Gerald P. VanPatten v. State of Indiana

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Stephen Miller Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana

Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana

In the
Indiana Supreme Court May 02 2013, 11:16 am

No. 02S03-1205-CR-251

GERALD P. VANPATTEN,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

Appeal from the Allen Superior Court, No. 02D04-0911-FA-69
The Honorable John F. Surbeck, Jr., Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1103-CR-113

May 2, 2013

David, Justice.

When a competent adult patient visits a doctor and provides the physician with a medical
history intending to aid in their diagnosis or treatment, we presume those statements are made
truthfully because adults know that lying to one’s doctor risks misdiagnosis or mistreatment.
Accordingly, the Rules of Evidence generally allow medical professionals to provide substantive
testimony as to the statements their patients make in the course of providing their medical
history—even though that testimony would ordinarily be excluded as hearsay. When the patient
is a young child, however, it is not so easy to assume that he or she recognized the merit of
providing a nurse or doctor with truthful information. Because of this, we require a more robust
evidentiary foundation be laid before the same type of hearsay testimony is seen as reliable
enough to be admitted.

Here, a defendant was convicted on two counts of child molestation and the only
substantive evidence implicating him in those crimes was a forensic nurse examiner who
testified about statements made by the alleged victim—a six-year-old child who, at the time of
trial, had recanted. Based on our review of the trial record, however, there was an insufficient
showing that the child victim in this case was motivated to provide truthful information to her
nurse. Because of this, the nurse’s testimony should not have been admitted as substantive
evidence against the defendant and we therefore vacate his convictions with respect to those two
counts of child molestation.

Facts and Procedural History

Gerald VanPatten is the biological father of S.D. During the summer of 2009, S.D.’s
close friend, E.R., would often spend the night at S.D.’s house. The two girls, then around six
years old, would sleep in the same bed. One morning in August of that summer, after a similar
sleep-over, E.R. and S.D. told S.D.’s mother that VanPatten had molested them. E.R. ran back to
her home and S.D.’s mother contacted her pediatrician, who directed her to the Department of
Child Services.

S.D.’s mother took S.D. to a DCS office to be interviewed by a caseworker. DCS also
contacted E.R.’s family and requested that E.R. be brought in for an interview as well. During
the course of the interviews (which were videotaped), both girls stated that VanPatten had
molested them—E.R. the previous evening and S.D. on prior occasions.

2
 Both girls were then taken to the Fort Wayne Sexual Assault Treatment Center where
they were examined by Joyce Moss, a forensic nurse examiner. Moss collected several
biological samples from E.R. but not from S.D., because S.D. had allegedly been molested
outside the window of time where such samples would still be viable. 1 Neither girl showed any
signs of physical injury.

On November 17, 2009, the State charged VanPatten with three counts of class A felony
child molesting2 and one count of class C felony child molesting.3 Two of the class A felony
counts, Counts I and II, related to S.D., and one, Count III, related to E.R. Count IV, the class C
felony count, related to S.D.

VanPatten hired counsel to represent him, but on December 13, 2010—five weeks before
his trial date—VanPatten mailed a letter to the trial judge requesting a hearing in order to fire
those attorneys in open court. In response, his attorneys filed a motion to withdraw, citing a
breakdown in the attorney-client relationship that precluded any further representation. The trial
court denied their motion to withdraw after a hearing on January 10, 2011.

At trial, E.R. testified in a manner generally consistent with the interviews she gave to
DCS and Moss, alleging that VanPatten molested her on multiple occasions while she was
spending the night with S.D. She also initially testified, on both direct and cross-examination,
that she had never seen VanPatten molest anyone else. But later on cross-examination she

1
At trial, a forensic scientist would testify that the analysis performed on these samples showed a mixture
of biological profiles from which VanPatten could not be excluded. Additionally, a number of the
samples included DNA containing Y chromosomes—in other words, DNA from a male.
2
Ind. Code § 35-42-4-3(a) (2008).
3
Ind. Code § 35-42-4-3(b) (2008).

3
testified that sometimes VanPatten’s actions woke S.D. up, and when that happened “[h]e would
do it to her.” (Tr. at 212.)

S.D., however, recanted her previous allegations. She testified that she could not
remember ever telling anyone that VanPatten did bad things to her, nor could she remember
talking to E.R. about it. She remembered being interviewed by DCS, and had watched the
videotape of the interview, but now claimed that what she said there was not true. She explicitly
denied that VanPatten ever touched her “in a bad way or in a way that made [her] feel
uncomfortable.” (Tr. at 251.) The State sought to admit the videotape of the DCS interview to
either refresh her memory or, barring that, as substantive evidence of VanPatten’s conduct.
VanPatten objected, and after discussion the trial court excluded the videotape.

The State then called Moss to testify as to what E.R. and S.D. told her during their
forensic examinations, seeking to apply the hearsay exception found in Indiana Rule of Evidence
803(4) for statements made for the purpose of medical diagnosis or treatment. VanPatten
objected, arguing that there was an insufficient foundation to support the use of the exception.
The trial court overruled his objection and allowed Moss’s testimony as substantive evidence.

On the stand, Moss referred to a written medical report summarizing the patient histories
that she collected from the two girls, but she had no independent recollection of the specific
interactions between herself and S.D. or E.R. With respect to S.D., Moss testified that her report
said “[p]atient states he put his private on my private, on the inside. He put his mouth on my
private and he put his finger in my private. Patient states white stuff came out of his private.”
(Tr. at 349.) The report did not identify the alleged perpetrator.

