MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 20 2018, 8:59 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Nussbaum, April 20, 2018 Appellant-Defendant, Court of Appeals Case No. 67A05-1704-CR-836 v. Appeal from the Putnam Circuit Court State of Indiana, The Honorable Matthew L. Appellee-Plaintiff. Headley, Judge Trial Court Cause No. 67C01-1506-FA-115
Mathias, Judge.
[1] Following a jury trial in Putnam Circuit Court, Michael Nussbaum
(“Nussbaum”) was convicted of eight counts of Class A felony child molesting
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 1 of 20 and sentenced to an aggregate term of ninety years of incarceration. Nussbaum
appeals and presents three issues, which we restate as follows:
I. Whether the trial court abused its discretion by denying Nussbaum’s motion to dismiss due to the fact that the State either lost or destroyed a video of prior interviews with the victims in which they did not disclose any molestation; II. Whether the trial court abused its discretion when it redacted statements from one of the victim’s recorded cross-examination regarding her exposure to pornographic materials; and III. Whether the trial court abused its discretion by permitting the jury to see and hear the video recordings of the forensic interviews of the victims when only an audio recording of the defense’s cross-examination of the victims was available.
[2] We affirm.
Facts and Procedural History [3] From the spring of 2006 until the summer of 2012, Nussbaum’s wife, Holly, ran
a daycare service at the couple’s home. Among the children who stayed at the
Nussbaum’s daycare were S.P., S.G., and K.C., who were approximately five
and one-half years old, two and one-half years old, and five years old,
respectively, when each girl began to attend the daycare. Nussbaum helped his
wife care for the children.
[4] In 2012, S.P. reported to her mother than she had seen Nussbaum do sexually
inappropriate things with S.G. S.P.’s mother reported this information to the
local office of the Indiana Department of Child Services (“DCS”) and to S.G.’s
father. On June 16, 2012, S.P.’s mother took her to Susie’s Place Child
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 2 of 20 Advocacy Center, where she was forensically interviewed. However, she did
not disclose any sexual abuse during the interview. S.G. was also interviewed at
Susie’s Place on August 18, 2012, but she too did not disclose any abuse and
denied that anything had happened to her. DCS also interviewed Nussbaum,
who denied that he had molested the girls. Accordingly, DCS considered the
allegations unsubstantiated and did not pursue the matter further.
[5] One year later, in August 2013, S.G. told her father that S.P. had told the truth
and that “something had happened.” Tr. Vol. 3, p. 146. S.G.’s father, however,
was unable to glean any details from his daughter. He then took her to his
sister’s house, hopeful that S.G. would be more forthcoming with her aunt.
After talking with S.G., her aunt contacted DCS, who began another
investigation into the allegations of sexual abuse. DCS also contacted S.P.’s
mother to inform her that S.G. stated that S.P. had also been molested.
[6] Both girls were again taken to Susie’s Place for a second round of forensic
interviews. S.G., who was by then nine years old, stated that Nussbaum had,
on multiple occasions, performed anal sex on her and made her perform oral
sex on him. She also stated that S.P. was present during these molestations and
had herself been subject to the abuse. When S.P., who was by then seven years
old, was interviewed, she too stated that Nussbaum had made her perform oral
sex on him and had performed anal sex on her.
[7] In May 2014, K.C. told her mother that Nussbaum had sexually abused her
too. K.C. was also interviewed at Susie’s Place. During the interview, K.C.,
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 3 of 20 who was by then eleven years old, told the interviewer that Nussbaum had
performed oral sex on her.
[8] On June 2, 2015, a grand jury charged Nussbaum in an indictment with eight
counts of Class A felony child molesting. On January 25, 2016, Nussbaum filed
a discovery request seeking copies of the recordings of the forensic interviews of
S.G. and S.P. that took place in 2012, when the girls denied or failed to disclose
any abuse. Nussbaum later filed a motion to compel disclosure of recordings of
the interviews from 2012. The State responded that it was unable to locate the
recordings of the 2012 interviews.
