State v. Antonio Tapia Almanza

                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 31, 2017




In the Court of Appeals of Georgia
 A17A1270. THE STATE v. ALMANZA.

      BRANCH, Judge.

      This appeal arises out of Antonio Tapia Almanza’s indictment in Cobb County

for child molestation, incest, aggravated sexual battery, statutory rape, and aggravated

child molestation. Following that indictment, Almanza’s alleged victim (Almanza’s

stepdaughter) and her mother (Almanza’s wife) left Cobb County, and the District

Attorney’s subsequent efforts to locate these witnesses have been unsuccessful. The

State therefore filed a motion in limine seeking an order that would allow prosecutors

to introduce into evidence the testimony of two of the child’s treating physicians as

to statements made to the doctors by the child’s mother and in which the mother

related both the child’s allegations of abuse and the fact that the child had identified

Almanza as her abuser. Following a hearing at which both physicians testified, the
trial court granted that motion in part and denied it in part. The State now appeals,

asserting that the trial court erred when it found that those portions of the mother’s

statements that identified Almanza as the perpetrator of the alleged crimes did not fall

within the hearsay exception found in OCGA § 24-8-803 (4). For reasons explained

more fully below, we affirm the trial court’s order.

      We review a trial court’s ruling as to the admissibility of hearsay evidence only

for an abuse of discretion. See Tanner v. State, ___ Ga. ___ (804 SE2d 377) (2017);

Allen v. State, 247 Ga. App. 10, 12 (1) (543 SE2d 45) (2000). Such an abuse of

discretion “occurs where the trial court’s ruling is unsupported by any evidence of

record or where that ruling misstates or misapplies the relevant law.” Chua v.

Johnson, 336 Ga. App. 298, 299 (784 SE2d 449) (2016) (citation and punctuation

omitted).

      The relevant facts are undisputed and show that in or about May 2014,

Almanza’s stepdaughter reported to her mother that approximately one year earlier

Almanza had molested her on two occasions. The mother reported these accusations

to law enforcement, who arrested Almanza on May 28, 2014. Police also instructed

the mother to take the child for a physical exam at Children’s Healthcare of Atlanta

(“CHOA”), which the mother did on May 29, 2014.

                                           2
      After granting the State several continuances, the trial court set trial for

Monday, May 23, 2016. On Friday, May 20, the State filed both a motion for a

continuance and the motion in limine that gave rise to this appeal. At the October

2016 hearing on its motion in limine, the State presented the testimony of Dr.

Lynward Barrett, the pediatric emergency room physician who examined the child at

CHOA in May 2014. Dr. Barrett testified that the mother reported that her daughter

had told her that Almanza had molested her on two occasions by touching the child’s

vagina and by placing his penis “inside of her.” The mother further related that,

according to the child, these acts had taken place approximately one year earlier. Dr.

Barrett performed a physical exam of the child, consulted with a social worker to

make sure that law enforcement was involved and that the alleged abuser no longer

had access to the child, and referred the child for psychological counseling.

According to Dr. Barrett, he obtained all his information from the mother, he asked

questions only to the mother, and he did not recall the child saying anything either

before, during, or after the exam.1



      1
        Dr. Barrett stated that when a child is brought in for an exam based on a
report of physical or sexual abuse, his usual practice is to refrain from questioning the
child directly and instead to ask questions of the “accompanying adult.”

                                           3
      The victim’s regular pediatrician, Charles Richards, also testified and stated

that he had seen the child and her mother in his office on June 6, 2014, for treatment

of the child’s viral symptoms, including a fever, headaches, and muscle aches.2 Dr.

Richards further testified that as he was finishing his exam of the child, the mother

became emotional and stated that the child had recently reported that approximately

one year earlier Almanza had raped her on two different occasions.3 Richards testified

that all of the information he received regarding the allegations of sexual molestation

came from the mother and that the child did not say anything during this visit.

      Following the hearing, the trial court entered an order ruling that the doctors

would be allowed to testify at trial as to any findings they made during the physical

exam of the child and to the mother’s statements regarding the fact that the child had

reported being sexually abused. The court further ruled, however, that the physicians


      2
        Dr. Richards explained that the mother had taken the child to the emergency
room for treatment of the symptoms on the evening of June 5 and that the emergency
room physician had treated the child and had advised the mother to take the child for
a follow-up appointment with her regular pediatrician the next day.
      3
         Approximately two weeks after this visit, Dr. Richards spoke with the mother
by phone and the mother stated that the child “had kind of backed off her story a little
bit,” that she did not really understand the word “rape,” and that she was not claiming
that Almanza had “penetrated her.”

                                           4
could not testify as to “[a]ny identification of [Almanza] as the abuser.” The State

now appeals that ruling.