To impeach S.D.’s testimony that VanPatten had never molested her, the State called
Danielle Goewert, the DCS employee who initially interviewed E.R. and S.D. VanPatten
objected. The trial court permitted Goewert’s testimony, though admonishing the jury that it was
to be considered only for the purposes of assessing S.D.’s credibility—not as substantive proof
of the crime. Goewert testified that in her interview, S.D. said she had been molested by

4
VanPatten and explicitly described acts similar in nature to those presented in Moss’s patient
history.

At the conclusion of the State’s case in chief, VanPatten moved for judgment on the
evidence with respect to the counts arising out of S.D.’s allegations. He argued that even with
Moss’s testimony, there was no substantive evidence identifying him as the perpetrator with
respect to S.D. While Goewert testified that S.D. had identified VanPatten, that testimony was
solely for impeachment purposes—and all of the biological evidence was collected from E.R.,
not S.D. The trial court denied his motion, finding a nexus between testimony from S.D.’s
mother—that she did not want S.D. around VanPatten after E.R. and S.D. told her they had been
molested—and Moss’s testimony as to the patient history provided her by S.D.

The jury acquitted VanPatten of Count I, but convicted him of the remaining three
charges. He received a sentence of forty years on each of the remaining class A felony counts, to
be served consecutively, and a four-year sentence on the class C felony count, to be served
concurrent to the second class A felony sentence.

VanPatten appealed the denial of his attorneys’ motion to withdraw. He also appealed
the admission of Moss’s testimony, claiming it was improperly admitted under Indiana Evidence
Rule 803(4), and claimed there was insufficient evidence to sustain his convictions for Counts II
and IV. A divided panel of the Court of Appeals affirmed in an unpublished memorandum
decision. VanPatten v. State, 2012 WL 456483 (Ind. Ct. App. Feb. 14, 2012).

All three judges concurred that the trial court was within his discretion to deny the
motion to withdraw filed by VanPatten’s attorneys, and did not do so arbitrarily or unreasonably.
Id. at *3–4. The majority also affirmed VanPatten’s convictions for molesting S.D., finding that
Moss’s testimony was properly admitted under Rule 803(4) and that there was sufficient
evidence of his guilt. Id. at *6–7.

5
 Judge Baker dissented with respect to Moss’s testimony, believing it was not sufficiently
reliable to be admissible and that without it the substantive evidence was insufficient to affirm
VanPatten’s convictions. Id. at *7–8 (Baker, J., concurring in part and dissenting in part). We
granted transfer, thereby vacating the decision of the Court of Appeals. VanPatten v. State, 967
N.E.2d 1034 (Ind. 2012) (table); Ind. Appellate Rule 58(A).

Given the facts and circumstances of this particular case reflected in the record on appeal,
we agree with the Court of Appeals that Judge Surbeck was within his discretion to deny
VanPatten’s attorneys’ motion to withdraw and that he did not act arbitrarily or unreasonably to
the extent VanPatten implies a denial of his right to fire the lawyers he hired.4 Accordingly, we
summarily affirm that portion of the Court of Appeals opinion, Ind. Appellate Rule 58(A)(2),
and write here only on whether Moss’s testimony was properly admitted and the impact of that
determination on his convictions.

Standard of Review

The decision to admit or exclude evidence at trial is squarely within a trial court’s
discretion and we afford it great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702
(Ind. 2003). We will not reverse such a decision, often made in the context of heated testimony
and argument, unless it is clearly contrary to the logic and effect of the facts and circumstances
of the case or misinterprets the law. Id. at 703.

4
For that matter, although it has no bearing on our assessment of this issue, we commend VanPatten’s
counsel for their presentation of his defense. The record reflects a trial conducted with a high level of
competence and advocacy on both sides of the aisle—and presided over by one of the finest trial judges in
Indiana—that is particularly admirable in light of the apparent disputes between defense counsel and their
client.

6
 I. Admission of Moss’s Testimony

A hearsay statement is one “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 statements are not admissible, except pursuant to certain exceptions within
the Rules of Evidence. Ind. Evidence Rule 802.

One such exception generally permits statements made for the purpose of medical
diagnosis or treatment to be admitted into evidence, even when the declarant is available. Ind.
Evidence Rule 803(4). The statements must be “made by persons who are seeking medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.” Id. Rule 803(4)’s exception is grounded in a
belief that the declarant’s self-interest in obtaining proper medical treatment makes such a
statement reliable enough for admission at trial—more simply put, Rule 803(4) reflects the idea
that people are unlikely to lie to their doctors because doing so might jeopardize their
opportunity to be made well. See White v. Illinois, 502 U.S. 346, 356 (1992) (“a statement made
in the course of procuring medical services, where the declarant knows that a false statement
may cause misdiagnosis or mistreatment, carries special guarantees of credibility”).

This belief of reliability, though, necessitates a two-step analysis for admission under
Rule 803(4): First, “is the declarant motivated to provide truthful information in order to
promote diagnosis and treatment,” and second, “is the content of the statement such that an
expert in the field would reasonably rely on it in rendering diagnosis or treatment.” McClain v.
State, 675 N.E.2d 329, 331 (Ind. 1996). Statements made by victims of sexual assault or
molestation about the nature of the assault or abuse—even those identifying the perpetrator—
generally satisfy the second prong of the analysis because they assist medical providers in
recommending potential treatment for sexually transmitted disease, pregnancy testing,
psychological counseling, and discharge instructions. See Palilonis v. State, 970 N.E.2d 713,
726–27 (Ind. Ct. App. 2012), trans. denied.

7
 The first prong of the test, the declarant’s motive to promote treatment or diagnosis, is
equally crucial to a determination of reliability. McClain, 675 N.E.2d at 331. “[T]he declarant
must subjectively believe that he was making the statement for the purpose of receiving medical
diagnosis or treatment.” Id. With most declarants, this is generally a simple matter: “[o]ften,
for example where a patient consults with a physician, the declarant’s desire to seek and receive
treatment may be inferred from the circumstances.” Id.

