Housand v. State

• Court: Indiana Appellate Court
• Citation: Housand v. State, 162 N.E.3d 508 (Ind. App. 2020)
• Decision Date: 29 December 2020
• Docket Number: Court of Appeals Case No. 20A-CR-375
• Parties: Mark HOUSAND, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff

162 N.E.3d 508

Mark HOUSAND, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A-CR-375

Court of Appeals of Indiana.

Filed December 29, 2020

Publication Ordered January 20, 2021

Case Summary

[1] A jury convicted Mark Housand of one count of level 1 felony child molesting and one count of level 4 child molesting. On appeal, Housand argues that the trial court committed reversible error in admitting certain evidence. We disagree and therefore affirm his convictions.

Facts and Procedural History

[2] The relevant facts most favorable to the verdicts follow.¹ In 2010, Housand and his wife Deborah adopted four children; the youngest, their daughter C.H., was born in March 2009. In July 2017, Housand and Deborah separated. Deborah stayed in the marital residence, and Housand moved into his mother's house in Mishawaka. C.H. lived with Deborah and visited Housand every other weekend from Friday evening through Sunday evening.

[3] On Friday, November 23, 2018, Deborah dropped off C.H. at Housand's residence. Housand's adult stepdaughter Amber and her teenage son were also in the home. Housand came into Amber's bedroom and "knelt down by [her] bed[.]" Tr. Vol. 2 at 23. Housand smelled of alcohol, and Amber could tell that "[h]e'd been drinking." Id. Housand asked Amber to come upstairs and watch a movie in his bedroom. Amber thought that this request "was odd" because there was a TV in the living room. Id. at 24. Amber told him no, but Housand persisted. Amber felt "uncomfortable" and "didn't understand why [Housand] was being so persistent on stopping what [she] was doing to watch a movie." Id. at 34. Eventually, Amber's son came into the room and said, "[C]ome on, grandpa, [...] she'll watch a movie with you later." Id. at 25. Housand started "mumbling and cussing under his breath and walk[ed] off and [took] C.H. upstairs" to his bedroom. Id.

[4] Housand and C.H. laid down on the bed and started watching a movie on his TV. Housand squeezed C.H.'s buttocks with his hand. He tried to take off her clothes, but she slapped his hand. He took off his pants, placed her hand on his penis, and had her move it up and down. He then had her place her mouth on his penis and move it up and down. C.H. told Housand to stop, which he did, and asked him why he was doing that to her. Housand said that he was stupid and told C.H. not to tell anyone because he would go to prison. They fell asleep in his bed.

[5] The next morning, both Amber and her son noticed that C.H. was acting out of character. C.H. "didn't even acknowledge" Amber when Amber came into the kitchen, id. at 26, and when Amber's son gave C.H. one of his customary "pat[s]," she "[t]old him to stop touching her." Id. at 53. On Sunday, November 25, when C.H. was back at Deborah's house, her older sister A.H. also noticed that C.H. was behaving differently; C.H., who was "usually really loud[,]" "really wasn't talking to anybody." Tr. Vol. 3 at 9. When the two girls were in the bathroom together, C.H. told A.H. what Housand did to her. A.H. told C.H. that they should tell Deborah about it, which they did. Deborah called the police and took C.H. to the hospital, where she was examined by sexual assault nurse examiner Roberta Norris.

[6] Mishawaka Police Department Special Victims Unit Detective Zach DeGeyter contacted Deborah and asked her to bring C.H. to the CASIE child advocacy center in South Bend for a forensic interview. On November 26, C.H. was interviewed by forensic interviewer Sarah Wisthuff. During the interview, which was recorded, C.H. described what Housand did to her and drew circles on anatomical drawings of a male and a female indicating that her hand and mouth touched Housand's penis and that Housand's hand touched her buttocks. Detective DeGeyter observed the interview from an adjoining room. Afterward, he called Housand and "scheduled an interview for him to come into SVU voluntarily the next day." Id. at 22.

[7] At the beginning of the interview, which was recorded, Detective DeGeyter informed Housand that an allegation of a "sexual nature" had been made against him and advised him of his rights. State's Ex. 6. Housand signed a waiver-of-rights form. Detective DeGeyter asked Housand to describe what happened Friday evening. Housand claimed that C.H. came upstairs to his bedroom around 8:30 p.m. and said that she did not want to sleep by herself. He said that she could watch TV, which she did, and they fell asleep on his bed. The next morning, she said that she wanted to watch cartoons, and he went downstairs to make pizza rolls. Housand claimed that he did not drink alcohol when the children were around and that he drank Bacardi rum with Dr. Pepper when he was alone.

