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Koerschner v. Budge

United States District Court, D. Nevada

September 10, 2014

MICHAEL BUDGE, et al., Respondents.


LARRY R. HICKS, District Judge.

This habeas matter under 28 U.S.C. § 2254 comes before the Court for a final decision on the remaining grounds.


Petitioner Allen Koerschner seeks to set aside his Nevada state conviction, pursuant to a jury verdict, of two counts of sexual assault of a minor. He is sentenced to two consecutive life sentences with the possibility of parole after ten years on each sentence. He challenged the conviction on direct appeal and a number of collateral review or other proceedings in the state courts. Grounds 1, 2, 6, 7 and 8 remain for decision.

Standard of Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a "highly deferential" standard for evaluating state-court rulings that is "difficult to meet" and "which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Under this highly deferential standard of review, a federal court may not grant habeas relief merely because it might conclude that a decision was incorrect. 131 S.Ct. at 1411. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the decision: (1) was either contrary to or involved an unreasonable application of clearly established law as determined by the United States Supreme Court based on the record presented to the state courts; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 131 S.Ct. at 1398-1401.

A state court decision on the merits is "contrary to" law clearly established by the Supreme Court only if it applies a rule that contradicts the governing law set forth in Supreme Court case law or if the decision confronts a set of facts that are materially indistinguishable from a Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A decision is not contrary to established federal law merely because it does not cite the Supreme Court's opinions. Id. Indeed, the Court has held that a state court need not even be aware of its precedents, so long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, "[a] federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme] Court is, at best, ambiguous." 540 U.S. at 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of Supreme Court precedent is not contrary to clearly established federal law.

A state court decision constitutes an "unreasonable application" of clearly established federal law only if it is demonstrated that the state court's application of Supreme Court precedent to the facts of the case was not only incorrect but "objectively unreasonable." E.g., Mitchell, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).

To the extent that the state court's factual findings are challenged, the "unreasonable determination of fact" clause of Section 2254(d)(2) controls on federal habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that the federal courts "must be particularly deferential" to state court factual determinations. Id. The governing standard is not satisfied by a showing merely that the state court finding was "clearly erroneous." 393 F.3d at 973. Rather, AEDPA requires substantially more deference to the state court's determination:

.... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972.

Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.

The petitioner bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief. Pinholster, 131 S.Ct. at 1398.


Ground 1: Initial Proceedings

In Ground 1, petitioner alleges that he was denied rights to due process, equal protection and to be free from unreasonable seizure under the Fourth and Fourteenth Amendments when he was not present for a probable cause determination, when he was denied a speedy arraignment, and when the criminal complaint was not properly filed.[1]

The state court record reflects the following.

Petitioner was arrested on Thursday, May 28, 1992. The justice court minutes reflect that a probable cause determination was made the following day, Friday, May 29, 1992. Petitioner asserts that he was not present for the probable cause determination. The minutes do not state anything regarding presence or absence on that date, but the minutes do refer to a "first appearance before a magistrate" on Tuesday, June 2, 1992. While petitioner asserts that he was not present when the probable cause determination was made, he does not dispute that the probable cause determination was made on May 29, 1992, as the minutes reflect.[2]

The minutes appear to reflect that petitioner first appeared before a magistrate on the abovereferenced Tuesday, June 2, 1992, the third judicial day after his arrest. Petitioner asserts, however, that he was not brought to court until June 4, 1992, which would be the fifth judicial day after his arrest. The minutes show a line entry with that date stating: "Defendant REMANDED Metro/$75, 000." The minutes suggest a continuance of proceedings to June 11, 1992, but with no proceedings thereafter on that date.

Subsequently, on June 12, 1992, an attorney filed a motion to place the matter on calendar and entered a limited appearance only for the purpose of challenging detention. The motion stated that Koerschner had not been advised of the charges, arraigned or assigned counsel.

The minutes contain an entry for June 12, 1992 reading: "COMPLAINT SWORN TO & FILED." The copy of the justice court complaint in the federal record does not have an at least discernible file-stamp.[3]

The minutes further reflect that on June 16, 1992, petitioner appeared with the above-referenced counsel for initial arraignment. The minutes state, inter alia: "Complaint presented, advised, and waives."

The court appointed the public defender on June 18, 1992, and a preliminary hearing was set for June 30, 1992, which petitioner thereafter waived apparently in connection with plea negotiations.