But in cases like the one here, where the declarant is a young child brought to the medical
provider by a parent, we have acknowledged that such an inference may be less than obvious.
See id. Such young children may not understand the nature of the examination, the function of
the examiner, and may not necessarily make the necessary link between truthful responses and
accurate medical treatment. In that circumstance, “there must be evidence that the declarant
undersood the professional’s role in order to trigger the motivation to provide truthful
information.” Id. (citing U.S. v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993)). This evidence does
not necessarily require testimony from the child-declarant; it may be received in the form of
foundational testimony from the medical professional detailing the interaction between him or
her and the declarant, how he or she explained his role to the declarant, and an affirmation that
the declarant understood that role. Barrett, 8 F.3d at 1300. But whatever its source, this
foundation must be present and sufficient.

Appellate review of this issue is necessarily case-specific and turns on the facts and
circumstances of each case as they are reflected in its record. In McClain, for example, where a
family therapist provided hearsay testimony under Rule 803(4) that a patient told her he had been
molested, we held that this “requisite indicia of reliability” was missing. McClain, 675 N.E.2d at
331. “There [was] no evidence that the victim sought the therapist’s help or that he believed he
was receiving any treatment.” Id. The declarant testified only that he knew his family therapist
“was his ‘counselor’ and that he talked to her about what McClain did to him.” Id. “Thus, the
record [was] devoid of any evidence showing that the victim understood he was speaking to a
trained professional for the purposes of obtaining diagnosis of, or providing treatment for,
emotional or psychological injuries.” Id.

8
 And in Cooper v. State, 714 N.E.2d 689 (Ind. Ct. App. 1999), trans denied, a registered
nurse provided hearsay testimony in the form of statements made to her by a child victim of
sexual molestation during the course of a physical examination. Id. at 690. The Court of
Appeals affirmed the admission of the testimony. Id. at 691. When assessing whether the first
prong of the McClain test was satisfied, the court reviewed the foundational testimony provided
by the nurse with respect to the interaction she has with children prior to those sorts of
examinations—and the specific interaction she had with the child victim in that case. Id. at 692–
694. A few critical items of that testimony stood out to the court.

With respect to the nurse’s standard procedure, she testified that “we introduce ourselves
to the child . . . and have the child get to know us.” Id. at 692. “After you do the initial trying to
get to know the child . . . generally I’ll just take my time . . . just let them know who I am and
who the doctor is . . . and then I’ll start addressing the child, ask them if they know why they’re
in the emergency room.” Id. The State specifically asked the nurse “When you’re dealing with
the child, you tell them who you are and what your job is?” Id. The nurse responded that “I
usually tell them my name is Kim and I’ll be their nurse and I’ll be with them the whole time . . .
[l]et them know what they are going to expect, what the doctor is going to do, and that it’s okay
for the doctor and nurse to take a look at them.” Id.

With respect to the victim in Cooper, the nurse testified that she followed that same
procedure, and that she let the victim know that “[h]er mom brought her in because of
something, and if she’s going to tell me what that something is when she feels comfortable to
talk to me about it.” Id. at 693. She said “I asked her if she knew why she was there in the
emergency room, and I believe she thought she was going to get an exam. She needed to get
examined, but she didn’t know why.” Id. at 694. Only after that introduction was made did the
victim make substantive statements to the nurse as to the nature of the molestation and the
perpetrator. Id.

Taken together, the court in Cooper held that the testimony provided a proper foundation
for the admission of the nurse’s testimony under Rule 803(4). The victim “knew that she was in

9
the emergency room for an examination by a physician because of the molestation by Cooper.
[She] sufficiently understood the professional role of both the nurse and the doctor who
examined her, thus triggering the motivation to provide truthful information.” Id. at 694.

Later, in In re W.B., 772 N.E.2d 522 (Ind. Ct. App. 2002), two parents appealed the
termination of their parental rights with respect to their two young children. Id. at 524. A factor
in the termination decision was a finding by the trial court that the children were subjected to
sexual and physical abuse by the parents—a finding based entirely on hearsay testimony
provided by a therapist who relayed statements made to her by the children. Id. at 532. The
Court of Appeals found that the testimony failed the first prong of the McClain test because the
record was “devoid of any evidence . . . that the children, in making these statements, were
‘motivated to provide truthful information in order to promote diagnosis and treatment.’” Id. at
533 (quoting McClain, 675 N.E.2d at 331). The court did not go into as much detail regarding
the foundational testimony, but highlighted that it “clearly portrayed the young children as
mentally and emotionally incompetent, and no doubt totally unaware of [the therapist’s]
professional purpose.” Id.

Finally, in In re Paternity of H.R.M., 864 N.E.2d 442 (Ind. Ct. App. 2007), a father
appealed a modification of his visitation rights that was based largely on hearsay testimony of
sexual abuse provided by a clinical social worker. Id. at 444–45. The Court of Appeals
reviewed the analysis in McClain, W.B., and Cooper, and by comparison found that “the record
contain[ed] no indication that H.R.M. had the requisite motivation to tell the truth, as no
evidence indicates that she knew [the social worker’s] role or that she was being interviewed for
the purpose of medical diagnosis.” Id. at 447.

Though the social worker testified that the purpose of the interview was to assist the child
with certain issues and formulate an individualized treatment plan, there was no evidence that the
child knew she was there for that purpose. Id. And unlike in Cooper, the social worker’s
testimony “did not indicate that she explained to H.R.M. the purpose of the interview, or that
H.R.M. knew she was at the interview to facilitate medical diagnosis and treatment.” Id.

10
Accordingly, the Court of Appeals found that the social worker’s testimony failed the first prong
of the McClain test and was therefore improperly admitted. Id.

With that spectrum in mind, we look to the record at trial here to answer whether it
reflects a sufficient foundation for Moss’s testimony. First, Moss testified as to her usual
procedure for introducing herself to patients:

Q: How do you introduce yourself to children who are going to be
examined? Do you have a procedure that you try to use all the
time?

A: I do. I usually introduce myself as Joyce, and I’m a nurse, just
like the nurses at your doctor’s office. It’s my job to make sure
that you’re okay.

***

Q: Okay. So you ask general health issues and you also talk to
them about why you’re there to see them and provide treatment to
them.