[9] At the hearing on Nussbaum’s motion to compel, the State acknowledged that
S.G. and S.P. were interviewed at Susie’s Place in 2012 and did not disclose
any abuse. Shelly Chadd (“Chadd”), the director of DCS’s Putnam County
office, testified at the hearing that she was aware of S.G. and S.P.’s 2012
interviews and that DCS concluded at that time that the allegations of
molestation by Nussbaum were unsubstantiated. Chadd, however, did not
recall watching the videos and could not remember any details of the
interviews. Chadd explained that, when the interviews had been conducted, the
recordings were given to a law enforcement officer who was present. Trisha
Guinn (“Guinn”), a DCS investigator who also attended the interviews,
testified that the recordings of the 2012 interviews were given to Charlie
Bollinger (“Bollinger”), an investigator who worked for the Putnam County
Prosecutor’s Office in 2012. Guinn could not recall any details of the interviews
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 4 of 20 other than the order in which the girls were interviewed and that S.G. had
denied that any molestation had occurred.
[10] On July 21, 2016, Nussbaum filed a motion to dismiss the first seven of the
eight counts—the counts alleging that Nussbaum had molested S.G. and S.P.—
based upon the State’s failure to preserve the recordings of the 2012 interviews.
The trial court denied Nussbaum’s motion to dismiss on January 18, 2017,
concluding:
The 2012 “lost tapes” are the central issue. A Department of Child Services case manager, Department of Child Services Director, Prosecutor Investigator and Child Advocacy Representative (who conducted the interviews) all testified that no one can find the tapes. All agree that the children did not disclose any abuse by Defendant. In fact, because there was a nondisclosure, the interview ceased, the Department of Child Services unsubstantiated its case[,] and no prosecution resulted. The case was effectively closed.
[The] Court finds that the tapes are potentially useful evidence and not constitutionally material. The Defendant may cross exam[ine] each of the State’s witnesses on their negligence of keeping evidence (and not following established protocol). Each of these witnesses admitted that this loss of evidence is “on them” but no bad faith has been shown. This will clearly go to the credibility of those witnesses and they can be vigorously cross-examined on the issue in front of the jury.
Appellant’s App. Vol. 3, pp. 21–22.
[11] Before the trial court issued its order denying Nussbaum’s motion to dismiss,
the court held a child hearsay hearing regarding the three victims. During the
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 5 of 20 hearing, Nussbaum’s trial counsel cross-examined the children via closed-
circuit television. On cross-examination, S.G. admitted that she had a laptop
computer and that she had used this computer to view online images and videos
of men and women engaged in sexual activities. Thereafter, the State filed a
motion in limine requesting that Nussbaum make no reference to S.G.’s, or any
other witness’s, prior sexual history outside of that allowed by Indiana
Evidence Rule 412. The trial court initially denied the State’s motion in limine,
but later reversed its decision and ordered that evidence regarding S.G.’s
viewing pornography on the internet would not be admissible.
[12] A three-day jury trial commenced on February 20, 2017. During trial, the trial
court admitted into evidence video recordings of the 2013 forensic interviews
with S.G., S.P., and K.G., and the videos were played to the jury. Nussbaum
requested that the jury be permitted to listen to only the audio of the recordings,
because only audio recordings were made of his cross-examination of the
children at the child hearsay hearing. The trial court denied Nussbaum’s
request. Thus, the jury watched video recordings of the forensic interviews but
heard only audio recordings of Nussbaum’s cross-examination of the girls at the
child hearsay hearing.
[13] At the conclusion of the trial, the jury found Nussbaum guilty as charged. At a
sentencing hearing held on March 23, 2017, the trial court sentenced Nussbaum
to the advisory sentence of thirty years on each count. The court ordered that
the sentences on the counts involving each individual victim be served
concurrently, but consecutively to the counts involving the other two victims,
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 6 of 20 for an aggregate sentence of ninety years of incarceration. Nussbaum now
appeals.
