Coates v. State

HOLLANDER, Judge. This appeal requires us to consider Maryland Rule 5-803(b)(4), the hearsay exception for statements made “for purposes of medical diagnosis or treatment.” We must determine, inter alia, whether the circuit court erred or abused its discretion in admitting statements made in November 2003 by Jazmyne T., a child sexual abuse victim, to a nurse practitioner. The child’s out-of-court statements, made when she was ⁵⁹¹ almost eight years old, were a key part of the State’s evidence against Frederick Roscoe Coates, appellant, the former boyfriend of the victim’s mother. At a trial held in May of 2005, a jury in the Circuit Court for Montgomery County convicted Coates of second degree rape (vaginal intercourse in the victim’s bedroom; Count Two); second degree sexual offense (fellatio; Count Three); and child abuse (Count Five), for which he was sentenced to a total term of thirty-five years’ imprisonment. 1 Coates presents two questions for our review, which we quote: I. Did the trial court err in admitting the complainant’s out-of-court statements as substantive evidence under the medical treatment and diagnosis exception to the hearsay rule, where the statements were made 14 months after any abuse had ended and the State failed to meet its burden regarding the declarant’s state of mind?

II

Did the trial court err in permitting an expert witness who offered the hearsay to also testify about the complainant’s credibility? For the reasons that follow, we shall reverse the convictions and remand for a new trial. I. FACTUAL AND PROCEDURAL SUMMARY Jazmyne was born on December 19, 1995. The alleged acts of abuse last occurred in September of 2002, and were discovered in the Fall of 2003.

A few weeks later, in November 2003, Jazmyne was examined by Heidi Bresee, a pediatric nurse practitioner. During the examination, Jazmyne made statements impheating appellant. On February 17, 2005, the State notified appellant that it intended to call Bresee as “an ⁵⁹² expert in forensic examinations of sexual assaults.” In a letter to defense counsel on February 20, 2005, the State amplified the notice, stating: Ms. Bresse [sic] will testify that her observations of the victim’s vaginal area are consistent with Jazmyne’s disclosure of vaginal penetration. Ms. Bresse [sic] will opine that an object penetrated Jazmyne’s vagina.

The object could be an adult male’s penis or fingers. She has ruled out a child’s fingers as the penetrating object. She will further opine that Jazmyne’s hymen was narrow and that the loss of hymen occurred over time from abuse. The observations are consistent with repeated abuse.

The State may also introduce the videotape of the victim’s sexual assault examination.[ 2 ] On March 18, 2005, appellant filed a “Motion in Limine to Exclude Testimony,” seeking, inter alia, to bar Bresee’s opinion testimony and admission of the videotape. The defense argued, among other things, that Jazmyne’s statements to Bresee were not admissible under Md. Ride 5-803(b)(4), the hearsay exception for statements made for purposes of medical diagnosis or treatment, because “Jazmyne was not seeking medical treatment when she spoke to Ms. Bresee.” Further, appellant claimed that Ms. Bresee’s opinion would invade the jury’s role in judging the credibility of witnesses, because Bresee “would merely serve to vouch for” the credibility of Jazmyne. In support of his position that Jazmyne was not seeking medical treatment at the time of her meeting with Bresee, appellant pointed to a statement Jazmyne made some ten days before the examination, in which she allegedly said she “ ‘wanted these people to go to jail.’ ” 3 The defense also ⁵⁹³ urged the court to consider that Jazmyne did not present in an emergency situation. Rather, she was seen “one year after the alleged incidents ended____” Moreover, appellant argued that Jazmyne “had no symptoms, no pain, and no injuries to be examined or treated,” and Bresee “did not conduct a complete medical exam of Jazmyne, a complete pelvic exam, draw blood to test for sexually transmitted diseases, do vaginal swabs for gonorrhea and chlamydia, or provide any treatment.” The State countered that Jazmyne’s statements were admissible under Rule 5-803(b)(4) because “they were taken and given for dual medical and forensic purposes.” As evidence of a medical purpose for the exam, the State noted that Bresee referred Jazmyne for mental health counseling as well as HIV testing.

Further, it maintained that Bresee’s physical findings were consistent with the child’s disclosure of sexual abuse. At a motion hearing on April 7, 2005, defense counsel expressed concern that Bresee’s testimony lacked a sufficient basis in fact and would not be limited to her physical findings. Rather, she would testify to “a significant connection” between the physical findings and appellant. The State responded that it would show that Coates had access to the child without regard to Bresee.

