Opinion
23A-CR-1736
08-14-2024
Paul D. Staggs II, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Michael D. Dean Withered Burns, LLP Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Justin F. Roebel Supervising Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-2103-F1-7
ATTORNEY FOR APPELLANT Michael D. Dean Withered Burns, LLP Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Paul D. Staggs II ("Staggs") appeals, following a bench trial, his conviction for Level 1 felony child molesting. Staggs argues that the trial court abused its discretion when it admitted into evidence J.S.'s ("J.S.") forensic interview under the Protected Person Statute ("the PPS"). Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.
[¶2] We affirm. Issue
Whether the trial court abused its discretion when it admitted into evidence J.S.'s forensic interview under the PPS.
Facts
[¶3] On January 15, 2021, then five-year-old J.S., his sibling, and his mother began living in a house where Staggs also lived. Multiple people in the house referred to Staggs as Pops. At some point during the week that J.S. lived at the house, Staggs put his penis in J.S.'s mouth. On January 22, 2021, J.S. told his mother about what had happened, and his mother called the police. Lafeyette Police Department Sergeant Donna Rector ("Sergeant Rector") arrived on the scene. Sergeant Rector took J.S. to the Heartford House Child Advocacy Center ("the center") that same evening for a forensic interview.
[¶4] That evening, J.S. participated in a forensic interview at the center. Executive Director Jen Bushore-Barry ("Director Bushore-Barry") conducted the forensic interview with J.S. During the interview, Director Bushore-Berry asked J.S. if "there ha[d] ever been a time that . . . somebody did something to you that you didn't like?" (State's Ex. 1). J.S. responded, "Yeah." (State's Ex. 1). J.S. told Director Bushore-Berry that "his name is Pops." (State's Ex. 1). J.S. told Director Bushore-Berry that Pops had "whooped my butt" and had "made me stick . . . he sticked his pee pee in my mouth." (State's Ex. 1). J.S. further explained that Pops had said that "it was a game" but "it really wasn't." (State's Ex. 1). J.S. told Director Bushore-Barry that Pops had stuck his "pee pee" in his mouth "more than one time." (State's Ex. 1). J.S. further explained that this happened while he was "still five" and that it happened in "[Pop's] room." (State's Ex. 1). J.S. explained that Pops lived in the "back living room" of the house. (State's Ex. 1). J.S. also told Director Bushore-Barry that Pops "had the taste of rotted apple inside of him." (State's Ex. 1). J.S. told Director Bushore-Barry that Pops had told him not to tell anybody because Pops "didn't want to get in trouble." (State's Ex. 1). J.S. told Director Bushore-Barry that he told his mother about what had happened.
[¶5] In March 2021, the State charged Staggs with Level 1 felony child molesting.In September 2022, the State filed a motion to introduce at trial J.S.'s forensic interview pursuant to the PPS. The trial court held a protected person hearing in March 2023.
The State also charged Staggs with a second count of Level 1 felony child molesting, Level 5 felony possession of a destructive device, and Level 6 felony maintaining a common nuisance. The trial court found Staggs not guilty of that other count of Level 1 felony child molesting. The trial court also found Staggs guilty of Level 5 felony possession of a destructive device and Level 6 felony maintaining a common nuisance. Staggs does not challenge these convictions on appeal.
[¶6] During the protected person hearing, Director Bushore-Barry testified that she had conducted the forensic interview of J.S. Director Bushore-Barry testified that J.S. had told her during his forensic interview that Staggs had put his "[p]eepee in [J.S.'s] mouth." (Tr. at 13). Director Bushore-Barry also testified that J.S. had disclosed to her that he had remembered tasting "rotten apples" when Staggs had put his "peepee" in J.S.'s mouth. (Tr. at 14). Director Bushore-Barry also testified that J.S. had told her that he had been five years old when the act had happened and that it had happened more than one time. Director Bushore-Barry testified that she had asked J.S. where a "peepee" was on a drawing, and that J.S. had indicated the location on the drawing. (Tr. at 18). Director Bushore-Barry testified that she normally does not ask leading questions during forensic interviews and did not recall if she had used leading questions during J.S.'s forensic interview. Director Bushore-Barry further testified that J.S. had corrected her during the interview which was significant because "[J.S.] was letting [her] know if [she] got something wrong" and "was not just going along" with her. (Tr. at 16). On cross-examination, Staggs' counsel asked Director Bushore-Barry if she had noticed anything that would indicate that J.S. had been coached, and she responded that she "did not see anything that would make [her] believe that." (Tr. at 19).
