IN THE COURT OF APPEALS OF IOWA
No. 14-0357
Filed May 6, 2015
IN THE INTEREST OF J.C.,
Minor Child,
J.C., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
A minor appeals the trial court’s order finding him delinquent for
committing assault with the intent to commit sexual abuse. AFFIRMED.
Timothy J. Tupper, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael Walton, County Attorney, and Elizabeth Cervantes, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
MULLINS, J.
J.C. appeals the trial court’s order finding him delinquent for committing
assault with the intent to commit sexual abuse. J.C. asserts the trial court erred
in allowing the testimony of Catherine Jackson notwithstanding the State’s failure
to provide sufficient notice and a full and fair statement of her testimony. He
asserts his right to confront the victim, A.W., was violated when the court
admitted A.W.’s statements via Michele Mattox, Dr. Harre, and Dr. Harre’s report.
Finally, J.C. contends the trial court erred in admitting A.W.’s statements due to
her incompetency. We affirm the order of the trial court.
I. Background Facts and Proceedings
On July 2, 2013, twelve-year-old J.C. was socializing with several other
children at his friend K.W.’s house. K.W. shared this home with four-year-old
A.W. Sometime that afternoon, A.W. was heard screaming from an upstairs
bedroom. Other children present in the home ran upstairs in response.
One child testified he saw J.C. pulling down A.W.’s underwear. A.W. was
lying on her back, and J.C. was on his knees; they were both on the floor.
Another child testified she saw A.W. “pinned to the bed” by J.C., who was lifting
up A.W.’s shirt like he was taking her clothes off. Yet another child testified J.C.
had his arm over A.W. and was lying next to her. J.C. was red faced and denied
any wrongdoing. The other children took A.W. downstairs to her mother. J.C.
ran outside.
A.W.’s mother immediately filed a police report and took A.W. to the
hospital. During the ensuing investigation, the police interviewed the children
3
and recovered two videos and four photographs from K.W.’s phone. The
photographs showed J.C.’s exposed penis. The videos depicted J.C.
masturbating, and in one video J.C. stated K.W. would be performing a sex act
on him that night. One of the other children present that day testified that earlier
J.C. tried to show her photographs on the phone, but she covered her eyes. He
also requested a photograph of her chest and tried to touch her chest; both
requests were denied. In the past, J.C. had asked this child to have sex.
The hospital and police referred A.W. to Dr. Harre and Michele Mattox at
the Child Protection Response Center (CPRC). Dr. Harre conducted a medical
examination to evaluate any genital contact. A.W. told Dr. Harre J.C. touched
her boob and bottom area, but A.W.’s physical examination was normal. Michele
Mattox conducted a forensic interview, during which A.W. revealed J.C. hurt her
private parts with his genitalia.
In August 2013, J.C. was charged with assault with intent to commit
sexual abuse, in violation of Iowa Code section 709.11 (2013). J.C.’s
delinquency hearing was held in December 2013. In addition to hearing the
testimony of Dr. Harre, Mattox, A.W.’s mother, and the children who witnessed
A.W.’s assault, the State called Catherine Jackson to testify. Jackson is a
psychologist who, though she had not personally interviewed A.W., testified that
a sexually abused girl A.W.’s age, exhibiting speech delays and heightened
anxiety like A.W., would be harmed by testifying.
The trial court found J.C. was a delinquent child. It held that the state of
A.W.’s clothing evidenced J.C.’s intent to sexually assault her; this was
4
supported by Dr. Harre’s testimony that A.W. stated J.C. touched A.W.’s boob
and bottom area and the photographs, videos, and witness testimony illustrating
J.C.’s “heightened interest in sexual activity.” J.C. appeals the trial court’s
delinquency order.
II. Jackson’s Testimony
J.C. contends the trial court erred by allowing Jackson to testify because
the State failed to provide J.C. a “full and fair” statement of her testimony, failed
to file the appropriate notice, and failed to inform J.C. that Jackson would testify
until the day before trial, in violation of Iowa Rule of Criminal Procedure 2.5(3).
This rule provides that “[t]he prosecuting attorney shall . . . file the minutes of
evidence of the witnesses . . . and a full and fair statement of the witness’
expected testimony” prior to trial. Iowa R. Crim. P. 2.5(3). Our scope of review
for juvenile court proceedings is de novo. State v. Iowa Dist. Ct., 750 N.W.2d
531, 534 (Iowa 2008) (citations omitted); In re E.P., 478 N.W.2d 402, 403 (Iowa
1991) (holding that an appellate court is not bound by juvenile court’s factual
findings, but it gives them weight).
