James Kevin Robinson, Sr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Following a jury trial, James Kevin Robinson, Sr. (“Robinson”) was convicted of child molesting as a Level 1 felony ¹ and a Level 4 felony,² resulting in an aggregate sentence of forty years in the Indiana Department of Correction (“the DOC”). Robinson now appeals, claiming the trial court abused its discretion in admitting a recording of a forensic interview with the victim. We affirm.

Facts and Procedural History

[2] On November 23, 2022, the State filed a three-count information against Robinson alleging that, on or about November 9, 2022, he committed Level 1, Level 3, and Level 4 felony child molesting against L.M., a nine-year-old child. Eventually, a jury trial was scheduled for late March 2024. Ahead of trial, the State moved for a pre-trial hearing regarding the admissibility of statements L.M. made “prior to trial to ․ [a] [f]orensic [i]nterviewer, Detective Stevie Simmons” of the Lake County Sheriff's Department Special Victims Unit (“Detective Simmons”). Appellant's App. Vol. 2 p. 99. In lieu of having L.M. testify live at the jury trial in the presence of Robinson, the State sought a determination that it could admit the recorded forensic interview under Indiana Code section 35-37-4-6, which is known as the Protected Person Statute (“PPS”). In a separate motion, the State also requested that L.M. be allowed to testify remotely at the pre-trial hearing pursuant to other provisions of the PPS.

[3] The trial court held a pre-trial hearing on March 20 and 21, with the court first addressing the State's request for L.M. to testify remotely. The court heard testimony from L.M.’s mother (“Mother”), L.M.’s therapist, and a psychiatrist who evaluated L.M., with the witnesses collectively testifying about emotional distress L.M. would likely experience by giving live testimony. As of the pretrial hearing, L.M. was ten years old. The trial court applied the PPS and determined L.M. could testify remotely at the pre-trial hearing. Regarding whether L.M.’s recorded statements were admissible under the PPS, the court heard evidence bearing on the reliability of L.M.’s statements. Mother testified about the timeline of L.M.’s initial disclosure, which led to the forensic interview with Detective Simmons about thirteen days later. L.M. testified remotely at the hearing and confirmed the recorded interview contained her truthful statements. On cross-examination, L.M. explained that Robinson “started touching [her] inappropriately” while she was “on the couch[.]” Supp. Tr. Vol. 2 p. 107. A recording of the interview was admitted into evidence.

[4] The State presented testimony from Detective Simmons, who conducted the recorded forensic interview with L.M. Detective Simmons explained that a forensic interview is a “child-led interview” that generally involves open-ended, “non-leading questions.” Id. at 33. Simmons testified that, based on her training and experience, she found L.M. to be “truthful and reliable” in the interview, noting that L.M. “spoke of events as in [sic] a child of her age group would not comprehend unless they may have experienced it.” Id. at 38. As one indicator of reliability, Detective Simmons pointed to L.M.’s use of age-appropriate language. She noted that, when L.M. described what happened, L.M. did not use the words “penis” or “vagina”—either because she did not know those words or did not use them—which was “appropriate for children within that age frame [sic].” Id. at 40. Detective Simmons added that L.M. spoke of the events “as if she had experienced them,” but her limited, age-appropriate vocabulary prompted the use of anatomically correct dolls to understand that L.M. was referring to events involving a penis and a vagina. Id.

[5] The State argued there were sufficient indications of reliability to support admitting the recorded interview at trial under the PPS, in lieu of presenting L.M.’s live testimony. Robinson disagreed, claiming the State failed to present sufficient indications of reliability to support admission under the statute. The court took the matter under advisement and ruled in favor of the State, finding:

That [L.M.] is a protected person. That [L.M.] testified via [video] and was subject to cross examination. That the time, content, and circumstances of the statements or videotape provided sufficient indications of reliability. That [L.M.] would suffer serious emotional distress such that they may not reasonably communicate if they were to testify in the physical presence of [Robinson]. This finding is supported by testimony at the hearing. The State's motion is granted.

Appellant's App. Vol. 2 p. 119.

