State v. Petry

• Decision Date: 22 June 1988
• Docket Number: No. 48A02-8703-CR-90,48A02-8703-CR-90
• Citation: 524 N.E.2d 1293
• Court: Indiana Appellate Court
• Parties: STATE of Indiana, Appellant (Plaintiff Below), v. David S. PETRY, Appellee (Defendant Below).

Page 1293

524 N.E.2d 1293

STATE of Indiana, Appellant (Plaintiff Below), v. David S. PETRY, Appellee (Defendant Below).

No. 48A02-8703-CR-90.

Court of Appeals of Indiana Second District.

June 22, 1988.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, C. Robert Rittman, Sp. Prosecutor, Marion, for appellant.

Earl C. Townsend, Jr., Townsend Yosha & Cline, Indianapolis, April Hansen, Parr Richey Obremskey & Morton, Lebanon, J. Bayne Burton, Anderson, for appellee.

SHIELDS, Presiding Judge.

The State of Indiana appeals a pre-trial determination that a videotaped interview of the alleged child molestation victim is inadmissible under IC 35-37-4-6 (Burns Supp.1987). ¹

We affirm.

ISSUE

Whether the trial court erred in entering the following order:

The issue before the Court is whether a videotape interview of [S.] taken by Detective Dale Koons is admissible pursuant to I.C. 35-37-4-6. After conducting a hearing in this matter, the Court took the issue under advisement to enable counsel to file briefs with the Court. The Court has read the briefs and has viewed the videotape interview. The Court finds no corroborative evidence of the act that was allegedly committed against the child. The video interview is not admissible pursuant to I.C. 35-37-4-6. ²

FACTS

David S. Petry was charged with two counts of child molesting on June 4, 1985. The alleged victim was Petry's son, S. The molestations allegedly occurred between June 15, 1980, and July of 1983, when S. was between the ages of two and five.

On October 9, 1986, the State filed a "Notice of Intent to Invoke I.C. 35-37-4-6 and to Admit Video Taped Statement of [S.] without calling said child as a result of unavailability." A hearing was held on December 8, 1986, as required by IC 35-37-4-6. Dr. Weinbaum, a psychiatrist appointed by the court to conduct a psychological evaluation of S., and Cindy Rice, a social worker, testified.

In Weinbaum's opinion, S. had been "sexually misused." Record at 96. Weinbaum testified that he based his opinion on a brief initial interview with S., psychological tests run on S. by his staff, a private interview he conducted with S. for several hours, and an informal interview with S.'s mother. Weinbaum also viewed the disputed videotape after interviewing S. Weinbaum testified that he found "[S.'s] ... defenses, his anxiety, his withdrawal, his discomfort with the situation, ... his ability to talk about the sexual experiences to be consistent with a child who has been sexually abused." Record at 92 (our emphasis). Weinbaum stated that S. "talked Weinbaum also testified that he had not formed a conclusion prior to viewing the videotape, and that the videotape played a part in his judgment. Weinbaum clarified this remark: "During the initial examination I thought sure that it was ... uh, that he was a child who'd been sexually abused. Uh, I didn't feel as strongly that it was by his father until after I saw the tape." Record at 111-12. Weinbaum further opined there were many things other than sexual abuse which may cause a small child to be anxious and shy.

                about sexual behaviors engaged in with his father."   Record at 103
                

The second witness at the hearing was Cindy Rice, a staff therapist at the Center for Mental Health in Madison County, who saw S. twice a month from March 28, 1985 to January, 1986. Rice testified that S. showed symptoms of "post traumatic stress syndrome":

"[S.] was showing extreme fearfulness of adults. Uh, if I would ask him certain questions that made him uncomfortable he would climb under the chair or he would walk out of the room. These would just be some ... some simple kinds of questions, but he was very guarded and very fearful. He seemed to be extremely shy for a child his age. Uh, he did not like to answer any kinds of questions no matter how joyful or playful they might be. He did not have any spontaneity. He appeared to be, uh very fearful and that he had very poor eye contact. He had no affect; did not show any emotions."

Record at 129. Rice said she had never asked S. if he had been sexually abused, but S. told her his father does "bad things" to him. Record at 130. Rice testified that S. feared coming to court for hearings and started wetting his bed after he began therapy with her approximately nine months after the last time he saw his father. Rice also said the symptoms present in post traumatic stress "can appear in any disorders." Record at 140 (our emphasis). Rice said S.'s condition had worsened by the time she quit seeing him. Rice concluded that, in her opinion, S. was sexually abused.

