Jordin C. Shoda, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Whitley Circuit Court The Honorable Matthew J.
Rentschler, Judge Trial Court Cause No. 92C01-1707-F1-89
ATTORNEY FOR APPELLANT Robert W. Gevers II Fort Wayne,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Ian McLean Supervising Deputy Attorney General
Following a jury trial in Whitley Circuit Court, Jordin C.
Shoda ("Shoda") was convicted of two counts of
Level 1 felony child molesting and one count of Level 4
felony child molesting. Shoda appeals and presents three
issues for our review, which we restate as:
I. Whether the trial court abused its discretion by admitting
into evidence a video recording of an interview of the victim
by a forensic examiner;
II. Whether the trial court abused its discretion by
admitting into evidence the testimony of a sexual assault
nurse regarding statements the victim made to her; and
III. Whether the trial court abused its discretion by
admitting into evidence the testimony of the victim's
therapist regarding statements the victim made to her.
and Procedural History
The victim in this case, A.E., is the daughter of Shoda and
M.E. ("Mother"), and was born in May 2011. A.E.
lived with Mother and had regular visitation with Shoda, who
was born in February 1992. Shoda lived in the basement of his
parents' home, which was finished and had a bathroom with
a bathtub and shower. During Memorial Day weekend of 2017,
Shoda's brother was getting married, and Mother agreed to
let A.E. stay with Shoda so that A.E. could attend the
wedding and be a member of the wedding party. Mother returned
on Sunday to pick up A.E., and they went to Mother's
father's house for Memorial Day activities.
On the way home from Mother's father's house, A.E.
disclosed something to Mother, presumably the molestation,
that upset Mother. Mother stopped at a friend's house,
told her what A.E. had said, and called a child abuse hotline
operated by the Department of Child Services
("DCS"). The hotline operator asked Mother certain
questions, then asked Mother to take A.E. to the hospital.
DCS informed the police of the report, and Whitley County
Sheriff's Deputy Detective Bill Brice ("Detective
Brice") requested that the child be taken to the Bill
Lewis Center for Children (the "Center for
Children") in Fort Wayne to be examined. Mother took
A.E. to the Center for Children, where A.E. was examined by
Sexual Assault Nurse Sarah Coburn ("Nurse Coburn").
Nurse Coburn examined A.E. and asked her non-leading
questions, including "[D]o you know why you are here
today," and "[D]o you have any concerns about your
body." Tr. Vol. 3, p. 48. Nurse Coburn noted her
interaction with A.E. as follows:
"No one should touch your front." "When I was
taking a shower with daddy he put his front in my back and it
hurt." Patient points between buttocks to clarify
"back." "I just said it hurt." "Then
he said shush your mouth." Writer asked did this happen
one time or more than one time. States "More than one
time." "It's happened a bunch." "Only
in the shower." "Since it flooded in our house I
have to take showers with daddy." "He makes me
touch his front with my hands." Writer asked how does
that feel? States "It feels firm." "Stuff
comes out of his front." "It's
greenish-yellow." "At first he was doing it a bunch
and then he stopped." "Then this weekend I had to
do it again." "I told mommy."
Ex. Vol., State's Trial Ex. 3. Even though she doubted that
there would be any remaining DNA evidence, as the molestation
had taken place while showering, Nurse Coburn took samples
for a sexual assault kit per standard procedure.
On the day after Memorial Day, May 30, 2017, Detective Brice
asked Mother to take A.E. to the Center for Children again so
that A.E. could be interviewed by Detective Lorrie Frieburger
("Detective Frieburger"), who worked at the Center
for Children as a forensic interviewer. Detective Frieburger
spoke with A.E. for approximately thirty minutes using the
"Child First" protocol, which involves non-leading
questions. In the video-recorded interview, A.E. told the
detective that her father had put his "front" into
her "back" when they were in the shower and that
this hurt. Ex. Vol., State's Trial Ex. 1 at 07:21-07:26,
08:10. A.E. said that this happened "a bunch
of times," id. at 08:12-08:17, and "every
single time" she was with her father. Id. at
25:42-25:45. Using diagrams, A.E. explained to Detective
Frieburger that by "front" she meant her
father's genitals, and by "back" she meant her
anal area. Id. at 11:00-11:28. A.E. stated that this
caused her pain because Shoda "digs down there really,
really, really far." Id. at 26:50-26:53. When
A.E. complained of the pain, Shoda told her to "shush
your mouth." Id. at 17:06-17:22. A.E. stated
that she had noticed blood on the toilet paper after wiping
herself following the molestation. A.E. further disclosed
that her father made her put her mouth and hands on his
penis. A.E. also told Detective Frieburger that Shoda had
started molesting her when she was five years old and that he
warned her not to tell anyone about what he did to her. A.E.
said that she informed her mother of what had happened
because the last time it had occurred, it had been very
A.E. later underwent treatment by Nicole Trier
("Trier"), a licensed mental health therapist.
During her sessions with Trier, A.E. described, in
age-appropriate language, what appeared to be anal sex with
On July 19, 2017, the State charged Shoda with two counts of
Level 1 felony child molesting and one count of Level 4
felony child molesting. On February 16, 2018, the State filed
a notice of its intent to introduce A.E.'s recorded
statements to Detective Frieburger under the protected
persons statute, Indiana Code section 35-37-4-6. The trial
court held a protected persons hearing on June 28, 2018, at
which time the State presented the testimony of several
witnesses, including Mother, Detective Frieburger, Trier, and
A.E. The State asked no questions of A.E. at the hearing, but
Shoda's counsel did question A.E. The trial court took
the matter of the admissibility of A.E.'s recorded
statement to Detective Frieburger under advisement. On July
3, 2018, Shoda filed an objection to the State's request
to offer the video recorded statement into evidence under the
protected persons statute. Two days later, the trial court
entered an order concluding that A.E.'s statement was
A three-day jury trial began on July 17, 2018. Immediately
before the trial began, Shoda referenced a pre-trial motion
in limine that he had filed, stating:
[W]e filed both a motion and a memorandum of law. And,
obviously this Court had an extended protect[ed] person
hearing, we know that the Court has ruled on the um, the
admission of the video taped statement of A.E. by the
forensic interviewer and that's going to come in. Um, at
the appropriate time I guess, um, I don't think maybe
it's now, but before the tape is played I will want to
renew my objection and make a continuing objection of that to
preserve the record.
