Opinion
No. 84455-5-I Nos. 84456-3-I 84457-1-I
03-25-2024
STATE of Washington, Respondent, v. Murugananandam ARUMUGAM, Appellant.
PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, Dana M. Nelson Nielsen, Koch & Grannis, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant. Ian Ith, King County Prosecuting Attorney’s Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent.
Honorable Andrea Darvas, Judge
PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, Dana M. Nelson Nielsen, Koch & Grannis, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.
Ian Ith, King County Prosecuting Attorney’s Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent. OPINION PUBLISHED IN PART
Dwyer, J.
¶1 A jury convicted Murugananandam Arumugam on three counts of child rape as to one child and on three counts of child molestation of another child. Arumugam appeals, contending that (1) the trial court made evidentiary errors by admitting hearsay statements under the medical diagnosis or treatment exception and admitting evidence of his arrest on unrelated federal charges, (2) the prosecutor engaged in misconduct, (3) his trial counsel failed to provide him with constitutionally sufficient representation, and (4) cumulative error deprived him of a fair trial. He also seeks reversal of his convictions for reasons set forth in a pro se statement of additional grounds.
¶2 We agree that the trial court erred in admitting evidence under the medical diagnosis or treatment exception to the hearsay bar but conclude that the error was harmless. We disagree with all of Arumugam’s remaining contentions and affirm his convictions. However, we remand the matter to the trial court with instructions to strike the victim penalty assessment (VPA) and DNA collection fee from the judgment and sentences.
I
¶3 In 2002, Arumugam and D.S. wed through an arranged marriage in India. The couple had their first child, Kv.M., in 2004, and immigrated to the United States on Arumugam’s work visa two years later. The couple’s second child, K.M. (T.M.), was born in 2009 in Washington.
K.M., who is also identified as "V." at times in the record, was born female. But prior to and throughout trial, K.M. identified as male under the name "T.M." To avoid confusion, this opinion uses T.M. and male pronouns to refer to "K.M." and "V."
¶4 In 2010, the family moved into the neighborhood where they have since resided. Soon thereafter, D.S. befriended C.F., another mother in the neighborhood whose daughter, J.F., was several months younger than T.M. T.M. and J.F. became best friends in 2016, when they attended the same elementary school. The children spent hours together nearly every day after school and during the summer. J.F. frequently went to T.M.’s house where they played video games, rode bikes, watched television, and played outside.
¶5 In early 2018, Arumugam was arrested on federal charges related to the possession of child pornography. He was in jail for one day on those charges before being released and returning home. Once C.F. learned of Arumugam’s arrest, she forbade J.F. from going to T.M.’s house but continued to allow T.M. to visit their home.
The circumstances giving rise to the child pornography charges are not at issue in this appeal.
¶6 In May 2020, J.F. (age 10 at the time) told C.F. that Arumugam touched her inappropriately in 2016, when she "started going-over" to T.M.’s house. When C.F. called D.S. and Arumugam to inquire about these allegations, Arumugam denied any improprieties. A few days later, C.F. reported the allegations to the police.
¶7 On June 4, 2020, King County Sheriff Detectives Laura Peckham and Patrick Sobczyk went to Arumugam’s home to interview the family members. Peckham spoke with T.M. who did not report "anything of concern" or "any kind of touching." Arumugam agreed to speak with Peckham and allowed the detective to audio record the interviews After Peckham read the Miranda warnings to him, the interview’ began as follows:
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[PECKHAM]: Okay. So this has nothing to do with 2018, I wasn’t here, I don’t know anything about that, but there are some new things that we have to talk about. Do you have any idea what that might be? Okay, about a neighbor.
[ARUMUGAM]: What?
[PECKHAM]: About a neighbor that you have.
[ARUMUGAM]: Okay.
[PECKHAM]: Do you know anything about that?
[ARUMUGAM]: No.
[PECKHAM]: Okay. Did you want to talk to me today about – about that? [ARUMUGAM]: Tell me, what do you have? What do you – what do you have?
[PECKHAM]: We have a neighbor that is – has some allegations against you for touching, inappropriate touching. Is that something you want to talk to me about?
[ARUMUGAM]: Um, no, I – I’m – I did not do that. I don’t touch anybody inappropriately. You can ask my – you can ask them here. You can do any – anything.