      The State sought to introduce the out-of-court statements at issue under

subsection 803 (4) of Georgia’s current evidence code, which went into effect January

1, 2013. That evidentiary rule, which is substantially similar to Fed. Rule of Evid. 803




                                           5
(4),4 provides that hearsay statements are admissible “even though the declarant is


      4
         When adopted in 2011, OCGA § 24-8-803 (4) was identical to the existing
version of Fed. Rule of Evid. 803 (4). Specifically, in 2011, Fed. Rule of Evid. 803
(4) provided: “[s]tatements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.” In 2011, however, Congress amended
that rule, and the current version of Fed. Rule of Evid. 803 (4) provides that a hearsay
statement is admissible if it “(A) is made for – and is reasonably pertinent to –
medical diagnosis or treatment; and (B) describes medical history; past or present
symptoms or sensations; their inception; or their general cause.” The advisory
committee’s note to the 2011 amendment states that the amendment occurred “as part
of the restyling of the Evidence Rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These changes are
intended to be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.”

      We note that:
      Unlike ordinary legislative history . . . advisory committee notes are
      generated by a committee of judges, professors, and practitioners who
      are appointed by the Chief Justice of the United States and who engage
      in a lengthy process of drafting and revision, culminating in approval by
      the Supreme Court and submission to Congress. See Thomas E. Baker,
      An Introduction to Federal Court Rulemaking Procedure, 22 Tex. Tech.
      L. Rev. 323, 329-331 (1991); see also 28 USC § 2072 (“Rules of
      procedure and evidence; power to prescribe”). Although advisory
      committee notes cannot change the plain meaning of the federal rules of
      evidence, they are “assuredly persuasive scholarly commentaries –
      ordinarily the most persuasive – concerning the meaning of the [r]ules.”
      [Tome v. United States, 513 U.S. 150, 167, 115 S. Ct. 696, 706, 130 L.

                                           6
available as a witness” if they are

      made for purposes of medical diagnosis or treatment and describ[e]
      medical history, or past or present symptoms, pain, or sensations, or the
      inception or general character of the cause or external source thereof
      insofar as reasonably pertinent to diagnosis or treatment.


OCGA § 24-8-803 (4). The language of OCGA § 24-8-803 (4) is virtually identical

to the former OCGA § 24-3-4, which existed as part of Georgia’s previous evidence

code.5 The trial court therefore relied on cases decided under the former code section

in deciding the State’s motion in limine.




      Ed. 2d 574 (1995)] (Scalia, J., concurring in part and concurring in the
      judgment) (emphasis original); see also Horenkamp v. Van Winkle &
      Co., 402 F.3d 1129, 1132(II) (11th Cir.2005) (advisory committee notes
      “are nearly universally accorded great weight in interpreting federal
      rules”) (citation and punctuation omitted).


Walters v. State, 335 Ga. App. 12, 15, n. 3 (780 SE2d 720) (2015).
      5
       Former OCGA § 24-3-4 provided:
      Statements made for the purposes of medical diagnosis or treatment and
      describing medical history, or past or present symptoms, pain or
      sensations, or the inception or general character of the cause or external
      source thereof insofar as reasonably pertinent to diagnosis or treatment
      shall be admissible in evidence.

                                            7
      Citing our Supreme Court’s decision in Davis v. State, 299 Ga. 180 (787 SE2d

221) (2016), the State argues that the trial court erred in relying on pre-2013

precedent to deny in part its motion in limine. Davis involved the application of the

sequestration rule found in OCGA § 24-6-615, which differed in several significant

respects from the sequestration provision in the pre-2013 evidence code (former

OCGA § 24-9-61.) After addressing the merits of the appeal, the Supreme Court

expressed its frustration at the parties’ failure to acknowledge the difference between

the two sequestration provisions and to cite relevant law in their briefs, stating:

      [T]his case was tried under our State’s new Evidence Code, and the key
      evidence rules we must apply — OCGA §§ 24-6-615 and 24-4-403 —
      differ from the pertinent provisions of the old Evidence Code and
      instead track the analogous federal evidence rules, meaning that we will
      look to those federal rules and the federal case law interpreting them for
      guidance. Nevertheless, in their briefs to this Court, Appellant cited
      OCGA § 24-6-615 only in passing and failed to cite OCGA § 24-4-403;
      the State cited neither new rule; and neither party cited any case law
      interpreting these provisions of the new Evidence Code or the parallel
      provisions of the Federal Rules of Evidence. It may be that the result of
      this case would be the same if we applied the old Evidence Code and
      our decisions interpreting it, but if so, that is happenstance, at least
      without careful comparison of the old and new law. Georgia lawyers do
      this Court no favors — and risk obtaining reversible evidence rulings
      from trial courts — when they fail to recognize that we are all living in

                                          8
      a new evidence world and are required to analyze and apply the new
      law. It may be hard to comprehend that, when it comes to trials and
      hearings held after January 1, 2013, the most pertinent precedent to cite
      on an evidentiary issue may be a decades-old decision of the Eleventh
      Circuit (or even the old Fifth Circuit), instead of a week-old unanimous
      decision of this Court (if we were deciding the appeal of a case tried
      before 2013 and governed by the old rules, as still frequently occurs).


