State v. Vigil

State of NebraSka , appellee , v.
Jorge vigil , appellaNt.
810 N.W.2d 687
Filed January 27, 2012. 	No. S-11-434.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court will review for clear error the fac-
tual findings underpinning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination whether the court admitted evidence over a hearsay
objection or excluded evidence on hearsay grounds.
4. Rules of Evidence: Hearsay. Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3)
(Reissue 2008), is based on the notion that a person seeking medical attention
will give a truthful account of the history and current status of his or her condi-
tion in order to ensure proper treatment.
5. ____: ____. Under the federal and Nebraska rules of evidence, statements admis-
sible under the medical diagnosis and treatment exception are not restricted
to statements made by the patient, and the statements need not be made to a
physician.
6. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements made by a
child victim of sexual abuse to a forensic interviewer in a medical setting may
be admissible under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue
2008), even though the interview has the partial purpose of assisting law enforce-
ment’s investigation of the crimes.
7. Rules of Evidence: Hearsay. Statements gathered strictly for investigatory
purposes do not fall under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3)
(Reissue 2008).
8. Rules of Evidence: Hearsay: Proof. Statements having a dual medical and
investigatory purpose are admissible under Neb. Evid. R. 803(3), Neb. Rev.
Stat. § 27-803(3) (Reissue 2008), only if the proponent of the statements dem-
onstrates that (1) the declarant’s purpose in making the statements was to assist
in the provision of medical diagnosis or treatment and (2) the statements were
of a nature reasonably pertinent to medical diagnosis or treatment by a medical
professional.
9. Rules of Evidence: Hearsay: Appeal and Error. Whether a statement was both
taken and given in contemplation of medical diagnosis or treatment is a factual
finding made by the trial court in determining the admissibility of the evidence
under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2008), and an
appellate court reviews that determination for clear error.
StAtE v. vIgIl 	129
Cite as 283 Neb. 129
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

10. Rules of Evidence: Hearsay. the appropriate state of mind of the declarant
under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2008), may be
reasonably inferred from the surrounding circumstances.
Appeal from the District Court for Madison County: robert
b. eNSz, Judge. Affirmed.
Jennifer A. Birmingham, Chief Deputy Madison County
Public Defender, and Melissa A. Wentling for appellant.
Jon Bruning, Attorney general, and george R. love for
appellee.
C oNNolly, StephaN, MCC orMaCk , and M iller-lerMaN, JJ.,
and Moore , Judge.
MCC orMaCk , J.
NAtURE OF CASE
the issue in this case is whether statements of a child sexual
assault victim to a forensic interviewer working for the child
advocacy department of a hospital are admissible under the
Nebraska Evidence Rules hearsay exception for “[s]tatements
made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to
diagnosis or treatment.”1 the interview, which was reported
to the supervising physician for diagnostic and treatment pur-
poses, was also shared with law enforcement so that the child
victim could be spared the trauma of multiple interviews.
the appellant, Jorge vigil, argues that because some time had
passed since the sexual assaults and the victim did not see the
physician that day, the primary purpose of the interview was
for law enforcement purposes and it should not fall under rule
803(3). vigil asserts that he was clearly prejudiced by the trial
court’s failure to grant his motion in limine to exclude the
interview from trial.
1 Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2008).
130 	283 NEBRASkA REPORtS

BACkgROUND
vigil was charged with two counts of sexual assault of a
child in the first degree. the victim, D.S., was his stepdaugh-
ter. Prior to the trial, vigil filed a motion in limine seeking
to exclude a video-recorded interview of D.S. on the ground
that it was inadmissible hearsay. the trial court denied the
motion. At trial, vigil renewed his hearsay objection to the
evidence. the trial court overruled the objection and allowed
the interview into evidence. the court found that the interview
fell under rule 803(3), the medical purpose exception to the
hearsay rule.2
the interview in question was conducted on September 15,
2010. In the early morning hours of that same day, D.S. had
told her mother that vigil had repeatedly forced her to perform
oral sex on him over the course of the previous 2 years. D.S.
was 12 years old at the time she reported the abuse. the sexual
abuse began when she was 10 years old.
D.S.’ mother testified that she drove D.S. to the local sher-
iff’s office to report the abuse the same day D.S. reported it.
An investigator at the sheriff’s office, Michael Bowersox, was
their principal contact. Bowersox testified that both D.S. and
her mother were crying and visibly upset. After a short con-
versation, Bowersox ascertained that D.S. had possibly been
sexually abused and advised D.S.’ mother to take D.S. immedi-
ately to the Northeast Nebraska Child Advocacy Center (CAC)
located in a local hospital.
Bowersox explained that it was the policy of the sheriff’s
office to send children who allege sexual abuse to the CAC
to make sure they are medically screened and receive proper
followup care. He believed that D.S. needed such medical serv-
ices. Bowersox also explained that the CAC provides a “one-
stop shop,” because the CAC usually allowed law enforcement
to observe the forensic interview conducted at the hospi-
tal before the medical examination. Bowersox explained that
this relationship between the CAC and law enforcement was
devised to protect the child victim from having to repeat the
telling of harmful events to multiple interviewers.
2 Id.
StAtE v. vIgIl 	131
Cite as 283 Neb. 129