[PECKHAM]: Okay. Because I did talk with the – a neighbor of yours, and I did do an interview with a neighbor of yours. And we did – she did say that you touched her inappropriately.
[ARUMUGAM]: So she cannot prove it, you don’t have anything, and my – my – you can ask my family. You can ask them in front of me.
[PECKHAM]: What is your family going to know about it?
[ARUMUGAM]: I haven’t – I haven’t done anything like that, no.
[PECKHAM]: Okay. Okay.
[ARUMUGAM]: You can (indiscernible) – they know the situation, how did it happen with this, probably that’s
[PECKHAM]: What situation already happening with you?
[ARUMUGAM]: Yeah, it’s 2018 (indiscernible) you are talking about.
[PECKHAM]: Okay, 2018 stuff.
[ARUMUGAM]: Yeah, so probably that would have been, you know, my – we’ve been – I know what you are talking about. I – we’ve been very close to each other, and we’ve known for each other a long, long time and this never – I mean, I’m not that kind of person (indiscernible).
….
[ARUMUGAM]: You can ask – you can interview my daughter. You can interview my wife, and you can ask them. Even you can ask them – so, you know, we – she called us and talked about – talked to – talked – talked about it. I was so shocked.
[PECKHAM]: When did she call you?
[ARUMUGAM]: Like, a couple of days ago.
[PECKHAM]: What did she say?
[ARUMUGAM]: She said, this happened and we – she discussed with us, and we discussed in details it’s never happened such a thing. And I always present with my wife. I always present with (indiscernible) and we never do that. I’m a handicap person, I don’t have any of those intentions to do anything to – and then again, she’s – you – tiny little – I mean, I don’t have that kind of intention. I have, in my past history, whoever I’ve been with, I don’t have any intention of touching anything, and never happened to anyone. Why would it happen with tiniest one?
¶8 Arumugam told Peckham of a time— years prior—when he witnessed J.F. and T.M. chatting inappropriately with boys online, claimed that this encounter was the basis for J.F. conjuring up her allegations, and suggested that he was an easy target due to the 2018 matter:
[ARUMUGAM]: No, it’s not – it’s not – it’s not – I haven’t done that. I think this couldn’t have happened. So probably – because there was a time when they were in – so, they were playing so they were in on a chat, I saw her doctor, two boys, they were talking – they were – they were – you know, two boys on a chat room.
….
[ARUMUGAM]: A chat room in the sense of the chat, the – they were in a – I don’t know chat, but they were on a call. Two young boys, and their age probably, they were talking something nasty. And then I happened to saw them doing that, both were giggling and, you know, joking. They are – those boys were using the bad words and everything. So, I got so shocked – I was passing by, and then, hey, what are kids doing? What is this very bad, I’m going to tell your mom and my daughter was also there. I tell her mom then this is not good. ([I]ndiscernible) they were scared – scared, and she was crying, please don’t tell (indiscernible). That’s it. So, right. So, okay, fine. Go back. Go – (indiscernible) give me the card – and then I told my wife.
There was other times, my son also got the same thing. Same situation. They got him.
[PECKHAM]: Okay. [ARUMUGAM]: Right? So this happened – I – my – my things is this, I think, probably her daughter probably engaged some kind of things and they got caught. She got caught probably. And then, okay, how can I – probably [C.F.] or [J.F.’s father] would have asked, why would you do this? How – where do you learn all this from? Probably she might have built up the story, some kids do that.
….
[ARUMUGAM]: We were like really, really close friends. And then, if – I am not the person who will bring anything to their family or to my family.
[PECKHAM]: Okay.
[ARUMUGAM]: So, this happened – my – my suspicions is my – I was – when they were talking to us, I explained this to her, so could have been this. I am not the person who will, you know, think like that. And probably, she might have engaged who – her daughter might have engaged the chats, and then she might have got caught by the parents. She – and then she might have built a story against
[PECKHAM]: Okay.
[ARUMUGAM]: Because she – remembered this incident.
[PECKHAM]: Okay. Okay.
[ARUMUGAM]: So, it’s – and then with our situation, she sees target. I am an easy target.
