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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ELIZABETH A. GABIG Indianapolis, Indiana

FILED
Sep 24 2008, 10:07 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEPHEN R. CARTER Attorney General of Indiana Indianapolis, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSEPH SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0802-CR-168

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jeffrey Marchal, Commissioner Cause No. 49G06-0610-FC-193615

SEPTEMBER 24, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION SHARPNACK, Senior Judge

STATEMENT OF THE CASE Defendant-Appellant Joseph Smith appeals his conviction of child molesting, a Class C felony. We affirm. ISSUE Smith raises one issue for our review, which we restate as: Whether the trial court abused its discretion in admitting the child victim's videotaped pre-trial statement and the transcript of that statement. FACTS AND PROCEDURAL HISTORY At a time the victim, J.S., was five or six years old, her grandfather, Smith, removed J.S.'s clothing before she went to bed. While J.S. pretended to sleep, Smith touched her breasts and vagina with his hand. Smith held his hand "still" while touching J.S.'s vagina, but he moved his hand while touching her breasts. He also touched her buttocks. Similar touchings occurred on two or three other occasions. A few weeks thereafter, J.S. told her neighbors about the touchings, and the neighbors called the police or Child Protective Services. The neighbor's report led, shortly thereafter, to J.S. becoming a ward of the State. When J.S. was nine years old, Child Protective Services arranged for a forensic interview of J.S. During the interview, J.S. described the initial touchings and explained that the touchings occurred on two or three other occasions. The State charged Smith with the molestation of J.S. 1 Prior to trial, the State filed a "Notice of Intent to Introduce Statement Pursuant to I.C. 35-37-4-6 and Request for Hearing." (Appellant's App. at 54-55). At the child hearsay hearing, the court heard testimony from J.S., J.S.'s adoptive mother, and the forensic interviewer, Diane Bowers. The trial court issued

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At the same time, the State charged Smith with the molestation of another young girl. Upon Smith's motion, this charge was severed from the charge involving J.S.

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findings of fact and conclusions of law in support of its decision to allow the introduction of child hearsay at trial. At trial, J.S. testified that Smith touched her, but she was unable to testify to Smith's specific actions. After a break to regain her composure, J.S. indicated on a diagram that Smith touched her breasts, genitals, and buttocks. The State, over Smith's objections, then offered into evidence and presented the videotape of the forensic interview. Additionally, after Bowers indicated that an accurate transcript of the interview had been made, the trial court, over Smith's objection, allowed the State to publish the transcript to the jury. The transcript was entered into evidence as demonstrative evidence. The trial court specifically admonished the jurors regarding their use of the transcript, and it indicated that "the tape is evidence, not the transcript." Tr. at 50-51. After Smith again objected, the trial court told the jurors, "The transcript was admitted for demonstrative purposes only. It is a tool to help you in going through the video. You are not going to be able to just read [the transcript] and think that is the evidence. It's got to be what you can discern from that videotape." Tr. at 53-54. The jury found Smith guilty of one count of child molesting, a Class C felony. He now appeals. DISCUSSION AND DECISION Smith contends that the trial court abused its discretion in admitting J.S.'s videotaped statement. Specifically, he argues that the videotaped message was not sufficiently reliable under Indiana's Protected Person Act (Ind. Code

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