At the outset, the State asserts J.C. waived this argument on appeal by
failing to move for a continuance, pursuant to State v. Epps, 313 N.W.2d 553,
557–58 (Iowa 1981), and by failing to argue rule 2.5(3) applied to juvenile
delinquency hearings. The State argues, alternatively, that any error in not
disclosing Jackson’s testimony earlier did not constitute reversible error as both
A.W.’s mother and Mattox testified regarding the same subject matter—that it
5
would be detrimental to A.W. for her to testify at the hearing, so Jackson’s
testimony was cumulative.
J.C. has cited no authority in support of his assertion that the requirements
of rule 2.5(3) are applicable to this juvenile delinquency case. Iowa Code section
232.35 provides that the manner of commencing “a formal judicial proceeding to
determine whether a child has committed a delinquent act” is by the filing of a
petition. Section 232.36 specifies the contents of the petition. Iowa Rules of
Juvenile Procedure 8.1 and 8.2 set forth the scope of discovery and access to
records. In the case of In re Dugan, 334 N.W.2d 300, 305 (Iowa 1983), our
supreme court rejected a claim that a juvenile delinquency petition must also
comply with what was then rule 5(3) (now rule 2.5(3)). “We have long recognized
that a juvenile court proceeding is not a prosecution for crime, but a special
proceeding that serves as an ameliorative alternative to a criminal prosecution.”
In re C.T.F., 316 N.W.2d 865, 866-67 (Iowa 1982). Accordingly, J.C.’s claim
based on a violation of rule 2.5(3) is rejected.
Although J.C. cites no other authority in support of his claim of surprise as
to the testimony of Jackson, we note J.C. has neither claimed the lateness of
disclosure disadvantaged him in trial preparation nor shown that the subject of
Jackson’s testimony was a surprise. Accordingly, we agree with the district court
that “[J.C.] knew [A.W.’s availability] was going to be an issue,” and we find that
because J.C. was presented with the correspondence between the State and
Jackson—which evidenced that Jackson would testify regarding unavailability—
the court committed no error in allowing the testimony.
6
III. Mattox’s and Dr. Harre’s Testimony
Next, J.C. asserts the trial court’s admission of Mattox’s testimony, Dr.
Harre’s testimony, and Dr. Harre’s exam report violated his Confrontation Clause
right as the admission included A.W.’s testimonial statements, J.C. had no prior
opportunity to cross-examine A.W., and A.W. was not “unavailable.” The trial
court admitted Mattox’s and Dr. Harre’s testimony pursuant to Iowa Rules of
Evidence 5.803(4) and 5.807. It noted J.C.’s Confrontation Clause objection, but
did not elaborate on it in its order.1 We review Confrontation Clause claims de
novo. State v. Harper, 770 N.W.2d 316, 319 (Iowa 2009) (citations omitted).
The Sixth Amendment to the United States Constitution guarantees that,
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI; see also
Iowa Const. art. I, § 10 (same). “[T]his provision bars ‘admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.’”
Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford v. Washington,
541 U.S. 36, 53–54 (2004)).
1
The State argues J.C. waived this claim for appeal by failing to file an Iowa Rule of Civil
Procedure 1.904(2) motion after the trial court failed to specifically address this claim in
its order, per State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa
1984). A rule 1.904(2) motion is the not a prerequisite to preserving appeal, however.
See Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002). “The test to determine the
sufficiency of an objection to preserve error is whether the exception taken alerted the
trial court to the error which is urged on appeal.” State v. Kennedy, 846 N.W.2d 517,
520-21 (Iowa 2014). We find error was preserved as, given J.C.’s numerous
Confrontation Clause objections, the “district court understood the substance of trial
counsel’s objection and was able to determine whether the objection had merit.” See id.
at 521. We will assume without deciding that error was preserved under the Iowa
Constitution as well. See id. at 522 (holding that the Federal and Iowa Confrontation
Clauses will be interpreted the same absent an assertion to the contrary).
7
Only testimonial statements come within the reach of the Confrontation
Clause. See Crawford, 541 U.S. at 51. Accordingly, we begin our analysis with
the threshold determination of whether A.W.’s statements to Mattox and Dr.