¶9 The interview ended with Arumugam reiterating his denial of ever inappropriately touching the children:
[PECKHAM]: Okay. Did you ever touch [J.F.] when she was here?
[ARUMUGAM]: Honest to God, no, I can promise on anything, on me, or on my children, my wife, honest to God
….
[PECKHAM]: Okay. Did you ever touch [J.F.] inappropriately on her private parts?
[ARUMUGAM]; No, ma’am.
[PECKHAM]: Okay. Did you ever touch your daughter inappropriately on her private parts?
[ARUMUGAM]: No, way. No.
¶10 Meanwhile, during Arumugam’s interview, Sobczyk talked to D.S. "trying to find out if she knew about the allegations" and "if she would cooperate with [law enforcement] and CPS on creating a safety plan to make sure that the kids were safe." D.S. did not report any allegations of abuse within her family, did not report any inappropriate touching of J.F., nor did she express any concerns about Arumugam. Kv.M. told the detectives that he had never witnessed Arumugam touching either T.M. or J.F. inappropriately.
¶11 At the conclusion of the interviews, Arumugam was arrested and charged with three counts of child molestation in the first degree involving J.F. He remained in jail from that point forward.
¶12 Jazie Smith, a Child Protective Service (CPS) investigator with the Department of Children Youth and Families, also went to Arumugam’s home on June 4, 2020 to speak with Kv.M. and T.M. but "it was very chaotic" and she "did not speak with them" that day. Later that month, Smith met D.S., Kv.M., and T.M. again. The family was not forthcoming with information at that point. To Smith, the family appeared "worried about the father’s situation" and "about law enforcement and CPS being involved," so she offered them resources.
¶13 Several months later, in December 2020, D.S. contacted Smith and reported that T.M. had said that Arumugam had sexually abused T.M. This caused Smith to open a CPS investigation, contact Peckham, schedule T.M. to undergo a forensic interview, and assist T.M. in getting a sexual assault examination. Smith also gave D.S. information regarding a "U visa," as D.S. was worried about having to take the children back to India.
"A U visa grants temporary legal resident status to a person who is the victim of a qualifying crime and who helps law enforcement investigate or prosecute that crime." State v. Romero-Ochoa, 193 Wash.2d 341, 344, 440 P.3d 994 (2019).
¶14 That same month, Peckham went to Arumugam’s home to interview D.S. and T.M. D.S. told the detective that Arumugam had physically forced her to perform oral sex on him, while T.M. reported that Arumugam had raped T.M. Next, Shana MacLeod, a forensic interviewer in the special assault unit of the King County Prosecutor’s Office, interviewed T.M. about the rape allegations.
Based on this allegation, the State charged Arumugam with rape in the second degree, domestic violence, of D.S.
¶15 In January 2021, D.S. took T.M. (then age 11) for a sexual assault examination with nurse practitioner Joanne Mettler. In the "history of the child" portion of T.M.’s medical record, Mettler wrote:
She told me how, when she was eight years old, her dad touched her private parts, that he raped her until she was about 10 when she went through puberty. I asked her what she meant by rape, and she said sex and that she did not like it at all. So I said, okay, when you say sex, what do you mean by that? Then I told her, if I could ask her a question about that, if I got something wrong, that she should correct me. I said, so when you say rape or sex, do you mean penis to vagina? She said, yes. I said, are there other things that happened? … She said, he made out with her. I said, are there other things? She said … squished my boobs. I said, are there other things? And she said, no. And then I said, well, what about your bottom? Did something happen to your bottom? She said, he tried, but I said, no. And then I clarified with her the last time and, she said it was before puberty. She told me she thought that this was normal and that she did not tell because she was scared and thought it was normal and that she felt like sex is disgusting. We talked a little bit more about the exam and more worries about her body. She said she felt her body was fine, and that she did not feel that she needed to do the exam.
This quotation maintains the original female pronouns that Mettler used in the medical report. The record is not clear if T.M. identified as female or male at that point.
¶16 Next, Mettler physically examined T.M.’s body and tested T.M. for sexually transmitted infections.
¶17 The State charged Arumugam with three counts of child rape in the first degree, domestic violence, of T.M. Later, the three sets of charges involving J.F., D.S., and T.M. were joined for trial before a single jury. Arumugam pleaded not guilty to all charges.
