C.S. v. State
| Decision Date | 24 February 2017 |
| Docket Number | Court of Appeals Case No. 15A01-1606-JV-1423 |
| Citation | 71 N.E.3d 848 |
| Parties | C.S., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant : R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana.
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana.
[1] C.S., then a nine-year-old boy, appeals his adjudication as a delinquent child and the true finding in Dearborn Circuit Court that he molested his then three-year-old stepsister A.G., a Level 4 felony if done by an adult. Concluding that A.G.'s testimony was not incredibly dubious, we affirm.
[2] C.S. is the son of Bretina Craft ("Bretina"). At the time of this case, he lived with his mother and her long-time boyfriend, David Gray ("David"), whom C.S. thinks of as his stepfather,1 in Dearborn County, Indiana. C.S.'s father abandoned the family some years ago and now lives in Arkansas.
[3] David was once married to Cheryl Isenhart ("Cheryl"), but they divorced. A.G. and her older brother J.G. are Cheryl and David's children. At the time of this case, A.G. and J.G. usually lived with Cheryl and her new husband Brad, but they would sometimes go to David and Bretina's house to stay for the weekend.
[4] In July 2014, the Indiana Department of Child Services began investigating David and Bretina for neglect, prompted by a report, allegedly Cheryl's, that C.S., then nine years old, had molested A.G. while she was staying at David and Bretina's house. On July 11, 2014, A.G. and J.G. were interviewed at the Children's Advocacy Center of Southeastern Indiana, where investigators are specially trained in the difficult, delicate task of interviewing child witnesses. A.G., three years old at the time, did not say that C.S. or anyone else had touched her wrongly.2 However, observers thought she spoke, thought, and acted erratically during the interview. The neglect allegations were deemed unsubstantiated and the investigation was closed.
[5] In April 2015, Dearborn County law enforcement reopened the investigation, now focused on C.S. rather than David and Bretina. On April 13, 2015, A.G. and J.G. were again interviewed at the Children's Advocacy Center ("the CAC interviews"). This time, A.G., now four years old, said that C.S. had come into her room one night while she and J.G. were staying with David and Bretina. C.S. had taken her clothes off while she was trying to sleep, put his penis inside her vagina, and kissed her on the lips.
[6] Detective John Vance ("Vance") of the Dearborn County sheriff's office, the lead investigator, had known David and his family since David was a child. David and Bretina did not think that C.S. had done as A.G. said. They thought Cheryl had encouraged A.G. to make up the allegation out of antipathy toward them and C.S. When they offered to furnish Vance with evidence to this effect, Vance agreed to delay bringing his case to the prosecutor. Some months later, David and Bretina gave Vance a video of Bretina, A.G., and J.G., which appeared to show3 the children admitting they had not been truthful with investigators. Vance watched the video but concluded that Bretina's questioning of the children was too leading and suggestive to undermine what A.G. had said in her CAC interview.
[7] On September 11, 2015, the State petitioned Dearborn Circuit Court to adjudicate C.S., now ten, a delinquent child for what would be Level 4 felony child molesting if done by an adult. On February 22, 2016, the court held a hearing to determine whether the video of A.G.'s CAC interview was admissible under Indiana's "protected person" statute. See Ind. Code § 35-37-4-6. This statute allows reception of a child victim's otherwise inadmissible hearsay statement if certain conditions are met, id. § (d), among them that the child be available for cross-examination at the admissibility hearing. Id. § (f)(1). Accordingly, A.G., now five, testified and was cross-examined on February 22, 2016. J.G. testified and was cross-examined as well, though the video of his CAC interview was concededly inadmissible under the statute because it protects only "victim[s]," id. § (a), which J.G. was not alleged to be. On February 29, 2016, the court ruled A.G.'s CAC interview admissible under the statute.
[8] On February 29, 2016, the court held a delinquency hearing. A.G. and J.G. were not made to testify a second time; their testimony at the February 22, 2016, admissibility hearing was incorporated by the parties' agreement, and A.G.'s CAC interview was admitted. C.S. took the stand in his own defense and denied the allegations against him. After hearing evidence and argument, the court took the matter under advisement. On March 9, 2016, the court adjudicated C.S. a delinquent child.
[9] At a dispositional hearing on April 11, 2016, C.S. was ordered to ninety days in Dearborn County juvenile detention, all suspended, and to one year's reporting probation, subject to extensive conditions.