Davis, 299 Ga. at 192 (3) (footnotes omitted; emphasis supplied).

      Relying on this language, the State argues that the trial court erred as a matter

of law when it relied on cases decided under former OCGA § 24-3-4; that Davis

mandates that in the absence of a Georgia appellate case addressing the post-2013

evidentiary rule at issue, trial courts are required to look at federal precedent when

interpreting and applying such a rule; and that under relevant federal precedent, the

mother’s statement that the child had identified Almanza as her abuser was

admissible. We find these arguments to be without merit.

      The State’s argument is based on a misinterpretation of Davis. That case did

not invalidate the precedential value of all cases decided under Georgia’s former

evidence code. Instead, Davis addressed those situations where the new evidence

code represents a substantive change from the prior code. In such cases, “to the extent

that the new [evidentiary] rule[ ] [at issue] . . . borrow[s] from the text of the federal

                                            9
evidence rules,” courts should “look for guidance to the decisions of the federal

appellate courts, particularly the United States Supreme Court and the Eleventh

Circuit, interpreting the federal rule[ ] in question.” Davis, 299 Ga. at 185 (2) (a)

(citation omitted). In cases where there has been no substantive change to the

evidentiary rule in question, however, courts “may rely on Georgia decisions under

the old [Evidence] Code.” State v. Frost, 297 Ga. 296, 299 (773 SE2d 700) (2015).

See also Bradshaw v. State, 296 Ga. 650, 654 (2) (769 SE2d 892) (2015) (noting “the

General Assembly’s statement that [in enacting the new Evidence Code] it did not

intend to change the substantive law of Georgia as existing on December 31, 2012,

unless that law was displaced by a provision of the new Evidence Code”).

      As noted previously, the hearsay exception at issue in this case does not differ

substantively from its predecessor. See Milich, Georgia Rules of Evidence, §19.6

(2014) (observing that OCGA § 24-8-803 (4) “is simply a re-numbered version of

pre-2013 OCGA § 24-3-4”). In deciding the admissibility of the mother’s statement,

therefore, the trial court properly relied on cases decided under the former evidence

code. Those cases hold that statements made for the purpose of obtaining medical

treatment are admissible to the extent that the speaker is relating the cause of the

injury or condition requiring treatment. See Greene v. State, 295 Ga. App. 803, 812

                                         10
(8) (d) (673 SE2d 292) (2009); Thomas v. State, 288 Ga. App. 602, 609-610 (4) (654

SE2d 682) (2007); Payne v. State, 273 Ga. App. 483, 486 (4) (615 SE2d 564) (2005).

A medical professional may therefore testify, for example, that the victim reported

being raped or assaulted. See Greene, 295 Ga. App. at 812 (8) (d); Thomas, 288 Ga.

App. at 609 (4); Opio v. State, 283 Ga. App. 894, 899 (1) (d) (ii) (642 SE2d 906)

(2007); Miller v. State, 194 Ga. App. 533, 534 (2) (a) (390 SE2d 901) (1990).

Additionally, medical personnel may testify as to statements made to them describing

the type of weapon used against the victim or the description of the acts that resulted

in the victim’s injuries. See Bryant v. State, 304 Ga. App. 456, 462 (4) (696 SE2d

439) (2010) (nurse could testify that victim reported “her assailant had ‘pushed her

into the furniture’” as the victim was explaining “both the nature and origin of some

of her injuries”); Greene, 295 Ga. App. at 812 (8) (d) (physician who treated victim

for bruising around her neck could testify that victim reported being strangled);

Payne, 273 Ga. App. at 486 (4) (physician who treated victim for chemical burns

could testify “that he received a report that” a mixture of liquids, including bleach,

“had been thrown into [the victim’s] face”). Similarly, treating practitioners may also

testify as to alleged acts of molestation or physical abuse reported by a child. See

Allen v. State, 247 Ga. App. 10, 12 (1) (543 SE2d 45) (2000) (counselor could testify

                                          11
as to child’s statements describing specific acts of physical abuse); Roberson v. State,

187 Ga. App. 485, 486 (370 SE2d 661) (1988) (nurse could testify as to child’s

statement concerning the specific acts of molestation committed against him)

(physical precedent only); Sparks v. State, 172 Ga. App. 891, 892 (2) (324 SE2d 824)

(1984) (same).

