1. Statements by Child to Dr. Carson {9} Relying on State v. Ortega, 2008-NMCA-001, ¶ 27, 143 N.M. 261, 175 P.3d 929, overruled in part by State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, Defendant asserts that hearsay statements made by a victim of sexual abuse during a SANE exam do not fall within Rule 11-803(D) as such statements are not for the purpose of medical diagnosis or treatment but are primarily for evidentiary purposes to prosecute a crime. Accordingly, Defendant contends that the district court improperly admitted Dr. Carson's testimony concerning statements made by Child during the SANE exam.

{14} Initially, we note that "[t]he hearsay rule and the Confrontation Clause are not co-extensive and must remain distinct." State v. Mendez, 2010-NMSC-044, ¶ 28, 148 N.M. 761, 242 P.3d 328. Whereas "[t]he hearsay rule is intended to ensure that the jury is not exposed to unreliable evidence," the right of confrontation "guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be." Id. (internal quotation marks and citation omitted).

{13} “The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be.” State v. Mendez, 2010–NMSC–044, ¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). “[T]he Confrontation Clause prohibits the admission of testimonial statements unless the declarant is unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”

According to Dr. Jenkins, the manner in which an injury occurs, including whether it was inflicted by a stranger or by a family member, impacts diagnosis and treatment. . . . In sum, Ms. Thacker's statements were made for diagnosis and treatment purposes and were not testimonial, or primarily given for criminal prosecution purposes."); cf. State v. Mendez, 148 N.M. 761, 242 P.3d 328, 340-41 (2010) ("[Sexual Assault Nurse Examiners] may be more adept at collecting and preserving evidence, but any medical provider who treats sexual abuse victims is engaged to some extent in the collection of evidence, and most understand that the evidence they collect — physical or otherwise — could be used in a subsequent prosecution.

In sum, Ms. Thacker's statements were made for diagnosis and treatment purposes and were not testimonial, or primarily given for criminal prosecution purposes.”); cf. State v. Mendez, 148 N.M. 761, 242 P.3d 328, 340–41 (2010) (“[Sexual Assault Nurse Examiners] may be more adept at collecting and preserving evidence, but any medical provider who treats sexual abuse victims is engaged to some extent in the collection of evidence, and most understand that the evidence they collect—physical or otherwise—could be used in a subsequent prosecution.... T.F.'s statements in this case should not have been categorically excluded based on Nurse Lopez's status as a SANE nurse.”). But see Hernandez v. State, 946 So.2d 1270, 1280 (Fla.Dist.Ct.App.2007) (finding statements by sexual assault victim to nurse testimonial); Hartsfield v. Commonwealth, 277 S.W.3d 239, 244–45 (Ky.2009) (same); Medina v. State, 122 Nev. 346, 143 P.3d 471, 476 (2006) (same).

Often this will require examination of individual questions and responses. This concept was recognized by the New Mexico Supreme Court in State v. Mendez, 148 N.M. 761, 242 P.3d 328 (2010), where the court rejected the notion that a victim's statements made to a sexual assault nurse should be categorically excluded based on the nurse's status. Mendez, 148 N.M. at 774, 242 P.3d 328.

Specifically, Defendant contends that Dr. Ornelas introduced impermissible hearsay accounts of J.R. and T.P.'s self-reported histories and that Dr. Ornelas' testimony was more prejudicial than probative. The State counters that Dr. Ornelas' testimony was permissible under State v. Mendez, 2010-NMSC-044, 148 N.M. 761, 242 P.3d 328, and that even if it was not, any error was harmless. Hearsay is inadmissible unless it falls within an exception.

{8} "The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be." State v. Mendez, 2010-NMSC-044, ¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). "As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness."

{8} “The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be.” State v. Mendez, 2010–NMSC–044, ¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.”

State v. Lopez, 2000–NMSC–003, ¶ 14, 128 N.M. 410, 993 P.2d 727. “The Confrontation Clause guarantees the accused in a criminal trial the right to be confronted with the witnesses against him, regardless of how trustworthy the out-of-court statement may appear to be.” State v. Mendez, 2010–NMSC–044, ¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted). {7} The State sought to introduce the testimony of Dr. Krinsky as an expert witness.