[6] A jury trial commenced on March 25, 2024. The first witness was Officer Xavier Reillo of the Hammond Police Department (“Officer Reillo”). Officer Reillo testified that he responded to St. Margaret's Hospital on the evening of November 10, 2022, following a report that a child had been molested. When Officer Reillo arrived, he spoke with L.M. and Mother “[t]o get statements from them for [his] report and get accurate details.” Tr. Vol. 2 p. 234. With no objection from Robinson, the State elicited testimony that Officer Reillo was present while Mother asked L.M. questions about the molestation. Officer Reillo testified that he observed L.M. “[n]odding her head, yes[,]” when asked if Robinson had “put his fingers inside of her vagina[.]” Id. at 234–35. Officer Reillo also testified that L.M. “[n]odded her head, yes[,]” when asked if Robinson “put his penis inside of her vagina[.]” Id. at 235. On cross-examination, Robinson questioned Officer Reillo about the way Mother questioned L.M., suggesting that Mother led L.M.’s responses. Robinson also introduced footage from Officer Reillo's body camera, which captured the questioning of L.M. The footage was admitted as Defendant's Exhibit 1.

[7] Mother testified about the events of November 9, 2022, when Robinson—who had a child with Mother's sister—visited the Hammond home Mother shared with L.M. That evening, Robinson came to the home with his adult daughter, Andrea, and her toddler-age son. Robinson, Andrea, and the children went out to run errands. When the group returned, Robinson was “very persistent” in suggesting that Mother and Andrea go out for drinks together, with Robinson “offer[ing] to pay for [their] drinks.” Tr. Vol. 3 p. 33. The women agreed to go out, leaving the children with Robinson. The next day, November 10, 2022, L.M. went to school. When L.M. came home, she told Mother that Robinson had molested her. Mother then called Robinson to ask whether “he d[id] that” to L.M. Id. at 41. When the State asked Mother what Robinson said in response, Mother said: “He told me ․ if he touched her in any type of way[—]because they was [sic] playing[—]that he apologize [sic].” Id. Mother testified that she then took L.M. to the hospital, where the two of them met with Officer Reillo.

[8] Mother testified about seeing changes in L.M. after the evening with Robinson. Whereas L.M. used to get As and Bs in school, she was now getting Ds and Fs. Her behavior had also changed. L.M. was “[s]uicidal” and “mean,” acting “disrespectful towards [Mother],” and at times “violent.” Id. at 38. Mother explained that L.M. had been participating in therapy, and when L.M. had to talk about the sexual abuse, L.M. would cry and “isolate herself[.]” Id. at 39. L.M.’s therapist gave a similar account, testifying that L.M. “spoke about being sad” and said she felt “overwhelmed because she d[id] not want to have to talk about what happened with her[.]” Id. at 74. L.M. said “she was traumatized.” Id. The therapist explained it was common for a child who experienced trauma to not want to talk about it “[b]ecause the fear, the sadness[,] and the thought process is overwhelming,” which can lead the child to shut down. Id. at 75. The therapist testified that, within the last week, L.M. had been experiencing suicidal ideations and was currently in a psychiatric hospital. This was the second time L.M. had been hospitalized since the evening with Robinson.

[9] The State also presented testimony from Detective Simmons, who testified about the forensic interview process and her interview with L.M. Without objection from Robinson, Detective Simmons testified that, at the interview on November 22, 2022, L.M. repeatedly pointed to her vagina. The State moved to admit the recorded forensic interview, and Robinson objected “for a variety of reasons,” among them, that the evidence was too unreliable to be admitted. Tr. Vol. 3 pp. 108–10. Robinson referred to the “13-day delay between the alleged incident and the child's videotape[d] interview” and asserted there was “a significant opportunity for coaching.” Id. at 108. Robinson specifically referred to the bodycam footage, which he claimed demonstrated that Mother was “leading [L.M.] to agree with [Mother's] statements.” Id. The trial court said it was viewing Robinson's objection “as a request for reconsideration of the protected person decision,” and the court determined that its prior ruling “w[ould] stand.” Id. at 111. The court then referred to provisions of the PPS requiring a limiting instruction “with regard to the statement presented,” with the court indicating that it would instruct the jury as required. Id. The forensic interview was admitted as State's Exhibit 13. After this exhibit was admitted, but before it was published, Detective Simmons testified—without objection—that, during the interview, L.M. referred to Robinson's hands, “her vagina,” and the “[m]ale penis” when describing what happened. Id. at 115. In response to a jury question, Detective Simmons testified—again without objection—that L.M. indicated that Robinson's penis had been “inside” her vagina. Id. at 120.