      The rationale for allowing such testimony under the hearsay exception for

medical treatment or diagnosis is that a declarant should be aware that a practitioner’s

understanding of what happened to the patient is reasonably pertinent to the patient’s

diagnosis and treatment. See Thomas, 288 Ga. App. at 609-610 (4); Payne, 273 Ga.

App. at 486 (4). Relying on the same rationale, however, Georgia’s appellate courts

have consistently held that statements identifying the person allegedly responsible for

the victim’s injuries are not admissible as statements made for the purpose of medical

diagnosis and treatment. Specifically, we have held that a victim’s statements to

medical personnel regarding the identity of an assailant or the “circumstances and

activity” occurring prior to the injury do not “fall within the statutory exception”

because they are “not reasonably pertinent to [the victim’s] diagnosis or treatment.”

Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991) (shooting victim’s

statement to physician in which she described the circumstances leading to the

                                          12
shooting and identified defendant as the shooter did not fall within “the statutory

hearsay exception of [former] OCGA § 24-3-4”). See also Brown v. State, 273 Ga.

App. 88, 89 (614 SE2d 187) (2005) (assault victim’s statement to nurse that he had

been attacked by his roommate not admissible under former OCGA § 24-3-4); Miller,

194 Ga. App. at 534 (2) (a) (rape victim’s statement to ER physician identifying

defendant as her assailant constituted inadmissible hearsay as it “was unnecessary to

any legitimate purpose addressed in [former] OCGA § 24-3-4”).

      Moreover, we have consistently applied this limitation on the admissibility of

hearsay statements under the medical treatment or diagnosis exception even in cases

involving the physical or sexual abuse of a child. Thus, we have held that a child

victim’s identification of her abuser was not reasonably pertinent to the child’s

diagnosis and treatment. See Cupe v. State, 253 Ga. App. 851, 857 (4) (560 SE2d

700) (2002) (trial court erred by allowing a treating physician to testify as to the

father’s statement in which the father identified the defendant as the person who had

“inflicted the child’s bruises,” as the identification of the defendant was not

“reasonably pertinent to [the child’s] diagnosis or treatment”); Dean v. State, 198 Ga.

App. 133, 134 (1) (a) (401 SE2d 40) (1990) (victim’s statement to examining

physician identifying his father as his molester was not admissible under former

                                          13
OCGA § 24-3-4); Roberson, 187 Ga. App. at 486 (trial court erred in admitting

testimony concerning child molestation victim’s “identification of his father to the

nurse practitioner as the perpetrator”); Johnson v. State, 149 Ga. App. 544, 545 (5)

(254 SE2d 757) (1979) (trial court erred in allowing physician to testify as to alleged

incest victim’s statement that she had intercourse with her father). See also State v.

Butler, 256 Ga. 448, 449, n. 1 (349 SE2d 684) (1986) (noting in dicta that while a

child molestation victim’s statements to physicians about “what happened” to her

were admissible, “her statements about who did it were [not] admissible, as this

information would not be pertinent to the medical diagnosis”); Allen, 247 Ga. App.

at 12 (1) (affirming trial court’s admission of counselor’s testimony regarding child’s

statements as to the acts of abuse committed against her, and noting that the trial court

did not allow the counselor to testify as to the child’s identification of the defendant

as her abuser).

      Furthermore, to the extent that we might be required to look to federal law to

interpret OCGA § 24-8-803 (4), the Georgia Supreme Court has decreed that we

should look first to cases from the United States Supreme Court and the Eleventh

Circuit. See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016). Neither party

has directed us to any relevant precedent from the United States Supreme Court, and

                                           14
we are aware of none.6 And our decisions holding that the predecessor to OCGA §

24-8-803 (4) did not apply to statements identifying the defendant as the cause of the

victim’s injuries are consistent with the decisions of the Eleventh Circuit applying

Fed. R. Evid. 803 (4).