Petitioner subsequently was charged by information on the bindover to the state district court. He entered a guilty plea a short time thereafter that later was set aside by the state supreme court due to an inadequate plea canvass. He thereafter was prosecuted upon an information on remand, and he was convicted under the present judgment of conviction following a jury trial.

Under the Court's prior rulings herein, Ground 1 was exhausted on an extraordinary original petition that the state supreme court denied without expressly stating that it did not reach the merits.[4]

The state supreme court's summary rejection of the claim on the merits is entitled to no less deference on AEDPA review than a fully articulated decision. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court rejected the proposition that a summary rejection of a claim is entitled to less deference on AEDPA review. The Court held that "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." 131 S.Ct. at 784. The Court made it clear that satisfying this burden is just as difficult in a case with a summary denial as it is in a case with a fully-articulated decision:

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems, " not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

562 U.S. at 786-87.

Petitioner has not established on federal habeas review that the state supreme court's rejection of the claims in Ground 1 was either contrary to or an objectively unreasonable application of clearly established federal law as determined by the United States Supreme Court.

At the very outset, to the extent that petitioner bases Ground 1 on the Fourth Amendment, Ground 1 is not cognizable on federal habeas review under Stone v. Powell, 428 U.S. 465 (1976). Petitioner presents no argument that he did not have an opportunity for full and fair litigation of the Fourth Amendment claim in the state courts; and, pursuant to the Chambers holding at least, the claim was addressed on the merits by the Supreme Court of Nevada. To the extent that petitioner's counsel in sundry state court proceedings did not also pursue the claim, that does not make the claim cognizable under Stone v. Powell but instead is a matter addressed, if at all, on an ineffective-assistance claim.

In all events, petitioner does not cite to the Court any - apposite - United States Supreme Court precedent establishing that a criminal defendant convicted subsequently on an information can vacate his conviction - whether under the Fourth Amendment, the Equal Protection Clause, [5] and/or the Due Process Clause - based upon some arguendo prior alleged irregularity in his initial detention, arraignment and/or the filing of a prior complaint. The Supreme Court instead has emphatically rejected the proposition that such alleged irregularities provide a basis for overturning a conviction as opposed to securing an immediate release from an unlawful initial physical custody:

In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d 98 (1962); Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. 483 F.2d, at 786-787. Compare Scarbrough v. Dutton, 393 F.2d 6 (CA5 1968), with Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971), and Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969).

Gerstein v. Pugh, 420 U.S. 103, 118-119 (1975). Cf. United States v. Mechanik, 475 U.S. 66 (1986)(in federal criminal proceeding, error in grand jury proceeding was rendered harmless by subsequent conviction by petit jury at trial).

Petitioner, who has the burden of persuasion on federal habeas review, has not presented any apposite Supreme Court authority establishing to the contrary. The Court notes that the federal reply only cites to petitioner's pro se filings in the state courts, tacitly reflecting the absence of any apposite Supreme Court authority that could be presented in support of this ground on federal habeas review.

Ground 1 therefore does not provide a basis for federal habeas relief.[6]

Ground 2: Victim's Statements to Medical Providers

In Ground 2 as alleged in the first counseled amended petition, petitioner alleges that he was denied rights "to due process" under the Fifth, Sixth and Fourteenth Amendments by the admission of statements that the child victim of the sexual assaults made to Nurse Gema Reynolds, R.N., and to Dr. Donald Roberts, M.D.

The claim presented in the appellant's opening brief on direct appeal quite arguably presented exclusively a claim of alleged state law error in applying the hearsay exception in N.R.S. 51.115 for statements made for medical diagnosis or treatment.[7] Koerschner cited federal case authority, but an argument perhaps might have been made - at least as of that juncture - that the federal cases were cited with regard to application of the hearsay evidentiary rule rather than for constitutional doctrine.[8] Be that as it perhaps may have been, the State nonetheless included argument on, inter alia, a federal constitutional issue in its answering brief;[9] and Koerschner responded with Confrontation Clause argument in his reply brief.[10] The Supreme Court of Nevada made no express statement in its order of affirmance, discussed further below, that Koerschner impermissibly was pursuing a constitutional issue for the first time in his reply brief.

