Christopher Smith v. State of Indiana

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

SCOTT E. SHOCKLEY GREGORY F. ZOELLER
JAMES R. WILLIAMS Attorney General of Indiana
DeFur Voran LLP
Muncie, Indiana IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 30 2013, 8:46 am

IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court

CHRISTOPHER SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1204-CR-331
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Thomas A. Cannon, Jr., Judge
Cause No. 18C05-1103-CM-1

January 30, 2013

OPINION - FOR PUBLICATION

BROWN, Judge
 Christopher Smith appeals his conviction for failure to immediately report child

abuse or neglect as a class B misdemeanor.1 Smith raises several issues, one of which we

find dispositive and restate as whether the evidence is sufficient to sustain his

conviction.2 We reverse.

FACTS

In November 2010, G.G. was sixteen years old and a student at Muncie Central

High School. Smith was the principal at the high school and had held that position for

approximately two and one-half years. G.G. had been placed with the Youth Opportunity

Center (the “YOC”) pursuant to a dispositional order in March 2010 after being found to

be a child in need of services, and the Department of Child Services (“DCS”) and the

YOC entered into a contract with respect to G.G.’s placement.

Between 12:20 and 12:25 p.m. on November 9, 2010, G.G. reported to Kathaleena

McCord, who had been an assistant principal at Muncie Central for one and one-half

years and had sixteen years of experience in other school systems, that she had been

raped in the boys’ bathroom by the pool by S.M. At the time, S.M. was also a sixteen-

year-old student at the school. McCord went to Smith’s office and informed him of what

G.G. had reported and brought Smith back to her office. McCord asked G.G. to repeat to

Smith what had occurred to her, and G.G. told Smith that she had been raped in the

1
Ind. Code § 31-33-22-1 (2004).
2
Smith also raises an issue regarding whether the statutory provisions which govern the offense
are unconstitutionally void for vagueness. Because we reverse on other grounds, we do not address this
issue.

2
bathroom. Smith asked G.G. who committed the act and when it occurred, and G.G.

responded that S.M. committed the act in the boys’ bathroom at lunch.

Smith retrieved Jackie Samuels, the associate principal, from her office at 12:38

p.m.3 Smith said “what should we do,” and Samuels stated that they needed to call for

the nurse right away. Transcript at 61. Samuels also asked Smith if he wanted her to call

the YOC or contact S.M. or the school’s security officers. Smith said “[n]ot yet, call

YOC.” Id. Smith radioed for Trudy Anderson, who had been employed as the nurse and

medical professional at Muncie Central for three years and had worked for Muncie

Community Schools for nineteen years, to come to his office. At approximately 12:40

p.m., Smith informed Anderson that a female student had reported that she had been

raped by a male student in a restroom at the school, and Smith directed Anderson to

McCord’s office where G.G. was located. Anderson arrived at McCord’s office at

approximately the same time that Samuels exited Smith’s office to return to her office to

call the YOC.

Also, at some point within five or ten minutes after G.G. disclosed that she had

been raped, Samuels informed Smith and McCord that G.G. was the same student who,

earlier in the school year, had faked a gran mal seizure in the back hallway of the school

building.4 Also at some point, McCord stated that she had seen S.M. with a female prior

3
Samuels had previously served as a program supervisor at the YOC for about five months.
4
Samuels testified that Smith was present at the time G.G. had faked the seizure. Samuels
testified that she had been present when the nurse determined that G.G. had faked a seizure. Samuels
further testified that G.G. “had an attendance issue where she said she had been someplace else and she
wasn’t there.” Transcript at 71.

During a police interview, Smith stated that he had reservations about G.G.’s allegations because
he was aware that G.G. “had in the past told . . . a pretty big lie” and that she had “faked a seizure in our
3
to the beginning of lunch in the back hallway and that she thought she may be able to

obtain a video recording of the hallway. Smith told McCord to see if she could “trace

their whereabouts during the lunch time,” and McCord went to the camera room and

began to review the recordings which took over an hour. Id. at 18.

Anderson entered McCord’s office and observed that G.G. was not audibly crying

but did have tears coming down her face and that her face was a little wet from the tears.

Anderson noted that, while G.G. was visibly shaken, there were no obvious physical

injuries or scratches. Anderson asked G.G., in McCord’s presence, if she was hurt, and

G.G. stated that her vagina hurt. Anderson did not pass that information along to Smith

at that point. Smith asked McCord to make a written statement of G.G.’s allegations, and

McCord entered the office where G.G. and Anderson were present, gave G.G. a pen and

clipboard, and told her that Smith had requested that she write the events to the best of

her recollection. G.G. did not hesitate, wrote a statement in a few minutes, and was very

centered and focused on writing.5 At some point around 12:50 p.m., Smith entered

McCord’s office, reviewed the statement G.G. had written, and asked G.G. some

back hallway.” State’s Exhibit 4a at 21. Smith stated that he had received a radio call the day of the
seizure, had gone to the hallway, and that he, Samuels, the school nurse, and another teacher or adult were
present. Smith stated that he did not medically know whether or not G.G. was faking the seizure, “[b]ut
the nurse certainly knew enough to think that she was” and “when she called YOC about that situation []
to let them know that she[] had this seizure [] they said, ‘oh [] she’s done this before’. And put her on a
bus and send her home.” Id. at 22.

During her testimony, Anderson, the school’s nurse, indicated that she determined in her
judgment that G.G. was not in fact having a seizure and that it appeared to her that G.G. was faking or
feigning the seizure.
5
G.G.’s written statement was admitted into evidence at trial and stated in part that, after the
assault, she had gone to the girls’ restroom and “saw that [she] was bleeding,” that a few minutes later she
“went to the locker room to see if [she] had any clothes in there but [] didn’t,” that she asked a friend if
she had a change of clothes, that G.G. changed into a pair of her friend’s pants in the gym, and that then
she and the friend went to McCord’s office. Joint Exhibit 1.

4
questions. Anderson stayed with G.G. and waited for the YOC, as G.G.’s guardian, to be

contacted.6 Anderson also noted, during the ninety-minute period she waited with G.G.,

that G.G.’s condition improved and that she became much more calm and discussed her

family, siblings, and pets.

Further, at approximately 12:40 or 12:45 p.m., while Anderson was with G.G. and

after Smith had told Samuels to call the YOC, Samuels walked back to her office to call

the YOC. Samuels called the switchboard operator at the YOC, who attempted to

transfer the call to Cottage 9 where G.G. lived, and there was no answer. Samuels called

the YOC switchboard again and stated that she needed to talk to a person associated with

Cottage 9 immediately, and after a brief time on hold, Crystal Dunigan answered the call.

