FILED 


JUNE 18, 2015 


In the Office of the Clerk ofCourt 


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ERIN THOMAS MITCHELL BONG, ) UNPUBLISHED OPINION 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. 

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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. 

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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 ofthe 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 Wn.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 ofthe 

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 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. 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 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 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 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 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 cross7 

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 ofmedical diagnosis or treatment. We disagree. 

ER 803(a)(4) provides an exception to the general prohibition of hearsay 

testimony for statements "made for purposes ofmedical 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 Wn. 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 Wn.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 Wn. 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 Wn. 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 ofthis 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 Wn. 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; 

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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 C,} Siddoway, C.J. 

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