I. Motion to Dismiss
[14] Nussbaum first argues that the trial court erred in denying his motion to dismiss
the charges related to S.G. and S.P. due to the failure to preserve the recordings
of the 2012 interviews of these girls. We review a trial court’s ruling on a
motion to dismiss for an abuse of discretion. Filice v. State, 886 N.E.2d 24, 32
(Ind. Ct. App. 2008), trans. denied. A trial court abuses its discretion only when
its decision is clearly against the logic and effect of the facts and circumstances
or when the court has misinterpreted the law. Id.
[15] It is well settled that a criminal defendant has the right to examine physical
evidence in the hands of the State. Roberson v. State, 766 N.E.2d 1185, 1187
(Ind. Ct. App. 2002), trans. denied. The State’s failure to preserve such evidence
may, under certain circumstances, constitute the denial of the due process of
law. Id. To determine whether a failure to preserve evidence deprives the
defendant of due process, we first determine whether the evidence at issue was
“potentially useful evidence” or “materially exculpatory evidence.” Id. (citing
Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied).
[16] If the evidence was only potentially useful, the defendant must establish bad
faith on the part of the State. Albrecht v. State, 737 N.E.2d 719, 724 (Ind. 2000)
(citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). “The United States
Supreme Court has described potentially useful evidence as ‘evidentiary
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 7 of 20 material of which no more can be said than that it could have been subjected to
tests, the results of which might have exonerated the defendant.’” Roberson, 766
N.E.2d at 1188 (quoting Youngblood, 488 U.S. at 57)).
[17] In contrast, materially exculpatory evidence, as the term suggests, is evidence of
an exculpatory nature. And “exculpatory” had been defined as “‘[c]learing or
tending to clear from alleged fault or guilt; excusing.’” Albrecht, 737 N.E.2d at
724 (quoting Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997)).1 To
meet the standard of being “materially exculpatory,” the evidence at issue
“must both possess an exculpatory value that was apparent before the evidence
was destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.” Id. Unlike
merely potentially useful evidence, the State’s good or bad faith in failing to
preserve materially exculpatory evidence is immaterial. Roberson, 766 N.E.2d at
1188 (citing Chissell, 705 N.E.2d at 504).
[18] Here, Nussbaum argues that the lost recordings of the 2012 interviews were
materially exculpatory evidence and not merely potentially useful evidence. We
disagree. The parties agree that, in the 2012 interviews, neither S.G. nor S.P.
disclosed any abuse by Nussbaum. Thus, when DCS declared the initial
allegations against Nussbaum to be unsubstantiated, any potential exculpatory
nature of the recordings was not apparent, as no charges were brought against
1 The Samek court itself quoted this definition from Black’s Law Dictionary. See 688 N.E.2d at 1288 (citing Black’s Law Dictionary 566 (6th ed.1990)).
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 8 of 20 Nussbaum at that time. Moreover, the statements of S.G. and S.P. do not
excuse, clear, tend to clear, or otherwise exonerate Nussbaum from guilt. The
fact that the girls did not disclose any abuse or denied any abuse does not mean
that no abuse occurred. Indeed, it is not uncommon for victims of sexual abuse
to be hesitant to talk about the abuse they have suffered. We instead consider
S.G.’s and S.P.’s statements in the 2012 interviews to simply be evidence that
would impeach the credibility of their later statements that Nussbaum did abuse
them.
[19] Accordingly, we conclude that the recordings of the 2012 interviews were not
materially exculpatory evidence, but only potentially useful evidence. As such,
in order to establish a denial of due process sufficient to support a dismissal of
the charges, Nussbaum must also show that the State destroyed the evidence in
bad faith. In this context, “bad faith” has been defined as being “not simply bad
judgment or negligence, but rather implies the conscious doing of wrong
because of dishonest purpose or moral obliquity.” Samek, 688 N.E.2d at 1289
(quoting Black’s Law Dictionary 139 (6th ed. 1990)).