The State also represented that it would only seek to use the videotape in the event that Jazmyne’s credibility was impeached. 4 The court said, in part: 5 ⁵⁹⁴ As I understand it, the questions to [Ms. Bresee] having to do with any allegations in this incident are ... whether or not certain findings were consistent with ... multiple acts of intercourse or penetration.... Ms. Bresee is not going to say having [sic] anything to do with [Coates’s] access to [Jazmyne]. She’s not going to say anything about that. The State’s going to argue that, once they’ve brought out through someone else that there was access to the child, but they’re not going to ask Ms. Bresee that question.

Denying the motion in limine, the court said: Okay, I am going to deny the motion in limine with respect to Ms. Bresee based on the State’s proffer as to the limited questions they intend to ask about the interview with Jasmine, and the issue of the physical findings as they relate to and [are] consistent with multiple acts of sexual intercourse [and/or] digital penetration. At the time of trial, Jazmyne was nine and a half years of age. The following colloquy is relevant: [PROSECUTOR]: And how are [boys and girls] different? [VICTIM]: Because girls have vaginas and boys have penis. [PROSECUTOR]: Okay. And have you ever seen a penis before. [VICTIM]: Yes. [PROSECUTOR]: Whose penis have you seen? ⁵⁹⁵ [VICTIM]: Bikie’s.[ 6 ] [PROSECUTOR]: Okay.

Besides Bikie, have you seen anyone else’s penis? [VICTIM]: My brother. [PROSECUTOR]: Okay. And what’s your brother’s name again? [VICTIM]: Lorenzo.[ 7 ] [PROSECUTOR]: ... Now do you call this something besides a vagina? [VICTIM]: Yes. [PROSECUTOR]: What do you call it? [VICTIM]: A coochie (phoenetic [sic] sp.). [PROSECUTOR]: A coochie. Okay.

All right. Now, has anyone ever touched your coochie or your vagina? [VICTIM]: Yes. [PROSECUTOR]: Who has? [VICTIM]: Bikie, Carl and Jemal [sic].[ 8 ] [PROSECUTOR]: And Jemal [sic]. All right. And Carl.

Who’s Carl? ⁵⁹⁶ [VICTIM]: He is a man. My grandmother’s boyfriend. [PROSECUTOR]: All right. And when you lived with Bikie, how did you feel about Bikie? [VICTIM]: I felt first fine. And then until it came to the doing it part, sort of bad. [PROSECUTOR]: All right.

Well, let’s go back to that. You said that when you would sleep at night, where would you sleep? [VICTIM]: In my bed. [PROSECUTOR]: And when people were sleeping at night, do you remember where your mom and Bikie slept? [VICTIM]: In their bed. [PROSECUTOR]: And you said that things were okay until you were doing it. What does doing it mean? Can you tell us what that means for you? [VICTIM]: Sex. [PROSECUTOR]: All right.

And what is sex? Do you know what that means? [VICTIM]: Sex means when you’re humping another boy and a girl. [PROSECUTOR]: Okay. And you said that you would do it with Bikie. [VICTIM]: Yes. [PROSECUTOR]: All right. [W]hen you had sex with Bikie, I’m going to show you again the [anatomically correct diagrams]. Remember, do you remember if anything on Bikie would touch any part of you? [VICTIM]: His penis. [PROSECUTOR]: Okay.

Right here. [VICTIM]: Yeah. [PROSECUTOR]: And where would that touch? [VICTIM]: To my vagina. [PROSECUTOR]: To your vagina? And do you remember if it would go into your vagina? ⁵⁹⁷ [VICTIM]: Yes. Jazmyne stated that she and Coates had intercourse in the basement of “the house,” as well as the two bathrooms, her room, and her mother’s room. She also supplied details regarding sexual positions, condoms, anal intercourse, and claimed that Coates “put his penis in [her] mouth.” Further, Jazmyne claimed that Coates took her to his job at the Lake Forest Mall, where he would “take me into the bathroom and start doing it.” The following colloquy as to the timing of the alleged abuse is also relevant: [PROSECUTOR]: ... [D]o you remember how old you were when you and Bikie would do it? [VICTIM]: No. [PROSECUTOR]: Do you remember how many times you and Bikie would do it? [VICTIM]: Like a million times. [PROSECUTOR]: ...

