Albrecht v. State

• Decision Date: 08 July 2021
• Docket Number: 20A-CR-2190
• Parties: Nathan C. Albrecht, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

Nathan C. Albrecht, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

No. 20A-CR-2190

Court of Appeals of Indiana

July 8, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Dubois Circuit Court Trial Court Cause No. 19C01-1908-F1-879 The Honorable Nathan A. Verkamp, Judge

ATTORNEY FOR APPELLANT Bernadette A. Kovacs Rahman Law Office Ferdinand, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[¶1] A jury found Nathan C. Albrecht guilty of two counts of level 1 felony child molesting and one count of level 6 felony harmful performance before a minor. On appeal, Albrecht argues that the trial court erred in admitting the forensic interview of the victim, R.R., allowing the State to add the level 6 felony charge to the charging information, and denying his request to depose R.R. regarding that charge. Albrecht also argues that statements by R.R.'s mother and the prosecutor resulted in fundamental error and that his convictions are not supported by sufficient evidence. We affirm.

Facts and Procedural History

[¶2] R.R. was born in August 2007. Around December 2010, his mother, Vicki Schnarr, divorced his father, with whom he has had little contact. In December 2013, Schnarr and R.R. started living with Schnarr's boyfriend, Frank Phillips, in Huntingburg. At that time, R.R. was in kindergarten. According to Schnarr, R.R. had "a hard time focusing, sitting still, paying attention, basically." Tr. Vol. 2 at 143. Dr. Dean Beckman, who has been R.R.'s physician since R.R.'s birth, id. at 100, diagnosed him with attention deficit disorder (ADD) and prescribed him medication. When R.R. was in the second grade, "[h]is behavior started to get much worse[, ]" in that "[h]e was getting a lot more aggressive -- physically, towards his teachers and the aides." Id. at 144. R.R. was referred to a child psychiatrist, who prescribed "additional medication[.]" Id. at 146.

[¶3] Schnarr and R.R. stopped living with Phillips in March 2015. In July 2016, it was disclosed that Phillips had molested R.R. By the time R.R. started third grade that year, "his behavior had gotten … so much worse." Id. at 147. He was "tearing up classrooms and his aggressive behavior had just gotten completely out of control." Id. In December 2016, R.R. was admitted to Evansville Psychiatric Children's Hospital, where he was diagnosed with oppositional defiant disorder (ODD), "wean[ed]" off his old medications, and prescribed new medications for ADD and anxiety. Id. at 148. R.R. was released from the hospital in March 2017.

[¶4] That summer, Schnarr and R.R. moved to Jasper. Because R.R. did not have a male role model in his life, it was recommended that Schnarr enroll him in the Mentors for Youth program. Schnarr filled out an application, and a case manager interviewed Schnarr and R.R. and conducted a home visit. Albrecht had applied to be a mentor with the program, which required him to undergo background checks, submit personal and employment references, and participate in online training. Albrecht was also required to undergo a home visit; at that time, he resided with his aunt and uncle in Jasper. In the process of matching R.R. with a mentor, the case manager gave Albrecht R.R.'s profile, which listed his favorite activities and stated that he had been molested. Id. at 248. Albrecht expressed an interest in being matched with R.R., and the match was completed in August 2017.

[¶5] Initially, Albrecht spent approximately three or four hours with R.R. every other weekend, and they often played video games. R.R. started the fourth grade, and according to Schnarr, "[i]t's probably the best year he ever had." Id. at 149. After several months, with the approval of Schnarr and Mentors for Youth, R.R. started spending approximately one overnight per month at Albrecht's aunt and uncle's home.

[¶6] When R.R. entered the fifth grade in 2018, he transitioned from the elementary school to the middle school, and there were "a few problems with him adjusting. But it was just mainly … not wanting to focus, not wanting to listen. Nothing really aggressive or anything like [Schnarr] had seen in the past." Id. at 150. In December 2018, Albrecht moved into his own apartment in Ferdinand, and R.R.'s overnight visits continued. Around that time, R.R.'s "second semester [of] fifth grade was really, really getting bad. The aggressive behavior and things like that started coming back." Id. at 151.

