Burton v. State
| Decision Date | 29 October 2014 |
| Docket Number | No. 02A03–1403–CR–98.,02A03–1403–CR–98. |
| Citation | 23 N.E.3d 49 (Table) |
| Parties | James M. BURTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Donald C. Swanson, Jr., Andrew L. Teel, Haller & Colvin, P.C., Fort Wayne, Indiana, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General Indianapolis, Indiana, Attorneys for Appellee.
On December 5, 2012, Appellee–Plaintiff the State of Indiana (the “State”) charged Appellant–Defendant James Burton with two counts of Class A felony child molesting and two counts of Class C felony child molesting. The charges stemmed from incidents of sexual molestation involving the victim, M.V., which took place on unspecified dates over a two-year period, when M.V. was between six and eight years old.
During trial, Burton objected to hearsay testimony proffered by State's witness Michelle Dirton, a nurse who treated M.V., regarding statements made by M.V. during a medical examination. The trial court overruled the objection based on the ‘medical diagnosis or treatment’ exception to the hearsay rule. During Burton's cross-examination of M.V., Burton attempted to impeach M.V. using her deposition testimony. Following the cross-examination, the State moved for the admission of M.V.'s entire deposition under the doctrine of completeness. The trial court granted the motion over Burton's objection and a redacted version of the deposition was read to the jury.
On appeal, Burton challenges the trial court's evidentiary rulings on Dirton's testimony and the scope of the admission of M.V.'s deposition. Additionally, Burton argues that the State produced insufficient evidence based on the doctrine of incredible dubiosity. Concluding that (1) the trial court acted within its discretion in admitting the challenged evidence, and (2) the evidence offered by the State was sufficient to support the jury's verdict, we affirm the judgment of the trial court.
The facts most favorable to the judgment of the trial court are as follows: On June 18, 2009, James Burton and his wife, Theresa Burton, became foster parents to a group of four siblings: six-year-old M.V., four-year-old My.V., nine-year-old Mo.V., and eleven-year-old Mi.V. (Tr. 497–98) Mi.V. stayed with the Burtons for approximately two weeks before leaving for another foster home. (Tr. 252, 219) Mo.V. stayed with the Burtons until November 2010, before returning to live with her biological father. (Tr. 252) The Burtons also had two biological sons, B.B. and C.B., and another foster child, R.U., ages twenty one, nineteen and seventeen years old, respectively. (Tr. 249–253, 497)
While M.V. was living with the Burtons, Theresa was primarily responsible for taking care of the children. (Tr. 510) On rare occasions, Burton would be home alone with M.V. and My.V. (Tr. 255, 537–38, 189–90, 238) M.V. testified that on one such occasion, Burton requested that M.V. come into his bedroom downstairs and then told her to remove her pants and underwear and sit on the bed. (Tr. 70, 72, 481) Burton then touched M.V.'s chest, buttocks, and vagina and licked M.V.'s vagina. (Tr. 68 –71, 452) On another occasion, after Theresa had gone to the grocery store, Burton told M.V. to come over to him in the living room. (Tr. 431–435) Burton then rubbed M.V.'s vagina for approximately three minutes. (Tr. 437) On more than one occasion, Burton had M.V. touch his penis with her hand and mouth. (Tr. 76 –77, 475–76)
On January 31, 2012, M.V. left a note for her elementary school teacher, Tiffany Flynn, asking to speak to her after class. (Tr. 289; Ex. 2) Flynn had previously worked out a system with M.V. whereby M.V. would leave Flynn notes when she was feeling upset. (Tr. 288) After approaching M.V. about the note, M.V. disclosed the allegations to Flynn, who then immediately reported the allegations to the school's caseworker. (Tr. 294) The caseworker then reported the allegations to Child Protective Services. (Tr. 318)