Do you remember what grade you were in when Bikie did it to you? [VICTIM]: Second. [Prosecutor]: Okay. Do you remember what time of year it was it happened that you and Bikie were doing it? [VICTIM]: No. In addition, Jazmyne stated that she and Carl Edmonds had sex “[j]ust one time.” Afterwards, she recalled that her “underpants were bleeding” and that she “tried to wash it so [her] grandmother wouldn’t get mad.” With regard to Lee, Jazmyne stated that he “would try to do the same thing like Bikie. He’d wake me up and then take me in, I think that was his room, and start humping me.” When asked how many times Lee “hump[ed]” her, Jazmyne responded: “Just like one time.” She recalled that the incidents with Lee and Edmonds occurred after Coates had abused her. Jenkins testified that she and appellant were romantically involved from approximately the Spring of 1999 until September 2002.

During much of that time, Coates lived with Jenkins and Jazmyne, who was then between the ages of three ⁵⁹⁸ and six. Jenkins often worked long hours and attended night school. As a result, Jenkins relied on others to help care for Jazmyne. Coates; Lakisha Casey, Jenkins’s friend; and Tina and Carl Edmonds, Jenkins’s mother and step-father, were among those who helped attend to Jazmyne.

Jenkins characterized Jazmyne’s relationship with Coates as “[v]ery close.” Jenkins recalled that on one occasion she noticed blood in Jazmyne’s underwear, and took her to the doctor. 9 She was informed that the bleeding was due to a yeast infection that Jazmyne had scratched. Another doctor found that Jazmyne had a urinary tract infection. Neither doctor raised any concerns about abuse, however. After Coates’s relationship with Jenkins ended in September 2002, Jenkins began a relationship with Melvin Martin, who moved in with Jenkins and Jazmyne.

Martin’s son, Lorenzo, also spent time at Jenkins’s home. Lorenzo was six years old in November of 2003. According to Jenkins, in the Fall of 2003 (i.e., about one year after the end of Jenkins’s relationship with Coates), Jazmyne began to exhibit strange behavior. She recalled that, while in the tub, Jazmyne would “sit on the soap or run the hot water on her body and just [sic] mannerisms that didn’t seem normal for her.” In addition, Jazmyne would put the back of her heel near her vagina and she “would just wiggle her ankle.” Jenkins also observed Jazmyne insert the leg of a Barbie doll into her vagina.

According to Jenkins, Martin once found Lorenzo naked in the basement with Jazmyne. In November 2003, Jazmyne asked Jenkins: “[C]an little kids have babies?” 10 Jenkins responded: “No. Because if ⁵⁹⁹ they do, they’ll die.” At that point, Jazmyne began to scream but Jenkins “didn’t know exactly what was wrong with her,” so she “just held her.” Jenkins claimed that Jazmyne then revealed that “she had sex with Bikie.” In particular, Jazmyne said that Coates “put [his] dingy inside of her coochie.” Jenkins continued: “And I looked at her and I was like when? And she just said, when he was here. I said, well, why didn’t you tell me?

And she said she was scared and she didn’t want to.” Jazmyne also told her mother that Lee had abused her. About a month later, she told her mother about Edmonds. 11 After the initial disclosures, Jenkins did not immediately take Jazmyne to the hospital or to the police. She explained that she thought she “could find [Coates] on [ her] own.” 12 Bresee, a Sexual Assault Forensic Examination (“SAFE”) nurse and a pediatric nurse practitioner, testified, without objection, as an expert in “the medical assessment and treatment of child sexual abuse and assault and sexual assault forensic examinations.” On November 14, 2003, about three weeks after Jazmyne was interviewed by CPS and the police, Ms. Jenkins took Jazmyne to the Shady Grove Adventist Hospital, where the child was seen by Bresee. 13 At the outset, Bresee explained the technique she uses when interviewing children: When I first meet the child, typically they’re with a parent or a guardian and it’s very important for me to establish a rapport so they’re comfortable with me, so they are able to give a medical, you know, disclosure to me as to their reason for coming to see me so I can make sure they get appropriate medical treatment. And so usually I’ll engage them in conversation, where do you go to school, ⁶⁰⁰ what types of things do you do for fun, ... what do you do for the summer, do you go to camp, do you like to swim, and typically that really gets a child talking.

