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Galvan v. State

Court of Appeals of Indiana

February 28, 2014

CHRISTOPHER M. GALVAN, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Thomas P. Stefaniak, Jr., Judge. Cause No. 45G04-1202-FA-5.

ATTORNEY FOR APPELLANT: THOMAS W. VANES, Crown Point, Indiana.

ATTORNEY FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; IAN MCLEAN, Deputy Attorney General, Indianapolis, Indiana.

FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge.

Christopher M. Galvan appeals his conviction of Child Molesting,[1] a class C felony. Galvan presents the following restated issue for review: Did the trial court commit reversible error in admitting statements of the child victim under the excited-utterance exception to the hearsay rule?

We affirm.

The facts favorable to the conviction are that beginning sometime around August or September 2011, Galvan lived with his father, Mark Galvan, and his father's wife, Kathleen Dillon, along with their children and stepchildren. Among those children was seven-year-old F. Mark and Kathleen owned their own business, which caused them to be absent from the home on a regular basis. During their absences, Galvan would babysit Kathleen's children. He also drove them to various activities, such as school and summer camp. Toward the end of 2011, Kathleen noticed that F. did not want to stay at home when Kathleen and Mark were not there. She would ask to be allowed to accompany Kathleen, and " was very adamant about not wanting to stay home any more, but she never said why." Transcript at 89.

There had been several incidents when the children complained that Galvan was being mean to them or bullying them. Kathleen and Mark had told Galvan not to strike the children, and instead to use some other form of discipline. On or about February 6, 2012, while Galvan was away staying with his mother for three or four days, Kathleen asked F. if Galvan had been " bothering" her or " done anything to her", referring to the aforementioned corporal punishment. Id. at 90. F.'s first response was, " What if I said no?" Id. Kathleen responded that that would be good. F. then replied, " What if I said yes?" Id. Kathleen responded that that would be " very bad." Id. At that point, F. whispered in Kathleen's ear that Galvan had kissed her. Because some of the other children were in the room at the time, Kathleen moved F. into a bedroom to continue the discussion. Once in the bedroom, F. told Kathleen that Galvan had kissed and touched her. She related that he had removed her pants and rubbed his " private part" on her " bottom", causing it to " hurt" . Id. at 107.

Kathleen called police and reported what F. had told her. F. was taken to the hospital, where she underwent a physical examination by Dr. Maria Cole. Following the examination, Dr. Cole made the following notations:

Patient told mom she was sexually assaulted by stepbrother (22 yr old) sometime last week. Police report made by mother today & male is not in pts home at this time. Patient told me 22 yr old stepbrother " put his penis by her bottom & pushed his penis & rubbed her skin near anal area." He also allegedly told her to cover his penis with her mouth but she was reluctant & he did not force her. He apparently told her that if she told anyone that he would not be able to live in her ...

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