State of Tennessee v. Christopher Gatewood

03/20/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 24, 2018 Session

STATE OF TENNESSEE v. CHRISTOPHER GATEWOOD

Appeal from the Criminal Court for Hamilton County
No. 292487 Don. W. Poole, Judge

No. E2017-00653-CCA-R9-CD

The Defendant, Christopher Gatewood, is charged in the Hamilton County Criminal
Court with rape of a child. See T.C.A. § 39-13-522 (2014). The State contends in this
interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9 that the trial
court erred in granting the Defendant’s motion in limine to exclude evidence of the
alleged victim’s statements to a nurse practitioner on Confrontation Clause grounds. We
affirm the order of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; Boyd Patterson and
Leslie Longshore, Assistant District Attorneys General, for the appellant, State of
Tennessee.

D. Marty Lasley (on appeal) and William Speek (at hearing and on appeal), Chattanooga,
Tennessee, for the appellee, Christopher Gatewood.

OPINION

The Defendant’s charge relates to the alleged rape of his then-twelve-year-old
stepdaughter, A.J. Defense counsel filed a motion in limine to exclude hearsay evidence
and statements from non-testifying witnesses. The motion did not address specific
hearsay or witnesses, but at the hearing on the motion, the parties identified the evidence
at issue as A.J.’s statements to a nurse practitioner at the Children’s Advocacy Center.
A.J.’s statements included allegations of vaginal and anal rape the previous evening and
of past sexual touching by “her dad.” After receiving evidence at the hearing, the trial
court granted the Defendant’s motion in limine to exclude evidence of A.J.’s statements.
The court found that the primary purpose of the statements was “testimonial” and, as
such, admission of them would violate the Defendant’s constitutional right to confront
adverse witnesses. The State filed a motion for permission to pursue an interlocutory
appeal pursuant to Tennessee Rule of Appellate Procedure 9, and the trial court granted
the State’s motion. The State then filed an application for an interlocutory appeal in this
court, which was granted.

Facts

At the hearing on the motion in limine, Ashley O’Barr Haynes, a pediatric nurse
practitioner at the Children’s Advocacy Center of Hamilton County, testified as an expert
witness in child sexual assault examination. She said that on August 29, 2013, A.J. and
A.J.’s mother arrived at the Children’s Advocacy Center and completed paperwork
related to demographic information and medical history. Nurse Practitioner Haynes said
that she obtained A.J.’s medical history for the purpose of medical diagnosis and
treatment and that she did not conduct a forensic interview. She said the interview she
obtained was “to assure the child is physically safe and that their body and self are safe.”
She added that it was “important to get a history of what occurred in order to properly
assess the child.” She said the interview “helps guide the exam so I know what to look
for.” She agreed that based upon the statements made by a child and the examination of
the child, she was able to prescribe further treatment, such as medication, counseling, and
medical treatment.

Nurse Practitioner Haynes testified that she took the following history from A.J.:1
A.J. was going to bed when she saw a light come on in her room. A.J. saw “her dad,”
who moved her and got into bed with her. He removed her pants and underwear and
raped her vaginally and anally. A.J.’s father did not wear a condom, and A.J. did not
bleed. The events occurred around 9:00 p.m. on August 28, 2013. On four prior
occasions in 2012 and 2013, A.J.’s father opened her legs and rubbed her vagina. A.J.
did not indicate that the prior incidents involved penetration. On the previous evening,
A.J. first told her mother about the events.

1
The State contends in its brief and its oral argument before this court that the information about the alleged offense
was elicited by an open-ended question posed by Nurse Practitioner Haynes to A.J. The record merely reflects that
Nurse Practitioner Haynes asked A.J. about what happened and took a statement from A.J. Nurse Practitioner
Haynes was not asked whether, nor did she state, she obtained the information from A.J. through a single, open-
ended question. During cross-examination about A.J.’s statements recorded in Nurse Practitioner Haynes’s report,
Nurse Practitioner Haynes described asking “questions,” including whether the perpetrator had anything on his penis
and if any bleeding occurred. Nurse Practitioner Haynes also referred to her “discussion with” A.J. regarding the
approximate time A.J. had gone to bed the previous evening.
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 Nurse Practitioner Haynes testified that because A.J. reported a sexual assault
occurring within the past seventy-two hours, “[I]t was decided between myself and law
enforcement that a rape kit would be necessary to collect.” Nurse Practitioner Haynes
said she performed a head-to-toe examination and collected the rape kit. She agreed that
she did not find physical trauma. Nurse Practitioner Haynes said she also performed a
urinalysis to determine whether A.J. was pregnant and prescribed medication that
provided prophylaxis for pregnancy and sexually transmitted infections. Nurse
Practitioner Haynes said A.J. seemed to be reliable and gave a consistent statement but
acknowledged that A.J. could have been lying, although she had no suspicion that A.J.
had been untruthful.