[10] This appeal followed. C.S. claims his adjudication was unsupported by sufficient evidence because A.G.'s testimony was incredibly dubious.
[11] Though juvenile adjudications are not criminal matters, Jordan v. State , 512 N.E.2d 407, 409 (Ind. 1987), when the State petitions to have a child adjudicated delinquent for an act that would be a crime if done by an adult, due process requires the State to prove its case beyond a reasonable doubt. Al-Saud v. State , 658 N.E.2d 907, 908 (Ind. 1995) (citing In re Winship , 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ). When reviewing whether the State's evidence was sufficient to meet this burden, our standard is familiar. We view the facts and the reasonable inferences from them in the light most favorable to the true finding below. Id. We neither reweigh the evidence nor, in the ordinary case, re-evaluate witness credibility. Id. We will affirm unless no reasonable trier of fact could have found the elements of the crime proved beyond a reasonable doubt. Id.
[12] We may, and ordinarily do, uphold findings of guilt beyond a reasonable doubt supported only by the uncorroborated testimony of a single witness, even the victim's. Bailey v. State , 979 N.E.2d 133, 135 (Ind. 2012). We may make an exception, however, if that testimony is incredibly dubious. Moore v. State , 27 N.E.3d 749, 754 (Ind. 2015). An appellant seeking application of the incredible dubiosity rule must show that the judgment against him was based on the testimony of a single witness, unsupported by any circumstantial evidence, which was inherently improbable or inherently contradictory, equivocal, or coerced. Id. at 755-56. Though the standard is "not impossible" to meet, it is "difficult." Id. at 756 (internal quotation and citation omitted). The challenged testimony must be so ambiguous, inconsistent, convoluted, or contrary to human experience that no reasonable person could credit it. Id. ().
[13] It is uncontested that no direct physical or any circumstantial evidence supported the true finding below. C.S. was adjudicated on the basis only of directly inculpatory witness testimony.
[14] The State argues that A.G.'s was not the only such testimony because J.G. too gave testimony inculpating C.S. However, this is not so. Two of J.G.'s statements are at issue: his April 13, 2015, CAC interview and his testimony at the February 22, 2016, admissibility hearing, incorporated by party agreement at the delinquency hearing. The latter only tended to exculpate C.S., and the former was never admitted.
[15] At the admissibility hearing, J.G. either could not remember what happened or denied that anything had happened at all. He did not remember giving his CAC interview. Tr. p. 15. When asked whether "anybody's ever done anything to [A.G.] they shouldn't have done," he answered repeatedly, "Not that I've remembered." Tr. p. 16. He denied knowing whether there were parts on a person's body that should not be touched. Tr. p. 17. He denied ever seeing anyone wrongly touch A.G. Id. "Nothing really happened," he concluded. Tr. p. 18. Nothing in J.G.'s hearing testimony supported the true finding below.
[16] While the potential admissibility of J.G.'s CAC interview was several times discussed, it was never offered and admitted. At the February 22, 2015, admissibility hearing, the State, acknowledging that the protected person statute did not protect J.G., offered his CAC interview as a recorded recollection. See Ind. Evidence Rule 803(5). The court declined to entertain the State's offer as outside the scope of the admissibility hearing. Tr. p. 63. The State relented. Id. ; see also Appellant's App. p. 68 () ("The Court makes no ruling on [J.G.'s] statement at this time, but leaves that issue open for argument at the scheduled [delinquency hearing].").
[17] At the delinquency hearing, however, the State never re-offered J.G.'s CAC interview or laid any foundation for its admission. The State had burned digital copies of A.G.'s and J.G.'s CAC interview recordings to the same disc, denominated "Exhibit 2" at the admissibility hearing. It then offered A.G.'s CAC interview at the delinquency hearing "based on the Court's ruling ... that the Child Hearsay [i.e., protected person statute] Motion is being granted...." Tr. p. 83. The court ruled that "what's previously been admitted through a Child Hearsay hearing as State's Exhibit ‘2’ will also be admitted ... for purposes of this [delinquency] hearing." Tr. p. 84. This cannot refer to J.G.'s CAC interview, which was expressly excluded from consideration at the admissibility hearing as irrelevant.
[18] Moreover, the State never...
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