¶18 Prior to trial, the State moved to admit J.F.’s and T.M.’s reports of abuse to their mothers as "fact of complaint" evidence in its case in chief. The trial court granted the motion in part. The State also moved to admit the statements that T.M. made to Mettler under ER 803(a)(4), the medical diagnosis or treatment exception to the hearsay rule. The trial court reserved its ruling on this motion.
¶19 Finally, the State moved to admit Arumugam’s 2018 arrest involving the federal child pornography charges as res gestae to explain the timing of J.F.’s and T.M.’s disclosures and as "a reference point" for various witnesses, and proposed a limiting instruction. After hearing oral argument, the trial court granted the State’s motion, explaining:
I think the Court should let this in as long as it’s sanitized to not refer to any crimes of a sexual nature with a limiting instruction to the jury that the only reason that it’s being admitted is so the Court can consider [J.F.’s] reasons for the timing of the allegations that she made. … And I think it will be important for the jury to be told not to speculate about the nature of the arrest or the charge that went with it.
¶20 The trial court further clarified: "I mean, the reason why, frankly, the child pornography charges is so explosively prejudicial is because in the minds of most lay people, it would be incredibly relevant." In short, the court ruled that "the fact of the arrest is admissible, but the nature of the charge is not" and, without objection, Arumugam’s attorney responded: "Excellent."
¶21 The trial court also admitted Arumugam’s recorded interview with Peckham following a CrR 3.5 hearing and determining that his statements were made knowingly, intelligently, and voluntarily. ¶22 Over the course of trial, the State presented the testimony of 10 witnesses, beginning with Peckham. Peckham detailed the circumstances of her recorded interview with Arumugam. The entire recording of Arumugam’s interview was then played for the jury. Peckham clarified that she was not involved in investigating the "2018 incident," which prompted the court to give an oral limiting instruction on that topic.
Although the record does not contain a separate transcription of this interview, it appears that the interview was lengthy given that it took 20 pages in the report of proceedings to capture the entire interview.
¶23 Kv.M., who was age 18 at the time of trial, testified about how Arumugam was violent toward him and T.M. when they were younger. Kv.M. recalled a time when he was late for a piano lesson, which caused Arumugam to get "really mad." Consequently, according to Kv.M., Arumugam used "a stick" to hit him to the point where "there was like blood pouring down my face." Kv.M. testified Arumugam once beat T.M. for telling C.F. "that she was on her period." Furthermore, he testified to denying any allegations of abuse to law enforcement and CPS in June 2020 because:
I was—I was afraid. Like, in case I said something and [Arumugam] did come back, like he would know that and I’d have to face that. And also, like, he—he had told us before like not to say any—anything bad, just say good things about him. So like, yeah, we just would tell—tell them whatever, like, good things that he would say to tell them.
¶24 Smith testified about her contacts with the family in June 2020 and about her December 2020 investigation into T.M.’s allegations of abuse. She spoke about recommending that T.M. undergo a sexual assault exam, providing resources, and giving D.S. a gas voucher to take T.M. to the examination.
¶25 Forensic interviewer MacLeod testified how "[d]elayed disclosure is one of the most common ways that abuse is reported," and that she had interviewed J.F. in June 2020 and T.M. in December 2020, and how both children appeared to be open during the interview. On cross-examination, MacLeod confirmed that the purpose of her interviews was "to gain as much information as possible to support a prosecution."
¶26 Sobczyk testified to interviewing D.S in June 2020. He observed that D.S. appeared worried about "what would happen to her and her family should [Arumugam] go to jail." He also clarified that the detectives felt they had probable cause to arrest Arumugam "based off of a forensic interview from a child" who "said she was molested."
¶27 Next, the State called Mettler to testify about T.M.’s sexual assault examination. Prior to such an examination, Mettler said, her custom was to always "ask the child for permission to examine them" and if the child "said no, the answer is no," and she "would not examine" the child. Mettler then testified to gathering T.M.’s medical history, physically examining T.M., and concluding that the examination was "normal" with no sign of physical injury. At this point, the trial court excused the jury so that Mettler could be further questioned and the parties could argue the admissibility of T.M.’s statements contained in Mettler’s written report.