And ... sometimes I’ll sit on the floor and we’ll play with ... some of the toys I have in the office and that’s how I work on establishing a rapport with the child. Bresee recalled that she saw Jazmyne and her mother in her office, “which also serves as an examination ... area.” As to her examination of Jazmyne, Bresee stated: Ms. Jasmine T. presented with her mother, Kimberly Jenkins— I [told] both Jasmine and her mother, Kimberly, that I need to get some basic information on where she lives, who she lives with, things she does for fun, her medical history, and also go through what we call a “review of symptoms” and that’s looking to see if she has any ... stomachaches or earaches or any complaints of illness____ Bresee added that this step is necessary to determine whether the victim is “complaining of anything that would warrant ... medical assessment and treatment.” Claiming that the treatment plan is tailored to the specific needs of the child, Bresee illustrated by explaining that if Jazmyne had said she was having pain with urination, Bresee would have ordered an urinalysis. Bresee explained to Jenkins that “it’s very important that I hear from [Jazmyne] why she’s [here] to see me.” After Bresee gathered the background information, she spoke with Jazmyne alone. 14 Bresee showed Jazmyne diagrams of the human body to determine the names the child used for various body parts. The following exchange is relevant: [PROSECUTOR]: Do you ever discuss with the child the difference between the truth and a lie? [BRESEE]: Yes, I do. ⁶⁰¹ [PROSECUTOR]: And can you please explain to the ladies and gentlemen of the jury (a) why that is important and (b) how you go about doing that? [BRESEE]: Sure ... first off, it’s important for me to establish that they can ... identify the differences between the truth and a lie.

And I stress-once I have established that they are able to tell me the difference between the truth and a lie, and in this case I asked Jasmine if she could tell me, you know, I have a VW, a Barbie VW bug that’s bright red, and I would ask her, ... “If I said that VW bug is blue, is that the truth or a lie?” and she would say, “That’s a lie.” “If I said that VW bug is red, would that be the truth or a lie?” And she said “The truth.” So, she was able to distinguish between a truth and a lie. Then I just stress the importance of them telling the truth, that what they’re here to see me for is medical assessment and treatment and it’s very important that I know as many of the details, as they can recall, as to what happened to them that brought them to see me, so then I can make appropriate medical interventions and treatment plans accordingly. The defense objected when the State moved to introduce the medical record of Jazmyne’s examination. 15 At a bench conference, the following exchange occurred: [DEFENSE COUNSEL]: I object to the whole record, I object to the interview for two reasons. One of the reasons is that I understand she is going to admit it for, under the exception of her medical diagnosis and treatment.

Therefore, the fact that she names people who did it is irrelevant ⁶⁰² for purposes of medical diagnosis and treatment. That is reason number one. Reason number two is I think it is a violation of Crawford [v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004)] because clearly these, when these interviews are done, there is a dual purpose and I think that was conceded by the State, that it is testimonial and that it violates Crawford because it is testimonial, they intend to use it at trial, and I think Jasmine recognized that because she asked Heidi if they were going to “go out and get them” or “Are they going to jail?” And we didn’t, obviously, didn’t have an opportunity to cross-examine her at the time that she gave the statement. So, for those two reasons, I object to the interview notes. [PROSECUTOR]: Your Honor, I believe that (a) they are made in, the statements are made in pursuant to a medical diagnosis; that actually naming the person is important, especially for this particular type of medical diagnosis, to determine whether the exposure to any sexually transmitted diseases or to anything of those natures.

So, the whole thing becomes relevant to the appropriate medical diagnosis, which the nurse practitioner was trying to formulate at that time. In reference to Crawford, Jasmine testified. I mean, she has been here. The opportunity of confrontation has been provided in terms of what she said here, and so I just don’t, I don’t think we reach Crawford. [DEFENSE COUNSEL]: I think that is a misreading of Crawford.

I think all of the eases clearly state it is an opportunity to cross-examine at the time the statement is made. THE COURT: I still think this is an unresolved issue, but I am informed that it has been resolved and that, as long as a child testifies ... is not a basis to exclude. But they are being offered under a different explanation of the hearsay rule anyway, which is for medical treatment. The only question I have is, I haven’t looked at them to determine if ⁶⁰³ anything would need to be redacted, but in general, I think they are going to be admissible.

The court then determined that, before the medical records would be published to the jury, counsel and the court would go through the records for possible redaction of identifying names. At the conclusion of the State’s case, the clerk of the court, outside the presence of the jury, asked the judge whether to redact any portion of Bresee’s notes. The judge responded in the negative. Defense counsel renewed her objection.

