Rush, C.J.
Dee Ward was charged with battering J.M., his girlfriend. During treatment for her injuries, J.M. told a paramedic and a forensic nurse that Ward was her attacker. When J.M. failed to appear for depositions or to testify at trial, the State relied on her statements to the paramedic and the forensic nurse to implicate Ward, over Ward’s objection that the evidence was “testimonial hearsay” that violated his federal and State confrontation rights.
We hold the statements are non-testimonial. Asking J.M. who attacked her was not aimed at obtaining a substitute for trial testimony—rather, it was a vital part of providing appropriate medical and psychological treatment and service referrals, as the applicable standard of care requires. Accordingly, J.M.’s hearsay statements were properly admitted into evidence. We therefore affirm Ward’s convictions for C-felony battery and A-misdemeanor domestic battery.
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[R]ecently in Ohio v. Clark, 135 S. Ct. 2173 (2015), the United States Supreme Court * * * clarified that determining the “primary purpose” of statements made to non-law enforcement personnel—that is, whether it was intended to be available as a substitute for trial testimony in a later criminal prosecution—is highly fact-sensitive. That approach is consistent with Perry [v. State, 956 N.E.2d 41 (Ind. Ct. App. 2011)] and Indiana’s other pre-Clark cases addressing Confrontation Clause questions about identification statements made during medical treatment. … In essence, Perry reasoned that because of the unique nature of [child abuse, sexual assault, and domestic violence] cases, identifying the attacker serves a primarily medical, not testimonial, purpose because a “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.” [Citation omitted.]
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We likewise find J.M.’s statements to the Forensic Nurse to be non-testimonial. As Perry illustrates, medically relevant information is not transformed into “testimony” when it is reported to a forensic nurse instead of a paramedic. In Perry, … [t]he Court of Appeals recognized that despite an “investigative component,” the forensic examination [of a rape victim] served the “primary purpose . . . to furnish and receive emergency medical and psychological care,” making the victim’s statements identifying her attacker admissible under the medical-diagnosis hearsay exception, and nontestimonial for purposes of the Confrontation Clause. [Citation omitted.] … Perry specifically recognized that “in cases involving child abuse, sexual assault, and/or domestic violence,” the assailant’s identity is “pertinent to the diagnosis and treatment of . . . physical injuries[,] [a]nd . . . psychological counseling for domestic abuse, and significant to medical personnel in deciding how to discharge their patient.” [Citation omitted; footnote omitted.]
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… [E]verything the Forensic Nurse did here served the primary purpose of medical treatment. … [S]he oversaw J.M.’s safety and discharge planning, and classified J.M. as a “no information patient” to prevent people (specifically the attacker) from learning J.M.’s whereabouts. [Record citations omitted throughout.] She then ensured J.M. would be discharged to a safe location (home with the mother, not the attacker). Finally, the Forensic Nurse recommended counseling and made the appropriate referrals to the Julian Center and Legacy House.
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Despite Ward’s arguments to the contrary, patient safety is a “critical” part of the comprehensive standard of care for treating victims of domestic violence. [Citation omitted.] …
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Considering their context, we deem J.M.’s statements to the Forensic Nurse identifying Ward as her attacker non-testimonial, not barred by the Confrontation Clause, and properly admitted under Evidence Rule 803(4). Of course, Evidence Rule 803(4) should not be abused by asserting a pretextual medical purpose as a backdoor for admitting what is really testimonial hearsay. But that is the very problem the “primary purpose” test is designed to solve—to discern, in context, whether the asserted purpose of the statement really is “primary,” or merely pretext for an impermissible purpose. Faithfully applying the “primary purpose” test in context, as Clark and Perry prescribe, and as we have here, will therefore guard against those abuses. … The trial court correctly recognized the legitimate primary medical purpose for asking J.M. to identify her attacker and properly admitted the Forensic Nurse’s testimony.
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David and Massa, JJ., concur.
Ricker, J., dissents in part with separate opinion in which Dickson, J., concurs.
RUCKER, J., dissenting in part.
I respectfully dissent from that portion of the majority opinion declaring as non-testimonial the statements J.M. made to the Forensic Nurse identifying Ward as her attacker. It is certainly true there are circumstances under which the identity of an alleged abuser is necessary to enable medical personnel to provide appropriate diagnosis and treatment. But here the majority goes a step further and essentially takes the position that in all cases involving a medical care provider— no matter the facts—the identity of the alleged abuser is necessary, non-testimonial, and admissible in the face of a Sixth Amendment Confrontation Clause challenge. I cannot agree because this sets a dangerous precedent for future cases.
First, it is apparent that here the Forensic Nurse was serving in a dual capacity: obtaining information necessary for appropriate medical diagnosis and treatment as well as gathering evidence for use in a criminal prosecution. On this latter point, the record shows that upon referral to the Forensic Nurse, J.M. was presented with a “General Information” sheet [that included consents, , which J.M. initialed and signed, to “preserve evidence” and release the report to law enforcement]. …
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… [T]he Forensic Nurse was unequivocal in her contention that she needed to know the identity of J.M.’s abuser in order to develop a plan to protect J.M.’s safety. In essence the Forensic Nurse declared that she needed the information to provide J.M. appropriate treatment. The problem however is that other than placing J.M. on a “no information” status for the few hours she remained at the hospital that evening, nothing in the record of the trial of this cause establishes that the Forensic Nurse actually developed a so-called “safety plan.” [Footnote omitted.] Instead, upon release J.M. was instructed: “Take medications as prescribed,” “Return for worsening symptoms,” and “Follow up with primary care physician.” Indeed the “Depart Summary” reflects that J.M. was prescribed pain medication and experienced a “Routine Discharge” to “[h]ome.”
… Absent any evidence in the trial record that the abuser’s identity was necessary to diagnose or treat J.M.’s injuries—either physical, emotional, or psychological—one is compelled to conclude that the primary purpose of the Forensic Nurse’s interview with J.M. concerning the identity of her abuser was to “establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). Essentially, if the State insists on introducing “identity of the abuser” testimony through a medical care provider then it is absolutely imperative that the State produce evidence at trial explaining how and why such testimony is relevant to medical treatment. That simply did not happen here.
In sum J.M.’s statements to the Forensic Nurse were testimonial and thus inadmissible in the face of a Sixth Amendment Confrontation Clause challenge. In the paraphrased words of the Davis Court, I “do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking [Forensic Nurse] recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition.” Davis, 547 U.S. at 826. I therefore respectfully dissent from the majority’s contrary position on this point. Otherwise I concur.
Dickson, J., concurs.