Shoda v. State

• Decision Date: 09 September 2019
• Docket Number: Court of Appeals Case No. 18A-CR-2279
• Citation: 132 N.E.3d 454
• Parties: Jordin C. SHODA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

132 N.E.3d 454

Jordin C. SHODA, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-2279

Court of Appeals of Indiana.

FILED September 9, 2019

Attorney for Appellant: Robert W. Gevers II, Fort Wayne, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Following a jury trial in Whitley Circuit Court, Jordin C. Shoda ("Shoda") was convicted of two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. Shoda appeals and presents three issues for our review, which we restate as:

I. Whether the trial court abused its discretion by admitting into evidence a video recording of an interview of the victim by a forensic examiner;

II. Whether the trial court abused its discretion by admitting into evidence the testimony of a sexual assault nurse regarding statements the victim made to her; and

III. Whether the trial court abused its discretion by admitting into evidence the testimony of the victim's therapist regarding statements the victim made to her.

[2] We affirm.

Facts and Procedural History

[3] The victim in this case, A.E., is the daughter of Shoda and M.E. ("Mother"), and was born in May 2011. A.E. lived with Mother and had regular visitation with Shoda, who was born in February 1992. Shoda lived in the basement of his parents' home, which was finished and had a bathroom with a bathtub and shower. During Memorial Day weekend of 2017, Shoda's brother was getting married, and Mother agreed to let A.E. stay with Shoda so that A.E. could attend the wedding and be a member of the wedding party. Mother returned on Sunday to pick up A.E., and they went to Mother's father's house for Memorial Day activities.

[4] On the way home from Mother's father's house, A.E. disclosed something to Mother, presumably the molestation, that upset Mother. Mother stopped at a friend's house, told her what A.E. had said, and called a child abuse hotline operated by the Department of Child Services ("DCS"). The hotline operator asked Mother certain questions, then asked Mother to take A.E. to the hospital. DCS informed the police of the report, and Whitley County Sheriff's Deputy Detective Bill Brice ("Detective Brice") requested that the child be taken to the Bill Lewis Center for Children (the "Center for Children") in Fort Wayne to be examined. Mother took A.E. to the Center for Children, where A.E. was examined by Sexual Assault Nurse Sarah Coburn ("Nurse Coburn").

[5] Nurse Coburn examined A.E. and asked her non-leading questions, including "[D]o you know why you are here today," and "[D]o you have any concerns about your body." Tr. Vol. 3, p. 48. Nurse Coburn noted her interaction with A.E. as follows:

"No one should touch your front." "When I was taking a shower with daddy he put his front in my back and it hurt." Patient points between buttocks to clarify "back." "I just said it hurt." "Then he said shush your mouth." Writer asked did this happen one time or more than one time. States "More than one time." "It's happened a bunch." "Only in the shower." "Since it flooded in our house I have to take showers with daddy." "He makes me touch his front with my hands." Writer asked how does that feel? States "It feels firm." "Stuff comes out of his front." "It's greenish-yellow." "At first he was doing it a bunch and then he stopped." "Then this weekend I had to do it again." "I told mommy."

Ex. Vol., State's Trial Ex. 3.¹ Even though she doubted that there would be any remaining DNA evidence, as the molestation had taken place while showering, Nurse Coburn took samples for a sexual assault kit per standard procedure.

[6] On the day after Memorial Day, May 30, 2017, Detective Brice asked Mother to take A.E. to the Center for Children again so that A.E. could be interviewed by Detective Lorrie Frieburger ("Detective Frieburger"), who worked at the Center for Children as a forensic interviewer. Detective Frieburger spoke with A.E. for approximately thirty minutes using the "Child First" protocol, which involves non-leading questions. In the video-recorded interview, A.E. told the detective that her father had put his "front" into her "back" when they were in the shower and that this hurt. Ex. Vol., State's Trial Ex. 1 at 07:21–07:26, 08:10.² A.E. said that this happened "a bunch of times," id. at 08:12–08:17, and "every single time" she was with her father. Id. at 25:42–25:45. Using diagrams, A.E. explained to Detective Frieburger that by "front" she meant her father's genitals, and by "back" she meant her anal area. Id. at 11:00–11:28. A.E. stated that this caused her pain because Shoda "digs down there really, really, really far." Id. at 26:50–26:53. When A.E. complained of the pain, Shoda told her to "shush your mouth." Id. at 17:06–17:22. A.E. stated that she had noticed blood on the toilet paper after wiping herself following the molestation. A.E. further disclosed that her father made her put her mouth and hands on his penis. A.E. also told Detective Frieburger that Shoda had started molesting her when she was five years old and that he warned her not to tell anyone about what he did to her. A.E. said that she informed her mother of what had happened because the last time it had occurred, it had been very painful.