¶28 During the evidentiary discussion, Mettler testified that the medical purpose of a sexual assault examination six years after the incident was looking for sexually transmitted diseases "and looking at the body to make sure that it looks fine, normal." The State argued that T.M.’s exam was for sexually transmitted infection testing and "also to see if there’s mental therapeutic things." Arumugam argued that the examination was for evidence-gathering purposes only, not medical treatment. The trial court admitted T.M.’s statements contained in Mettler’s report "without identifying that the perpetrator was the defendant." When the jury returned, Mettler read from her report and noted that T.M. said: "[S]ince she was eight, that she was touched, and that she had been raped up until she was 10 years of age;" it stopped "when she started to go through puberty;" that "rape" or "sex" meant "penis to vagina;" Arumugam "squished my boobs;" that "she thought it was normal, that she was scared to tell;" and "she felt sex was disgusting."
Again, this quotation maintains the female pronouns used in the original testimony.
¶29 C.F. testified about her response to J.F.’s disclosure of abuse, confronting D.S. and Arumugam, and reporting J.F.’s allegations to the police. C.F. also said that J.F. never "lied about anything big."
¶30 J.F. testified to Arumugam putting his hands under her underwear, starting when she was in kindergarten, and how she "couldn’t really comprehend it" at the time, but that "it felt uncomfortable." Arumugam would touch her, J.F. claimed, "almost every time I went over if—if he was present." J.F. said, by the end of second grade, she felt that Arumugam inappropriately touching her was "really wrong," but that she "just didn’t have the guts to tell anybody until May of 2020."
J.F. testified that learning about Arumugam’s 2018 arrest did not have any influence on her disclosing the abuse to her mother in May 2020.
¶31 D.S. testified about her arranged marriage to Arumugam and how he physically abused her. She recounted the family’s immigration journey and how they depended on Arumugam’s sole income. She detailed how Arumugam forced her to perform oral sex on him, which stopped in 2016.
¶32 D.S. also testified that when T.M. first told her "dad is touching my private parts," she did not do anything about the allegation. Later, after T.M. entered puberty, D.S. recalled T.M. saying: " ‘Mom, dad had sex with me.’ " D.S. testified to being "so scared" at that point, given that Arumugam "had lost his job" and the family was "financially struggling." On cross-examination, D.S. agreed that her life was "a lot better now without [Arumugam] around," as her emotional "stress is gone" and she has peace of mind.
¶33 T.M., age 13 at trial, testified to Arumugam raping him. T.M. described the first time that Arumugam raped him, at age eight, which occurred in the master bedroom closet:
A I remember he tried – he showed me a porn video.
Q Okay. And what was on the video?
A It was a – this girl. She was on a chair, she was white and she was wearing this red hoodie. I remember this very vividly.
Q Okay.
A She had no pants, and she doesn’t – she didn’t have any underwear.
Q Okay.
A And then there was this guy, he was naked, he was also white. And he was, like, fucking her. And I remember there was this woman or a girl, I don’t know the age approximately, but she did sound older than 18. And I remember she was, like, laughing and, like, recording the video.
Q Got it. And what was your dad doing while he was showing you this video?
A I’m pretty sure he was naked and he was, like, do you want to do this? I don’t remember giving a response.
Q Okay. You said he was naked. Were you dressed at all?
A I do not remember.
Q You don’t remember. Okay. And after he showed you the – what happened next?
A I’m pretty sure he raped me.
….
A It was like an [sic] missionary pose.
….
Q Okay. Let me be a little bit more specific with my question. Did his penis penetrate your vagina?
A Yes.
¶34 T.M. testified to witnessing Arumugam ejaculate after the assault and said "I remember he told me to get a tissue to clean it up." Afterward, T.M. "was visibly disgusted," "did not feel good," and "mentally, I did not like it." T.M. went on to say that Arumugam raped him "multiple times" over "a span about two years," that they had sex in the closet, in the master bedroom, and "on the downstairs couch," and that the two of them had "oral sex." T.M. stated that the rapes stopped "when I got my period." And, as to why he did not tell the police about any of this abuse in June 2020, T.M. said: "Well, my dad said no, And if I said yes, and my dad found out, I would get beat again."
