                    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.