Bowersox told D.S.’ mother that, at the hospital, D.S. would
be interviewed by a forensic interviewer and that a doctor or
nurse would conduct a medical examination. the mother testi-
fied that Bowersox explained to her the process they would go
through at the CAC and what medical procedures would be
performed. She was aware that law enforcement would likely
be able to view the interview.
the mother testified that when she took D.S. to the hospital,
the only thing on her mind was whether “my daughter was
okay.” the mother testified that she was concerned about pos-
sible medical issues stemming from the abuse. Particularly, she
was worried that D.S. might have contracted herpes from vigil.
the mother noted that D.S. had been “complaining a lot” about
being “sick in her throat” over the course of 2010. the mother
testified that she was also concerned about her daughter’s
mental health, especially after “hold[ing] whatever feelings she
were [sic] having for two years.”
On the way to the hospital, the mother explained to D.S.
what would occur upon their admission to the hospital. She told
D.S. that she would be subjected to a physical examination. In
particular, the mother told D.S. that she would probably “have
something that we adults call Pap smear.” D.S. understood this
was a medical procedure. D.S. had seen doctors before, but had
not yet had a gynecological examination.
the mother also told D.S. she would be interviewed at the
hospital. the mother testified that she explained to D.S. the
purposes of the interview. She did not “exactly” tell D.S. that
the interview might serve a law enforcement purpose. Rather,
she told D.S. that the interview “was a process we had to go
through to clarify everything that has been happening the past
two years.”
D.S. testified that she understood she was going to a hospital
and that she was expecting to see a doctor and have a physical
examination on that day. D.S. testified that she was worried
“something might be wrong” with her. D.S. elaborated she had
been told that vigil had “a sickness.” She testified, “[H]e had
it and he made me do things I didn’t want to and I was afraid
I had gotten it.” D.S. described that vigil did not use a condom
132 	283 NEBRASkA REPORtS

during the assaults. D.S. testified that she later learned the
“sickness” was herpes.
D.S. testified that she and her mother entered the hospital
through the front entrance. D.S. was then signed in as a patient
of the hospital. D.S. was sitting next to her mother when she
signed the patient service agreement. D.S. and her mother were
also given a patient service brochure. After that, D.S. was taken
into an interview room. D.S. was reasonably familiar with
medical examinations and procedures, and she testified that she
believed “it was very important to tell the whole truth” when
talking to the people at the hospital.
kelli lowe, a forensic interviewer for the CAC, conducted
the interview of D.S. lowe testified that the CAC is a depart-
ment of the hospital. lowe’s educational background is in
counseling and social sciences. She also has training through
the National Children’s Advocacy Center in how to interview
child sexual assault victims and how to assist a physician with
assault examination kits. lowe stated that she typically assists
the physician when a physical examination is conducted at
the CAC.
lowe testified that her role as a forensic interviewer is to
gather information from the patient to determine possible abuse
or traumatic injury. If the treating physician is there, he or she
will observe the interview through closed-caption television
in another room. If the treating physician is not present, it is
lowe’s job to summarize the interview for the physician “so
they don’t have to retake that history.” lowe testified that the
treating physician utilizes the forensic interview in determining
the proper treatment and therapy for the patient.
lowe explained that patients are generally referred to the
CAC by the hospital’s emergency department, the Department
of Health and Human Services, or law enforcement. With the
patient’s permission, law enforcement, members of the county
attorney’s office, and members of the Department of Health and
Human Services are allowed to observe the forensic interview
through closed-caption television in another room. However,
lowe testified that the purpose of the interviews was not to aid
and assist law enforcement. Her job is “simply . . . to gather
StAtE v. vIgIl 	133
Cite as 283 Neb. 129

