David C. Ennik, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
Appeal from the Wells Circuit Court. The Honorable Kenton W. Kiracofe, Judge. Cause Nos. 90C01-1211-FA-3 & 90C01-1303-FC-5.
ATTORNEY FOR APPELLANT: Joseph M. Johnson, Decatur, Indiana; Mark A. Thoma, Leonard Hammond Thoma & Terrill, Fort Wayne, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; George P. Sherman, Deputy Attorney General, Indianapolis, Indiana.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, David C. Ennik (Ennik), appeals his conviction for one Count of child molesting as a Class A felony, Ind. Code § 35-42-4-3(a)(1) (2012); and two Counts of child molesting as Class C felonies, I.C. § 35-42-4-3(b) (2012).
[¶2] We affirm.
[¶3] Ennik raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by denying Ennik's motion for severance; and
(2) Whether the trial court abused its discretion by admitting hearsay evidence.
FACTS AND PROCEDURAL HISTORY
[¶4] T.W. (Father) and J.N. (Mother) are the biological parents of two daughters:
K.N., born December 14, 2006, and M.W., born February 5, 2008. For the first few years of K.N.'s and M.W.'s lives, Mother was the custodial parent. However, as both Father and Mother have frequently rotated in and out of jail/prison, K.N. and M.W. have had a very unstable childhood.
[¶5] At some point in 2008, Mother befriended Ennik. Mother was overwhelmed with two small children, so Ennik--who lived with his mother in Bluffton, Wells County, Indiana--offered to temporarily care for M.W. Ennik and his mother cared for and supported M.W. for approximately the first year of her life. Ennik also regularly babysat and provided financial support for K.N.
[¶6] In the fall of 2010, following an altercation between Mother and her then-boyfriend, the Department of Child Services (DCS) removed K.N. and M.W. from Mother's custody and, at Mother's request, placed them with Ennik. In November of 2010, Father was awarded custody of both girls. Shortly after obtaining custody, Father's wife, K.S., noticed that the girls were acting out in a sexualized manner, such as by looking at and inserting their fingers inside each other's private areas. K.S. informed Father of her observations. After consulting with family members as to whether such behavior was normal, Father believed that the girls were just experiencing a natural phase of curiosity. K.N. and M.W. also complained of painful urination and vaginal itching, so Father took them to a doctor who advised that Father should discontinue their bubble baths and use cream to treat their yeast infections.
[¶7] For a short period of time after Father was granted custody, Ennik did not have any contact with K.N. and M.W. However, at some point, Father had a discussion with Ennik and Ennik's mother and, after observing " how much [K.N. and M.W.] loved [Ennik's] family," Father allowed Ennik, then age forty-seven, to resume his babysitting duties. (Tr. p. 497). For the next year, Father explained that Ennik babysat K.N. and M.W. approximately " every other weekend" for " [t]he whole weekend usually." (Tr. p. 484). Although Ennik sometimes babysat K.N. and M.W. inside his mother's house, at other times, he and the girls either stayed in his camper, which was parked in his mother's driveway, or he took them camping at his mother's other property in Ossian, Indiana. The last time Ennik babysat K.N. and M.W. was for a week in March of 2012 while Father and K.S. moved into their new home in Huntington, Indiana.
[¶8] In November of 2011, E.R.--another friend of Ennik's--moved to Bluffton with her husband and four children. Because their house was not yet ready, E.R. and her family had to live in a hotel for a brief period of time. However, in order for her oldest child, B.P.W., born December 15, 2004, to attend school, E.R. arranged for B.P.W. to live with Ennik for a few weeks. E.R. and her husband both worked second shift, so even after E.R.'s family moved into their new house, Ennik continued to babysit B.P.W. and her siblings through February of 2012. During the time that Ennik babysat B.P.W., K.N. and M.W. were also present on several occasions, and all three girls would sleep in the camper with Ennik.
[¶9] In December of 2011, Mother was incarcerated, and she was released on September 11, 2012. Immediately upon her release, Mother began exercising parenting time with five-year-old K.N. and four-year-old M.W. On September 22, 2012, during her weekend parenting time, Mother was bathing K.N. and M.W., and she explained to them that only she, Father, or K.S. should ever wash the girls. K.N. responded that Ennik " did" and when Mother inquired further, " K.N. just pointed to her private and held two fingers up and wiggled them." (Tr. pp. 371-72). When Mother questioned M.W., K.N. whispered to M.W. that it was okay to share the " secret" with Mother. (Tr. p. 371). Mother immediately contacted the police.
[¶10] On September 23, 2012, the Wells County DCS office commenced an investigation. DCS Family Case Manager Wendeline Garrett (FCM Garrett) interviewed K.N. and M.W. individually using the " Finding Words" methodology. (Tr. p. 152). Detective Sergeant Steven Cale (Detective Cale) of the Bluffton Police Department was present during the interviews, which were video recorded.
[¶11] During the interview with K.N., FCM Garrett asked whether she had ever received " a touch that somebody told you not to tell about." (Defendant's Exh. C, p. 18). K.N. answered affirmatively, stating that it was " somebody my mom knows. . . . His name is Dave" -- i.e., Ennik. (Defendant's Exh. C, p. 19). K.N. then repeatedly circled the vaginal area on an anatomical diagram to indicate why she did not like going to Ennik's. She stated that he had told her not to tell anyone that he had touched her there. K.N. also drew two " [f]ingers" on the diagram to show what part of Ennik's body had touched her, and she answered that he had touched her " [u]nder" her clothes and " [u]nder" her underwear, and his fingers were on the " [i]nside." (Defendant's Exh. C, pp. 22, 24-25, 27). K.N. said that the touching occurred at Ennik's house, where he lives with his mom, and that she had been playing in the living room when Ennik " said come here." (Defendant's Exh. C, p. 23). K.N. added that " [h]e did it to my sister, too." (Defendant's Exh. C, p. 24). After answering that the touching had occurred " [m]ore" than one time, K.N. held up five fingers, then one finger, then ten fingers. (Defendant's Exh. C, p. 26). K.N. explained that the touching " hurt" and denied that Ennik had ever asked her to touch any part of his body. (Defendant's Exh. C, p. 29).
[¶12] On the other hand, M.W. initially denied that anyone had ever touched her in a way that she did not like. When specifically asked about Ennik, M.W. explained that he was their babysitter, and she liked going to his house because it was " [f]un." (Defendant's Exh. B, p. 16). M.W. stated that Ennik would help her take baths by washing her hair, but she washed her own body. Later in the interview, FCM Garrett informed M.W. that " [K.N.] talked to [Detective Cale] and I about a touch that she got on her body that she did not like, that it hurt. . . . [D]id she tell you about that?" (Defendant's Exh. B, p. 18). M.W. nodded her head yes and answered that " Dave" -- i.e., Ennik--had been the one who touched K.N. (Defendant's Exh. B, p. 19). M.W. then pointed to the vagina on an anatomical diagram to indicate where Ennik had touched K.N. When asked whether anyone had ever touched her there, M.W. nodded her head and answered that " Dave" had done so. (Defendant's Exh. ...