Norris v. State

• Decision Date: 26 April 2016
• Docket Number: No. 02A03–1507–CR–841.,02A03–1507–CR–841.
• Citation: 53 N.E.3d 512
• Parties: Christopher C. NORRIS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

53 N.E.3d 512

Christopher C. NORRIS, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1507–CR–841.

Court of Appeals of Indiana.

April 26, 2016.

Stanley L. Campbell, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RILEY, Judge.

STATEMENT OF THE CASE

[1] Appellant–Defendant, Christopher C. Norris (Norris), appeals his conviction for battery, a Level 5 felony, Ind.Code § 35–42–2–1.

[2] We affirm.

ISSUES

[3] Norris raises four issues on appeal, which we restate as:

(1) Whether the trial court erred in determining that J.B. was unavailable to testify as a protected person pursuant to I.C. § 35–37–4–6(e)(2)(B)(i) ;

(2) Whether the trial court abused its discretion by admitting the videotaped forensic interview of J.B. at trial, together with the testimony of three other witnesses;

(3) Whether the trial court abused its discretion by admitting vouching testimony; and

(4) Whether the trial court erroneously allowed the drumbeat repetition of J.B.'s allegations by various witnesses.

FACTS AND PROCEDURAL HISTORY

[4] In August of 2014, Nicole Pappas (Pappas) and her son, four-year-old J.B., started living with Norris in Norris' residence. Norris had two biological sons from different relationships, thirteen-year-old C.N. and five-year-old B.H., with whom he had regular visitation. At some point during that month, B.H. saw Norris spanking J.B. “a lot.” (Transcript p. 168). B.H. asked his father “to stop spanking J.B. [but] he didn't.” (Tr. p. 170). C.N. also saw Norris “spank J.B. really hard” and noticed that J.B.'s buttocks were “black and purple.” (Tr. pp. 237, 235).

[5] On August 23, 2014, Norris and Pappas took the three boys to a neighborhood park with a water playground for children. While at the park, someone took a photo of J.B. and posted it to Twitter. Eric Bennett (Bennett), J.B.'s father, saw the photo and believed that J.B.'s face looked swollen and that he might have a black eye. Bennett called the police. On August 25, 2014, Bennet went to Norris' residence where police officers were already present. After Bennett demanded to see his son, J.B. was brought outside. Bennett, J.B., and an officer stepped aside, and Bennett spoke with J.B. When Bennett attempted to pick up J.B., J.B. cried out “ow.” (Tr. p. 96). J.B. showed his father the bruises on his lower back and buttocks; Bennett also noticed fingerprints on the inside of J.B.'s arm as if somebody had grabbed him.

[6] The Department of Child Services (DCS) was summoned and family case manager Kim Gorman (FCM Gorman) arrived. FCM Gorman took photographs of J.B.'s injuries. J.B. told her that Norris had spanked him because he had kicked the dog in the face. When FCM Gorman spoke with Norris, Norris admitted to spanking J.B. because of the incident with the dog. J.B. was removed from the residence that day.

[7] The following day, on August 26, 2014, J.B. was examined by Dr. Thomas Kintanar (Dr. Kintanar), a family physician. Dr. Kintanar observed clear “handprints on [J.B.'s] buttocks” from an “extremely traumatic event” and bruising around the belt line and torso. (Tr. p. 145, 150). Dr. Kintanar also documented bruises on the arms, caused by J.B. being “grabbed quite forcefully by the arm and drug up.” (Tr. p. 146). Dr. Kintanar found fingerprint marks and bruises from hands on J.B.'s back and noticed that J.B. had a black eye.

[8] On October 24, 2014, the State filed an Information charging Norris with battery, a Level 5 felony. On January 8, 2015, the State filed its notice of intent to use statements of protected person, which the State amended on February 27, 2015. On April 10, 2015, the trial court conducted a hearing on the State's motion and on April 21, 2015, the trial court found, in pertinent part, that J.B., the protected person,

is unavailable as a witness based upon the testimony of a psychologist as well as an additional witness (Pat Smallwood) specially trained to communicate with children such as the protected person in this case ( [J.B.] ).

The [c]ourt finds, based upon said testimony, that requiring the protected person to testify in the physical presence of [Norris] will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.