The trial court required S.'s presence in the courtroom during the hearing, but S. did not testify. The only other witness was Detective Koons who testified regarding the procedures he used in conducting the videotaped interview with S. The court concluded the videotape was inadmissible for lack of corroborative evidence under IC 35-37-4-6. This interlocutory appeal ensued.

DECISION

Standard of Review

The trial court determined the State did not provide corroborative evidence of the act and the videotape is therefore inadmissible. While this court has found that corroboration under IC 35-37-4-6 is "a matter of fact to be determined by the trier," Miller v. State (1986), Ind.App., 498 N.E.2d 1008, 1013, Indiana decisions have not articulated our standard of review. As a rule, the sufficiency of a foundation for the admissibility of evidence is a matter addressed to the sound discretion of the trial court and its decision will be reversed only for an abuse of that discretion, i.e. only when the trial court's decision is clearly erroneous and against the facts and circumstances or reasonable inferences to be drawn therefrom. Sutton v. State (1981), Ind.App., 422 N.E.2d 430, 431. We specifically adopt this traditional abuse-of-discretion-test for reviewing rulings on the admissibility of evidence under IC 35-37-4-6.

Indiana Cases Dealing With IC 35-37-4-6

Because child hearsay statutes are a relatively recent legislative response to growing concerns about child abuse, it is appropriate to review our caselaw. Indiana courts have dealt with the new child hearsay statute in nine cases, but in none of In Dayton v. State (1986), Ind.App., 501 N.E.2d 482, this court affirmed the constitutionality of IC 35-37-4-6 against a claim the defendant's Sixth Amendment rights to confrontation were violated by admission of an alleged child abuse victim's out of court statements. Although the issue of corroboration under IC 35-37-4-6 was not directly raised, the State established a "prima facie case" through evidence that the child had bruises after being in the care of the defendant. Id. at 484, fn. 3. Thus, there was physical corroborative evidence.

                those was corroboration directly at issue. 3  In fact, corroboration is not mentioned in four of the cases. 4  Nevertheless, it is helpful to look at the kinds of corroborative evidence implicitly found to be sufficient under the statute in the five remaining cases
                

In Miller v. State (1986), Ind.App., 498 N.E.2d 1008, this court specifically addressed the requirement of "corroborative evidence of the act that was allegedly committed against the child" under subsection (d) of IC 35-37-4-6. The court stated:

We view corroboration here to serve the same purpose as

the requirement that independent corroborative proof of the corpus delicti be introduced before a confession is admitted. The phrase simply requires corroboration that the "act " was committed by someone. This result is compelled by the emphasis on the Act, rather than any mention of the defendant. Here Anabel concedes the medical testimony revealed molestations over a course of time. Such is sufficient corroborative evidence.

Id. at 1013. The corroborative evidence consisted of medical testimony that the child had been subjected to repeated acts of vaginal penetration.

On transfer, in Miller, our Supreme Court upheld the constitutionality of the Indiana child hearsay statute, interpreting the statute as requiring that the defendant have the opportunity to cross-examine the child victim. Miller v. State (1987), Ind., 517 N.E.2d 64. Although the court mentioned the statutory requirement of corroborative evidence, the context of the statement indicates only that the corroborative evidence must consist of evidence other than the videotape. In analyzing the legislative intent behind the statute, the court noted, "[p]hysical corroboration may also be unavailable because most children do not resist out of ignorance or respect for authority." Id. at 69. Although Miller does not define the perimeters of corroboration under the statute, it suggests that it is not limited to physical evidence.

In Altmeyer v. State (1986), Ind.App., 496 N.E.2d 1328, this court remanded the cause to the trial court with instructions to enter specific findings of fact and conclusions of law concerning the reliability of the videotaped statement of the alleged child victim. The court noted that these findings were to be limited to the circumstances surrounding the giving of the statement, and not to the corroborating evidence, since corroborating evidence is an additional requirement under IC 35-37-4-6.

In Hopper v. State (1986), Ind.App., 489 N.E.2d 1209, this court held a child's hearsay statements admissible under the statute as excited utterances, thus sufficiently In sum, the Indiana decisions concerning the child hearsay statute implicitly acknowledge that evidence of physical injury or contact may be corroborative, but offer us limited guidance in defining the perimeters of corroboration.

reliable. The court further held the State presented corroborating evidence of the act in the form of testimony of two witnesses. The witnesses had seen the partially-clad child lying next to the defendant and their subsequent examination of the child revealed reddening around the opening of her...