JR v. STATE OF INDIANA (2000)

MEMORANDUM DECISION – NOT FOR PUBLICATION

STATEMENT OF THE CASE

J.L., Jr., appeals his conviction in a bench trial of battery as a class D felony.

We affirm.

ISSUES

I. Whether the trial court erred in admitting into evidence the child victim's statements to her mother and a police officer.

II. Whether there is sufficient evidence to support J.L's conviction.

FACTS

During the summer of 1998, twenty-one year-old J.L. and his girlfriend lived at Julie Moore's house with Moore, Moore's fiancé, and Moore's three children. At some point between July 4, 1998, and August 4, 1998, J.L. touched the vagina of Moore's five year-old daughter K. while the child was watching cartoons. K. told J.L. to stop touching her because it hurt.

Thereafter, J.L. moved out of Moore's house, and K. told her babysitter and her mother what J.L. had done. Moore immediately called her welfare caseworker, and the case was eventually assigned to Indianapolis Police Department Detective Paul Jones. Detective Jones interviewed K. on December 2, 1998. K. also told the detective what J.L. had done.

The State charged J.L. with child molesting as a class C felony. Before trial, the trial court held a hearing pursuant to Ind. Code § 35-37-4-6, the “protected person” statute, to determine the admissibility at trial of K.'s statements to her mother and the detective. At the hearing, K.'s mother testified that shortly after J.L. moved out of her home during the summer of 1998, K. approached her when she returned home from work and told her that “little J.L.”¹ had touched her. Moore did not coach K. or ask her specific questions. Rather, Moore asked K. where J.L. had touched her. K. responded that J.L. “went underneath her underpants and touched her down there, “ pointing to her “private area.” (R. 75). Detective Jones, who has been trained in the proper technique of interviewing children, testified that he interviewed K. on December 2, 1998. K. told the detective that “J.L. had put his hands inside her panties and touched her in what she demonstrated was her private part or genital area.” (R. 82).

At trial, the court admitted K.'s statements to her mother and the detective into evidence over J.L.'s objection. Also at trial, K. testified that J.L. touched her “privates” while she was watching cartoons. (R. 102). K. explained that she uses her privates to go to the bathroom. J.L. refused to stop touching her when she asked him to do so. K. further testified that J.L. hurt her when he touched her. The trial court convicted J.L. of the lesser offense of battery as a class D felony.

DECISION

I. Admissibility of K.'s Statements

We review admissibility determinations by the trial court for an abuse of discretion. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh'g denied, trans. denied. Reversal is appropriate only where the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id.

J.L. argues that the trial court erred in admitting into evidence K.'s statements to her mother and Detective Jones. We disagree.

Because K.'s statements were made outside the courtroom and were offered to prove that J.L. touched K.'s vagina, such statements are hearsay, which is generally inadmissible at trial. However, our legislature has created special procedures for introducing evidence that is “'not otherwise admissible'” in cases involving crimes against children. Pierce v. State, 677 N.E.2d 39, 43 (Ind. 1997)(quoting Ind. Code § 35-37-4-6). To admit evidence pursuant to this statute, the court must conduct a hearing outside the jury's presence. Id. Further, the statement must be made by a person who, at the time of trial, is a “'protected person'” - either under the age of fourteen or mentally disabled. Id. In addition, the “protected person” must either testify or be found by the court to be unavailable as a witness, and the statement must concern an act that is a material element of the crime. Id. at 43-44. Lastly, the time, content, and circumstances of the statement must be found to provide sufficient indications of reliability. Id. at 44.

Here, J.L.'s sole argument is that K.'s statements “did not exhibit sufficient indications of reliability so as to satisfy the 'protected person' statute.” J.L.'s Brief, p. 5. Our supreme court has stated that considerations in making the reliability determination under the statute include: 1) the time and circumstances of the statement, 2) whether there was sufficient opportunity for coaching, 3) the nature of the questioning, 4) whether there was a motive to fabricate, 5) use of age appropriate terminology, and 6) spontaneity and repetition. Pierce, 677 N.E.2d at 44.

