where the SANE nurse
testified for the prosecution. Prior to testifying, however, McLaury requested that the
district court prohibit the SANE nurse from repeating the statements made to her by the
victim during the exam. Defense counsel suggested that the statements were not proper
as prior consistent statements and would only serve to bolster the victim’s testimony.
The State, on the other hand, suggested that such testimony should be allowed as a
statement made for the purpose of medical treatment. The district court allowed the
testimony, as long as the SANE nurse did not vouch for the victim.

[¶6] During the SANE nurse’s testimony, she explained why the circumstances of the
assault were necessary to the exam – to determine potential injury and possibly collect
biological evidence. The SANE nurse then testified that the victim indicated she was
sexually assaulted by digital penetration. On cross-examination, defense counsel asked

1
the SANE nurse to clarify the nature of the assault, and then on redirect, the SANE nurse
refreshed her recollection with her exam report. The SANE nurse then testified that the
victim told her assailant to stop.

[¶7] A jury found McLaury guilty as charged, and on May 24, 2012, the district court
imposed a sentence of five to seven years, suspended in favor of five years of probation
(which was later revoked). This appeal followed.

STANDARD OF REVIEW

[¶8] “Our review of rulings by a trial court, admitting or excluding evidence, is
premised upon deference to the trial court, and we do not reverse a case because of
evidentiary rulings unless an abuse of discretion is demonstrated.” Oldman v. State, 998
P.2d 957, 960 (Wyo. 2000).

DISCUSSION

[¶9] In his only issue, McLaury argues that the district court abused its discretion in
allowing hearsay testimony from the SANE nurse who testified about her examination of
the victim in this case, and repeated a portion of the victim’s statements. Specifically,
McLaury contends that the district court did not properly apply the exception and the
foundational requirements found in W.R.E. 803(4), “Statements for Purposes of Medical
Diagnosis.” In response, the State contends that the victim’s statements to the SANE
nurse were properly admitted under Rule 803(4) and that the foundational requirements
under the rule were satisfied.

[¶10] 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). Hearsay is inadmissible unless it falls into one of the exceptions recognized by
the rules of evidence, and the exception at issue in this case is found in Rule 803(4),
which reads as follows:

Rule 803. Hearsay exceptions; availability of declarant
Immaterial.

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

2
 general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.

It has been said by this Court that the reason for this exception is the likelihood that the
declarant was motivated to tell the truth by the belief that the effectiveness of the
treatment depended upon the accuracy of the information relayed. Oldman, 998 P.2d at
961. A New Mexico Supreme Court case expounded on the line of thinking behind the
exception:

Two underlying rationales traditionally animate [the
exception]. First, the “help-seeking motivation” counsels that
the declarant’s self-interest in obtaining proper medical
attention renders “the usual risks of hearsay testimony …
minimal when associated with medical treatment.” In re
Esperanza M., 1998-NMCA-039, ¶ 9, 124 N.M. 735, 955 P.2
204 (1998). Indeed, statements made at the time of treatment
may be more reliable than live testimony from the declarant
offered at trial months or even years later. See White v.
Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed. 2d 848
(1992) (“[A] statement made in the course of procuring
medical services, where the declarant knows that a false
statement may cause misdiagnosis or mistreatment, carries
special guarantees of credibility that a trier of fact may not
think replicated by courtroom testimony.”).

The second rationale behind [the exception],
commonly referred to as “pertinence,” is that if a statement is
pertinent to a medical condition, such that a medical care
provider reasonably relies upon it in arriving at a diagnosis or
treatment, the statement is deemed sufficiently reliable to
overcome hearsay concerns. Morgan v. Foretich, 846 F.2d
941, 951 (4th Cir. 1988) (Powell, J., concurring in part and
dissenting in part [footnote omitted]) (“[A] fact reliable
enough to serve as a basis for a physician’s diagnosis or
treatment generally is considered sufficiently reliable to
escape hearsay proscription.”). At common law, these two
rationales were considered separate, independent
requirements, each of which had to be satisfied to admit
statements under the Rule. See id.; United States v. Iron
Shell, 633 F.2d 77, 84 (8th Cir. 1980).

