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Schmidt v. State

Supreme Court of Wyoming

September 7, 2017

THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; and Katherine A. Adams, Assistant Attorney General. Argument by Ms. Adams.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


          HILL, Justice.

         [¶1] Bryan Schmidt was convicted of two counts of sexual abuse and one count of sexual exploitation of a minor. On appeal, Mr. Schmidt contends that the district court's decision to allow a school nurse to testify as to the victim's out-of-court statements violated his Sixth Amendment right to confront witnesses against him. He further contends that the district court abused its discretion in ruling the statements were admissible under W.R.E. 803(4) as statements made for purposes of medical diagnosis or treatment. We affirm.


         [¶2] Mr. Schmidt states the issues on appeal as:

I. Did the trial court violate Mr. Schmidt's right to confront witnesses against him by allowing out of court statements of a witness who had been adjudicated to be incompetent to testify?
II. Did the trial court err in ruling that statements made by D.V. to a school nurse were admissible under W.R.E. 803(4)?


         A. Pre-Arrest Events

         [¶3] In October 2015, Bryan Schmidt lived in an apartment in Laramie, Wyoming, with his girlfriend, TV, and her six-year-old daughter, DV. The three of them had lived together for about five years, and because DV's biological father had injured her by shaking her when she was seven months old, Mr. Schmidt was the sole father figure in DV's life during those five years. DV thus referred to Mr. Schmidt as "dad."

         [¶4] DV was attending Beitel Elementary School in Laramie in October 2015 and had an individualized education plan (IEP) to help address learning difficulties created by the injuries she sustained as an infant. As part of her IEP, DV was assigned a paraprofessional, Sarah Sanchez. Ms. Sanchez worked with DV each school day for eight hours a day, providing academic support and support in her daily routines at school. Ms. Sanchez explained her daily routine with DV:

I greet her in the morning from the time she gets there, we spend recess and breakfast together, then we go into class and I sit adjacent to her and assist her through her day. The only time I'm not with her is during lunch.

         [¶5] On October 27, 2015, DV reported an incident to Ms. Sanchez that was of concern to Ms. Sanchez. Ms. Sanchez described her conversation with DV:

Q. When, if ever, did D.V. first disclose to you that something may be going on that was concerning?
A. We were in the playground that morning before school started. She was playing hopscotch. She came over and told me that she had a secret and I bent down and she first whispered her secret in my ear that she was going to be a vampire for Halloween, then she told me she had another secret and she stated that her dog had licked the peanut butter off her bottom again.
Q. Was this the first time that D.V. Mentioned something concerning peanut butter and her dog?
A. No. She had stated it the week before.
Q. And just to be clear, what date was this second disclosure?
A. October 27th. It was a Tuesday.
Q. Okay. And so about a week before would be around the 20th of October?
A. Correct.
Q. Okay. What specifically had she said around the 20th of October, to the best of your memory?
A. She had said the same thing. She said, "My dog licked the peanut butter off my butt again." I'm sorry, the first time she didn't say again.
Q. Okay.
A. But the first time, she said, "The dog licked peanut butter off my butt." The second time she said again.
Q. And what actions, if any, did you take the first time back on the 20th of October?
A. None. I made a mental note of it.

         [¶6] Ms. Sanchez explained why DV's October 27th report caused her greater concern than her October 20th report.

Q. * * * My understanding is that when D.V. Said that the dog licked peanut butter off of her the week before, you did not report that or take that further?
A. Correct.
Q. Yet it was on the 27th that you thought that warranted further inquiry?
A. Correct.
Q. * * * [T]he thing that was significant about it was the fact that she had repeated it?
A. She repeated it, she called it a secret, and she said again.
Q. Okay. I guess what I'm really asking is why didn't you report that the week prior?
A. I think I could make sense of it the week before, maybe the dog was just kind of rude, but D.V. is the type of child that could not continue a lie. She doesn't have that type of memory. So if it was something that she was making up, she couldn't be able to tell me that again with the same details.
Q. Did it not strike you as odd in the area around the 20th, the first time that she would have had peanut butter on her bottom or other private parts?
A. On the 20th, she said it was peanut butter on her bottom, and at that point I dismissed it as a naughty dog, maybe she sat on a sandwich and that the dog kind of, you know, nipped at her or had it on her hands and wiped it on her pants and the dog kind of nipped at her like that.
Q. So am I correct that you didn't inquire - you didn't ask her how she got peanut butter on her bottom the first time?
A. Correct.
Q. When she came up to you on the 27th, my understanding is that she said the dog licked peanut butter off her bottom again, correct?
A. She said, "I have a secret. My dog licked peanut butter off my butt again."
Q. This time did you ask her how the peanut butter got onto her butt?
A. I asked her, "What do you mean by your butt?" And she pointed with her hand and said underneath and pointed to her private area. I asked her how did it get there. She said, with her hand in motion, "My dad put it there."

