State of Washington v. Erin Thomas Mitchell Bong ( 2015 )

FILED
JUNE 18, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33000-1-111
Respondent, )
)
v. )
)
ERIN THOMAS MITCHELL BONG, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. Erin Bong appeals from his conviction for second degree assault,
domestic violence. He contends that the trial court impermissibly allowed the jury to
hear his victim's 911 call and erroneously admitted a social worker's report concerning
assistance for the victim. We hold that the trial court did not commit error and affirm the
conviction.
FACTS
In May 2013, Erin Bong lived with his girlfriend Melody Loudermilk in
Bremerton. Loudermilk took several prescription me9,ications: Gabapentin for chronic
pain, Prozac for depression, and Flexeril, a muscle relaxant, among others.
On the evening ofMay 3, 20l3, Erin Bong and Melody Loudermilk drank wine
No. 33000-1-111
State v. Bong
and beer. When the two commenced to argue, Loudermilk removed herself to a
bedroom, where she took antianxiety medication. Bong entered the room and angrily
grabbed Loudermilk's wrist. Bong pummeled Loudermilk, thereby causing bruised arms
and a fractured eye socket. Loudermilk escaped Bong's grasp and locked herself inside
the home's computer room.
Melody Loudermilk phoned 911 emergency services. Loudermilk told the 911
operator that Erin Bong stole her money and her phone. Loudermilk also reported to the
operator that Bong had drank alcohol and struck her in the face. The call ended before
police arrived:
[Operator]: Alright. Are you just going to stay away from him until
the aid crew, or the ambulance--I'm sorry-the police get there?
[Loudermilk] : Yes.
[Operator]: Okay. We do have them dispatched and I want you to
call us back if anything changes, okay?
[Loudermilk]: (inaudible)
[Operator]: And, he's still there? Is he angry with you?
[Loudermilk]: He's very angry with me.
[Operator]: And he does know you're calling the police?
[Loudermilk] : Yes
[Operator]: No guns or anything like that in the house.
[Loudermilk]: No.
[Operator]: Alright. I want you to-I want you to really try to stay
separated from him. Call us back if anything changes before they get there.
Okay?
[Loudermilk]: Okay.
[Operator]: Alright. Are you okay to get off the line with me or do
you want me to stay on the line with you?
[Loudermilk]: Vh. I'll be alright.
[Operator]: Alright. Call us back if you change your mind, okay?
[Loudermilk]: Okay. Thank you.
2
No. 33000-1-111
State v. Bong
[Operator]: Vh-huh, bye-bye.
Clerk's Papers (CP) at 141-42.
City of Bremerton Police Officer William Prouse arrived at Erin Bong's and
Melody Loudermilk's residence. Bong answered the door. Bong appeared intoxicated,
but calm. Bong told Officer Prouse that Loudermilk and he argued but engaged in no
physical contact. Nevertheless, Prouse saw Loudermilk crying with a swollen face.
Prouse arrested Erin Bong.
After Erin Bong's arrest, Melody Loudermilk went to Bremerton's Harrison
Medical Center, where Dr. Robert Ast examined her. According to Ast, imaging showed
a fracture of the orbit, or the floor of the eye socket. Loudermilk also suffered from
bruises on her legs, abrasions on her arms, swelling and bruising of her cheeks, and
tenderness in her right wrist.
Dr. Robert Ast testified at trial:
[Melody Loudermilk] reported that she had been assaulted. Her
statement was that she was getting ready for bed, and her boyfriend came
into the room. And she-in quotes what she said was he was saying things
that didn't make sense and that he called her worthless and that the patient
stated that he punched her in the face, at which time she ran to another
room and started to sit down in a chair. And then she reported that he
flipped the chair that she was in, causing her to tumble to the ground. And
then she reported that he pushed and grabbed her several more times.
Report of Proceedings (RP) at 100-01.
3
No. 33000-1-III
State v. Bong
Harrison Medical Center routinely refers one who sustains injuries similar to
Melody Loudermilk's injuries to a social worker or counselor. The medical center
wishes to protect a patient from returning to an environment where she will sustain more
injuries. To this end, Melody Loudermilk met with a social worker at Harrison Medical
Center. The social worker wrote a report, which reads:
Discharge Planning Comments:
5/4/2013 0108 by PAMELA S HYSONG
Pt [patient] comes in tonight via ambulance after being "beat" by her SIO
[significant other] .... SIO was arrested and brought to jail. Pt has
multiple injuries, and in talking to the attending physician she will most
likely be dlc'd [discharged] tonight. Pt does not wish to go to a shelter; she
wants to go home. Pt states that there is no one else there, and that she is
safe at home (at least when SIO is not there). Pt states that this SIO will not
be coming home, and that when he does her two brothers and her child's
father will be there to ensure that she is safe. Pt states that she will allow
him in the home only to get his belongings, and then to get "out." Pt denies
SIIHI [suicidal ideationlhomicidal ideation]. Pt is given multiple resource
information: YMCA-DV, Community Resource Guide, and Counseling
information. Pt is also given an "Application for Benefits, "Crime
Victims." Pt will dlc home when medically cleared.