Dunigan stated that she was the acting cottage manager, and Samuels stated that G.G. had

reported that she had been raped. Samuels and Dunigan discussed G.G., and Dunigan

asked about G.G. and her demeanor. Samuels stated that G.G. was with the nurse and

was upset. Samuels then asked Dunigan how G.G. had been doing, and Dunigan stated

that G.G. had been doing better. According to Dunigan, Samuels stated that the

allegation “was not in the nature of [S.M.]” and that she had “seen [G.G.] make some

false allegations of a seizure.” Id. at 141. Dunigan stated that she needed to speak with

the counselor and cottage manager, and Dunigan and Samuels ended the call. Samuels

then informed Smith that she had called the YOC and then went to McCord’s office to

visit G.G. and see “how was she acting.” Id. at 67.

6
Anderson testified that, in the absence of a medical emergency, the school board’s policy was to
first contact a child’s guardian and then to make arrangements with the guardian to have the child receive
medical attention.
5
 After the call, Dunigan contacted Justin Wallen, the cottage manager where G.G.

resided, and Wallen told Dunigan that she needed to call G.G.’s case manager Annette,

who was a part of DCS, for permission for the YOC to take G.G. to the emergency room.

Dunigan contacted Annette at DCS soon after 1:00 p.m. and reported the incident, and

Annette approved the action of taking G.G. to the emergency room for a rape kit.

Dunigan then informed Wallen and the counselor of the YOC’s intended actions.

Dunigan then informed Samuels that the YOC was sending a staff person to transport

G.G. to the emergency room for a rape kit.7 According to Samuels, Dunigan stated

during the conversation that “I know she’s cried wolf before.” Id. at 70. The YOC sent

Tameka Ross to transport G.G.8

Meanwhile, between 12:45 and 1:00 p.m., after speaking with Samuels, Smith

called the Muncie Central administration building in an attempt to contact Assistant

Superintendent Tim Heller. However, Heller was unavailable and Smith was transferred

to Joanne McCowan, the Director of Secondary Education who had been with Muncie

Community Schools for seventeen or eighteen years. Smith informed McCowan that he

was trying to reach Heller and explained G.G.’s allegations, that G.G. was a resident of

the YOC, and that Samuels had already contacted the YOC. Smith stated “[t]hey

questioned if she was being truthful and indicated they would come pick her up and take

her to Ball Memorial Hospital.” Id. at 108. Smith stated that he wanted to ask whether

7
Dunigan testified that she called Samuels, whereas Samuels testified that Dunigan had asked
Samuels to call her back during the first phone conversation and that she had called Dunigan back. Also,
Dunigan testified that she could not recall whether she had told Samuels that DCS had been contacted.
8
Wallen indicated during his testimony that the YOC was required to notify DCS immediately of
any event that requires hospitalization and that Dunigan had notified DCS at 1:00 p.m.
6
he should have a security officer present during the questioning of S.M., and McCowan

told Smith that she would contact someone else in the administrative building to give him

an answer and then put him on hold. McCowan went to Lon Sloan and explained what

Smith had said. Sloan was the Director of Human Resources, was a member of the

superintendent’s cabinet, had worked in the school system since 1976 and at least

nineteen or twenty years as an administrator, and had been a Delaware County Sheriff’s

Reserve Officer since 1974. Sloan stated that, since it was not certain if the matter was a

criminal matter, Smith “should go ahead and call the young man down, get information

but he should have another administrator present with him when he did so.” Id. at 109.

McCowan returned to the phone and gave Smith the information from Sloan. McCowan

also stated that she would see Smith soon because interviews had been scheduled for an

available administrative position and that she would be traveling to Muncie Central.

About 1:25 p.m., Smith asked Samuels to bring S.M. to the office for questioning.

S.M. was questioned in the presence of Samuels and also, for at least part of the

questioning, by Tom Jarvis, the Athletic Director at the school.9 S.M. denied G.G.’s

allegations. Samuels noted that S.M. first stated that he went to the library and then later

stated that he went to the bathroom in the back hallway away from the library. At one

point, Jarvis asked Smith, in S.M.’s presence, whether this was a school matter or a

9
Jarvis had been the Athletic Director for ten years, had been a principal at other schools for five
years and an assistant principal at another school for two and one-half years. At the time of trial, Jarvis
was the principal at Muncie Central High School.

7
police matter.10 According to Jarvis, Smith stated “well Mr. Jarvis, currently it’s a school

matter.” Id. at 231. S.M. stated that he and G.G. had been writing some notes but that he

had thrown the notes away. S.M. was questioned for about fifteen or twenty minutes and

then left the office.

After the interview, Jarvis told Smith that he felt that S.M. was lying and that the

notes would probably be in his locker. Because Smith needed to attend previously-

scheduled interviews, he asked Jarvis to search the lockers of G.G. and S.M. Jarvis

obtained the locker combinations from his secretary and radioed Officer Michael

Edwards, who was an off-duty Muncie Police Officer working as a security officer at the

high school, and asked Officer Edwards to meet him. Jarvis stated that he was “looking

for some notes between 2 students and . . . really wasn’t sure what the true allegation

was, if it was consensual or he said she said . . . .”11 Id. at 234. Jarvis discovered notes

10
Jarvis testified at trial that he asked the question in part as a scare tactic so that S.M. would
“maybe talk a little bit” and in part “to maybe hint that, to [] Smith, that maybe this should be a police
matter.” Transcript at 230.
11
Officer Edwards testified at trial that Jarvis told him that they were searching the lockers for
“love letters,” that Officer Edwards stated that was a “kind of an odd thing to be looking for,” that Jarvis
responded that there had been a rape, and that Jarvis “implied at the YOC” and “even motioned his hand
toward the YOC direction.” Transcript at 249, 254. Officer Edwards also indicated that Jarvis told him
that “the girl was a known story teller or liar” and that the “letters would help prove that.” Id. at 255.
Officer Edwards testified that he first learned that the alleged rape occurred at the school building after
4:00 p.m. when his sergeant informed him that the rape had been at the school building. Officer
Edwards’s sergeant had him immediately travel to the hospital, where he met other police officers.
Officer Edwards was later removed as the investigating officer and replaced by Officer George Hopper
because the department felt it would have been a conflict of interest for Officer Edwards to be assigned to
the case.

Jarvis testified at trial that, at the time of S.M.’s questioning, he believed that the police should
have been contacted before the questioning due to the nature and seriousness of the questioning. Jarvis
further testified that, when he met Officer Edwards, he did not specifically tell him that a student had
claimed or reported that she had been raped at the school building. Jarvis indicated that, when he told
Officer Edwards there was an allegation of a sexual assault, Officer Edwards told him that “this is the first
[he had] heard of it.” Id. at 240. When asked if he did anything other than tell Officer Edwards that a
sexual assault occurred to ensure that the police would become actively involved, Jarvis testified “other
8
of a sexual nature in both lockers but did not have any idea who wrote the notes or if they

related to the incident.