      6
         The State contends that its position in this case is supported by the United
States Supreme Court’s decision in White v. Illinois, 502 U. S. 346 (112 SCt 736, 116
LEd2d 848) (1992). Specifically, the State argues that White held that “an unavailable
child’s identification of her sexual abuser is properly admissible under Rule 803 (4).”
We disagree. In White, the trial court allowed the child’s mother and babysitter, the
responding officer, and emergency room personnel to testify as to the child’s
“statements describing the assault,” and it appears that this testimony included the
child’s statements identifying the defendant as the perpetrator. 502 U. S. at 349-350.
On appeal, the defendant contended that because the trial court had made no specific
finding that the child was unavailable to testify, this testimony violated his rights
under the Confrontation Clause. Id. The Supreme Court rejected this argument,
holding that the Confrontation Clause does not require a trial court to make a specific
finding regarding a declarant’s availability before allowing hearsay testimony that is
otherwise admissible under one of the “firmly rooted exceptions to the hearsay rule.”
Id. at 355-356. The Court noted that the child’s statements to the mother, babysitter,
and responding officer were made within 45 minutes of the assault and were therefore
admissible under the “excited utterance” exception to the hearsay rule. Id. at 351.
Additionally, the child’s statements to the emergency room physician and nurse,
which were made within hours of the incident, were admissible under both the excited
utterance exception and the exception for statements made for purposes of medical
diagnosis and treatment. Id. Notably, the excited utterance exception allows the
introduction of hearsay statements in which the declarant identifies the perpetrator.
See, e.g., United States v. Davis, 330 Fed. Appx. 183, 185 (11th Cir. 2009); Robbins
v. State, 300 Ga. 387, 389 (2) (793 SE2d 62) (2016); Wilson v. State, 295 Ga. 84, 87
(757 SE2d 825) (2014). Thus, White did not address whether such identification
statements were admissible under Rule 803 (4).

                                          15
      Relying on the advisory committee’s note to Fed. R. Evid. 803 (4),7 the

Eleventh Circuit has held that the rule allows statements related to the cause of the

victim’s injuries, but not statements that “assign any fault” for the injuries. United

States v. Belfast, 611 F.3d 783, 818-819 (VI) (B) (11th Cir. 2010). See also United

States v. Williams, 578 Fed. Appx. 872, 876-877 (III) (11th Cir. 2014). Thus, the

Eleventh Circuit has found admissible under Fed. R. Evid. 803 (4) a victim’s

statements that his injuries resulted from “abuse and torture,” Belfast, 611 F.3d at

818-819 (VI) (B); a victim’s statements that his injuries occurred when he “was

beaten,” United States v. Darden, 186 Fed. Appx. 887, 889 (11th Cir. 2006); and a

victim’s statement that she was raped. Williams, 578 Fed. Appx. at 876-877 (III). That

Court has further held, however, that statements identifying the party responsible for

the victim’s injuries would be inadmissible under Fed. R. Evid. 803 (4). See Darden,

186 Fed. Appx. at 890 (noting that the part of the victim’s statement in which he

identified “the cops” as his assailants would not be admissible, as it went “to the fault


      7
        The advisory committee’s note provides, in relevant part, that Fed. R. Evid.
803 (4) allows “statements as to causation, reasonably pertinent to” purposes of
diagnoses and treatment, but that it does not permit “[s]tatements as to fault . . . .
Thus[,] a patient’s statement that he was struck by an automobile would qualify [for
admission under Fed. R. Evid. 803 (4)] but not his statement that the car was driven
through a red light.”

                                           16
[for] his injuries”). See also Belfast, 611 F.3d at 819 (VI) (B) (finding the victims’

statements that their wounds and burns resulted from abuse or torture were admissible

given that they did “not assign any fault for the abuse or torture”).

      Despite the fact that the case law from both Georgia’s appellate courts and the

Eleventh Circuit supports the trial court’s ruling in this case, the State argues that

because there is no Eleventh Circuit case addressing the application of Fed. R. Evid.

803 (4) in the context of child molestation, we should adopt the approach employed

by the Eighth, Ninth, and Tenth Circuits8 to find that the statements at issue fall

within the hearsay exception set forth in OCGA § 24-8-803 (4). We decline to do so.9

      8
        The State also cites two civil cases from the First and Fourth Circuits where
the court found a child’s out-of-court statements, made to a mental health professional
and in which the child identified her abuser, admissible under Fed. R. of Evid. 803
(4). See Danaipour v. McLarey, 386 F3d 289, 298-299 (1st Cir. 2004); Morgan v.
Foretich, 846 F2d 941, 949-950 (V) (4th Cir 1988). Given that civil cases do not
present the same Confrontation Clause concerns as criminal cases however, we do not
consider these cases instructive as to the question before us, which is whether hearsay
statements in which a child identifies the defendant as her abuser are admissible
under Rule 803 (4). See Idaho v. Wright, 497 U. S. 805, 814 (110 SCt 3139, 111
LEd2d 638) (1990) (noting that because of reliability concerns, “[t]he Confrontation
Clause . . . bars the admission of some evidence [in criminal cases] that would
otherwise be admissible under an exception to the hearsay rule”); Danaipour, 386
F3d at 298 (noting that given the civil nature of the case, Confrontation Clause
concerns were not present).
      9
         Even assuming that, as the State insists, we are required to apply only federal
precedent, the State offers no argument or authority to support its contention that we
are obligated to follow the limited line of cases on which it relies — a line of cases
that is not without critics.