A: Yes.

***

Q: And is that standard procedure in every child or patient you
see?

A: Yes it is.

Q: Did you do all these procedures, would you have done all the
same procedures with [E.R.]?

A: Yes.

Q: During the history portion of [E.R.] did you specifically ask her
questions related to why you were going to be conducting your
examination?

A: Yes.

11
(Tr. at 322–24.) At that point, the prosecutor asked Moss to relay the patient history provided to
her by E.R., and VanPatten objected. (Tr. at 324.) VanPatten’s counsel was permitted to ask a
few preliminary questions:

Q: Good afternoon, just briefly, you told Ms. Speith what you
generally tell children. Do you remember exactly what you told
[E.R.] when she came in?

A: I would have asked her if she knew why she was there.

Q: Okay. Now you remember me taking your deposition last
October, right?

A: Yes.

Q: Do you remember telling me at that time that you didn’t have
any independent recollection of your interview with [E.R.] or
[S.D.] other than what’s in your report? Do you need me to repeat
that question?

A: Yes.

Q: I asked you at the deposition if you had any independent
recollection of your interviews with either [E.R.] or [S.D.].
Remember me asking you that question?

A: Yes.

Q: And you told me no, you did not. That other than what’s in
your report you have no independent recollection. Remember
saying that?

A: Yes.

Q: Okay. And it’s true that your conversation upon meeting
[E.R.] is not in your report, correct?

A: That is correct.

Q: So are you speaking in generalities, in other words, it’s your
habit to say these things to a child or are you specifically now, five
months later, three months later, all of a sudden you remember
exactly what you told [E.R.] ?

12
 A: It is habit.

Q: So you don’t know for sure what you told [E.R.]?

A: Correct.

***

Q: Okay. And I think you said earlier that you would have told
her, typically what you say, my job is to see that you’re okay.

A: Correct.

Q: Do you remember telling either [E.R.] or [S.D.] specifically,
I’m going to ask you some questions and it’s important for you to
tell me the truth because I’m going to provide you medical care?

A: I would not have said that to them.

(Tr. at 325–27.) VanPatten reiterated his objection to Moss’s substantive testimony, arguing that
there was an insufficient foundation of reliability with respect to the evidence of E.R. and S.D.’s
motivation to be truthful. That State responded that “[w]e’ve all been to doctors, we’ve all been
to hospitals and we talk to every physician or nurse who’s ever treated us, when they ask us why
we’re there for, never says that it’s important to be truthful because we’re going to be providing
you medical treatment based on what you say.” (Tr. at 328.) “She’s at a medical facility, it
looks like a medical facility, she’s dressed as a nurse, it’s a six year old child who clearly
understands doctors office (inaudible word).” (Tr. at 328.) The trial court overruled VanPatten’s
objection.

Later, Moss testified as to her interview with S.D.:

Q: Okay. So the first time you met [S.D.] is when she came to
your office and do you recall approximately what time she got to
your office?

A: May I refer to my notes?

Q: Sure.

13
A: She arrived right at about 8:40 p.m.

Q: And did she come alone or with somebody else?

A: She came with her mother.

Q: Did you follow the same procedure with [S.D.] that you did
with [E.R.] as far as introducing yourself?

A: Yes I did.

Q: Are you still wearing scrubs?

A: Yes.

Q: The same or different scrubs?

A: The same.

Q: Are you still in the same medical office building or medical
building?

A: Yes.

***

Q: Okay. So you introduce yourself to [S.D.], correct?

A: Yes.

Q: Then what happened after you introduced yourself to [S.D.]?

A: I would have then collected a medical history as well as had the
consent signed.

Q: Okay. And her mother signed consent authorizing an
examination, is that correct?

A: Yes, that is correct.

Q: Okay. And then is that when you take the child back to the
room without their parents.

A: Correct.

Q: When you got [S.D.], was she also six?

14
 A: Yes.

Q: When you got [S.D.] back into the examination room, did you
then talk to her about, did you get a continuing medical history
from her so that you knew what had happened?

A: Yes I did.

Q: And did you get the statement from [S.D.] herself?

A: Yes I did.

Q: What did [S.D.] tell you about what had happened and why she
was there for a medical exam?

(Tr. at 344–46.) VanPatten objected again, and was again permitted to ask a few preliminary
questions:

Q: Ms. Moss, again, without trying to be too redundant, but again,
no independent recollection outside of what is in your report as to
this specific interview with [S.D.]?

A: Correct.

Q: Okay. And you don’t remember exactly what you told her
prior to interviewing her?

A: No.

Q: Other than what you normally tell children.

A: Correct.

(Tr. at 347.) VanPatten renewed his hearsay objection, and the trial court again overruled it.

VanPatten highlights that Moss had no specific memory of what she said to S.D. and E.R.
prior to interviewing them, and that there was no testimony to establish either girl knew what
telling the truth meant, much less the importance of telling the truth in a medical examination,
(Appellant’s Br. at 20–21.) The State argues as it did at trial: that this record here is similar to
Cooper, and points to the examination taking place in a building that looked like a medical clinic,

15
equipped with an exam table and equipment like a doctor’s office, and that Moss was wearing
scrubs and introduced herself as a nurse whose job it was to make sure that the girls were okay.
(Appellee’s Br. at 15.)

Were S.D. and E.R. older, certainly the State is correct that the appearance of the
building, the exam room, and Moss’s scrubs and job title would probably be sufficient
circumstances from which to infer that the two girls desired to seek medical treatment and were
thus motivated to speak truthfully. But as we said in McClain, with young victims, “that
inference is not obvious,” and “there must be evidence that the declarant understood the
professional’s role in order to trigger the motivation to provide truthful information.” McClain,
675 N.E.2d at 331. In fact, as the witness in Cooper testified, these “obvious” signs may
sometimes be an impediment to a motivation to tell the truth because “[m]ost kids even though
you try and set them at ease, they still think they did something wrong or that because they’re in
[the emergency room] they are going to get a shot, just get scared.” Cooper, 714 N.E.2d at 693–
94.

