Sutton v. State Of Ind.

• Decision Date: 21 December 2010
• Docket Number: No. 01A05-1002-CR-75,01A05-1002-CR-75
• Parties: CHRISTOPHER M. SUTTON, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

CHRISTOPHER M. SUTTON, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 01A05-1002-CR-75

COURT OF APPEALS OF INDIANA.

Filed: December 21, 2010

ATTORNEY FOR APPELLANT:

PATRICIA CARESS MC MAT II Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER Attorney General of Indiana.

IAN MCLEAN Deputy Attorney General Indianapolis, Indiana.

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPEAL FROM THE ADAMS CIRCUIT COURT

The Honorable Frederick A. Schurger, Judge

Cause No. 01C01-0807-FA-9

MEMORANDUM DECISION-NOT FOR PUBLICATION

BROWN, Judge Christopher Sutton appeals his conviction for child molesting as a class A felony.¹ Sutton raises two issues which we revise and restate as:

I. Whether the trial court abused its discretion by admitting Z.H.'s statements; and

II. Whether the trial court abused its discretion by admitting portions of Sutton's recorded statement.

We affirm.

The relevant facts follow. Seven-year-old Z.H. lived with her mother S.C., her three-year old brother, and thirty-two-year-old Sutton. S.C. and Sutton had lived together for "about 2, 2 1/2 years," and Z.H. called Sutton "daddy." Transcript at 276, 288, 373. On July 8, 2008, Z.H. and her brother were in bed with S.C. and Sutton. Z.H. had an issue with wetting herself at night and wore a pull-up diaper. S.C., who is a sound sleeper, did not hear Sutton leave the next morning.

S.C. woke up around 7:00 a.m., and Z.H. was already awake. Z.H. went into the bathroom and her mother told her to take off her clothes so that she could take a bath. Z.H. told S.C. that her vagina hurt. S.C. told Z.H. that she "probably peed [her] pants, um go ahead and take your clothes off you'll be fine," and Z.H. stated "no mom my vagina hurts because... daddy stuck his penis in my vagina." Id. at 279.

Without talking to Z.H. about what had happened, S.C. called her mother. S.C.'s mother and sister arrived, and her sister called the police. Later that day, Danielle Goewert of the Fort Wayne Child Advocacy Center interviewed Z.H. and the interviewwas recorded. Z.H. informed Goewert that Sutton put his penis in her vagina the previous night. Z.H. stated that Sutton was asleep because his eyes were closed. Z.H. stated that Sutton's penis touched her pull-up diaper and that her pull-up diaper went into her vagina. Z.H. also stated that her brother once smacked her in her vagina.

After her interview, Z.H. was examined at the Fort Wayne Sexual Assault Treatment Center by Sharon Robinson, the chief administrative officer and a sexual assault nurse examiner. Robinson asked Z.H. what had happened to her, and Z.H. stated that her "daddy put his penis inside [her] vagina and that he pushed [her] pull up inside with his penis...." Id. at 342. Robinson observed Z.H.'s "internal female sex organ" and "her labia minera," which she described as "beefy regnant" or "beefy like in red meat, so it's really dark red...." Id. at 344. Robinson also observed petechiae, which is "pin point bruising," on Z.H. 's labia minera and above her urethra. Id.

When Sutton arrived home, Berne Police Detective James Newbold identified himself to Sutton and asked him if he would come to the police department with him. Sutton said that he would and asked if he was going to jail. During the interview, Detective Newbold told Sutton that the interview related to the fact that Z.H. had told her mother that her vagina hurt. Sutton stated that Z.H. had complained about her vagina hurting for probably the last year. Detective Newbold asked Sutton if there was a particular reason why Z.H.'s vagina would be hurting, and Sutton stated that over the weekend Z.H. complained that she had been hurt on the "swings or something," but Z.H.'s aunt checked her and determined that she was only scratched. State's Exhibit 11.

Sutton denied placing his penis in Z.H.'s vagina. When asked why Z.H. would say that he had placed his penis in her vagina, Sutton stated that he is erect in the mornings and that he must roll over Z.H. to exit the bed but that his penis did not touch her. Sutton also indicated that he attempts to be sure that he is "clear" of the children and is "careful" because he knows the children are usually in the bed. Id.