the information for all, for everyone involved so that the child
only has to go through it one time.”
lowe testified that her interview of D.S. was for the purpose
of determining a medical or psychological diagnosis and a
recommended treatment plan. lowe explained that the details
of the sexual abuse are a necessary part of medical diagnosis
and treatment. In particular, such details are relevant to therapy,
possible sexually transmitted diseases, and safety plans.
the DvD of the interview shows that lowe introduced her-
self to D.S. as a person whose job it is to “talk to people” and
“find out what is going on.” lowe proceeded to ask D.S. open-
ended questions about the abuse, and D.S. described the sexual
assaults in detail. In summary, D.S. reported that vigil forced
D.S. to perform oral sex on him 10 to 20 times over a period of
2 years. He also made her watch pornography.
Representatives 	of 	the 	local 	sheriff’s 	office 	and 	the
Department of Health and Human Services observed the inter-
view and were given copies of the recorded interview and
report. the physician was not present for the interview, but
lowe gave the physician a summary of the interview before
D.S. was discharged from the hospital on September 15, 2010.
Based on lowe’s summary of the interview, the physician
directed the discharge instructions, which recommended ther-
apy and a physical examination. the mother ultimately decided
to postpone the physical examination until September 24,
at which time a thorough physical examination was con-
ducted. No evidence of sexual abuse or other physical injury
or disease was detected during the examination. D.S. attended
therapy as directed by the treating physician’s original dis-
charge instructions.
After a trial in which the State presented the testimony of
D.S., her mother, Bowersox, lowe, and others, the jury found
vigil guilty of both counts of sexual assault. vigil was sen-
tenced to 20 to 30 years’ imprisonment on each count, to be
served consecutively. vigil appeals the convictions.
ASSIgNMENtS OF ERROR
vigil assigns that the trial court erred in overruling his motion
in limine and in allowing lowe’s testimony and evidence of the
134 	283 NEBRASkA REPORtS

CAC interview to be heard by the jury, because that testimony
and evidence are inadmissible hearsay for which there are
no exceptions.
StANDARD OF REvIEW
[1,2] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make such discretion a factor in determining
admissibility.3 Where the Nebraska Evidence Rules commit
the evidentiary question at issue to the discretion of the trial
court, the admissibility of evidence is reviewed for an abuse
of discretion.4
[3] Apart from rulings under the residual hearsay exception,
we will review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination whether the court admitted evi-
dence over a hearsay objection or excluded evidence on hear-
say grounds.5
ANAlYSIS
[4] Rule 803(3) provides that the hearsay rule does not
exclude “[s]tatements made for purposes of medical diagnosis
or treatment and describing medical history, or past or pres-
ent 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.” Rule 803(3)
is based on the notion that a person seeking medical attention
will give a truthful account of the history and current status
of his or her condition in order to ensure proper treatment.6
In order for statements to be admissible under rule 803(3),
the party seeking to introduce the evidence must demonstrate
3 In re Interest of B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005).
4 Id.
5 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
6 See, State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727
(2007); State v. Hardin, 212 Neb. 774, 326 N.W.2d 38 (1982).
StAtE v. vIgIl 	135
Cite as 283 Neb. 129

