### FILED 

### JUNE 18, 2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 33000-1-111 Respondent, ) ) 

### v. ) ) ERINTHOMAS MITCHELL BONG, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, 

### J. Erin Bong appeals from his conviction for second degree assault, domesticviolence. Hecontends thatthe trial court impermissibly allowedthejuryto hearhis victim's 911 call and erroneously admitted a social worker's report concerning assistance for thevictim. Wehold thatthetrial court did notcommiterror and affirm the conviction. FACTS InMay 2013, Erin Bong lived with his girlfriend MelodyLoudermilk in Bremerton. Loudermilktook severalprescription me9,ications: Gabapentin for chronic pain, Prozac for depression, andFlexeril, a musclerelaxant, among others. Onthe evening ofMay 3, 20l3, ErinBong and Melody Loudermilk drank wine

### No. 

### 33000-1-111 State 

### v. Bong



### and beer. When the two commenced to argue, Loudermilkremoved herselfto 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 herselfinside the home's computerroom. Melody Loudermilkphoned 

### 911 emergency services. Loudermilk toldthe 

### 911 operatorthat Erin Bong stole her money and herphone. Loudermilk also reported to the operatorthat Bong had drank alcohol and struckher in the face. The call ended before police arrived: [Operator]: Alright. Are youjust goingto stay away from him until the aid crew, orthe ambulance--I'm sorry-thepolice getthere? [Loudermilk]: Yes. [Operator]: Okay. We do have them dispatched and I want you to call us back ifanything 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 oranything like that in the house. [Loudermilk]: No. [Operator]: Alright. I want you to-Iwant you to really try to stay separated from him. Call us back ifanything changes before they get there. Okay? [Loudermilk]: Okay. [Operator]: Alright. Are you okay to get offthe line with me or do you want me to stay on the line with you? [Loudermilk]: Vh. I'llbe alright. [Operator]: Alright. Call us back ifyou change your mind, okay? [Loudermilk]: Okay. Thank you. 2No. 33000-1-111 State v. Bong [Operator]: Vh-huh, bye-bye. Clerk's Papers (CP) at 141-42. City ofBremertonPolice Officer William Prouse arrived at Erin Bong's and Melody Loudermilk's residence. Bong answered the door. Bong appeared intoxicated, but calm. Bongtold OfficerProuse that Loudermilk and he argued but engaged in no physical contact. Nevertheless, Prouse saw Loudermilk crying with a swollen face. Prouse arrested Erin Bong. AfterErinBong's arrest, Melody Loudermilk went to Bremerton's Harrison Medical Center, where Dr. Robert Ast examined her. According to Ast, imaging showed

a fracture ofthe orbit, orthe floor ofthe eye socket. Loudermilk also suffered from bruises on her legs, abrasions on her arms, swelling and bruising ofher cheeks, and tenderness inherright wrist. Dr. Robert Ast testified at trial: [Melody Loudermilk] reported that shehad been assaulted. Her statement was that she was gettingready for bed, and herboyfriend came into the room. And she-inquotes what she said was he was saying things that didn't make sense and that he calledher worthless and that the patient stated that he punchedherin 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 herto tumble to the ground. And then she reportedthat he pushed and grabbed her several more times. Report ofProceedings (RP) at 100-01.



### 3No. 33000-1-III State 

### v. Bong

Harrison Medical Centerroutinely 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 tonightvia ambulance after being "beat" by her SIO [significant other]

.... SIO was arrested and brought tojail. 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 athome (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 ofWashington 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 ofLicensing; Therese Ungren, a records custodian for Kitsap County's 911 call center; Dr. RobertAst, the 4No. 33000-1-II1 State 

### v. Bong attending physician; and Melody Loudermilk. Loudermilk testified that she did not remembermuch ofthe night, includingphoning 911. She did notrecall events between the moments when Erin Bong grabbed her wrist and law enforcement officers photographed her. OverErin Bong's objection, the trial court permittedthejuryto hear Melody Loudermilk's 911 call. Also overBong's objection, the trial court admitted, as an exhibit, the report ofHarrison Medical Center's social worker. Thejury found Erin Bong guilty ofsecond degree assault. Thejury also found the assault to be one ofdomestic violence since Bong and Melody Loudermilk lived in the

same household. LAW AND ANALYSIS On appeal, Erin Bong contends: (1) the trial court violated his constitutional rights to confront witnesses againsthim when itpermittedthe playing ofthe recording of Melody Loudermilk's emergency call to 911 to thejury, 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 ofmedical diagnosis ortreatment. 911 Call Erin Bong contends the trial court violated his constitutional rights to confront witnesses when it admittedthe recording ofMelody Loudermilk's call to 911. Bong labels the recording as testimonial hearsay. This appeals court reviews whether ornot a 5No. 33000-1-III State v. Bong

statement was hearsay de novo. State v. Neal, 144 Wn.2d 600,607,30P.3d 1255 (2001). This court also reviews de novo an alleged violation ofthe 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 ofthe matter asserted." ER 80 1 (c). Ifan exception applies, the hearsay may be admissible. ER 802. Even hearsay with an applicable exception becomes inadmissible ifits admission violates a defendant's confrontation clause rights precludingtestimonial 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 ofan ongoing emergency, the primarypurpose ofthe interrogation is to establish orprove past eventspotentially relevantto later criminalprosecution. Davis, 547 U.S. at 822. The "admission of testimonial hearsay statements ofa witness who does not appear at a criminal trial violates the confrontation clause ofthe Sixth Amendmentunless (1) the witness is unavailable to testify and (2) the defendant had a prior opportunity for cross examination." State v. Beadle, 173 Wn.2d 97, 107,265 P.3d 863 (2011) (citing Crawfordv. 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 ofan "ongoing emergency." Davis v. Washington, 547 U.S. at 822. Assuming the 911 recording was 