After closing arguments, defense counsel once again reminded the court of her objection to Bresee’s notes. The notes were admitted, without redaction. The medical record does not reflect that Bresee personally administered any medical tests or collected any lab samples. It indicates that Ms. Jenkins reported that Jazmyne suffered from vaginitis and urethritis/epididymitis in 2002.

Moreover, it reflects that Jazmyne reported that she had experienced abdominal/pelvic pain, and pain while urinating, as well as vaginal bleeding that she attributed to Edmonds’s conduct. When the State resumed its examination of Bresee, she reported that she told Jazmyne that she is “a special nurse who works with kids who might have been touched in a way that hurt or bothered them.” Bresee asked Jazmyne “if something like that had happened” to her. According to Bresee, Jazmyne answered in the affirmative. Bresee continued: And I asked if she could tell me about that, and her response was, “Well, the first one was Bikey (phonetic sp.).

He was my mother’s ex-boyfriend. He put his private inside my private.” I asked, “How many times did he do that to you?” and her response was, “A lot of times.” I asked, “Do you remember when this happened?” and she said, “A long time ago.” I asked, “Do you remember how old you were?” and she said “No.” I asked her if Bikey had made her do anything else, and she said, “Yes. He made me lick his private, and he would lick my private too.” I asked if she ever saw anything come ⁶⁰⁴ out of his private, and she said, ‘Yes, white stuff.” And then I asked her if Bikey had, “Did Bikey tell you not to tell anyone?” and she said, ‘Yes. He told me not to tell my mommy.

He told me if I would let him do it to me, then I could go see my mommy and he would also let me smoke a cigarette.” I asked, ‘You smoked a cigarette?” because it kind of took me off guard, and she responded, ‘Yes. Bikey gave it to me after he put his private in me.” At that point, defense counsel noted a continuing objection to Bresee’s testimony as to the contents of her interview with Jazmyne. The following exchange ensued: [DEFENSE COUNSEL]: Your Honor, I just want to clarify something for the record. I am not interrupting and objecting to each and every sentence here, but I do have an objection as I stated at the bench.

THE COURT: A continuing objection— [PROSECUTOR]: A continuing objection. THE COURT: — to the contents of the interview. Thank you. Bresee continued: I asked her, “Do you remember if it hurt when he did that?” and she said, ‘Yes.

It hurt a lot. I cried.” I asked her if she ever remembered seeing blood. She said, “Only when Carl[ 16 ] put his fingers inside me. That made me bleed.” So, I asked her to finish talking about [Coates] before she told me about anything else, and she agreed.

And I asked, “Is there anything else about [Coates] I should know?” and she said, ‘Yes. He did it to my friend Eomy,” and then she spelled her friend’s name, E-O-M-Y. “He touched her butt, but she won’t tell her mommy ... Eomy will talk to me and her friends about it, but she doesn’t want to talk to her mommy about it.” And I asked at that point if she, if Jasmine had told Ms. Karen Vasserman, the CPS worker, about her friend Eomy, ⁶⁰⁵ and she said, “Yes.” And then I asked specifically if [Coates] had ever shown her pictures of people without their clothes on, and she said, “Yes. He showed me pictures in magazines and a movie on TV.” And then I asked if there was anything else about [Coates] I should know, and she asked me, “Are you going to go out and find him now?” and I responded, “No, but Detective Buckley is working hard to find him.” The following colloquy is also relevant: [PROSECUTOR]: Do you have training in terms of age-appropriate language, determining whether a child is using vocabulary that is appropriate to their age?

Are you ever taught that in the interviewing techniques? [BRESEE]: That’s part of the Cornerhouse technique, [its] age-appropriate interviewing and asking questions that the child is going to understand. [PROSECUTOR]: In terms of evaluating what Jasmine [sic] said to you, was she using age-appropriate language? In terms of her age and how she was speaking to you, what did you think about what she was telling you? [BRESEE]: For a 7-year-old, it was, to me, it’s not appropriate for a 7-year-old to describe licking private parts or fingers in their vagina. In the context of what I do, it’s age-appropriate. [PROSECUTOR]: In terms of the details that she provided you, why were the type of details she provided you significant? [BRESEE]: They were personal in nature to her. She was able to recount the pain, which is a personal experience, that if you — you can’t really describe pain unless you’ve experienced pain.

