Allen v. State, 091521 INCA, 20A-CR-1908

Docket Nº20A-CR-1908
Opinion JudgeMathias, Judge.
Party NameWayne W. Allen, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
AttorneyATTORNEYS FOR APPELLANT Travis S. Friend Donald C. Swanson Jacob A. Gattuso Haller & Colvin, P.C. Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
Judge PanelRiley, J., and Crone, J., concur.
Case DateSeptember 15, 2021
CourtCourt of Appeals of Indiana

Wayne W. Allen, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 20A-CR-1908

Court of Appeals of Indiana

September 15, 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 Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause No. 02D05-1808-F1-16

ATTORNEYS FOR APPELLANT

Travis S. Friend

Donald C. Swanson

Jacob A. Gattuso

Haller & Colvin, P.C.

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

MEMORANDUM DECISION

Mathias, Judge.

[¶1] Wayne W. Allen was convicted in Allen Superior Court of Level 1 felony child molesting and Level 4 felony child molesting. Allen appeals, raising several issues, which we reorder and restate as: I. Whether the trial court erred when it admitted into evidence hearsay testimony from several witnesses;

II. Whether the trial court's admission of testimony vouching for the truthfulness of the victim's statements deprived Allen of a fair trial;

III. Whether the trial court abused its discretion when it admitted into evidence the examining nurse's medical chart;

IV. Whether Allen was denied his right to present a defense when the trial court excluded from evidence emails sent from the victim's stepmother to Allen;

V. Whether allowing the victim to testify while wearing a mask violated Allen's right to confrontation: and,

VI. Whether courtroom protocols utilized due to the COVID-19 pandemic denied Allen his right to a fair trial.

[¶2] Concluding that Allen has not established reversible error, we affirm.

Facts and Procedural History

[¶3] Allen and his wife have a daughter who died in 2009. Their daughter was married to and had three children with Scott Amstutz. The youngest child, C.A., was one week old when her mother died.

[¶4] C.A. and her siblings often spent the night with Allen and their grandmother and had a close relationship with their grandparents. C.A. occasionally spent the night at her grandparents' home without her siblings present. C.A.'s last overnight with her grandparents was December 31, 2017. Shortly thereafter, the relationship between Scott and C.A.'s stepmother, Janelle, and the Allens began to deteriorate.

[¶5] In 2018, nine-year-old C.A. regularly had physical and emotional outbursts. Janelle discussed C.A.'s behavior with a friend, Melissa Hildebrand. Hildebrand suspected that C.A. was being abused and shared her suspicion with Janelle.

[¶6] On Mother's Day, May 13, 2018, C.A. was agitated and became visibly upset. Scott eventually calmed her down by using techniques suggested by C.A.'s counselor. When C.A. was calm, Scott asked her if someone had hurt her. C.A. responded, "someone's touched me all over." Tr. Vol. III, p. 14. In response, Scott and Janelle put C.A. in their vehicle so they could privately discuss the allegation with her outside of the presence of their other children. C.A. then told her father and stepmother that her grandfather, Allen, touched her "down below." Id. at 15. C.A. stated that Allen came into her bedroom at Allen's house at night, laid down in bed next to her, and asked her to pull her pants down. Id.

[¶7] Scott called C.A.'s counselor to report the allegation. The counselor stated that she was required to report the alleged abuse. The next day, Scott and Janelle took C.A. to her pediatrician's office, but C.A. refused to answer the doctor's questions and became visibly upset. Janelle relayed C.A.'s allegations of molestation to the pediatrician.

[¶8] On May 25, Patricia Smallwood, a forensic interviewer at the Bill Lewis Center for Children, met with C.A. During the interview, C.A. disclosed that Allen sexually abused her. One week later, nurse Angela Mellon examined C.A. at the Fort Wayne Sexual Assault Treatment Center. C.A. told Mellon that Allen touched her "in [her] private" and touched her breasts beneath her clothes. Conf. Ex. Vol. p. 26. She also disclosed that Allen touched her inside her vagina and that it hurt to urinate afterwards. Id. C.A. stated that Allen touched her on more than one occasion when she spent the night at his home. Id.

