School Nurse May Testify About Child's Statement of Abuse in the Abuser's Criminal Trial

Facts of the Case

In October 2015, school officials made a child abuse report against Mr. Schmidt, after his girlfriend's daughter, D.V., age 6, disclosed to school personnel that “my dog licked the peanut butter off my butt again.” Mr. Schmidt was D.V.'s sole father figure. D.V. had cognitive challenges from physical abuse by her biological father during infancy, requiring a school paraprofessional, Ms. Sanchez. D.V. spontaneously made the disclosure to Ms. Sanchez, repeating it a week later. On the second occasion, Ms. Sanchez became concerned, noting that D.V. did not have the ability to lie or remember things from the previous week with such detail. After the school counselor got involved, D.V. used dolls to demonstrate what had occurred. She repeated this with the school nurse, indicating how Mr. Schmidt removed the peanut butter from the jar with two fingers. She also drew a picture of herself and pointed to her vaginal area to show where he applied the peanut butter. D.V. disclosed that during one of the incidents, the dog bit her. The school officials showed D.V. a container of medicinal ointment and one of SunButter for clarification.

The school reported D.V.'s statements to the Department of Family Services, which contacted law enforcement. An investigation ensued the same day, including interviews of D.V., D.V.'s mother, and Mr. Schmidt and a medical examination of D.V. (finding an injury consistent with a dog bite). A search of the apartment disclosed a jar of peanut butter with an impression of fingers in the contents. A detective found bloodstained tissue paper and paper towels with what appeared to be peanut butter in a trash container in the bathroom across from D.V.'s bedroom.

Mr. Schmidt claimed that after picking up D.V. from daycare, the dog bit her in the vaginal area while she was unclothed before a bath. He reportedly informed D.V.'s mother of this incident when she returned from work. Mr. Schmidt admitted to watching pornography involving incest and bestiality and stated he follows related blogs to learn why people do these things. D.V.'s mother reported that she had refused a previous request from Mr. Schmidt to participate in bestiality after he showed her videos of women having sex with dogs.

Mr. Schmidt pleaded not guilty to one count of sexual exploitation of a child, second-degree sexual abuse of a minor, and third-degree sexual abuse of a minor. A hearing to assess D.V.'s capacity to be a witness determined that she was not competent, as she did not understand the need to speak the truth or possess the ability to recall and express her understanding of the underlying incident. Because D.V. would not be available to testify, the trial court examined whether D.V.'s statements to the school nurse were admissible and, if so, whether this would violate Mr. Schmidt's Sixth Amendment right to confront witnesses. The court determined that his right would not be violated, as D.V.'s statements were spontaneous and not for creating evidence. Therefore, the statements were not testimonial in nature.

To determine the admissibility of the statements, the court considered both the catchall exception to the hearsay rule, W.R.E. 804(b)(6), and the exception for statements made for the purpose of medical diagnosis and treatment, W.R.E. 803(4). The catchall exception was rejected because the statements were responsive to questions by authority figures, the exact wording of the questioning was unknown, and D.V. was neither under oath nor competent to understand the nature of an “oath” or “truth,” among other factors. The court accepted the hearsay exception for statements made for the purpose of medical diagnosis or treatment, permitting the nurse to testify, because D.V.'s statements to the school nurse aided in determination of a current physical ailment requiring treatment and not imminent danger that would require protective custody. Mr. Schmidt was found guilty and sentenced on all three counts. He appealed to the Supreme Court of Wyoming, arguing that allowing the school nurse to testify on behalf of D.V.'s out-of-court statements violated his Sixth Amendment right to confront witnesses. He also argued that the district court abused its discretion in allowing the hearsay statements under the W.R.E. 803(4) exception.

Ruling and Reasoning

In a de novo review of law regarding Mr. Schmidt's claim that the state violated his Sixth Amendment rights, the court affirmed the trial court's decision to allow D.V.'s statements to the school nurse under Rule 803(4), denying his claim of a violation of his right to confront witnesses. The court considered Mr. Schmidt's arguments: the school nurse's testimony was not purely for diagnostic and treatment purposes because she did not perform a physical examination; the nurse did not treat D.V.; D.V. had no pain and was unaware that she was being medically evaluated; and the information the nurse gathered was obtained through another individual because D.V. was unwilling to answer the nurse directly. Citing Goldade v. State, 674 P.2d 721 (Wyo. 1983), the court determined that diagnosis and treatment of child abuse includes assessing the possibility for further abuse.

The school nurse testified that her assessment of D.V. included questions aiding her determination of whether D.V. was in danger of further abuse. Therefore, the court found that the nurse's testimony met criteria for the exception under W.R.E. 803(4). The court also cited Bush v. State, 193 P.3d 203 (Wyo. 2008), which established that even though young children may not be aware of what medical assessment and treatment entails, they do not purposefully fabricate details about how an injury occurred. Under Rule 803(4), a child's statements do not need to be made directly to a medical professional for them to be used as evidence at trial. Finally, the majority opined that the use of role play in obtaining information does not diminish the reliability of the statements made by D.V., given that they were spontaneous, consistent, included sexual knowledge that would be unusual for a child her age, and included childlike terminology.

Ultimately, the court determined that the state had not violated Mr. Schmidt's right to confront witnesses, reasoning that the Sixth Amendment's confrontation clause denies admissibility of out-of-court statements if they are testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine the declarant concerning the statement. The latter two factors were automatically fulfilled in Mr. Schmidt's case, but the court ruled that D.V.'s statements were not testimonial in nature, rather, provided to school personnel spontaneously and in an informal setting without an aim to create evidence for prosecution.

Dissent

Justice Fox, joined by Justice Davis, dissented, saying that the district court abused its discretion when allowing the school nurse to testify under the hearsay exception for statements made for purposes of medical diagnosis or treatment W.R.E. 803(4). While agreeing with the majority that the school nurse was engaged in the diagnosis and treatment of child abuse, the dissenters noted that, “child abuse is a crime, not a medical condition” (Schmidt, p 27). In addition, D.V. had no motivation to tell the truth, since she was unaware of the purpose of the nurse's questioning, and therefore did not expect effective medical treatment. Despite high concern for child abuse, they called for the adoption of a rule that would allow hearsay statements by children in abuse cases in a reliable manner, thus avoiding concern over a Sixth Amendment violation.