Wilson v. State
| Decision Date | 11 August 2021 |
| Docket Number | Court of Appeals Case No. 21A-CR-131 |
| Court | Indiana Appellate Court |
| Parties | Donovan L. WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
Attorney for Appellant; Sean C. Mullins, Appellate Public Defender, Crown Point, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana
[1] Following a three-day jury trial, Donovan Wilson was convicted of child molesting, a Level 1 felony. Wilson now appeals, raising one issue for our review: whether the trial court abused its discretion by admitting into evidence the victim's recorded forensic interview because it lacked sufficient indications of reliability. Concluding that the victim's interview contained sufficient indications of reliability, we affirm.
[2] In February 2020, twenty-eight-year-old Wilson and his then wife, Ashlay, lived in Gary, Indiana, with their five children. Wilson was the biological father of four of the children and stepfather to then eight-year-old A.N.1 Ashlay is A.N.’s biological mother.
[3] On the evening of February 9, 2020, Wilson was at home in the basement that he had turned into his "man cave[.]" Record of Jury Trial Proceedings ("Jury Tr."), Volume 4 at 10. The basement had an open-concept design and contained Wilson's couch, a television, video games, and DVDs. Most of the basement was visible from the top of the basement stairs.
[4] As the children prepared for bed, Wilson's two sons and A.N. went downstairs to say goodnight. Shortly thereafter, the boys returned upstairs; A.N. did not. Ashlay waited five minutes before going downstairs to check on A.N. When she reached the third or fourth stairstep, Ashlay saw Wilson sitting on the edge of the couch with A.N. bent over between his legs. Ashlay saw that A.N.’s pajama pants were at her ankles and Wilson had his hand on her back, moving her back and forth. Wilson was not wearing a shirt.
[5] Ashlay shouted Wilson's name and immediately ran down the stairs. Wilson answered in an aggressive manner, "What." Id. at 15. He then jumped up, pulled up his pants, charged at Ashlay, then proceeded up the stairs. A.N. was shaking and looked "really scared[.]" Id. at 14.
[6] Ashlay had A.N. pull up her pants, and the two went upstairs. Ashlay then told A.N. to go to her room and that she would "handle things from there." Id. Ashlay told A.N. not to open the door unless she heard a female voice.
[7] Ashlay left the house and ran down the street to a family member's home for help. Ashlay then returned to her house to collect the children. By the time she arrived, several members of her family who lived nearby, and who had learned of the incident, were gathered—including her aunt, uncle, and mother. Ashlay's aunt went into the house and brought the children outside.
[8] A family member called the police, and, shortly thereafter, the police and an ambulance arrived. A.N. refused to speak with the police. Ashlay, upset and crying, told the police that Wilson had penetrated A.N. and molested her. Wilson was arrested.
[9] A.N. was first taken to a Gary hospital for a sexual examination; however, the hospital could not perform the examination because A.N. was too young. A.N. was then transferred to a hospital in Mishawaka and examined by a sexual assault nurse examiner ("SANE nurse") who administered a pediatric sexual assault kit at around 6:00 a.m. on February 10. During the examination, A.N. used the term "middle part" to describe female genitalia and "peanuts" to describe male genitalia. Id. at 59, 60. A.N. told the SANE nurse that Wilson had put his "peanuts" in her "middle part" and "bottom" and that it hurt. Id. The nurse observed redness in A.N.’s inner vaginal area. The nurse performed swabs of A.N.’s internal and external genitalia to collect DNA for the sexual assault kit. Once the kit was completed, it was sealed and handed over to the police.
[10] The swabs were subsequently analyzed by a forensic DNA analyst and compared with buccal and penile swabs obtained from Wilson. The analyst testified at trial that results from the following swabs demonstrated very strong support for the probability—that is, that it was at least one trillion times more likely—that the DNA found originated from Wilson: internal vaginal swabs, internal anal swabs, and swabs from both the front and rear of A.N.’s underwear.
