Rickey v. State

• Decision Date: 08 February 1996
• Docket Number: No. 91A04-9502-CR-41,91A04-9502-CR-41
• Citation: 661 N.E.2d 18
• Parties: James Greg RICKEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 18

661 N.E.2d 18

James Greg RICKEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 91A04-9502-CR-41.

Court of Appeals of Indiana.

Feb. 8, 1996.

Appeal from the White Superior Court; The Honorable Robert W. Roth, Judge, Cause No. 91D01-9405-CF-57.

Lee Griffith, Monticello, for Appellant.

Pamela Carter, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

CHEZEM, Judge.

Case Summary

Appellant-Defendant, James Rickey ("Rickey") appeals his conviction for Child Molesting, ¹ a class B felony. We affirm.

Issues

Rickey presents five issues for our review which we consolidate and restate as follows:

I. Whether the videotaped statement of the child victim was properly admitted into evidence;

II. Whether hearsay evidence regarding the child's statements should have been permitted;

III. Whether evidence of Rickey's second statement was properly admitted; and,

IV. Whether the State presented sufficient evidence.

Facts and Procedural History

The facts most favorable to the judgment reveal that Rickey and his wife, Jennifer, resided with A.R., their infant daughter, and four year old B.C., Jennifer's son from a prior relationship. At all relevant times, B.C. referred to Rickey as "daddy."

On the evening of May 25, 1994, Rickey was at home watching the two children while Jennifer was at work. When Jennifer arrived home shortly after 9:00 p.m., Rickey informed her that he had sent B.C. to bed for watching an X-rated videotape. The following morning, B.C. stated that he and Rickey had "watched a dirty movie with naked ladies in it." Rickey changed the subject.

B.C. had never before expressed interest in sexual matters. Thus, after Rickey left for work, Jennifer asked B.C. what he had started to say about the videotape. B.C. again said that he and Rickey had watched a tape depicting naked ladies. Jennifer asked B.C. what else they had done the previous evening. B.C. responded that while watching the tape, "daddy had his pee pee out" and "daddy pulled his pee pee out and stuck it in my mouth and peed [sic] in mouth [sic]."

That same day, Jennifer took B.C. to the White County Welfare Department where caseworker Tracy Spence ("Spence") interviewed him. B.C. reiterated to the caseworker what he had told Jennifer. Thereafter, Jennifer took B.C. to the sheriff's department where Deputy Patrick Shafer ("Shafer") interviewed him. B.C. told Shafer that Rickey rented a "nasty old movie" and then B.C. repeated what he had told Spence and Jennifer.

That evening, Shafer interviewed Rickey who stated that he found B.C. watching an X-rated movie, and that he tried to teach him "the birds and the bees." (Ex. 2). After considerable questioning, Rickey stated that he pulled down his shorts, masturbated, and ejaculated in B.C.'s presence. He further stated that he had no physical contact with B.C., but that some of his ejaculate may have touched B.C.

On May 27, 1994, Spence again interviewed B.C., this time with his mother present, and with Shafer videotaping the interview. B.C. indicated that he and Rickey watched a movie in which girls removed their clothing. The child also stated that Rickey placed his "wiener" in B.C.'s mouth and "peed." Thereafter, Shafer again interviewed Rickey who gave a second statement. Rickey initially stated that B.C. stood by his knee as he masturbated. After further questioning, however, Rickey stated that B.C. "might of leaned over too far" and "got stuff on him." He also stated that B.C.'s head popped up "from his penis area" when he ejaculated, and that Rickey did not realize that B.C. "had his mouth down there and got anything on him."

A jury found Rickey guilty as charged. Rickey was given a twenty-year sentence with ten years suspended.

Discussion and Decision

I. Child's Videotaped Statement

Rickey challenges the admission of B.C.'s videotaped statement on various grounds. He argues that it was hearsay, and that he was denied the procedural protection afforded him by Ind.Code § 35-37-4-6. ² Additionally, he contends that he was denied his federal and state constitutional right to confront and cross-examine the witness. He also claims the videotape was not of sufficient quality to permit its admission into evidence.

Indisputably, the videotaped statement was hearsay, and thus generally inadmissible. In order to determine whether it was admissible hearsay, we look to the relevant portions of the child hearsay statute, which state:

(a) This section applies to a criminal action under the following:

(1) Sex crimes (IC 35-42-4).