                                          17
      In United States v. Renville, 779 F2d 430 (8th Cir. 1985), the Eighth Circuit

concluded that “[s]tatements by a child abuse victim to a physician during an

examination that the abuser is a member of the victim’s immediate household are

reasonably pertinent to treatment.” Id. at 436 (II). The court explained the rationale

underlying this conclusion as follows:

      First, child abuse involves more than physical injury; the physician must
      be attentive to treating the emotional and psychological injuries which
      accompany this crime . . . The exact nature and extent of the
      psychological problems which ensue from child abuse often depend on
      the identity of the abuser. . . . Furthermore, in [most cases not involving
      child abuse] the statement of fault is not relevant to prevention of
      recurrence of the injury. Sexual abuse of children at home presents a
      wholly different situation. . . . Second, physicians have an obligation,
      imposed by state law, to prevent an abused child from being returned to
      an environment in which he or she cannot be adequately protected from
      recurrent abuse. This obligation is most immediate where the abuser is
      a member of the victim’s household . . . . Information that the abuser is
      a member of the household is therefore “reasonably pertinent” to a
      course of treatment which includes removing the child from the home.


Id. at 437-438 (II) (citations and footnotes omitted). Renville then concluded that

statements of identity in child abuse cases would be admissible under Fed. R. Evid.

803 (4) provided “the physician makes clear to the victim that the inquiry into the


                                          18
identity of the abuser is important to diagnosis and treatment, and the victim

manifests such an understanding.” Id. at 438 (II).

      Relying to a large extent on Renville’s logic, the Ninth Circuit held that

statements of identity are reasonably pertinent to the treatment of victims in all sexual

assault cases, explaining: “Sexual abuse involves more than physical injury; the

physician must be attentive to treating the victim’s emotional and psychological

injuries, the exact nature and extent of which often depend on the identity of the

abuser.” United States v. George, 960 F2d 97, 99 (II) (A) (9th Cir. 1992) (citation

omitted). And in United States v. Joe, 8 F3d 1488 (10th Cir. 1993), the Tenth Circuit

also relied on Renville to find that statements made by victims of domestic sexual

assault to their treating physicians and in which the victims identify their abusers are

admissible under Fed. R. Evid. 803 (4), reasoning:

      the identity of the abuser is reasonably pertinent to treatment in virtually
      every domestic sexual assault case, even those not involving children.
      All victims of domestic sexual abuse suffer emotional and psychological
      injuries, the exact nature and extent of which depend on the identity of
      the abuser. The physician generally must know who the abuser was in
      order to render proper treatment because the physician’s treatment will
      necessarily differ when the abuser is a member of the victim’s family or
      household.


                                           19
8 F3d at 1494-1495 (II) (B) (1) (a).

      Notably, in arguing for the expansion of the medical treatment and diagnosis

exception to allow statements identifying the perpetrator in cases of child abuse, the

State fails to address the fact that, unlike the Federal Rules of Evidence, Georgia’s

Evidence Code has a provision other than Rule 803 (4) that allows the admission of

identification statements such as the one at issue. Georgia’s Child Hearsay Statute

provides:

      A statement made by a child younger than 16 years of age describing
      any act of sexual contact or physical abuse performed with or on such
      child by another or with or on another in the presence of such child shall
      be admissible in evidence by the testimony of the person to whom made
      if the proponent of such statement provides notice to the adverse party
      prior to trial of the intention to use such out-of-court statement and such
      child testifies of the trial, unless the adverse party forfeits or waives
      such child’s testimony . . . and, at the time of the testimony regarding the
      out-of-court statements, the person to whom the child made such
      statement is subject to cross-examination regarding the out-of-court
      statements.


OCGA § 24-8-820.

      Since its enactment, the Child Hearsay Statute has been applied to allow the

introduction of out-of-court statements in which the victim identified his or her


                                          20
assailant to third parties, including medical professionals. See Romani v. State, 303

Ga. App. 829, 829-830 (1) (695 SE2d 303) (2010) (finding admissible under the

Child Hearsay Statute statements made by four-year-old victim to the examining

nurse practitioner that identified her father as her abuser); Bell v. State, 294 Ga. App.