[11] On February 11, 2020, the State charged Wilson with child molesting as a Level 1 felony. On February 18, 2020, Detective Sergeant Jeremy Kalvaitis with the Lake County Sheriff's Department Special Victims Unit conducted a forensic interview with A.N. During the interview, Kalvaitis asked A.N. if something happened to her recently, and A.N. answered that after she had gone downstairs, Wilson turned her around and pulled down her pants and underwear. Confidential Exhibit, Volume 3 at 3, State's Exhibit 12A at 8:04, 9:54, 10:12. Kalvaitis asked A.N. what happened next, and she replied, "I forgot." Id. at 8:47. A.N. did remember that her mother came downstairs, shouted Wilson's name, and began to cry. Id. at 9:00. A.N. told Kalvaitis that Wilson was "on the couch," and she then described the layout of the basement and its contents. Id. at 10:08. A.N. told Kalvaitis that Wilson put his "peanuts in [her] butt" and "around" her "middle part." Id. at 11:33, 13:12. She said that she could "feel it" and that she told Wilson to stop, but Wilson told her to "be quiet." Id. at 12:07, 12:19, 12:27. When Kalvaitis asked if Wilson's pants were pulled down, A.N. answered that his pants were pulled down to his knees. Id. at 12:42.
[12] Kalvaitis gave A.N. a drawing that contained an outline of a girl, and A.N. placed a circle around what she referred to as her "middle part" and an "X" over what she referred to as her "butt." Id. at 13:46, 14:24, 14:46. Kalvaitis then drew a stick-figure image meant to depict Wilson and asked A.N. to circle where on the figure Wilson's "peanuts" were located. Id. at 15:24, 15:44. A.N. placed a circle between the stick-figure's legs. Id. at 15:52. Near the end of the interview, A.N. told Kalvaitis that when Wilson's "peanuts" were in her "butt" and "around" her "middle part," Wilson was sitting on the couch; she was standing in front of Wilson; she had her back toward Wilson; and she was watching the television. Id. at 22:40.
[13] On October 29, 2020, the State filed a motion under the protected person statute for admission of A.N.’s recorded forensic interview. See Ind. Code § 35-37-4-6 (2016). On November 6, 2020, the trial court held a protected person hearing, during which the State presented the testimony of a Department of Child Services therapist, Ashlay, A.N., and Kalvaitis. Wilson's counsel questioned each witness at the hearing, including A.N. A.N. testified that she did not remember ever being in the basement with Wilson or experiencing any inappropriate touching from him. Both parties presented arguments, which included Wilson's argument that the statements A.N. made during the interview were not sufficiently reliable. Following the hearing, the trial court granted the State's motion to admit the recorded interview, finding that A.N. was unavailable as a witness and the State "met its burden of proof that the time, content, and circumstances of the prior recorded statement provide[d] sufficient indications of reliability to be admissible at trial." [Public Access Version of] Appendix of the Appellant, Volume Two at 60-61.
[14] A three-day jury trial was held beginning on November 9, 2020. When the State offered A.N.’s recorded interview into evidence as State's Exhibit 12A, Wilson did not object. The trial court gave a limiting instruction regarding the exhibit before it was played to the jury.2 Wilson introduced into evidence a transcript of A.N.’s testimony from the protected person hearing.
[15] At the conclusion of the trial, the jury found Wilson guilty as charged. On December 23, 2020, the trial court sentenced Wilson to a thirty-year executed term in the Indiana Department of Correction. Wilson now appeals. Additional facts will be provided as necessary.
[16] Wilson contends that the trial court abused its discretion when it admitted into evidence A.N.’s recorded forensic interview. According to Wilson, A.N.’s statements during the interview lacked sufficient indications of reliability because the interview took place nine days after the incident occurred, which decreased the spontaneity of A.N.’s statement and increased the likelihood that her statement was the product of suggestion or coaching. Wilson maintains that A.N.’s statements were "devoid of details exclusive to her experience, [and appeared] to instead mirror details available from her mother's statement to police." Brief of Appellant at 8. Wilson also argues that "concerns" regarding the reliability of A.N.’s statement "are only compounded by the fact that ... A.N. received her physical examination prior to making the statement[.]" Id. at 10. Wilson asks this court to vacate his conviction and remand the matter for a new trial.
[17] A trial court has broad discretion in ruling on the admissibility of evidence. Turner v. State , 953 N.E.2d 1039, 1045 (Ind. 2011). We review its rulings for abuse of discretion, which occurs only if the decision was clearly against the logic and effect of the facts and circumstances or misinterprets the law. Williams v. State , 43 N.E.3d 578, 581 (Ind. 2015).
[18] Before we consider the merits of Wilson's claim, we first consider the State's argument that Wilson failed to preserve any error in the admission of the recorded interview because he failed to make a contemporaneous objection when the recording was admitted into evidence at trial. Indeed, Wilson did not object when the interview was...
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