[7] A.E. later underwent treatment by Nicole Trier ("Trier"), a licensed mental health therapist. During her sessions with Trier, A.E. described, in age-appropriate language, what appeared to be anal sex with her father.

[8] On July 19, 2017, the State charged Shoda with two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. On February 16, 2018, the State filed a notice of its intent to introduce A.E.'s recorded statements to Detective Frieburger under the protected persons statute, Indiana Code section 35-37-4-6. The trial court held a protected persons hearing on June 28, 2018, at which time the State presented the testimony of several witnesses, including Mother, Detective Frieburger, Trier, and A.E. The State asked no questions of A.E. at the hearing, but Shoda's counsel did question A.E. The trial court took the matter of the admissibility of A.E.'s recorded statement to Detective Frieburger under advisement. On July 3, 2018, Shoda filed an objection to the State's request to offer the video recorded statement into evidence under the protected persons statute. Two days later, the trial court entered an order concluding that A.E.'s statement was admissible.

[9] A three-day jury trial began on July 17, 2018. Immediately before the trial began, Shoda referenced a pre-trial motion in limine that he had filed, stating:

[W]e filed both a motion and a memorandum of law. And, obviously this Court had an extended protect[ed] person hearing, we know that the Court has ruled on the um, the admission of the video taped statement of A.E. by the forensic interviewer and that's going to come in. Um, at the appropriate time I guess, um, I don't think maybe it's now, but before the tape is played I will want to renew my objection and make a continuing objection of that to preserve the record .

Tr. Vol. 2, pp. 161–62 (emphasis added). After granting Shoda's motion in limine with regard to references to a polygraph examination and prior criminal history, the trial court stated:

And in terms of the statements of the alleged victim in this case, the law has provided for the jury to hear the allegations made by the child on video. But anything said to anybody outside of that video tape, including mother, counselor or anyone else will not come into evidence because it constitutes hearsay.

Id. at 163.

[10] Despite indicating that he would object to the admission of the video-recorded interview, Shoda referenced the recording in his own opening statement:

We all just heard the cress [sic] of the State's case will be the video tape. That tape will be played, there's no dispute. You'll hear it in its entirety. The good, the bad, the ugly. By way of summary that tape, that was made more than a year ag[o]. Okay? It was made around May 30, 2017. That's, that's the day after Memorial Day, last year. It's not too long. It's maybe a half hour or so. A.E. is six (6) years old. She's uh, she's verbal. We'll see on tape ... a cute, adorable little girl. And she says, and she says these things happened to her by her dad. To A.E. she has, she has two (2) dads in her life. She has her biological father, Jordin and she uh, and she also has a stepfather. So questions are, are [ ]posed to A.E. to try and clarify it. And she's also asked about the location, right? The location. Where did this happen? My words, not her's you'll see on the tape. And A.E. tells us, at first she [says], it happens at everyone's house. And then she clarifies later on, clarifies and points at the drawings and says, you know it's dad Jordin's house. Um, she does then disclose a physical sexual assault by her dad in the shower, all right. And among [the] things she says, as you will hear on the tape, that he put his back, or put his front on her back, put his front on her back. And the tape does say that it happened every single time she's there. Not sometimes, not this 18 months ago, every, every single time she's there. So when is the last time A.E. was there, all right? With Jordin? Let's start there. There will be no dispute that's the, that's the weekend before Memorial Day last year. It was that Friday through Sunday, okay? And towards the end of this tape, the interviewer will confirm from A.E., you'll hear, that this last time, it's the day she told her mom. It happened that day and it hurt. All right? And we'll find out that day, all right? The day, that's that Sunday. That's the, that's May 28, the day before Memorial Day. And so, in large part, that's on the tape. That's what we're going to hear .

Id. at 175 (emphases added). When the video recording was offered...