[8] Detective DeGeyter began questioning Housand about C.H.'s allegation that something "sexual" occurred on Friday evening; Housand denied it but acknowledged that he had consumed one drink and 800 milligrams of ibuprofen. Id. The detective confronted Housand with C.H.'s allegation that he had put her hand and mouth on his penis. Housand initially said that that "never happened[,]" but after further questioning, he claimed that he did not "remember" anything like that happening, and then he acknowledged that C.H. "might have" put her hand and mouth on his penis. Id. Detective DeGeyter asked if C.H.'s hand was on his penis for more than three minutes, and Housand replied, "I don't even think it was that long." Id. The detective asked if C.H.'s mouth was around his penis for "maybe a couple minutes and that's it," and Housand replied, "I don't think it was that long." Id. The detective then asked, "Did she just try it and then she said ‘I don't want to do this anymore’ kind of thing?" Id. Housand replied, "I don't know, maybe." Id. The detective asked Housand if he wanted to write an "apology letter" to C.H., and then left the interview room while Housand did so. Id.² When the interview resumed, Housand claimed that he had also consumed some "muscle relaxers" that evening. Id. Housand adamantly denied ejaculating or touching C.H.'s vagina.

[9] On December 4, 2018, the State charged Housand with one count of level 1 felony child molesting (alleging that he performed or submitted to sexual intercourse or other sexual conduct with C.H.) and one count of level 4 felony child molesting (alleging that he performed or submitted to fondling or touching with C.H. with the intent to arouse or satisfy his sexual desires). In April 2019, Housand and Deborah's divorce was finalized. A jury trial was held in August 2019 and ended in a mistrial.

[10] A second jury trial was held on December 2 and 3, 2019. The prosecutor called Wisthuff as a witness, questioned her about the issue of "coaching" child victims of sexual abuse, and asked if there were "any red flags of coaching" when she interviewed C.H. Tr. Vol. 2 at 77. Wisthuff replied "that there were a few things that were concerning, but then we questioned those and were satisfied." Id. The prosecutor then asked, "Based on your training and experience, do you find that children often want to make up stories or lie to you in a forensic interview?" Id. Wisthuff replied, "No." Id. The prosecutor asked, "And why not?" Id. Housand's counsel objected, stating, "[T]his is getting into the territory of vouching." Id. at 78. The trial court overruled the objection. In response to the prosecutor's question, Wisthuff testified, "Well, normally children lie to stay out of trouble or to stay out of stressful situations." Id. at 79. Nothing more was said on the subject.

[11] The prosecutor also called C.H. as a witness. She testified that Housand had her put her hand and mouth on his penis and go "[u]p and down." Id. at 93. The prosecutor showed C.H. the anatomical drawings on which she drew circles during her interview with Wisthuff. C.H. stated that she drew circles on the female's hand and mouth and the male's penis because her hand and mouth had to touch "his spot[,]" i.e., Housand's penis. Id. at 98-99. C.H. stated that she did not remember why she drew circles on the female's "[b]utt" and the male's "[h]and." Id. at 99-100. The prosecutor offered the drawings into evidence without objection and then initiated a sidebar, during which she indicated that she wanted to refresh C.H.'s memory by replaying the recording of her interview with Wisthuff for the jury. The trial court pointed out that the prosecutor had "already established the elements" of the molestation charges, i.e., the "oral sex" and the "fondling" of Housand's penis, and asked, "Why is it necessary to go beyond that?" Id. at 101. The prosecutor replied, "It would just go to her credibility and go to just the circumstances of the situation." Id. Over Housand's counsel's objection, the court allowed the prosecutor to publish the recording to the jury under the recorded recollection exception to the hearsay rule under Indiana Evidence Rule 803(5).

[12] Nurse Norris also testified for the prosecution and was asked, "Going back to specifically what [C.H.] told you had happened, what did she state?" Tr. Vol. 3 at 36. Housand's counsel objected, "Number one, it's hearsay, and number two, it is cumulative at this point in time. The child has already testified. We've already seen her recorded statement. This is becoming a drumbeat recitation of what the child is telling person after person." Id. The trial court overruled the objection, and Norris ultimately testified,

[C.H.] told me that she was on her way upstairs, and [Housand] said she could sleep with him. She stated that he does drink Bacardi. She did not know he was drunk. Once they were in the bed, he squeezed her butt, and he asked her if she would like to suck his private or - - I don't recall that detail, but he chose for her. He chose to suck [sic] his private in her mouth. After that was done, she stated she did fall asleep and woke up around midnight a couple hours later and the same thing happened again.

She also told me

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