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State v. Gatewood

Court of Criminal Appeals of Tennessee, Knoxville

March 20, 2018

STATE OF TENNESSEE
v.
CHRISTOPHER GATEWOOD

          Session: January 24, 2018

         Appeal from the Criminal Court for Hamilton County No. 292487 Don. W. Poole, Judge No. E2017-00653-CCA-R9-CD.

         The 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 trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Order of the Criminal Court Affirmed

          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.

          D. Marty Lasley (on appeal) and William Speek (at hearing and on appeal), Chattanooga, Tennessee, for the appellee, Christopher Gatewood.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The 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.

         Facts

         At the 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.

         Nurse Practitioner Haynes testified that she took the following history from A.J.:[1]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.

         Nurse 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

         Practitioner 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.

         Nurse 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."

         The 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 Examination
. . .
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 ...

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