Ross arrived at Muncie Central at approximately 2:00 p.m. and transported G.G. to

Ball Memorial Hospital. There was a delay in examining G.G. at the hospital because an

assault nurse was not initially available. The hospital nurse or staff person called the

Muncie Police at 3:25 p.m., and law enforcement officers arrived at the hospital at about

3:55 p.m. At some point, Smith called Ross and asked about G.G.’s condition and asked

“where, Central was suppose[d] to file the report or was YOC going to handle it.” Id. at

151. Ross responded that she “figured Central would make the report since it happened

at Central.” Id. At the time that Smith called, the rape kit had not yet been completed.

Smith, Sloan, McCowan, and Samuels were on an interview team, and they were

scheduled to interview two candidates for an administrative position which would take

approximately two hours in the afternoon. Between the interviews, Smith and Samuels

left the interview area and returned and stated that the rape kit test had still not been

administered.

After the second interview had concluded and Smith was thanking a candidate,

Sloan asked if Assistant Superintendent Heller had been contacted. McCowan did not

have a response, and Smith stated that he had not spoken to Heller. Sloan asked about

the location of the closest telephone. Smith retrieved a telephone, placed it on the table,

dialed the phone number for Heller, and placed a conference call on speaker phone so

than looking for the notes, no.” Id. When asked why he did not make it clear to Officer Edwards that the
incident happened at the high school, Jarvis testified: “I assumed he knew that that was what happened at
Central.” Id. When asked why he would assume that if Smith “had just told [him] that this [was] a
school matter,” Jarvis testified: “Because it was a school matter and I thought that our police were already
involved but I didn’t know to what degree.” Id.
9
that the group could hear what was being said. The call was made at approximately 4:20

p.m. to 4:30 p.m. When Heller answered the phone, Smith informed him that a student

had reported a rape and that the student was at the hospital. Heller told Smith “to contact

CPS,” Smith indicated that he would, and the call ended. Id. at 180.

At 4:34 p.m., Smith dialed the phone number to reach the DCS-CPS child abuse

hotline and placed the call on speaker phone, and Katie Salhoff answered the phone.

Sloan identified himself and stated that he was with Muncie Community Schools.

Salhoff asked if the caller had called to make a report of child abuse or neglect, and Sloan

responded “[w]ell, I’m not sure, but, that is why I called is to let you tell me.” Joint

Exhibit 3 at 1. Salhoff told Sloan that she would “take down all of the information and

then let you know at the end of the report whether or not we would be able to investigate

it.” Id. Sloan stated “we are working with some other people [and] we just want to make

sure we have covered all the bases as a school, we may not even need to speak with you

at all.” Id. Sloan then stated that Smith was the principal of Muncie Central and would

provide all of the details, Salhoff then asked if Smith should be the person that she put as

the report source, and Smith answered affirmatively.

Smith then explained that G.G. was a student at the school and had alleged that

she had been sexually assaulted by another student in the school building during lunch in

a restroom. Smith also stated that G.G. was a resident of the YOC and that both G.G. and

S.M. were sixteen years old. Smith indicated that G.G. gave a written statement and that

video cameras showed G.G. and S.M. walking down the hall together but did not show

them near or in the restroom. When asked if the incident would be reported to law

10
enforcement or the YOC, Smith stated that the school reported it to the YOC and that the

YOC picked up G.G. and was going to take her to the emergency room. Smith also

indicated that S.M. denied the allegation and that he had called S.M.’s mother to inform

her of the discussion with S.M. Salhoff then stated that “[g]iven that the child is 16, this

would be something I believe that we would probably refer to law enforcement, I’m not

sure if that has been done yet or not,” and Smith stated “No.” Id. at 6. Salhoff then asked

if Smith would like for her to contact the police or if he would like to contact them, and

Smith indicated that “We are going to contact them.” Id. at 7. Smith also indicated that

S.M. had stated that G.G. wrote him a note telling him that she would like to have

relations with him. Salhoff then stated: “OK. Like I said, this looks like something we

are going to screen out on our end but it is something that we would probably go ahead

and forward to law enforcement so if you are saying that is something you guys will do.”

Id. at 8. Smith answered affirmatively, and Salhoff stated that “this still has to go

through two supervisors, so if for some reason it gets screened back in and we do

investigate I will give you a call back and let you know about that.”12 Id.

Sloan then called, on speaker phone, Brian Lipscomb, the Chief of Security and

Operations for Muncie Central Schools and who had worked for the Delaware County

Sheriff’s Office for over thirty-seven years, and Lipscomb was informed of the alleged

rape at the school. Sloan told Smith, who knew the police were at the hospital and that

the rape kit test had not been administered, to get everything together and take it to the

police. Lipscomb was surprised that no one from the school corporation was at the
12
Sloan testified that to his knowledge DCS never sent a report to Muncie Central High School
following the call to the hotline. A report issued by DCS on November 11, 2010, summarized the call to
the hotline and indicated “IS told RS of decision to screen out the report.” Joint Exhibit 4 at 2.
11
hospital with G.G. and immediately drove to the hospital and met with Officer Edwards.

Smith also arrived at the hospital and spoke with Lipscomb. Smith gave Officer Edwards

a copy of G.G.’s statement and other materials. Smith left the hospital at approximately

6:10 p.m., stating that he needed to attend a school board meeting.

Wallen, the cottage manager where G.G. resided, received a telephone call the

following day from Samuels who stated that the school had “come across some letters

that implied that [G.G.] had probably not [been] forth coming about the whole situation

and she was perhaps eliciting the incident to occur but not a rape obviously.” Id. at 158.

Wallen went to the school and met with Samuels, Anderson, and Smith. Samuels stated,

and Smith agreed, that “they wanted to make sure that they knew that this was what

really happened” because it “would destroy the boy[’]s reputation.” Id. at 160. Wallen

did not view any video recordings but Samuels told him that the video showed that, while

G.G. wrote in her statement that S.M. had followed her to the bathroom, that actually

G.G. was following S.M. Anderson told Wallen that she “had seen girls that had just

been raped and [G.G.] didn’t act like a girl that had just been raped.” Id. at 162.