Nurse Practitioner Haynes acknowledged that, at the time she examined A.J., she
did not have the credentials to conduct a forensic interview pursuant to Tennessee Code
Annotated section 24-7-123, pertaining to admission of a video recording of a child’s
interview regarding a sexual assault. She said, however, that she had since obtained the
certification, although she did not conduct forensic interviews in her employment. When
asked, “Did you tell [the victim and her mother] you work with law enforcement?”
Nurse Practitioner Haynes said, “That’s not really part of what I explain to the child.”
When asked further, “Did you do that, though?” she said, “No.” She responded
affirmatively when asked, “Did the child know that the purposes of this examination was
[sic] for her own health benefit?” Nurse Practitioner Haynes did not recall whether a law
enforcement officer had been present when A.J. arrived at the Children’s Advocacy
Center, but she said she collected evidence for A.J.’s rape kit and provided it to the
detective who was working on A.J.’s case. Nurse Practitioner Haynes did not know how
the victim and her mother were transported to the Children’s Advocacy Center and said
she assumed they had been instructed to go to the center by the Department of Children’s
Services (DCS) or law enforcement. When asked, “So it’s your understanding the police
directed her to you?” Nurse Practitioner Haynes responded, “Police or DCS.”

The report Nurse Practitioner Haynes prepared relative to her interview and
examination of A.J. was received as an exhibit. It includes the following information:

08/29/2013 – Office Visit: Sexual Abuse Medical Examination

...

Sexual Assault Exam

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...

REASON FOR REFERRAL

Reason for Referral: alleged rape

Date of Occurrence: 8/29/2013

City of Occurrence: Chattanooga

State of Occurrence: Tennessee

Date of Exam: 8/29/2013

...

Location of Care: Children’s Advocacy Center

Case Worker: A. Haithcock, DCS Hamilton County

Referring Agency: Chattanooga Police Department

Law Enforcement: G. Fugh, CPD

...

Patient Instructions:

1) The purpose of this exam is to collect evidence and document
trauma, if present.

2) The medical evaluation is not used as the only evidence to support or
deny that abuse has occurred.

3) Most importantly, it is performed to reassure you and your child that
his [sic] body is okay.

4) Medications sent to Wal-Mart include:

5) Cefixime 400mg tablet, take one by mouth

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 6) Metronidazole 2g tablet, take one by mouth

7) Azithromycin 1g tablet, take one by mouth

8) Plan B 1.5mg tablet, take one by mouth – if vomiting occurs within
two hours, will need to call 423-778-9107 to get another dose prescribed.
Please ask for Ashley O’Barr, Lillie Rucker, or Dr. Karla Garcia.

9) Do not take the Plan B until I contact you to inform you urine
pregnancy tests are negative.

10) Recommend counseling.

11) Recommend return visit at CAC in approximately 4 weeks;
scheduled for Tuesday, September 24th at 9am.

12) I will be in touch with Chattanooga Police Department detective
today. Please call him with any questions or concerns.

13) Patient to call if any questions.

Elsewhere in the report, the “Requesting Physician” is listed as “Chattanooga Police
Department.”

The exhibit containing A.J.’s medical records included the paperwork which
Nurse Practitioner Haynes testified had been completed by A.J. and A.J.’s mother. On
the line following the question, “Who referred the patient for the exam?” a handwritten
response states, “Chattanooga Police.” In response to the question, “Is there a law
enforcement agent (police officer/detective) involved in the case?” the box corresponding
with “yes” is marked, and a handwritten response states the “name” is “Chatt. P.D.”
Responses elsewhere indicate A.J.’s primary care physician to be “Whitfield County,”
that the reason for the examination on August 29, 2013 was “physical for school,” and
that the “alleged event” occurred on August 28, 2013. The person who completed the
form expressed concern about “her being permanently damaged physically and scarred
emotionally.”

