VanPatten v. State

Citation986 N.E.2d 255
Decision Date02 May 2013
Docket NumberNo. 02S03–1205–CR–251.,02S03–1205–CR–251.
PartiesGerald P. VanPATTEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtSupreme Court of Indiana

986 N.E.2d 255

Gerald P. VanPATTEN, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).

No. 02S03–1205–CR–251.

Supreme Court of Indiana.

May 2, 2013.

[986 N.E.2d 257]

P. Stephen Miller, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 02A03–1103–CR–113

DAVID, Justice.

When a competent adult patient visits a doctor and provides the physician with a medical history intending to aid in their diagnosis or treatment, we presume those statements are made truthfully because adults know that lying to one's doctor risks misdiagnosis or mistreatment. Accordingly, the Rules of Evidence generally allow medical professionals to provide substantive testimony as to the statements their patients make in the course of providing their medical history—even though that testimony would ordinarily be excluded as hearsay. When the patient is a young child, however, it is not so easy to assume that he or she recognized the merit of providing a nurse or doctor with truthful information. Because of this, we require a more robust evidentiary foundation be laid before the same type of hearsay testimony is seen as reliable enough to be admitted.

Here, a defendant was convicted on two counts of child molestation and the only substantive evidence implicating him in those crimes was a forensic nurse examiner who testified about statements made by the alleged victim—a six-year-old child who, at the time of trial, had recanted. Based on our review of the trial record, however, there was an insufficient showing that the child victim in this case was motivated to provide truthful information to her nurse. Because of this, the nurse's testimony should not have been admitted as substantive evidence against the defendant and we therefore vacate his convictions with respect to those two counts of child molestation.

Facts and Procedural History

Gerald VanPatten is the biological father of S.D. During the summer of 2009, S.D.'s close friend, E.R., would often spend the night at S.D.'s house. The two girls, then around six years old, would sleep in the same bed. One morning in August of that summer, after a similar sleep-over, E.R. and S.D. told S.D.'s mother that VanPatten had molested them. E.R. ran back to her home and S.D.'s mother contacted her pediatrician, who directed her to the Department of Child Services.

S.D.'s mother took S.D. to a DCS office to be interviewed by a caseworker. DCS also contacted E.R.'s family and requested that E.R. be brought in for an interview as well. During the course of the interviews (which were videotaped), both girls stated that VanPatten had molested them—E.R. the previous evening and S.D. on prior occasions.

Both girls were then taken to the Fort Wayne Sexual Assault Treatment Center where they were examined by Joyce Moss, a forensic nurse examiner. Moss collected several biological samples from E.R. but not from S.D., because S.D. had allegedly been molested outside the window of time

[986 N.E.2d 258]

where such samples would still be viable.1 Neither girl showed any signs of physical injury.

On November 17, 2009, the State charged VanPatten with three counts of class A felony child molesting 2 and one count of class C felony child molesting.3 Two of the class A felony counts, Counts I and II, related to S.D., and one, Count III, related to E.R. Count IV, the class C felony count, related to S.D.

VanPatten hired counsel to represent him, but on December 13, 2010—five weeks before his trial date—VanPatten mailed a letter to the trial judge requesting a hearing in order to fire those attorneys in open court. In response, his attorneys filed a motion to withdraw, citing a breakdown in the attorney-client relationship that precluded any further representation. The trial court denied their motion to withdraw after a hearing on January 10, 2011.

At trial, E.R. testified in a manner generally consistent with the interviews she gave to DCS and Moss, alleging that VanPatten molested her on multiple occasions while she was spending the night with S.D. She also initially testified, on both direct and cross-examination, that she had never seen VanPatten molest anyone else. But later on cross-examination she testified that sometimes VanPatten's actions woke S.D. up, and when that happened “[h]e would do it to her.” (Tr. at 212.)

S.D., however, recanted her previous allegations. She testified that she could not remember ever telling anyone that VanPatten did bad things to her, nor could she remember talking to E.R. about it. She remembered being interviewed by DCS, and had watched the videotape of the interview, but now claimed that what she said there was not true. She explicitly denied that VanPatten ever touched her “in a bad way or in a way that made [her] feel uncomfortable.” (Tr. at 251.) The State sought to admit the videotape of the DCS interview to either refresh her memory or, barring that, as substantive evidence of VanPatten's conduct. VanPatten objected, and after discussion the trial court excluded the videotape.

