Joshua E. Hoover, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Joshua E. Hoover appeals his conviction for Level 4 felony child molesting, arguing that the trial court erred in admitting and excluding certain testimony. Finding no error, we affirm.

Facts and Procedural History

[2] The evidence most favorable to the conviction is as follows. In the summer of 2019, Hoover, then 26, lived at his parents’ house with his two brothers and his younger sister, S.H. One night, S.H.’s best friend, 10-year-old R.F., and R.F.’s younger sister, A.F., were at the house for a sleepover. While the three girls were in the living room watching a movie, S.H. and A.F. fell asleep on the couch. As R.F., who was lying on the floor, continued watching the movie, Hoover came into the room and lay down next to her. First, he held R.F.’s hand, and after a few minutes, “[h]e started touching [her] inappropriately.” Tr. Vol. 2 p. 189. Hoover “touched [her] vagina with his hand” over her pajama pants and “made [her] put [her] hand on top of his” while he was touching her. Id. at 190, 191. Then, he “made [her] hold his penis with [her] hand” over his clothes, and his penis was “[h]ard.” Id. at 192. After that, Hoover “asked [R.F.] if [she] could keep a secret” and kissed her on the lips. Id. R.F. went to the bathroom to get away from Hoover, and when she came out of the bathroom, she saw he'd gone into the kitchen. R.F. went back to the living room and “cried [her]self to sleep.” Id. at 194.

[3] Sometime that June, R.F. told her half-sister, M.F., what happened with Hoover. R.F. didn't tell anybody else at that point and “ask[ed] M.F. to not tell.” Id. at 199. One day in mid-July, R.F. was riding home with Megan Schultz, her father's fiancée. The two were having a “lighthearted conversation,” but when they drove near Hoover's house, R.F. “got quiet and all the sudden” was “[v]ery sad.” Id. at 244. R.F. told Schultz what Hoover had done. When they got home, R.F. also told her father, who called the police. Police came to the home that evening, and R.F. gave a statement about the incident with Hoover.

[4] Around two weeks later, R.F. underwent a forensic interview at the Dr. Bill Lewis Center for Children, which is also known as the “CAC.” Tr. Vol. 3 p. 77. Lorrie Freiburger, who works as both a forensic interviewer at the CAC and a detective for the Fort Wayne Police Department, conducted the interview. Detective Freiburger showed R.F. anatomical diagrams of a girl and a boy, and R.F. identified on the diagrams “where [Hoover] touched [her], and where he made [her] touch him.” Tr. Vol. 2 p. 203.

[5] The State charged Hoover with one count of Level 4 felony child molesting. In preparation for trial, Hoover deposed multiple witnesses, including Schultz. Schultz testified in her deposition that she'd been sexually abused as a child. She explained that she'd told R.F. “that [she] had been inappropriately touched,” but she didn't “get into any specific details about what happened.” Ex. Vol. 1 pp. 5, 7. Defense counsel asked Schultz if she'd told this to R.F. before R.F.’s disclosure in the car, and Schultz said she'd “told [R.F.] before in the past, not during that instant or at that moment in time.” Id. at 5. Schultz reiterated that when she was “discussing [her] own abuse” with R.F., it was “not in that same conversation” in the car when R.F. disclosed that Hoover molested her. Id. at 6.

[6] Before trial, the State filed a motion in limine to exclude “[e]vidence of the past sexual conduct of a witness other than the accused.” Appellant's App. Vol. 2 p. 41. In response to the State's motion, Hoover moved under Indiana Evidence Rule 412 “to present evidence of past sexual conduct of a witness other than the accused” in order “to prove a motive to fabricate on the part of [R.F.].” Id. at 48, 49. Specifically, Hoover sought to introduce evidence that (1) Schultz had disclosed to R.F. that she'd been sexually abused in the past and (2) R.F. stated in her forensic interview that “in response to S[c]hultz's story of abuse, R.F. disclosed her own story of abuse to S[c]hultz so ‘[Schultz would] have something similar to me.’ ” Id. at 48.