[¶9] On August 30, 2018, the State charged Allen with Level 1 felony child molesting and Level 4 felony child molesting. Allen's first trial, which began on November 21, 2019, ended in a mistrial. Allen's second trial began on August 11, 2020. Shortly before trial commenced, Allen asked for a continuance due to the COVID-19 pandemic. Allen claimed that the jury would not be able to concentrate on the evidence because of the nationwide concern over Covid-19. The trial court denied Allen's motion. During voir dire, the trial court informed the jury panel of the procedures in place to ensure the jurors' safety. Allen did not ask any prospective jurors if the COVID-19 pandemic and the resulting courtroom procedures would distract them from performing their duties as jurors.

[¶10] During the three-day jury trial, the trial court allowed witnesses to remove their masks while testifying if they chose to do so. C.A. did not want to remove her mask while she testified, and Allen did not object. C.A. testified that Allen removed her pajamas and "touched [her] in the wrong spot . . . . [Her] private spot."[1] Tr. Vol. III, pp. 45, 47-48. C.A. described where and when the molestation occurred and the pajamas that she had been wearing. C.A. explained that Allen only came into the bedroom and touched her when her sister was not also sleeping in the room. Id. at 46. And C.A. revealed that Allen told her not to tell anyone that he had touched her and that if she did tell, he "would hurt someone." Id. at 49.

[¶11] Janelle described the first time C.A. disclosed the molestation. Janelle testified that, during C.A.'s May 2018 outburst, she asked C.A., "did he hurt you" and "did he touch you." Id. at 96, 103. After C.A. responded, Janelle, Scott, and C.A. continued the conversation in private. Janelle explained that after their conversation with C.A., she and Scott contacted C.A.'s counselor and her pediatrician. Id. at 97. C.A. appeared upset when the pediatrician examined her, so Janelle told the pediatrician what C.A. had disclosed to her. Id. at 98. And after Janelle spoke to C.A.'s counselor, the counselor told Janelle that she would have to make a report to the Department of Child Services. Id. Janelle also testified that she took C.A. to be examined at the Bill Lewis Center for Children and the Sexual Assault Treatment Center. Janelle did not repeat C.A.'s specific disclosures.

[¶12] Scott testified that C.A. told him Allen had touched her. Id. at 15. Scott also stated that he did not believe C.A. would "make up" the allegations. Id. at 15- 16. And, during Janelle's cross-examination, Allen's counsel implied that C.A.'s parents were angry at Allen and encouraged C.A. to think that Allen had molested her. Janelle testified, "[t]hat is ludicrous. I'd never do that to a child, no." Id. at 112. Allen did not raise a vouching objection to Scott's and Janelle's testimony.

[¶13] Mellon, the sexual assault nurse examiner, testified to her general procedures, including how she explains her role to patients and the examination. Id. at 192- 93. Mellon then described her conversation with and examination of C.A. for the jury. C.A. understood that Mellon was "a nurse [who] helps you when you're sick." Conf. Ex. Vol. p. 25; see also Tr. Vol. III, p. 213. The State introduced Mellon's examination report. Allen objected, arguing that the State had not established a sufficient foundation under Indiana Evidence Rule 803(4). The trial court admitted the report over Allen's objection. The report contained C.A.'s statements to Mellon describing Allen's sexual abuse.

[¶14] Allen testified in his defense and denied molesting C.A. During closing arguments, Allen argued that Janelle suggested to C.A. that Allen touched her inappropriately and noted that Janelle and Scott made the initial reports of molestation to law enforcement officials and medical personnel because C.A. refused to speak to anyone. Tr. Vol. IV, pp. 237-38. Allen claimed that Janelle was angry with Allen and his wife because they "intruded on stepmom's turf." Id. at 240.

[¶15] The jury found Allen guilty as charged. The trial court ordered Allen to serve an aggregate thirty-six-year sentence in the Department of Correction. Allen now appeals.

I. Hearsay Testimony

[¶16] We review the admission of evidence, including purported hearsay, for an abuse of discretion. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id. But even if a trial court abuses its discretion in admitting certain evidence, reversal is required only if the admission prejudices the defendant's substantial rights. To determine whether an evidentiary error was prejudicial, we assess the probable impact the evidence had upon the jury in light of all of the other evidence that was properly presented. If we are satisfied the conviction is supported by independent evidence of guilt such that there is little likelihood the challenged evidence contributed to the verdict, the error is harmless.

Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).

[¶17] Hearsay is an out-of-court statement that "is not made by the declarant while testifying at the trial" and is offered for "the truth of the matter asserted." Ind. Evidence Rule 801(c)....

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