At the hearing, the prosecutor stated that sixteen-year-old A.J. did not live in
Tennessee and that the State did not intend to call her as a witness at the trial. The
prosecutor acknowledged, however, that A.J. was not unavailable as a witness. The

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prosecutor argued that A.J.’s statements to Nurse Practitioner Haynes were admissible
hearsay exceptions pursuant to Tennessee Rule of Evidence 803(4) because they were
statements made for medical diagnosis and treatment. The defense argued that admission
of the statements would violate his right to confront adverse witnesses. See Crawford v.
Washington, 541 U.S. 36 (2004). Defense counsel asserted that after A.J. made the
allegations, she later recanted by telling multiple individuals that she had fabricated the
allegations. Thus, counsel argued, admission of A.J.’s statements to Nurse Practitioner
Haynes without A.J.’s testimony deprived the Defendant of the opportunity to confront
his accuser and to present impeachment evidence.

Appellate Issues

In this appeal, the State contends that the trial court erred in ruling that A.J.’s
statement to Nurse Practitioner Haynes would be excluded at the Defendant’s trial. The
State argues that the statements were made for the primary purpose of medical diagnosis
and treatment and were neither testimonial nor inadmissible hearsay. The State also
argues that A.J.’s statements about the alleged offense, as recorded in her medical records
created at the Children’s Advocacy Center, are admissible pursuant Tennessee Rule of
Evidence 803(6), pertaining to the hearsay exception for business records. The State did
not advance the latter theory of admissibility in the trial court. The Defendant contends
that the trial court did not err in ruling that A.J.’s statements to Nurse Practitioner Haynes
were inadmissible.

Legal Principles

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.” Tenn.
R. Evid. 801(c). Hearsay is inadmissible unless it qualifies as an exception. Id. at 802.
Tennessee Rule of Evidence 803(4) provides a hearsay exception for “[s]tatements made
for purposes of medical diagnosis and treatment describing medical history; 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 and treatment.”

The Confrontation Clause provides a criminal defendant the right to confront and
cross-examine witnesses. See U.S. Const. amends. VI, XIV; Tenn. Const. art. I, ' 9;
State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). In State v. McCoy, 459 S.W.1, 13-
14 (Tenn. 2014), our supreme court said that Article I, section 9 of the Tennessee
Constitution placed no additional restrictions on the admission of hearsay statements
beyond the limits of the federal constitution, as explained in Crawford v. Washington,
541 U.S. 36, 59 (2004). Thus, the same standards apply in interpreting a defendant’s

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confrontation rights under the state and federal constitutions. See State v. Hutchison, 482
S.W.3d 893, 905) (Tenn. 2016). In analyzing whether an out-of-court statement is barred
by the Confrontation Clause, inquiry begins with “whether the challenged statement is
testimonial.” See id.; State v. Dotson, 450 S.W.3d 1, 63 (Tenn. 2014). The
Confrontation Clause has no bearing on the admission of statements which are
nontestimonial hearsay. Hutchison, 482 S.W.3d at 905-06 (citing Davis v. Washington,
547 U.S. 813, 823-24 (2006)); Dotson, 450 S.W.3d at 63. Thus, the admissibility of a
nontestimonial statement is determined by the traditional rules regarding the admission of
hearsay evidence. State v. Cannon, 254 S.W.3d 287, 303 (Tenn. 2008); see Davis, 547
U.S. at 821.

A precise definition of what constitutes a testimonial statement has proven elusive.
See, e.g., Williams v. Illinois, 132 S. Ct. 2221 (2012) (proposing, in a plurality and two
separate opinions, three methods for determining whether a statement is testimonial);
Dotson; 450 S.W.3d at 68-70 (noting the difficulty of discerning a cohesive, narrow rule
from the fractured opinions of the Williams court). Recently, our supreme court
analyzed Williams and prescribed a framework for determining which evidence is
testimonial. See Dotson, 450 S.W.3d at 69. In this regard, a statement is testimonial “’if
its primary purpose is evidentiary and it is either a targeted accusation or sufficiently
formal in character.’” Dotson, 450 S.W.3d at 69 (quoting Young v. United States, 63
A.3d 1033, 1043-44 (D.C. 2013)); see Hutchison, 482 S.W.3d at 910.