She also was able to describe white stuff coming out of a private part, which is, you know, beyond her knowledge, should be beyond her knowledge of a 7-year-old, and the acts that she was describing were personal to her. [PROSECUTOR]: In the Cornerhouse technique, training of interviewing, is part of that, are you taught to determine ⁶⁰⁶ or try to determine when the child is telling you about a fantasy versus reality? [BRESEE]: It is discussed, yes. [PROSECUTOR]: And what were some of the techniques you were taught to make this determination? [BRESEE]: Basically to get, to establish the truth versus lie, to understand that we are talking about the here and now in that, you know, I only want her to tell me what she recalls actually happening to her and then what’s personal in nature as, again, pain, bleeding, different types of things that had happened to her. The cigarette was very personal to her. She remembered it happening. Following her conversation with Jazmyne, which lasted about forty-five minutes, Bresee conducted a “head-to-toe physical assessment.” Bresee explained: [W]e start with height and weight, vital signs, which are temperature, blood pressure, pulse, respiratory rate, and then I start by doing an assessment, head-to-toe, looking in their eyes, ears, nose, mouth, working down, their chest, their breast, you know.

I look at their skin and, you know, feel their scalp as I’m working down, and I go all the way down to the toes minus the genitals. The exam of the private parts in this case is the last part Ido.... Bresee testified that she explained to Jazmyne the nature of a pelvic examination, including the use of a MedScope camera for light and magnification. No anal injuries were found.

But, upon examination of the child’s vagina, Bresee observed “physical signs that were suggestive of a sexual nature____” She explained: “[T]he edges of the hymen for a 7-year-old should be very crisp and sharp ... almost translucent in appearance. With [Jazmyne], what I saw [was] very dull, rounded edges, with a very narrow hymen.... ” In Bresee’s view, the condition of Jazmyne’s hymen was indicative of repetitive, penetrating trauma, rather than a onetime incident, such as insertion of an object (e.g., a toy), or a straddle injury. According to Bresee, the clinical findings, ⁶⁰⁷ coupled with the child’s disclosures, were “very highly suggestive of sexual abuse.” 17 Bresee also opined that there was “probable abuse.” 18 At the conclusion of the examination, Bresee provided Jenkins with a form entitled “Pediatric Discharge Instructions,” which recommended follow up care as needed, as well as testing for “STD-HIV,” 19 including the phone number for a local clinic. The form also said: “Counseling is recommended for any victim of sexual abuse or assault,” and included the handwritten name and phone number of the person to contact for the initial assessment and screening.

Bresee also provided her office voice number if Jenkins had any questions or concerns. Ann Hoffman, a social worker, testified for the State as an expert in Child Sexual Abuse Accommodation Syndrome. Hoffman stated that abused children often delay disclosing extended abuse, and typically do so a “bit at a time.” She added that children who are abused at a young age tend to display heightened sexualized behaviors, and often bond with the abuser. Hoffman also described the process of “grooming,” in which an abuser gains a child’s trust through special attentiveness.

When asked how accurate a child who has suffered sexual abuse may be in recounting the exact number of times of abuse, Hoffman replied that “it’s difficult ... for children to enumerate ... and it’s difficult [for them] to ⁶⁰⁸ remember the specific details of any one incident.” Moreover, she testified that many children display a flat affect in describing the abuse. Following Hoffman’s testimony, the State rested. No witnesses were called for the defense. In its instructions to the jury, the court stated, in part: As jurors, you are the sole judges of whether a witness should be believed.

In making this decision, you can apply your own common sense and everyday experiences. In determining whether a witness should be believed, you should carefully judge all of the testimony and evidence and the circumstances under which each witness has testified. You should consider such factors as the following: the witness’ behavior on the stand and manner of testifying, did the witness appear to be telling the truth, the witness’ opportunity to see or hear the things about which testimony was given, the accuracy of the witness’ memory, does the witness have a motive not to tell the truth, does the witness have an interest in the outcome of the case, was the witness’ testimony consistent, was the witness’ testimony supported or contradicted by evidence that you believe, and whether and the extent to which the witness’ testimony in court differed from the statements made by the witness on any previous occasion. You need not believe any witness, even if the testimony is uncontradicted.

So, you may believe all, part, or none of the testimony of any witness in the case. • An expert is a witness who has special training or experience in a given field. You should give expert testimony the weight and value that you believe it should have. You are not required to accept any expert’s opinion. You should consider the expert’s opinion together with all of the other evidence.