As noted above, petitioner alleged on federal habeas review in the first counseled amended petition that he was denied rights "to due process" by the admission of the evidence. Habeas pleading of course is not notice pleading. Mayle v. Felix, 545 U.S. 644, 655-56 (2005). An argument thus perhaps could have been made - at least as of that juncture - that petitioner had not presented a Confrontation Clause claim in the counseled amended petition. Be that as it perhaps may have been, respondents nonetheless argued, inter alia, a Sixth Amendment Confrontation Clause issue in the answer;[11] and petitioner presented responding Confrontation Clause argument in his reply.[12]

On the showing and arguments made, the Court proceeds on the basis that petitioner's constitutional claims in Ground 2 include a Confrontation Clause claim, that federal constitutional claims including a Confrontation Clause claim were exhausted on direct appeal, that the Supreme Court of Nevada implicitly rejected the exhausted constitutional claims, and that this Court accordingly should review that implicit rejection of the constitutional claims under AEDPA's deferential standard of review. Cf. Richter, supra . [13]

However, in the order quoted infra, the state supreme court addressed only a claim that the victim's statements to Nurse Reynolds were admitted improperly. The court did not address any claim that statements made to Dr. Roberts were admitted improperly. Nor does it appear that petitioner raised a claim on direct appeal challenging the admission of the statements made to Dr. Roberts. Petitioner's appellate briefing explicitly challenged only the statements made to Nurse Reynolds. Petitioner referred in the briefing to Dr. Roberts' involvement to make the point that the statements made to Nurse Reynolds allegedly were made after the initial evaluation had been concluded.[14] At this juncture, however, even if respondents have not waived an exhaustion defense as a matter of substantive law under 28 U.S.C. § 2254(b)(3), respondents nonetheless have had sufficient opportunity to present an exhaustion defense in this regard in the district court, on a 1997 conviction for a 1992 offense on a federal petition filed initially in 2005. The Court thus addresses the claims concerning statements to Dr. Roberts on the merits on a de novo review.

Against that backdrop, the Court turns to review of Ground 2 on the merits, under deferential review as to claims concerning statements to Nurse Reynolds and on a de novo review as to claims concerning statements to Dr. Roberts.

In a December 4, 2000, published opinion on direct appeal, the Supreme Court of Nevada stated the background facts and rejected the claim presented to that Court on the following grounds:

Allen Koerschner and his spouse took custody of their nine-year-old niece following the death of her mother. On May 2, 1992, the niece was admitted to a Las Vegas hospital with severe bleeding from the area of her cervix. She initially advised hospital personnel that the bleeding was caused by a fall down a flight of stairs.
Gema Reynolds, a nurse trained in sexual assault cases, was the first person to examine the child. No bruises, scratches, abrasions, or lacerations were identified. Concluding that the injury was not consistent with a fall, Nurse Reynolds undertook further questioning. The child then described a sexual assault, which she claimed was perpetrated by Koerschner.
Subsequent examination by Dr. Donald Roberts revealed the absence of a hymenal ring and a four centimeter laceration of the victim's vaginal wall. Dr. Roberts noted that the lack of a hymenal ring and the necessity of using an adult-sized speculum to conduct the examination were unusual for a nine-year-old female. He then concluded that the injury was not caused by a fall.
Hearsay statements to medical personnel
Koerschner next contends that the district court erred in admitting prior consistent statements made by the victim to Nurse Reynolds because the statements were hearsay. The statements were made during the first evening of a three-day hospital stay.
NRS 51.115 provides:
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 are not inadmissible under the hearsay rule insofar as they were reasonably pertinent to diagnosis or treatment.
We conclude that the statements made by the victim to Nurse Reynolds were made during the course of her medical treatment, in accordance with NRS 51.115. While the statements were made after the initial treatment was completed, the statements were pertinent to ongoing care for the victim.[FN5]
[FN5] The State argues that the prior consistent statements to Nurse Reynolds were admissible as non-hearsay under NRS 51.035(2)(b). In light of our ruling that the statements were admissible under NRS 51.115, we need not reach this issue. Additionally, it was not necessary for the district court to conduct a separate "trustworthiness" hearing under Lytle v. State, 107 Nev. 589, 590, 816 P.2d 1082, 1083 (1991), the statements of this victim having been admissible under a well recognized hearsay exception.
Koerschner v. State, 116 Nev. 1111, 1113-14 & 1118, 13 P.3d 451, 453 & 456 (2000).