[¶7] Valley Oaks Health Therapist Alicia Phillips ("Therapist Phillips") also testified at the hearing. Therapist Phillips testified that she had provided individual therapy to J.S. from March 2021 until August 2022. Therapist Phillips testified that she had diagnosed J.S. with ADHD and anger problems and that she believed that J.S. was taking medication for these conditions. Therapist Phillips also testified that J.S. had disclosed to her during therapy that "someone had peed in his mouth[.]" (Tr. at 25). When the State asked Therapist Phillips if J.S. had ever changed what he had said about what had happened to him, she responded, "No." (Tr. at 32). Therapist Phillips testified that J.S. would get angry and stop talking about the subject when it came up during therapy. Therapist Phillips further testified that having J.S. testify could lead to "an increase in aggression" as well as regression to J.S.'s behavior when he was younger. (Tr. at 28).
[¶8] Clinical Psychologist Robin Kohli ("Psychologist Kohli") testified that she had conducted a protected person evaluation of J.S., including an interview with J.S. in August 2022. Psychologist Kohli also testified that J.S. had been able to tell the difference between the truth and a lie and that she always asked children this question during evaluations. Psychologist Kohli further testified that J.S. said that Pops had put his "wiener in [J.S.'s] mouth" and that Pops had "peed in [J.S.'s] mouth[.]" (Tr. at 44). Psychologist Kohli testified that during the interview, she had witnessed J.S. exhibit "hypervigilance, agitation, anxiety, [and] avoidance." (Tr. at 51). Psychologist Kohli further testified that, during the interview, she had asked J.S. if he could testify in court in front of Pops, and he had responded that it was a bad idea. Psychologist Kohli testified that when she had asked J.S. how he would feel if Pops was outside of the interview room, J.S. responded that "he would feel so scared because [Pops is] a bad guy[.]" (Tr. at 45). Psychologist Kohli further testified that, when she had mentioned Pops being outside the interview room, J.S. had been startled, had explained that he would have to call the cops but did not have a phone, had reported that he was feeling nervous and worried, had asked Dr. Kohli if they could stop talking about this, and then had ended the interview. When the State asked Dr. Kohli if J.S.'s statements during the evaluation were consistent with his statements during the forensic interview, Psychologist Kohli responded, "Yes[.]" (Tr. at 47).
[¶9] Psychologist Kohli testified that she believed that "if [J.S.] was required to testify in court, that it would cause him serious emotional distress such that he would not be able to reasonably communicate." (Tr. at 52). Psychologist Kohli further explained that "[J.S.] possibly could talk, but if he saw [P]ops in the courtroom that he would likely shut down. [J.S.] shut down with me when I even suggested that [Pops] might be in the office, and [J.S.] knew that [Pops] wasn't in the office." (Tr. at 52). The trial court asked Psychologist Kohli about J.S.'s statements during the evaluation that his "mom cheated on dad" and that "[P]ops . . . was being really nice before he was being mean to me. He wanted me to think he was nice to get in that spot to set me up." (Tr. at 53). Psychologist Kohli opined that J.S. had likely gotten that information from someone else and that she did not "think that [the statement that he was being set up] was [J.S.'s] idea." (Tr. at 54).
[¶10] On cross-examination, Staggs asked Psychologist Kohli if there were any indications that J.S. had been coached, and Psychologist Kohli responded, "I wouldn't necessarily say coached, but he definitely had . . . information he shouldn't have had." (Tr. at 58). When Staggs asked if any of that information related to the incident with Pops, Psychologist Kohli responded, "I don't think so." (Tr. at 58). Psychologist Kohli further explained that J.S.'s description of the incident was described using "immature words" and that J.S.'s statement during the evaluation "was also consistent with what was said in the forensic interview[.]" (Tr. at 58). Psychologist Kohli testified that J.S.'s statement about the incident "didn't seem to be contaminated" like other parts of his evaluation interview. (Tr. at 58).
[¶11] V.W. ("V.W."), who was J.S.'s great-grandmother, further testified that J.S. had moved in with her after the incident at Staggs' house and that J.S. was currently living with her. V.W. testified that when J.S. had first moved in with her, he experienced nightmares, wet the bed, and did not sleep alone. V.W. further testified that J.S.'s nightmares and bedwetting had decreased since he had been living with her. Finally, V.W. testified that she believed that J.S. would be afraid of testifying in a courtroom with Staggs and that she believed that J.S. would start having nightmares again.