         [¶7] When DV made her October 27th statements to Ms. Sanchez, Carlos Mellizo, the school counselor, was nearby on the playground. Ms. Sanchez told him the two of them needed to discuss something with DV, and they then took DV to Mr. Mellizo's office. Ms. Sanchez asked DV to tell Mr. Mellizo what she had said earlier, and DV repeated her report that "her dog had licked the peanut butter off her butt again." Ms. Sanchez and Mr. Mellizo asked DV to demonstrate using dolls that Mr. Mellizo kept in his office. Ms. Sanchez explained:

We asked her to model that for us. She got the dolls out and she showed us how with two fingers her dad had taken peanut butter out of a jar and placed it on the private area of the doll. We had a dog that we - like a stuffed dog, and she took the dog and modeled with the licking motion with her tongue how the dog was licking the peanut butter on the doll.

         [¶8] Following that demonstration, Mr. Mellizo asked the school nurse, Sabra Hoffman, to join them in his office. Mr. Mellizo asked Ms. Hoffman to bring some sort of medicated cream, and he also located a container of SunButter (a peanut butter substitute made from sunflower seeds). Mr. Mellizo wanted these items to help determine whether DV may have misunderstood a parent's application of medicinal cream and to clarify that it was in fact peanut butter that was applied to DV's vaginal area.

         [¶9] When Ms. Hoffman joined the discussion in the office, DV repeated her earlier statements and demonstration with dolls and chose the SunButter over the cream when asked which substance had been applied to her vaginal area. DV also drew a picture on a dry erase board and pointed to the vaginal area of the picture she had drawn of herself to show where the peanut butter had been applied. She also physically demonstrated what had occurred.

         [¶10] After their discussion with DV, the three adults understood DV to be telling them that her dad, Mr. Schmidt, had placed peanut butter on her vagina and allowed the dog to lick the peanut butter from DV's vagina, and that on one occasion, the dog bit DV's vagina. DV was returned to her classroom, and Ms. Sanchez, Mr. Mellizo, and Ms. Hoffman informed the school principal of DV's statements.

         [¶11] After consulting with the principal, Ms. Sanchez reported DV's statements to the Department of Family Services (DFS). DFS then contacted law enforcement, and two detectives from the Laramie Police Department responded to the report that same day. The police department's immediate investigation included: interviews of DV, DV's mother, and Mr. Schmidt; a medical examination of DV; and a search of the apartment Mr. Schmidt shared with DV and her mother.

         [¶12] Detective Joel Senior was the primary detective on the case and participated in the search of the apartment. The search yielded a jar of peanut butter that appeared to have the impressions from someone's fingers in the peanut butter and small, very fine black hair bent over the rim. In a trash container in the bathroom across from DV's bedroom, Detective Senior recovered tissue paper with blood stains on it and paper towels with what appeared to be peanut butter on them. Detective Senior also observed a black puppy in the apartment.

         [¶13] DV's medical examination revealed a puncture wound to the labia majora of her vagina that was heated and reddened. With respect to the interviews of Mr. Schmidt and DV's mother, Detective Senior stated the following in his probable cause affidavit to support an arrest warrant for Mr. Schmidt:

6. During an interview that occurred on October 27, 2015, Bryan Schmidt admitted that about a week prior, on Wednesday, which would have been October 21, 2015, he had picked up the minor child victim from daycare and taken her home. According to Schmidt, the minor child had been unclothed while about to take a bath around 5:00 p.m. and the minor child had been bitten on her vagina by the dog. Schmidt stated he put toilet paper on the wound and once the wound had stopped bleeding, he put the minor child in the bath tub. Schmidt went on to say that the minor child was in the bath tub when the minor child victim's mother had come home from work and he told her what had happened.
7. Schmidt also admitted to watching pornography involving incest and beastiality (sic) * * *.
8. Schmidt went on to say that he follows incest and beastiality (sic) blogs on an app on his phone because he is interested in why people do those things.
* * * *
10. During a follow-up interview with the minor child victim's mother, the mother stated that she had had Schmidt pick up the minor child a week ago and that she had not learned of the injury to the minor child's vagina until she had arrived home from work.
* * * *
12. When asked if Schmidt had any interest in incest or beastiality (sic), the minor child victim's mother stated that Schmidt had shown her some beastiality (sic) videos and, specifically, that Schmidt had shown her videos of women having sex with dogs. She did advise that Schmidt had asked her to participate in beastiality (sic), however, she had refused.

