M.M., Appellant-Defendant v. STATE OF INDIANA (2024)

MEMORANDUM DECISION

GARRARD, J.

M.M. (M.M.) was convicted by a jury of two counts of child molestation. IC 35-42-4-3(a) and IC 35-42-4-3(b). The victim was M.M.’s four year old daughter, S.M. He was sentenced to 10 years in prison on the class B felony and five years on the class C felony. The trial court ordered the sentences to run concurrently.

On December 12, 1989, the trial court videotaped S.M.'s testimony pursuant to IC 35-37-4-S(c) which provides that “on the motion of the prosecuting attorney, the court may order that the testimony of a child be videotaped for use at trial.” Pursuant to IC 35-37-4-8(f)(7), M.M. was not allowed in the room while S.M.'s testimony was being videotaped. Instead, M.M. was placed in another room where he was able to observe the proceedings through a one-way window and communicate with his attorneys through electronic communication devices.

M.M. contends that IC 35-37-4-8 is unconstitutional and violated his right to confront the witnesses against him as guaranteed by Article I, Sl3 of the Indiana Constitution. In 1ight of the recent Indiana Supreme Court decision in Brady v. State (#71S03-9106-CR-498, filed June 28, 1991, Krahulik, J. and Givan, J. dissenting), we reverse M.M.’s conviction for child molestation and remand for a new trial.

In Brady, our supreme court found that IC 35-37-4-S(c) and (f)(7), subsections which the trial judge adhered to in this case, violated Article I, Sl3 of the Indiana Constitution. Our supreme court held that unlike the federal confrontation right, Indiana's confrontation right includes the right of the accused to be visible to the witness while the witness testifies although the testimony need not be given in the physical presence of the accused. Brady, supra. Subsections (c) and (f)(7), which specify that a child who is being videotaped shall not be able to observe or hear the defendant (unless the defendant opts to proceed without counsel), infringe upon the defendant's right to confront the witnesses against him face to face as they give their trial testimony. Brady, supra. We cannot find the admission of this evidence was harmless as the videotape contained numerous statements incriminating M.M. Brewster v. State (1983), Ind., 450 N.E.2d 507; Casada v. State (1989), Ind. App., 544 N.E.2d 189.

Furthermore, we find that this cause can be remanded for retrial without offending the protections afforded by the Double Jeopardy Clause. “When we reverse a defendant's conviction for “trial error” and the evidence offered by the State and admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict, no double jeopardy question is presented on a retrial.” Brady, supra, ____ N.E.2d at ____; Perkins v. State (1989), Ind., 542 N.E.2d 549, 551. The evidence presented at M.M.'s trial was sufficient to support his conviction. S.M.'s mother, a social worker, and a police officer, testified that S.M. informed them that M.M. hurt her; that, coupled with the erroneously admitted videotaped testimony of S.M., constitutes sufficient evidence to support M.M.’s conviction.

For the above-stated reasons, the judgment of the trial court is reversed and this case is remanded for retrial.

HOFFMAN, P.J. and BUCHANAN, J. Concur.