In weighing the opinion of an expert, you should consider the expert’s experience, training and skills, as well as the expert’s knowledge of the subject matter about which the expert is expressing an opinion. Now, in this case, there were two expert witnesses, and as to Ann Hoffman’s expert testimony, it is not to be taken as a confirmation of Jasmine T.’ [s] credibility or that abuse in fact occurred. ⁶⁰⁹ * * * You have heard testimony that Jasmine T. made a statement before trial. Testimony concerning that statement was permitted only to help you decide whether to believe the testimony that the witness gave during the trial. It is for you to decide whether to believe the trial testimony of Jasmine T. in whole or in part, but you may not use the earlier statement for any purpose other than to assist you in making that decision.[ 20 ] In closing argument, the State argued, in part: Jasmine’s word alone, if you find beyond a reasonable doubt, of her word alone, is enough evidence to convict the defendant.

And you must decide that credibility based on her demeanor to you, on prior statement[s], hear [sic] the statements to Ms. Bresee in the medical records, which are going to go back to you, in which Jasmine talked about what [Coates] did to her. She said, “Well, the first one was [Coates]. He was my mom’s ex-boyfriend. He put his private inside my private.” Ms. Bresee asked, “How many times did he do that to you?” Jasmine says, “A lot of times.” She talked about how he made her lick his private and that he would lick her private, too, and that she would see white stuff coming out of his private and how he would let her smoke cigarettes. ⁶¹⁰ You must determine accuracy.

You can look at it to determine the credibility of Jasmine, her accuracy of her memory — again, consistent with what she told Ms. Bresee. What is the interest in the outcome of this case? What are Jasmine’s motives for making up that it was the defendant who did this to her? He is out of the house.

He is no longer with mom. There has absolutely been no evidence as to show any motive or interest for Jasmine to say this other than for being the truth. (Emphasis added.) DISCUSSION I. Coates contends that the trial court erred and abused its discretion “by permitting the State to introduce Jazmyne’s statements, through the testimony of Ms. Bresee, as substantive evidence under the medical treatment and diagnosis exception to the hearsay rule.” Appellant mounts numerous arguments to support his position. He maintains that the State faded to satisfy the “foundational requirements of the exception,” because the circumstances “demonstrated that Jazmyne was not seeking treatment when she spoke to Ms. Bresee,” nor did the State “show Jazmyne thought Ms. Bresee would treat her in the future.” Consequently, he maintains that the child’s statements were not provided for a “medical purpose.” Moreover, Coates complains that Bresee’s testimony improperly and unfairly bolstered Jazmyne’s credibility and usurped the jury’s function.

He argues: “Because the required guarantee of trustworthiness was not present, the trial court should not have admitted Jazmyne’s statements.” Appellant considers “significant” the lapse of time between the alleged abuse and Bresee’s examination of Jazmyne. According to Coates, “When the event giving rise to a potential injury is still recent, a child is more likely to understand the medical connection between the event and the physician’s examination of her, and thus is also more likely to answer questions truthfully.” He avers: ⁶¹¹ Ms. Bresee spoke with Jazmyne 14 months after the alleged abuse had ended, and Jazmyne exhibited no signs of injury or illness prior to the interview. A 14 month delay is far beyond that contemplated in cases that ruled in favor of admitting statements under the medical exception. Those cases consistently emphasize the close proximity of the statement to the alleged criminal act when upholding a trial court’s decision to admit.

Appellant continues: By the time Ms. Bresee interviewed Jazmyne, 14 months had elapsed since any alleged abuse by Mr. Coates had ended____ Even when Ms. Jenkins heard the allegations, she did not take her daughter to a hospital for 21 days.... She was more concerned with finding Mr. Coates than seeking treatment for Jazmyne. Nothing in Ms. Jenkins’ testimony suggested she thought Jazmyne needed medical treatment after she learned she was abused. Nor did Ms. Bresee’s notes mention any complaints.

