No. 49320-5-I.The Court of Appeals of Washington, Division One.
Filed: September 3, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 011015008, Hon. Cheryl Carey, October 5, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Stephen W. Kim, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Randi J. Austell, King Co Pros Attorney, 516 3rd Ave 5th Floor, Seattle, WA 98104.
PER CURIAM.
Matthew Roark stole a power drill from a Fred Meyer store, then stabbed the store security guard in the parking lot. He was convicted of first degree robbery while armed with a deadly weapon. The trial court did not abuse its discretion in admitting hearsay statements under ER 803(a)(4), and there was sufficient evidence to support the verdict. We therefore affirm.
FACTS
Justin Hanna, a Fred Meyer loss prevention specialist, witnessed Matthew Roark pick up a power drill, take it from its package, walk past several cash registers, and leave the store without paying. Hanna asked Kem Wesley, another store employee, for assistance, and went outside. He approached Roark in the parking lot, identified himself as the store’s loss prevention officer, and told Roark to return the drill. Roark refused, and tried to run away. Hanna grabbed Roark’s coat and clasped him in a `bear hug’ from behind. Hanna testified that the drill fell out of Roark’s coat in the struggle. Within a few moments, Wesley caught up with them. He testified that he heard Hanna tell Roark to return the drill, but the two men were already struggling when he reached them. Roark was swinging his hands wildly; Wesley could not see what Roark had in his hands. After Wesley and Hanna subdued Roark, Hanna noticed a wound on his chest `about four inches long, spread open about a half-inch, three-quarters of an inch wide, down to the bone’. Report of Proceedings (RP) (July 19, 2001) at 67. Hanna was taken to the emergency room, where he was treated by Dr. Lu. His wounds consisted of significant lacerations on his chest and arm, requiring 27 stitches. Dr. Lu testified the wounds were caused by a pointed object penetrating the body with significant force. Customer Judith Reeves testified she saw Roark grab what appeared to be a knife from his waistband, and jab the blade at Hanna. She testified Roark tossed the drill during the struggle.
DISCUSSION
Roark contends the trial judge erred in permitting Dr. Lu to testify to Hanna’s statement in the emergency room. We review admission of hearsay statements under an abuse of discretion standard. State v. Gribble, 60 Wn. App. 374, 381, 804 P.2d 634 (1991).
Under ER 803(a)(4), statements made for purposes of medical diagnosis or treatment are admissible.[1] The statements must be reasonably pertinent to diagnosis or treatment; ordinarily, statements identifying an assailant are not permitted. In re Dependency of Penelope B., 104 Wn.2d 643, 656, 709 P.2d 1185 (1985) (statements as to the causation will normally be allowed; statements as to fault will not); State v. Huynh, 107 Wn. App. 68, 74-75, 26 P.3d 290 (2001) (statements characterizing an event as an assault, and naming the alleged assailant, not reasonably pertinent to diagnosis and treatment). The declarant’s motive in making the statement must be consistent with the purposes of promoting treatment, and the statement must be of the kind reasonably relied upon by the treatment provider for the purposes of diagnosis and treatment. In re Dependency of M.P., 76 Wn. App. 87, 93, 882 P.2d 1180
(1994).
Dr. Lu testified that `the medical record states that [Hanna] is a 20-year-old male who was serving as a security guard in plain clothes at Fred Meyers and was said to have been stabbed by a shoplifter while attempting to recover a stolen power drill.’ RP (July 19, 2001) at 16. Roark complains that this reference to a shoplifter had no relevance to diagnosis or treatment of Hanna’s injuries. We disagree. The statement did not directly attribute fault to or name Roark, and in any event, Roark admitted he shoplifted the drill. How injuries are inflicted is clearly a matter of interest to a treating physician. Hanna did not know how he was cut or what kind of weapon was used. He had deep wounds caused by a sharp unsterilized object in the course of a determined struggle. Dr. Lu testified the degree of force must have been considerable. Under these circumstances, the trial court did not abuse its discretion in determining that Hanna’s statements were reasonably pertinent to his treatment and diagnosis.
We agree with Roark that this case differs from State v. Woods, 143 Wn.2d 561, 23 P.3d 1046 (2001). There, the court held admissible a victim’s statement identifying her assailant as relevant to the treatment of a probable psychological injury. Woods, 143 Wn.2d at 602-03. There is no such relevance here. But again, Roark was not named in Hanna’s statement, so Woods is impertinent. Roark’s theory is that without Hanna’s statement, admitted through Dr. Lu, the evidence was insufficient to establish robbery in the first degree.[2] He argues that he dropped the drill before using force, and so did not use force to obtain or retain the stolen property, and therefore is not guilty of robbery in the first degree. The problem with Roark’s theory is that it has no support in the record, with or without Dr. Lu’s testimony. As discussed above, Hanna’s hospital statement was admissible. In addition, as Roark himself acknowledges, Dr. Lu’s testimony about Hanna’s statement was not the only evidence that Roark stabbed Hanna in an attempt to retain possession of the stolen drill. Hanna so testified, as did other witnesses. Roark himself did not testify. Roark’s sufficiency argument is thus entirely without merit.[3]
Affirmed.
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
RCW 9A.56.190.