[20] Here, there is no indication of such moral obliquity or dishonest purpose in the
failure to preserve the recordings.2 This is not to say that we condone the failure
2 Nussbaum notes that the Indiana Archives and Records Administration policy or rule 2008-33 provides in relevant part: Retention & Disposition: TRANSFER to the RECORDS CENTER one (1) year after assignment of unsubstantiated status. DESTROY after an additional twenty-three (23) years in the RECORDS CENTER. TOTAL RETENTION: twenty-four (24) years. Available at: http://www.in.gov/iara/3262.htm. Nussbaum claims that this policy is applicable to DCS and its failure to follow this policy should be considered as per se bad faith. But the authority cited by Nussbaum in
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 9 of 20 of the prosecutor’s office and DCS to preserve the recording. To the contrary, it
reflects poorly on both. But there is simply no indication that either the
prosecutor’s office or DCS acted in bad faith.
[21] We also cannot ignore that the jury was made well aware that S.G. and S.P. did
not disclose any abuse during the 2012 interviews. Nussbaum cross-examined
both S.G. and S.P. regarding their prior statements and also cross-examined
those responsible for the retention of the recordings. Thus, the jury was aware
of the general nature of the content of the lost recordings and the fact that the
State failed to preserve them.
[22] An almost identical situation was before the District Court of Appeals of
Florida in State v. Larrinaga, 569 So.2d 911 (Fla. Dist. Ct. App. 1990). In that
case, a police detective spoke with two children in a videotaped interview, in
which both children denied that the defendant had sexually abused them. The
police therefore closed the investigation and erased the videotape one year later.
Thereafter, the investigation was reopened when the children stated that the
defendant had, in fact, sexually abused them. The trial court granted the
defendant’s motion to dismiss on grounds of the destroyed evidence. On
appeal, however, the Larrinaga court reversed. Id. at 913. The court determined
that the destroyed videotape was only potentially useful to the defendant’s case
support of his argument notes that “a violation of a statute enacted for reasons of safety is negligence per se, or negligence as a matter of law.” N. Indiana Transit, Inc. v. Burk, 228 Ind. 162, 172, 89 N.E.2d 905, 909 (1950). The Archives and Records Administration policy is not a statute enacted for reasons of safety. And even if it were, the failure to follow it would establish at most negligence, not bad faith. See Samek, 688 N.E.2d at 1289 (noting that bad faith must be more than mere bad judgment or negligence).
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 10 of 20 and noted that the trial court had found that the tape was not destroyed in bad
faith. And although the detective could not recall the details of the interview,
the defendant would still be able to present his account of the interview, i.e.,
that the children denied abuse at that time. Id. The court therefore held that the
defendant was not entitled to dismissal of the charges. Id.
[23] The same is true here. There was no finding of bad faith, the evidence on the
tapes was only potentially useful, and Nussbaum was still able to present to the
jury the gist of the information gleaned in the 2012 interviews, i.e., that S.G.
and S.P. failed to disclose any abuse at that time. Accordingly, we conclude
that the trial court did not abuse its discretion when it denied Nussbaum’s
motion to dismiss based upon the State’s failure to preserve the recordings of
the 2012 interviews.
II. Exclusion of Evidence
[24] Nussbaum also claims that the trial court abused its discretion when it excluded
evidence that S.G. had viewed pornography on her computer. Decisions
regarding the admission of evidence are left to the sound discretion of the trial
court. Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied.
On appeal, we review the court’s decision only for an abuse of that discretion.
Id. The trial court abuses its discretion only if its decision regarding the
admission of evidence is clearly against the logic and effect of the facts and
circumstances before it, or if the court has misinterpreted the law. Id.
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 11 of 20 [25] Nussbaum claims that evidence regarding S.G.’s exposure to pornography
“could combat the likely assumption by the jury that she, and the other girls,
would not be able to describe the sex acts that were the basis of the charges
against Nussbaum unless those acts had actually happened.” Appellant’s Br. at
18. Nussbaum argues that “the sexual innocence inference theory made the
testimony from S.G. admissible, and in turn would allow the defense to connect
S.G. to the other girls to demonstrate that they all had been exposed to this
knowledge about sex acts.”3 Id.