[7] At a hearing on the parties’ motions, defense counsel claimed that during her forensic interview, R.F. said that Schultz “had told [me] stories about her own abuse, and so ․ I told her she'd have ․ something similar to me.” Tr. Vol. 2 p. 13. Defense counsel surmised, “So, it's almost as if, uh, R.F. is – is saying that there was some motivation to disclose, and to have something in common with” Schultz. Id. In response, the State offered Schultz's deposition as an exhibit and explained that “Schultz was very clear that the discussion of her own sexual abuse did not occur in recent time” to R.F.’s disclosure that Hoover molested her, so there was “no nexus” between the disclosures. Id. at 14. Following the hearing, the trial court denied Hoover's motion.

[8] A jury trial was held in October 2021. R.F., then 13, testified as detailed above. On cross-examination, Hoover confronted R.F. with inconsistencies between her trial testimony and her prior statements to police, during her forensic interview, and in her deposition. For example, R.F. testified that Hoover was touching her vagina for “[a]bout five (5) minutes,” but she said in her deposition that it was “[a]round ten (10), fifteen (15), twenty (20) minutes.” Id. at 215, 216. Additionally, Hoover made an offer of proof regarding the excluded evidence of Schultz's disclosure to R.F. that she'd been sexually abused in the past. The offer of proof consisted of the following colloquy:

Q You testified, uh, that you told Megan Schultz about [Hoover] and that situation while you were in the car with her, is that correct?

A Correct.

Q And prior to, uh, that car ride, in the past Megan had told you that she was the victim of some sexual abuse, is that correct?

A Correct.

Q Okay, and when you told Megan, you told her what you told her, um, so that you would have something in common, is that correct?

A She told me what happened to her after I told her about mine.

Q Did she tell you also about abuse before that car ride?

․

A She told me abuse from her dad, but ․ not sexual abuse.

Q Not sexual. Prior to that car ride, Megan – Megan Schultz never told you that she had been inappropriately touched, and because of it would burn herself on her arms?

A She told me that after.

Q Afterwards?

A Yes.

Q And, R.F., is part of the reason that you told the story of your own – of you being abused to Megan Schultz, is so that you ․ would have something in common?

A That's not why.

Q Okay. When you gave your CAC interview with Lorrie Freiburger, do you remember saying that I told her so that she would have something similar to me?

A No.

Id. at 224-25. After the offer of proof, Hoover again sought permission to “discuss the fact” that Schultz disclosed “that she was abused to R.F. prior to R.F.’s disclosure” in order to show “a motive to fabricate.” Id. at 225-26. The State opposed the presentation of such evidence and noted, “I think there's a misunderstanding about the CAC. We have notes that indicate, um, that R.F. said during her CAC, [‘]after I told her about my situation she told me about hers. Me and her are kind of similar.[’]” Id. at 226. The trial court upheld its prior ruling excluding the evidence.

[9] Detective Freiburger testified that she'd worked as a forensic interviewer at the CAC for 11 years. During that time, she'd conducted 1,344 interviews of children and completed monthly trainings, which were based on a nationally accredited protocol and covered topics such as child development and the child-sexual-abuse disclosure process. Detective Freiburger explained that children usually can't give exact dates or times of when something happened. The State then asked whether “kids understand time in the sense of they can tell you how long something took in minutes, or hours.” Tr. Vol. 3 p. 91. Hoover objected, arguing that Detective Freiburger was “speaking in generalities about ․ whether or not a child witness can interpret time” and that “there has been no foundational evidence that she [has] any idea of what R.F.’s perception of time would be.” Id. The State responded that Detective Freiburger was “sharing her generalized knowledge” with the jurors about “something that she's aware of that they are not.” Id. at 92. The court overruled the objection but suggested that the State “go back and do foundation as far as how she knows this about time, whether it's training, education.” Id.

[10] Detective Freiburger testified that she'd attended over 80 training seminars during her time as a forensic interviewer. She noted that most of the seminars included some kind of training on child development, which helps with building rapport and understanding how to communicate with the child being interviewed. Detective Freiburger explained that children normally don't “start really understanding time until they're in a school setting where they're changing classes on a regular basis,” which is usually around age 13. Id. at 97. She also testified that, based on both her training and her experience from past forensic interviews, children are “very rarely” able to “give a specific number of minutes, or hours” to describe “how long something happened.” Id. at 98.

