Bussen v. State

• Docket Number: 21A-CR-1205
• Decision Date: 13 January 2022
• Parties: Randy Bussen, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff .
• Court: Indiana Appellate Court

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Randy Bussen, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff .

No. 21A-CR-1205

Court of Appeals of Indiana

January 13, 2022

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 Wayne Superior Court The Honorable Charles K. Todd Jr., Judge Trial Court Cause No. 89D01-1811-F1-16

ATTORNEY FOR APPELLANT Brian J. Johnson Danville, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General for Indiana Tyler Banks Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

BAILEY, JUDGE.

Case Summary

[¶1] Randy L. Bussen ("Bussen") appeals his convictions, following a jury trial, of two counts of child molesting as Level 1 felonies.^[1]

[¶2] We affirm.

Issues

[¶3] Bussen raises two issues on appeal which we restate as follows:

I. Whether the trial court committed reversible error when it admitted alleged hearsay and vouching testimony.

II. Whether there was prosecutorial misconduct that rose to the level of fundamental error.

Facts and Procedural History

[¶4] A.B. ("Child") was born on September 27, 2010. Her mother, J.S. ("Mother"), and her father, Bussen lived together at the time of Child's birth but separated shortly thereafter. Bussen began having scheduled visitation with Child in 2014.

[¶5] On November 2, 2018, the State charged Bussen with six counts of child molesting as to his then-eight-year-old daughter, Child. At Bussen's April 5th through 7th, 2021, jury trial, Child was called to testify. Child asked to take a "break" and a "breather" when she was first asked to talk about Bussen's molestation of her. Tr. v. III at 23. Following her break, Child testified in detail about two incidents when Bussen molested her when she was three or four years old. As to each incident, Child described her age, the timing and location of the incidents, who was in the house at the time, what she was wearing, what positions she and Bussen were in, what happened, and how it felt. Child testified that, in the first incident, Bussen put his penis in her mouth and her "butt." Tr. v. III at 41-42. Child demonstrated, using a stuffed monkey, what position she was in during the first incident. Child testified that the second incident occurred approximately one year after the first incident. Child stated that Bussen again put his penis "in her butt." Id. at 54. Child again demonstrated with the stuffed monkey the position she was in during the sexual assault. Child clarified that when she referred to "butt" she meant anus. Id. at 62. She stated that Bussen referred to his penis as "[m]edicine point." Id. at 75-76.

[¶6] Child testified that she did not tell anyone about Bussen's molestations of her until she told her mother and grandmother in 2018, soon after her visitations with Bussen had ceased. Child stated that she felt she could disclose the incidents at that time because she knew Bussen was no longer "able to get to [her]." Id. at 59. Child testified that she was "scared" to tell anyone about the molestations until visitation with Bussen stopped, at which point she "kind of felt safer." Id. at 60. Child stated that she was interviewed at JACY House shortly after informing her mother of the abuse.

[¶7] The State called Child to testify twice at trial, and Bussen's attorney, Nathaniel Connor ("Connor"), cross-examined Child each time. Connor asked Child if she recently had watched a video recording of her interview with Amanda Wilson at JACY House, to which Child responded, "Yes." Id. at 69. Connor then asked Child if she remembered saying in the interview that the two instances of molestation occurred "a couple months apart," and Child stated that she remembered saying she did not know. Id. at 69. Connor asked Child many questions about what details she remembered from the time of the incidents. Connor also asked Child a question about a prior conversation Child had with Connor in January of that year regarding Bussen's actions toward Child. The prosecutor, Ashley Green ("Green"), also asked Child, "When we've talked before or you've talked to Mr. Connor, who did you say did [the sexual abuse]?," to which Child responded, "My dad." Id. at 158.