* * * * * *

(b) As used in this section, "protected person" means:

(1) a child who is less than fourteen (14) years of age;

* * * * * *

(c) A statement or videotape that:

(1) is made by a person who at the time of the trial is a protected person;

(2) concerns an act that is a material element of an offense listed in subsection (a) that was allegedly committed against the person; and

(3) is not otherwise admissible in evidence;

is admissible in evidence in a criminal action for an offense listed in subsection (a) if the requirements of subsection (d) are met.

(d) A statement or videotape described in subsection (c) is admissible in evidence in a criminal action listed in subsection (a) if, after notice to the defendant of a hearing and of his right to be present, all of 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;

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

(2) The protected person:

* * * * * *

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

* * * * * *

(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.

(e) If a protected person is unavailable to testify at the trial for a reason listed in subsection (d)(2)(B), a statement or videotape may be admitted in evidence under this section only if the protected person was available for cross-examination:

(1) at the hearing described in subsection (d)(1);

Ind.Code § 35-37-4-6. The child hearsay statute also provides that if such a videotape is admitted, the trial judge must outline certain criteria for the jury to consider. Ind.Code § 35-37-4-6(g). That the trial judge outlined this criteria is not in dispute. (R. 716).

A trial court's decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Shaw v. State, 595 N.E.2d 743, 747 (Ind.Ct.App.1992), reh. denied. Accordingly, we review for an abuse of discretion the trial court's findings that the videotape was reliable and that B.C. was available for cross-examination.

We first review the trial court's determination that the time, content, and circumstances of the videotape provided sufficient indications of reliability. The videotaped interview occurred within two days of the incident and took place at the welfare office. Spence's interview of B.C. was neither adversarial or coached. B.C. was over four-years-of-age at the time of the interview, was not left alone with strange adults, and was not subjected to a stressful physical examination by a doctor. Cf. Miller v. State, 531 N.E.2d 466 (Ind.1988), superseded in part by statute on other grounds as stated in Poffenberger v. State, 580 N.E.2d 995 (Ind.Ct.App.1991), trans. denied. While B.C. did make some contradictory statements during the interview, such inconsistencies do not necessarily make his statement unreliable. Cf. Casselman v. State, 582 N.E.2d 432, 435 (Ind.Ct.App.1991) (noting that a testifying child need not be a model witness, have an infallible memory, or refrain from making inconsistent statements.). Further, B.C. described the incident using age-appropriate terms. We cannot say that the finding that the videotape was reliable was unsupported by the facts or that it was an abuse of discretion.

We next examine the finding that B.C. was available for cross-examination. At the pre-trial hearing regarding B.C.'s competency and the admissibility of the videotape, B.C. was brought to the witness stand by his mother and the following dialogue ensued:

The Court: Okay, [B.C.], listen to me, will you? No, okay. Uh, there will be some people asking questions of you today, and I want you to answer them and I want you to answer them truthfully. Okay? Do you have any questions that you want to ask him about the tape, or the circumstances, or any question you want to ask him at all, he is present for examination by you.

Ms. Griffith [defense counsel]: Yes, Your Honor, we do, we intend to avail ourselves of that and to cross examining him.

* * * * * *

Ms. Griffith: [B.C.], I'm Lee, do you remember me? I'm Mr. Rickey's lawyer, do you remember me? You don't remember me? Okay. Do you know the difference between the truth and a lie, [B.C.]? You don't. Can you answer out loud when I ask you a question? If I ask you questions, will you answer out loud? I can't hear what you said. Let the record reflect that the witness is nodding his head "yes."

The Court: Yes.

Ms. Griffith: [B.C.], do you know the difference between the truth and a lie? And once again, let the record reflect that he shakes his head "no." [B.C.], have you ever told a lie? Let the record reflect that he shakes his head "no." [B.C.] have you--what happens if you tell a lie? He shrugs. [B.C.], do you understand that today you're supposed to come here and tell the truth? He nods. What would happen if you didn't tell the truth today? Let the record reflect that he shrugs. Can you answer out loud? And let the record reflect that he shakes his head "no." [B.C.], do you remember having people ask you about your daddy? [B.C.], can you answer my questions today?

The Court: Do you have any...