[10] The State later moved to publish State's Exhibit 13, the recording of the forensic interview, at which point the trial court gave a limiting instruction that referred to the PPS. See id. at 138–39. In the video, L.M. described how, after Mother and Andrea left, Robinson approached her while she was watching TV in the living room. L.M. said Robinson touched inside her vagina with his hands and his penis. Later, the State presented DNA evidence indicating that Robinson's DNA was present on the “the inside of the crotch area” of the underwear L.M. wore on the evening of the abuse. Id. at 157. Specifically, the testing reflected that the DNA profile found on L.M.’s underwear was “5,659 times more likely if it originated from ․ Robinson or any of his male paternal relatives, other than originating from an unknown unrelated male individual.” Id. at 173.

[11] After the State presented its case-in-chief, Robinson presented several witnesses and eventually testified in his defense. Robinson admitted to being alone with the children. Robinson said he played and roughhoused with the children, but he denied molesting L.M. Robinson recalled touching articles of clothing at L.M.’s residence when he moved clothing off the toilet lid to use the restroom.

[12] The jury found Robinson guilty of all three counts. The court merged the Level 3 felony into the Level 1 felony, entering judgments of conviction on only the Level 1 felony and Level 4 felony counts. A sentencing hearing was held on May 9, 2024, at which the trial court imposed concurrent sentences of forty years for the Level 1 felony and six years for the Level 4 felony, resulting in an aggregate sentence of forty years executed in the DOC. Robinson now appeals.

[13] Robinson claims the trial court abused its discretion in admitting L.M.’s recorded forensic interview under the PPS because there were insufficient indications of reliability. We review evidentiary rulings for an abuse of the trial court's discretion, giving “great deference” to the trial court. Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). An abuse of discretion occurs if the ruling is clearly against the logic and effect of the facts and circumstances before the court, or if it misinterpreted the law. Id. at 703. As for the PPS, this statute provides for the admission of evidence that is not otherwise admissible under the Indiana Rules of Evidence. See Ind. Code § 35-37-4-6(e). For example, a victim's out-of-court statement is generally inadmissible to prove the truth of the matter asserted. See Ind. Evid. R. 801, 802. However, so long as the requirements of the PPS are satisfied, this type of evidence is admissible. See generally I.C. § 35-37-4-6(e). When it comes to evidentiary decisions under the PPS, our Supreme Court has explained that, because the PPS “impinges upon the ordinary evidentiary regime[,] ․ a trial court's responsibilities thereunder carry with them ․ ‘a special level of judicial responsibility.’ ” Carpenter, 786 N.E.2d at 703 (quoting Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999)).

Discussion and Decision

I. Admission of Evidence

[14] The PPS applies to criminal actions involving enumerated offenses committed against a victim who is defined as “a protected person[.]” I.C. § 35-37-4-6(a), (b). Those offenses include “[s]ex crimes” set forth in Indiana Code chapter 35-42-4. I.C. § 35-37-4-6(a)(1). A “protected person” includes “a child who is less than fourteen (14) years of age at the time of the offense but less than eighteen (18) years of age at the time of trial[.]” I.C. § 35-37-4-6(c)(1). In pertinent part, the PPS provides that, so long as “the requirements of subsection (f) are met,” the following evidence “is admissible in[to] evidence in a criminal action”:

(e) 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 [a sex crime] that was allegedly committed against the person; and

(3) is not otherwise admissible in evidence;

I.C. § 35-37-4-6(e). Section (f) sets forth several requirements for admissibility under the PPS, including notice to the defendant and a hearing outside the presence of the jury. I.C. § 35-37-4-6(f), (h). Section (f) adds that, for the evidence to be admissible, the trial court must find that “the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.” I.C. § 35-37-4-6(f)(1). If the protected person will not be testifying at the trial, the evidence is admissible only if the court finds the protected person is “unavailable as a witness” at trial for one of the following reasons:

(i) From the testimony of a provider, 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.

I.C. § 35-37-4-6(f)(2)(B). Furthermore, if the trial court finds that the protected person is unavailable to testify at trial, “a statement or videotape may be admitted in evidence under [the PPS] only if the protected person was available for cross-examination” either (1) at the hearing regarding admissibility under the PPS or (2) “when the statement or videotape was made.” I.C. § 35-37-4-6(g). Finally, if the trial court admits evidence under the PPS, the court must give the jury the limiting instruction specified in the PPS. I.C. § 35-37-4-6(i).

