Opinion
23A-CR-2719
07-30-2024
James Kenneth Howard, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana Lisa M. Johnson Brownsburg, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kelly A. Loy Assistant Section Chief for Criminal Appeals Indianapolis, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court Trial Court Cause No. 49D29-2208-F1-22353, The Honorable Charles F. Miller, Judge.
ATTORNEYS FOR APPELLANT Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana Lisa M. Johnson Brownsburg, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kelly A. Loy Assistant Section Chief for Criminal Appeals Indianapolis, Indiana.
Bradford and Tavitas, Judges concur.
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] James Kenneth Howard, Jr. appeals from his convictions after a bench trial of one count of Level 1 felony attempted child molesting and one count of Level 5 felony kidnapping, contending the trial court abused its discretion by admitting certain evidence pertaining to his attempted child molesting conviction. We affirm.
Facts and Procedural History
[¶2] On August 16, 2022, eleven-year-old A.M. walked to a nearby park to meet a friend. She was watching a video on her phone while she waited when a man, later identified as Howard, approached her, asked for her name, and walked away. A short time later, Howard, who was wearing a white t-shirt, black shorts, a do-rag, and a "Bad Boys" hat, returned, grabbed A.M. around her neck, put a cloth over her mouth, and dragged her to a nearby wooded area. Tr. Vol. II, p. 63.
[¶3] While in the wooded area, Howard removed A.M.'s shorts and underwear, and pulled down his shorts. A.M. struggled to break free, but Howard grabbed A.M.'s breast under her shirt and forced his penis on her vagina. A.M. continued to struggle and kick, and Howard ran away.
[¶4] A.M. returned to the park bench, found her phone, and immediately called 911. She gave a description of Howard, his clothes, and his phone to responding officers. She was then taken by ambulance to a nearby children's hospital where her mother later joined her.
[¶5] The following day, officers located Howard about two blocks north of the park wearing the same clothes that matched A.M.'s description. The officers arrested Howard, and A.M. later identified him as her attacker in a photographic line-up.
[¶6] The State charged Howard with one count each of Level 1 felony child molesting, Level 1 felony attempted child molesting, Level 5 felony kidnapping, and Level 5 felony criminal confinement. The State later alleged Howard was an habitual offender.
[¶7] At the conclusion of the State's case during Howard's bench trial, the court dismissed the count alleging Level 1 felony child molesting due to insufficient evidence. The court found Howard guilty of the remaining charges and found him to be an habitual offender. At sentencing, the court vacated the Level 5 felony criminal confinement conviction and sentenced Howard to an aggregate term of forty-five years.
Discussion and Decision
[¶8] Howard appeals, contending that the trial court abused its discretion and committed reversible error by admitting certain evidence he claims violated the hearsay rule.
Standard of Review
[¶9] Our standard of review for the admissibility of evidence is well established. "'The admission or exclusion of evidence lies within the sound discretion of the trial court and is afforded great deference on appeal.'" Singh v. State, 203 N.E.3d 1116, 1121 (Ind.Ct.App. 2023) (quoting Housand v. State, 162 N.E.3d 508, 513 (Ind.Ct.App. 2020), trans. denied).. "'We will reverse the trial court's ruling on the admissibility of evidence only for an abuse of discretion.'" Id. "'An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.'" Id. "'Errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party.'" Id. "'To determine whether an error in the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence on the jury.'" Id.
I. Admission of Course of Investigation Testimony
[¶10] Howard contends the trial court abused its discretion by allowing a detective to testify about a search warrant he obtained and the subsequent test results prior to the testimony of the foundational witness to sponsor the results as substantive evidence. He claims that the admission of the detective's testimony was in violation of the hearsay rule.
[¶11] At the bench trial, Indianapolis Metropolitan Police Detective Vinson Boyce testified about a "suspect exam" which was conducted in relation to Howard. Tr. Vol. II, p. 46. Detective Boyce testified that the purpose of the examination was to search for "[a]ny kind of STI's, sexually transmissioned-transmitted infections." Id. at 53. When asked the reason why, Detective Boyce testified over objection that it was because A.M. had tested positive for trichomoniasis.Subsequent testimony by forensic nurse, Cathy Gerdes established that A.M. tested positive for trichomoniasis, and forensic nurse, Cherie Meharry testified that Howard tested positive for trichomoniasis. Crime Lab forensic scientist, Alaina Kreger testified that A.M. was the major DNA profile on her genital swab, and that Howard was the minor DNA profile. She found that Howard was the major DNA profile on his genital swab and that the minor DNA profile was inconclusive because it matched A.M.'s in every way except for one discrepant allele.
"Trichomoniasis is a common sexually transmitted infection caused by a parasite." https://www.mayoclinic.org/diseases-conditions/trichomoniasis/symptoms-causes/syc-20378609 (last visited July 22, 2024).
