Attorney for Appellant
Lesa Lux Johnson
Indianapolis, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
WILLIAM CARPENTER
Appellant (Defendant below),
v.
STATE OF INDIANA
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S04-0204-CR-0257
)
) Court of Appeals No.
) 49A04-0105-CR-181
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-0006-105736
ON PETITION FOR TRANSFER
5April 14, 2003
SULLIVAN, Justice.
Defendant William Carpenter was charged with and found guilty of
child molesting as a class A felony for performing deviate sexual conduct
with his three-year-old daughter, A.C.[1] The Court of Appeals affirmed in
a not-for-publication opinion. William Carpenter v. State, No. 49A04-0105-
CR-181 (Ind. Ct. App. Feb. 4, 2002). Defendant sought and we granted
transfer. 774 N.E.2d 514 (table).
Background
The evidence most favorable to the judgment indicates that on the
morning of May 19, 2000, after Defendant had gone to work, A.C. complained
to her mother that “her ‘moo moo’ hurt.” She told her mother that “her
daddy put his fingers in her ‘moo moo’ and that it hurt real bad.” She
also told her mother that “her daddy’s ‘moo moo’ spit on her.”
In addition to A.C.’s statements to her mother, the following
additional evidence is of significance in this case: (1) the testimony of
A.C.'s maternal grandfather as to a conversation he had with A.C. shortly
after May 19, 2000; (2) a videotaped interview of A.C. conducted by
Detective Karen Dague and Amy Hinshaw from Child Protective Services on May
19, 2000; and (3) a medical examination of A.C. conducted by Dr. Philip
Merck at Wishard Memorial Hospital on May 19, 2000. The details of all of
this evidence will be discussed infra.
Prior to the trial, Master Commissioner Diane Marger Moore conducted
a “Child Hearsay Hearing” in which she determined that A.C. was not
competent to testify. A.C. was cross-examined by defense counsel during
this hearing. The trial court went on to rule that A.C.’s mother and
grandfather could testify at trial as to the statements A.C. made to them
and that the jury could view Dague and Hinshaw's videotaped interview with
A.C.
Discussion
This case requires us to determine whether certain out-of-court
statements of a child witness found to be incompetent to testify at trial
may be used as evidence in a child molesting prosecution. It requires us
to examine the interrelationship of the Indiana Rules of Evidence and the
Legislature’s “protected person statute,” Ind. Code § 35-37-4-6 (1998), and
to revisit many of the issues we discussed in Pierce v. State, 677 N.E.2d
39 (Ind. 1997).
There is no dispute that the statements made by A.C. to her mother and
grandfather and those made to the detectives on the videotape constituted
hearsay. Hearsay is a “statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay
evidence is inadmissible pursuant to Evidence Rule 802, unless it fits
within a few well-delineated exceptions. Miller v. State, 575 N.E.2d 272,
274 (Ind. 1991).
Hearsay is excluded from judicial proceedings because “its admission
defeats the criminal defendant’s right to confront and cross-examine
witnesses against him.” Williams v. State, 544 N.E.2d 161, 162 (Ind.
1989). At the same time, “[h]earsay evidence often helps the jury find the
truth; excluding hearsay testimony can deny the jury crucial evidence.”
Billie Wright Dziech & Charles B. Schudson, On Trial 136 (1991) (discussing
confrontation and hearsay in child sexual abuse prosecutions). Likely in
an effort to balance these competing interests, the Indiana General
Assembly enacted the “protected person statute,” Ind. Code § 35-37-4-6,
setting forth a detailed set of conditions under which evidence that is
“not otherwise admissible” will be allowed in cases involving crimes
against children and individuals with certain disabilities. To the extent
relevant to this case, these conditions provide that the statements and
videotape would be admissible if (1) the trial court found, in a hearing
attended by the child, that the time, content, and circumstances of the
statement or videotape provided sufficient indications of reliability and
(2) the child was available for cross-examination at the hearing.[2]
The facts here are highly reminiscent of Pierce. In each, a child
made statements to relatives and in a videotaped interview to authorities
that allege criminal sexual abuse of the child on the part of the
respective defendants. The respective trial courts ruled the children were
incompetent to testify at trial because they could not understand the
difference between the truth and a lie. The rules prohibiting the use of
“hearsay” ordinarily bar the prosecution from using such statements and
videotape at trial as evidence against the defendant. But the court both
in Pierce and in this case found the statements and videotapes admissible
under the protected person statute.
Because of the similarity, we will use the analytical template of
Pierce to examine Defendant’s claims in this appeal.
