Preview:

FILED
FOR PUBLICATION
Jun 07 2012, 8:42 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MARK F. JAMES Anderson, Agostino & Keller P.C. South Bend, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
A.R.M., Appellant-Respondent, vs. STATE OF INDIANA, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 71A05-1111-JV-613

APPEAL FROM THE ST. JOSEPH PROBATE COURT The Honorable Peter J. Nemeth, Judge Cause No. 71J01-1102-JD-104

June 7, 2012

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE A.R.M. appeals his adjudication as a delinquent child for committing child molesting, as a Class C felony when committed by an adult, and battery, as a Class B misdemeanor when committed by an adult. A.R.M. presents a single issue on appeal, namely, whether the juvenile court admitted a videotape of an interview with the victim contrary to the provisions of Indiana Code Section 35-37-46-6, the Protected Person Statute ("PPS"). We hold that the juvenile court did not err when it determined that the child victim's videotaped statement to a forensic interviewer was reliable and that, on the facts presented, the child victim had testified at the fact-finding hearing, which was equivalent to the trial required by the PPS. We affirm. FACTS AND PROCEDURAL HISTORY In February 2011, T.M. and her four children lived with friends in South Bend. One of the friends had two teenage children, including A.R.M., who was then thirteen years old. T.M.'s youngest child, S.M., was seven years old at the time. On February 8, A.R.M.'s mother was looking for him at bedtime and found him in the bathroom. A.R.M. was clothed, but he was handling the zipper/button area and waistband of his jeans. S.M. had just been in the bathroom with A.R.M., and he sat down in the hallway outside the bathroom with his head hanging down. A.R.M.'s mother demanded from A.R.M. to know what had happened.

2

T.M. heard the voices and stood in the bathroom doorway with A.R.M.'s mother. When T.M. asked S.M. if "anything [had] happened between" S.M. and A.R.M. and "if there was any inappropriate touching involved," transcript at 28-29, S.M. nodded yes. After finding alternate housing, T.M. and her children moved out of A.R.M.'s home two days later, and on February 14 they moved to the Y.W.C.A. T.M. reported the incident to personnel at the Y.W.C.A., who in turn relayed her report to DCS. And on February 16, a CASIE Center1 forensic interviewer conducted an interview of S.M. The State filed a petition alleging A.R.M. to be a juvenile delinquent for having committed child molesting, as a Class C felony, when committed by an adult. The State later filed an amended delinquency petition to add an allegation that A.R.M. had committed battery, as a Class B misdemeanor, when committed by an adult. On August 2, the juvenile court convened for the fact-finding hearing. When the State offered into evidence the videotaped statement S.M. had given to the CASIE Center interviewer, A.R.M. objected that the State had not met the requirements of the Protected Person Statute, Indiana Code Section 35-37-4-6.2 As a result, the juvenile court first heard evidence on the admissibility of S.M.'s videotaped statement under the PPS. S.M. testified at the hearing but, when the State asked him about the February 8 incident in the bathroom with A.R.M., S.M. answered that he could not remember anything. At the conclusion of the State's direct examination, A.R.M. was given an

The CASIE Center is the St. Joseph County Child Abuse Center. CASIE stands for Child Abuse Services Investigation and Education.
2

1

The PPS is also known as the child hearsay statute.

3

opportunity to cross-examine the victim but declined and moved for a directed verdict. 3 Following argument by counsel and recesses to allow the juvenile court to research the matter, the juvenile court ruled that S.M.'s videotaped statement was admissible, and it denied the motion for a "directed verdict." The court then heard additional evidence and viewed the videotaped statement. The following day, the juvenile court issued an order finding that the State had proved the allegations in the delinquency petition beyond a reasonable doubt. On August 16, A.R.M. filed a motion requesting the juvenile court to certify its fact-finding order for interlocutory appeal. The juvenile court obliged on August 17, but this court denied A.R.M.'s request to accept jurisdiction over the appeal. On November 1, the juvenile court held a dispositional hearing and adjudicated A.R.M. to be a delinquent child for having committed the offenses of child molesting, as a Class C felony, and battery, as a Class B misdemeanor, and committed him to the Indiana Department of Correction for placement at the Indiana Boys School. appeals. DISCUSSION AND DECISION A.R.M. contends that the juvenile court abused its discretion because it admitted S.M.'s videotaped statement from the CASIE Center contrary to the Protected Person Statute. Specifically, A.R.M. contends that the videotape did not meet the standard under the PPS to be reliable and that the State did not meet the requirement of having S.M. A.R.M. now

A party may move for judgment on the evidence under Trial Rule 50 in civil proceedings, such as a juvenile delinquency proceeding, not a motion for directed verdict, but only in a jury trial. A.R.M.'s motion for a "directed verdict" is more properly a motion for dismissal under Trial Rule 41. See Bowyer v. Ind. Dep't of Natural Res., 944 N.E.2d 972, 981 n.10 (Ind. Ct. App. 2011).

3

4

testify or showing, through medical testimony or other evidence, that S.M. was unavailable to testify at the fact-finding hearing. We conclude that the juvenile court did not abuse its discretion when it determined that the videotape was reliable and that S.M. testified at the fact-finding hearing. As such, the State satisfied the requirements of the PPS for the videotape to be admitted at the fact-finding hearing. The PPS provides, in relevant part: (a) This section applies to a criminal action involving the following offenses where the victim is a protected person under subsection (c)(1) or (c)(2): (1) Sex crimes (IC 35-42-4). (2) Battery upon a child (IC 35-42-2-1(a)(2)(B)). *** (c) As used in this section, "protected person" means: (1) a child who is less than fourteen (14) years of age; *** (d) A statement or videotape that: (1) is made by a person who at the time of trial is a protected person; (2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and (3) is not otherwise admissible in evidence; is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met. (e) A statement or videotape described in subsection (d) is admissible in evidence in a criminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the defendant's right to be present, all of the following conditions are met: (1) The court finds, in a hearing:
5

(A) conducted outside the presence of the jury; and (B) attended by the protected person in person or by using closed circuit television testimony as described in section 8(f) and 8(g) [IC 35-37-4-8(f) and IC 35-374-8(g)] of this chapter; that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability. (2) The protected person: (A) testifies at the trial; or (B) is found by the court to be unavailable as a witness for one (1) of the following reasons: (i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate. (ii) The protected person cannot participate in the trial for medical reasons. (iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath. Ind. Code

Download A.R.M. v. State of Indiana.pdf

Indiana Law