779, 781 (4) (670 S.E.2d 476) (2008) (statement victim made to nurse during a

medical examination and in which she identified defendant as her rapist were

admissible under the Child Hearsay Statute); Flowers v. State, 255 Ga. App. 660, 662

(3) (566 S.E.2d 339) (2002) (under the Child Hearsay Statute, nurse practitioner who

examined the victim could testify as to the victim’s statements in which victim

identified defendant as her assailant). See also Guzman v. State, 273 Ga. App. 819,

821 (2) (616 SE2d 142) (2005) (Child Hearsay Statute allowed therapist’s testimony

as to child’s statements identifying defendant as the person who molested her).

      The Child Hearsay Statute is Georgia’s response to the fact that out-of-court

statements of children are frequently relevant in child abuse cases although many

such statements do not fall within any of the traditional hearsay exceptions.

Moreover, this particular hearsay exception was carefully drawn so as to protect and

accused’s rights under the Confrontation Clause. See Hatley v. State, 290 Ga. 480,

482-484 (II) (722 SE2d 67) (2012) (addressing the constitutionality of former OCGA

                                           21
§ 24-3-16). Accordingly, the admission of a child’s out-of-court statements in which

he or she identifies her abuser is controlled by OCGA §24-8-820, even when those

statements are made to a medical professional treating or otherwise diagnosing the

victim.10 See State v. Jones, 625 S2d 821, 826 (Fla. 1993) (finding that a child

victim’s statements to medical personnel identifying the child’s abuser were not

admissible under the medical diagnosis and treatment exception but could be

admitted under Florida’s child hearsay statute, F. S. A. §90.803 (23)).

      To the extent that the State is arguing that we should employ the reasoning of

Renville and its progeny to find that a child abuse victim’s out-of-court identification

of her abuser to medical personnel is admissible under both the Child Hearsay Statute

and the medical treatment or diagnosis exception, we disagree. The analysis

employed in Renville, George, and Joe fails to focus on the motives and/or state of

mind of the declarant and in so doing, it essentially disregards the common-law




      10
         The State would have us treat the Child Hearsay Statute as irrelevant to this
appeal, asserting that OCGA § 24-8-20 applies only in cases where the declarant is
available. This assertion fails to consider the possibility that under Georgia law,
identification statements made under circumstances such as those present here are
admissible only if the declarant is available.

                                          22
rationale underlying all established hearsay exceptions.11 In short, the analysis in

those cases fails to consider whether out-of-court statements relating to the identity

of an assailant carry the same inherent guarantee of trustworthiness as other

statements made for the purpose of receiving medical diagnosis or treatment.

       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.” OCGA § 24-8-801 (c); Fed. R. Evid. 801. Because hearsay statements are

offered for the truth of the matter asserted, their evidentiary value depends upon the

reliability of the declarant at the time the statement was made. See Boivin v. State,

298 Ga. App. 411, 414 (2) (680 SE2d 415) (2009) (“[e]vidence is hearsay when the

proponent’s use of the evidence essentially asks the jury to assume that the out-of-

court declarant was not lying or mistaken when the statement was made”)

(punctuation and footnote omitted) (applying former OCGA § 24-3-1 (a)). Thus,

hearsay exceptions are premised on the idea that the circumstances surrounding the

out-of-court statement make “the declarant’s truthfulness . . . so clear . . . that the test


       11
         “It is well established that the body of common law knowledge must be a
source of guidance in our interpretation of the Rules [of Evidence].” Tome, 513 U.S.
at 168 (Scalia, J., concurring in part and concurring in the judgment) (citations and
punctuation omitted).

                                            23
of cross-examination would be of marginal utility.” Idaho v. Wright, 497 U. S. 805,

820 (II) (110 SCt 3139, 111 LEd2d 638) (1990), citing 5 J. Wigmore, Evidence

§1420, p. 251 (J. Chadbourn rev. 1974).

      Out-of-court statements for purposes of medical treatment or diagnosis are

presumed reliable (and are therefore excepted from the Hearsay Rule) because a

patient seeking medical treatment has a “strong motivation to be truthful,” Fed. R.

Evid. 803 (4), advisory committee’s note. This hearsay exception therefore presumes

a certain state of mind by the declarant, specifically that the patient (or his

representative) is aware that when providing information for purposes of medical

diagnosis or treatment, it is in the patient’s self-interest to tell the truth. In other

words, the exception is based on the premise that statements “made in the course of

procuring medical services, where the declarant knows that a false statement may

cause misdiagnosis or mistreatment, carr[y] special guarantees of credibility.” White

v. Illinois, 502 U. S. 346, 356 (112 SCt 736, 116 LE2d 848) (1992). Thus, as White

makes clear, hearsay statements under Rule 803 (4) carry a sufficient guarantee of

trustworthiness under traditional hearsay analysis.

