                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44463

STATE OF IDAHO,                                  )   2017 Unpublished Opinion No. 643
                                                 )
       Plaintiff-Respondent,                     )   Filed: November 15, 2017
                                                 )
v.                                               )   Karel A. Lehrman, Clerk
                                                 )
RUSSELL DALE HILTERBRAN,                         )   THIS IS AN UNPUBLISHED
                                                 )   OPINION AND SHALL NOT
       Defendant-Appellant.                      )   BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment of conviction for one count of attempted strangulation and one count of
       domestic violence with traumatic injury, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       A jury found Russell Dale Hilterbran guilty of one count of attempted strangulation and
one count of domestic violence with traumatic injury.           Appealing from his judgment of
conviction, Hilterbran asserts that the district court abused its discretion when it admitted hearsay
statements made by the alleged victim to a forensic nurse under Idaho Rule of Evidence 803(4).
Hilterbran argues the court erred because the totality of the circumstances surrounding the
statements indicated they were not made for purposes of medical diagnosis or treatment. For the
reasons explained below, the judgment of conviction is affirmed.




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                                                   I.
                        FACTUAL AND PROCEDURAL BACKGROUND
       The State presented evidence that Hilterbran battered his sixty-three-year-old significant
other, C.S. In the midst of an argument, Hilterbran jumped on C.S. and grabbed her face,
applying enough force to leave a bruise on her jawbone. Hilterbran then moved his hand down
to C.S.’s throat and choked her until she lost consciousness. These facts were the basis for one
of the two counts of attempted strangulation and the single count of domestic violence that the
State decided to prosecute. 1
       At trial, C.S. testified that in the days following the incident, her neck and throat “hurt
real bad.” Two days after the incident, C.S.’s daughter took her to the Family Advocacy Center
and Education Services (FACES) facility for a medical evaluation due to this persistent throat
and neck pain. C.S.’s description of what happened at the FACES facility was succinct: she
underwent a physical examination during which she spoke with the nurse about her injuries.
       The State then sought to introduce C.S.’s statements to a hospital nurse at FACES.
Hilterbran objected on, inter alia, hearsay grounds, arguing that the statements were not covered
by the medical diagnosis or treatment exception codified in Idaho Rule of Evidence 803(4).
Hilterbran’s reasoning was that because the nurse’s interview was of a forensic nature, meaning
it involved preserving evidence for future use by law enforcement and prosecutors, it was not for
a medical purpose. The district court allowed Hilterbran to voir dire the nurse by asking
questions in aid of the objection.
       During the voir dire examination, the nurse testified as to what role she played at FACES
and also provided details regarding this case in particular. The relevant portions of the testimony
are as follows:
       Q:         And maybe tell us what does a forensic nurse do.
       A:         So a forensic nurse has several duties. Basically we’re on call, so our team is on
                  call 24/7. So the nurse that is on call, if a patient of sexual assault or domestic
                  violence comes in, then they will call us in to do what we call a forensic exam.
                  And it’s twofold. It’s to clear and triage the medical patients, the medical needs
                  of the patient and get them the referrals and resources they need. We’re also

1
       Not all of the charges in the information were prosecuted at trial. The charges in the
information included: (1) two counts of attempted strangulation; (2) one count of domestic
violence; (3) two counts of aggravated assault; (4) two counts of domestic battery; and (5) one
count of violation of a no contact order.


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     trained in the forensic aspect where we can collect evidence, we can photograph
     injuries and document them.
     ....
Q:   And so maybe the better question is if somebody has reported that they’ve been
     strangled but you don’t see any external marks or injuries, are you done at that
     point?
A:   No.
Q:   Okay. And why is that?
A:   Well, because there may be things that I don’t see so I need to ask specific
     questions to elicit responses from the patient to find out if they have any kind of
     problems with breathing, for instance.
     ....
A:   My primary purpose is to assess the victim to find out if they need any medical
     attention . . . .
Q:   So is your primary purpose medical in nature?
A:   Yes.
Q:   And is your primary purpose in gathering information from somebody who you
     are seeing for a forensic exam to gather information for the purpose of diagnosis
     and treatment medically?
A:   Yes.
     ....
Q:   And I understand--obviously you said that oftentimes evidence that you or things
     that you document, injuries that you document, photographs that you take and
     those sorts of things may be beneficial in a prosecution.
A:   They may be, but they’re also beneficial to medical because if--if, for instance, an
     injury is continuing to swell or the bruising extends, that’s important medically.
Q:   So does everything that you do in your forensic exams have a medical
     component?
A:   Yes.
     ....
Q:   What’s the medical purpose for asking a victim what happened?
A:   Well, first of all, it helps guide me in my exam to make sure that I don’t overlook
     something that was really important in the history of the patient. And then we do
     a medical history; we find out what kind of medications they’re on; we find out
     what their past surgical history is. Then we do a head-to-toe assessment of the
     body.
     ....
Q:   Stepping back just real quick, talking about symptoms that a person is feeling. Do
     you also ask about any symptoms or pain that a person is feeling at the time of
     your examination?
A:   Yes.
Q:   And why is that important to you to know?
A:   Well, I want to know if something’s getting better or if something’s getting
     worse.
     ....
Q:   Did she see the physician at FACES?