As discussed previously as to Ground 1, the state supreme court's implicit rejection of petitioner's constitutional claims on the merits is entitled to no less deference on federal habeas review than a fully articulated rejection of the claims. Richter, supra . Moreover, the issue of whether the state supreme court's rejection of the claims was contrary to or an unreasonable application of clearly established federal law must be adjudicated based on the United States Supreme Court precedent that existed at the time of the state supreme court's December 4, 2000, decision. Greene v. Fisher, 132 S.Ct. 38 (2011).

The state supreme court's rejection of petitioner's federal constitutional claims regarding statements made to Nurse Reynolds was neither contrary to nor an unreasonable application of clearly established federal law as determined by the holdings of the Supreme Court on December 4, 2000.

With regard to the Confrontation Clause claim, at the time of the state supreme court's December 4, 2000, decision, the Supreme Court's decision in Ohio v. Roberts, 448 U.S. 56 (1980), remained good law.[15] In Roberts, the Court held that the Confrontation Clause did not bar the admission of an unavailable witness' prior statement if the evidence bore adequate indicia of reliability. This reliability test was met if the evidence either fell within a firmly rooted hearsay exception or otherwise bore particularized guarantees of trustworthiness. 448 U.S. at 66.[16]

The Supreme Court thereafter held in White v. Illinois, 502 U.S. 346 (1992), inter alia, that statements made for medical diagnosis or treatment fell within a firmly rooted hearsay exception. 502 U.S. at 355 n.8 ("no doubt that... firmly rooted'"). The Court so held specifically in the context of an out-of-court statement by a four-year-old child victim regarding a sexual assault of the child to a nurse and physician examining the victim thereafter. 502 U.S. at 350-51.[17]

Accordingly, a state court holding that the admission of the child victim's statements to the nurse in the present case under the hearsay exception for statements made for medical diagnosis or treatment did not violate the Confrontation Clause would appear at least on its face to be neither contrary to nor an objectively unreasonable application of clearly established federal law.

Petitioner urges, however, that the child's statements did not fall within the medical treatment hearsay exception because: (a) the statements were not made during the initial examination and she was not requesting immediate relief; and (b) Nurse Reynolds continued questioning subsequent to the initial examination allegedly not for the purpose of treating the victim but instead to determine the truth of what happened. Petitioner suggests that the only statement that properly would have been admissible under the medical treatment hearsay exception would have been the child victim's immediate statement during the initial examination that she had "fallen down a flight of stairs." He maintains that the state supreme court's "creative interpretation" of the medical treatment exception was not "firmly rooted" within the meaning of the Confrontation Clause.[18]

Petitioner cites no apposite precedent of the United States Supreme Court as of December 4, 2000 - or thereafter - requiring that the Supreme Court of Nevada construe the medical treatment hearsay exception, for purposes of Confrontation Clause review, as applying to statements only seeking "immediate relief" and only in an "initial examination." There are a number of established hearsay exceptions that inherently require such immediacy and spontaneity for a statement to be admissible, such as the exceptions for present sense impressions, excited utterances, and a statement as to a thenexisting mental, emotional or physical condition. See, e.g., Fed. R. Evi. 803(1) through (3). Wellestablished statements of the medical treatment exception, in contrast, make no reference to "immediate" requests for relief or to "initial" treatment. Rather, such formulations refer to statements as to "medical history, " "past or present symptoms or sensations, " the "inception" of symptoms, and "their general cause." See, e.g., Fed. R. Evi. 803(4). The central inquiry under a classic statement of the exception is not directed to immediacy of the request or to whether treatment is "initial" but instead is to whether the statement "is made for - and is reasonably pertinent to - medical diagnosis or treatment." Id. Medical diagnosis and treatment - including in particular the process of differential diagnosis - quite obviously often is a continuing process going well beyond merely responding to an "immediate" request for relief in a single initial examination. The medical treatment hearsay exception just as obviously is not limited only to immediate requests for relief given only at an initial evaluation.[19]

On petitioner's second point, the Supreme Court of Nevada found directly to the contrary with regard to the child victim's statements to Nurse Reynolds. The state supreme court found following review of the record that the statements made to Nurse Reynolds were pertinent to the ongoing care for the victim. The state supreme court's factual findings as an appellate court are subject to deferential review under AEDPA. See, e.g., Deere v. Cullen, 718 F.3d 1124, 1144 (9th Cir. 2013), petition for certiorari filed (May 12, 2014); see also Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002)(deferential review of factual findings even where review is de novo as to the law). In order to demonstrate that this finding constituted an unreasonable determination of fact, petitioner must show "that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Taylor, supra .