(1) that the circumstances under which the statements were
made were such that the declarant’s purpose in making the
statements was to assist in the provision of medical diagno-
sis or treatment and (2) that the statements were of a nature
reasonably pertinent to medical diagnosis or treatment by a
medical professional.7
[5] Although the heart of the rule 803(3) exception lies in
statements made by a patient to a treating physician, the excep-
tion casts its net wider than the patient-physician relationship.8
Under the federal and Nebraska rules of evidence, statements
admissible under the medical diagnosis and treatment exception
are not restricted to statements made by the patient, and the
statements need not be made to a physician.9 thus, in addition
to statements made to physicians, we have held that a child’s
statements to a therapist describing sexual abuse were admis-
sible under rule 803(3).10 We have also held that statements by
a child’s foster mother to a therapist, reporting unusual sexual
behavior by a child and her suspicions of sexual abuse, were
admissible under rule 803(3).11
While we have not had occasion to address additional
reporting scenarios, other jurisdictions have held that medical
purpose statements can be made to various other recipients,
including social workers and forensic interviewers.12 In such
instances, courts sometimes look to whether the recipient is a
7 See, In re Interest of B.R. et al., supra note 3; State v. Vaught, 268 Neb.
316, 682 N.W.2d 284 (2004). See, also, e.g., State v. Edward Charles L.,
183 W. va. 641, 398 S.E.2d 123 (1990); In re Paternity of H.R.M., 864
N.E.2d 442 (Ind. App. 2007); State v. Williams, 137 Wash. App. 736, 154
P.3d 322 (2007); People v Hackney, 183 Mich. App. 516, 455 N.W.2d 358
(1990); Begley v. State, 483 So. 2d 70 (Fla. App. 1986).
8 In re Interest of B.R. et al., supra note 3.
9 Id.
10 Id.
11 Id.
12 See, generally, 38 A.l.R.5th 433 (1996).
136 	283 NEBRASkA REPORtS

member of a medical diagnostic team13 or is part of the “chain
of medical care.”14
And, while we have never specifically addressed the ques-
tion of mixed medical and investigatory purposes, other courts
agree that the purpose of the statement need not be solely for
the purpose of medical diagnosis or treatment in order to fall
under rule 803(3).15 Rather, a statement is generally considered
admissible under the medical purpose hearsay exception if
gathered for dual medical and investigatory purposes.16
It has been held that even the declarant’s knowledge that law
enforcement is observing or listening to the statements does
not necessarily preclude admissibility of a statement as being
for a medical purpose.17 Further, the “predominant purpose”
of the statement is not the real question in determining admis-
sibility.18 the fundamental inquiry is whether the statement,
despite its dual purpose, was made in legitimate and reasonable
contemplation of medical diagnosis or treatment. For, “[i]f the
challenged statement has some value in diagnosis or treatment,
the patient would still have the requisite motive for providing
the type of ‘sincere and reliable’ information that is important
to that diagnosis and treatment.”19
13 See State v. Salazar, 504 N.W.2d 774 (Minn. 1993).
14 State v. Donald M., 113 Conn. App. 63, 71, 966 A.2d 266, 271 (2009).
15 See, State v. Payne, 225 W. va. 602, 694 S.E.2d 935 (2010); State v. White,
145 N.H. 544, 765 A.2d 156 (2000), vacated on other grounds sub nom.
White v. Coplan, 399 F.3d 18 (1st Cir. 2005); State v. Janda, 397 N.W.2d
59 (N.D. 1986); State v. Hebert, 480 A.2d 742 (Me. 1984); State v. Donald
M., supra note 14; State v. Williams, supra note 7; Webster v. State, 151
Md. App. 527, 827 A.2d 910 (2003); State v. Isenberg, 148 N.C. App. 29,
557 S.E.2d 568 (2001); People v Van Tassel (On Rem), 197 Mich. App.
653, 496 N.W.2d 388 (1992); In re Lucas, 94 N.C. App. 442, 380 S.E.2d
563 (1989).
16 See id. Compare State v. Stafford, 317 N.C. 568, 346 S.E.2d 463 (1986).
17 See State v. Miller, 121 Conn. App. 775, 998 A.2d 170 (2010).
18 See Webster v. State, supra note 15, 151 Md. App. at 545, 827 A.2d at
920.
19 Id. at 545-46, 827 A.2d at 920.
StAtE v. vIgIl 	137
Cite as 283 Neb. 129