In determining what statements are testimonial, our supreme court has also looked
to the examples provided by Crawford:

Various formulations of this core class of “testimonial” statements exist:
“ex parte in-court testimony or its functional equivalent–that is, material
such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially,”
“extrajudicial statements . . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions,”
“statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial.” These formulations all share a common
nucleus and then define the Clause’s coverage at various levels of
abstraction around it. Regardless of the precise articulation, some
statements qualify under any definition—for example, ex parte testimony at
a preliminary hearing.

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Hutchison, 482 S.W.3d at 906 (quoting Crawford, 541 U.S. at 51-52).

In order for a testimonial statement to be admissible, the declarant must be
unavailable to testify, and the defendant must have had a prior opportunity to cross-
examine the declarant. Crawford, 541 U.S. at 53-55; see Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309 (2009). However, the Confrontation Clause is not
implicated when testimonial statements are not used to show the truth of the matter
asserted. Crawford, 541 U.S. at 59 n.9. Similarly, no Confrontation Clause violation
occurs if the declarant is called as a trial witness and is subject to cross-examination
regarding the declarant’s prior testimonial statements. See Dotson, 450 S.W.3d at 73; see
also Crawford, 541 U.S. at 59, n.9; California v. Green, 399 U.S. 149, 162 (1970).

Trial Court’s Ruling

In its order, the trial court stated:

From the proof, lack of proof, and argument in this case, the Court
gathers:

(1) that the alleged victim was twelve at the time of the forensic
examination and is sixteen now;

(2) that the alleged victim and her mother did not seek diagnosis or
treatment on their own;

(3) that, as part of their investigation, police referred the alleged
victim for a forensic examination;

(4) that, although the forensic examiner was the first health-care
provider to examine the alleged victim after her report, apparently, the
alleged victim was not complaining of any physical or mental condition
necessitating diagnosis or treatment apart from the reported events, at least
some of which were remote in time, and there was no ongoing emergency;

(5) that the forensic examiner, who used the term “forensic” to
describe her role or the examination, had a role in the police investigation,
sharing what she learned, observed, or collected with police or other law
enforcement agencies, presumably, with the alleged victim’s or her
mother’s consent; and

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 (6) that, although the forensic examiner administered unspecified
treatment, there is no evidence that the perpetrator’s identity was a factor in
the treatment.

From these circumstances, the Court concludes that the examination had
dual purposes and that the primary purpose was testimonial.

The court noted that although some cases had discussed dissecting testimonial and non-
testimonial components of a statement, such an approach was not appropriate in the
present case because A.J.’s statement was not in evidence. The court found that at the
time of the forensic examination, the Defendant was the target of the investigation. From
its findings, the court concluded that the Confrontation Clause barred the State from
presenting Nurse Practitioner Haynes’s testimony about the victim’s statements regarding
the alleged offense.

The trial court went on to examine the applicability of Tennessee Rule of
Evidence 803(4) and stated the following:

While the Court agrees with the state that Rule 803 does not condition the
hearsay exceptions that it recognizes on the availability or unavailability of
the declarant, the application of hearsay exceptions is subject to
constitutional considerations that do depend on the availability or
unavailability of a declarant. Those constraints preclude admission of the
statement in issue pursuant to Rule 803(4).

Standards of Review

A trial court’s factual findings and credibility determinations relative to a hearsay
issue are binding upon an appellate court unless the evidence preponderates against them.
Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The determination of whether the
statement in question is hearsay and whether a hearsay exception applies are questions of
law that are reviewed de novo. Id. A question of whether a defendant’s right of
confrontation is violated by the admission of evidence is one of law, which we review de
novo. See, e.g., State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014).

Analysis

As we have stated, the trial court found that, as a function of the law enforcement
investigation, the police referred A.J. to the Children’s Advocacy Center for a forensic
examination, that A.J. and her mother did not seek medical treatment independently, that

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no ongoing emergency existed, that Nurse Practitioner Haynes was a participant in the
police investigation because she shared the information she obtained with the police, and
that, although treatment was prescribed, no evidence showed that the alleged
perpetrator’s identity was a factor in the treatment provided. From these findings, the
court concluded that the primary purpose of A.J.’s statement, as recounted in Nurse
Practitioner Haynes’s testimony at the hearing on the motion in limine, was testimonial.