In fact, the precise point of McClain is that courts cannot simply assume that what is
obvious to a competent adult—that they are in a medical facility seeking medical treatment from
a medical professional—is obvious to a child. As VanPatten’s counsel argued at trial in support
of his objection, “the distinguishing feature here is we’re dealing with a six year old child, that
the six year old child doesn’t comprehend the same way that adults do. We as adults of course
know that it’s important for a medical professional to know the truth. I don’t think you can make
that assumption when dealing with a six year old child.” (Tr. at 329.)

Instead, the question before us is whether the record reflects that the child adequately
understood the role of the medical professional and the purpose of the visit in order for us to
infer that the child was motivated to speak truthfully. And in that regard, we find this case
farther from Cooper’s clarity than the State suggests.

16
 As we read it, the collective impression left from the testimony at trial is murky at best,
beginning with the purpose of the examination. The girls were examined by Moss only after
being extensively interviewed at DCS, muddying the issue of whether the underlying motivation
even from their parents was to seek medical treatment for their children or to assist the police in
their investigation. And Moss admitted that she observed the DCS interview before she met the
girls, raising the concern that her questioning may have steered the answers to support the
allegations brought up in the interview. This is a concern we cannot fully dismiss based on the
trial record.

Furthermore, there is no testimony from E.R. or S.D. that either understood Moss’s
professional role, or the role of nurses or doctors in general. Nor is there testimony from either
girl, or their parents, concerning past experience with medical facilities or medical providers
from which we could reasonably infer that the girl knew why she was being examined at the Fort
Wayne Sexual Assault Center.

In fact, the only statements relevant to the first prong of the McClain test are Moss’s
statement that she tells children “[i]t’s my job to make sure that you’re okay,” and her
affirmative response to the question “[s]o you ask general health issues and you also talk to them
about why you’re there to see them and provide treatment to them?” And even though Moss
testified that she goes through this same procedure with every child, her subsequent testimony
that she has no actual recollection of her conversations with E.R. and S.D.—and also that those
conversations were not recorded or summarized in the report she used to refresh her memory—
undercuts our ability to infer that E.R. and S.D. were motivated to respond truthfully to her
questions because they understood her professional role.

Nor can we draw this inference just from the fact that Moss had performed well over a
hundred such forensic examinations on children, because every child will be different at that age.
While this background certainly lends support to her assertion that her interaction with E.R. and
S.D. occurred in a similar fashion, it does not necessarily indicate that these particular children,
in these particular examinations, understood the nature of the process. Each child is different,

17
and it would be no more appropriate to treat them all the same with respect to this inference than
it would be to treat them the same as we treat adults.

We do not intend for this evidentiary foundation to present an insurmountable hurdle, nor
do we seek to dictate trial testimony. But here, for example, a few simple questions asked of
E.R. and S.D. would have helped: “Have you been to a doctor’s office before?” “Have you been
seen by a nurse before?” “Do you know what nurses do?” “What do they do?” “Do you know
the difference between the truth and a lie?” “Do you tell nurses and doctors the truth?” “Do you
know why you tell the nurses and doctors the truth?” “Did you know why you were seeing
Nurse Moss?” Firm responses to questions like these would go a long way in supporting the
inference that E.R. and S.D. were motivated to tell Moss the truth when she examined them.

Likewise, a few more directed questions for Moss would have been helpful (although
given her lack of precise knowledge about her interactions with E.R. and S.D., we concede that
these would have been difficult in this particular case): “Did you explain the purpose of the
examination to the girls?” “How so?” “Did you ask if they understood the purpose of the
examination?” “Did you ask if they had been seen by a nurse before?” “Did you explain how
important it was that they tell you the truth?” “How did they respond?” These sorts of
questions—and solid responses—reflected in the record would certainly help a reviewing court
confirm that the hearsay testimony sought to be admitted was sufficiently reliable.

Along those same lines, a few simple questions asked of E.R. and S.D.—or their
parents—could have clarified the purpose of the visit in the first place. “Why were you seeing
Nurse Moss?” “Did the police ask you to take your daughter to the Sexual Assault Treatment
Center?” “Why did you take your daughter there?” “Why not take her to a hospital before
taking her to DCS?” This sort of evidentiary foundation would certainly ameliorate our concern
that the visit was intended to obtain evidence as part of a law enforcement investigation.

18
 But no such foundation is here in this record. The testimony does not tell us at all what
Moss said to E.R. and S.D., how they responded, and whether they understood what was going
on. And in fact, Moss expressly said that she would not have explained to the girls how
important it is that they tell her the truth. Simply put, there is no “evidence that the declarant
understood the professional’s role in order to trigger the motivation to provide truthful
information.” McClain, 675 N.E.2d at 331. This is not to say that Moss did not necessarily
discuss these things with S.D. and E.R., or that her work as a sexual assault examiner was
somehow deficient. But without that firm indication of reliability in the record, we have no
choice on appellate review but to conclude that the statements made to her by S.D. and E.R.
should not have been admitted under the hearsay exception found in Indiana Rule of Evidence
803(4), and it was an abuse of the trial court’s discretion to do so.

II. Impact of Moss’s Testimony

That Moss’s testimony was improperly admitted does not end the matter, though.
“[E]rrors in the admission of evidence are to be disregarded as harmless error unless they affect
the substantial rights of a party.” McClain, 675 N.E.2d at 331; see also Ind. Trial Rule 61. “In
determining whether error in the introduction of evidence affected the defendant’s substantial
rights, this Court must assess the probable impact of the evidence upon the jury.” McClain, 675
N.E.2d at 331. “Admission of hearsay evidence is not grounds for reversal where it is merely
cumulative of other evidence admitted.” Id. at 331–32.