Lengthy and stressful interviews or examinations preceding the statement may cast doubt on its reliability sufficient to preclude its admission. Id. In addition, our supreme court has explained that there are “undoubtedly many other factors in individual cases.” Id. In addition, corroboration should not be considered in evaluating the reliability of the statement. Id.

We now apply these factors to the facts of the case before us. First, as to K.'s statement to her mother, we observe that after J.L. moved out of the house, K. approached her mother and told her that J.L. touched her vagina. Moore specifically testified that she did not coach K. or ask her specific questions. Rather, Moore merely asked K. where J.L. touched her. K. responded that J.L. “went underneath her underpants and touched her down there,” pointing to her “private area.” (R. 75). This is an age appropriate explanation, and K.'s statement was spontaneous. We also note that the record reveals no motive for K. to fabricate her story. The trial court did not abuse its discretion in admitting K.'s statement to her mother into evidence.

As to K.'s statement to Detective Jones, we observe that the detective, who has been trained in the proper technique to interview children, did not coach or ask K. specific questions. Rather, like Moore, he merely asked K. what had happened. K. responded that “J.L. had put his hands inside her panties and touched her in what she demonstrated was her private part or genital area.” (R 82). Again, this is an age appropriate explanation. In addition, K. told the detective the same story that she had previously told her mother. The record reveals no motive for K. to fabricate her story, and there is no evidence that the interview was lengthy or stressful. The trial court did not abuse its discretion in admitting into evidence K.'s statement to Detective Jones.

II. Sufficiency of the Evidence

J.L. also argues that there is insufficient evidence to support his conviction of battery as a class D felony. Again, we disagree.

Our standard of review for sufficiency of the evidence is well settled. Neuhoff v. State, 708 N.E.2d 889, 893 (Ind. Ct. App. 1999). We neither reweigh the evidence nor judge the credibility of witnesses. Id. Rather, we examine the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom. Id. If there is sufficient evidence to support the conviction, it will not be set aside. Id.

Ind. Code § 35-42-2-1 provides in pertinent part that a “person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery ․ [T]he offense is ․ a class D felony if it results in bodily injury to ․ a person less than fourteen (14) years of age and is committed by a person of at least eighteen (18) years of age.” Bodily injury is “any impairment of physical condition, including physical pain.” Ind. Code § 35-41-1-4.

J.L. first contends that there is “nothing on the record to indicate that the alleged victim was touched in a 'rude, insolent or angry' manner.” J.L.'s Brief, p. 14. Webster's Dictionary defines insolent as “contemptuous or brutal in behavior ․” Webster's Third New International Dictionary (1976). K. testified that J.L. touched her “privates” while she was watching cartoons. (R. 102). She further explained that she uses her privates to go to the bathroom. Clearly it is both contemptuous and brutal for a twenty-one year-old man to touch the “privates” of a five year-old girl while she is watching cartoons.

J.L. also contends that “absolutely no evidence was presented that the 'hurt' felt by [K.] was physical pain and not an emotional or mental 'hurt.'” J.L.'s Brief, p. 16. K. testified that J.L. hurt her when he touched her. The trial court concluded that the “hurt” referred to a physical pain. J.L.'s contention is nothing more than an invitation for us to reweigh the evidence. This we cannot and will not do. See Neuhoff. Further, we agree with the State that the “trial court's conclusion was particularly appropriate considering that a five year-old girl would not be likely to express mental or emotional distress as 'hurting.'” State's Brief, p. 6. We find sufficient evidence to support J.L.'s conviction.

Affirmed.

FOOTNOTES

1.   Little J.L. was K.'s nickname for J.L.

DARDEN, Judge

FRIEDLANDER, J., and KIRSCH, J., concur.