The trial record instead contains an abundance of evidence supporting the state supreme court's factual determination that the statements made to Nurse Reynolds were pertinent to the ongoing care of the victim. The record also supports a similar finding on de novo review as to statements made to Dr. Roberts, which the Court reviews contemporaneously below also with respect to that claim.

Family members presented with the victim, C.B., at the emergency room intake desk at approximately 6:30 p.m. C.B. presented with vaginal bleeding. A family member or members told intake personnel that C.B. had fallen down some stairs.[20]

Nurse Gema Reynolds, R.N., was an emergency room nurse, and she thus was not at intake. Although she had training with regard to potential sexual abuse victims, she was not a sexual assault nurse examiner as such working only on sexual assault cases. Rather, she testified that she was "strictly emergency room, " being "subject to any kind of cases, " not solely sexual assault cases.[21]

On the evening in question, Nurse Reynolds testified that she had been working a twelve-hour shift from 7:00 a.m. to 7:00 p.m., or perhaps 7:30 p.m. at the latest. She was assigned to the cases seen in a particular trauma examining room that evening.[22]

The triage nurse carried C.B. back to Nurse Reynolds' examining room, without using a gurney. Nurse Reynolds testified that C.B.'s initial appearance was as follows:

Physical appearance, she was - she was what we call ashen; she was sedate; her vital signs were - they were within in normal limits, but borderline; she was very listless; she was the color - ashen would be like a gray color; rapid respirations.

#68, Ex. 68, at 105. The nurse testified that she was "definitely" concerned about C.B.'s condition at that time.

Nurse Reynolds' observed C.B.'s physical condition as follows:

She was bleeding - there was vaginal bleeding. There were no external injuries or obvious external injuries. She had no bruising, no scratches, no abrasions, no lacerations.

#68, Ex. 68, at 106.

The nurse testified that "[g]iven the initial history [of allegedly falling down the stairs], those would be the injuries that we would be looking for, bruising, possible broken - a fracture, dislocated hip, those kinds of injuries." The injury from such an incident was referred to as a "straddle injury, " and the injuries that emergency room medical providers would see from such a trauma would be "[b]ruising, lacerations in the groin area... [and] lower extremities."[23]

Nurse Reynolds remained with C.B. thereafter during an examination by an emergency room physician and then an OB/GYN physician who he called in to treat C.B. She was with C.B. through to the end of her shift a short time later at 7:00 p.m. or possibly 7:30 p.m. She testified initially:

Q. How was your interaction with [C.B.]?
A. I was the nurse that admitted her into Room One, and I was the one that was responsible for her until my shift ended and she was turned over -
Q. How did she respond to you?
A. I was her initial caretaker. She basically held onto my hand and wouldn't let go, if that's what you mean.

#68, Ex. 68, at 113-14; see also id., at 117 ("I was with [C.B.] through the whole procedure, through everything. I was assigned to her."); but cf. id., at 122 (possible gap discussed infra ).

The nurse asked emergency physician Dr. Ronald Scheer, M.D., to examine C.B. Dr. Scheer observed that C.B. was bleeding from the vaginal area, describing the bleeding as "rather brisk." Her vital signs "were a little bit unstable" with her heart rate having increased, "which showed some signs of shock, secondary to the amount of bleeding that she had.[24]

Dr. Scheer put C.B. on an IV and sought to stabilize her, while also taking a history. C.B. told him that she fell down the steps and struck herself on the edge of a step. This history was not consistent with what he observed during the physical examination. There was no bruising or other injury to the external genitalia, and C.B. was bleeding from within the vagina. When he tried to examine the interior of C.B.'s vagina "the blood was coming out enough to where I couldn't tell exactly what the extent of the injury was."[25]

When asked at trial why he did not question C.B further if he did not believe her history, the emergency room physician responded: "At that point, my primary objective was to take care of her because she had ongoing bleeding that was beginning to become unstable." The injury was "something that could potentially be life threatening if left untreated." Dr. Scheer testified that "[i]t could have been left untreated to the point where she went into shock and died."[26]

Dr. Scheer called in gynecologist Dr. Donald Roberts, M.D., to treat the brisk vaginal bleeding that he observed.[27]

Emergency room personnel reported to Dr. Roberts the history initially given of the patient having fallen down some stairs. This history report was not conveyed to him by C.B. or anyone other than emergency room ...

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