D.G.B. v. State

Decision Date31 August 2005
Docket NumberNo. 48A04-0412-JV-700.,48A04-0412-JV-700.
Citation833 N.E.2d 519
PartiesD.G.B., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
CourtIndiana Supreme Court

James M. Nave, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, for Appellee.


CRONE, Judge.

Case Summary

D.G.B. appeals the juvenile court's true finding that he was a delinquent child for committing child molesting,1 a class A felony if committed by an adult, and intimidation,2 a class D felony if committed by an adult. We affirm.


D.G.B. raises three issues, which we consolidate and restate as whether the juvenile court abused its discretion in admitting the victim's out-of-court statements.

Facts and Procedural History

On March 8, 2004, fifteen-year-old D.G.B. lived in Anderson with his father, Roy Bradberry; his brother; his father's girlfriend, Iketrica Marlow; and her two daughters, one of whom is the victim in this case, six-year-old F.N. On that day, nineteen-year-old Cory Craig, a family friend, was also present at D.G.B.'s house. In the early afternoon, Bradberry and Marlow left D.G.B. to care for F.N. while they took D.G.B.'s brother to enroll him in school. Bradberry and Marlow asked Craig to leave while they were absent from the house, and he did so. Sometime later, Bradberry and Marlow returned to pick up D.G.B. to enroll him in school. F.N. accompanied them.

Approximately one hour after the group returned home, F.N. began to cry and informed Marlow that something was wrong. Marlow took F.N. into a bedroom and discovered that she was bleeding profusely from her vagina. Marlow also discovered that F.N. was not wearing underwear, although she had been wearing underwear when Marlow dressed her earlier that day. Marlow also noted that the clothes F.N. was wearing were different from those in which Marlow had dressed her. Marlow attempted to stop the bleeding but was unable to do so. Marlow informed Bradberry that she was going to take F.N. to the hospital. Craig, who had returned to the house, overheard the comment and immediately ran out of the residence. Marlow asked D.G.B. what happened to F.N. D.G.B. told Marlow that F.N. injured herself when she fell on the couch while he and Craig were horseplaying with her and spreading her legs.

Marlow took F.N. to the hospital, where a doctor examined F.N. and discovered that she had a tear to her vagina that did not appear to be the result of a "straddle" injury. Tr. at 120. F.N. underwent surgery to repair the tear and spent the night in the hospital. The following morning, Marlow visited F.N. in her hospital room while she was having breakfast. Marlow noticed that F.N. had pushed her fork and knife to the side. Marlow asked F.N. what was wrong. F.N. was very upset but explained that D.G.B. and Craig had held her down and spread her legs, and that D.G.B. had inserted a fork and Craig a knife in her vagina. F.N. said that D.G.B. had changed her clothes because there was blood on them and then stuffed the soiled clothes in the bathroom. She also explained that D.G.B. and Craig had washed the knife and fork and placed them back in the utensil drawer. Finally, she told Marlow that D.G.B. and Craig had told her that if she said anything to anyone about what they had done, they would burn her on a grill and feed her to Craig's dog.

That evening, Marlow took F.N. to the Anderson Police Department for an interview with Detective Larry Crenshaw. Initially, F.N. refused to speak to Detective Crenshaw. However, when Detective Crenshaw left the room, F.N. repeated her previous account of the molestation to Marlow. Detective Crenshaw returned to the room, and F.N. gave the same explanation to him. F.N.'s statements to Marlow and Detective Crenshaw were videotaped. On March 19, 2004, the State filed a petition alleging that D.G.B. was a delinquent child for the following: (1) child molesting, a class A felony if committed by an adult; (2) criminal deviate conduct, a class A felony if committed by an adult; (3) confinement, a class B felony if committed by an adult; and (4) intimidation, a class C felony if committed by an adult.

