     Case: 14-51117        Document: 00513463394          Page: 1     Date Filed: 04/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 14-51117                        United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
UNITED STATES OF AMERICA,                                                      April 13, 2016
                                                                              Lyle W. Cayce
                                     Plaintiff - Appellee                          Clerk

v.

BRANDON EARL BARKER,

                                     Defendant - Appellant



                     Appeal from the United States District Court
                          for the Western District of Texas


Before JONES and SMITH, Circuit Judges and FITZWATER, ∗ District Judge.
EDITH H. JONES, Circuit Judge:
      Brandon Earl Barker (“Barker”) appeals his convictions under 18 U.S.C.
§ 2252(a)(2) and 18 U.S.C. § 2252(a)(4) for one count of possession of child
pornography and four counts of attempt to receive child pornography. He
argues that the district court’s admission of the out-of-court statements of a
child victim to a Texas-certified Sexual Assault Nurse Examiner (“SANE”)
violated his Sixth Amendment confrontation right. Because we hold, following
Ohio v. Clark, ___ U.S. ___, 135 S. Ct. 2173 (2015), that the child’s statements
to the SANE were non-testimonial, we affirm the district court’s admission of
the testimony and the conviction.


      ∗
          District Judge of the Northern District of Texas, sitting by designation.
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                                    BACKGROUND
       In July 2013, during a period of attempted marital reconciliation,
Barker’s ex-wife discovered files on his desktop computer with titles indicative
of child pornography. She recorded a cell phone video of the location of the
files. After arguing over the custody of the couple’s child a few days later,
Barker’s ex-wife told him she did not think that her daughter was safe in his
care and she “knew what he was doing on his computer.” She then informed
the police that she had discovered child pornography on Barker’s computer.
The police seized Barker’s computer.               A forensic analysis subsequently
discovered over 180 images, over 100 files, and one video of child pornography.
       At Barker’s trial, the Government moved in limine to introduce evidence
of Barker’s alleged prior sexual abuse of a young girl.             In its proffer outside
the presence of the jury, the Government called Judy LaFrance (“LaFrance”),
the director of nursing in the emergency department of Hendrick Medical
Center and a Texas-certified SANE. LaFrance testified to the duties of a
SANE, noting that a SANE is tasked with medically evaluating a patient
referred by law enforcement for a sexual assault exam. 1 The police are not
present during this examination; the nurse and patient are alone in the room.
The evaluation comprises obtaining an assault history from the patient,
performing a head-to-toe physical examination, and preparing the patient for
a discharge. The medical history is essential to proper and complete diagnosis
and treatment of the patient. Before discharge, the SANE may recommend




       1 To become certified, LaFrance received extra training in OB-GYN procedures and
exposure to criminal justice practices. A SANE is a medical first responder to cases involving
possible sexual assault.

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                                      No. 14-51117
specialty referrals, prescribe medications, and consider safety measures 2 to
ensure the patient’s future well-being.           Though LaFrance stated that the
purpose of an exam is to “ensure the medical well-being” of the patient, a SANE
also writes a report that is turned over to law enforcement and, if necessary,
collects evidence.
       After describing the duties of a SANE, LaFrance discussed a specific
examination that she performed in June 2003 on a four and a half year old
juvenile, A.M., upon the referral of the local police.            The juvenile and her
mother—who was Barker’s girlfriend at the time—arrived at the hospital
emergency room where LaFrance examined her. LaFrance testified that when
she obtained A.M.’s assault history, the girl stated that she was at the hospital
because: “‘Last night my daddy put his peepee thing’—and she pointed to a
penis on a male doll—‘in my mouth. We were at our new house. My mom was
at work. Bubba was there. And we were in my mom and daddy’s waterbed.’”
LaFrance also testified that her examination of A.M. revealed redness or
tenderness underneath the girl’s tongue.
       Barker objected to LaFrance’s testimony and contended that A.M.’s
statements were hearsay, as well as testimonial in nature in violation of the
Confrontation Clause.          However, the district court concluded that the
statements posed no Confrontation Clause problem and that they were
admissible under Fed. R. Evid. 803(4), a hearsay exception for statements
made for medical diagnosis or treatment. 3 Before the jury, LaFrance testified




       2For a child sexual assault victim, LaFrance testified that safety measures would
include ensuring that the child is discharged into the custody of an appropriate person.
LaFrance indicated that Child Protective Services could be contacted, if necessary.