Officer George Hopper was assigned to investigate the case on November 11,

2010. Officer Hopper interviewed S.M., Ross from the YOC, Smith, and other

administrators from Muncie Central Community Schools. At some point, a preliminary

examination of G.G.’s clothing indicated positive results for the presence of seminal

fluid. Officer Hopper spoke to S.M., and S.M. “[c]hanged his story from one of denial to

one of consensual sex.” Id. at 306-307. At that point, Officer Hopper did not believe that

he had probable cause to arrest S.M. for rape. On November 15, 2010, S.M. confessed to

12
the offense, and Officer Hopper arrested him. S.M. subsequently pled guilty and was

incarcerated.13

At some point, Officer Hopper opened an investigation for obstruction of justice.

Officer Hopper interviewed among others, Smith, Jarvis, Anderson, Samuels, McCowan,

Sloan, and Heller. Smith was interviewed on November 19, 2010, and the recording of

the interview was labeled as “obs of Justice.” See State’s Exhibit 4.

PROCEDURAL HISTORY

On March 7, 2011, the State charged Smith with failure to immediately report

child abuse or neglect as a class B misdemeanor. Specifically, the information alleged

that “on or about November 9, 2010 in Delaware County, State of Indiana, Christopher

Smith, a person who had reason to believe that a child may be the victim of child abuse

or neglect, did knowingly fail to immediately make a report to the Indiana Department of

Child Services or a local law enforcement agency, contrary to the form of the statutes in

such cases made and provided by I.C. 31-33-5-1, I.C. 31-33-5-4 and I.C. 31-33-22-1(a) . .

. .” Appellant’s Appendix at 13. Smith moved to dismiss the information on November

14, 2011, arguing that the statute governing the offense was unconstitutionally void for

vagueness, and following a hearing the court denied Smith’s motion on January 27, 2012.

At the beginning of the bench trial, which was held on March 6 and 7, 2012, the State

made an oral motion to amend the charging information by striking the two words “may

be” and replacing those words with the word “was,” and the court granted the motion.

See Transcript at 2-3.

13
Officer Hopper testified that “I believe [S.M.] pled guilty but I’m not sure what charges they
were.” Transcript at 307.
13
 During trial, the court heard the testimony of McCord, Anderson, Samuels,

McCowan, Dunigan, Ross, Wallen, Sloan, Jarvis, Officer Edwards, Lipscomb, Heller,

and Officer Hopper. Heller testified that he had been an administrator for forty-six years,

that when he received the call from Smith he had advised him to call DCS immediately

because he had a duty to report, and that the reason he was alert to the requirement to

report was because he had a superintendent friend in another state that did not report

child abuse the day of learning about it and had been arrested. Heller testified that

Muncie Central had various guidelines and policies for administration, professional staff,

and support staff which contained some language related to child abuse and that the

language in the guidelines did not define child abuse or neglect. Heller also testified that

a pamphlet given to administrators discussed child abuse, which specifically provided

that sexual abuse is “[a]ny sexual act between an adult and a child.” Defendant’s Exhibit

A at 5.

Further, McCowan testified that she had received training in previous years on the

topic of child abuse and that “almost always it was referenced between an adult and a

child.” Transcript at 117. When asked whether, as matters were unfolding on November

9, 2010, it occurred to her that one sixteen-year-old sexually assaulting another sixteen-

year-old might be considered child abuse, McCowan indicated that it did not occur to her,

that the statement of the caseworker on the hotline at 4:30 p.m. that the case would be

screened out confirmed her thought, and that Heller’s comment to report the case

surprised her.

14
 McCord testified that she had not received training that a student assaulting

another student could be considered child abuse. McCord also indicated that her opinion

in November 2010 was that, although S.M. had had minor discipline issues, he was

usually honest and that she thought that the accusation of rape was out of character for

him based on her prior acquaintance with him. Samuels testified that she did not think

that G.G.’s report might be child abuse and “thought of it more as a crime.” Transcript at

97. Sloan indicated that, on the day of the assault, he did not think the assault was child

abuse. The State admitted the November 19, 2010 police interview of Smith. The court

found Smith guilty and sentenced him to 120 days, suspended to probation, and to 100

hours of community service.

ISSUE AND STANDARD OF REVIEW

The issue is whether the evidence is sufficient to sustain Smith’s conviction. In a

review of a sufficiency of the evidence claim, we do not reweigh the evidence or

reevaluate the credibility of witnesses. Rohr v. State, 866 N.E.2d 242, 248 (Ind. 2007),

reh’g denied. We view the evidence most favorable to the verdict and the reasonable

inferences therefrom and will affirm the conviction if there is substantial evidence of

probative value from which a reasonable jury could find the defendant guilty beyond a

reasonable doubt. Id.

We also observe that evidence of guilt of substantial and probative value, as

required to affirm a conviction on appeal, requires more than a mere scintilla of evidence.

Jones v. State, 881 N.E.2d 1095, 1097 (Ind. Ct. App. 2008) (citing Short v. State, 564

N.E.2d 553, 557 (Ind. Ct. App. 1991)). Evidence that only tends to support a conclusion

15
of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of

guilt beyond a reasonable doubt. Id. (citing Short, 564 N.E.2d at 557 (citing Vuncannon

v. State, 254 Ind. 206, 258 N.E.2d 639 (1970))). Circumstantial evidence must do more

than merely tend to arouse suspicion of guilt in order to support a conviction. Id. (citing

Marrow v. State, 699 N.E.2d 675, 677 (Ind. Ct. App. 1998)). To the extent that this case

requires us to interpret the reporting statutes, we review de novo matters of statutory

interpretation because they present pure questions of law. Gardiner v. State, 928 N.E.2d

194, 196 (Ind. 2010).

THE REPORTING STATUTES

Ind. Code § 31-33-22-1(a) provides that “[a] person who knowingly fails to make

a report required by IC 31-33-5-1 commits a Class B misdemeanor.” Ind. Code § 31-33-

5-1 provides that “an individual who has reason to believe that a child is a victim of child

abuse or neglect[14] shall make a report as required by this article.”

Ind. Code § 31-9-2-101 provides that “‘[r]eason to believe’, for purposes of IC 31-

33, means evidence that, if presented to individuals of similar background and training,

would cause the individuals to believe that a child was abused or neglected.” Ind. Code §

31-33-5-3 provides that “[t]his chapter does not relieve an individual of the obligation to

report on the individual’s own behalf, unless a report has already been made to the best of
14
On November 9, 2010, Ind. Code § 31-9-2-133(a) provided in part: “‘Victim of child abuse or
neglect’, for purposes of . . . IC 31-33, refers to a child in need of services as described in: (1) IC 31-34-1-
1 through IC 31-34-1-5; (2) IC 31-34-1-10; or (3) IC 31-34-1-11.” (2004) (subsequently amended by
Pub. L. No. 48-2012 (eff. Jul. 1, 2012) (revising to provide in part that “‘Victim of child abuse or
neglect’, for purposes of . . . IC 31-33, refers to a child as described in: . . . IC 31-34-1-1 through IC 31-
34-1-5; . . . regardless of whether the child needs care, treatment, rehabilitation, or the coercive
intervention of a court.”)). Ind. Code § 31-34-1-3(a) provides that “[a] child is a child in need of services
if, before the child becomes eighteen (18) years of age: . . . the child is the victim of a sex offense under: .
. . IC 35-42-4-1 [rape]” and “the child needs care, treatment, or rehabilitation that: (A) the child is not
receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court.”
16
the individual’s belief.” Ind. Code § 31-33-5-4 provides that “[a] person who has a duty

under this chapter to report that a child may be a victim of child abuse or neglect shall

immediately make an oral report to [] the department; or [] the local law enforcement

agency.”