State v. Mendez, 148 N.M. 761, ¶¶ 20-21, 242 P.3d 328, 334 (N.M. 2010).

3
[¶11] To ensure that the reason for the rule is satisfied, the existence of the proper
foundation should be a primary consideration for the trial court when making its
evidentiary ruling on such statements. Stephens v. State, 774 P.2d 60, 72 (Wyo. 1989)
(“A proper foundation is essential, however, and the simple fact that the statement was
made to a doctor or other medical personnel during treatment does not justify
admission.”) (overruled on other grounds by Large v. State, 2008 WY 22, 177 P.3d 807)
(Wyo. 2008)). In Stephens, this Court explained “proper foundation” in relation to Rule
803 when it adopted the Eighth Circuit’s two-part Renville test:

* * * [F]irst, the declarant’s motive in making the
statement must be consistent with the purposes of
promoting treatment [or diagnosis]; and second, the
content of the statement must be such as is reasonably
relied on by a physician in treatment or diagnosis.

Stephens, 774 P.2d at 72 (quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir.
1985)). “[W]hen a statement is made to a physician for the purpose of providing
evidence for a court proceeding rather than for treatment purposes, courts have held that
the declarant lacks a “treatment motive” and that therefore the statement is inadmissible.”
R.S. v. Knighton, 125 N.J. 79, 87 (1991), 592 A.2d 1157, 1161 (N.J. 1991); see also State
v. D.R., 214 N.J. Super. 278, 289, n.4 (1986), 518 A.2d 1122, 1127 (N.J. App. Div.
1986), rev’d on other grounds, 109 N.J. 348 (1988), 537 A.2d 667 (N.J. 1988); State in
Interest of C.A., 201 N.J. Super. 28, 33-34 (1985), 492 A.2d 683, 686 (App. Div. 1985).
Conversely, the medical diagnosis or treatment exception does not require an independent
showing of the declarant’s trustworthiness because the trustworthiness can be established
by a showing that it was reasonably pertinent to diagnosis and was relied upon by the
healthcare professional to arrive at an expert diagnosis. King v. People, 785 P.2d 596,
602 (Colo. 1990). Recently, even the United States Supreme Court weighed in on
statements made for purposes of medical diagnosis or treatment and said that “by their
nature,” these statements are “made for a purpose other than use in a prosecution.”
Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1157 n.9 (2011).

[¶12] In looking at whether the victim’s statements, through the SANE nurse’s
testimony, are admissible in this case, decisions from other jurisdictions are instructive.
New Mexico, in the Mendez case, supra, specifically, has pointed out the tenuous
situation presented by SANE nurse testimony:

We acknowledge the special challenges posed by
determining the admissibility of statements made to SANE
nurses under Rule 11-803(D), but we reject the notion that
statements can be categorically excluded based on the
professional status or affiliation of the individual to whom the
statement is made. SANE nurses fill a void in our medical

4
system, providing critical treatment to patients at a time of
great physical, emotional, and psychological vulnerability. As
the State points out, SANE nurses may be better suited to
provide this treatment due to their special training than non-
SANE nurses and physicians. But they also have special
expertise in gathering evidence for subsequent prosecution of
the offender, which raises appropriate concerns about whether
the statement was made for the purposes of seeking medical
care or whether a medical provider could have reasonably
relied upon the statement for diagnosis or treatment of the
declarant.