Harre were testimonial. See Harper, 770 N.W.2d at 321. Our analysis will
address the issue generally as J.C.’s brief does not identify specific statements
that he claims were testimonial.
The Iowa Supreme Court determined whether a child’s out-of-court
statements describing sexual abuse were testimonial in State v. Bentley. See
739 N.W.2d 296, 297 (Iowa 2007). That case involved a ten-year-old girl’s out-
of-court statements made to a Child Protection Center (CPC) counselor. Id. The
court held that “[t]he interview of [the child victim] was essentially a substitute for
police interrogation.” Id. at 299. In so holding, the court emphasized CPC’s
ongoing relationship with police, that police referred child victims of sexual abuse
to the CPC for “forensic interviews,” that police met with the CPC counselor prior
to the interview, that police were present during the interview, and that the child
victim was informed of their presence. Id. at 299-300. The “indicia of formality”
surrounding the child victim’s statements reinforced the court’s holding that the
statements were the “product of police interrogation.” Id. at 300 (noting that the
child victim spoke in room designed to facilitate forensic interviews, as indicated
by the observation window and video equipment, and the child victim answered
structured questions concerning past events).
The Iowa Supreme Court later distinguished Bentley from other
statements made to medical personnel in Harper, 770 N.W.2d at 316 and State
8
v. Schaer, 757 N.W.2d 630 (Iowa 2008). The Schaer court held that a woman’s
statements to medical personnel that she had been beaten were nontestimonial
because, unlike Bentley, they lacked an “indicia of formality.” See 757 N.W.2d at
637 (noting the lack of relationship between medical personnel and police
indicated the questioning was not “a substitute for police interrogation”). The
Harper court held that a woman’s statements to medical personnel that
defendant raped her, tied her, and set her house on fire were nontestimonial
because, unlike Bentley, the woman’s statements were made to assist the
doctors in treating her. See 770 N.W.2d at 323 (finding that doctor’s question to
the woman was posed to further her treatment, not to establish or prove some
fact).
A. Dr. Harre
Dr. Harre has been employed by CPRC since 2006. She is board certified
in child abuse pediatrics. During her interview with A.W., Dr. Harre asked
several questions regarding A.W.’s recent physical symptoms and the contact
J.C. had with her. She performed a physical examination thereafter and
completed a report based upon A.W.’s medical history, physical exam, and
emergency room records. Her report was medical—she indicated A.W. had no
abnormal physical symptoms or infections and need not follow up with her.
Even though Dr. Harre’s employer—the CPRC—is similar to the CPC
organization in Bentley, we find Dr. Harre’s interview lacked the “indicia of
formality” present in Bentley; indeed, any forensic elements Dr. Harre’s
examination exhibited were for the purposes of facilitating A.W.’s physical
9
examination. See 739 N.W.2d at 300. Given the medical nature of the
examination, A.W.’s statements were most similar to those in Harper.2 See 770
N.W.2d at 323. As such, they were nontestimonial. Since nontestimonial
statements fall outside the purview of the Confrontation Clause, neither the
admission of Dr. Harre’s testimony nor the admission of her exam report
constituted error. See Crawford, 541 U.S. at 51.
B. Mattox
Mattox has been employed by the CPRC since 2010. She is a trained
forensic interviewer. A.W. was referred to her by the police for the purposes of
ruling out sexual contact with a twelve-year-old child. The interview was
videotaped, and the police observed it on a closed circuit TV. Near the close of
the interview, the police passed a note to Mattox with additional questions.
Given that A.W. was not physically examined and that Mattox’s questions
concerned past events, we do not find A.W.’s statements were made for
procuring treatment like in Harper. See 770 N.W.2d at 323. Nor do we find the
interview here was informal, like in Schaer. See 757 N.W.2d at 637. Like
Bentley, the police referred A.W. to the CPRC, they relayed information to Mattox
prior to the interview, they were present for it, and they directed at least some of
Mattox’s questions. See 739 N.W.2d at 299–300. These questions pertained to
past incidents of sexual abuse and were asked in a room designed for forensic
2
The fact that the physical examination did not show any physical injuries or the need
for further medical treatment should not be considered as diminishing the medical
treatment reasons for the examination and the taking of a history as part of the
examination.
10
interviews. See id. at 300. Consequently, we find A.W.’s statements to Mattox
were testimonial.