[26] The State counters that this evidence is inadmissible under Indiana Evidence
Rule 412, sometimes referred to as the “Rape Shield Rule.” See Oatts v. State,
899 N.E.2d 714, 720 (Ind. Ct. App. 2009) (citing State v. Walton, 715 N.E.2d
824, 826 (Ind. 1999)).4 Evidence Rule 412(a) governs the admissibility of
evidence of past sexual conduct and provides in relevant part:
3 Nussbaum also complains that the State did not make a contemporaneous objection during the child hearsay hearing when he cross-examined S.G. regarding her viewing pornography on her laptop. But the jury was not present during this hearing, and the State sought to exclude S.G.’s testimony on this issue prior to the start of trial. Moreover, during trial, Nussbaum objected to the fact that the portions of his cross- examination regarding S.G.’s having viewed pornography had been excised from the recording of his cross- examination played to the jury. The trial court overruled this objection. Thus, the trial court had an opportunity to make a final ruling on the admissibility of this evidence at the time it was presented to the jury, which is the underlying rationale for the contemporaneous objection requirement. See Clausen v. State, 622 N.E.2d 925, 928–29 (Ind. 1993) (noting that the purpose of the contemporaneous objection requirement is to afford the trial court an opportunity to consider the evidence in the context in which it is being offered and make a final determination on admissibility). 4 Evidence Rule 412 incorporates the basic principles of Indiana Code section 35-37-4-4, the Rape Shield Act. Oatts, 899 N.E.2d at 720 (citing Walton, 715 N.E.2d at 826). To the extent that this statute conflicts with Evidence Rule 412, the evidentiary rule controls. See id. at 720 n.8 (citing Williams v. State, 681 N.E.2d 195, 200 n.6 (Ind. 1997)). Neither party bases their argument on this statute.
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 12 of 20 (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or (2) evidence offered to prove a victim’s or witness’s sexual predisposition.
(b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s or witness’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights.[5]
[27] Here, the evidence at issue consisted of S.G.’s testimony that she had viewed
pornography on her computer. Under the plain language of Evidence Rule
412(a), this evidence was inadmissible because it was offered to prove that S.G.
engaged in sexual behavior (viewing pornography). Nor was it admissible under
5 In addition to these explicit exceptions, one common-law exception survived the 1994 adoption of the Indiana Rules of Evidence, i.e., evidence of a prior accusation of rape is admissible if: (1) the victim has admitted that his or her prior accusation of rape was false; or (2) the victim’s prior accusation is demonstrably false. Oatts, 899 N.E.2d at 721 (citing Walton, 715 N.E.2d at 826–828). This common-law exception is inapplicable in the present case.
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 13 of 20 the first two exceptions provided in Rule 412(b): it was not offered to prove that
someone else was the source of any physical evidence, nor was it offered to
prove consent, which would itself not be relevant in a prosecution for child
molesting.
[28] Still, Evidence Rule 412(b)(1)(C) provides that a court may admit evidence that
would otherwise be excluded under the rule if such exclusion would violate the
defendant’s constitutional rights. Nussbaum argues that the exclusion of the
evidence in question violated his constitutional right to cross-examine witnesses
and present a defense. As this court noted in Oatts, the right to cross
examination is not absolute. 899 N.E.2d at 722 (citing Tague v. Richards, 3 F.3d
1133, 1137 (7th Cir. 1993)). Instead, “the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” Id.
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). And the right to confront
witnesses “‘may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.’” Id. (quoting Chambers v. Mississippi, 410
U.S. 284, 295 (1973)).
[29] There are situations in which application of Evidence Rule 412 might violate a
defendant’s Sixth Amendment rights, e.g. “when the trial court restricts a
defendant from giving his own account of the events at issue,” or when “a
defendant establishes that the victim engaged in a similar pattern of sexual
acts.” Id. The exclusion of the evidence at issue here—that S.G. had viewed
pornography on her computer—did not restrict Nussbaum from giving his own
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 14 of 20 account of the events at issue. To the contrary, he was able to testify to the jury
that he did nothing sexually inappropriate to the girls. Nor did the excluded
evidence tend to show that S.G. had engaged in a similar pattern of sexual acts.
