In re D.L., No. 84643, 2005 Ohio Court of App. LEXIS 2215 (Ohio Ct. App. May 12, 2005) Thirteen-year-old Appellant was adjudicated delinquent on a charge of rape upon a minor child under the age of thirteen after out of court statements from the victim taken by a social worker and nurse practitioner (NP) were introduced at trial. Appellant argued that the victim’s statements were testimonial per Crawford v. Washington, 541 U.S. 36 (2004) and that the trial court erred when it admitted the victim’s statements from the medical report after determining that the victim was incompetent to testify.
After the mother witnessed the then-three-year-old victim acting out sexually, she brought the child to the family pediatrician. While there, the child was interviewed by a social worker from the Cuyahoga County Department of Family and Children Services. When asked where she had bee touched, the victim circled the vaginal area on the diagram of a girl. When asked what she had been touched with, the girl circled the penis on the diagram of the boy. The social worker testified that the victim had been able to give her a great deal of detail and that the victim’s demeanor was “matter of fact.” She referred the child to Rainbow Babies and Children’s Care Clinic (Rainbow) and notified the police. Two weeks later, a pediatric nurse practitioner with the child protection program at Rainbow conducted a medical interview and performed a general medical screening and colposcopic examination of the victim’s anal and genital area. While taking the victim’s medical history, the NP took statements from the victim to evaluate how likely it was that she had been abused and to determine what laboratory tests and medical treatment might be needed.
The Court first determined whether the child’s statements were “testimonial” under Crawford. “Under the facts of this case, the issue is whether the statements were made under the circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” In re D.L., LEXIS 2215 at **7, citing Crawford. The Court noted that the social worker notified both the police and the Rainbow Clinic, suggesting that the police were notified for investigation purposes while Rainbow was notified for medical treatment. Though Appellant argued that the NP was a “government intermediary” because her referrals come from government sources, the Court stated that there was no evidence that the NP was working with investigating police officers for the purpose of developing a case against Appellant. Appellant then argued that the NP would have been aware that the victim’s statements would be used at a later trial. The Court corrected Appellant’s analysis by quoting a recent MN decision, “[i]n order for [the appellant] to succeed on this argument, he must show, under Crawford, that the circumstances surrounding the contested statements led the three-year-old to reasonably believe that her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation.” State v. Scacchetti, 690 N.W.2d 393, 396 (Minn. App. 2005) (emphasis added). The NP’s expectation was not the proper inquiry. The Court held that the victim in this case could not have contemplated that her answers would be used at trial and therefore the statements were admissible.
Appellant then argued that the child’s statements should not have been admissible under the medical diagnosis exception because the child was found incompetent to testify and the statements were found inadmissible under OH Evid. R. 807(A)(3). The Court held that a finding of incompetency to testify should not automatically require a finding that statements of a child for medical treatment are untrustworthy. The medical diagnosis exception is based upon the belief that the declarant’s statements are motivated by a desire to receive proper and appropriate treatment. This also applies to young children. In this case, the child knew she was at a hospital and her statements were made to someone she knew to be a medical professional. The nurse testified that the statements were taken for diagnostic purposes, that the child’s demeanor and delivery was “matter of fact,” and the child also made consistent statements to her mother and the social worker. The Court held that the statements were properly admitted.
