Willis v. State

776 N.E.2d 965, 2002 Ind. App. LEXIS 1708, 2002 WL 31341086
CourtIndiana Court of Appeals
DecidedOctober 18, 2002
Docket49A02-0203-CR-198
StatusPublished
Cited by13 cases

This text of 776 N.E.2d 965 (Willis v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. State, 776 N.E.2d 965, 2002 Ind. App. LEXIS 1708, 2002 WL 31341086 (Ind. Ct. App. 2002).

Opinion

*966 OPINION

MATTINGLY-MAY, Judge.

Robert Willis appeals his conviction of child molesting, a Class A felony. 1 He raises one issue on appeal, which is whether the trial court abused its discretion when it admitted a videotaped statement by the child victim.

We affirm.

FACTS AND PROCEDURAL HISTORY

During the first weekend of December 2000, Robert Willis exercised his right to visitation with his seven-year-old daughter, K.W. On Saturday night, K.W. woke up to find her pants off and Willis licking her “boo boo.” (Tr. at 23, 24, 40.) “Boo boo” is the term that K.W. uses to refer to the area that she uses to urinate. Willis told K.W. not to tell her mother, Latoya Galloway. Willis took K.W. back to Galloway’s house on Sunday afternoon.

On Tuesday, Galloway asked K.W. how her weekend was. K.W. told Galloway that Willis had “licked her boo boo.” (Tr. at 40.) Galloway immediately called the police and arranged for K.W. to be interviewed by them the next day. Per police orders, Galloway did not ask K.W. anything else about the incident.

The next day, Galloway took K.W. to the Family Advocacy Center. There, Indianapolis Police Detective Roxanne Malloy took a videotaped statement from K.W. Detective Malloy did not talk to K.W. prior to taking the statement except to introduce herself on the way to the interviewing room. In the statement, K.W. told Detective Malloy that her dad had used his tongue to touch her boo boo.

The State charged Willis with child molesting, as a Class A felony, for performing deviate sexual conduct upon K.W.; incest, a Class B felony, for performing deviate sexual conduct upon his daughter; 2 and child molesting, as a Class C felony, for fondling or touching K.W. 3 At trial, K.W. testified about what had happened. Over Willis’ objection, Galloway also testified about what K.W. had told her. In addition, the court admitted, over Willis’s objection, the videotaped statement that K.W. had given to Detective Malloy. The jury found Willis guilty of all three counts. The trial court merged counts two and three into count one and entered a judgment of conviction only as to count one, child molesting as a Class A felony. The trial court sentenced Willis to forty years in the Department of Correction.

DISCUSSION AND DECISION

Willis claims that the trial court abused its discretion by admitting the videotape into evidence. A trial court has discretion to admit or exclude evidence. See Rickey v. State, 661 N.E.2d 18, 21 (Ind.Ct.App.1996), trans. denied. We review the trial court’s decision to determine whether it was against the logic and effect of the facts and circumstances before the court. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), trans. denied.

The evidence at issue is a videotape of an interview of K.W. by Detective Malloy. Videotaped statements are hearsay, and thus are generally inadmissible. Rickey, 661 N.E.2d at 21. However, Ind. Code § 35-37-4-6, the child hearsay statute, 4 provides that videotaped hearsay statements of children are admissible in some situations. When determining *967 whether to admit a videotaped statement under the child hearsay statute, the trial court should consider “the child’s ability to observe, remember, recollect, and describe experience and the child’s ability to understand the nature and consequences of an oath as well as the time and circumstances of the making of the tape.” Poffenberger v. State, 580 N.E.2d 995, 998 (Ind.Ct.App. 1991), trans. denied. We review a trial court’s decision to admit videotapes under this statute for an abuse of discretion. Id.

Willis first argues that the trial court abused its discretion by admitting the videotape because the tape did not contain sufficient indicia of reliability. However, we need not address the reliability of the videotape because the evidence on the videotape was cumulative of other evidence admitted. Any error in the admission of a videotape is harmless if the evidence on the tape is “cumulative of the statements of a witness and the tape is not the only direct evidence of the events.” Id. We do not reverse judgments based upon harmless errors in the admission of evidence. Fox, 717 N.E.2d at 966 (citing Ind. Trial Rule 61). Consequently, we need not determine whether the trial court properly admitted the hearsay videotape if we may more easily determine that the evidence on the tape was merely cumula-five of other evidence properly admitted. See id.

Here, Willis admits in his appellant’s brief that “the child victim and her mother had both already given direct testimony to the very same allegations made in the video” and “[t]he video presented nothing new or different.” (Br. of Appellant at 6, 7.) As Willis admits that the videotape evidence was cumulative of the testimony of K.W., the trial court could not have abused its discretion when it admitted the videotape. See Fox, 717 N.E.2d at 966.

Willis’s second argument is that “[t]he trial court[’]s decision to allow the videotaped statement into evidence even though the child victim and her mother had both already given direct testimony to the very same allegations made in the video amounted to a drumbeat repetition designed only to bolster the testimony of the child victim.” (Br. of Appellant at 6-7.) To support this argument, Willis cites Stone v. State, 536 N.E.2d 534 (Ind.Ct. App.1989), trans. denied, in which we reversed a child molesting conviction because, after the child victim had already testified, six other witnesses were permitted to testify about what the child victim told them about the molestation. We held that the probative value of the testimony *968 of the other six persons was outweighed by the prejudicial effect of the repetition of the inflammatory aspects of the State’s case. Id. at 540.

In a later case, our supreme court reversed a child molesting conviction because the victim’s mother, caseworker, and psychologist all testified before the victim testified about the victim’s hearsay statements to them. Modesitt v. State, 578 N.E.2d 649 (Ind.1991). The supreme court held “as did the Court of Appeals in Stone v. State (1989), Ind.App., 536 N.E.2d 534

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Bluebook (online)
776 N.E.2d 965, 2002 Ind. App. LEXIS 1708, 2002 WL 31341086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-state-indctapp-2002.