I
The essential facts in Pierce were these. At approximately 10 AM on
November 18, 1993, Pierce enticed a child to his car from a Wal-Mart where
the child had been shopping with her mother. Pierce returned her to the
store shortly thereafter where she told her mother and, a few minutes
later, arriving sheriff's officers that he had unbuckled her belt and put
his hand down her pants. At the sheriff's recommendation, the mother then
took the child to a doctor for a physical examination. The exam revealed
no injuries. The mother then took the child to the sheriff's department
for a videotaped interview with the sheriff. The interview began shortly
after 2:30 PM. The videotape was not included in the record on appeal and
we concluded that there was no showing that the videotape was more than
cumulative of the statements the child made immediately following the
incident. Pierce, 677 N.E.2d at 45.
The Pierce trial court held a hearing as required by the statute and
concluded that both the child’s statements at the Wal-Mart to her mother
and the sheriff’s officers and the videotaped statement given to the
sheriff later in the day provided sufficient indications of reliability and
were otherwise admissible under the protected person statute.
As Defendant does here with respect to the A.C.'s statements to her
mother and grandfather, Pierce argued that the testimony recounting the
child's statements to her mother and the sheriff's officers did not satisfy
the statutory requirements of reliability. In holding the trial court
within its discretion in allowing the testimony, we noted its findings that
the statements were "spontaneous," that they occurred "a very short time"
after the incident, that the child was "still excited" when the statements
were made, and that "there was no time for an adult to plant a story in her
head." Pierce, 677 N.E.2d at 45. We went on to note that these findings
were supported by the record.
We were more skeptical of the trial court's finding that the
videotaped interview was also sufficiently reliable. We expressed
particular concern that the videotaped interview with the sheriff "did not
occur until several hours after the alleged molestation. This passage of
time tends to diminish spontaneity and increase the likelihood of
suggestion. The interview took place after [the child] went through a
potentially disorienting physical examination at a doctor's office.
Moreover, [the child's] mother suggested several answers to [the child]
during the interview and asked her leading questions." Pierce, 677 N.E.2d
at 45.
However, we concluded that Pierce had not established reversible
error since he made "no showing that the videotape was more than cumulative
of the statements [the child] made immediately following the incident."
Id.
II
A
We begin our analysis of the disputed evidence in this case with the
videotape to which the State and Defendant give dramatically different
characterizations. The State says:
[T]he trial court properly found that the videotape had sufficient
indicia of reliability. As the trial court noted, A.C. spoke to two
unknown adults. These adults spoke to A.C. on her level without
attempting to overcome A.C.'s willingness to answer their questions.
Further, the questions were not leading, nor where they suggestive of
answers. Finally, throughout the interview, A.C. used consistent
language and terminology with which she was familiar.
Br. of Appellee at 13 (citations to record omitted).
For his part, Defendant urges us to review the videotape ourselves.
He says, "the child is often unresponsive and contradicts herself on even
the most simple of information such as the name and age of her brother and
herself. Most if not all of the questioning by the detective is leading as
was noted by the trial judge." Appellant's Br. at 17.
Highly sensitive to our role as a court of review only, we have
nevertheless reviewed the videotape. In the interview with a police
detective and child welfare caseworker, A.C. said that her father “touched
her moo moo.” Several times in the interview, A.C. was asked questions
about her “moo moo.” The detectives asked her to “describe her moo moo”;
“to draw her moo moo”; and “to point to her moo moo.” Initially, A.C.
responded either by shrugging her shoulders or telling the detectives, “I
don’t know.” A.C. was also unable or unwilling to point to her knee, her
eyes, or her nose. At one point, A.C. pointed at her finger and called it
“her nose.” However, A.C. did tell the detectives that she “would have to
go home to show them” her moo moo. She also indicated that both the
officer and her father had “moo moos.” When asked if her “moo moo” was
with her now, A.C. responded “yes.” When asked if her “moo moo” was on her
body, A.C. responded “yes.” When the detective pointed to her head and
feet and asked A.C. if either were a “moo moo,” A.C. shook her head “no.”
She told the detectives that her father touched the “inside” of her “moo
moo” with his hand. She said that it was the reason that she “had to go to
the doctor.” When asked by the detectives whether she had her pants on or
off when her father touched her “moo moo,” A.C. answered, “off.” A.C.
said that her father touched her “moo moo” when she was in her “bedroom
with the door shut.”
Later in the interview, when the detectives asked A.C. what she wore
over her “moo moo,” she answered, “tiny shorts.” A.C. lifted her legs up
and pointed to her underwear as she was answering this question. When the
officers asked if her “moo moo” was under her pants, A.C. responded, “yes.”