[30] Instead, Nussbaum claims that exclusion of this evidence prevented him from
countering the so-called “sexual innocence inference” theory. This theory is
“‘based on the premise that because most children of tender years are ignorant
of matters relating to sexual conduct, a child complainant’s ability to describe
such conduct may persuade the jury that the charged conduct in fact
occurred.’” Id. at 724 (quoting Grant v. Demskie, 75 F.Supp.2d 201, 213
(S.D.N.Y. 1999), aff’d by 234 F.3d 1262 (2nd Cir. 2000)).6 This theory also
reasons that, “‘[t]o demonstrate that the child had acquired sufficient
knowledge to fabricate a charge against the defendant . . . the court should
allow the defense to offer evidence that the child acquired sexual experience
with someone else before he or she accused the defendant.’” Id.
[31] Nussbaum claims that the jury should have been permitted to hear that S.G.
had viewed on her computer sexual behavior similar to that she accused
Nussbaum of, i.e. oral, vaginal, and anal sex. This, he argues, would dispel any
inference of sexual innocence on the part of S.G.
[32] The weakness with Nussbaum’s argument is that there is no indication as to
precisely when S.G. viewed the pornographic images on her computer. If she
6 The Grant court was in turn quoting the article Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 CATH. U. L. Rev. 709, 806 (1995), by Clifford S. Fishman.
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 15 of 20 had done so before she made her accusations against Nussbaum, then this
evidence might have been relevant to dispel any inference of sexual innocence
on the part of S.G. See Oatts, 899 N.E.2d at 724 (noting that a court should
allow the defense to offer evidence that the child acquired sexual experience
before she accused the defendant) (citing Grant, 75 F.Supp.2d at 213). If,
however, S.G. viewed the images after she made her accusations against
Nussbaum, we fail to see how this could have been used to rebut any inference
of sexual innocence, as by that point, she would have already been subject to
sexual acts. See id.
[33] At trial, Nussbaum noted that there was evidence that S.G. had access to the
laptop when she went to the Nussbaums’ daycare. But this does not establish
that she necessarily viewed the pornographic images at this time. As the
proponent of the evidence, it was Nussbaum’s burden to establish that S.G.
viewed the pornography before she made her statements implicating
Nussbaum. See C.S. v. State, 71 N.E.3d 848, 852–53 (Ind. Ct. App. 2017) (“The
proponent of evidence has the burden to show its admissibility.”). Because of
the uncertainty regarding when S.G. viewed the pornography, the trial court
did not abuse its discretion when it excluded this evidence.
[34] Even if we were to conclude otherwise, we do not think that the exclusion of
this evidence constituted reversible error. We do not think the informing the
jury that S.G. had viewed pornography would have played a significant role in
the jury’s decision to convict, especially given the unequivocal testimony of the
three victims. See Teague v. State, 978 N.E.2d 1183, 1189 (Ind. Ct. App. 2012)
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 16 of 20 (noting that any evidentiary error is harmless if there is substantial independent
evidence of guilt that satisfies us that there is no substantial likelihood the
challenged evidence contributed to the conviction).
III. Recordings of the Child Hearsay Hearings
[35] Lastly, Nussbaum argues that the trial court erred by permitting the jury to see
and hear the video recordings of the forensic interviews of the victims when
only an audio recording of the defense’s cross-examination of the victims was
available. In addressing this argument, we again note that questions regarding
the admissibility of evidence are entrusted to the discretion of the trial court.
Harrison, 32 N.E.3d at 250.
[36] Here, video recordings of the forensic interviews of the victims were made. But
only audio recordings of Nussbaum’s cross-examination of the victims were
made during the child-hearsay hearing. Both of these recordings were admitted
into evidence and played before the jury. At trial, Nussbaum requested that
only the audio portion of the video recordings of the forensic interviews be
played for the jury. The trial court denied this request.