[15] Here, Robinson objected to the admission of the interview during trial. The trial court characterized this objection as “a request for reconsideration of the protected person decision” and indicated that its prior ruling “w[ould] stand.” Tr. Vol. 3 p. 111. By that point, the trial record contained additional evidence bearing on the reliability of L.M.’s statements in the recorded forensic interview with Detective Simmons, including body camera footage documenting L.M.’s disclosure at the hospital the day after the sexual abuse. Defense Ex. 1. Where, as here, there was a pre-trial hearing regarding the admissibility of evidence, but the defendant is appealing following a completed trial, we do not limit our analysis to the limited record at that pre-trial hearing; rather, we instead evaluate the evidentiary ruling based on all evidence before the trial court. See, e.g., Cobb v. State, 222 N.E.3d 373, 382, 385 (Ind. Ct. App. 2023), trans. denied.

[16] Our Supreme Court has directed trial courts to exercise “special care” when assessing reliability under the PPS because that reliability determination serves as “the sole basis for finding the trustworthiness that permits introduction of otherwise inadmissible hearsay.” Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997). Several factors guide this analysis, including “the time and circumstances of the statement, whether there was significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, use of age appropriate terminology, and spontaneity and repetition.” Id. The trial court may also consider other pertinent factors that emerge in the case at hand. Id.

[17] Robinson advances two primary challenges to the trial court's reliability determination. First, he contends reliability was undermined because of the two-week delay between L.M.’s initial disclosure and her forensic interview with Detective Simmons, particularly given that L.M. underwent a physical examination during this period. Second, Robinson points to the bodycam footage capturing L.M.’s disclosure at the hospital, arguing that the footage established that L.M. was subjected to leading questions, casting doubt on the reliability of her subsequent forensic interview. See Appellant's Br. pp. 10–12.

[18] In addressing the duration of time between L.M.’s initial disclosure and forensic interview, Robinson relies heavily on Pierce, where our Supreme Court noted that even a delay of “several hours” could raise reliability concerns. 677 N.E.2d at 45 (noting this “passage of time tend[ed] to diminish spontaneity and increase the likelihood of suggestion”). Robinson also points out that, in Pierce, our Supreme Court said that “[l]engthy and stressful interviews or examinations preceding the statement may cast doubt on the reliability of the statement or videotape sufficient to preclude its admission.” Id. at 44. Pierce specifically involved circumstances where the child had “a potentially disorienting physical examination at a doctor's office,” with the Court noting that the child's mother also “suggested several answers to [the child] during the interview and asked leading questions.” Id. at 45. We find Pierce distinguishable for several reasons.

[19] As an initial matter, in Pierce, the foregoing statements appeared in dicta, as the Court ultimately resolved the PPS issue on harmless error grounds without deciding whether the trial court erred in admitting the challenged evidence. See id. at 41 (“We find no reversible error but accept the invitation to give guidance to trial courts as to procedures to be followed under the [PPS].”) More significantly, the instant record contains indications of reliability despite the passage of time involved. The forensic interview with L.M. occurred on the first available date at the Special Victims Unit's interview center. Moreover, unlike in Pierce, L.M.’s video statement was admitted under the PPS after the forensic interviewer testified, without objection, about some of the child-victim's statements in the interview; here, Detective Simmons testified that L.M. “kept referring” to her vagina when telling Detective Simmons what happened. Tr. Vol. 3 p. 106. Furthermore, L.M.’s statements made the day after the molestation and the day of L.M.’s disclosure to her mother were captured in Officer Reillo's body camera footage, which Robinson himself introduced into evidence. L.M.’s account at the hospital the day after the abuse was consistent with L.M.’s later statements in the challenged recorded forensic interview, specifically demonstrating consistency as to where the sexual abuse occurred and the specific sex acts Robinson committed. Compare Defense Ex. 1 at 10:12–14:07 with State's Ex. 13 at 9:32:00–9:48:15. Moreover, L.M. maintained the same version of events under cross-examination at the PPS hearing.

[20] As to Robinson's contention that reliability was undermined due to the presence of leading questions at the hospital, which could have influenced L.M.’s subsequent interview responses, we note that Detective Simmons provided extensive testimony about her specialized forensic interview training, specifically describing interview protocols designed to elicit narrative responses rather than suggested answers. The challenged recording of the forensic interview displays Detective Simmons's adherence to these interview protocols, reflecting that L.M. provided detailed responses to open-ended questions with terminology appropriate for L.M.’s age. Moreover, to the extent Robinson suggests the delay in obtaining the forensic interview created opportunities for coaching, there was, nevertheless, evidence that, the day after Robinson watched L.M., L.M. came home from school and reported the abuse to Mother. This timeline was generally indicative of spontaneous disclosure rather than coaching, with further support in evidence that, shortly after the disclosure, Mother confronted Robinson by phone and took L.M. to the hospital. This spontaneity finds additional support in evidence of the phone call between Mother and Robinson, where Robinson acknowledged having physical contact with L.M. while characterizing that contact as innocent play.