(Appellant's App. p. 16). Finding sufficient indications of reliability, the trial court admitted J.B.'s videotaped forensic interview and permitted the State to call up to three additional witnesses to testify as to statements made to them by J.B., the protected person. On May 12 through May 14, 2015, the trial court conducted a jury trial. At the close of the evidence, the jury returned a guilty verdict. On June 8, 2015, Norris was sentenced to five years executed, with two years suspended to probation.

[9] Norris now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Protected Person

[10] Norris contends that the trial court erred in its determination that J.B. was unavailable to testify pursuant to the provisions of the protected person statute, enacted at I.C. § 35–37–4–6. The decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal. Taylor v. State, 841 N.E.2d 631, 634 (Ind.Ct.App.2006), trans. denied. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or it misinterprets the law. Id. However, “[a]t the same time, the protected person statute impinges upon the ordinary evidentiary regime such that we believe a trial court's responsibilities thereunder carry with them what we recently called in another context ‘a special level of judicial responsibility.’ ” Carpenter v. State, 786 N.E.2d 696, 703 (Ind.2003).

[11] Indiana Code section 35–37–4–6 provides, in relevant part, that an otherwise inadmissible statement or videotape made by a protected person (here, a child under fourteen years of age) is admissible in criminal actions involving battery, as defined in I.C. § 34–42–2–1, if the following conditions are met:

(1) The court finds, in a hearing:

(A) conducted outside the presence of the jury; and

(B) attended by the protected person in person or by using a closed circuit television testimony [ ];

that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.

(2) The protected person:

(A) testifies at the trial; or

(B) is found by the court to be unavailable as a witness for (1) of the following reasons:

(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.

[12] Norris does not make the traditional claim under the protected person statute that he did not have the opportunity to cross-examine J.B. See, e.g., Howard v. State, 853 N.E.2d 461, 470 (Ind.2006) (stating that “prior testimony from a subsequently unavailable witness is admissible at a subsequent trial, provided the defendant had the opportunity to confront the witness when the testimony was originally given”). Rather, focusing on the unavailability prong of the statute,¹ Norris first contends that the unavailability determination can only be drawn from the testimony of a “psychiatrist, physician, or psychologist” and “other evidence, if any[.]” See I.C. § 35–37–4–6(e)(2)(B)(i). Norris maintains that this “other evidence” within the meaning of the statute cannot be additional witness testimony, like here, but rather must consist of “a consideration of testimony from designated individuals who are either a psychiatrist, physician, or psychologist and then any other evidence that might be presented (like maybe medical reports or other documents).” (Appellant's Br. p. 12).

[13] “The statute provides that a psychiatrist, physician, or psychologist must present evidence regarding the potential for serious emotional harm to the protected person that testifying would cause.” Cox v. State, 937 N.E.2d 874, 878–79 (Ind.Ct.App.2010), trans. denied. Therefore, a “trial court's observations of the child standing alone, are insufficient to meet the statutory standard of unavailability established by the [statute].”

Id. at 879. During the protected person hearing, the State presented as its witness Dr. David Lombard (Dr. Lombard), a clinical psychologist to whom J.B. was referred in November 2014 to assess the child's cognitive abilities and his mental health condition. Dr. Lombard opined that

[a]t the time [J.B.] was displaying symptoms consistent with three conditions. Generalize[d] anxiety disorder, which is just anxiety throughout the day.... Another condition we call reactive attachment disorder. He has some significant [sic] the primary adult figures in his life around that time and lack of emotion connection in feeling safety in their care [sic]. And then the third condition was impaired parent/child relationship. He felt very distant from his mother, felt his mother had allowed [Norris] to harm him and didn't intervene.

(PPH² Transcript p. 77). Based on this diagnosis, Dr. Lombard concluded as follows with respect to J.B.'s ability to testify at trial:

My concern was with a couple of issues. One was the environment in a normal courtroom, people watching him, staring at him as people are now, may overwhelm him, triggers anxiety. He was very worried about [Norris] being very angry at him. He was very worried about disappointing his mother and saying anything that may hurt her feelings. So my concern at the time was, you combine that with his generalized anxiety disorder and he already feels estranged from the adults and my concern was that could worsen those

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