In fact, Ms. Jenkins took Jazmyne to Ms. Bresee only because Ms. Bresee had been assigned to the case by CPS---- Furthermore, looking to “the content” of the interview, appellant insists that it “demonstrated that the declarant did not perceive a medical purpose” for the examination, and showed that the child did not provide her statements in connection with medical treatment. To the contrary, argues Coates, Jazmyne’s statements reflected that her motivation in speaking to Bresee “stemmed from her desire to apprehend Mr. Coates, not a need for treatment.” According to appellant, “the most direct evidence of Jazmyne’s state of mind” was apparent when Bresee asked Jazmyne if “there was anything else she should know about Mr. Coates” and Jazmyne responded: “ ‘Are you going to go out and find him now?’ ” Coates also complains that Bresee’s questions “focused on gaining information about Mr. Coates, not Jazmyne’s medical condition.” He explains: ⁶¹² Ms. Bresee’s message [to Jazmyne] did not convey that she medically treats children, only that she “works with” them.... Throughout her interview with Jazmyne, Ms. Bresee focused on physical symptoms that had long ago disappeared. This is why, despite hearing that Jazmyne experienced bleeding and burning urination after Mr. Edmonds abused her, Ms. Bresee ordered collected no blood or urine samples, and performed no lab tests____ Instead, Ms. Bresee asked investigative questions irrelevant to future treatment, which indicated to Jazmyne the interview was not about her physical well being[.] Based on what transpired during the interview, appellant asserts that Jazmyne “did not arrive in Ms. Bresee’s office seeking medical treatment, and Ms. Bresee’s questions did not change her state of mind.

Instead, Ms. Bresee’s questions conveyed to Jazmyne that she was part of the prosecution team.” Appellant elaborates: The fact that Jazmyne felt it necessary to provide additional evidence against Mr. Coates, including the actual spelling of her Mend’s name, demonstrates Jazmyne’s state of mind was not that of a patient. She was not seeking medical help. Despite the irrelevance of this information to medical treatment, Ms. Bresee pressed on, imputing to Jazmyne the importance of conveying this information to authorities and, in doing so, implicitly identifying herself ■with the investigation[.] Appellant also contends that Bresee “invaded the jury’s role as factfinder,” because her testimony encroached on “the jury’s function to determine credibility, and virtually dictated the outcome of the case.” Given Bresee’s status as an expert, coupled with the inclination of juries “to defer to the opinions of witnesses who are ‘clothed by the court with the mantle of an expert,’ ” Coates complains that he was “seriously prejudiced” by Bresee’s testimony. Noting that “[t]he State’s case turned on whether the jury believed Jazmyne’s allegations against Mr. Coates,” he posits that Bresee unfaMy bolstered Jazmyne’s testimony and “add[ed] details she omitted during trial.” Coates argues: ⁶¹³ Jazmyne’s testimony was vulnerable to begin with.

She did not report any sexual abuse until more than a year after Mr. Coates left the home____ By the time she testified at trial, she had talked to a myriad of adults, including police, child protective service workers, social workers, therapists, and relatives, ... who could have shaped her recollections. She contradicted herself during testimony when she admitted, ... and then denied, ... seeing Ms. Casey’s son Lorenzo’s penis, and when she admitted, ... and then denied, that he witnessed some of the abuse. She could not remember times, dates, or how old she was when certain events occurred.... Under these circumstances, Ms. Bresee’s endorsement of Jazmyne’s testimony was critical to the State’s case.

Indeed, the prosecutor relied on Ms. Bresee’s testimony during closing argument. According to appellant, it is clear that the jury had doubts about Jazmyne’s credibility because it was unable to reach a verdict on two counts and, notably, those were the only counts in which the salient “parts of Jazmyne’s story ... were not repeated by Ms. Bresee.” In Coates’s view, this “strongly suggests that the jury was swayed by Ms. Bresee’s improper bolstering.” In the absence of Bresee’s testimony, argues appellant, “it is possible that the jury would have acquitted Mr. Coates of all charges.” He continues: Ms. Bresee was, in essence, impermissibly acting as a human polygraph machine.11 ... The State’s question about the “Cornerhouse technique” and its utility for making a “determination” that a child knows her memories are not fantasy demonstrated this---- Just as a polygraph might measure a person’s heart rate to determine their truthfulness, Ms. Bresee, as human lie detector, relied upon things that were “personal in nature.” This was particularly damaging because, in providing examples of “personal” memories that were specific to Mr. Coates, like the cigarette, ... Ms. Bresee not only testified that Jazmyne was credible when she said abuse had occurred, but also that she was credible in describing who did it. ⁶¹⁴ In addition, Coates contends that the improper bolstering of the child’s credibility with her prior hearsay statements to Bresee cannot be harmless beyond a reasonable doubt.

Appellant underscores that the “critical issue” of who sexually abused Jazmyne “was not resolved by Ms. Bresee’s physical findings.” Coates