[¶12] Howard objected on hearsay grounds to Detective Boyce's testimony. The State argued that, "we intend to introduce more substantive evidence on this later.... this is just the course of the officer's investigation, why he applied for the search warrant and did that testing. Id. at 53. The court allowed the testimony "for the limited purpose." Id.
[¶13] Howard argues on appeal that the trial court's admission of Detective Boyce's testimony about the lab test results violated the hearsay rule because there is no "'course of investigation' exception to the hearsay rule." Appellant's Br. p. 8.
[¶14] Assuming arguendo that Boyce's testimony constituted inadmissible hearsay, we observe this was a bench trial. "The judicial temperance presumption . . . is the presumption that in a proceeding tried to the bench a court renders its decisions solely on the basis of relevant and probative evidence." Terpstra v. State, 138 N.E.3d 278, 287 (Ind.Ct.App. 2019) (internal quotation omitted), trans. denied. "The presumption exists because '[t]he risk of prejudice is quelled when the evidence is solely before the trial court.'" Id. (quoting Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012)). "The presumption comes into play when a defendant challenges the admissibility of evidence at a bench trial and the evidence was, in fact, inadmissible." Terpstra, 138 N.E.3d at 287. "A defendant may overcome the presumption by showing that the trial court admitted the evidence over a specific objection." Id. "If a defendant overcomes the presumption, the reviewing court engages in a harmless-error analysis and may affirm the trial court if it is satisfied the judgment [is] supported by substantial independent evidence such that there is no substantial likelihood that the challenged evidence contributed to the judgment." Id. "If the presumption is not overcome, we presume that the trial court disregarded the challenged evidence and find any error to be harmless." Id.
[¶15] And here, the foundational witnesses for those lab results testified later in the State's case-in-chief. "The trial court has broad discretion in determining the order of proof at trial, and it has broad discretion in the control of trial proceedings." Hubbard v. State, 514 N.E.2d 1263, 1265 (Ind. 1987) (internal citation omitted). The court did not abuse its discretion by allowing Detective Boyce to testify about the lab results before a subsequent witness laid the foundation for the admission of the lab results. Additionally, the challenged testimony was cumulative of the evidence subsequently admitted at trial without objection. "'Admission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted.'" VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013)(quoting McClain v. State, 675 N.E.2d 329, 33132 (Ind. 1996)). We find no abuse of discretion.
II. Admissibility of Excited Utterances
[¶16] A.M. testified immediately after Detective Boyce. During her testimony, she identified Howard, and she detailed his attack on her.
[¶17] Immediately thereafter, A.M.'s mother testified. She explained how she learned that A.M. was at the hospital and then described what happened after she was reunited with A.M. She noted A.M. had been crying and described A.M.'s demeanor as simultaneously distraught but also relieved to see her family. The State asked A.M.'s mother to testify about A.M.'s explanation of why she was upset, but Howard objected on hearsay grounds. The State argued that the statements were admissible under the excited utterance exception to the hearsay rule, and the trial court overruled the objection. A.M.'s mother then testified that A.M. told her she went to the park and was watching Netflix on her phone while waiting for a friend when a man "snatched" her, dragged her into the woods, and attempted to rape her. Tr. Vol. II, p. 87.
[¶18] On appeal, Howard maintains that A.M.'s statements to her mother were not properly admitted under the exception to the hearsay rule for excited utterances.
[¶19] Our Evidence Rules contain a number of exceptions that render admissible some forms of hearsay statements. See Evid. R. 803 &804. One such exception makes admissible statements that occurred as "excited utterances" -statements "relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused." Evid. R. 803(2). "The rationale behind admitting excited utterances is that startling events and absence of opportunity for reflection vest the statements with reliability and reduce the likelihood of falsification." Chambless v. State, 119 N.E.3d 182, 189 (Ind.Ct.App. 2019), trans. denied. "Whether a statement constitutes an excited utterance is a factual determination subject to a clearly erroneous standard of review." Id.
[¶20] For the statement to be admissible, the proponent must demonstrate: (1) a startling event occurred; (2) a statement was made under the stress of the excitement of the event; and (3) the statement relates to the startling event. Id. "The event and utterance need not be contemporaneous, though lapse of time is a factor to consider when deciding if the statement was spontaneous and unrehearsed." Id. "The longer the time between an event and an utterance, the greater the likelihood that the statement is a narrative of past events instead of an excited utterance." Id. "However, the greater the stress caused by the event, the longer the effects of the stress can endure." Id.