The “Confrontation Clause is a constitutional error subject to a harmless-
error analysis.” Kennedy, 846 N.W.2d at 527 (citations omitted). It must be
proved “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained” to establish harmless error. Id. (citations
omitted). This requires a two-step analysis. See State v. Hensley, 534 N.W.2d
379, 383 (Iowa 1995). “The first step of the analysis requires us to ask what
evidence the fact finder actually considered to reach its verdict.” Kennedy, 846
N.W.2d at 527 (citations omitted). The second step requires us to “weigh the
probative force of that evidence against the probative force of the erroneously
admitted evidence standing alone.” Id. at 528 (citations omitted).
J.C. objected to the State’s offer of Exhibits 4 and 5—Mattox’s report and
video of her interview. In its written ruling, the court sustained the objection and
did not admit the exhibits into evidence. The court only referred to A.W.’s
statements to Mattox in its findings to confirm that J.C. had his clothes on and did
not penetrate A.W. However, the court stated that Dr. Harre also confirmed the
lack of penetration, and eyewitness accounts confirmed that J.C. was clothed
during the incident. In this regard, Mattox’s testimony as it pertains to A.W.’s
statements was cumulative.
The court relied largely on the eyewitness accounts of the other children,
the videos and photos that indicated J.C.’s heightened sexual awareness, and
Dr. Harre’s statements that A.W. communicated J.C. “touched her boob area and
11
her bottom area” in formulating its order. Applying the second step of test from
Kennedy, 846 N.W.2d at 528, we hold that the force of the properly admitted
evidence was so overwhelming that there can be no reasonable doubt the verdict
would have been the same without the erroneously admitted testimony of Mattox.
Thus, any Confrontation Clause violation constituted harmless error. See State
v. Wells, 738 N.W.2d 214, 218 (Iowa 2007).
IV. A.W.’s Competency
J.C. asserts the trial court erred in allowing Dr. Harre and Mattox to testify
regarding A.W.’s statements when A.W. was not competent to testify herself.
A.W.’s competency is only relevant insofar as it goes to the reliability of Dr. Harre
and Mattox’s expert testimony; therefore, we characterize J.C.’s challenge as
one to the basis of Dr. Harre’s and Mattox’s expert opinion.
A. Dr. Harre
Dr. Harre conducted a medical examination of A.W., and she was called to
testify regarding her resultant medical opinion. Pursuant to rule 5.803(4), the trial
court allowed Dr. Harre to testify as to the statements A.W. made to her during
her examination—statements for the purposes of medical treatment or diagnosis.
As an expert, Dr. Harre could disclose the underlying basis for her opinion
so long as the court found that a patient’s statements are those upon which
doctors reasonably rely. See Iowa R. Evid. 5.703 cmt. (“[T]he underlying factual
basis for the opinion need not be previously admitted or even admissible
independently of the opinion, if it is of such a nature and type reasonably relied
upon by experts in the particular field.”); Brunner v. Brown, 480 N.W.2d 33, 35
12
(Iowa 1992) (holding that judge determines whether the evidence is reasonably
relied upon).
In admitting Dr. Harre’s statements pursuant to rule 5.803(4), the district
court found A.W.’s statements to be the type upon which a doctor would
reasonably rely. See State v. Hanes, 790 N.W.2d 545, 553 (Iowa 2010) (holding
that rule 5.803(4) requires the court to find the content of the statement must be
such as is reasonably relied on by a physician). Because of this finding, A.W.’s
statements were admissible pursuant to rule 5.703, notwithstanding questions
concerning her competency.3 See, e.g., Iowa R. Evid. 5.703 advisory
committee’s note (noting that the observation of the witness by a doctor is an
example of information reasonably relied upon).
B. Mattox
As we have already concluded Mattox’s testimony regarding statements
A.W. made during the interview was cumulative of the testimony offered by Dr.
Harre and the eyewitnesses, we conclude any error here was harmless as well.
V. Conclusion
We find the admission of Jackson’s testimony was not reversible error
because J.C. was neither surprised nor disadvantaged by it. The admission of
A.W.’s statements via Dr. Harre did not constitute error as A.W.’s statements
3
We note a court may not rely upon rule 5.703 to admit statements for their truth. See
Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 183 (Iowa 2004) (holding that evidence
admitted pursuant to 5.703 is not admissible as substantive evidence of the matters
asserted therein). However, in this case A.W.’s statements to Dr. Harre were also
properly admitted pursuant to rule 5.803(4), and thus, the statements could be
considered for the truth of the matter asserted. The fact the statements were also
admissible pursuant to rule 5.703 did not preclude the trial court from considering their
truth.