[11] The jury found Hoover guilty of Level 4 felony child molesting. The trial court sentenced him to 10 years, with 2 years suspended to probation.

[12] Hoover now appeals.¹

Discussion and Decision

[13] Hoover contends that the trial court erred in admitting and excluding certain testimony. Generally, trial courts have broad discretion in ruling on the admissibility of evidence, and we review only for an abuse of that discretion. Chambless v. State, 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id. In reviewing rulings on the admissibility of evidence, we do not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court's ruling. Scanland v. State, 139 N.E.3d 237, 242 (Ind. Ct. App. 2019).

I. The trial court did not abuse its discretion in excluding evidence of Schultz disclosing her past sexual abuse to R.F.

[14] Hoover first argues that the trial court abused its discretion by excluding evidence that Schultz told R.F. she'd been sexually abused as a child. Generally, the admission of evidence relating to a victim or witness's past sexual conduct is governed by Indiana Evidence Rule 412. Candler v. State, 837 N.E.2d 1100, 1103 (Ind. Ct. App. 2005), reh'g denied. In proceedings involving alleged sexual misconduct, Rule 412 prohibits use of the following evidence (unless one of the enumerated exceptions is satisfied): (1) evidence offered to prove that a victim or witness engaged in other sexual behavior and (2) evidence offered to prove a victim's or witness's sexual predisposition. The exceptions include, as relevant here, “evidence whose exclusion would violate the defendant's constitutional rights.” Ind. Evidence Rule 412(b)(1)(C).

[15] Hoover claims that the excluded evidence of Schultz disclosing her past sexual abuse to R.F. is not the type of evidence prohibited by Rule 412 because he offered it as evidence of the circumstances surrounding R.F.’s disclosure to Schultz, not to prove that Schultz engaged in other sexual behavior. In the alternative, he argues that the evidence falls within the exception in Rule 412(b)(1)(C) because its exclusion deprived him of his right to present a complete defense. We need not decide whether this evidence was prohibited by Rule 412 because either way, it was inadmissible under Evidence Rule 403. See Williams v. State, 681 N.E.2d 195, 200-01 (Ind. 1997) (“[E]ven when evidence does fall within one of Rule 412’s exceptions and is admissible, it is still subject to Evidence Rules 401 and 403.”). Under Rule 403, “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” “Unfair prejudice looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis.” Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quotation omitted).

[16] Hoover claims that the probative value of the excluded evidence is “very high” because it “provides an explanation for why R.F. may have fabricated her claim that she was abused.” Appellant's Br. p. 20. But this argument is rooted in a mischaracterization of what the evidence, if allowed, would have shown. Hoover repeatedly describes Schultz telling R.F. about her own sexual abuse “immediately prior to” or “just before” R.F. disclosed that Hoover molested her, id. at 19, 20, but this version of events is not supported by the record. During the offer of proof at trial, R.F. testified that Schultz had told her “in the past” that she'd been a victim of abuse, but “not sexual abuse.” R.F. explained, “She told me what happened to her after I told her about mine.” Admittedly, Schultz testified in her deposition that she'd told R.F. “that [she] had been inappropriately touched” before R.F. disclosed to her. But even if Schultz told R.F. about her own sexual abuse before R.F.’s disclosure, it certainly wasn't “immediately prior to” or “just before”—Schultz made clear that she told R.F. this “in the past,” “not in that same conversation” or “at that moment in time” in the car when R.F. disclosed that Hoover molested her.

[17] In addition to refuting Hoover's portrayal of the timeline, the facts also undermine his contention that Schultz's disclosure provided R.F. with a motive to fabricate the molestation. Hoover claims that R.F. “admitted in the forensic interview that she only disclosed to [Schultz] so that they would have something in common.” Id. at 20. But R.F.’s forensic interview wasn't admitted into evidence, so if R.F. made such a comment, it isn't in the record. The only references to this alleged comment are defense counsel's mentions of it at the motions hearing and during the offer of proof at trial. Notably, R.F. explicitly denied during the offer of proof that “part of the reason that [she] told the story of ․ being abused” to Schultz was so that she and Schultz “would have something in common.” And the State explained that there may have been a “misunderstanding” about what R.F. said during the interview—it “ha[d] notes that indicate” that R.F. said, “[A]fter I told her about my situation she told me about hers. Me and her are kind of similar.”