CP at 154.
PROCEDURE
The State of Washington charged Erin Bong with second degree assault and
further alleged that the assault constituted domestic violence.
At trial, the State called five witnesses: Officer William Prouse, the responding
officer; Eliseo Gonzalez, a records custodian for the Department of Licensing; Therese
Ungren, a records custodian for Kitsap County's 911 call center; Dr. Robert Ast, the
4
No. 33000-1-II1
State v. Bong
attending physician; and Melody Loudermilk. Loudermilk testified that she did not
remember much of the night, including phoning 911. She did not recall events between
the moments when Erin Bong grabbed her wrist and law enforcement officers
photographed her.
Over Erin Bong's objection, the trial court permitted the jury to hear Melody
Loudermilk's 911 call. Also over Bong's objection, the trial court admitted, as an
exhibit, the report of Harrison Medical Center's social worker.
The jury found Erin Bong guilty of second degree assault. The jury also found the
assault to be one of domestic violence since Bong and Melody Loudermilk lived in the
same household.
LA W AND ANALYSIS
On appeal, Erin Bong contends: (1) the trial court violated his constitutional rights
to confront witnesses against him when it permitted the playing of the recording of
Melody Loudermilk's emergency call to 911 to the jury, and (2) the trial court erred when
it admitted the social worker's report into evidence under ER 803(a)(4) because the
report contained statements not made for the purpose of medical diagnosis or treatment.
911 Call
Erin Bong contends the trial court violated his constitutional rights to confront
witnesses when it admitted the recording of Melody Loudermilk's call to 911. Bong
labels the recording as testimonial hearsay. This appeals court reviews whether or not a
5
No. 33000-1-III
State v. Bong
statement was hearsay de novo. State v. Neal, 144 Wn.2d 600,607,30 P.3d 1255 (2001).
This court also reviews de novo an alleged violation of the confrontation clause. State v.
Jasper, 174 Wn.2d 96,108,271 P.3d 876 (2012).
"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." ER
80 1(c). If an exception applies, the hearsay may be admissible. ER 802.
Even hearsay with an applicable exception becomes inadmissible if its admission
violates a defendant's confrontation clause rights precluding testimonial hearsay. Davis
v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). A declarant's
out-of-court statement is testimonial if, in the absence of an ongoing emergency, the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution. Davis, 547 U.S. at 822. The "admission of
testimonial hearsay statements of a witness who does not appear at a criminal trial
violates the confrontation clause of the Sixth Amendment unless (1) the witness is
unavailable to testify and (2) the defendant had a prior opportunity for cross
examination." State v. Beadle, 173 Wash. 2d 97, 107,265 P.3d 863 (2011) (citing
Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)).
Erin Bong and the State dispute whether the 911 call was testimonial. Bong
emphasizes the 911 call ending before police arrived to show the absence of an "ongoing
emergency." Davis v. Washington, 547 U.S. at 822. Assuming the 911 recording was
6
No. 33000-1-111
State v. Bong
testimonial, Bong argues that Melody Loudennilk did not appear at trial, for
confrontation clause purposes, because she testified at trial that she had no memory of the
phone call. This court need not decide whether the 911 call was testimonial because,
regardless, under our Supreme Court's holding in State v. Price, 158 Wash. 2d 630, 146
P.3d 1183 (2006), Loudermilk appeared at Bong's trial.
In State v. Price, the State charged Charles Price with molesting a child, after the
child reported the abuse to her mother and a police detective. At trial, the child testified
that she could identify the defendant, but could not remember the abuse or reporting it to
her mother and the authorities. The state high court concluded that the admission of the
child's out-of-court statements did not violate Price's right of confrontation because:
[T]he confrontation clause is generally satisfied when the defense is
given a full and fair opportunity to expose the memory lapse through cross­
examination, thereby calling attention to the reasons for giving scant weight
to the witness's testimony .... when a witness is asked questions about the
events at issue and about his or her prior statements, but answers that he or
she is unable to remember the charged events or the prior statements, this
provides the defendant sufficient opportunity for cross-examination to
satisfy the confrontation clause.
Price, 158 Wash. 2d at 649-50.