¶35 Arumugam testified in his own defense. While he admitted to being a "drill master" and getting face-to-face with the children to yell at or "shake them" when they misbehaved, Arumugam said: "I’m not the guy who hit, or abuse, or beat them up, no, I’m not that guy." He denied ever having sex with T.M. He denied touching J.F.’s vagina. He also claimed that any oral sex with D.S. happened when they lived outside of the United States. Arumugam reiterated what caused him to think that J.F. had made up her allegations.
¶36 Gerard Cattin and Amber Ghosh, two defense witnesses, did not offer any exculpatory testimony. Cattin, who first met Arumugam in 2012 when they both worked for the same company, said that he moved to Idaho in 2015 and that his relationship with Arumugam "essentially from 2016 and on sort of stopped." Ghosh testified to moving next door to Arumugam in 2013 and speaking with him occasionally. She never had any direct interaction with T.M. She did not have much interaction with Arumugam’s family since 2015, but said that she was the person who "bail[ed] him out" when Arumugam was arrested "four to five years back."
¶37 Following the close of the evidence, the trial court instructed the jury and gave two limiting instructions: one regarding J.F.’s and T.M.’s disclosures to their mothers and, the second, regarding Arumugam’s 2018 arrest. During closing argument, Arumugam proclaimed that J.F., T.M., and D.S. were not credible and that each of them had motive to testify falsely against him. The jury found Arumugam guilty on all counts of child rape and of child molestation, but acquitted him of rape of D.S.
Arumugam did not object to the trial court’s final instructions.
¶38 Arumugam appeals.
II
¶39 Arumugam first asserts that the trial court erred in admitting T.M.’s statements to Mettler under the hearsay exception for medical diagnosis or treatment. We agree, but hold that error did not impact the outcome of his trial.
A
[1–4] ¶40 A trial court has wide discretion when ruling on the admissibility of evidence. We will not disturb such a ruling absent an abuse of the trial court’s discretion. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995). Abuse of discretion occurs "only where the decision of the trial court was manifestly unreasonable or based on untenable grounds." State v. Freeburg, 105 Wash. App. 492, 497, 20 P.3d 984 (2001) (citing Powell, 126 Wash.2d at 258, 893 P.2d 615). We may affirm the trial court’s rulings on any grounds the record and the law support. State v. Costich, 152 Wash.2d 463, 477, 98 P.3d 795 (2004).
¶41 ER 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." "Hearsay is not admissible except as provided by these rules, by other court rules, or by statute." ER 802. "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 insofar as reasonably pertinent to diagnosis or treatment," "are not excluded by the hearsay rule, even though the declarant is available as a witness." ER 803(a)(4).
[5–7] ¶42 "[T]he test for statements made for medical diagnosis or treatment considers the subjective purposes of both the declarant and the medical professional." State v. Burke, 196 Wash.2d 712, 740, 478 P.3d 1096 (2021). For "the statement to be ‘reasonably pertinent’ to medical diagnosis or treatment under ER 803(a)(4), the declarant’s motive in making the statement must be to promote treatment and the medical professional must have relied on it for the purposes of treatment." Burke, 196 Wash.2d at 740, 478 P.3d 1096 (emphasis added) (citing State v. Doerflinger, 170 Wash. App. 650, 664, 285 P.3d 217 (2012)). "Statements attrib- uting fault are generally inadmissible under this exception, but statements ‘disclosing the identity of a closely-related perpetrator’ may be reasonably pertinent to treatment in certain situations like domestic violence or sexual abuse ‘because part of reasonable treatment and therapy is to prevent recurrence and future injury.’ " Burke, 196 Wash.2d at 740, 478 P.3d 1096 (quoting State v. Williams, 137 Wash. App. 736, 746, 154 P.3d 322 (2007)).
B
¶43 Here, the State avers that T.M.’s statements qualified for admissibility pursuant to the medical diagnosis or treatment exception. At trial, the State argued that the subjective purpose of nurse Mettler was to provide T.M. with medical treatment, including testing for sexually transmitted infections, reassuring T.M. that his body was normal, and providing a counseling recommendation. The State failed, however, to present any evidence of T.M.’s subjective purpose or motive for undergoing the sexual assault examination. Moreover, to the extent that the State or its witness was concerned about T.M.’s health in the years between the rapes alleged and the examination, we note that the record does not contain any medical evidence or records concerning T.M. either before or after the examination at issue.