That same day, M.V. was interviewed at the Bill Lewis Center for Children by Julie DeJesus, a forensic interviewer. (Tr. 324, 327) The interview was witnessed by Robin Pfeiffer, a Detective with the City of Fort Wayne Police Department. (Tr. 348, 356) During the interview, M.V. made physical descriptions of the incidents with Burton, including pulling her legs up to her chest and spreading them, sticking out her tongue, and the manner in which Burton exposed and rubbed her vagina. (Tr. 356–358) Pfeiffer testified that M.V. “had specific sexual knowledge that was beyond her maturity level” and that “she would not know unless her disclosure was real.” Tr. p. 374. M.V. was eight and one-half years old at the time of the interview. (Tr. 171)
Later that day, M.V. went to the Fort Wayne Sexual Assault Treatment Center and was examined by Michelle Ditton, the chief nursing officer. (Tr. 152, 158–59) Prior to the examination, Ditton approached M.V. in the lobby wearing scrubs, crocs, and a name tag that said “forensic nurse.” Tr. p. 159. Ditton then explained to M.V. that she was a nurse and that she would be giving M.V. a check-up. (Tr. 159) After Ditton took M.V. into the exam room, M.V. told Ditton of two separate events in which Burton had licked her “private” and when she had licked Burton's “private.” Tr. p. 163. M.V. also stated that, on another occasion, Burton rubbed her “private” while the two were in his car. Tr. p. 164. M.V. demonstrated this act to Ditton by making a rubbing motion with the palm of her hand. (Tr. 167)
On December 5, 2012, the State charged Burton with two counts of Class A felony child molesting and two counts of Class C felony child molesting. (Appellant's App. 13–17) During trial, the State elicited testimony from Ditton regarding M.V.'s statements during the examination. (Tr. 163–170) Burton's objection to that testimony was overruled by the trial court. (Tr. 163)
While cross-examining M.V., Burton attempted to impeach M.V. using her deposition testimony. (Tr. 101–109) After several objections by the State regarding the manner of impeachment, the trial court stated, “[t]his is not proper impeachment and I am stopping it,” and later explained to Burton that “[y]our question [in the deposition] is not the evidence, it's her answer ... [t]he answer is what comes in, not the question.” (Tr. 101–102, 104, 110). Tr. pp. 109, 118. Burton continued to impeach M.V. using the deposition and the State objected again, arguing that Burton was improperly using the deposition by “taking bits and pieces out of context” and “asking one question and [ ] using the answer in the positive for another question.” Tr. pp. 113, 120. The trial court sustained the objection and explained to Burton, Tr. p. 119.
Following Burton's cross-examination of M.V., the State moved to have M.V.'s deposition read to the jury in order to give the jury context to the portions of the deposition which were used during cross-examination. (Tr. 131) Despite Burton's objections, the trial court granted the motion and a redacted version of the deposition was then read to the jury. (Tr. 145, 424–484)
On February 13, 2014, the jury found Burton guilty of two counts of Class A felony child molesting and not guilty of Class C felony two counts of child molesting. (Appellant's App. 8) On March 14, 2014, The trial court sentenced Burton to an aggregate forty-year term of imprisonment. (Appellant's App. 10)
Burton contends that the trial court abused its discretion in admitting certain evidence at trial. “ ‘The admission or exclusion of evidence is a matter left to the sound discretion of the trial court, and we will reverse only upon an abuse of that discretion.’ “ Collins v. State, 835 N.E.2d 1010, 1016 (Ind.Ct.App.2005) (). “ ‘An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.’ “ Id. (quoting Greenboam, 766 N.E.2d at 1250).
Evid. R. 803(4). This hearsay exception is “based upon the belief that a declarant's self-interest in seeking medical treatment renders it unlikely that the declarant would mislead the medical personnel person she wants to treat her.” Palilonis v. State, 970 N.E.2d 713, 726 (Ind.Ct.App.2012) (citing Miles v. State, 777 N.E.2d 767, 771 (Ind.Ct.App.2002) ). A two-step analysis exists for the purpose of determining whether such a statement is properly admitted: “(1) whether the declarant is motivated to provide truthful information in order to promote diagnosis and treatment; and (2) whether the content of the statement is such that an expert in the field would reasonably rely upon it in...
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