As Hutchison outlines, testimonial and nontestimonial statements are
distinguished by examining the primary purpose of the statement. Id. (relying on Davis,
547 U.S. at 822). In this regard, Davis provides:

Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822; see Hutchison, 482 S.W.3d at 906.

Nurse Practitioner Haynes testified to her understanding that A.J. had been
referred to the center by the police or DCS. Although the State argues on appeal that
Nurse Practitioner Haynes’s testimony was based upon an assumption regarding how A.J.
was directed to the Children’s Advocacy Center, the intake paperwork completed by
A.J.’s mother reflects that A.J. was referred to the center by the Chattanooga Police
Department.

The medical records also state that “the purpose” of the examination was “to
collect evidence and document trauma, if present.” The records also indicate that the
medical evaluation holds potential evidentiary value relative to claimed abuse and that
the examiner planned to communicate with a police detective the same day. The patient
instructions included a directive to call the detective with questions or concerns.

According to the evidence presented at the hearing, A.J. received a pregnancy test
and was provided with prophylaxis against pregnancy and sexually transmitted
infections. Nurse Practitioner Haynes testified that her questioning A.J. about the alleged
incident was necessary in order to determine the nature of the examination and the
necessary treatment.

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 In reviewing the trial court’s ruling in the present case, we are mindful of our
supreme court’s decision in Cannon, in which the victim called 9-1-1 immediately after
the assault and was taken by ambulance to an emergency room, where she made
statements that the she had been raped and received treatment for multiple physical
injuries. Cannon, 254 S.W.3d at 293. The victim did not testify at the trial. The
Tennessee Supreme Court deemed her statements to emergency room personnel to be
nontestimonial because they “were objectively for the primary purpose of seeking
medical diagnosis and treatment for injuries sustained in the attack.” Id. at 304. The
victim had also made statements to a police officer at the emergency room, and the court
deemed these statements to be testimonial because they were objectively made to
describe and establish a past crime and were not to enable the officer to respond to an
ongoing emergency. Id. After the victim had been examined and treated by emergency
room personnel, she made statements to a Sexual Assault Crisis Center nurse, who
questioned the victim with a detective. The nurse also performed a physical examination
of the victim. The court categorized the victim’s statements to the nurse as testimonial
because the statements were not reasonably pertinent to medical diagnosis and treatment
and were, instead, made for the primary purpose of showing past events with potential
relevance to a prosecution. Id. at 304-05.

Upon review, we conclude that the evidence does not preponderate against the
trial court’s finding that the primary purpose of the questioning and examination which
yielded A.J.’s statement was to gather evidence of the alleged offense for possible use in
a future prosecution. A.J. and her mother did not go to the Children’s Advocacy Center
on their own seeking medical treatment. Rather, they went there at the direction of the
police. Nurse Practitioner Haynes and the police consulted while the victim was at the
Children’s Advocacy Center because the record reflects that the police were involved in
the decision to administer a rape kit and that the police received the completed rape kit
and information about the findings of the examination. The evidence does not show that
A.J. presented with any physical injuries requiring immediate medical treatment. Rather,
A.J. sought treatment the day after the alleged incident, which was also the day after A.J.
first reported the alleged abuse. A.J.’s statements provided Nurse Practitioner Haynes
with information for determining the course of the examination, the purpose of which,
according to the medical records, was to gather evidence. Although the record
demonstrates that the victim received prophylactic treatment to prevent pregnancy and
sexually transmitted infections, that she received reassurance that her “body is okay,” and
that counseling was recommended, the trial court concluded that these purposes were
secondary.

The trial court’s findings, in turn, support its conclusion that A.J.’s statement was
testimonial and barred by the Confrontation Clause. See Davis, 547 U.S. at 822;

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Hutchison, 482 S.W.3d at 906. As we have noted, the State does not intend to call A.J. as
a trial witness but acknowledges that she is not “unavailable” as a witness. Testimonial
hearsay is inadmissible unless the declarant is called as a witness and the defendant is
afforded the opportunity to cross-examine the declarant regarding the prior statement.
See Dotson, 450 S.W.3d at 73; see also Crawford, 541 U.S. at 59, n.9; Green, 399 U.S. at
162; State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn. 2010) (stating that the
admissibility of testimonial hearsay is subject to Confrontation Clause scrutiny, whereas
the admissibility of nontestimonial hearsay is governed by the Tennessee Rules of
Evidence). Given the testimonial nature of the evidence and the lack of a showing of
A.J.’s unavailability, the trial court did not err in determining that the Confrontation
Clause precluded admission of the evidence, and that, as a result, the hearsay exception
provided by Tennessee Rule of Evidence 803(4) is unavailable as a means for admitting
this evidence.