13
were nontestimonial and A.W.’s incompetency went to the credibility of Dr.
Harre’s opinion, not its admissibility. The admission of A.W.’s statements to
Mattox constituted harmless error given their cumulative nature and the trial
court’s lack of reliance on them. We affirm the trial court’s order.
AFFIRMED.
Vaitheswaran, P.J., concurs; Tabor, J., dissents.
14
TABOR, J. (dissenting)
I respectfully dissent. J.C.’s right to confront witnesses against him was
violated by the admission of testimonial statements from A.W. offered through Dr.
Harre and forensic interviewer Michele Mattox. Dr. Harre and Mattox work
together at the Child Protection Response Center (CPRC) in Davenport. Dr.
Harre is the medical director there and Mattox conducts forensic interviews with
children who are referred because of physical and sexual abuse issues. The
center receives referrals from police departments, the Iowa Department of
Human Services, other physicians, therapists, and emergency rooms.
Dr. Harre testified A.W. was referred from the Genesis emergency room
where she was seen on July 3, 2013. A.W.’s mother and grandmother first took
A.W. to the police station after learning she may have been molested. The
mother testified:
they told me to take her in, get her examined. . . . Then the hospital
told me to make an appointment with the doctor lady to talk to her
and find out if there was anything else going on, and that’s what I
did. And we just waited for it all to come out the way it did.
A.W.’s father brought A.W. to the CPRC nearly one month later, on July 31,
2013.
Dr. Harre’s report offered into evidence described the “presenting
concerns” as follows: “The referral to this Center was to address concerns
brought up after the recognition of a 12-year-old adolescent boy being caught
being inappropriate with this child.” The letter exhibit authored by Dr. Harre
recounted the history of the incident in detail as told to her by A.W.’s father
15
before Dr. Harre interviewed A.W.4 Dr. Harre’s report continued: “[A.W.] did
separate to go with this examiner to the history taking area.” At this juncture, Dr.
Harre reviewed “truth lie concepts with the child” and “did stress that it was
important for her to tell me the truth.” It was in the “history taking area” where
A.W. told Dr. Harre that J.C. “touched me boob” and “touched front bottom.” It
was also during this pre-exam interview that Dr. Harre asked A.W. how the
touching felt, and A.W. responded, “Hurt.” For the physical evaluation process,
Dr. Harre and A.W. moved to a separate examination room, where they were
joined by A.W.’s father. A.W.’s medical exam did not reveal any abnormal
conditions that Dr. Harre attributed to the alleged abuse.
The majority decides A.W.’s statements to Dr. Harre were properly
admitted because they were “nontestimonial” and therefore fell “outside the
purview of the Confrontation Clause”—distinguishing State v. Bentley, 739
N.W.2d 296, 301-02 (Iowa 2007) and relying on State v. Harper, 770 N.W.2d
316, 323 (Iowa 2009). This argument was not advanced by the State on appeal.
Instead, the State argued in its brief that A.W.’s statements to Dr. Harre and
Mattox were admissible because they bore sufficient “indicia of reliability” under
Ohio v. Roberts, 448 U.S. 56 (1980). The State failed to recognize in its brief
that Roberts was abrogated by Crawford v. Washington, 541 U.S. 36, 58 (2004).
4
At the end of the letter to the Scott County Attorney, Dr. Harre wrote: “Thank you for
allowing me to participate in this assessment of this child and family. Please feel free to
contact me if you have any further questions or concerns not adequately addressed in
this report are raised. Face-to-face time with the patient and family involved 1½ hours.
Report creation required 2½ hours of time.” It is not apparent from the record why the
prosecution needed to know the hours spent by the center on the child abuse
assessment.
16
I do not believe we should “assume a partisan role and undertake the [appellee’s]
research and advocacy.” See State v. Piper, 663 N.W.2d 894, 914 (Iowa 2003)
overruled on other grounds by State v. Hanes, 790 N.W.2d 545 (Iowa 2010).
Even if we were to undertake the State’s role in researching the
confrontation clause issue, I would find the facts in this case more closely
resemble the circumstances in Bentley than in Harper. Bentley held the
statements of J.G., a ten-year-old sexual abuse victim, to a forensic interviewer
were testimonial because of the indicia of “formality” at the child protection
center. The Bentley court wrote:
J.G. spoke in a calm environment responding to a series of
structured questions posed by [the interviewer]. The statements
constituted a historical account of past events, deliberately provided
in response to questioning regarding past events. The statements
were made in an environment designed and equipped to facilitate
forensic interviews calculated to collect evidence against those
suspected of abusing children.