       3Barker does not raise on appeal an issue of admissibility under Rule 803(4). Further,
the Government did not offer LaFrance’s written report of her examination of A.M. into
evidence.
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as described above to the general role of a SANE and to her examination of
A.M.    The jury convicted Barker on one count of possession of child
pornography and four counts of attempt to receive child pornography. He
timely appealed.
                                DISCUSSION
       The sole issue on appeal is whether the admission of A.M.’s statements
through    LaFrance’s    testimony   violated    Barker’s    rights   under    the
Confrontation Clause. We review a Confrontation Clause challenge de novo,
subject to harmless error analysis.         United States v. Duron-Caldera,
737 F.3d 988, 992 (5th Cir. 2013).
                                       I.
       The Sixth Amendment provides in pertinent part: “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI.        The Confrontation Clause
requires that the accused be afforded the opportunity to confront those
witnesses who “bear testimony,” defined as “a solemn declaration or
affirmation made for the purpose of establishing or proving some fact,” against
him unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness.            Crawford v. Washington,
541 U.S. 36, 51, 124 S. Ct. 1354, 1364 (2004) (quoting 2 NOAH WEBSTER, AN
AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).              A statement is
“testimonial” if “the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution.” Davis v.
Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2274 (2006). In evaluating the
statements, courts determine “whether, in light of all the circumstances,
viewed objectively, the primary purpose of the conversation was to create an
out-of-court substitute for trial testimony.”   Clark, 135 S. Ct. at 2180 (citing


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Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155 (2011)) (internal
quotations and brackets omitted).
      Several times, the Supreme Court has discussed the Confrontation
Clause implications of statements made by individuals to law enforcement
officers. See, e.g., Bryant, 562 U.S. at 349, 131 S. Ct. at 1150; Davis, 547 U.S.
at 817, 126 S. Ct. at 2271; Crawford, 541 U.S. at 39–40, 125 S. Ct. at 1357. By
virtue of their “dual responsibilities” as “first responders” in tending to ongoing
emergencies and as “criminal investigators” in gathering evidence and
building a case for a nascent prosecution, their statements made to police are
often likely to raise Confrontation Clause issues. See Bryant, 562 U.S. at 368,
131 S. Ct. at 1161.     Accordingly, factors such as “whether an ongoing
emergency exists” and “the informality of the situation and the interrogation”
are especially helpful guideposts for distinguishing between the dual roles
played by the police in a given conversation. See Clark, 135 S. Ct. at 2180
(citation omitted).
      But, as the Supreme Court recently observed, statements made to non-
law enforcement officers, “are much less likely to be testimonial than
statements to law enforcement officers.” Id. at 2181. This is at least true as
to statements made by “very young children,” which “will rarely, if ever,
implicate the Confrontation Clause.” Id. at 2182. Because preschool children
generally lack an understanding of our criminal justice system, let alone the
nuances of a prosecution, it is highly unlikely that a child intends his or her
statements to substitute for trial testimony. Id.
                                        II.
      The parties here disagree over the controlling status of the Supreme
Court’s decision in Clark. In Clark, the statements of Clark’s girlfriend’s son,
L.P., to his preschool teachers were introduced at Clark’s criminal trial for
felonious assault, endangering children, and domestic violence. Id. at 2178.
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The Court held that L.P.’s statements, which answered the teachers’ questions
about L.P.’s red eye and red marks on his face and which identified Clark as
the abuser, were admissible and did not pose a Confrontation Clause problem
even though L.P. was legally incompetent to testify.
       The Court held that the primary purpose of the conversation was not to
“gather evidence for Clark’s prosecution,” but “the first objective was to protect
L.P.” Id. at 2181. Because the teachers were unsure who was abusing the
child, their questions to L.P. were aimed at discovering the abuser’s identity
and ensuring that L.P. could be safely released to his guardian at the end of
the day; the Court construed this responsibility as presenting the teachers with
an ongoing emergency.           Id.    Moreover, the Court noted, the preschool
lunchroom setting where L.P. was questioned did not resemble “the formalized
station-house questioning” deemed problematic in previous Confrontation
Clause cases. Id. The Court also stressed that L.P.’s age was significant
because a three-year old child would not intend his statements to be used as a
substitute for trial testimony. Id. at 2182. Finally, the Court focused on the
identity of the questioner and the stark difference between the relationship of
a teacher and student and that of a police officer and citizen. Id.
       Clark’s analysis guides this case.              The primary purpose of the
conversation between LaFrance and A.M. was to medically evaluate and treat
the young girl.         Moreover, the child’s statements pertaining to the
circumstances of the abuse were relevant to ensuring that A.M. would not be
discharged into the custody of a sexual abuser. 4 As in Clark, this was an