Both Defendant and the State seem to agree that SANE
nurses have a dual role: the provision of medical care and the
collection and preservation of evidence. As the State’s brief
explains, SANE nurses “are overall more competent than
emergency room[] doctors and non-SANE nurses at
collecting and preserving evidence of value to the legal
system.” See Campbell, supra at 3 2 1 (“SANEs collect
forensic evidence correctly and, in fact, do so better than
physicians.”). When compared with other medical providers,
the goals of SANE nurses and SANE examinations can seem
more closely aligned with law enforcement, which presents
an acute risk that the SANE nurse’s expert status can be
abused to allow an end-run on the hearsay rule. Trial courts
must be aware of the potential for such abuses, subjecting to
close scrutiny the exchange between SANE nurse and patient
to determine the statement’s overall trustworthiness under
Rule 11-803(D) in light of the two rationales highlighted
above.

SANE nurses may be more adept at collecting and
preserving evidence, but any medical provider who treats
sexual abuse victims is engaged to some extent in the
collection of evidence, and most understand that the evidence
they collect--physical or otherwise--could be used in a
subsequent prosecution. See Robert P. Mosteller, Testing the
Testimonial Concept and Exceptions to Confrontation: “A
Little Child Shall Lead Them,” 82 Ind. L. J. 917, 952 (Fall
2007) (“There is every reason to assume that the vast majority
of doctors and nurses are aware both of reporting
requirements and the admissibility of many statements made
to them during the examination process. The medical

5
 examination thus always has the potential to feed directly into
the criminal process, and use of the statements at trial is an
obvious possibility.” (footnote omitted)).

Mendez, ¶¶ 41, 42, 43, 242 P.3d at 339-40. The Mendez court further reasoned that

[a] trial court must therefore carefully parse each statement
made to a SANE nurse to determine whether the statement is
sufficiently trustworthy, focusing on the declarant’s
motivation to seek medical care and whether a medical
provider could have reasonably relied on the statement for
diagnosing or treating the declarant.

Id., ¶ 43, 242 P.3d at 340.

[¶13] While it rejected a per se ban on statements made to a SANE nurse during an
examination, the New Mexico Supreme Court held that the mere fact that the
examination has both medical and forensic purposes does not render inadmissible all
statements made during the course of the examination. Mendez, ¶ 38, 242 P.3d at 339.
During an exam, a declarant may make a statement for medical diagnosis or treatment
purposes, even if the primary purpose of the exam is forensic, and the question of
admissibility should turn on whether the declarant’s statements themselves are
trustworthy, not simply whether the purpose of the exam was medical or forensic. Id.,
¶¶ 31-32, 242 P.3d at 337-38.

[¶14] The Mendez case also details the multitude of ways that courts approach these
cases:

While some jurisdictions retain a two-part test for
determining admissibility, several others including New
Mexico regard the “pertinence” rationale to be independently
sufficient to establish trustworthiness and admissibility under
Rule 11-803(D). Compare 4 Michael H. Graham, Handbook
of Federal Evidence § 803:4, at 175-78 (6th ed. 2006) (citing
jurisdictions that impose traditional two-part requirement),
with State v. Massengill, 2003-NMCA-024, ¶ 25, 133 N.M.
263, 62 P.3d 354 (“‘[U]nlike the common law rule, [Rule 11-
803(D)] does not require inquiry into the patient’s motive in
making the statement,’ so long as the statements were relied
upon by the physician.” (quoting State v. Altgilbers, 109
N.M. 453, 460, 786 P.2d 680, 687 (Ct. App. 1989)));
Esperanza M., 1998 NMCA 039, ¶ 14, 124 N.M. 735, 955
P.2d 204 (“[T]his Court and our Supreme Court have relied

6
 on the foundation established by the party seeking to admit
the hearsay testimony that testimony is admissible if it is
‘reasonably pertinent’ for medical diagnosis or treatment.”
(citing State v. Woodward, 121 N.M. 1, 8, 908 P.2d 231, 238
(1995), abrogation recognized by State v. Granillo-Macias,
2008-NMCA-021, 143 N.M. 455, 176 P.3d 1187));
Altgilbers, 109 N.M. at 459-60, 786 P.2d at 686-87; and
Graham, supra § 8 0 3 : 4 , a t 1 7 8 (“A third group of
jurisdictions does not require a specific showing of motive;
rather, they inquire whether the subject-matter of the
declarant’s statement was reasonably pertinent to diagnosis or
treatment.”).