739 N.W.2d at 300.
The majority accurately notes the similarity between Dr. Harre’s child
abuse response center and the child protection center in Bentley. But the
majority goes on to find Dr. Harre’s interview lacked the indicia of formality found
in Bentley because any forensic elements were aimed at facilitating A.W.’s
physical examination. The majority reasons: “Given the medical nature of the
examination, A.W.’s statements were most similar to those in Harper.” In Harper,
our supreme court distinguished the arranged, formal interview with the victim in
Bentley, from an emergency room doctor’s question, “what happened?” to a
badly burned patient brought in by ambulance. Harper, 770 N.W.2d at 323. The
17
Harper court found the victim’s response that the defendant raped her, bound
her, and set her house on fire was nontestimonial because its primary purpose
was to assist the physicians in treating her and not for use in a future
prosecution. Id. (applying test from Davis v. Washington, 547 U.S. 813, 822
(2006)).5
I respectfully disagree with the majority’s analysis. While it may not be the
final interpretation of the federal confrontation clause,6 we are currently bound to
follow our supreme court’s ruling in Bentley. A medical purpose for the child’s
interview did not sway the Bentley court to find the child’s statements to be
nontestimonial. Bentley, 739 N.W.2d at 302 (acknowledging “one of the
significant purposes of the interrogation was surely to protect and advance the
treatment of J.G.”). The Bentley court found “the extensive involvement of the
police in the interview rendered J.G.’s statements testimonial.” Id.; see also
United States v. Bordeaux, 400 F.3d 548, 556 (8th Cir. 2005) (“That AWH’s
statements may have also had a medical purpose does not change the fact that
they were testimonial, because Crawford does not indicate, and logic does not
5
The Harper court also cites Giles v. California, 554 U.S. 353, 376 (2008) for the
proposition that statements to physicians through the course of treatment would only be
excluded by hearsay rules. That proposition was dicta in Giles as the Court’s holding
was based on the doctrine of forfeiture by wrongdoing. Id. at 377.
6
The United States Supreme Court held oral argument last month in a confrontation
clause case involving a child witness reporting abuse in response to a question from a
day care teacher. See Ohio v. Clark, 2015 WL 865313 (March 2, 2015). A divided Ohio
Supreme Court decided the statements were testimonial because the teacher, a
mandatory reporter, acted in a dual capacity, as both an instructor and as an agent of
the state for law-enforcement purposes, when eliciting statements from child as to how
child had been injured and admission of the statements at trial violated defendant's
confrontation rights. State v. Clark, 999 N.E.2d 592, 599-600 (Ohio 2013). The U.S.
Supreme Court’s decision in Clark may shed more light on when a child’s report of
abuse will be considered testimonial.
18
dictate, that multi-purpose statements cannot be testimonial.”); see also State v.
Henderson, 160 P.3d 776, 791 (Kan. 2007) (chronicling post-Davis cases holding
statements obtained during interviews in child advocacy centers were
testimonial).
It is true an officer did not accompany A.W. to the interview with Dr. Harre
and police were not as directly involved as in the Bentley case. But A.W.’s family
sought help from the police, who referred them to the emergency room staff, who
referred them to Dr. Harre. Dr. Harre did not see A.W. until one month after the
incident. The purpose of A.W.’s visit to the center was to address concerns
about inappropriate contact from an older child. Dr. Harre did not limit her
interaction with the child to a medical exam. Instead, she took A.W. to a “history
taking area” of the center, where the doctor quizzed the child on the difference
between telling the truth and lying. Dr. Harre then asked a series of carefully
crafted questions, which elicited A.W.’s statements incriminating J.C. that Dr.
Harre repeated in court. As the court noted in Bentley, child protection centers
serve laudable goals. Id. But their primary goals include evidence gathering and
securing a child’s statements for use in a later prosecution. Id. The purpose of
Dr. Harre’s scheduled interview with A.W. was a far cry from the single, on-the-fly
question of “what happened” asked by a doctor in the emergency room where
Harper’s victim was brought by ambulance for urgent treatment. See Davis, 547
U.S. at 822 (drawing a distinction between nontestimonial statements made
under circumstances objectively indicating the primary purpose was “to meet an
19
ongoing emergency” and testimonial statements made to “prove past events
potentially relevant to later criminal prosecution”).7
The majority is right in concluding this case differs from Bentley. But I
question whether it diverges enough that A.W.’s statements may be viewed as
falling outside the “core” class of testimonial statements discussed in Crawford.