On August 18, 2004, the State filed a petition pursuant to Indiana Code Section 35-37-4-6 requesting a hearing to determine the admissibility of F.N.'s out-of-court statements to Marlow and Detective Crenshaw.3 On August 20, 2004, the juvenile court held an admissibility hearing. Dr. Bonnie Huxford, a state-certified HSPP (health service provider in psychology) testified that F.N. would be traumatized if she were required to testify at trial. Marlow testified as to the content of F.N.'s statements to her at the hospital and at the police department. Detective Crenshaw also testified regarding the statement F.N. provided to him at the police department. F.N. also took the stand to testify. However, she immediately turned away from the juvenile court and covered her ears. The juvenile court attempted to administer the oath, but F.N. was completely unresponsive. After a minute or a minute and a half, the juvenile court excused F.N., and she left the room. Thereafter, defense counsel objected that he had not been afforded an opportunity to cross-examine F.N. At the close of the hearing, the State tendered the videotape of F.N.'s statements to Marlow and Detective Crenshaw at the police department. The juvenile court directed that defense counsel first review the tape to preserve any additional objections before the court reviewed the tape. On October 8, 2004, the juvenile court granted the State's petition to admit F.N.'s out-of-court statements to Marlow and Crenshaw.

On October 15, 2004, the juvenile court held a factfinding hearing. The State offered the transcript of the admissibility hearing to introduce F.N.'s out-of-court statements to Marlow and Detective Crenshaw. D.G.B. objected that F.N.'s statements were inadmissible on two grounds: (1) that Indiana Code Section 35-37-4-6 was applicable only in criminal proceedings and not in juvenile proceedings; and (2) that D.G.B had not been afforded his Sixth Amendment right to cross-examine F.N. The juvenile court overruled the objection and admitted the transcript.4

On November 5, 2004, the juvenile court entered a true finding that D.G.B. committed child molesting and intimidation and dismissed the other charges. At the dispositional hearing on December 9, 2004, the juvenile court was informed that D.G.B. intended to appeal and was doing well in his current placement at the Youth Opportunity Center ("YOC"). The juvenile court ordered that D.G.B. remain at YOC and delayed final disposition pending the resolution of the appeal.5

Discussion and Decision

D.G.B. claims that the juvenile court erred in admitting F.N.'s out-of-court statements. Our standard of review is well settled:

[T]he decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal.... [W]e will not reverse the trial court's decision unless it represents a manifest abuse of discretion that results in the denial of a fair trial. An abuse of discretion in this context occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law.

Carpenter v. State, 786 N.E.2d 696, 702-03 (Ind.2003) (citations omitted).

In support of his claim that F.N.'s out-of-court statements were inadmissible, D.G.B. presents the following arguments: (1) Indiana Code Section 35-37-4-6 does not apply to juvenile proceedings; (2) even if Indiana Code Section 35-37-4-6 is applicable to juvenile cases, its requirement that the person who made the statement be available for cross-examination was not satisfied; and (3) his Sixth Amendment right of confrontation was violated. We address each argument separately.

A. Applicability of Indiana Code Section 35-37-4-6 to Juvenile Proceedings

D.G.B. contends that F.N.'s statements were inadmissible because Indiana Code Section 35-37-4-6, also known as the "Protected Person Statute," is applicable only to criminal cases and not to juvenile proceedings, which are civil in nature. In his reply brief, D.G.B. acknowledges that a panel of this Court has already addressed this issue and concluded that the statute is applicable to juvenile proceedings. See J.V. v. State, 766 N.E.2d 412, 415 (Ind.Ct.App.2002), trans. denied. However, D.G.B. requests that we re-examine the holding in J.V. and urges us not to follow it because the statute by its own terms does not apply in juvenile proceedings.

Having examined our previous holding in J.V., we are persuaded by that panel's analysis:

[J]uvenile proceedings are civil in nature and ... an act of juvenile delinquency is not a crime. Nonetheless, a child alleged to be delinquent is charged by the State with an act that would be a crime if committed by an adult. The criminal standard of proof remains, in that the State must prove the delinquent act beyond a reasonable doubt to achieve a true finding of delinquency. Put another way, it is the child's age and not the status, nature or class of offense that removes the case from our adult criminal system. Moreover, our supreme court has observed that the goal of the protected person statute is to reduce the child's emotional trauma caused by numerous court appearances, not to guarantee that the child will never have to face the defendant. Thus, we see no compelling reason to exclude application of the protected person statute in these circumstances, and we decline to read that statute so narrowly as to render the protected person statute inapplicable in delinquency proceedings.

Id. at 415-16 (citations and quotation marks omitted). Therefore, we decline to depart from our holding in J.V., and we reject D.G.B.'s argument that F.N.'s out-of-court statements were inadmissible because the Protected...

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