[¶8] Mother also testified at the jury trial. She stated that Bussen obtained visitation rights as to Child in 2014, when Child was three or four years old. Mother testified that Child changed from a happy, "spunky" child to being "very shy and withdrawn" when Child was between four and five years old and had begun visitations with Bussen. Id. at 125, 132. She testified that, in June of 2018, Child told her that "something happened … with her dad." Id. at 135, 137. Mother began to testify as to what Child told her when Connor objected on hearsay grounds. Green responded that the testimony would not be offered for the truth of the matter asserted, but to show the effect the disclosure had on Mother's next steps. Connor then withdrew the objection. Mother stated that Child "told [Mother] that [Child's] daddy had exposed himself to her, had put his penis in her mouth, called it a medicine pointer or medicine point, and proceeded to stick it in her behind." Id. at 139. Mother described Child as scared and shaking during their conversation. Mother then testified that she filed a report with the police about Bussen's sexual abuse of Child, and the police began an investigation.

[¶9] Connor cross-examined Mother, and specifically asked her about details regarding the night when Child told Mother about Bussen's abuse. Connor also questioned Mother about "issues with [her] memory" due to seizures. Id. at 150.

[¶10] The State's final witness was Amanda Wilson ("Wilson"), the Executive Director of JACY House, which is a child advocacy center that conducts "forensic interview[s]" and "provide[s] advocacy services" for children. Id. at 162-63. Wilson described her professional background and her training and certification as a forensic interviewer. Wilson testified that she interviewed Child on June 18, 2018. Wilson then described the type of forensic interviews of children conducted at JACY house and the protocols the organization uses in those interviews to avoid leading children to specific answers. Wilson stated that Child appeared appropriate for her age during her interview. Without objection, the State entered into evidence a screenshot of the video recording of the interview Wilson conducted with Child. Wilson then discussed Child's demeanor during the interview as typical for her age. When Green asked Wilson, "After you conducted the interview, based on your discussions, did you, yourself, have any concerns about abuse?," Connor objected on the grounds that the question was "not appropriate." Id. at 179-80. The objection was overruled, and Wilson answered the question in the affirmative.

[¶11] Wilson then provided additional testimony about interviewing children generally, including the effects of trauma and the age of the child on a child's memory, and the factors interviewers use to gauge credibility and motives. Wilson testified, without objection, that she uses those factors or protocols "every time [she is] interviewing a child." Id. at 196. Wilson also discussed delayed disclosures of child abuse, in general, including the reasons for delayed disclosure. Wilson ended her direct examination testimony by stating that she applied to Child all the factors about which she had previously testified, and Bussen did not object.

[¶12] Connor cross-examined Wilson and asked her to once more go over the factors and protocols she uses in interviews of children. Wilson reviewed the factors and process used in interviews and answered questions about Child's demeanor during her specific interview. On redirect examination, Wilson testified that she does not work for law enforcement and that her goal is not to obtain a conviction but to ensure child safety.

[¶13] At the close of Bussen's case, after he had testified on his own behalf, the attorneys made closing arguments to the jury. In her closing, Green noted that Child had consistently stated to Mother, Child's grandmother, Wilson, Green, and Connor that Bussen was the person who committed the acts of molestation of Child. Green stated regarding Child's testimony,

She's a child. She did her best. And I ask you to think about why would she lie about something like this. What does she have to gain from coming in here and sitting there and going through this[?] What does she have to gain from telling this over and over again, these details, they're horrible. She's embarrassed. She's had to tell strangers. She doesn't get to see her dad or that family anymore. She's had everything to lose. This has not made her life better. You think a ten-year-old enjoys saying these types of things in front of strangers over and over again[?] She has gained nothing.

Tr. v. IV^[2] at 19.

[¶14] In Connor's closing argument he asserted there was evidence indicating that Mother did not have good parenting skills. He also questioned Mother's memory, given her seizure disorder. And Connor referenced Wilson's testimony, stating "After she talked to [Child], she had concern. I get it. I think any human being that would hear an accusation like that would have concern." Id at 30-31. Connor raised a question about why Wilson's testimony at trial was longer than her interview of Child. [¶15] Green gave her final argument to the jury after Connor's closing. Green pointed out that Connor had talked about parenting, and then Green asked, "How much did this man have to say when given the chance to talk about his...