[¶21] Although we do not know the exact amount of time that elapsed between the attempted child molestation and A.M.'s reunification with her mother, A.M.'s mother testified to observations indicating that A.M. was still under the stress of the event. The trial court's decision that A.M.'s statements to her mother qualified as excited utterances was not clearly erroneous and, therefore, the trial court did not abuse its discretion by admitting them. Nevertheless, those statements were cumulative of A.M.'s own testimony about what had happened to her. And any error in the admission of A.M.'s mother's testimony about the same, would constitute harmless error, especially in light of the fact that this was a bench trial.
III. Statements For The Purpose of Treatment and Medical Diagnosis
[¶22] A.M. also gave her account of Howard's attempted molestation to forensic nurse Cathy Gerdes. Gerdes was a registered nurse, who worked at the I.U. Riley Center of Hope in the emergency department of the hospital, and also served as a forensic nurse responsible for examining patients who had been physically or sexually assaulted. She testified that she serves the dual purpose of examining the patients to help them receive proper care and treatment in relation to why they were brought to the hospital and also collecting evidence.
[¶23] The State asked Gerdes to testify about what A.M. disclosed to her during the examination, more particularly, what A.M. had said about the attempted molestation. Howard's counsel objected on hearsay grounds, to which the State responded the testimony was admissible under the hearsay exception for medical diagnosis and treatment. The trial court overruled the objection, and Gerdes was allowed to testify. Her testimony echoed A.M.'s previous testimony.
[¶24] Hearsay is inadmissible except as provided by law or other court rules. Evid. R. 802. One exception to that inadmissibility rule is a statement made for purposes of medical diagnosis or treatment. Evid. R. 803(4). Hearsay falls within this exception if it is a statement that:
(A) is made by a person seeking medical diagnosis or treatment; (B) is made for-and is reasonably pertinent to-medical diagnosis or treatment; and
(C) describes medical history; past or present symptoms, pain or sensations; their inception; or their general cause.Id.
[¶25] "This exception 'reflects the idea that people are unlikely to lie to their doctors because doing so might jeopardize their opportunity to be made well.'" Steele v. State, 42 N.E.3d 138, 142 (Ind.Ct.App. 2015) (quoting VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013)). "To test whether the declarant's self-interest in obtaining effective medical treatment makes the hearsay report adequately reliable for admission, we determine: (1) whether the declarant was motivated to provide truthful information to promote diagnosis and treatment and (2) whether the content of the statement was such that an expert in the field would reasonably rely on it when rendering diagnosis or treatment." Id.
[¶26] The evidence shows that A.M. was transported to the hospital by police officers and was examined by Gerdes. A.M. also testified that she explained what had happened to her to the nurse. Gerdes testified that because A.M. was so withdrawn, she received most of A.M.'s medical history from her mother. However, Gerdes then talked with A.M. and described and explained "the multiple things that we can do in terms of the exam, antibiotics, testing, stuff like that." Tr. Vol. II, p. 144. Gerdes testified that the information she received from A.M. did "guide and inform [her] examination of [A.M.]." Id. Gerdes said that A.M. consented to the examination.
[¶27] Howard's counsel's argument at trial was that it was "clear that Miss Gerdes, in treatment of A.M., was for purposes of evidence collection, not medical treatment." Id. at 146. This is a challenge to Gerdes' role and her understanding of her role in the examination process, not to step one of our analysis, namely, whether A.M. was motivated to provide truthful information to promote diagnosis and treatment. But on appeal, Howard challenges whether A.M. understood the nature of the examination and Gerdes' function as examiner. See Appellant's Br. pp. 21-22.
[¶28] Our Supreme Court explained that in cases involving young victims, "there must be evidence that the declarant understood the professional's role in order to trigger the motivation to provide truthful information." VanPatten, 986 N.E.2d at 261 (quoting McClain, 675 N.E.2d at 331). "This evidence does not necessarily require testimony from the child-declarant; it may be received in the form of foundational testimony from the medical professional detailing the interaction between him or her and the declarant, how he or she explained his role to the declarant, and an affirmation that the declarant understood that role." VanPatten, 986 N.E.2d at 261 .
[¶29] Here, Gerdes testified that she "talked to A.M., and explained, you know, the multiple things that we can do in terms of the exam, antibiotics, testing, stuff like that" and that A.M. consented to the exam. Tr. Vol. II, p. 144. We conclude that this is sufficient to satisfy the challenged step of our analysis.
[¶30] Nevertheless, even if Gerdes' testimony was erroneously admitted, the admission of that evidence would constitute harmless error. A.M. testified about what happened to her and she additionally identified Howard as the perpetrator. As we noted above, the "[a]dmission of hearsay evidence is not grounds for reversal where it is merely cumulative of other evidence admitted." VanPatten, 986 N.E.2d at 267. And prejudice to Howard was quelled because it was a bench trial. We find no error here.
Conclusion
[¶31] Based on the foregoing, we affirm the trial court's judgment.
[¶32] Affirmed.
Bradford, J., and Tavitas, J., concur.