¶44 The record unmistakably establishes that T.M. did not want to be physically examined by Mettler. Mettler testified to always asking a child for permission to examine them before doing so and to not examining a child "if they really don’t want to be examined." However, here, T.M. expressly told Mettler that he "felt h[is] body was fine" and "did not feel that [he] needed to do the exam." Nevertheless, Mettler did not follow what she testified to be her standard practice of declining to examine children who do not want to be examined.
[8] ¶45 We infer from the circumstances that Mettler examined T.M. only after obtaining D.S.’s consent to do so. Parents are authorized to provide informed consent to medical providers on behalf of their minor children to undergo treatment, as a matter of legislative grace:
An action for medical battery lies "where a health care provider fails to obtain any consent, or where the patient refuses care by a particular provider." Bundrick v. Stewart, 128 Wash. App. 11, 17, 114 P.3d 1204 (2005). While minors may consent to receive or refuse medical treatment without parental or adult authorization in several instances, T.M.’s situation does not appear to be one of them. See RCW 7.70.050(4) (any age, emergencies); RCW 7.70.065(2)(b) (any age, homeless child); RCW 9.02.100(1) (any age, birth control); RCW 9.02.100(2) (any age, abortion services) RCW 70.24.110 (age 14 or older, STI testing); RCW 71.34.500, .530 (age 13 or older, mental health services).
Persons authorized to provide informed consent to health care, including mental health care, on behalf of a patient who is under the age of majority and who is not otherwise authorized to provide informed consent, shall be a member of one of the following classes of persons in the following order of priority: …
(iii) Parents of the minor patient.
RCW 7.70.065(2)(a). This statute allows parental consent to be imputed to a minor for medical care but does not impute the parent’s motive or purpose to that minor. No other statute or rule does so either. Put differently, RCW 7.70.065(2) simply allows for adult authority to overcome a minor’s stated desires regarding medical treatment.
[9] ¶46 On the record before us, there is no evidence of T.M. articulating a desire to obtain medical treatment as a result of being raped by Arumugam. To be clear, as to the sexual assault examination specifically, the record establishes nothing more than T.M.’s submission to adult authority. Nothing in the record indicates that T.M. sought to "promote treatment" by submitting to an intrusive examination. Because the case law requires that the patient’s desire to "promote treatment" must be established for the hearsay exception to apply, Burke, 196 Wash.2d at 740, 478 P.3d 1096; Doerflinger, 170 Wash. App. at 664, 285 P.3d 217, the trial court erred in admitting T.M.’s statements to Mettler pursuant to ER 803(a)(4).
¶47 For its part, the State contends that Burke compels a different result. In that case, K.E.H. went to the emergency depart- ment at a Tacoma hospital around 1:30 a.m. on July 3, 2009, and "reported that she had just been raped." Burke, 196 Wash.2d at 717, 478 P.3d 1096. After being "medically cleared" shortly before noon that same day, K.E.H. elected to wait at the hospital for several more hours to undergo a sexual assault examination with nurse Kay Frey. Burke, 196 Wash.2d at 718, 478 P.3d 1096. Over defense objections, K.E.H.’s statements to Frey were admitted at Burke’s trial under the medical diagnosis or treatment exception. Burke, 196 Wash.2d at 718-19, 478 P.3d 1096. Ultimately, the Supreme Court held that the trial court did not abuse its discretion in admitting the statements because "[i]t is reasonable to believe that K.E.H.’s motive was to promote treatment and that Nurse Frey relied on the statements for the purposes of treatment" and "[h]er answers to the questions about penetration, ejaculation, contraception, strangulation, grabbing, and her position during the assault were also likely motivated by a desire to promote medical treatment specific to sexual assault." Burke, 196 Wash.2d at 741, 478 P.3d 1096.