VanPatten does not challenge the admission of this testimony with respect to E.R.’s out-
of-court statements, or its impact on those criminal charges—nor could he. E.R. testified at trial
in a way that mirrored the hearsay testimony later provided by Moss, making Moss’s testimony
merely cumulative and at most harmless error. Cf. id. at 331 (“In the present case, the child
victim testified at trial, and was subject to cross-examination, regarding the acts of molestation
and the surrounding circumstances of the incident. Thus, the declarant’s statements as reported
by the therapist, insofar as they bore on guilt or innocence or the declarant’s apprehension of the

19
defendant, merely repeated the declarant’s statements made on the stand.”) Thus, the error is not
grounds for reversal with respect to VanPatten’s conviction on that count.

The same cannot be said for Moss’s testimony relaying S.D.’s statements. Given that
S.D. recanted her allegations on the stand, the only substantive testimony as to VanPatten’s guilt
with respect to those particular charges was Moss’s testimony. Though Goewert provided
similar testimony, it was solely for impeachment purposes and could not be used as substantive
evidence of VanPatten’s guilt. No biological samples were collected from S.D. that might
otherwise link VanPatten to her. And although E.R. did say that when VanPatten molested her,
it would sometimes wake S.D. up, and then “he would do it to her,” that statement was elicited
on cross-examination—after she repeatedly testified at trial that she never saw VanPatten molest
anyone else.

Accordingly, we are left with but one conclusion: the probable impact of Moss’s
testimony on the jury—indeed the only conceivable impact—was to convince the jury of
VanPatten’s guilt. Nothing else could have done so. We therefore must vacate VanPatten’s
convictions for molesting S.D.

Without Moss’s testimony, the evidence against VanPatten was insufficient to sustain his
convictions for molesting S.D. However, the insufficiency only exists because of appellate
exclusion, and Double Jeopardy considerations do not bar retrial on those same charges. See
Lockhart v. Nelson, 488 U.S. 33, 38–42 (1988); accord Irons v. State, 272 Ind. 287, 290–91, 397
N.E.2d 603, 605–06 (1979); Mulry v. State, 399 N.E.2d 413, 418–19 (Ind. Ct. App. 1980).5

5
On February 20, 2013, the U.S. Supreme Court decided Evans v. Michigan, in which it held that Double
Jeopardy protections barred the retrial of a criminal defendant who was granted a directed verdict of
acquittal “because the prosecution had failed to prove an ‘element’ of the offense that, in actuality, it did

20
 Conclusion

We therefore reverse and remand for a new trial on Counts II and IV.

Dickson, C.J., and Rucker, J., concur.
Massa, J., concurs in result with separate opinion in which Rush, J., concurs.

not have to prove.” ___ U.S. ___, 2013 WL 610197, *4 (Feb. 20, 2013). Nothing in Evans so limits the
State here, should it wish to retry VanPatten.

21
Massa, Justice, concurring in result.

Although I agree with the majority’s analysis of S.D.’s statements to Moss under our
Rules of Evidence, I write separately because I believe the admissibility of such evidence can
and should be evaluated pursuant to the Protected Person Statute, Indiana Code § 35-37-4-6
(2008 & Supp. 2012), not Rule 803(4). Child victim hearsay presents a unique evidentiary
problem in prosecutions for abuse and molestation. In cases where the child is unavailable to
testify, these statements are frequently the strongest evidence of a defendant’s guilt. Deborah
Paruch, Silencing the Victims in Child Sexual Abuse Prosecutions: The Confrontation Clause
and Children’s Hearsay Statements Before and After Michigan v. Bryant, 28 Touro L. Rev. 85,
114–15 (2012). Even when the child does testify, the hearsay statements—made soon after the
offense was committed, while it was still a fresh memory—are often more detailed and thus
more convincing than live testimony. Id.

Under traditional hearsay rules, these statements are often inadmissible. However, in
light of challenges unique to the prosecution of adults who prey on the most vulnerable, courts
and legislatures have generally agreed that certain out-of-court statements should be admitted if
they are sufficiently reliable. See Michael H. Graham, The Confrontation Clause, the Hearsay
Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn. L. Rev.
523, 529 (1988). To that end, thirty-two states, including Indiana, have child hearsay statutes
that apply only in prosecutions for certain serious offenses and only to statements describing the
charged offense that are not otherwise admissible.1 These statutes vary somewhat in their

1
Ala. Code §§ 15-25-31 & -32 (2011 & Supp. 2012); Alaska Stat. § 12.40.110 (2012); Ariz. Rev. Stat.
Ann. § 13-1416 (2010); Ark. R. Evid. 803(25); Cal. Evid. Code § 1360 (Supp. 2013); Colo. Rev. Stat.
§ 13-25-129 (2012); Del. Code Ann. tit. 11, § 3513 (2007); Fla. Stat. § 90.803(23) (2011); Ga. Code Ann.
§ 24-8-820 (2013); Haw. R. Evid. 804(b)(6); 725 Ill. Comp. Stat. § 5/115-10 (2008 & Supp. 2012); Ind.
Code § 35-37-4-6; Kan. Stat. Ann. § 60-460(dd) (2005 & Supp. 2012); Md. Code Ann., Crim. Proc. § 11-
304 (2008 & Supp. 2012); Mass. Gen. Laws ch. 233, § 81 (2000); Mass. R. Evid. § 804(b)(8); Mich. R.
Evid. 803A; Minn. Stat. § 595.02(3) (2010); Miss. Code Ann. § 13-1-403 (2012); Mo. Rev. Stat.
§ 491.075 (2011 & Supp. 2013); Mont. Code Ann. § 46-16-220 (2011); Nev. Rev. Stat. § 51.385 (2004);
operation; some apply only to out-of-court statements made by the child victim of the charged
offense,2 but others apply to child witnesses as well as victims.3 They frequently require the
court to evaluate the reliability of the hearsay in a hearing on the record before ruling on its
admissibility.4 Some require the declarant to testify,5 but others permit the hearsay to be
admitted even if the declarant is found unavailable, so long as there is evidence to corroborate