[¶12] When J.S. testified at the hearing, he explained that he understood the difference between the truth and a lie. J.S. testified that he had told the truth during his forensic interview. J.S. further testified that no one had told him what to say during the forensic interview and that he had talked about Pops during the forensic interview. J.S. also testified that he was afraid of Pops. Additionally, J.S. testified that his mother had said that he needed to talk to someone because he had been molested, but J.S. said he did not know what that word meant.
[¶13] In April 2023, the trial court issued, in relevant part, the following order:
The Court has conducted the hearing contemplated by the [PPS] and finds that the time, content, and circumstances of the statement and video tape provides sufficient indications of reliability. Here, the interview was conducted on the disclosed date of the alleged incidents during which J.S. stated he was five (5) when the events first occurred, which is the same age as at the time of the interview. Further, [Director] Bushore-Barry opined, based upon her training, education, and experience, that the alleged victim had not been coached prior to giving the statement, which was made the day the alleged victim was removed from [Staggs'] residence.
Having found sufficient indications of reliability, the Court finds based upon the Court's observations of the alleged victim during the hearing, together with the testimony of [Psychologist] Kohli that the protected person'[] testifying in the physical presence of [Staggs] will cause the protected person to suffer serious
emotional distress such that the protected person cannot reasonably communicate. Of note, the protected person's statement at his interview from January 2021, did not waiver at the time of [Psychologist] Kohli's evaluation on August 18, 2022.(Appellant's App. Vol. 2 at 33).
[¶14] In May 2023, the trial court held a bench trial. At the start of the bench trial, the State moved to admit J.S.'s forensic interview as State's Exhibit 1. Staggs did not object to its admission. The trial court found Staggs guilty of one count of Level 1 felony child molesting and not guilty of the second count of Level 1 felony child molesting. The trial court also found Staggs guilty of Level 5 felony possession of a destructive device and Level 6 felony maintaining a common nuisance. At Staggs' sentencing hearing, the trial court sentenced him to forty (40) years for his Level 1 felony child molesting conviction, four (4) years for his Level 5 felony possession of a destructive device conviction, and two (2) years for his Level 6 felony maintaining a common nuisance conviction. The trial court ordered that the Level 5 felony and Level 6 felony convictions be served concurrently for a total aggregate sentence of forty-four (44) years to be served at the Indiana Department of Correction.
[¶15] Staggs now appeals.
Decision
[¶16] Staggs argues that the trial court abused its discretion when it admitted into evidence J.S.'s forensic interview under the PPS. We ordinarily review challenges to the admission of evidence for an abuse of the trial court's discretion. Reynolds v. State, 142 N.E.3d 928, 939 (Ind.Ct.App. 2020), trans. denied. The decision to admit statements under the PPS will not be reversed absent a showing of a manifest abuse of discretion by the trial court resulting in the denial of a fair trial. A.R.M. v. State, 968 N.E.2d 820, 824 (Ind.Ct.App. 2012). We will reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Reynolds, 142 N.E.3d at 939.
[¶17] Here, however, Staggs did not object at trial to the State's offer to admit J.S.'s forensic interview. A party's failure to object to, and thus preserve, an alleged trial error results in waiver of that claim on appeal. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). See also Jones v. State, 800 N.E.2d 624, 629 (Ind.Ct.App. 2003) (holding that a challenge to the admissibility of evidence under the PPS was waived on appeal because defendant did not lodge a timely objection at trial). "This rule is no mere procedural technicality; instead, its purpose is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors." Shoda v. State, 132 N.E.3d 454, 461 (Ind.Ct.App. 2019). Staggs also failed to argue fundamental error in his appellate brief and has entirely waived his claim on appeal. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that failing to object at trial and failing to argue fundamental error on appeal entirely waives a claim).
[¶18] Waiver notwithstanding, we address Staggs' argument. Staggs argues that the trial court abused its discretion when it found that there were sufficient indications of reliability in J.S.'s forensic interview. We disagree.
[¶19] The PPS, INDIANA CODE § 35-37-4-6, lists certain conditions under which evidence that would otherwise be inadmissible will be allowed in cases involving certain crimes against "protected persons." Shoda, 132 N.E.3d at 462. "Among the crimes to which the [PP]S applies are sex crimes under Indiana Code chapter 35-42-4, which includes child molesting." Id. A "protected person" is defined as including "a child who is less than fourteen (14) years of age at the time of the offense but less than eighteen (18) years of age at the time of trial." I.C. § 35-37-4-6(c)(1).