Under this reasoning, several courts have specifically found
admissible statements by child sexual assault victims to foren-
sic interviewers working for hospital child advocacy centers.20
In State v. Donald M.,21 the police arranged for a 10-year-old
girl to go to a child advocacy center located in a local hospital.
At the center, the girl was interviewed by a child interview
specialist who did not have medical training. However, the
interviewer, who had degrees in social work and psychology,
stated that the purpose of the interview was to assess the victim
for psychological and physical needs stemming from the abuse.
While the child recalled little about the interview or its pur-
pose, a social worker testified that she had explained to the vic-
tim that she was going to talk to the interviewer to make sure
she was safe, help her deal with what she went through, and
decide whether a doctor needed to examine her. the interview
ultimately did not result in a medical examination, because
the victim did not express any medical needs, but the victim
and her family were referred for therapy. the court upheld the
trial court’s admission of the videotaped interview, because the
statements were made, at least in part, for purposes of medical
diagnosis or treatment.22
Similarly, in State v. Richardson,23 the mother of two young
victims of sexual abuse took them to a child medical evalua-
tion program at a hospital upon the suggestion of the sheriff’s
department. the mother understood that the program coordina-
tors would be able to conduct a more thorough examination of
the children than the one conducted at the emergency room a
month earlier. At the hospital, a mental health consultant con-
ducted videotaped interviews of the children in order to assist
the supervising physician in a subsequent examination of the
20 State v. Payne, supra note 15; Branch v. State, 998 So. 2d 411 (Miss.
2008); State v. Lukacs, 188 Ohio App. 3d 597, 936 N.E.2d 506 (2010);
State v. Donald M., supra note 14; State v. Williams, supra note 7; Webster
v. State, supra note 15; State v. Waddell, 130 N.C. App. 488, 504 S.E.2d 84
(1998); State v. Richardson, 112 N.C. App. 58, 434 S.E.2d 657 (1993).
21 State v. Donald M., supra note 14.
22 Id. See, also, State v. Miller, supra note 17.
23 State v. Richardson, supra note 20.
138 	283 NEBRASkA REPORtS

children. the court upheld the trial court’s admission of the
videotapes under the hearsay exception for medical diagnosis
or treatment.
[6] We agree that statements made by a child victim of
sexual abuse to a forensic interviewer in a medical setting may
be admissible under rule 803(3) even though the interview has
the partial purpose of assisting law enforcement’s investigation
of the crimes. In fact, we note that Neb. Rev. Stat. § 28-711
(Reissue 2008) places a legal obligation on medical profes-
sionals to report any evidence of child abuse or neglect to law
enforcement and, further, that law enforcement plays a vital
role in keeping the child safe from further physical and psy-
chological harm.
[7,8] But statements gathered strictly for investigatory pur-
poses do not fall under rule 803(3).24 Statements having a dual
purpose are admissible under rule 803(3) only if the proponent
of the statements demonstrates that (1) the declarant’s purpose
in making the statements was to assist in the provision of
medical diagnosis or treatment and (2) the statements were of
a nature reasonably pertinent to medical diagnosis or treatment
by a medical professional.25
[9] Whether a statement was both taken and given in con-
templation of medical diagnosis or treatment is a factual find-
ing made by the trial court in determining the admissibility of
the evidence under rule 803(3), and we review that determina-
tion for clear error.26
[10] We said in State v. Vaught27 that the appropriate state
of mind of the declarant may be reasonably inferred from the
surrounding circumstances. In this case, the circumstantial
24 See State v. Payne, supra note 15. Compare State v. Stafford, supra
note 16.
25 See, In re Interest of B.R. et al., supra note 3; State v. Vaught, supra note
7. See, also, e.g., State v. Edward Charles L., supra note 7; In re Paternity
of H.R.M., supra note 7; State v. Williams, supra note 7; People v Hackney,
supra note 7; Begley v. State, supra note 7.
26 See, State v. McCave, supra note 4; Webster v. State, supra note 15.
27 State v. Vaught, supra note 7. See, also, e.g., Webster v. State, supra note
15; State v. Alvarez, 110 Or. App. 230, 822 P.2d 1207 (1991).
StAtE v. vIgIl 	139
Cite as 283 Neb. 129

evidence and D.S.’ testimony indicate that D.S. believed, at
the time of the interview, she was going to be subjected to a
physical examination at the hospital. As the mother was going
to the hospital, her principal concern was with D.S.’ physical
and psychological well-being, and it appears that this was com-
municated to D.S. D.S. observed that she was checked in as a
patient of the hospital before proceeding to the interview. D.S.
testified that she was particularly concerned that she might
have contracted a sexually transmitted disease from the sexual
contacts. the trial court thus did not clearly err in determining
that D.S. had a legitimate medical purpose and a motivation
to be truthful during the interview in her descriptions of the
sexual contacts.
We also conclude that the trial court did not clearly err in
finding that the statements were pertinent to medical diagnosis
or treatment. We have said that description of medical his-
tory, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source
thereof, are reasonably pertinent to diagnosis.28 We reject
vigil’s contention that D.S.’ statements do not fall under rule
803(3) because she did not complain of physical symptoms
at the time of the interview or because the alleged abuse did
not occur shortly before the interview. there were reasonable
concerns that D.S. might have contracted a sexually transmit-
ted disease. D.S. was taken to the hospital the day she told
her mother of the abuse, and her admission to the CAC on
September 15, 2010, was the first opportunity for an evaluation
of the possible medical consequences of the multiple sexual
contacts with vigil. A sexual assault victim may have injuries
or may have contracted a sexually transmitted disease even
though the victim feels no pain and bears no external signs
of injury.29
Moreover, there were concerns about D.S.’ psychological
health. Details of the abuse are relevant to psychological impli-
cations regardless of whether any physical injury occurred. As
28 State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).
29 See Webster v. State, supra note 15.
140 	283 NEBRASkA REPORtS