[¶7] In "May, June and July of 2019, there [were] quite a few times [Schnarr] didn't let R.R." spend the night with Albrecht "because [R.R.'s] behavior got so bad that [she] would use that as a punishment for him." Id. at 159. On August 20, 2019, Schnarr picked up R.R. from his after-school caregiver, Amanda Fight. Fight told Schnarr that "R.R. had said something the previous day that had really upset" Fight's daughter, and Fight "thought it was really weird" and "wanted [Schnarr] to know." Id. at 161. Fight said that R.R. told her daughter that he wished that he could make a "portal so he could go through it and suck his own d*ck." Id. at 162. When they got home, Schnarr asked R.R. why he said that, "[a]nd he said, because that is what Nathan does to me." Id. Schnarr told R.R. "[t]hat it was wrong, and [they] needed to report it right away." Id. R.R. "immediately started" crying and screamed, "I don't want Nathan to get into trouble. I love Nathan. Nathan loves me." Id.

[¶8] That evening, Schnarr took R.R. to the Ferdinand Police Department and reported his accusation, and she "was told that they would be contacting [her] for a forensic interview for R.R." Id. at 165. The interview was scheduled for August 22 at the Southwestern Indiana Child Advocacy Center. On that date, the Center's executive director, Tammy Lampert, conducted a videotaped forensic interview of R.R. R.R. told Lampert that Albrecht had given him some video games and was planning on giving him some more games, and he did not want Albrecht to get arrested. But R.R. stated that Albrecht did "something wrong to [him]-he molested [him]." State's Ex. 4a. R.R. stated that Albrecht "sucked [his] d*ck" on multiple occasions during his overnight visits in Albrecht's apartment. Id. R.R. made markings on an anatomical drawing of an unclothed child to show which body parts were involved in the molestations. State's Ex. 3. R.R. further stated that on multiple occasions Albrecht put a clear "plastic" object around his own "d*ck" and manually masturbated "white stuff" into it in R.R.'s presence, ^[1] and Albrecht also had R.R. manually masturbate him into a clear plastic object. State's Ex. 4a. R.R. stated that Albrecht kept those objects in his bathroom and that Albrecht told him that the masturbation helped him become "tired." Id.

[¶9] According to Lampert, R.R. was "cooperative[, ]" "articulate[, ]" and "gave great detail," but as the interview progressed, he "shut down" and "became very distracted. His communication had dwindled, and he no longer wanted to be in the interview." Tr. Vol. 2 at 204, 203, 202. Consequently, Lampert stopped the interview and resumed it the following day. On the second day, after almost ten minutes of questioning, R.R. stated that he gets "upset" talking and thinking about Albrecht's actions and that the more he talks about it, the closer he gets to not being able to "hold it in." State's Ex. 4b. Shortly thereafter, R.R. became visibly upset, asked to "change the subject," and engaged in repetitive physical gyrations for the final twenty minutes of the interview while remaining largely nonverbal. Id.

[¶10] Ferdinand Police Department Officer Eric Hopkins watched the interview videos and met with Schnarr so that "she could provide [him] some dates that she was for sure that R.R. had spent the night over at [Albrecht's]." Tr. Vol. 3 at 5. Officer Hopkins then obtained Albrecht's phone number from Mentors for Youth, called him, and arranged to meet him at his residence. Officer Hopkins and a detective talked with Albrecht in his driveway, and then the detective obtained a warrant to search Albrecht's bathroom for condoms. Numerous unopened packages of condoms, as well as used condoms, were found in Albrecht's bathroom.

[¶11] On August 26, 2019, the State charged Albrecht with three counts of level 1 felony child molesting, alleging that he knowingly or intentionally performed oral sex on R.R. between December 15, 2018, and June 28, 2019 (Count 1), on or about June 29, 2019 (Count 2), and on or about July 20, 2019 (Count 3). In September 2019, the trial court set the omnibus date for October 22, 2019. In May 2020, the court scheduled a final pretrial conference for August 3 and a jury trial for September 2. On August 3, the State filed a notice of intent to introduce R.R.'s forensic interview videos at trial pursuant to the Protected Person Statute, Indiana Code Section 35-37-4-6. The State requested a protected person hearing, which was held on August 13 and 14 and will be described in greater detail below. On August 18, the trial court ruled that R.R. was unavailable to testify at trial and that the videos would be admitted in lieu of his live testimony.

[¶12] On August...