See Crawford, 541 U.S. at 51. We must ask whether A.W.’s interview with Dr.
Harre was the “functional equivalent” of ex parte in-court testimony? See id. I
find it telling that Dr. Harre took pains at the start of her questioning to establish
A.W. knew the importance of telling the truth—a hallmark of creating reliable
“testimony.” And while Dr. Harre’s questions did not come directly from the
police, as was the case in Bentley, involvement with law enforcement and the
prosecution stood as bookends to the work of the CRPC. The family’s first stop
was the police station; the trip to the emergency room and later to Dr. Harre’s
center served as evidence-gathering for the police. Then Dr. Harre’s report was
ultimately sent to the county attorney with gratitude for being part of the
“assessment” process.
7
After Bentley and Harper were decided, the United States Supreme Court further
refined the definition of testimonial statements in Michigan v. Bryant, 131 S. Ct. 1143,
1160 (2011). The Bryant majority held the “primary purpose” inquiry from Davis was an
objective test, and depended on the circumstances surrounding the interview rather than
the subjective intent of the participants. Id. The majority allowed that “the statements
and actions of both the declarant and interrogators provide objective evidence of the
primary purpose of the interrogation.” Id. The majority also explained that while
formality was not the “sole touchstone” of the primary purpose inquiry, formality
suggested “the absence of an emergency and therefore an increased likelihood that the
purpose of the interrogation is to establish or prove past events potentially relevant to
later criminal prosecution.” Id.
20
When addressing confrontation clause challenges involving children’s
statements to medical professionals, courts from other jurisdictions have
considered whether the professionals were essentially acting in a law
enforcement capacity. E.g., compare United States v. Squire, 72 M.J. 285, 288
(C.A.A.F. 2013) (holding pediatrician was not acting as law enforcement when he
conducted sexual assault exam of eight-year-old alleged victim when
pediatrician’s only connection to law enforcement was role as a mandatory
reporter) with United States v. Gardinier, 65 M.J. 60, 65 (C.A.A.F. 2007) (holding
child’s statements made to a sexual assault nurse examiner were testimonial
because the sheriff’s office was involved in arranging the interview and the
nurse’s report was sent to law enforcement).
When the interview serves a dual role—obtaining information for a medical
exam and preserving the child’s account for a possible future prosecution—at
least one court has determined the primary purpose from the content and
circumstances of the child’s statements. See State ex rel. Juvenile Dep’t of
Multnomah Cnty. v. S.P., 215 P.3d 847, 866 (Or. 2009). When faced with a
question very similar to the one before us today, the Oregon Supreme Court held
the child’s statements to a pediatrician and social worker at CARES, a child
abuse response program, were testimonial as the child identified a particular
youth as his abuser and described the occurrence and extent of the abuse. Id.
The court reasoned:
Obviously, no witness goes into court to seek medical
treatment. But witnesses do go into court to describe past sexual
misconduct, and that is exactly what N did at CARES. N made his
statements in a formal setting, in response to structured questions
21
about past events with potential serious consequences for [S.P.].
From a functional standpoint, N’s examination was similar to the ex
parte examinations condemned in Crawford. N acted as a witness;
he bore testimony against [S.P.]. . . . [W]e acknowledge that N’s
evaluation served two purposes. CARES sought to produce
statements that it could use against [S.P.] in this proceeding, and it
also sought to determine the extent of N’s abuse in order to
recommend treatment. Those are laudable goals, but they do not
change the fact that CARES conducts the sort of ex parte
examinations that trigger the right secured by the Confrontation
Clause.
Id. at 864–65.
I find the Oregon court’s analysis to be persuasive under the existing case
law. Unless and until we receive different guidance on the Confrontation Clause
from the United States Supreme Court or our own supreme court, I believe under
Crawford and Bentley, A.W.’s statements were the equivalent of in-court
testimony. Because J.C.’s attorney did not have an opportunity to cross examine
her, I would reverse and remand for a new adjudication hearing without the
improper evidence from Mattox and Dr. Harre.
In the Interest of J.C., Minor Child, J.C., Minor Child
Combined Opinion