recognized in In re Interest of B.R. et al.,30 evaluation of the
need for psychological treatment is a fundamental component
of sexual assault cases and, thus, a component of medical
diagnosis and treatment in such cases. Where an individual
is alleged to be the victim of sexual assault, statements rea-
sonably pertinent to medical diagnosis and treatment of both
physical and psychological trauma are admissible under rule
803(3).31 Insofar as State v. White32 holds otherwise, we over-
rule that case.
While statements relating to fault are generally not admis-
sible under rule 803(3), when a child is sexually abused, and
especially when the child has a familial relationship with the
child’s abuser, the identity of the perpetrator is reasonably per-
tinent to diagnosis and treatment, because the victim cannot be
effectively treated if sent right back into the abuser’s clutches.33
In this case, the evidence was that vigil was going to return
home in approximately 1 week, after having served jail time
for driving with a suspended license.
the frequency and nature of the sexual contacts with vigil
were part of D.S.’ medical history. lowe indicated that infor-
mation was necessary for determining medical or psychological
diagnosis, and for a recommended treatment and safety plan.
lowe testified that, as was her regular practice, she conveyed a
summary of the interview to the treating physician, who relied
30 In re Interest of B.R. et al., supra note 3.
31 See State v. Grant, 776 N.W.2d 209 (N.D. 2009). See, also, e.g., U.S. v.
Gabe, 237 F.3d 954 (8th Cir. 2001); U.S. v. Cherry, 938 F.2d 748 (7th Cir.
1991); Ex parte C.L.Y., 928 So. 2d 1069 (Ala. 2005); Hawkins v. State,
348 Ark. 384, 72 S.W.3d 493 (2002); Oldman v. State, 998 P.2d 957 (Wyo.
2000); State v. Stinnett, 958 S.W.2d 329 (tenn. 1997); Jones v. State, 606
So. 2d 1051 (Miss. 1992); State v. Robinson, 153 Ariz. 191, 735 P.2d
801 (1987); State v. Sheppard, 164 Ohio App. 3d 372, 842 N.E.2d 561
(2005).
32 State v. White, 2 Neb. App. 106, 507 N.W.2d 654 (1993).
33 State v. Beeder, supra note 6. See, also, e.g., United States v. Iron Shell,
633 F.2d 77 (8th Cir. 1980); State v. Bullock, 320 N.C. 780, 360 S.E.2d
689 (1987); Goldade v. State, 674 P.2d 721 (Wyo. 1983); State v. Vosika,
83 Or. App. 298, 731 P.2d 449 (1987); Stallnacker v. State, 19 Ark. App.
9, 715 S.W.2d 883 (1986).
StAtE v. vIgIl 	141
Cite as 283 Neb. 129

upon that information in formulating D.S.’ discharge instruc-
tions. the discharge instructions included a therapy referral and
recommended that a physical examination be conducted. the
trial court did not err in finding that the interview of D.S. was
reasonably pertinent to medical diagnosis and treatment.
the only issue in this appeal was whether the trial court
properly admitted D.S.’ interview over vigil’s hearsay objec-
tion. We determine that the trial court did not err in finding that
the elements of the medical purpose exception found in rule
803(3) were met. therefore, vigil’s assignment of error lacks
merit and we affirm the convictions and sentences imposed
below.
CONClUSION
For the reasons stated above, we affirm the judgment of the
trial court.
affirMed.
heaviCaN, C.J., Wright, and gerrard, JJ., not participating.
142 	283 NEBRASkA REPORtS