### 6No. 33000-1-111 State v. Bong testimonial, Bong argues thatMelodyLoudennilk did not appear at trial, for confrontation clause purposes, because she testified at trial that she hadno memory ofthe phone call. This court need not decide whether the 911 call was testimonial because, regardless, under our Supreme Court'sholding in State v. Price, 158 Wn.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. Attrial, the child testified that she could identify the defendant, but could not remember the abuse orreporting it to her mother and the authorities. The state high court concludedthat the admission ofthe child's out-of-court statements did not violate Price's right ofconfrontation because: [T]he confrontation clause is generally satisfied when the defense is given a full and fair opportunity to expose the memory lapse through crossexamination, 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 orherprior statements, but answers thathe or she is unable to rememberthe charged events orthe prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause. Price, 158 Wn.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 rememberedphoning 911. Loudennilk identified the voice in the call as her own, but responded that she could not remember making the call. Defense counsel cross7No. 33000-1-111 State v. Bong

examined Loudermilk aboutthe call. Loudermilk again responded that she did not remember. The State did not abridge Bong's constitutional right to confront a witness. Social WorkerReport Erin Bong next contends thatthe trial court erred when itadmittedthe report of Harrison Hospital's social worker underER 803(a)(4) because the report contained statements not made for the purpose ofmedical diagnosis ortreatment. We disagree. ER 803(a)(4)provides an exception to the general prohibition ofhearsay testimony for statements "made for purposes ofmedical diagnosis ortreatment and describing medical history, orpast orpresent symptoms, pain, or sensations, orthe inception or general character ofthe cause orexternal source thereofinsofar as reasonably pertinentto diagnosis ortreatment." BecauseER 803(a)(4)pertains to statements "reasonably pertinentto diagnosis ortreatment," it allows statements regarding causation ofinjury, 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)). Fora hearsay statementto be admitted underER 803(a)(4), the statementneed not be aboutphysical injuries. In re the Dependency of MP., 76 Wn. App. 87, 92, 882 P.2d 1180 (1994). To determine whether a statementwas made for purposes ofmedical diagnosis ortreatment, courts review whether (1) the declarant's motive was to promote treatment, and (2) the medical professional reasonably relied on the statement for 8No. 33000·1·111 State 

### v. Bong

treatmentpurposes. In re Pers. Restraint of Grasso, 151 Wn.2d 1, 20, 84 P.3d 859 (2004). Erin Bong argues that sinceMelody Loudermilk spoke to a social worker rather than hertreatingphysician, Loudermilk did not utter the statements for purposes of medical diagnosis ortreatment. This argument fails because it presupposes that Harrison Medical Centerneeded to attend to only Loudermilk's physical injuries. DoctorAst explained, "Wewant to make sure that the patient is going to be safe and that they're returning to an environment where they'renot going to getreinjured." RP at 105. To this end, Melody Loudermilk met with a social worker at Harrison. Loudermilk identifiedher abuser as her live-in boyfriend, and the social worker ensuredthat Loudermilk was not returning to an unsafe home. Although statements attributing fault are generally not relevant to diagnosis or treatment, this courthas found statements attributing fault to an abuser in a domestic violence case are an exception because the identity ofthe abuser is pertinent and necessary to the victim's treatment. State v. Moses, 129 Wn. App. 718, 729, 119 P.3d 906 (2005). Melody Loudermilk's statements to the social worker, including the identity ofher abuser, were pertinent and necessary to her treatment. The statements to the social worker servedtopreventreinjury. A controlling decision isState v. Sims, 77 Wn. App. 236, 890 P.2d 521 (1995). The State prosecuted Keith Sims for assaulting AnitaBellinger, with whom he lived. 9No. 33000-1-III State v. Bong Bellinger suffered an injury to herjaw. Bellinger sought treatment at ProvidenceMedical Center. Two physicians and a social worker testified at trial that Bellinger, while at Providence, reported shehad been struck by a man with whom she once lived. On appeal, Sims assigned error to the admission ofthis testimony as barredby the.hearsay rule. This courtrejectedthe argument because a statement attributing fault to an abuser

canbe reasonably pertinentto treatment in domestic sexual assault cases involving adults. This court quoted from UnitedStates v. Joe, 8 F.3d 1488, 1494-95 (lOth Cir. 1993). All victims ofdomestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent ofwhich depend on the identity ofthe abuser. Thephysician generally must know who the abuser was in order to render propertreatment because the physician's treatment will necessarily differ when the abuser is a member ofthe victim's family or household. In the domestic sexual abuse case, for example, the treating physician mayrecommend special therapy or counseling and instruct the victim to remove herselffrom 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 withthe victim that the abuser's identity becomes "reasonably pertinent" to the victim's propertreatment. State v. Sims, 

### 77 Wn. App. at 239-240. Statement ofAdditional Grounds In his statement ofadditional grounds (SAG), ErinBong contends: ajurorknew him and Loudermilkpersonally; ajuror sleptthrough the State's closing argument; his defense counsel failed to interview Loudermilk until five minutes priorto her testifYing;

10No. 33000-1-III State 

### v. Bong

andhis defense counsel stated to the prosecuting attorney, "Iwon't objectto anything you say ifyou won't objectto what I say." SAG at 1. Thepurported 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 ofthe panel has determined this opinion will not beprinted 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 

# C,} Siddoway, C.J.



### 11