[¶20] The PPS also provides, in relevant part: (e) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected person, as defined in subsection (c);
(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (f) are met.
(f) A statement or videotape described in subsection (e) is admissible in evidence in a criminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the
defendant's right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the protected person in person or by using closed circuit television testimony as described in section 8(f) and 8(g) of this chapter;
that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:
(i) From the testimony of a provider, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.I.C. § 35-37-4-6.
[¶21] "Factors to be considered in the reliability determination under Subsection (f)(1) include the time and circumstances of the statement, whether there was a significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, the use of age-appropriate terminology, spontaneity, and repetition." Setlak v. State, 234 N.E.3d 215, 220 (Ind.Ct.App. 2024) (internal quotation marks and citations omitted), trans. denied. "There are undoubtedly many other factors in individual cases." Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997).
[¶22] Here, the trial court specifically found that J.S.'s forensic interview was reliable because his forensic interview was done the same day that he had disclosed the alleged abuse and because Director Bushore-Barry testified that she did not see any indications of coaching in J.S.'s forensic interview. Further, the trial court noted the consistency in J.S.'s statements during the January 2021 forensic interview and the August 2022 evaluation.
[¶23] Our review of the record reveals that J.S. started living at the house with Staggs on January 15, 2021, and J.S. reported the incident to his mother on January 22, 2021. Further, the forensic interview took place on January 22, 2021, the same day that J.S. disclosed the incident. Thus, the incident occurred close in time to when J.S. reported it to his mother and participated in his forensic interview. In addition, J.S.'s statements about what had happened were repeated and described in age-appropriate words. J.S. had, on more than one occasion, told Director Bushore-Barry during his forensic interview that Pops had put his "peepee" in J.S.'s mouth. (State's Ex. 1). During the protected person hearing, J.S. testified that he understood the difference between telling the truth and a lie and testified that he had told the truth during his forensic interview. Further, Psychologist Kohli also testified that J.S. had understood the difference between the truth and a lie at the time of the evaluation. See Trujillo v. State, 806 N.E.2d 317, 327 (Ind.Ct.App. 2004) (affirming a trial court's determination that a protected person's statement was reliable where the protected person's disclosure used age-appropriate language and that the protected person had no motivation to lie).
[¶24] Further, J.S., while in therapy with Therapist Phillips, disclosed that someone had peed in his mouth. When evaluated by Psychologist Kohli, J.S. said that Pops had put his "wiener in [J.S.'s] mouth" and that Pops had "peed in [J.S.'s] mouth[.]" (Tr. at 44). J.S.'s statements about the incident remained consistent over a one-and-a-half year period.
[¶25] Staggs argues that Director Bushore-Barry "extracted only the minimum 'facts' from J.S. that would support a conviction. To get there, Bushore-Berry crossed the line by resorting to suggestive questions." (Staggs' Br. 16). Specifically, Staggs' challenges Director Bushore-Barry's line of questioning related to any taste or smell during the incident and Director Bushore-Barry's question asking J.S. to identify where a "peepee" was on a drawing. However, these questions were only asked after J.S. had already disclosed that Staggs had put his "peepee" in J.S.'s mouth. Staggs also argues that, during Psychologist Kohli's August 2022 evaluation of J.S., there had been evidence of coaching. However, this allegation of coaching involved facts about J.S.'s mother's relationships and statements about Staggs attempting to set up J.S. and were made in August 2022. These statements were not made during J.S.'s January 22, 2021 forensic interview that was admitted as State's Exhibit 1.
[¶26] After considering all of the factors, we conclude that the trial court did not abuse its discretion when it found that J.S.'s forensic interview was reliable and admitted it at Staggs' bench trial. Accordingly, we affirm the trial court's judgment.
Staggs also argues that our Court should add a corroboration requirement to the PPS. In support of this argument, Staggs directs us to the 1988 version of the PPS that previously required corroborating evidence. However, our legislature amended the PPS to no longer require corroborating evidence, and the Indiana Supreme Court held that "it is now clear that corroboration should not be considered in evaluating the reliability of the statement" under the PPS. Pierce, 677 N.E.2d at 44. Therefore, we decline Staggs' request to add any such requirement to the PPS.
Bailey, J., and Crone, J., concur.