Traver v. State

• Decision Date: 27 March 1991
• Docket Number: No. 67S00-8807-CR-690,67S00-8807-CR-690
• Citation: 568 N.E.2d 1009
• Parties: Randy TRAVER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1009

568 N.E.2d 1009

Randy TRAVER, Appellant, v. STATE of Indiana, Appellee.

No. 67S00-8807-CR-690.

Supreme Court of Indiana.

March 27, 1991.

Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Defendant-Appellant, Randy Traver, was convicted by a jury of two counts of child molestation and one count of incest. He was sentenced to two 20-year terms for the molestation convictions, to be served consecutively, and to a four-year term for the incest conviction, to be served concurrently with the molestation convictions. Traver raises a number of issues in this direct appeal, but our decision makes it necessary to decide only whether certain Patterson statements were improperly admitted.

For the reasons stated below, we reverse the child molestation convictions and the conviction for incest because of the improper admission of Patterson statements.

Traver was convicted of molesting his five-year-old daughter, J.T., and another seven-year-old girl, A.G. The State's case was based primarily upon videotaped interviews between J.T. and Ann Newton, and between A.G. and Ellen Johnson. In the tapes, the girls described a game called "wee-wee" which Traver would play with them. J.T. reported that Traver had stuck his finger and tongue into her "private area," and had "put his private into her private." A.G. reported that Traver would play the game which would involve him placing his "weiner" on her and in her "private" area.

Ellen Johnson had A.G. in her elementary school class where A.G. exhibited sexually-oriented behavior which led Johnson to further inquiry revealing the molestations. Johnson found that A.G. possessed a strong ability to know the difference between reality and fantasy, and did not believe she had fabricated the allegation.

Ann Newton, who was qualified as an expert in child sexual abuse, reached certain conclusions after eleven (11) sessions with J.T. and twenty-eight (28) sessions with A.G. Newton found both girls' behavior consistent with sexually-abused children. She found no inconsistencies. Newton also found that they had a present understanding of the difference between reality and falsity and, in her opinion, they had not fabricated their stories.

Tina Gurney testified at trial that she was given custody of J.T. after her removal from the Traver household. Gurney related a conversation with J.T. wherein J.T. told her and her husband about the game and about Traver's insertion of his finger and tongue. Traver's mother, Evelyn, took J.T. to a child analyst and psychiatrist, Sharda Sabesan, after Evelyn suspected that J.T. had been molested. Sabesan had three sessions with J.T. wherein she revealed that Traver had "put his private in her private", and had placed his tongue on her private area, but on top of her clothes.

Detective Richard Rice testified about a statement he took from Traver in which Traver admitted to attaining erections when children sat on his lap. Traver, however, denied touching the children or taking off their clothes. Also in this statement, Traver admitted that in 1979 he had molested another 7-year-old girl.

There was also evidence in J.T.'s videotaped statement, and other statements attributed to her by others that Traver and his mother had instructed J.T. to stay silent, and warned the girl that if she told anyone about what Traver had done, he would go to prison and be killed.

Traver asserts that he was denied his right to confront his accusers because the convictions rested upon out-of-court statements by declarants whom he could not cross-examine.

Two of the out-of-court statements to which Traver refers are the videotapes of the girls talking separately with adults about what Traver had done to them. The other statements are conversations between the children and social workers, teachers, physicians, and foster parents. Both children testified at trial. All of the statements were allowed as substantive evidence pursuant to Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, over Traver's objection that there was an inadequate foundation. Traver challenges the admission of these statements because the girls neither acknowledged giving the statements nor offered in-court testimony about the charges.

In Patterson, we held that out-of-court statements by a declarant who is present and available for cross-examination may be used as substantive evidence. The party offering the out-of-court statement as substantive evidence has the burden of establishing the proper foundation, Douglass v. State (1984), Ind., 466 N.E.2d 721, 724, which requires that the declarant, at trial, acknowledge making the statement and offer live testimony consistent with it. Lambert v. State (1989), Ind., 534 N.E.2d 235. If the declarant fails to meet both requirements, the statement is generally not admissible under Patterson unless there was evidence from which the trial court could conclude that the witness made the statement and remembered having done so, but is feigning lack of memory. Watkins v. State (1983), Ind., 446 N.E.2d 949, 960-61. Whether the out-of-court statement is admissible as substantive evidence is to be determined by the trial court on the basis of the witness' entire testimony. Hodges v. State (1988), Ind., 524 N.E.2d 774, 782.

The purpose of the foundational requirement is two-fold: (1) to ensure that the statement was actually made, and (2) to preserve defendant's right to cross-examine the witness. Watkins v. State, 446 N.E.2d 949. Where, for example, a declarant neither admitted nor denied making the statement and refused to testify on Fifth Amendment grounds, the declarant was not available for cross-examination. Brewster v. State (1983), Ind., 450 N.E.2d 507, 510. Even if the declarant's in-court testimony is consistent with the out-of-court statement, but the declarant does not specifically acknowledge having made the statement, the foundation may be inadequate. Hendricks v. State (1990), Ind., 562 N.E.2d 725. The obvious benefit of the Patterson rule is that it permits the admission of testimonial evidence of guilt that otherwise would be lost. Watkins v. State, 446 N.E.2d at 959; Stone v. State (1978), 268 Ind. 672, 679, 377 N.E.2d 1372, 1375.

Traver claims that he was unable to cross-examine A.G. because she neither acknowledged having given the statements nor offered in-court testimony consistent with them. Traver concedes that the videotaped statements satisfy the first foundational purpose under Patterson, because no one disputes the fact that A.G. gave the videotaped statement. Instead, Traver argues that A.G.'s in-court testimony did not implicate Traver and as a result, there was virtually nothing for him to cross-examine.

The record reveals that A.G. testified in court that she remembered talking to the social workers "on TV" about Traver and about the "wee-wee game." She pointed to the area between her legs when asked what part of the body Traver used to play the "wee-wee game." She did not recall what Traver did with that part of his body, and did not recall saying that Traver put his "weiner" on her. After this live testimony, the trial court permitted the State to play the videotaped statement for the jury.

The record here contains sufficient evidence of acknowledgement by a young child to support admission of the videotape statement. The child identified Traver as the person who had played the "wee-wee game" with her, and testified that Traver had used the area between his legs to play that game. The live testimony contained sufficient information implicating Traver and demonstrated sufficient acknowledgment of the content of the...