Judge, concurring in result.
While I can agree that there was no error under the cireumstances presented here, the record shows that the basis of Guy's argument is that the admission of the deposition testimony "denies Mr. Guy the right to confrontation and cross examination pursuant to the Sixth Amendment of the U.S. Constitution, the Thirteenth of the Indiana State Constitution." Record at 34; see also appellant's brief at 20-21. While I have no quarrel with the majority's application of our Rules of Evidence and Inp. Cop® § 35-37-4-6, the "Protected Person" Statute, it is my belief that the majority's discussion of those concepts is unwarranted, inasmuch as Guy has waived the argument that his right of confrontation was violated. ,
I fully embrace the notion that the essential purpose of the Sixth Amendment right of confrontation is to insure that the defendant has the opportunity to cross-examine witnesses against him. See Jackson v. State, 735 N.E.2d 1146, 1150 (Ind. 2000). However, in accordance with our supreme court's opinion in State v. Ow-ings, 622 N.E.2d 948, 952 (Ind.1993), the defendant may waive that right. Specifically, "where there is no showing in the record that a defendant is unable to attend a deposition and he makes no objection to it proceeding, the defendant waives his right of confrontation even if the witness is unable to testify at trial." Id. (citation omitted). Moreover, "[where defense counsel takes the deposition and actively participates in it, defendant is deemed to have waived his right of confrontation at trial." Id.
individual who molested her. This is not a case where a defendant has never been afforded the opportunity to confront the complaining witness. As the majority aptly notes, it was Guy's counsel, and not the prosecutor, who deposed TM. Defense counsel vigorously questioned T.M., and asked her whether she could have been mistaken about Guy being the He asked T.M. precise questions about what had occurred, who had committed the acts, and whether she was positive that Guy was the perpetrator. Moreover, the only comment made by Guy's counsel following her objection to the deposition testimony with respect to Guy's attendance was that "Guy was not present at the deposition." R. at 34. No further explanation was offered. Given these cireumstances, it is my view that Guy has waived the argument that he was denied the right to confrontation. In all other respects, I fully concur with the result and reasoning espoused by the majority.