At one point during the interview, Detective Newbold asked Sutton if there was any reason why a pubic hair would be found inside of Z.H.'s vagina, and Sutton stated that he was bald because he shaves his pubic area. Detective Newbold indicated that he was not sure whether pubic hairs were found or not, and Sutton indicated that it would not matter because he shaves. At some point during the interview, Sutton pulled his pants down to show Detective Newbold his pubic area, and Detective Newbold observed that Sutton had pubic hair of "maybe a half inch to three quarters" in length. Transcript at 326.

On July 14, 2008, the State charged Sutton with child molesting as a class A felony. On December 29, 2008, the State filed a notice of intent to introduce Z.H.'s statement at trial pursuant to Ind. Code § 35-37-4-6, the Protected Persons Statute, and later filed amended notices. On January 5, 2009, the State filed an amended information for child molesting as a class A felony. On June 16, 2009, the court held a protected person hearing on the State's motion, which Sutton attended. Sutton's counsel questioned Z.H. Barbara Gelder, a psychologist at the Center for Neuro-Behavioral Services, testified that she had previously met Z.H., reviewed her medical file, andbelieved that Z.H. would suffer harm by testifying. On June 23, 2009, the court entered an order concluding that Z.H. was a protected person, was unavailable to testify at the trial, and was made available for and was cross-examined by defense counsel during the protected person hearing.

At a jury trial, the State moved to admit a DVD of the interview of Z.H. by Danielle Goewert which occurred at the Child Advocacy Center, and Sutton's attorney stated: "No objection." Id. at 249. The court admitted the exhibit which was later played for the jury. The court also played Z.H.'s testimony from the protected person hearing. S.C. testified without objection that Sutton did not shave his pubic hair frequently and that Sutton had shaved his pubic hair "[m]aybe twice in the two and a half years" they were together. Id. at 282. S.C. also testified that she would be surprised if Sutton said that Z.H. had complained of vaginal pain for over a year.

The State moved to admit the videotaped interview of Sutton, and Sutton objected on relevancy under Ind. Evidence Rule 402, prejudice under Ind. Evidence rule 403, and that "there's drama about regarding whether he shaved his pubic region, how shaved his public [sic] region was, whether he was honest about that" and "that's attempted to put specific incident of conduct in terms of honest [sic] into issue and I believe that that's forbidden under 608b of the Indiana Rules of Evidence." Id. at 317. The prosecutor stated in part that "[t]he nurse will testify about the fiber, how that she [sic] observed it, she doesn't know what it was, the child took it and flicked it off before she recovered it."² Id. at 318. After a discussion, the trial court overruled Sutton's objection, and the interview was played for the jury. After the playing of the interview, Detective Newbold testified that Sutton had pubic hair of "maybe a half inch to three quarters." Id. at 326. Sutton testified and denied that he touched Z.H. in any sexual fashion.

The jury found Sutton guilty as charged. The court sentenced Sutton to forty-five years in the Department of Correction with five years suspended.

I.

The first issue is whether the trial court erred by admitting evidence of Z.H.'s recorded statements and hearsay statements. Sutton argues that the trial court abused its discretion in admitting Z.H.'s statements to her mother and Z.H.'s statements in the interview recorded at the Fort Wayne Child Advocacy Center. The State argues that Sutton waived these arguments because he failed to lodge timely objections at trial.

The record reveals that the State moved to admit the DVD of the interview of Z.H. by Danielle Goewert which occurred at the Child Advocacy Center, and Sutton's attorney stated: "No objection." Transcript at 249. The court admitted the exhibit which was later played for the jury without objection. S.C. also testified, without objection, that Z.H. stated that her vagina hurt because Sutton "stuck his penis in [her] vagina." Id. at 279. Accordingly, Sutton has waived this issue. See Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) ("A contemporaneous objection at the time the evidence is introduced at trialis required to preserve the issue for appeal, whether or not the appellant has filed a pretrial motion to suppress."), reh'g denied.

"A claim that has been waived by a defendant's failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred." Id. "The fundamental error exception is 'extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.'" Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). "The error claimed must either 'make a fair trial impossible' or constitute 'clearly blatant violations of basic and elementary principles of due process.'" Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh'g denied). "This exception is available only in 'egregious circumstances.'" Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

We will address Sutton's arguments to the extent that he argues that fundamental error occurred. Sutton argues that fundamental...