… while we agree with the conclusion in Altgilbers
and other persuasive precedents that the “pertinence”
rationale alone can provide a sufficient basis upon which to
admit a statement under Rule 11-803(D), we would not go so
far as to ignore the help-seeking motivation of the declarant
altogether, whether in a child sexual abuse setting or any
other case. The better approach, in our view, is for trial
courts to take both rationales into consideration, depending on
the circumstances of each case, focusing all the while on the
trustworthiness of each statement. Trustworthiness can be
established under either rationale alone, or some degree of
both. In any event, trial courts are best suited to consider the
relevant facts and circumstances of a given case in order to
make the ultimate determination.

Mendez, ¶¶ 22, 23, 242 P.3d at 334-35.

[¶15] By and large, we agree with the New Mexico court, and agree that the most
practical approach for this Court is to look at both rationales, in keeping with our
adoption of the two-part test, while still focusing on the trustworthiness of the statements,
which can be established by considering one rationale or some degree of both rationales.
We also appreciate New Mexico’s focus on the inevitability that during an exam, a
declarant may make a statement for medical diagnosis or treatment purposes, even if the
primary purpose of the exam is forensic. The bottom line is the question of admissibility
and whether the declarant’s statements themselves are trustworthy. Mendez, ¶ 31, n.4,
242 P.3d at 337. After all, “The extent to which a statement as to cause is pertinent to
diagnosis or treatment rests within the discretion of the trial judge, who may consider the
health care provider’s testimony in making that determination.” 13 Robert Lowell Miller,
Jr., Indiana Practice: Indiana Evidence § 803.104 (3d ed. 2007) (citations omitted); see
also Ind. Evidence Rule 104(a) (“Preliminary questions concerning . . . the admissibility

7
of evidence shall be determined by the Court[.]”); 21A Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice and Procedure § 5053.3, p. 90 (2d ed. 2005) (“The
judge determines the preliminary facts regarding the hearsay exceptions in Rule 803[.]”).

[¶16] That said, we turn to McLaury’s argument that the State did not satisfy the first
foundational requirement because it did not establish that the victim intended that her
statements to the SANE nurse would be used for medical diagnosis or treatment. Rather,
McLaury submits that the victim believed her statements were made for evidence
collection purposes and that the exam would be used for prosecution purposes. McLaury
argues that explicit testimony about the victim’s motive to make the statements was
required. We conclude that the victim’s statements were clearly admissible under the
first prong. The SANE nurse testified that the first thing she does during an examination
is meet the patient and discuss what happened during the assault. She explained that
inquiring into the circumstances of the assault is an important part of the medical
examination because “it helps guide me to areas where there could potentially be injury
that I would have to treat. It also guides me to areas where I might be able to collect
possible biological evidence.” The SANE nurse later testified that “the patient stated to
me that she had been sexually assaulted by the assailant placing his fingers into her
vagina.” Also, the SANE nurse testified on cross-examination that the victim “stated to
me that the assailant inserted his fingers into her vagina, but she did not state to me how
many times it had occurred or how many fingers were used.” The SANE nurse further
testified that the victim “reported some tenderness with the examination.”

[¶17] The trial court concluded that the victim’s statements qualified as statements made
for purposes of medical diagnosis or treatment without making any specific findings as to
the victim’s motive or the SANE nurse’s reliance. Nevertheless, the record supports that
conclusion. The nurse specifically testified that she relied on the medical history to guide
her examination and asks what happened during an alleged assault “for the diagnosis and
treatment of my patient,” thereby satisfying the first prong of the reliability test. She also
testified that SANE nurses normally rely on similar histories to “guide me to areas where
there could potentially be injury that I would have to treat.” McLaury’s argument that the
victim’s statements to the SANE nurse were made specifically for use in McLaury’s
prosecution falls short. The SANE nurse checked the victim for injuries and counseled
her about preventative treatments for sexually transmitted infections. While it is true that
evidence collected was turned over to police, the exam was conducted at the hospital for
medical purposes. All of the above demonstrates the reasonableness of the SANE nurse’s
reliance on the victim’s statements in satisfaction of the second prong of the reliability
test.