A.C. told the detectives that she saw “daddy’s moo moo.” When asked by
the detectives if her father had every touched her with his “moo moo,” A.C.
said “no.” However, A.C. told the detectives that her father “peed on
myself.” The detectives asked her if her father “peed” on her, A.C.
responded “yes.”
In reviewing the admissibility of the videotape at the Child Hearsay
Hearing, the trial court noted that “[t]here were two adults unknown to
A.C. in the room, and neither wearing a uniform of any type. Both were
sitting at the child’s level and in an innocuous environment.” The court
found “inconsistencies” in A.C.’s statements but indicated that Defendant
would be able to point out those inconsistencies during the trial. On
these bases, the trial court found that the statutory requirement of
"sufficient indications of reliability" had been met and that the videotape
could therefore be shown to the jury.
Defendant challenges the admissibility of the videotape on two
grounds. First, he argues that this court held in Pierce that fairness
required the jury be shown a videotape of the cross-examination of the
child at the Child Hearsay Hearing whenever the State is permitted to
introduce a videotape of a child’s statements to police. Second, he
maintains that the trial court abused its discretion in finding indicia of
reliability in A.C.'s videotaped statements.
It is true that in Pierce, we said that a Defendant normally should
be allowed to show a videotape of the cross-examination of the child at a
Child Hearsay Hearing, at least where the State is permitted to show the
jury a videotape statement of the child incriminating the defendant.[3]
But here the Child Hearsay Hearing was not videotaped and nothing in the
record suggests that Defendant requested the cross-examination to be
videotaped or shown to the jury. Because Defendant did not seek to have
the cross-examination videotaped or otherwise raise this argument at the
hearing or at trial, it is not available to him here.
We defer comment on Defendant's second argument until we review the
remainder of the evidence.
B
At the Child Hearsay Hearing, A.C.’s mother reported A.C.’s statements
to her on the morning of May 19. The mother testified that on the morning
of May 19, 2000, after Defendant had gone to work, A.C. told her that “her
moo moo was sore,” that “her daddy stuck his fingers in her moo moo and
that it hurt real bad,” and that “her daddy’s moo moo spit on her.” The
mother testified that “moo moo” was A.C.’s way of describing “her
privates.”
At the same Child Hearsay Hearing, A.C.’s maternal grandfather
testified that “a couple of days” after May 19, 2000, during one of their
“weekend walks,” A.C. had told him that her “daddy played with her moo moo
and it hurt real bad.” During the trial, the grandfather testified to
additional statements that were not offered during the Child Hearsay
Hearing concerning other statements that A.C. made to him during their
walks. At trial, but not at the hearing, he testified that “within a week”
of May 19, 2000, she had told him that the Defendant had “touched it” and
“one time in her bedroom he spread her legs way far and put his head down
there,” that Defendant "somehow showed himself to her in the bedroom, and
told her to touch him," that A.C. told him that "it hurt real bad" when
Defendant touched her “moo moo” and that she "wanted him to stop." The
grandfather testified at trial that A.C. had asked him to "have" Defendant
"stop."
Dr. Merck, the physician who examined A.C., was not a witness at the
Child Hearsay Hearing. However, he did testify at trial. Dr. Merck
testified that he examined A.C. on May 19, 2000. He said that her external
genitalia was somewhat reddened or erythematous. He further testified that
his examination neither confirmed nor negated the possibility of
molestation.
In reviewing the admissibility of the statement made to A.C.’s mother,
the trial court determined that “the mother had no reasons or suspicions
and was not in a position of being in a hostile situation with the
defendant” at the time the statements were made. In reviewing the
admissibility of the statements made to A.C.’s grandfather, the court
recognized that the grandfather could not “specifically identify” the dates
on which the conversations occurred. The court stated that the grandfather
indicated that “the first [conversation between A.C. and her grandfather]
was within a few days of what he called the ‘incident’ and later defined as
the Defendant’s arrest, and indicated that the second [conversation between
the A.C. and her grandfather] was within a week of the incident.” However,
the court determined that “the time factor did not depreciate from or is
not a negative circumstance in terms of considering the statement.” The
court said that “it could find no other circumstance or motive on the part
of the grandfather to distort statements that were in the language used by
the child.” Finally, the court found that A.C.’s term for genitals and her
description of what occurred was “consistent between the various
statements.” On these bases, the trial court found that there was
sufficient indicia of reliability to allow the mother’s and grandfather’s
accounts of A.C.’s statements to be introduced.
Defendant challenges these conclusions, arguing that the indicia of
reliability was not sufficient to permit the statements to be presented at
trial.