N.J. R. Evid. 803(27); N.D. R. Evid. 803(24); Ohio R. Evid. 807; Okla. Stat. tit. 12, § 2803.1 (2009); Or.
Rev. Stat. § 40.460(18a) (2013); 42 Pa. Cons. Stat. § 5985.1 (2000 & Supp. 2012); S.D. Codified Laws
§ 19-16-38 (2013); Tex. Crim. Proc. Code Ann. art. 38.072 (2005 & Supp. 2012); Tex. Gov’t Code Ann.
§ 2001.122 (2008); Utah R. Crim. P. 15.5; Vt. R. Evid. 804A; Wash. Rev. Code § 9A.44.120 (2009).
2
See, e.g., Cal. Evid. Code § 1360; Fla. Stat. § 90.803(23); 725 Ill. Comp. Stat. § 5/115-10; Ind. Code
§ 35-37-4-6; Kan. Stat. Ann. § 60-460(dd); Md. Code Ann., Crim. Proc. § 11-304; Mass. Gen. Laws ch.
233, § 81; Mass. R. Evid. § 804(b)(8); Mich. R. Evid. 803A; Minn. Stat. § 595.02(3); Nev. Rev. Stat.
§ 51.385; N.J. R. Evid. 803(c)(27); Ohio R. Evid. 807; Okla. Stat. tit. 12, § 2803.1; Or. Rev. Stat.
§ 40.460(18a); Tex. Crim. Proc. Code Ann. art. 38.072; Tex. Gov’t Code Ann. § 2001.122; Vt. R. Evid.
804A; Wash. Rev. Code § 9A.44.120.

Some scholars argue these statutes are overly restrictive, preventing the use of child witness
hearsay that would be both reliable and helpful to the trier of fact. See, e.g., Jean Montoya, Child
Hearsay Statutes: At Once Over-Inclusive and Under-Inclusive, 5 Psychol. Pub. Pol’y & L. 304, 316
(1999).
3
See, e.g., Ala. Code §§ 15-25-31, -32; Ariz. Rev. Stat. Ann. § 13-1416; Colo. Rev. Stat. § 13-25-129;
Del. Code Ann. tit. 11, § 3513; Miss. Code Ann. § 13-1-403; Mo. Rev. Stat. § 491.075; Mont. Code Ann.
§ 46-16-220; N.D. R. Evid. 803(24); 42 Pa. Cons. Stat. § 5985.1; S.D. Codified Laws § 19-16-38; Utah R.
Crim. P. 15.5.
4
But see Ala. Code §§ 15-25-31, -32; Alaska Stat. § 12.40.110; Del. Code Ann. tit. 11, § 3513; Ga. Code
Ann. § 24-8-820; Haw. R. Evid. 804(b)(6); Mich. R. Evid. 803A; Mont. Code Ann. § 46-16-220 (all
omitting hearing requirement).
5
Alaska Stat. § 12.40.110 (requiring declarant testify either at trial or in a grand jury proceeding); Ga.
Code Ann. § 24-8-820 (requiring declarant testify and hearsay statement have “sufficient indicia of
reliability”); Ind. Code § 35-37-4-6 (requiring declarant be available for cross-examination either when
statement was made or at credibility hearing); Mich. R. Evid. 803A (admitting only statements that
corroborate “testimony given by the declarant during the same proceeding”); Tex. Gov’t Code Ann.
§ 2001.122 (requiring declarant testify); Vt. R. Evid. 804A (requiring declarant testify and statement have
“substantial indicia of trustworthiness”).

2
the hearsay,6 and a few apply only when the declarant does not testify.7 Only a few have been
found constitutionally infirm,8 and several have been challenged and upheld.9

6
See, e.g., Ariz. Rev. Stat. Ann. § 13-1416; Cal. Evid. Code § 1360; Colo. Rev. Stat. § 13-25-129; Fla.
Stat. § 90.803(23); 725 Ill. Comp. Stat. § 5/115-10; Md. Code Ann., Crim. Proc. § 11-304; Mass. Gen.
Laws ch. 233, § 81; Mass. R. Evid. § 804(b)(8); Minn. Stat. § 595.02(3); Miss. Code Ann. § 13-1-403;
Mo. Rev. Stat. § 491.075; N.J. R. Evid. 803(27); N.D. R. Evid. 803(24); Okla. Stat. tit. 12, § 2803.1; S.D.
Codified Laws § 19-16-38; but see Ala. Code §§ 15-25-31, -32 (omitting corroboration requirement); Del.
Code Ann. tit. 11, § 3513 (requiring “particularized guarantees of trustworthiness” but not corroboration);
Mont. Code Ann. § 46-16-220 (stating only that court must consider existence of corroboration as a factor
in determining admissibility); Nev. Rev. Stat. § 51.385 (omitting corroboration requirement); Ohio Evid.
R. 807 (requiring both unavailability and corroboration); Or. Rev. Stat. § 40.460(18a); 42 Pa. Cons. Stat.
§ 5985.1; Utah R. Crim. P. 15.5 (all omitting corroboration requirement).
7
Haw. R. Evid. 804(b)(6) (requiring declarant be unavailable to testify); Kan. Stat. Ann. § 60-460(dd)
(requiring declarant be disqualified or unavailable to testify).
8
See, e.g., Styron v. State, 34 So. 3d 724, 731 (Ala. Crim. App. 2009) (recognizing Crawford partially
abrogated Ala. Code § 15-25-32); People v. Moreno, 160 P.3d 242, 246 (Colo. 2007) (“To the extent that
the statute allows for the admission of out-of-court testimonial statements without the defendant being
afforded an opportunity to cross-examine the declarant, it is now clear that [Colo. Rev. Stat. § 13-25-129]
violates the confrontation guaranty of the Sixth Amendment.”); Hall v. State, 539 So. 2d 1338, 1346
(Miss. 1989) (invalidating Miss. Code Ann. § 13-1-403 as an impermissible legislative intrusion on the
judicial power to make rules governing hearsay).