[21] Based on the record established at the PPS hearing alone, and as further developed at trial, we cannot say the trial court's reliability determination was clearly against the logic and effect of the facts and circumstances. Thus, Robinson has not established error in the admission of evidence under the PPS.

II. Harmless Error

[22] Even if we identified error in the admission of the forensic interview, reversal would not be warranted because any error was harmless. Here, Robinson has not presented a constitutional challenge. Our Supreme Court recently clarified the framework for analyzing non-constitutional error in Hayko v. State: “When an appellate court must determine whether a non-constitutional error is harmless, [Appellate] Rule 66(A)’s ‘probable impact test’ controls.” 211 N.E.3d 483, 492 (Ind. 2023). Under this test, “the party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below.” Id. This analysis requires us to “consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case.” Id. Moreover, as our Supreme Court has explained, “the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.” Id.

[23] In evaluating probable impact, we generally find error harmless where the challenged evidence was merely cumulative of other properly admitted evidence. VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013). Evidence is cumulative when it is “additional evidence that supports a fact established by the existing evidence.” Bunch v. State, 964 N.E.2d 274, 290 (Ind. Ct. App. 2012) (quoting In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007)), trans. denied. To be cumulative, the evidence should be “of the same kind of character.” Id. (quoting In re H.R.M., 864 N.E.2d at 451). “That is, evidence will not be considered cumulative if it tends to prove the same facts, but in a materially different way.” Id. (quoting In re H.R.M., 864 N.E.2d at 451).

[24] Here, by the time the trial court admitted L.M.’s forensic interview, the jury had already heard substantial evidence establishing the same material facts through other sources. Officer Reillo testified without objection that L.M. said Robinson had used both his fingers and his penis to touch inside her vagina. Detective Simmons also testified—again without objection—about L.M.’s repeated references to her vagina. Furthermore, Robinson himself introduced the body camera footage capturing L.M.’s disclosure at the hospital, where she described the molestation. On appeal, Robinson disagrees “that the [forensic] interview was cumulative of the other hearsay evidence introduced through officers, as well as the ․ bodycam footage.” Reply Br. p. 6. He claims the evidence was not cumulative because the recording consisted of a “lengthy recorded statement,” id. at 7, whereas the Officer Reillo's testimony about what L.M. said consisted of “a few sentences of [his] testimony,” id. at 6. Robinson also argues that finding the evidence cumulative in this scenario “strips the jury of its ability to assess a witness’[s] credibility, and instead tells the jury they must rely on an officer's own assessment of that credibility.” Id. at 7. We note, however, that whether evidence is cumulative does not turn on comparative length, but on substantive overlap. See Bunch, 964 N.E.2d at 290. In any case, we acknowledge the point that, even when there is a substantive overlap, video evidence capturing a person's statements in a forensic interview may carry greater weight than evidence about what that person said on other occasions, including evidence—video or otherwise—regarding statements the person made in a different context where there were leading questions involved. However, we conclude in this instance that the challenged evidence was cumulative of evidence admitted without objection or otherwise introduced by Robinson.

[25] Beyond the cumulative nature of L.M.’s statements, we note that the State also presented corroborating physical evidence. That is, DNA testing established that genetic material on L.M.’s underwear was 5,659 times more likely to have originated from Robinson or his male paternal relatives than from an unrelated male. Although Robinson offered an innocent explanation for this evidence—claiming he moved L.M.’s clothes from a toilet lid—the jury was free to reject this account. In light of this DNA evidence and the multiple properly admitted accounts of L.M.’s disclosure, we conclude any error in the admission of L.M.’s recorded forensic interview with Detective Simmons had a sufficiently minor impact on the jury so as to constitute harmless error under the circumstances.

Conclusion

[26] The trial court did not abuse its discretion in determining that the recorded forensic interview was admissible under the PPS, and even if Robinson had identified error in the admission of the recording, any error was harmless.

[27] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a)(1).

2.   I.C. § 35-42-4-3(b).

Foley, Judge.

Judges Bailey and Bradford concur. Bailey, J. and Bradford, J., concur.