M.T. v. State

787 N.E.2d 509, 2003 Ind. App. LEXIS 763
Indiana Court of Appeals·Decided May 7, 2003·No. No. 49A02-0208-JV-660·Published·Cited by 22 cases

Opinion

OPINION

MATHIAS, Judge.

MT. was found to be a delinquent child by the Marion Superior Court because he committed two counts of child molesting,1 Class C felonies when committed by an adult. At the dispositional hearing, the trial court placed M.T. on formal probation and ordered him to not have any unsupervised contact with children under the age of twelve and to participate in the sexual offenders counseling program. The trial court also issued a parental participation order to M.T.'s mother. M.T. appeals raising three issues, which we restate as:

I. Whether the trial court abused its discretion when it admitted hearsay evidence from the victim's parents and a videotaped interview with the vietim;
II. Whether the trial court improperly reviewed and relied upon a risk assessment tool; and,
Whether the trial court abused its discretion when it ordered a parental participation order. IIL.

Because we find that the trial court did not abuse its discretion when it admitted the hearsay statements, that it properly relied upon the risk assessment tool, but that it abused its discretion when it issued a parental participation order, we affirm in part and reverse in part.

Facts and Procedural History

On April 1, 2002, KR. told her mother, Michelle Revadelo ("Michelle"), that M.T. [511] had touched her in her private area. Tr. p. 42. Two days later, KR. spoke with a forensic child interviewer, and the interview was videotaped. During the interview, KR. told the interviewer about two incidents of molestation. One of the incidents occurred at her house in the living room. KR. said that M.T. put his hand inside of her panties and touched her inside of her private, which she identified as her vagina on a diagram. Ex. Vol., State's Ex. 2 pp. 16-17. Another incident occurred at M.T.'s house on his bunk bed. MT. again touched K.R.'s private with his hand.

At the denial hearing, K.R. testified that M.T. had touched her private part under her clothing while at his house on the bunk bed. Tr. pp. 30-82. She also stated that he had touched her private part under her clothing in the living room at her house at a different time. 'TI'r. pp. 82-38. At the hearing, KR. said that the molestations began and occurred when she was four years old, but in the interview she stated that she was two years old the first time MT. touched her and that he also touched her when she was three, four, and five years old. Tr. p. 34; Ex. Vol., State's Ex. 2 pp. 21-22.

M.T. moved to Indianapolis in June of 2000 to live with his mother. He is a cousin of K.R.'s mother. After January 2001, M.T. would often come over to K.R.'s house to spend time with her father. On February 17, 2002, Michelle and K.R.'s father separated, and K.R.'s father moved into M.T.'s house. KR. would often go over to M.T.'s house to visit her father after he moved. M.T. would also occasionally babysit for K.R.

On April 10, 2002, M.T. was charged with two counts of child molesting, Class C felonies when committed by an adult. A hearing on the admissibility of child hearsay and a denial hearing were held on July 11, 2002, with the testimony from the child hearsay hearing being incorporated into the denial hearing testimony. At the conclusion of the denial hearing, the charges of delinquency for committing child molesting were found true. A pre-disposi-tional report was made, which included the use of a risk assessment tool named ERA-SOR.2 At the disposition hearing, the trial court placed M.T. on formal probation and ordered M.T. to have no contact with KR., to have no unsupervised contact with any children under the age of twelve, and to participate in the sexual offenders counseling program. The trial court also issued a parental participation order. MT. now appeals.

I. Admission of Hearsay

The admission of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of discretion by the trial court resulting in the denial of a fair trial Prewitt v. State, 761 N.E.2d 862, 869 (Ind.Ct.App.2002). A decision would be an abuse of discretion if it is clearly against the logic and effect of the facts and circumstances before the court. Id. In reviewing the decision, we only consider the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Id.

Special procedures have been created for introducing evidence that is "not otherwise admissible" in cases involving crimes against children under the age of fourteen and the mentally disabled. See Ind.Code § 35-37-4-6 (1998). Under Indiana Code [512] section 85-37-4-6, a statement or videotape that is made by someone who at the time of trial fits into one of these categories, concerns an act that is a material element of the charged offense, and is not otherwise admissible becomes admissible if the court finds that the time, content, and cireumstances of the statement or videotape provide sufficient indications of reliability, and the "protected person" either testifies at the trial or is found to be unavailable. Id.

MT. argues that the trial court abused its discretion when it admitted a statement that KR. made to her mother and the videotaped interview of K.R and the forensic child interviewer. He claims that this is because the statements by K.R. were not sufficiently reliable. M.T. contends that Michelle had motivation to lie in order to get K.R.'s father to come home and to block any challenges for custody. Therefore, because Michelle was the first to hear K.R.'s statements, the statements were not sufficiently reliable.

"Considerations in making the reliability determination under [Indiana Code section 35-37-4-6] include the time and cireum-stances 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" Pierce v. State, 677 N.E.2d 39, 44 (Ind.1997) (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)). Doubt may be cast on the reliability of the statement or videotape if it is preceded by lengthy or stressful interviews or examinations. Id. Corroboration should not be considered when determining the reliability of the statement because Indiana Code section 35-37-4-6 does not limit admission only to statements where there is independent corroborative evidence of the crime. Id.

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MT v. State
787 N.E.2d 509 (Indiana Court of Appeals, 2003)