         B. Post-Arrest Proceedings

         [¶14] On October 30, 2015, the State filed a felony information against Mr. Schmidt charging him with one count of sexual exploitation of a child, one count of second degree sexual abuse of a minor, and one count of third degree sexual abuse of a minor. Defendant pled not guilty to the charges, and the matter was set for a jury trial.

         [¶15] On February 12, 2016, the State filed a request for a hearing to determine DV's competence to testify at trial and to determine admissibility of DV's statements to school officials should the district court find DV incompetent to testify. Rather than holding one combined hearing, the district court first held a competency hearing on February 24, 2016. On February 25, 2016, the court issued an order declaring DV incompetent to testify. The court found:

9. * * * The evidence produced at the competency hearing revealed the following, in pertinent part:
a. D.V. was able to accurately state her first, middle, and last name;
b. D.V. correctly stated she is currently 6 years old, and attends Beitel Elementary School, in Laramie, Wyoming. She was also able to recall that she like[s] to read and play games in school;
c. D.V. correctly stated she currently lives with her grandparents, who take her to school, and that she eats two breakfasts (one at home and one at school each day), although she could not recall what she ate yesterday for breakfast;
d. D.V. accurately recalled her birth date and recalled that her mother baked a cake for her birthday last July 2015;
e. However, D.V. acknowledged that she did not know what a "lie" is;
f. D.V. inaccurately testified that her sister, Phoenix, is younger and lives with her "all the time, " when, in fact, Phoenix is an older sibling and only visits in the summers;
g. D.V. incorrectly answered that a statement "this carpet is red" (when the carpet was blue) was the truth;
h. Finally, D.V. recounted, at length, that she has seen a real dragon in the "puppy store, " that she petted the dragon, that the dragon was red, and that she was not afraid because he was nice even though he could breath fire.
10. After conducting the hearing, the Court concludes that, although not intentionally so, D.V. does not have an understanding of her obligation to speak the truth; nor the mental capacity at the time of the occurrence about which she is to testify. D.V. does not have the ability to receive an accurate impression of it; a memory sufficient to retain an independent recollection of the occurrence; the capacity to express in words her memory of the occurrence; and/or the capacity to understand simple questions about it.

         [¶16] On March 8, 2016, the district court held an evidentiary hearing to determine the admissibility of DV's statements, and on March 9, 2016, the court issued its order. The court first addressed whether admission of DV's statements would violate Mr. Schmidt's Sixth Amendment Confrontation Clause rights. The court ruled the statements would not run afoul of the Sixth Amendment because the statements were not made for the purpose of creating or preserving evidence with which to prosecute Mr. Schmidt and were thus not testimonial.

         [¶17] The district court next addressed whether the statements were admissible under either the catchall exception to the hearsay rule, W.R.E. 804(b)(6), or the exception for statements made for the purpose of medical diagnosis or treatment, W.R.E. 803(4). The court rejected the catchall exception as a basis for admitting DV's statements, concluding:

26. Here, there are some factors that weigh in favor of "circumstantial guarantees of trustworthiness, " most particularly the consistency of the statements; that several individuals overheard the statements; and the existence of corroborating evidence. However, other facts weigh against admissibility, including: some statements were made in response to questioning by others who were in a position of power and influence over D.V.; the exact phrasing of the questions asked is unknown - some may have been leading in nature; the statements lacked detail such as location and time; the statements were not made under oath; and D.V. was then and is now incompetent to understand the nature of an "oath" or even "truth." Additionally, the nature of Mr. Schmidt's relationship with D.V. is unclear, as Mr. Schmidt was D.V.'s mother's boyfriend. This Court has no information on whether D.V. approved of Mr. Schmidt's role in her life or had any motive to fabricate these stories. So, while this Court does not question whether the statements were, in fact, made, it has grave concerns as to the trustworthiness of the content of those statements.
27. This Court concludes that the State has not presented sufficient circumstantial guarantees of trustworthiness to justify their admissibility as a hearsay exception under Wyoming Rule of Evidence 804(b)(6). (emphasis in original)

         [¶18] The district court then turned to the W.R.E. 803(4) hearsay exception for statements made for the purpose of medical diagnosis or treatment. The court concluded that DV's statements to her paraprofessional and the school counselor were not admissible under the exception, but her statements to the school nurse were admissible under the exception. The court reasoned:

33. Here, the Court cannot go so far as to consider that D.V.'s statements to Ms. Sanchez, the paraprofessional, or Mr. Mellizo, the school counselor, were made for purposes of medical diagnosis or treatment. Both of those individuals clearly testified that their purpose in speaking with D.V. was to determine what happened in the context of their need to report the incident to authorities as mandatory reporters of ...

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