Lonnie C. McLAURY, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Christyne Martens, Assistant Attorney General.
Before KITE, C.J., and HILL, VOIGT, BURKE, JJ., and GOLDEN, J., Retired.
[¶ 1] A jury convicted Lonnie McLaury of sexual assault in the first degree in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii). On appeal, McLaury contends that the district court abused its discretion when it allowed a sexual assault nurse examiner (SANE nurse) to testify, over his objection, as to the statements made by the victim during the physical examination of her. We affirm the district court.
[¶ 2] McLaury presents one issue:
Did the trial court abuse its discretion in allowing hearsay testimony?
[¶ 3] On September 27, 2010, the victim and her boyfriend went to visit a friend at his apartment. Lonnie McLaury was also there. While watching television, the victim and her boyfriend fell asleep. The victim was awakened by McLaury digitally penetrating her vagina. She realized the person was McLaury and immediately woke her boyfriend, who told McLaury to stop, grabbed his arm, and threatened to cut his fingers off. The victim and her boyfriend immediately left the apartment.
[¶ 4] After leaving, the victim and her boyfriend drove to the Cheyenne Police Department where they reported the incident. The police officer then asked the victim if she would like to go to the hospital, and she stated that she would. A police report was filed after the victim's report and after the examination at the hospital.
[¶ 5] Based on the police report, McLaury was charged with one count of first degree sexual assault under § 6-2-302(a)(iii). The case went to jury trial, where the SANE nurse testified for the prosecution. Prior to testifying, however, McLaury requested that the district court prohibit the SANE nurse from repeating the statements made to her by the victim during the exam. Defense counsel suggested that the statements were not proper as prior consistent statements and would only serve to bolster the victim's testimony. The State, on the other hand, suggested that such testimony should be allowed as a statement made for the purpose of medical treatment. The district court allowed the testimony, as long as the SANE nurse did not vouch for the victim.
[¶ 6] During the SANE nurse's testimony, she explained why the circumstances of the assault were necessary to the exam— to determine potential injury and possibly collect
biological evidence. The SANE nurse then testified that the victim indicated she was sexually assaulted by digital penetration. On cross-examination, defense counsel asked the SANE nurse to clarify the nature of the assault, and then on redirect, the SANE nurse refreshed her recollection with her exam report. The SANE nurse then testified that the victim told her assailant to stop.
[¶ 7] A jury found McLaury guilty as charged, and on May 24, 2012, the district court imposed a sentence of five to seven years, suspended in favor of five years of probation (which was later revoked). This appeal followed.
STANDARD OF REVIEW
[¶ 8] " Our review of rulings by a trial court, admitting or excluding evidence, is premised upon deference to the trial court, and we do not reverse a case because of evidentiary rulings unless an abuse of discretion is demonstrated." Oldman v. State, 998 P.2d 957, 960 (Wyo.2000).
[¶ 9] In his only issue, McLaury argues that the district court abused its discretion in allowing hearsay testimony from the SANE nurse who testified about her examination of the victim in this case, and repeated a portion of the victim's statements. Specifically, McLaury contends that the district court did not properly apply the exception and the foundational requirements found in W.R.E. 803(4), " Statements for Purposes of Medical Diagnosis." In response, the State contends that the victim's statements to the SANE nurse were properly admitted under Rule 803(4) and that the foundational requirements under the rule were satisfied.
[¶ 10] Hearsay is " 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." W.R.E. 801(c). Hearsay is inadmissible unless it falls into one of the exceptions recognized by the rules of evidence, and the exception at issue in this case is found in Rule 803(4), which reads as follows:
Rule 803. Hearsay exceptions; availability of declarant Immaterial.
The following are not excluded by the hearsay rule, even though the declarant is ...