In addition, Ind. Code § 31-33-6-1 provides:

Except as provided in section 2 of this chapter, a person, other than a
person accused of child abuse or neglect, who:

(1) makes or causes to be made a report of a child who
may be a victim of child abuse or neglect;

*****

(3) makes any other report of a child who may be a victim
of child abuse and neglect; …

*****

is immune from any civil or criminal liability that might otherwise be
imposed because of such actions.

Ind. Code § 31-33-6-2 provides that “[i]mmunity does not attach for a person who has

acted maliciously or in bad faith.” Ind. Code § 31-33-6-3 provides that “[a] person

making a report that a child may be a victim of child abuse or neglect or assisting in any

requirement of this article is presumed to have acted in good faith.”

ARGUMENTS OF COUNSEL

Smith contends that the evidence was insufficient to support the elements of the

offense and requests this court to reverse his conviction. Specifically, Smith argues that

the State failed to prove that he had “reason to believe,” as defined by Ind. Code § 31-9-

2-101 and required by Ind. Code § 31-33-5-1, that G.G. was a victim of child abuse.

17
Smith argues that a victim of child abuse is distinct from a victim of a crime, for which

no duty to report is mandated by a criminal statute. Smith points to evidence showing

that there were five individuals of similar background and training involved in the events

as they played out over the four hours between G.G.’s report at 12:20-12:25 p.m. and the

call to the CPS hotline at 4:34 p.m., that Sloan and McCowan were administrators

holding more senior positions than Smith and were Smith’s superiors, that Sloan and

McCowan occupied positions responsible for the school’s policies and neither believed

that an allegation by one sixteen-year-old against another was child abuse, and that when

Smith, Sloan and others called the CPS hotline Sloan stated that he was unsure if the call

was regarding child abuse. Smith argues that each of the five other mid-level school

administrators holding positions comparable to Smith’s position who testified at his trial

indicated that they did not consider that a student-on-student matter could be child abuse.

Smith further maintains that it is illuminating that for the first three weeks the

police investigation was for obstruction of justice, not failure to report child abuse, and

that Officer Hopper never asked Smith during the November 19, 2010 interview whether

he realized what happened might be child abuse because the police were not investigating

child abuse or a failure to report it and inferentially did not realize at that time that G.G.’s

allegations might constitute child abuse. Smith argues that the statutory test speaks in

terms of training, and the evidence was undisputed that the administrators had received

training from a booklet which described child abuse of a sexual nature as a sexual act

between an adult and a child. Smith also asserts that the DCS hotline worker did not

perceive the report to relate to child abuse and “screened it out” due to the age of the

18
parties. Smith argues that DCS was required by law to send the school a report, which it

did not do and which provides further proof that DCS did not consider Smith’s report of a

forcible sexual assault between two sixteen-year-olds to be child abuse. Smith maintains

that the evidence was undisputed at trial that individuals with similar training and

experience as Smith, as well as DCS and police, did not immediately recognize that the

assault might be child abuse.

Smith further argues that the evidence was undisputed that he caused notice of the

assault to be given to the YOC, the institution where G.G. had been placed, within

minutes of learning of the assault, that the YOC in turn immediately notified DCS

through G.G.’s caseworker, that DCS received notification within forty minutes of

Smith’s knowledge of the assault, and that these events satisfied any duty to report as a

matter of law. Smith also argues that the evidence established that he made an oral report

to a DCS hotline four hours after learning of the allegation.

Smith also contends that the evidence shows that his action to report was

sufficiently contemporaneous to comply with the immediacy element of the statute. He

maintains that his counsel “has diligently reviewed the reported decisions from across the

country that detail the facts of prosecutions for failure to report child abuse,” that “no

case presents facts anywhere close to this one – a prosecution for failure to report within

four hours,” that “[a]ll deal with failures that extended over extended periods of time,”

that “a true effort to conceal abuse despite clear knowledge of its occurrence . . . is the

evil these statutes seek to prevent,” and that such conduct was not present in this case.

Appellant’s Brief at 32. Smith argues that although the reporting statute does not define

19
the term “immediately,” the two state agencies most heavily involved in child abuse

reporting and investigation, DCS and the Department of Education, have delineated a

boundary of twenty-four hours for what constitutes “immediately” in the context of

investigating child abuse in the case of DCS or reporting medical emergencies in the case

of the Department of Education, that such an interpretation is reasonable and fair, and

that “certainly the state permits a citizen some time to assess and reflect before he reports,

without penalty of being labeled a criminal and having his job and license in peril.” Id. at

33-34.

Smith asserts that administrators were faced with three distinct possibilities on

November 9th, namely, that G.G.’s report was truthful, that S.M.’s denial was truthful, or

that the two had a consensual encounter, and Smith argues that none of the educators at

the school that day believed that G.G. was a victim of child abuse. Smith also argues that

the legislature’s purposes and goals of the reporting statutes, which include in part to

encourage effective reporting and to provide effective child services to quickly

investigate reports, protection for abused children, and rehabilitative services, were

adequately served by a report within four hours under circumstances such as in this case.

The State argues that the evidence is sufficient to support Smith’s conviction. The

State asserts in part that a common-sense reading of the statutes would have informed

anyone of ordinary intelligence that Smith’s duties depended on his knowledge of

information, events and circumstances that would cause a person of similar background

and training to believe that G.G. had been raped.

20
 The State contends that Smith’s attempt to argue that “he cannot be guilty unless

he confessed or one of his co-workers accused him is without merit,” that “Section 31-9-

2-101 defines ‘reason to believe’ without reference to the individual’s subjective opinion

or perception,” and that “[t]he section imposes an objective test.” Appellee’s Brief at 12-

13. The State’s position is that “[t]he purpose of Section 31-9-2-101’s inclusion of

training and background is to gauge the duty to report according to the training and

background of the individual with knowledge of the facts,” that “[t]he state’s baseline test

is a person of ordinary background and training,” and that “[t]he Legislature’s intention is

not to hold laymen to the standard of experts, or exempt experts from the duty of laymen;

the Legislature intended to require that individuals act reasonably in their circumstances.”

