Cooper v. State, 71A03-9807-CR-329.

• Decision Date: 07 July 1999
• Docket Number: No. 71A03-9807-CR-329.,71A03-9807-CR-329.
• Parties: Dennis COOPER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

714 N.E.2d 689

Dennis COOPER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-9807-CR-329.

Court of Appeals of Indiana.

July 7, 1999.

Transfer Denied August 31, 1999.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Sarah E. Scherrer, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge

Following a jury trial, Dennis Cooper was convicted of Child Molesting,¹ a class A felony. Two issues are presented in this appeal:

1. Did Cooper fail to timely file his praecipe?

2. Did the trial court err in admitting, pursuant to the medical diagnosis or treatment exception to the hearsay rule, a nurse's testimony that the five- or six-year-old victim, S.A., told the nurse that Cooper had kissed her vaginal area?

We affirm.

The facts most favorable to the judgment are as follows. During 1997, Cooper and his wife Diane provided child care to five children, including S.A. While he was babysitting S.A., Cooper, whom S.A. referred to as "Poppie", took S.A. into the bedroom, pulled her underwear aside, and placed his tongue on her vaginal area. S.A. told her grandmother and parents about the molestation. After contacting police, S.A.'s parents took S.A. to the emergency room at the St. Joseph Medical Center for a physical examination.

Kimberly Torres, a registered nurse at the hospital, met with S.A. before the examination. S.A. told Torres that Cooper took S.A. into his and Diane's bedroom and that, while the two were in the bedroom, Cooper kissed her "down there . . . where [I go] pee." Record at 256. While S.A. made the above statement to Torres, S.A. pointed toward her genital area. In addition, S.A. demonstrated to Torres how Cooper pushed her underwear to the side when he performed such act. Torres testified that S.A. also told her that: "Poppie asked her to touch him where he goes pee and she said she said no". Id. Torres also testified that S.A. told her "that was all [Cooper] does is that and hugs and kisses her. Kisses her on the mouth." Id. Torres relayed this information to Dr. Jennifer Lackman, who performed the medical examination of S.A.

Dr. Lackman testified that the doctors at the hospital rely on the nurses' notes regarding the history and information obtained from the child and the parent and "do not repeat that with the patient." Id. at 261. Dr. Lackman further testified that she would not expect there to be any physical findings from a child being licked in the genital area. Her diagnosis was "possible sexual assault." Id. at 266.

Additional facts will be set forth where pertinent.

1.

The State claims that Cooper failed to timely file his praecipe and that this court should therefore dismiss his appeal for lack of jurisdiction. The resolution of this issue involves the interplay of the Indiana rules of appellate, trial, and criminal procedure.

The sentencing order in this case was entered by the trial court on June 16, 1998. Cooper therefore had until July 16, 1998 to timely file his praecipe. See Ind. Appellate Rule 2(A) (unless a motion to correct error is filed, the praecipe shall be filed within thirty days after the entry of a final judgment or an appealable final order). See also Ind.Crim. Rule 19. Unless the praecipe is filed within the required time period, the right to appeal is forfeited. App. R. 2(A); Crim. R. 19.

Cooper's praecipe was date stamped as being filed with the St. Joseph Superior Court Clerk on July 20, 1998. However, Cooper's certificate of mailing indicates that his praecipe was mailed to the trial court clerk by certified mail, return receipt requested, on July 15, 1998.

The Indiana Rules of Trial Procedure "govern the procedure and practice in all courts of the state of Indiana in all suits of a civil nature." Ind. Trial Rule 1. The trial rules also apply to all criminal proceedings as long as they are not in conflict with any specific rule adopted by our supreme court for the conduct of criminal proceedings. Crim. R. 21. T.R. 5(E) provides in pertinent part: "The filing of pleadings, motions, and other papers with the court as required by these rules shall be made by one of the following methods: * * * (3) Mailing to the clerk by registered or certified mail return receipt requested...." When papers are filed in the manner set forth in T.R. 5(E)(3), filing "shall be complete upon mailing." T.R. 5(E). Accordingly, the filing of Cooper's praecipe was complete when it was deposited in the mail. See T.R. 5(E). See also Seastrom, Inc. v. Amick Constr. Co., Inc., 159 Ind.App. 266, 306 N.E.2d 125 (1974)

(all filings may be accomplished by mailing to the clerk of the court by registered or certified mail, return receipt requested, and filing is accomplished upon deposit in the mail).