The State then called Moss to testify as to what E.R. and S.D. told her during their forensic examinations, seeking to apply the hearsay exception found in Indiana Rule of Evidence 803(4) for statements made for the purpose of medical diagnosis or treatment. VanPatten objected, arguing that there was an insufficient foundation to support the use of the exception. The trial court overruled his objection and allowed Moss's testimony as substantive evidence.

On the stand, Moss referred to a written medical report summarizing the patient histories that she collected from the two girls, but she had no independent recollection of the specific interactions between herself and S.D. or E.R. With respect to S.D., Moss testified that her report said “[p]atient states he put his private on my private, on the inside. He put his mouth on my private and he put his finger in my private. Patient states white stuff came out of his private.” (Tr. at 349.) The

[986 N.E.2d 259]

report did not identify the alleged perpetrator.

To impeach S.D.'s testimony that VanPatten had never molested her, the State called Danielle Goewert, the DCS employee who initially interviewed E.R. and S.D. VanPatten objected. The trial court permitted Goewert's testimony, though admonishing the jury that it was to be considered only for the purposes of assessing S.D.'s credibility—not as substantive proof of the crime. Goewert testified that in her interview, S.D. said she had been molested by VanPatten and explicitly described acts similar in nature to those presented in Moss's patient history.

At the conclusion of the State's case in chief, VanPatten moved for judgment on the evidence with respect to the counts arising out of S.D.'s allegations. He argued that even with Moss's testimony, there was no substantive evidence identifying him as the perpetrator with respect to S.D. While Goewert testified that S.D. had identified VanPatten, that testimony was solely for impeachment purposes—and all of the biological evidence was collected from E.R., not S.D. The trial court denied his motion, finding a nexus between testimony from S.D.'s mother—that she did not want S.D. around VanPatten after E.R. and S.D. told her they had been molested—and Moss's testimony as to the patient history provided her by S.D.

The jury acquitted VanPatten of Count I, but convicted him of the remaining three charges. He received a sentence of forty years on each of the remaining class A felony counts, to be served consecutively, and a four-year sentence on the class C felony count, to be served concurrent to the second class A felony sentence.

VanPatten appealed the denial of his attorneys' motion to withdraw. He also appealed the admission of Moss's testimony, claiming it was improperly admitted under Indiana Evidence Rule 803(4), and claimed there was insufficient evidence to sustain his convictions for Counts II and IV. A divided panel of the Court of Appeals affirmed in an unpublished memorandum decision. VanPatten v. State, 2012 WL 456483 (Ind.Ct.App. Feb. 14, 2012).

All three judges concurred that the trial court was within his discretion to deny the motion to withdraw filed by VanPatten's attorneys, and did not do so arbitrarily or unreasonably. Id. at *3–4. The majority also affirmed VanPatten's convictions for molesting S.D., finding that Moss's testimony was properly admitted under Rule 803(4) and that there was sufficient evidence of his guilt. Id. at *6–7.

Judge Baker dissented with respect to Moss's testimony, believing it was not sufficiently reliable to be admissible and that without it the substantive evidence was insufficient to affirm VanPatten's convictions. Id. at *7–8 (Baker, J., concurring in part and dissenting in part). We granted transfer, thereby vacating the decision of the Court of Appeals. VanPatten v. State, 967 N.E.2d 1034 (Ind.2012) (table); Ind. Appellate Rule 58(A).

Given the facts and circumstances of this particular case reflected in the record on appeal, we agree with the Court of Appeals that Judge Surbeck was within his discretion to deny VanPatten's attorneys' motion to withdraw and that he did not act arbitrarily or unreasonably to the extent VanPatten implies a denial of his right to fire the lawyers he hired.4 Accordingly,

[986 N.E.2d 260]

we summarily affirm that portion of the Court of Appeals opinion, Ind. Appellate Rule 58(A)(2), and write here only on whether Moss's testimony was properly admitted and the impact of that determination on his convictions.

Standard of Review

The decision to admit or exclude evidence at trial is squarely within a trial court's discretion and we afford it great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.2003). We will not reverse such a decision, often made in...

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