Id. at 13-14. The State asserts that “Smith’s contrary interpretation, that he can only be

guilty if his co-workers agreed that abuse had occurred, or if DCS had initiated its own

investigation, is another nonsensical consequence that this Court should reject.” Id. at 14.

The State further argues that “[t]his Court should reject Smith’s invitation to

reinterpret the statute’s requirement of immediacy to allow up to twenty-four hours to

mull things over before deciding whether to report the abuse,” that “[t]here is no warrant

for this interpretation in the statute’s plain language,” that the legislature may distribute

duties and define crimes as it sees fit, and that the legislature reasonably determined that

“it may require more time to organize an ‘appropriately thorough child protection

assessment’ than it does to dial a telephone and communicate existing belief.” Id. at 15.

The State also says that Smith’s duty to report was not vicariously fulfilled by

Samuels’ call to the YOC, that Smith does not identify any provision in the placement

21
agreement which delegate’s DCS’s duty to receive reports of abuse and neglect to the

YOC, and that the YOC was not DCS’s agent for purposes of reporting G.G.’s abuse.

The State argues that Smith had a duty to report the rape after he reviewed G.G.’s written

statement and that his subsequent actions, which were intended to find a reason not to

report the abuse, do not exonerate him from his duty to report the rape. The State also

argues that “[t]aken most favorably to the verdict, . . . the evidence supports the

conclusion that Smith’s actions were a studied attempt to avoid acting on the belief that

[G.G.] had been raped and to ensure that if the rape were reported, the report would be

made away from school property and/or by persons who were not connected to the

school,” that “Smith sought to intimidate [G.G.] by ordering her to make a written

statement,” that “Smith declined to ask nurse Anderson about [G.G.’s] condition, even

after Smith had read [G.G.’s] written statement,” that “Smith ordered the unprecedented

action of having a disciplinary referral prepared against [G.G.],” that “Smith flatly

refused to inform police when asked by Samuels, and again after Jarvis suggested it.” Id.

at 25. The State argues that “it is undeniable that Smith’s actions represent only his own

desire that a report of the rape or an arrest for the rape not be connected to the school.”

Id. at 26.

In his reply brief, Smith argues that the crux of the State’s argument is that if

Smith had knowledge that G.G. may have been the victim of rape, that knowledge alone

triggered the duty to report. Smith argues that failure to report rape is not a crime and

that the legislature’s inclusion of the language of “similar background and training”

22
makes relevant any evidence of how similarly situated persons perceived information and

events. Appellant’s Reply Brief at 6.

DISCUSSION AND ANALYSIS

To the extent we must consider the statutes set forth at Ind. Code § 31-33-22-1,

Ind. Code § 31-33-5 and 6, and Ind. Code § 31-9-2-101, the primary purpose of statutory

interpretation is to ascertain and give effect to the legislature’s intent. State v. Lynch,

961 N.E.2d 534, 537 (Ind. Ct. App. 2012) (citing Gunn v. State, 956 N.E.2d 136, 139

(Ind. Ct. App. 2011)). A statute should be examined as a whole, avoiding excessive

reliance upon a strict literal meaning or the select reading of individual words. Id. (citing

Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007)). We presume that the legislature

intended for the statutory language to be applied in a logical manner consistent with the

statute’s underlying policy and goals. Id. at 537-538.

The legislature is presumed to have intended the language used in the statute to be

applied logically and not to bring about an unjust or absurd result. Sales v. State, 723

N.E.2d 416, 420 (Ind. 2000). We seek to give a statute practical application by

construing it in a way favoring public convenience and avoiding absurdity, hardship, and

injustice. Hampton v. State, 921 N.E.2d 27, 30 (Ind. Ct. App. 2010) (citing Merritt v.

State, 829 N.E.2d 472, 474 (Ind. 2005)), reh’g denied, trans. denied. In addition, we

conventionally construe penal statutes strictly against the State. Sales, 723 N.E.2d at

420; Hyche v. State, 934 N.E.2d 1176, 1178-1179 (Ind. Ct. App. 2010) (“We must also

strictly construe penal statutes against the State to avoid enlarging them beyond the fair

meaning of the language used.”) (citation omitted), reh’g denied, trans. denied.

23
 Ind. Code § 31-33-1-1 provides that the purpose of the article is to: (1) encourage

effective reporting of suspected or known incidents of child abuse or neglect; (2) provide

effective child services to quickly investigate reports of child abuse or neglect; (3)

provide protection for an abused or a neglected child from further abuse or neglect; (4)

provide rehabilitative services for an abused or a neglected child and the child’s parent,

guardian, or custodian; and (5) establish a centralized statewide child abuse registry and

an automated child protection system.

We observe that Ind. Code § 31-33-5-1 requires an individual “who has reason to

believe that a child is a victim of child abuse” to make a report. (Emphasis added).

Further, the amended charging information alleged that Smith had reason to believe that

G.G. “was” (and not that G.G. may have been) a victim of child abuse. We also observe

that the phrase “reason to believe” under Ind. Code § 31-9-2-101 “means evidence that, if

presented to individuals of similar background and training, would cause the individuals

to believe that a child was abused or neglected.” We note that the school administrators

assisting Smith and the school after G.G. reported her allegations to McCord testified at

trial, and that McCord, McCowan, Samuels, and Sloan each specifically testified that his

or her opinion on November 9, 2010 was that a sexual assault by a sixteen-year-old

student against another sixteen-year-old student was not child abuse. Further, Heller

testified that the guidelines or policies of the school did not contain a definition of child

abuse and that a pamphlet referred to sexual abuse as any sexual act between an adult and

a child. McCowan and McCord gave similar testimony regarding their training. At the

time of the call by Smith, Sloan, McCowan, and Samuels to the DCS-CPS child abuse

24
hotline, Sloan was unsure whether the assault involving G.G. was child abuse. Salhoff,

after learning the details of G.G.’s allegations from Smith, indicated that the case

“look[ed] like something we are going to screen out on our end.” Joint Exhibit 3 at 8.