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       A:      Yes, she did.
       Q:      When did she see that physician?
       A:      That same day. I actually referred her to see [the Physician].
After conclusion of the nurse’s voir dire testimony, the district court determined that the hearsay
exception for medical diagnosis or treatment applied, noting, “[F]rom the perspective of the
nurse, her primary role is in determining the proper steps for medical diagnosis and treatment.”
       At the conclusion of the trial, the jury found Hilterbran guilty of felony domestic violence
and of one count of attempted strangulation, while acquitting him on the second attempted
strangulation charge. The district court entered a judgment of conviction, from which Hilterbran
timely appealed.
                                                 II.
                                            ANALYSIS
       The trial court has broad discretion in determining the admissibility of testimonial
evidence. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). A decision to admit
or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that
discretion. Id. When a trial court’s discretionary decision is reviewed on appeal, the appellate
court conducts a multi-tiered inquiry to determine whether the lower court correctly perceived
the issue as one of discretion, acted within the boundaries of such discretion and consistently
with any legal standards applicable to the specific choices before it, and reached its decision by
an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       Hearsay is defined as 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. I.R.E. 801(c);
State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible
unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the
Idaho Supreme Court. I.R.E. 802. The Idaho Rules of Evidence provide an exception for
“statements made for purposes of medical diagnosis or treatment and describing medical history,
or past or present symptoms, pain, or sensations, or the source thereof insofar as reasonably
pertinent to diagnosis or treatment.” I.R.E. 803(4). The rule is premised on the assumption that
such statements are generally trustworthy because the declarant is motivated by a desire to
receive proper medical treatment and will therefore be truthful in giving pertinent information to
the physician. See State v. Kay, 129 Idaho 507, 518, 927 P.2d 897, 908 (Ct. App. 1996).
Accordingly, where an adult is the hearsay declarant, the motive to speak the truth to a physician

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in order to advance a self-interest in obtaining proper medical care for the declarant or another is
generally assumed. Id. To determine whether a statement was made for purposes of medical
diagnosis or treatment, courts must examine the totality of the circumstances. See id.
       The parties agree in their briefing that the issue on appeal is whether, under the totality of
the circumstances, the statements were made for purposes of medical diagnosis or treatment.
Hilterbran argues that because the nurse served a forensic purpose in addition to a medical
purpose, under the totality of the circumstances, C.S’s statements to the nurse do not qualify for
the medical diagnosis or treatment exception to the hearsay rule. The State asserts that the
totality of the circumstances shows that C.S. made statements intended to assist in diagnosis and
treatment of her throat and neck pain to a medical professional whose primary purpose was
medical in nature. We hold that the district court did not abuse its discretion in admitting the
testimony under I.R.E. 803(4).
       The totality of the circumstances indicates that the nurse’s examination was for the
purpose of medical diagnosis or treatment, even though there also existed a forensic purpose.
The nurse testified that she conducted physical examinations to locate latent injuries. This, she
explained, required her to ask questions regarding the circumstances surrounding the injury and
any symptoms arising from the injury. She also testified that the photographs she took could be
used to monitor any changes in bruising or swelling. The examination also served to alert the
nurse as to whether she needed to refer the patient to a physician. Because C.S. was complaining
of persistent throat and neck pain to a medical professional, the statements were clearly made for
purposes of medical diagnosis or treatment.
       Hilterbran argues that other facts overshadow the nurse’s medical purpose. He highlights
the fact that C.S. had already been to a doctor before going to FACES, was referred to FACES
by a police victim witness coordinator, and had her visit paid for through a Department of Justice
grant. If these facts were sufficient to preclude the admittance of statements under I.R.E. 803(4),
statements made in normal hospitals by crime victims would be denied the benefit of the rule
because forensic nurses are present in many hospitals and police refer victims to hospital
emergency departments. Moreover, injuries may cause persistent or delayed symptoms, which
could result in multiple doctor visits. These facts do not transmute a statement made for medical
diagnosis or treatment into something else.



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       Because we hold that the statements were properly admitted under I.R.E. 803(4), we do
not address the State’s argument that some of the statements were excepted from the hearsay rule
under I.R.E. 803(3).
                                              III.
                                        CONCLUSION
       Because the challenged statements were made by the declarant for the purposes of
obtaining medical diagnosis or treatment to a medical professional who relied on the statements
for the same purposes, the district court properly admitted them pursuant to I.R.E. 803(4). The
judgment of conviction for one count of attempted strangulation and one count of domestic
violence with traumatic injury is affirmed.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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