In this case, of course, there is no Confrontation Clause issue, as S.D. took the stand and testified.
(Tr. at 220–253.) And although the issue is not before us today, I note that even if this Court found a
conflict between the Protected Person Statute and our Rules of Evidence, we could—as we have done
before—assent to the statute. See Harrison v. State, 644 N.E.2d 1243, 1251 n. 14 (Ind. 1995) (noting that
a statute in conflict with the Rules of Evidence is invalid); Humbert v. Smith, 664 N.E.2d 356, 356 (Ind.
1996) (citing Harrison but nevertheless assenting to a statute relating to the admission of blood tests in
paternity cases that conflicted with the Rules of Evidence). In my view, however, there is no such
conflict. See Ind. Evidence Rule 802 (“Hearsay is not admissible except as provided by law or by these
rules.” (emphasis added)).
9
See, e.g., Myatt v. Hannigan, 910 F.2d 680, 685 (10th Cir. 1990) (upholding Kan. Stat. Ann. § 60-
460(dd)); Thomas v. State, 725 A.2d 424, 429 (Del. 1999) (upholding Del. Code Ann. tit. 11, § 3513);
Glendening v. State, 536 So. 2d 212, 221 (Fla. 1988) (upholding Fla. Stat. § 90.803(23)); Bunn v. State,
728 S.E.2d 569, 575 (Ga. 2012) (upholding Ga. Code Ann. § 24-8-820); People v. Priola, 561 N.E.2d 82,
95 (Ill. App. Ct. 1990) (upholding 725 Ill. Comp. Stat. § 5/115-10); Holland v. State, 802 S.W.2d 696,
701 (Tex. Crim. App. 1991) (upholding Tex. Crim. Proc. Code Ann. art. 38.072).

3
 Some states admit these statements under Rule 803(4)10 or pursuant to a residual
exception like that contained in Federal Rule of Evidence 807.11 In Indiana, we have no residual
exception, so the latter option is not available to us, and because we have the Protected Person
Statute, we need not avail ourselves of the former.12

The Protected Person Statute applies to certain types of criminal offenses, including the
sex crimes VanPatten was charged with here. Ind. Code § 35-37-4-6(a)(1). S.D. is a “protected
person” as defined by the statute, because she “is less than fourteen (14) years of age.” Ind.
Code § 35-37-4-6(c)(1). Her statement to Moss concerned “an act that is a material element of
[the] offense . . . allegedly committed against [her].” Ind. Code § 35-37-4-6(d)(2). Thus, under
the terms of the Protected Person Statute, that statement would be admissible at trial if the
requirements of subsection (e) are met:

(1) The court finds, in a hearing:

10
See, e.g., State v. Nelson, 953 P.2d 650, 656 (Idaho Ct. App. 1998) (upholding admission of ten-year-
old victim’s statements to an emergency room doctor); State v. James, 849 So. 2d 574, 585 (La. Ct. App.
2003) (upholding admission of five-year-old victim’s statements to doctor as part of routine interview);
State v. Vaught, 682 N.W.2d 284, 290 (Neb. 2004) (upholding admission of four-year-old victim’s
statements to doctor identifying perpetrator); State v. Munroe, 20 A.3d 871, 880 (N.H. 2011) (upholding
admission of seven-year-old victim’s statements to doctor); State v. Massengill, 62 P.3d 354, 362 (N.M.
Ct. App. 2002) (upholding admission of two-year-old victim’s statements to nurse and doctor); People v.
Cole, 807 N.Y.S.2d 166, 172 (N.Y. App. Div. 2005) (upholding admission of six-year-old victim’s
statements to emergency room doctor because they did not identify the perpetrator); State v. Shepherd,
575 S.E.2d 776, 779 (N.C. Ct. App. 2003) (upholding admission of seven-year-old victim’s statements to
doctor).
11
See, e.g., State v. Sorenson, 421 N.W.2d 77, 86 (Wis. 1988) (upholding admission of seven-year-old
victim’s statements to social worker); see also Graham, supra, at 530–31.
12
Admittedly, we have done so in the past. See, e.g., McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)
(establishing two-prong test for admissibility of child victim hearsay under Rule 803(4) but finding the
requisite indicia of reliability missing from the record); Cooper v. State, 714 N.E.2d 689, 692–93 (Ind. Ct.
App. 1999), trans. denied (applying McClain test to admit a child victim’s statements to a nurse during a
physical examination).

4
 (A) conducted outside the presence of the jury; and
(B) attended by the protected person in person or by using
closed circuit television testimony as described in section
8(f) and 8(g) of this chapter;
that the time, content, and circumstances of the statement or
videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for
one (1) of the following reasons:
(i) From the testimony of a psychiatrist, physician,
or psychologist, and other evidence, if any, the
court finds that the protected person’s testifying in
the physical presence of the defendant will cause
the protected person to suffer serious emotional
distress such that the protected person cannot
reasonably communicate.
(ii) The protected person cannot participate in the
trial for medical reasons.
(iii) The court has determined that the protected
person is incapable of understanding the nature and
obligation of an oath.

Ind. Code § 35-37-4-6(e). Upon remand, if the prosecutor seeks to admit Moss’s statements
pursuant to the Protected Person Statute rather than Rule 803(4), the court will have to conduct a
hearing to determine whether those statements have “sufficient indications of reliability.” S.D.
will also have to testify at trial, or be found to be unavailable. If she is found unavailable, her
statements may only be admitted if she was available for cross-examination at the reliability
hearing. Ind. Code § 35-37-4-6(f)(1).

Of course, the declarant’s subjective belief may still be a factor in the court’s
determination of reliability. But where we have a statute that permits the trial court to consider
the totality of the circumstances, it need not be the only factor. Therefore, I concur in result.

Rush, J., concurs.

5