[18] Further—and perhaps most critically—a month before R.F. disclosed to Schultz that Hoover molested her, she disclosed to M.F. Hoover doesn't address this fact, but it undercuts his argument that “R.F. may have fabricated her story to have a closer relationship” with Schultz because R.F. had already told the story to someone else. Id. at 21. Thus, any probative value of evidence relating to Schultz's disclosure of her own abuse to R.F. is minimal. And given the conflicts in the timelines of Schultz's and R.F.’s disclosures to each other and the misunderstanding about what R.F. said during her forensic interview, the probative value is substantially outweighed by the risk of unfair prejudice or misleading the jury. The trial court did not abuse its discretion in excluding the evidence of Schultz's disclosure of her past sexual abuse.

II. The trial court did not abuse its discretion in allowing Detective Freiburger to testify about children's perceptions of time

[19] Hoover also argues that the trial court abused its discretion in admitting Detective Freiburger's testimony about children's inability to recall exact times, testimony he claims could be offered only by a qualified expert.² But “qualification under Rule 702 (and hence designation as an expert) is only required if the witness's opinion is based on information received from others pursuant to Indiana Evidence Rule 703 or on a hypothetical question.” Jones v. State, 957 N.E.2d 1033, 1040 (Ind. Ct. App. 2011) (quotation omitted). By contrast, “a witness not testifying as an expert” may testify “in the form of an opinion ․ that is: (a) rationally based on the witness's perception; and (b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue.” Evid. R. 701. Rule 701 encompasses opinion testimony of both ordinary lay witnesses and skilled witnesses. Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). “A skilled witness is a person with a degree of knowledge short of that sufficient to be declared an expert under Ind. Evid. Rule 702, but somewhat beyond that possessed by the ordinary jurors.” Jones, 957 N.E.2d at 1040 (quotations omitted).

[20] Hoover doesn't dispute that Detective Freiburger possessed the degree of knowledge required to testify as a skilled witness; rather, he argues that her testimony exceeded the scope of opinion testimony permitted by Rule 701. We disagree. “Skilled witnesses not only can testify about their observations, they can also testify to opinions or inferences that are based solely on facts within their own personal knowledge.” Id. at 1041. This is exactly what happened here. Detective Freiburger had worked as a forensic interviewer for 11 years and conducted 1,344 interviews of children. She also attended monthly trainings, including over 80 seminars, on child development and the child-sexual-abuse disclosure process. Detective Freiburger's testimony that children don't “start really understanding time until” around age 13 was based on what she learned in these trainings and her past experiences interviewing children. See Tr. Vol. 3 p. 93 (“So, that's usually the point that I start seeing that.”). Likewise, her opinion that “kids very rarely can provide for you how long something happened” was “based on all that training, and [her] experience with those children.” Id. at 98. Because Detective Freiburger's testimony was based on facts within her personal knowledge, she properly testified as a skilled witness. The trial court did not abuse its discretion in admitting Detective Freiburger's testimony about children's perceptions of time.

[21] Affirmed.

FOOTNOTES

1.   In November 2025, the trial court granted Hoover leave to file a belated notice of appeal under Indiana Post-Conviction Rule 2.

2.   In his reply brief, Hoover also argues that Detective Freiburger's testimony “amounted to improper vouching prohibited by Rule 704.” Appellant's Reply Br. p. 4. But Hoover didn't raise this argument in his opening brief (nor could he have, as he didn't object on vouching grounds at trial), so it is waived. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011) (citing Appellate Rule 46(C) and explaining that “parties may not raise an issue ․ for the first time in a reply brief”).

Vaidik, Judge.

Bailey, J., and Scheele, J., concur.