Cooper did not fail to timely file his praecipe.

2.

We next address whether the trial court erred in admitting, pursuant to the medical diagnosis or treatment exception to the hearsay rule, Nurse Torres's testimony that S.A. told her that Cooper had kissed her vaginal area.

"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay is not admissible except as provided by law or the rules of evidence. Evid. R. 802. In McClain v. State, 675 N.E.2d 329 (Ind.1996), our supreme court discussed the exception to the hearsay rule contained in Evid. R. 803(4) for statements made for the purpose of medical diagnosis or treatment. In McClain, the trial court permitted a therapist to testify, pursuant to the medical diagnosis or treatment exception, about statements made to her by a child molestation victim with regard to the details of the molestation. Our supreme court in McClain, which ultimately determined that the therapist's testimony was erroneously admitted but harmless, stated:

Indiana Evidence Rule 803(4) establishes a hearsay exception for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or the external source thereof insofar as reasonably pertinent to diagnosis or treatment." This exception is based upon the belief that a declarant's self-interest in seeking medical treatment renders it unlikely the declarant will mislead the person he wants to treat him. Statements made to non-physicians may fall within Evid. R. 803(4) if the statement is made to promote diagnosis or treatment.

McClain v. State, 675 N.E.2d at 331 (citations omitted). The court also stated:

The underlying rationale for this hearsay exception requires a two-step analysis for evaluating whether a statement is properly admitted pursuant to Evid. R. 803(4): 1) is the declarant motivated to provide truthful information in order to promote diagnosis and treatment; and 2) is the content of the statement such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.

In order to satisfy the requirement of the declarant's motivation, the declarant must subjectively believe that he was making the statement for the purpose of receiving medical diagnosis or treatment. Often, for example where a patient consults with a physician, the declarant's desire to seek and receive treatment may be inferred from the circumstances. Where that inference is not obvious, as in this case involving a young child brought to treatment by someone else, there must be evidence that the declarant understood the professional's role in order to trigger the motivation to provide truthful information. Here the requisite indicia of reliability are missing. There is no evidence that the victim sought the therapist's help or that he believed he was receiving any treatment. The child testified that [the therapist] was his "counselor" and that he talked to her about what McClain did to him. Thus, the record is devoid of any evidence showing that the victim understood that he was speaking to a trained professional for the purposes of obtaining diagnosis of, or providing treatment for, emotional or psychological injuries. Because the declarant's motive to promote treatment or diagnosis is crucial to reliability, the therapist's testimony was not shown to be within the medical diagnosis or treatment hearsay exception.

Id. (citations omitted).

Applying the two-step analysis set forth in McClain to this case, we conclude that Torres's testimony was properly admitted into evidence. Certainly, the second step of the analysis, whether the content of the statement is such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment, has been met.

Turning next to the first step of the analysis, i.e., whether the declarant, here S.A., was motivated to provide truthful information in order to promote diagnosis or treatment, we look to the testimony of Nurse Torres. At trial, Torres described the procedure generally followed when a child comes into the hospital alleging that she is a victim of a sexual assault. In the following testimony, Torres described the procedure she generally followed after notifying various agencies of an alleged assault, the specific procedure she followed with S.A. in this case, and what S.A. told her about the molestation:

A. If we're able to do the exam, we'll try and bring them back into a room and generally we introduce ourselves to the child, to the mother, anybody else that's there, and have the child get to know us, try to make it a little bit social, little bit comfortable for them so they don't feel like they're—anybody is scared to come to the emergency room so that way they don't feel so scared. We give them coloring books, try and keep them occupied.

Q. How do you find...