[¶18] As much as we look to the record for our conclusion, what is not in the record is
also telling. Nothing in this record indicates that the victim had an ulterior or
underhanded motive when telling her story to the SANE nurse. Moreover, there is
nothing in the record that indicates that the victim was motivated by anything other than a

8
desire to receive appropriate medical care or that she did not understand the importance
of telling the truth.

[¶19] McLaury’s argument that the victim’s statements to the SANE nurse were made
specifically for use in McLaury’s prosecution falls short. The SANE nurse checked the
victim for injuries and counseled her about preventative treatments for sexually
transmitted infections. The victim chose, when asked, to go to the hospital after reporting
the incident.

[¶20] The trial court did not abuse its discretion in allowing the SANE nurse to testify as
she did.

CONCLUSION

[¶21] McLaury’s conviction is affirmed, and we conclude that the district court did not
abuse its discretion when it admitted the victim’s statements made during her sexual
assault examination under W.R.E. 803(4).

9
BURKE, Justice, specially concurring, with whom VOIGT, Justice, joins.

[¶22] I concur in the result reached by the majority. I write separately because I would
take a different path to reach that result. I would conclude that the State failed to
demonstrate that the victim’s hearsay statements to the SANE nurse were admissible.
The State did not establish that the victim made those statements for the purpose of
receiving medical treatment. It was error to admit those statements into evidence.
However, I would also conclude that the error was harmless and would affirm the
conviction.

[¶23] It is undisputed that the victim’s statements to the SANE nurse were hearsay and
inadmissible unless they fell within a specific exception to the hearsay rule. At trial, the
State sought admission of the statements under the medical treatment exception to the
hearsay rule, W.R.E. 803(4). In order for the statements to qualify for admission under
this exception, a proper foundation must be provided. Stephens v. State, 774 P.2d 60, 72
(Wyo. 1989) (“A proper foundation is essential, however, and the simple fact that the
statement was made to a doctor or other medical personnel during treatment does not
justify admission.”), overruled on other grounds by Large v. State, 2008 WY 22, 177
P.3d 807 (Wyo. 2008). The proponent of the statement must establish that: (1) the
declarant’s motive in making the statement is consistent with the purposes of promoting
treatment or diagnosis; and (2) the content of the statement must be such as is reasonably
relied upon by a medical provider in treatment or diagnosis. Stephens, 774 P.2d at 72. In
this case, the State bore the burden of laying the proper foundation for admissibility of
the statements.

[¶24] The majority properly recognizes that the exchange between the SANE nurse and
the victim must be closely scrutinized to determine the overall trustworthiness of the
statements. Such scrutiny involves an evaluation of the declarant’s motivation in seeking
medical care and the reasonableness of the medical provider’s reliance on the statement
for diagnosis or treatment. Mendez, ¶ 43, 242 P.3d at 340. The majority concludes that
the State satisfied its foundational burden. I disagree.

[¶25] The majority concludes that “there is nothing in the record that indicates that the
victim was motivated by anything other than a desire to receive appropriate medical
care.” To the contrary, there is nothing in the record indicating that the victim went to
the hospital for treatment. The only evidence relevant to that issue establishes that the
victim went to the hospital for a forensic exam, not treatment.

[¶26] Prior to calling the SANE nurse as a witness, the State introduced testimony from
three witnesses: Officer Micah Veniegas, the victim, and the victim’s boyfriend. Their
testimony was consistent and undisputed. According to that testimony, the victim went
to the hospital at the request of law enforcement to have a “rape kit” administered. The
record reflects the following:

10
  Officer Veniegas testified: “Based on that, after I contacted
the sergeant, [we] decided to have the victim . . . go down to
the [hospital] and have a sexual assault kit conducted on her.”