       4 Even if some of A.M.’s statements concerning the setting and circumstances of the
abuse could be construed as not relating to the primary purpose of securing medical
evaluation and treatment and might have been inadmissible (but we do not rule on this
issue), their admission was harmless error. See Duron-Caldera, 737 F.3d at 992 (providing
that Confrontation Clause challenges are subject to a harmless error analysis). In this case,
the Government presented another witness, Officer Michelle Sheedy, who testified to
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ongoing emergency. In short, A.M.’s well-being and health were the principal
focus of this visit to the emergency room. This conclusion is buttressed by the
significant fact of A.M.’s age: four and a half years. Like a three year old boy,
A.M. lacked the understanding of the criminal justice system to intend her
comments to function as a substitute for trial testimony.
       Moreover, although LaFrance questioned A.M. in a hospital emergency
room, a more formal environment than a preschool lunchroom, the setting is
far different from the law enforcement interrogation that has been found to
raise Confrontation Clause problems in other cases. Cf. Hammon v. Indiana,
547 U.S. 813, 830, 126 S. Ct. 2266, 2278 (2006) (witness questioned by the
police while isolated from others and whose replies were to be used in a police
investigation); Crawford, 541 U.S. at 65–66, 124 S. Ct. at 1372–73 (statements
made by a suspect in police custody in response to leading questions by the
police and whose release from custody was allegedly dependent upon the
progress of the investigation).          To conclude otherwise would “ignore th[e]
reality,” that the relationship between a nurse and patient is “very different
from that between a citizen and the police.” Clark, 135 S. Ct. at 2182. A nurse,
unlike a police officer, is principally tasked with providing medical care, not
“uncovering and prosecuting criminal behavior.” Id.
       Barker attempts to distinguish Clark by emphasizing that LaFrance’s
SANE certification converted the primary purpose of A.M.’s examination from
medical evaluation and treatment to criminal evidence-gathering in




Barker’s alleged sexual abuse of A.M. Moreover, two other witnesses, Barker’s ex-wife and
a Homeland Security forensic analyst who examined Barker’s computer, testified about the
child pornography found on Barker’s computer. Because significant evidence presented at
Barker’s trial supported the conviction, there is no reasonable possibility that any potentially
non-testimonial statements by A.M. contributed to the conviction. See United States v.
Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) (identifying the “no reasonable
possibility” standard and the considerations that would inform that analysis).
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preparation for a prosecution. In Clark, however, the teachers’ mandatory
reporting obligations under Ohio law did not alter the Court’s conclusion that
the primary purpose of their conversation with L.P. was to protect the child,
not gather prosecution evidence.      Id. at 2183.    Indeed, in light of this
conclusion, it was “irrelevant that the teachers’ questions and their duty to
report the matter had the natural tendency to result in Clark’s prosecution.”
Id.
        Clark cuts the other way. LaFrance’s SANE certification did not convert
the essential purpose of her conversation with A.M from medical evaluation
and treatment to evidence-collection, though it may have tended to lead to
Barker’s prosecution. Like all good nurses, LaFrance would have acted with
the principal purpose to provide A.M. with medical care—whether or not she
possessed the SANE certification. See id. Similarly, the teachers in Clark
would have questioned L.P. in order to protect him whether or not they had a
duty to report the assailant to law enforcement. As a result, LaFrance’s SANE
certification does not alter the non-testimonial nature of A.M.’s statements.
                                CONCLUSION
       Because the primary purpose of the conversation between LaFrance and
A.M. was to medically evaluate and treat the child, the victim’s statements
were non-testimonial and their admission at Barker’s trial through LaFrance’s
testimony did not violate the Confrontation Clause.
       The judgment of conviction is AFFIRMED.




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