III
As a general matter, the decision to admit or exclude evidence is
within a trial court’s sound discretion and is afforded great deference on
appeal. Bacher v. State, 686 N.E.2d 791, 793 (Ind. 1997). We recently
went so far as to say that we will not reverse the trial court’s decision
unless it represents a manifest abuse of discretion that results in the
denial of a fair trial. Zawacki v. State, 753 N.E.2d 102 (Ind. 2001). An
abuse of discretion in this context occurs where the trial court’s decision
is clearly against the logic and effect of the facts and circumstances
before the court or it misinterprets the law. Hardiman v. State, 712
N.E.2d 976, 982 (Ind. 1999). At the same time, the protected person
statute impinges upon the ordinary evidentiary regime such that we believe
a trial court's responsibilities thereunder carry with them what we
recently called in another context "a special level of judicial
responsibility." See Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999).
As was implicit in Pierce, we apply somewhat heightened scrutiny in such
circumstances.
We turn first to the discrete issue of the proper interpretation of
A.C.'s use of the term "moo moo." During the hearing, none of the State,
Defendant, or trial court questioned the child specifically about the
details concerning the meaning of "moo moo," i.e., whether she made the
statements to her mother and grandfather about her and her father's "moo
moo," when they were made, or what she meant by them. As indicated supra,
A.C.’s mother explained during the hearing that the word “moo moo” was a
word that A.C. had come up with on her own to describe her “privates.”
A.C.’s grandfather testified during the hearing that A.C. had started to
refer to her genitalia as “moo moo” when she had problems with yeast
infections. At trial, A.C.’s mother testified that she had no idea why
A.C. used the word “moo moo” to describe her genitalia, but that it is what
she had always called it. A.C.’s mother further testified that A.C. also
called "boys' private areas ‘moo moos.’” At trial, A.C.’s grandfather also
testified that A.C. had used the term “moo moo” to describe her genitalia.
The defendant objected to the admission of the hearsay statements at both
the hearing and the subsequent trial, but did not make any contrary
arguments as to the proper interpretation of A.C.'s use of the term “moo
moo.”
In examining the interpretation of A.C.'s use of the term “moo moo,”
the trial court concluded, “They were close in time to the event, they were
in terms that the child apparently uses, although she did not use those
terms today, but what she apparently uses, based on the testimony of her
mother.” We see no abuse of discretion in concluding that, by her use of
the term "moo moo," A.C. was referring to her own and to male genitalia.
However, on the broader issue of whether there was sufficient indicia
of reliability to present the statements of the mother and grandfather and
the videotape to the jury, we are unable to sustain the trial court's
ruling. In Pierce, we found highly significant that the child's statements
were spontaneous and occurred a very short time after the alleged
molestation. It is true that A.C. repeated the same or similar statements
to her mother, to her grandfather, and on the videotape. But here there is
no evidence at all as to when the alleged molestation occurred. That is,
while the evidence supports a conclusion that the mother sought both
medical attention and the intervention of law enforcement after her
conversation with A. C. on May 19, there is absolutely nothing of record to
tie the alleged molestation to May 19 or any other date. Indeed by
alleging in its charging information that the offense occurred “on or
before April 1, 2000 and May 19, 2000,” the State effectively concedes
there was a period exceeding six weeks during which the alleged molestation
could have taken place.
In Pierce, we expressed our concern that the videotape interview
occurred several hours after the alleged molestation and after the
"potentially disorienting physical examination at a doctor's office."
Pierce, 677 N.E.2d at 45. Our reason for concern was that intervening
delay created the potential for an adult to plant a story or cleanse one.
Id. The same concern attaches to the videotape interview here, and it
appears that A.C.'s statements to her grandfather occurred at least a full
day after her statements to her mother and her videotape interview.[4]
Added to these difficulties, we note that during the competency
determination at the hearing, A.C. was asked three times in different ways
whether she understood the difference between the truth and a lie. A.C.
responded that she did not.[5] It was on this basis that the trial court
found that she was incompetent to be a witness in the case and unavailable
to testify at trial. While it is certainly true that the protected person
statute provides that a statement or videotape made by a child incapable of
understanding the nature and obligation of an oath is nevertheless
admissible if the statute's requirements are met, there is a degree of
logical inconsistency in deeming reliable the statements of a person who
cannot distinguish truth from falsehood.
We find that the testimony recounting A.C.'s statements to her mother
and grandfather and her videotape interview failed to exhibit sufficient
indications of reliability as the protected person statute requires because
of the combination of the following circumstances: there was no indication
that A.C.'s statements were made close in time to the alleged molestations,
the statements themselves were not sufficiently close in time to each other
to prevent implantation or cleansing, and A.C. was unable to distinguish
between truth and falsehood.