      Given that the trustworthiness of statements made for purposes of medical

treatment and diagnosis depends on the declarant’s motive, courts have traditionally

                                          24
looked to the state of mind of the declarant to determine whether a statement was

reasonably pertinent to medical diagnosis or treatment, – i.e., “the court [would]

determine whether the statements were reasonably considered by the declarant as

being pertinent to the diagnosis or treatment sought.” Rock v. Huffco Gas & Oil Co.,

922 F2d 272, 277 (II) (A) (1) (5th Cir. 1991) (emphasis supplied). See also White,

502 U. S. at 356.

      In concluding that identification statements made by victims of child abuse or

sexual assault were admissible under Fed. R. Evid. 803 (4), however, Renville,

George, and Joe focused on the perspective of the treating physician rather than on

the state of mind of the declarant. These cases examined whether the physician

viewed the information relayed by the patient as pertinent to diagnosis and treatment,

not whether the declarant believed that information was necessary to his or her proper

treatment. See Renville, 779 F2d at 438 (II) (“[w]e therefore believe that statements

of identity to a physician by a child sexually abused by a family member are of a type

physicians reasonably rely on in composing a diagnosis and course of treatment”);

George, 960 F2d at 99 (II) (A) (finding that the child’s statement identifying her

abuser was made for the purpose of medical diagnosis or treatment and was

reasonably pertinent to the same based on the treating physician’s testimony “that she

                                         25
asked about the assailant’s identity for the purpose of diagnosing and treating the

victim”); Joe, 8 F3d at 1495 (II) (B) (finding patient’s identification of her husband

admissible under Fed. R. Evid. 803 (4) based on the treating physician’s testimony

“that the identity of the sexual assailant was important for his recommendation

regarding [the patient’s] after-care, including appropriate counseling”). As one court

has observed, the “bizarre consequence” of this analysis is that “the state of mind of

the hearsay declarant is effectively ignored.” Cassidy v. State, 536 A2d 666, 687 (Md.

App. 1988) (declining to extend Maryland’s version of the medical treatment hearsay

exception to cover identification statements made by a child molestation victim).

      Moreover, these cases fail to acknowledge that a medical professional’s belief

that certain information is reasonably pertinent to treatment and diagnosis is not

necessarily related to the motives of the declarant in identifying the party responsible

for his or her injuries. Accordingly, analyzing whether a medical professional

considers certain information relevant to a patient’s treatment offers no guarantee as

to the inherent trustworthiness of the identification information being provided by the

declarant. In other words, in the absence of some showing that a statement arose from

the declarant’s desire for effective medical treatment, there is no inherent

trustworthiness in a hearsay statement identifying the perpetrator. See Colvard v.

                                          26
Commonwealth, 309 SW2d 239, 245-246 (I) (D) (Ky. 2010) (rejecting the rationale

of Renville and holding that Kentucky Rule of Evidence 803 (4) did not permit the

introduction of identification statements in child molestation cases) (overruling the

court’s previous decision in Edwards v. Commonwealth, 833 SW2d 842 (Ky. 1992)).

And we find that this reasoning applies even though the out-of-court statement may

impose on medical personnel certain legal reporting requirements, may impact a

child’s living situation, or may result in the child’s being referred for psychological

counseling. As the Maryland Court of Appeals explained when declining to follow

the Renville rationale,

      The state of mind of a declarant vis-à-vis anticipated physical treatment
      is quite different from the state of mind of a declarant vis-à-vis
      anticipated social disposition. The situations may be the same to the
      doctor; they are not the same to the patient. Physical self-survival
      dictates revealing even embarrassing truth to avoid the risk of the wrong
      medicine or the needless operation. Presupposing a declarant conscious
      of the probable consequences of his assertions, the imperative to speak
      truthfully is not nearly so strong when the anticipated result is a social
      disposition. The temptation to influence the result may, indeed, run in
      quite the opposite direction.


Cassidy, 536 A2d at 684.



                                          27
      Moreover, the trustworthiness of identification statements is even more

questionable where, as in this case, the child is not the declarant and the information

that a family member is abusing the child is provided by another adult in the same

household. Put another way, in cases involving family disputes, a parent or guardian’s

motive for casting blame for a child’s abuse may or may not be in the child’s best

interest or for the purpose of medical diagnosis.

      Given that out-of-court statements identifying the party responsible for a

victim’s injuries do not carry with them the same guarantee of trustworthiness as

other statements made for purposes of medical diagnosis and treatment, we conclude

that such statements do not fall within the hearsay exception at issue. Accordingly,

we find that the trial court did not abuse its discretion in concluding that the those

portions of the mother’s statements in which she claimed that her child had identified

Almanza as the child’s abuser are not admissible under OCGA § 24-8-803 (4).

      Judgment affirmed. McFadden, P. J., and Bethel, J., concur.




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