Court of Criminal Appeals of Tennessee, Knoxville
Session: January 24, 2018
from the Criminal Court for Hamilton County No. 292487 Don.
W. Poole, Judge No. E2017-00653-CCA-R9-CD.
Defendant, Christopher Gatewood, is charged in the Hamilton
County Criminal Court with rape of a child. See
T.C.A. § 39-13-522 (2014). The State contends in this
interlocutory appeal pursuant to Tennessee Rule of Appellate
Procedure 9 that the trial court erred in granting the
Defendant's motion in limine to exclude evidence of the
alleged victim's statements to a nurse practitioner on
Confrontation Clause grounds. We affirm the order of the
R. App. P. 3 Appeal as of Right; Order of the Criminal Court
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; M. Neal
Pinkston, District Attorney General; Boyd Patterson and
Leslie Longshore, Assistant District Attorneys General, for
the appellant, State of Tennessee.
Marty Lasley (on appeal) and William Speek (at hearing and on
appeal), Chattanooga, Tennessee, for the appellee,
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE
Defendant's charge relates to the alleged rape of his
then-twelve-year-old stepdaughter, A.J. Defense counsel filed
a motion in limine to exclude hearsay evidence and statements
from non-testifying witnesses. The motion did not address
specific hearsay or witnesses, but at the hearing on the
motion, the parties identified the evidence at issue as
A.J.'s statements to a nurse practitioner at the
Children's Advocacy Center. A.J.'s statements
included allegations of vaginal and anal rape the previous
evening and of past sexual touching by "her dad."
After receiving evidence at the hearing, the trial court
granted the Defendant's motion in limine to exclude
evidence of A.J.'s statements. The court found that the
primary purpose of the statements was "testimonial"
and, as such, admission of them would violate the
Defendant's constitutional right to confront adverse
witnesses. The State filed a motion for permission to pursue
an interlocutory appeal pursuant to Tennessee Rule of
Appellate Procedure 9, and the trial court granted the
State's motion. The State then filed an application for
an interlocutory appeal in this court, which was granted.
hearing on the motion in limine, Ashley O'Barr Haynes, a
pediatric nurse practitioner at the Children's Advocacy
Center of Hamilton County, testified as an expert witness in
child sexual assault examination. She said that on August 29,
2013, A.J. and A.J.'s mother arrived at the
Children's Advocacy Center and completed paperwork
related to demographic information and medical history. Nurse
Practitioner Haynes said that she obtained A.J.'s medical
history for the purpose of medical diagnosis and treatment
and that she did not conduct a forensic interview. She said
the interview she obtained was "to assure the child is
physically safe and that their body and self are safe."
She added that it was "important to get a history of
what occurred in order to properly assess the child."
She said the interview "helps guide the exam so I know
what to look for." She agreed that based upon the
statements made by a child and the examination of the child,
she was able to prescribe further treatment, such as
medication, counseling, and medical treatment.
Practitioner Haynes testified that she took the following
history from A.J.:A.J. was going to bed when she saw a light
come on in her room. A.J. saw "her dad, " who moved
her and got into bed with her. He removed her pants and
underwear and raped her vaginally and anally. A.J.'s
father did not wear a condom, and A.J. did not bleed. The
events occurred around 9:00 p.m. on August 28, 2013. On four
prior occasions in 2012 and 2013, A.J.'s father opened
her legs and rubbed her vagina. A.J. did not indicate that
the prior incidents involved penetration. On the previous
evening, A.J. first told her mother about the events.
Practitioner Haynes testified that because A.J. reported a
sexual assault occurring within the past seventy-two hours,
"[I]t was decided between myself and law enforcement
that a rape kit would be necessary to collect." Nurse
Practitioner Haynes said she performed a head-to-toe
examination and collected the rape kit. She agreed that she
did not find physical trauma. Nurse Practitioner Haynes said
she also performed a urinalysis to determine whether A.J. was
pregnant and prescribed medication that provided prophylaxis
for pregnancy and sexually transmitted infections. Nurse
Haynes said A.J. seemed to be reliable and gave a consistent
statement but acknowledged that A.J. could have been lying,
although she had no suspicion that A.J. had been untruthful.
Practitioner Haynes acknowledged that, at the time she
examined A.J., she did not have the credentials to conduct a
forensic interview pursuant to Tennessee Code Annotated
section 24-7-123, pertaining to admission of a video
recording of a child's interview regarding a sexual
assault. She said, however, that she had since obtained the
certification, although she did not conduct forensic
interviews in her employment. When asked, "Did you tell
[the victim and her mother] you work with law
enforcement?" Nurse Practitioner Haynes said,
"That's not really part of what I explain to the
child." When asked further, "Did you do that,
though?" she said, "No." She responded
affirmatively when asked, "Did the child know that the
purposes of this examination was [sic] for her own health
benefit?" Nurse Practitioner Haynes did not recall
whether a law enforcement officer had been present when A.J.
arrived at the Children's Advocacy Center, but she said
she collected evidence for A.J.'s rape kit and provided
it to the detective who was working on A.J.'s case. Nurse
Practitioner Haynes did not know how the victim and her
mother were transported to the Children's Advocacy Center
and said she assumed they had been instructed to go to the
center by the Department of Children's Services (DCS) or
law enforcement. When asked, "So it's your
understanding the police directed her to you?" Nurse
Practitioner Haynes responded, "Police or DCS."
report Nurse Practitioner Haynes prepared relative to her
interview and examination of A.J. was received as an exhibit.
It includes the following information:
08/29/2013 - Office Visit: Sexual Abuse Medical
. . .
Sexual Assault Exam
. . .
REASON FOR REFERRAL
Reason for Referral: alleged rape
Date of Occurrence: 8/29/2013
City of Occurrence: Chattanooga
State of Occurrence: Tennessee
Date of Exam: 8/29/2013
. . .
Location of Care: Children's Advocacy ...