The evidence shows that G.G. told McCord that she had been raped between 12:20

and 12:25 p.m.; that Smith spoke with Samuels at 12:38 p.m. and instructed her to call

the YOC; that Samuels called the YOC at approximately 12:40 or 12:45 p.m.; that as a

result of the call Dunigan contacted Annette at DCS soon after 1:00 p.m. and reported the

incident; that the YOC arranged to transport G.G. to the emergency room; that Anderson

stayed with G.G. at the school while waiting for Ross with the YOC to arrive; that

between 12:45 and 1:00 p.m., Smith attempted to contact Assistant Superintendent Heller

but was transferred to McCowan, the Director of Secondary Education, and Smith

reported G.G.’s allegations; that Smith and Jarvis questioned S.M.; that Ross arrived at

approximately 2:00 p.m. and transported G.G. to the hospital and that there was a delay

in examining G.G. at the hospital because an assault nurse was not initially available; that

the hospital staff called the Muncie Police at 3:25 p.m. and that officers arrived at the

hospital by 3:55 p.m.; that Smith called Ross and asked whether the school or the YOC

was going to file a report; and that at approximately 4:34 p.m. Smith, together with

Sloan, McCowan, and Samuels called the DCS-CPS hotline.

Thus, the evidence shows that Smith directed Samuels to notify the YOC within

twenty minutes of learning of the assault, that Annette with DCS was notified of the

assault soon after 1:00 p.m. as a result of Samuels’ call to the YOC, that Smith, together

with or relying in part upon the statements of Anderson, the school’s medical

25
professional, and Assistant Principal Samuels, questioned the truth of G.G.’s allegations

because they believed that G.G. had previously faked a seizure, that Smith and Jarvis

questioned S.M., that police were at the hospital by 3:55 p.m., and that, following the

conference call with Heller, Smith together with Sloan, McCowan, and Samuels called

the DCS-CPS hotline, which was approximately four hours after Smith initially learned

of G.G.’s report.

Although Smith and the other school administrators may have participated in other

administrative activities during the four-hour period such as the previously-scheduled

interviews, the evidence does not show that Smith ignored the alleged assault involving

G.G. but rather that he had Samuels contact the YOC which in turn immediately notified

DCS and made arrangements to transport G.G. to the hospital, questioned S.M., and

continued to discuss the incident with the other school administrators before and after the

call to the hotline. We also note that Ind. Code § 31-33-6-1 provides immunity from

criminal liability for a person who “makes or causes to be made a report” of child abuse,

that immunity does not attach for a person who has acted maliciously or in bad faith

under Ind. Code § 31-33-6-2, and that a person making a report or “assisting in any

requirement of this article is presumed to have acted in good faith” under Ind. Code § 31-

33-6-3. (Emphases added). An allegation that an individual has engaged in child abuse

is a serious claim, and a reasonable investigation made in good faith of such an allegation

prior to making a report is not improper and does not deprive the person required to make

such a report of statutory immunity. See Phillips v. Behnke, 531 N.W.2d 619, 623 (Wis.

Ct. App. 1995) (“An allegation that an individual has engaged in improper sexual

26
behavior with a child is extremely damaging both to the individual’s reputation and

career. Accordingly, investigating the reasonableness of one’s belief that a teacher has

engaged in sexual misconduct prior to making a report is proper and does not deprive the

individual of immunity.”).

The State needed to present evidence which proved the charged offense beyond a

reasonable doubt, and not merely present facts which tend to arouse suspicion of guilt, in

order to support a conviction and show that Smith had reason to believe, as defined by

the Legislature, that G.G. was a victim of child abuse and that Smith then knowingly

failed to immediately report such abuse. Based upon the evidence presented at Smith’s

trial, and keeping in mind that we must strictly construe penal statutes against the State,

we conclude that under these specific circumstances there is insufficient evidence of

probative value from which the trier of fact could reasonably have found beyond a

reasonable doubt that Smith committed the offense charged. Accordingly, we reverse

and vacate Smith’s conviction for failure to immediately report child abuse as a class B

misdemeanor. See Aguirre v. State, 953 N.E.2d 593, 597 (Ind. Ct. App. 2011) (reversing

the defendant’s conviction and concluding that there was insufficient evidence of

probative value from which the trial court could reasonably have found beyond a

reasonable doubt that the defendant committed the charged offense), trans. denied;

Phillips, 531 N.W.2d at 622-623 (noting that the respondents conducted a preliminary

investigation to verify the allegations before reporting the allegations to the proper

authorities, rejecting the suggestion that reasonable attempts at verification deprive a

reporter of immunity under the relevant statute, and concluding that expending a

27
reasonable amount of time to verify a child’s allegation of sexual misconduct is

consistent with the statute’s requirement that such information be reported immediately).

CONCLUSION

For the foregoing reasons, we reverse with instructions to vacate Smith’s

conviction for failing to immediately report child abuse or neglect as a class B

misdemeanor under Ind. Code § 31-33-22-1.

Reversed.

BAILEY, J., concurs.

VAIDIK, J., dissents with separate opinion.

28
 IN THE
COURT OF APPEALS OF INDIANA

CHRISTOPHER SMITH, )
)
Appellant-Defendant. )
)
vs. ) No. 18A02-1204-CR-331
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

VAIDIK, Judge, dissenting.

I respectfully dissent from the majority’s decision to vacate former Muncie

Central High School principal Christopher Smith’s conviction for failing to report child

abuse. I would find that Smith had reason to believe that sixteen-year-old G.G. was a

victim of child abuse and failed to immediately report the abuse.

On November 9, 2010, sixteen-year-old G.G. told a Muncie Central employee,

Kathaleena McCord, that another student at the school, sixteen-year-old S.M., had raped

her in the boys’ bathroom during lunch that day. G.G. told McCord this around 12:20

p.m. or 12:25 p.m. An informal, four-hour investigation of G.G.’s allegation then began,

conducted by a number of school employees—McCord, former associate principal Jackie

Samuels, and school nurse Trudy Anderson—all spearheaded by Smith. Witnesses would

later testify that Smith and the other Muncie Central employees had investigated G.G.’s

29
allegations because she had faked a seizure in the past and therefore believed she might

be lying about the rape and because they wanted to protect S.M.’s reputation.

Smith began the investigation by requiring G.G. to give him a written statement of

her allegations. After she did so, Smith read her statement and asked G.G. questions.

Smith interviewed S.M. and told the school’s athletic director to search S.M. and G.G.’s

lockers. Smith also instructed McCord to look for any video footage of S.M. and G.G. in

the school hallways that day. In addition, Smith sought advice on how to proceed from

numerous school officials. All the while, G.G. remained in McCord’s office; S.M. was

allowed to go home. G.G. was eventually taken to the local hospital for a sexual-assault

examination, which confirmed her allegations. S.M. later admitted that he raped G.G.

and pled guilty to sexual battery and criminal confinement.