 The victim testified that she went to the hospital because:
“After we had filled out the statement and everything like
that, the officer had asked me if I would like to go to the
hospital and do one of those, like, rape kits, sexual assault
kits. And I told him yes.”

 The boyfriend testified that they went to the hospital for “a
rape kit.”

 The victim did not immediately seek medical treatment upon
arriving at the hospital. According to Officer Veniegas, after
they arrived at the hospital, he learned that “they did not have
a SANE nurse at the hospital at that time.” He then “advised
them that they needed to contact the SANE nurse and have
her respond to the hospital.” They waited for an hour and a
half for the SANE nurse to arrive. There is no evidence that
the victim received or sought any medical treatment in the
interim.

All of this evidence is at odds with the majority’s conclusion that the victim’s motive for
the visit with the SANE nurse was treatment. The majority’s failure to address this
evidence is contrary to its recognition that statements made to a SANE nurse must be
subjected to “close scrutiny.”

[¶27] Based on this evidence, I would conclude that the State failed to provide an
adequate foundation for admissibility under the W.R.E. 803(4) exception. The district
court erred in admitting the statements. The error, however, was harmless.

[¶28] We have previously recognized that an appellant who claims error must also
establish that the error was prejudicial.

If we conclude the trial court erred, we must then determine if
the error was prejudicial. Bromley v. State, 2009 WY 133, ¶
24, 219 P.3d 110, 116 (Wyo. 2009). An error is prejudicial if
there is a reasonable possibility the verdict might have been
more favorable to the appellant if the error had never
occurred. Callen v. State, 2008 WY 107, ¶ 5, 192 P.3d 137,
141 (Wyo. 2008). The burden of proving prejudicial error

11
 rests with the appellant. Skinner v. State, 2001 WY 102, ¶ 25,
33 P.3d 758, 767 (Wyo. 2001).

Silva v. State, 2012 WY 37, ¶ 14, 271 P.3d 443, 448 (Wyo. 2012), quoting Bloomfield v.
State, 2010 WY 97, ¶ 17, 234 P.3d 366, 373 (Wyo. 2010). Appellant has failed to
identify the specific statements he finds objectionable or explain how exclusion of those
statements would have resulted in a different outcome at trial. The victim did not identify
Appellant as the perpetrator in any of those statements. The statements were a miniscule
part of the evidence presented during the course of a four day trial and were, for the most
part, merely cumulative to other evidence presented during the trial.1 The victim testified
at trial about the assault, and her boyfriend also testified that he witnessed the assault.
There is no reasonable possibility that the verdict would have been more favorable to
Appellant if the statements had been excluded. Appellant has failed to establish that the
error was prejudicial.

[¶29] If statements made to a SANE nurse merit close scrutiny because of the close
connection between the SANE nurse and law enforcement, then we should apply that
standard in this case. The hearsay testimony is legally “trustworthy” and admissible only
if it satisfies the requirements for admission as an exception to the hearsay rule under
W.R.E. 803(4). The State, as the proponent of the evidence, had the burden of
establishing that foundation. There is significant evidence in this record indicating that
the victim went to the hospital solely for a forensic exam by the SANE nurse. That
evidence has been ignored by the majority and, because of that, the conclusion it reached
regarding admissibility is flawed.

1
One of the statements to the SANE nurse, and the most potentially prejudicial, was admitted by the court
because defense counsel had “opened the door” during cross examination of the SANE nurse. During
cross examination, defense counsel inquired about the number of times penetration occurred. The SANE
nurse testified that the victim did not tell her “how many times.” On redirect, the State was allowed to
address that issue. In response to a question from the prosecutor, the SANE nurse testified that the victim
“said that she had asked the assailant to stop, but the assailant did not stop.”

12