[37] Nussbaum argues that, by allowing the jury to view the video recording of the
forensic interviews, “the jury was permitted to view the sympathetic demeanor
developed during the accommodating . . . child forensic interview process, but
could not see the witnesses as they were confronted.” Appellant’s Br. at 24.
This, he claims, created an unfair advantage to the State.
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 17 of 20 [38] The State argues that, by not objecting to the fact that the child hearsay
hearings were not recorded on video, Nussbaum has waived this argument for
purposes of appeal. There is some merit to the State’s position. By the time the
child hearsay hearings were held, Nussbaum was aware that the forensic
interviews of the children had been recorded on video. If Nussbaum felt that
only recording the audio of the child hearsay hearings would prejudice him, he
should have requested that the trial court make video recordings of his cross-
examination of the victims. Thus, Nussbaum has waived any argument
regarding the failure of the trial court to ensure that video recordings of the
child hearsay hearings were made.
[39] However, Nussbaum’s appellate argument is not that the trial court erred by
failing to make a video recording of the child hearsay hearing. His argument is
that the trial court should have “level[ed] the playing field” and played only the
audio portion of the forensic interviews. And Nussbaum affirmatively asked the
trial court that the jury be allowed to hear only the audio portions of the
recordings of the forensic interviews because the jury could only hear the audio
of his cross-examination. Tr. Vol. 3, p. 159.
[40] We see little difference between (1) arguing that the trial court erred by failing
to make video recordings of the child hearsay hearings, and (2) arguing that
only the audio from the recordings of the forensic interviews should be played
because there was no video recording made of the child hearsay hearings. The
basic premise underlying both arguments is that there was no video recording
made of the child hearsay hearings. Yet Nussbaum did not object to the fact the
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 18 of 20 child hearsay hearings were recorded only on audio at the time the recordings
were made. This is akin to invited error, and at the very least, constitutes waiver
of the issue for purposes of appeal.
[41] Waiver notwithstanding, we would still not conclude that the trial court’s
decision to allow the jury to view the video recordings of the forensic interviews
constituted reversible error. Surely it is the better practice for both the
interviews and the child hearsay hearings to be recorded in the same manner,
preferably on some form of video media. But we cannot say that allowing the
jury to view the video recording of the forensic interviews amounted to
reversible error. There is no indication that the cross-examination of the
children was recorded only on audio just to hamstring the defense. In fact, there
is little explanation in the record for why the child hearsay hearings were not
video recorded. Be that as it may, we cannot say that the trial court abused its
considerable discretion on evidentiary matters when it allowed the video
recording of the forensic interviews to be played to the jury.
Conclusion [42] The trial court did not err in denying Nussbaum’s motion to dismiss based on
the fact that the recordings of the 2012 interviews with S.G. and S.P. were
unavailable. The substance of these interviews—that the children did not
disclose any abuse at that time—was made known to the jury, and Nussbaum
was permitted to question S.G. and S.P. regarding their prior inconsistent
statements. He was also allowed to cross-examine those responsible for keeping
track of this recording, thereby exposing the jury to their arguably negligent Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 19 of 20 handling of this evidence. More importantly, this evidence was only potentially
useful impeachment evidence, and there is no indication that the State
destroyed or misplaced the video of the 2012 interviews in bad faith.
Furthermore, the trial court did not abuse its discretion by excluding evidence
that S.G. had viewed pornography on her laptop because there is no indication
as to when she viewed the pornography, and it is not uncommon for children to
be exposed to pornography online. Thus, we conclude that this evidence would
do little to dispel any inference of sexual innocence. Lastly, the trial court did
not err in allowing the jury to view the video recordings of the forensic
interviews despite the fact that only audio recordings of Nussbaum’s cross-
examination of the victims at the child hearsay hearings was available.
Accordingly, we affirm the judgment of the trial court.
[43] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018 Page 20 of 20