Because G.G. had been adjudicated a CHINS and removed from her home years

earlier, the Department of Child Services (“DCS”) had placed G.G. in a residential

program at the Youth Opportunity Center (“YOC”) in Delaware County. G.G. was still

living at the YOC in November 2010. Shortly after G.G. reported the rape, Smith told

Samuels to call the YOC. Samuels did so at approximately 12:40 or 12:45 p.m.

Although Samuels made this initial call to the YOC, no one from Muncie Central

contacted DCS or any other authority to report G.G.’s allegations until 4:34 p.m., when

Assistant Superintendent Tim Heller verbally instructed Smith to call the child-abuse

reporting hotline.

On appeal, Smith contends that he had no reason to believe that G.G. was a victim

of child abuse such that he was required to make a report. Smith also argues that,

30
nonetheless, he did immediately report the abuse by virtue of Samuels’ 12:40 or 12:45

p.m. call to the YOC. The majority accepts Smith’s arguments. I believe that doing so

disregards the evidence most favorable to the judgment and undermines Indiana’s child-

abuse reporting statute. Further, the majority cites with approval case law from other

jurisdictions that permits verification of a child’s allegations of abuse before making a

report. I believe such a verification process is contrary to statute and, if permitted, may

have the highly undesirable result of suppressing or deterring reports of abuse.

Indiana Code section 31-33-5-1 requires “an individual who has reason to believe

that a child is a victim of child abuse or neglect to make a report as required by this

article.”15 The reporting statute provides that “reason to believe . . . means evidence that,

if presented to individuals of similar background and training, would cause the

individuals to believe that a child was abused or neglected.” Ind. Code § 31-9-2-101. If

a person has reason to believe that abuse or neglect has occurred, they “shall immediately

make an oral report to [] the department; or [] the local law enforcement agency.” Ind.

Code § 31-33-5-4. A person who fails to immediately report child abuse commits a Class

B misdemeanor. Ind. Code § 31-33-22-1(a).

Smith argues that he did not have reason to believe that G.G. was a victim of child

abuse. His primary argument in support of this claim is that he consulted many school

officials about G.G.’s allegations, none of whom believed that G.G.’s allegations

constituted child abuse because two children were involved. The majority seems to

accept this argument, noting school employees’ testimony to this effect and the fact that

15
Although this Chapter does not define “child,” Chapter 24 and 25 of this Article define “child”
as “an individual less than eighteen (18) years of age.” Ind. Code §§ 31-33-24-1, 31-33-25-1.
31
Muncie Central’s guidelines and policies did not define child abuse, though “a pamphlet”

referred to “sexual abuse” as “any sexual act between an adult and a child.” Slip op. at

26. But this ignores the common-sense conclusion that when a child is the victim of

abuse—regardless of the age of the perpetrator—the act is abuse of a child. Moreover,

one expressly stated goal of the reporting statute is the protection of children. See Ind.

Code § 31-33-1-1(3) (“The purpose of this article is to [] provide protection for an abused

or a neglected child from further abuse or neglect . . . .”). A child is no less in need of

protection from further abuse simply because his or her abuser is also a child. The

evidence most favorable to the judgment shows that a child, G.G., alleged that she had

been raped. I would find that Smith had reason to believe G.G. was a victim of child

abuse.

I would also find that Smith failed to immediately report the abuse. Smith claims

that he directed Samuels to contact the YOC at approximately 12:40 or 12:45 p.m., and

this constitutes an immediate report to DCS. I disagree. G.G. was a ward of DCS living

at the YOC. Smith, Samuels, and other witnesses testified that the YOC was contacted

because it was, in essence, G.G.’s parent or guardian and had to give permission for G.G.

to receive medical care. Notifying a parent or guardian of abuse allegations, even for the

purpose of obtaining permission to seek medical treatment for a victim, does not amount

to reporting allegations of abuse to authorities. And to the extent Smith argues that the

YOC was DCS’s agent for reporting purposes, I would also disagree. The record does

not establish that the YOC assumed DCS’s statutorily mandated duty to receive and

investigate reports of abuse or that the YOC indicated as much to Smith or Samuels.

32
Because Samuels’ call to the YOC did not constitute a report, the relevant report did not

occur until 4:34 in the afternoon, when Smith called the child-abuse reporting hotline. I

do not believe this report, made nearly four hours after G.G. said she had been raped, can

be called immediate.

Although this Court has yet to define the term “immediate” in the child-abuse

reporting context, I would consider the following factors in determining whether a report

was made immediately: (1) the identity of the person to whom the victim reports abuse;

(2) the impact any delay in reporting the abuse to the authorities might have on evidence

of the alleged crime; (3) the length of time between the victim’s report and the report to

authorities; and (4) the circumstances of any delay in reporting. Here, G.G. reported the

incident to her high-school principal, Smith, shortly after she was raped at the high

school. Instead of reporting this incident immediately to law-enforcement authorities or

DCS, Smith took it upon himself to investigate G.G.’s report. Critical evidence could

have been lost during this time frame as the location of the rape, a boys’ bathroom, was

not secured, G.G.’s attacker was allowed to go home, and G.G.’s sexual-assault

examination at a local hospital was potentially delayed. The fact that S.M. ultimately

admitted that he attacked G.G. does not change the fact that important evidence could

have been lost during this time period. Despite the relatively short time frame, four

hours, between G.G.’s report to Smith and Smith’s eventual report to DCS, the

circumstances viewed in a light most favorable to the judgment support the conclusion

that Smith failed to immediately report G.G.’s abuse to the proper authorities.

33
 Because what occurs—or does not occur—immediately after an allegation of

abuse is so critical, I respectfully disagree with the majority’s approval of case law from

another jurisdiction that permits the verification of abuse before reporting that abuse to

authorities. See Slip op. at 28-29. Allowing such a verification process undermines the

purpose of the statute, which is to encourage, rather than discourage the reporting of

suspected abuse and, in turn, ensure an impartial investigation. Ind. Code §§ 31-33-1-

1(1), 31-33-1-1(2).

This case exemplifies the dangers of sanctioning a verification process. Here,

school officials thought G.G. might be lying about the attack and wanted to protect the

reputation of her attacker. Undoubtedly school officials also had an interest in protecting

Muncie Central’s reputation as a safe environment, not an environment where rape

occurs during school hours. The internal investigation was hardly in the hands of

unbiased and impartial investigators.

By requiring that reports of abuse be made to DCS or the proper authorities, the

reporting statute aims to prevent a situation in which individuals familiar with an alleged

victim or abuser, or otherwise invested in the situation, conduct an informal investigation

shaped by bias or improper motives. The consequences of a tainted investigation are

high—evidence may be lost with the passage of time, allegations may be suppressed, and

victims may be reluctant to report abuse. For all of the above reasons, I respectfully

dissent and would affirm the judgment.

34