The State also argues that the evidence of A.J.’s statement is admissible via her
medical records pursuant to Rule of Evidence 803(6), the hearsay exception for records
of regularly conducted activity. This theory was advanced in the State’s application to
this court for an interlocutory appeal but was not advanced in the trial court at the hearing
on the motion in limine. Rule 803(6) permits evidence of “opinions and diagnoses,”
provided the foundational requirements are met. See Tenn. R. Evid. 803(6). To the
extent that the records document A.J.’s statements, an issue of “hearsay within hearsay”
exists, and the evidence is admissible provided each component of the combined
statements fits within an exception to the rule against hearsay. See Tenn. R. Evid. 805.
The concern in this appeal is A.J.’s statements about the alleged offense. To the extent
that these statements are documented in the medical records, the trial court found that the
primary purpose of these statements was “to establish or prove past events potentially
relevant to later criminal prosecution” and that, therefore, they were testimonial. See
Davis, 547 U.S. at 822; Hutchison, 482 S.W.3d at 906. Thus, it is of no consequence
whether the evidentiary source of information is Nurse Practitioner Haynes’s testimony
or A.J.’s medical records. In the absence of a showing that A.J. is unavailable as a trial
witness and that she was subjected to cross-examination, the Confrontation Clause bars
admission of her statements to Nurse Practitioner Haynes via the medical records
pursuant to Rule 803(6). See Dotson, 450 S.W.3d at 73; see also Crawford, 541 U.S. at
59, n.9; Green, 399 U.S. at 162.

In reaching this conclusion, we have considered the State’s citation to State v.
Howard, 504 S.W.3d 260, 277-80 (Tenn. 2016), a case involving the admission of
records from the Hamilton County Children’s Advocacy Center pursuant to Tennessee
Rule of Evidence 803(6). The supreme court considered the issue of “hearsay within
hearsay” relative to the victims’ statements about the offenses, as documented in the

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records. The trial court determined, based upon the facts presented at an evidentiary
hearing, that the victims’ statements had been made for the purpose of medical diagnosis
and treatment, and the supreme court determined that the record supported the trial
court’s factual findings. See Howard, 504 S.W.3d at 280. Significantly, however, the
supreme court noted that no Confrontation Clause issue existed because the victims
testified at the trial and were subject to cross-examination about their statements as
documented in the records. Id. Thus, Howard is inapposite to the present case, in which
the Confrontation Clause issue is paramount because the State does not intend to call A.J.
as a witness.

We have also considered State v. Dean, 76 S.W.3d 352, 365 (Tenn. Crim. App.
2001), in which this court rejected the defendant’s claim that the trial court had
improperly admitted records from a rape victim’s emergency room examination by a
nurse employed by a sexual assault center, pursuant to Tennessee Rule of Evidence
803(6). The Dean defendant raised two issues relative to the admission of the evidence:
(1) whether the nurse qualified as a “keeper” of the records and (2) whether the records
were prepared for the purpose of litigation. Dean, 76 S.W.3d at 365. Significantly, the
defendant did not raise a challenge to any statements made by the victim that were
documented in the records, nor did he raise a Confrontation Clause challenge relative to
the records. See id. The victim in Dean testified at the trial. Id. at 357-58. Like
Howard, Dean is not instructive because no Confrontation Clause issue existed.

Finally, we address the alternative theory advanced by the State in its oral
argument in this court that the substance of A.J.’s statement about the alleged assault, but
not her identification of the alleged perpetrator, is admissible. We are unpersuaded. The
trial court considered the hearing evidence and determined that A.J.’s statements to Nurse
Practitioner Haynes about the alleged assault were made in circumstances which made
them testimonial in that they tended “to establish or prove past events potentially relevant
to later criminal prosecution.” See Davis, 547 U.S. at 822; Hutchison, 482 S.W.3d at
906. Excising A.J.’s identification of the alleged perpetrator does not change the
character of her statements about the events which comprised the alleged offense.

In consideration of the foregoing and the record as a whole, the order of the trial
court is affirmed.

_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE

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