IV
However, it is not every error or abuse of discretion that warrants
reversal of judgment of conviction. Only when the error abuse of
discretion affects the substantial rights of a party or is inconsistent
with substantial justice is reversal warranted. Ind. R. Tr. P. 61.
Finding that it was error an abuse of discretion to admit A.C.’s hearsay
statements into evidence, we necessarily examine whether there was
sufficient evidence to support Defendant's conviction without the
improperly admitted evidence.
The offense of child molesting is defined in Ind. Code § 35-42-3(a)
as the performance or submission of sexual intercourse or deviate sexual
conduct with a child under fourteen years of age. Ind. Code § 35-42-4-
3(a)(1). The only evidence in support of the element of performance of
deviate sexual conduct was the improperly admitted hearsay statements of
A.C. to her mother and grandfather and on the videotape, i.e., without
A.C.’s hearsay statements, there was a complete failure of evidence on an
essential element of the charged offense. We find the admissible evidence
submitted at trial insufficient to sustain Defendant's conviction.
V
Defendant advances several arguments to the effect that the evidence
actually presented at trial was insufficient as a matter of law to sustain
his conviction. A consequence of such a holding would be that Defendant
could not be retried on these charges. Stahl v. State, 686 N.E.2d 89, 94
(Ind. 1997).
First, we wish to make clear that our reversal of Defendant's
conviction on grounds of improperly admitted evidence does not bar retrial.
Id. (“[I]f all the evidence, even that erroneously admitted, is
sufficient to support the jury verdict, double jeopardy does not bar a
retrial on the same charge.")
As to the three claims of insufficient evidence Defendant advances,
we believe relatively summary treatment sufficient. As to Defendant's
claim that the State did not present sufficient evidence that the charged
offense occurred in Indiana, we find that there was evidence of record that
the family was living in Indiana when the alleged events complained of
occurred. As to Defendant's claim that the State failed to prove that he
was over the age of 21 when the charged offense occurred, there was
testimony at trial that one witness had known Defendant for "thirty-seven
years." As to Defendant's claim that A.C.'s hearsay statements offered at
trial via the testimony of her mother, her grandfather, and the videotape
were "incredibly dubious," we find the consistency of these statements
alone mandates against application of the "incredible dubiosity rule,"
which is implicated only where a sole witness presents inherently
contradictory testimony. Whedon v. State, 765 N.E.2d 1276, 1278 (Ind.
2002).
Conclusion
Having previously granted transfer, we remand for a new trial or
other proceeding consistent with this opinion.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-4-3(a).(1998).
[2] Additional statutory requirements to be satisfied on the facts of this
case are not implicated by this appeal. These are found in Ind. Code § 35-
37-4-6(c)(2), (e), and (f) (1993).
[3] “In this case there was no cross-examination of the victim at the
hearing. If that cross-examination takes place and a videotape is to be
admitted, it is within the trial court’s discretion, and we believe the
better practice, to permit the cross-examination to be videotaped and shown
with the tape of the victim’s statements. The basis for admitting the tape
of the victim’s statements is its reliability as determined by the trial
court, not the cross-examination. In this respect, the tape is
qualitatively the same as testimony recounting out-of-court statements.
Nonetheless use of the tape of the victim smacks of permitting the victim
to become a witness, albeit it an electronically reproduced witness.
Although the statute does not explicitly speak to the point, under those
circumstances fairness to the defendant would normally require giving the
defendant the option to display to the trier of fact a tape of any cross-
examination done either during the hearing or during the taping of the
statement itself. As with any tape offered at trial, the trial court may
order or the parties may agree to editing of objectionable portions of the
tape. The points made in this paragraph are in exercise of our supervisory
powers and are not derived from constitutional jurisprudence. They are not
applicable to proceedings conducted before publication of this opinion.”
Pierce, 677 N.E.2d at 46-46.
[4] May 19, 2000, was a Friday and the grandfather testified that his
conversation occurred "during a weekend walk."
[5]At the child hearsay hearing A.C. was also questioned by the State:
Q Okay, do you know how to tell the truth?
A (Inaudible response.)
Q Say it out loud please.
A No.
After cross examination by the defendant, A.C. was questioned again by the
State:
Q Just wrap it up. I want to talk to you a little bit more about
telling the truth. Do you know what it means to tell the truth?
A. (Inaudible response.)
Q You have to use a word out loud.
A No.
Q Do you know what it means to tell a lie?
A. No.