¶48 Burke does not stand for the proposition that all those who undergo a sexual assault examination do so for the subjective purpose of promoting medical treatment. Nor is Burke factually on point. In that case, K.E.H. voluntarily underwent an examination within 24 hours of her assault. Here, T.M. was examined years after Arumugam’s actions and did so only after acquiescing to adult authority. Of significance is that T.M. had a very good reason not to want a stranger to probe his genitalia or view his naked body. As mentioned previously, T.M. is a person who has questioned the gender identity that was assigned to T.M. at birth. T.M.’s disinclination to subject T.M.’s body to an intrusive examination years after the events at issue is, in the context of T.M.’s life, easily understood. Nothing in Burke commanded the trial court to impute to T.M. a desire or purpose that T.M. understandably disclaimed.
C
[10, 11] ¶49 The erroneous admission of hearsay evidence is a nonconstitutional error and is therefore harmless if, within reasonable probabilities, the error did not materially affect the outcome of the trial. State v. Neal, 144 Wash.2d 600, 611, 30 P.3d 1255 (2001). Here, the evidence of child rape was of a great magnitude. At trial, T.M described how Arumugam attempted to prime him with a pornographic video of a man having sex with a girl and asking "do you want to do this," detailed the manner in which Arumugam raped him for the first time, and spoke of how the acts of rape continued over a two-year span and occurred in various locations. The depth and scope of T.M.’s trial testimony exceeded that of any of his statements contained in Mettler’s report. Therefore, we conclude that, within reasonable probabilities, the outcome of Arumugam’s trial would have been the same if the challenged hearsay statements had been excluded.
Arumugam is not asserting a confrontation clause challenge in this appeal.
¶50 Arumugam relies on State v. Carol M.D., 89 Wash. App. 77, 948 P.2d 837 (1997), withdrawn in part on other grounds, 97 Wash. App. 355, 983 P.2d 1165 (1999), to argue that the trial court’s error was prejudicial and requires reversal. In that case, parents were charged with multiple sex offenses involving their four children, including nine-year-old M.D. Carol M.D., 89 Wash. App. at 83, 948 P.2d 837. "At trial, M.D. stated Detective Perez had defined ‘secret touch,’ and she had told him she did not remember her parents molesting her." Carol M.D., 89 Wash. App. at 82, 948 P.2d 837. "M.D. also denied being abused when Dr. Shipman questioned her." Carol M.D., 89 Wash. App. at 82, 948 P.2d 837. Relying on ER 803(a)(4), the trial court admitted the testimony of M.D.’s counselor, Cindy Andrews. Carol M.D., 89 Wash. App. at 82-84, 948 P.2d 837. Andrews "testified about statements M.D. made to her during these sessions," including about how "both her mother and father had put their fingers in her ‘crotch.’ " Carol M.D., 89 Wash. App. at 82-83, 948 P.2d 837.
¶51 Reversing the trial court, Division Three held that M.D.’s statements to Andrews were inadmissible under ER 803(a)(4) because the record did not affirmatively es- tablish that the child had a treatment motive for making her statements. Carol M.D., 89 Wash. App. at 87, 948 P.2d 837. It then concluded that the error was prejudicial because:
M.D.’s direct testimony at trial was not as detailed as her hearsay statements. Additionally, the defense’s cross-examination of M.D. raised serious questions about the reliability of her testimony. In these circumstances, [the therapist’s] hearsay testimony assumed greater importance. We therefore hold a reasonable probability exists the erroneous admission of these hearsay statements affected the outcome of the trial.
Carol M.D., 89 Wash. App. at 88, 948 P.2d 837 (citing State v. Ray, 116 Wash.2d 531, 546, 806 P.2d 1220 (1991)).
¶52 Carol M.D. does not require reversal of this case. Unlike the declarant in Carol M.D., at the trial of this case, T.M. did not deny that Arumugam raped him. Furthermore, here, T.M.’s trial testimony was far more detailed than were his statements to Mettler. This is entirely unlike the circumstances present in Carol M.D. Similarly, here, no "greater importance" were placed on the generic statements in Mettler’s report than were placed on T.M.’s in-person elaboration of Arumugam’s actions at trial. To the contrary, T.M.’s in-person testimony was unquestionably more central to the State’s case than were the utterances contained in Mettler’s report.
¶53 In short, although T.M.’s statements to Mettler were.proved to have been not made for the purpose of T.M. promoting T.M.’s treatment, the trial court’s decision to admit these statements has been proved to be harmless.
¶54 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
WE CONCUR:
Diaz, J.
Smith, C.J.