Filed
Washington State
Court of Appeals
Division Two
April 4, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48827-2-II
Respondent,
v. UNPUBLISHED OPINION
JESSE LEE WILKINS,
Appellant.
MAXA, A.C.J. – Jesse Wilkins appeals his adjudication of attempted second degree rape
in juvenile court. Wilkins argues that the trial court erred in admitting testimony from a nurse
about a statement the alleged victim made during a sexual assault examination. He claims that
the testimony was hearsay and that the medical treatment exception to the hearsay rule in ER
803(a)(4) was inapplicable because the statements were made as part of a forensic, not medical,
investigation.
We hold that the nurse’s testimony was not hearsay under ER 801(c) and therefore it was
admissible. Accordingly, we affirm Wilkins’s juvenile adjudication for attempted second degree
rape.
FACTS
Charity Matthews and her four children were living at a hotel in Centralia. On July 1,
2014, she left her son Jesse (age 17) with her two younger daughters, CW (age 12) and AM (age
5). While driving back to the hotel, Matthews received a telephone call from CW, who was
crying and asked Matthews to come home right away.
No. 48827-2-II
When Matthews entered the hotel room, CW ran into Matthews’s arms. She was
screaming and crying and said that Jesse had raped her. Jesse denied it. Matthews then left with
her daughters and took CW to the emergency room in Centralia, to the police station, and to a
hospital in Olympia for a rape test.
The State charged Jesse with attempted second degree rape. At trial, CW testified that
Wilkins pulled down her pants. CW pulled her pants back up and tried to leave, but Wilkins put
his arms around her neck and choked her. Wilkins pulled down her pants again and forced her to
the floor, where Wilkins tried to put his penis in her anus and then in her vagina.
Lisa Curt, a nurse at Providence Hospital, performed a sexual assault examination on
CW. Her examination of CW revealed redness and irritation in the vaginal area and red pinpoint
bruising on her neck. The State asked Curt why she was examining CW’s neck. Curt responded
that “She had made claims that the person that assaulted her had wrapped his arms around her
neck, trying to choke her.” Report of Proceeding (Aug. 25, 2014) (RP) at 47. Wilkins objected,
but the trial court allowed the answer “for the purpose which is intended which is why she was
looking there.” RP at 47.
The trial court adjudicated Wilkins guilty of attempted second degree rape and imposed a
manifest injustice disposition. Wilkins appeals.
ANALYSIS
A. ADMISSION OF VICTIM’S STATEMENT TO A NURSE
Wilkins argues that the trial court erred when it admitted Curt’s testimony about CW’s
statement to her about being choked because it was hearsay and the medical treatment exception
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No. 48827-2-II
to the hearsay rule in ER 803(a)(4) was inapplicable. We hold that Curt’s testimony was not
hearsay and therefore the trial court did not err in admitting that testimony.
1. Legal Principles
Under ER 801(c), “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.”
Hearsay generally is inadmissible under ER 802, but ER 803 provides several exceptions to that
rule of inadmissibility. State v. Alvarez–Abrego, 154 Wn. App. 351, 366, 225 P.3d 396 (2010).
ER 803(a)(4) provides a hearsay exception for “[s]tatements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.” This exception applies to statements
reasonably pertinent to medical diagnosis or treatment. State v. Doerflinger, 170 Wn. App. 650,
664, 285 P.3d 217 (2012).
2. Hearsay Analysis
Wilkins argues that ER 803(a)(4) was inapplicable because CW’s statement were made
as part of a forensic, not medical, investigation. But the threshold question is whether Curt’s
testimony was hearsay at all.
Here, Curt’s testimony was not offered to prove the truth of the matter asserted – that the
person who assaulted CW wrapped his arms around her neck and tried to choke her. Instead, the
testimony was in response to a very specific question: why Curt examined CW’s neck. The trial
court expressly admitted the testimony for the narrow purpose of explaining why Curt was
looking at the neck. There is no indication that the trial court admitted the testimony or
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No. 48827-2-II
considered it as substantive evidence. Therefore, Curt’s testimony was not hearsay under ER
801(c) and the applicability of ER 803(a)(4) is immaterial.
We hold that because Curt’s testimony was not hearsay, the trial court did not err in
admitting that testimony.
B. APPELLATE COSTS
Wilkins asks us to deny any request the State may make to award appellate costs. A
commissioner of this court will consider whether to award appellate costs in due course under
the newly revised provisions of RAP 14.2 if the State decides to file a cost bill and if Wilkins
objects to that cost bill.
CONCLUSION
We affirm Wilkins’s juvenile court adjudication of attempted second degree rape.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
WORSWICK, J.
SUTTON, J.
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State Of Washington, V Jesse L. Wilkins
Combined Opinion