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
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
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)?
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."
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.
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
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
A. October 27th. It was a Tuesday.
Q. Okay. And so about a week before would be around the 20th
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.
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.
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?
Q. Yet it was on the 27th that you thought that warranted
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
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
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?
Q. When she came up to you on the 27th, my understanding is
that she said the dog licked peanut butter off her bottom
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
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
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.
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.
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.
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.
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.
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
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
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.
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
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
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
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.
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.
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)
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
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