Erin Bong had a full and fair opportunity to cross-examine Melody Loudermilk
regarding the 911 call. The State specifically asked Loudermilk on direct examination
whether she remembered phoning 911. Loudennilk identified the voice in the call as her
own, but responded that she could not remember making the call. Defense counsel cross­
7
No. 33000-1-111
State v. Bong
examined Loudermilk about the call. Loudermilk again responded that she did not
remember. The State did not abridge Bong's constitutional right to confront a witness.
Social Worker Report
Erin Bong next contends that the trial court erred when it admitted the report of
Harrison Hospital's social worker under ER 803(a)(4) because the report contained
statements not made for the purpose of medical diagnosis or treatment. We disagree.
ER 803(a)(4) provides an exception to the general prohibition of hearsay
testimony for statements "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." Because ER 803(a)(4) pertains to
statements "reasonably pertinent to diagnosis or treatment," it allows statements
regarding causation of injury, but generally not statements attributing fault. State v.
Redmond, 150 Wn.2d 489,496, 78 P.3d 1001 (2003) (citing State v. Woods, 143 Wn.2d
561,602,23 P.3d 1046 (2001)).
For a hearsay statement to be admitted under ER 803(a)(4), the statement need not
be about physical injuries. In re the Dependency ofMP., 76 Wash. App. 87, 92, 882 P .2d
1180 (1994 ). To determine whether a statement was made for purposes of medical
diagnosis or treatment, courts review whether (1) the declarant's motive was to promote
treatment, and (2) the medical professional reasonably relied on the statement for
8
No. 33000·1·111
State v. Bong
treatment purposes. In re Pers. Restraint ofGrasso, 151 Wash. 2d 1, 20, 84 P.3d 859
(2004).
Erin Bong argues that since Melody Loudermilk spoke to a social worker rather
than her treating physician, Loudermilk did not utter the statements for purposes of
medical diagnosis or treatment. This argument fails because it presupposes that Harrison
Medical Center needed to attend to only Loudermilk's physical injuries. Doctor Ast
explained, "We want to make sure that the patient is going to be safe and that they're
returning to an environment where they're not going to get reinjured." RP at 105. To
this end, Melody Loudermilk met with a social worker at Harrison. Loudermilk
identified her abuser as her live-in boyfriend, and the social worker ensured that
Loudermilk was not returning to an unsafe home.
Although statements attributing fault are generally not relevant to diagnosis or
treatment, this court has found statements attributing fault to an abuser in a domestic
violence case are an exception because the identity of the abuser is pertinent and
necessary to the victim's treatment. State v. Moses, 129 Wash. App. 718, 729, 119 P.3d
906 (2005). Melody Loudermilk's statements to the social worker, including the identity
of her abuser, were pertinent and necessary to her treatment. The statements to the social
worker served to prevent reinjury.
A controlling decision is State v. Sims, 77 Wash. App. 236, 890 P.2d 521 (1995).
The State prosecuted Keith Sims for assaulting Anita Bellinger, with whom he lived.
9
No. 33000-1-III
State v. Bong
Bellinger suffered an injury to her jaw. Bellinger sought treatment at Providence Medical
Center. Two physicians and a social worker testified at trial that Bellinger, while at
Providence, reported she had been struck by a man with whom she once lived. On
appeal, Sims assigned error to the admission of this testimony as barred by the .hearsay
rule. This court rejected the argument because a statement attributing fault to an abuser
can be reasonably pertinent to treatment in domestic sexual assault cases involving
adults. This court quoted from United States v. Joe, 8 F.3d 1488, 1494-95 (lOth Cir.
1993).
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. In the domestic sexual abuse case, for example, the treating
physician may recommend special therapy or counseling and instruct the
victim to remove herself from the dangerous environment by leaving the
home and seeking shelter elsewhere. In short, the domestic sexual abuser's
identity is admissible under Rule 803(4) where the abuser has such an
intimate relationship with the victim that the abuser's identity becomes
"reasonably pertinent" to the victim's proper treatment.
State v. Sims, 77 Wash. App. at 239-240.
Statement of Additional Grounds
In his statement of additional grounds (SAG), Erin Bong contends: a juror knew
him and Loudermilk personally; a juror slept through the State's closing argument; his
defense counsel failed to interview Loudermilk until five minutes prior to her testifYing;
10
No. 33000-1-III
State v. Bong
and his defense counsel stated to the prosecuting attorney, "I won't object to anything
you say if you won't object to what I say." SAG at 1. The purported facts underlying
these contentions are not in the appellate record. As such, we are unable to review these
contentions. State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251 (1995).
CONCLUSION
We confirm Erin Bong's conviction for a domestic violence assault.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, 1.
WE CONCUR:
:3/~W~1
Siddoway, C.J.
C,}
11