Tr. Vol. 2, pp. 161-62 (emphasis added). After granting
Shoda's motion in limine with regard to references to a
polygraph examination and prior criminal history, the trial
And in terms of the statements of the alleged victim in this
case, the law has provided for the jury to hear the
allegations made by the child on video. But anything said to
anybody outside of that video tape, including mother,
counselor or anyone else will not come into evidence because
it constitutes hearsay.
Id. at 163.
Despite indicating that he would object to the admission of
the video-recorded interview, Shoda referenced the recording
in his own opening statement:
We all just heard the cress [sic] of the State's case
will be the video tape. That tape will be played, there's
no dispute. You'll hear it in its entirety. The good, the
bad, the ugly. By way of summary that tape, that was made
more than a year ag[o]. Okay?
It was made around May 30, 2017. That's, that's the
day after Memorial Day, last year. It's not too long.
It's maybe a half hour or so. A.E. is six (6) years old.
She's uh, she's verbal. We'll see on tape . . . a
cute, adorable little girl. And she says, and she says these
things happened to her by her dad. To A.E. she has, she has
two (2) dads in her life. She has her biological father,
Jordin and she uh, and she also has a stepfather. So
questions are, are posed to A.E. to try and clarify it. And
she's also asked about the location, right? The location.
Where did this happen? My words, not her's you'll see
on the tape. And A.E. tells us, at first she [says], it
happens at everyone's house. And then she clarifies later
on, clarifies and points at the drawings and says, you know
it's dad Jordin's house. Um, she does then disclose a
physical sexual assault by her dad in the shower, all right.
And among [the] things she says, as you will hear on the
tape, that he put his back, or put his front on her back, put
his front on her back. And the tape does say that it happened
every single time she's there. Not sometimes, not this 18
months ago, every, every single time she's there. So when
is the last time A.E. was there, all right? With Jordin?
Let's start there. There will be no dispute that's
the, that's the weekend before Memorial Day last year. It
was that Friday through Sunday, okay? And towards the end of
this tape, the interviewer will confirm from A.E., you'll
hear, that this last time, it's the day she told her mom.
It happened that day and it hurt. All right? And we'll
find out that day, all right? The day, that's that
Sunday. That's the, that's May 28, the day before
Memorial Day. And so, in large part, that's on the tape.
That's what we're going to hear.
Id. at 175 (emphases added). When the video
recording was offered into evidence, the record does not
indicate that Shoda made any objection. See id.
Shoda did object on the record, however, when the State
offered into evidence the notes taken by Nurse Coburn during
her examination of A.E. at the Center for Children. The trial
court overruled the objection, and the notes were admitted
into evidence. Shoda similarly objected to the admission of
the statements made by A.E. during her therapy with Trier,
which the trial court also overruled.
At the conclusion of the trial, the jury found Shoda guilty
as charged. On August 27, 2018, the trial court sentenced
Shoda to concurrent terms of forty years of incarceration on
the Level 1 felony convictions and a concurrent term of
twelve years on the Level 4 felony conviction. Shoda now
All of Shoda's appellate arguments claim error in the
admission of evidence. Questions regarding the admission of
evidence are left to the sound discretion of the trial court,
and we review the court's decision only for an abuse of
that discretion. Shelby v. State, 986 N.E.2d 345,
359 (Ind.Ct.App. 2013), trans. denied. A trial court
abuses its discretion if its decision is clearly against the
logic and effect of the facts and circumstances before the
court, or if the court has misinterpreted the law.
of A.E.'s Recorded Statement
Shoda first argues that the trial court abused its discretion
by admitting into evidence Detective Freiburg's
video-recorded interview of A.E. at the Center for Children.
Shoda contends that the trial court erred in admitting this
interview under the protected persons statute because
A.E.'s non-responsiveness to his questioning at the
protected persons hearing made her effectively unavailable
for cross-examination. The State argues that Shoda failed to
preserve any error in the admission of the video because he
failed to make a contemporaneous objection when the video was
admitted into evidence.
It is axiomatic that to preserve a claim of evidentiary error
for purposes of appeal, a defendant must make a
contemporaneous objection at the time the evidence is
introduced. Laird v. State, 103 N.E.3d 1171, 1175
(Ind.Ct.App. 2018), trans. denied (citing Brown
v. State, 929 N.E.2d 204, 207 (Ind. 2010)). Here, Shoda
filed a pretrial objection to the State's request to
offer the video-recorded statement into evidence under the
protected persons statute. And immediately before trial
began, Shoda noted his intention to "renew" his
objection to the admission of the recording and his desire to
make a continuing objection in order to "preserve the
record." Tr. Vol. 2, pp. 161-62. But it is well settled
that pretrial motions do not preserve any error for appeal.
Our supreme court in Brown reiterated that "[a]
contemporaneous objection at the time the evidence is
introduced at trial is required to preserve the issue for
appeal, whether or not the appellant has filed a pretrial
motion to suppress." 929 N.E.2d at 207 (citing
Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000);
Wagner v. State, 474 N.E.2d 476, 484 (Ind. 1985)).
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. Laird, 103 N.E.3d at 1175 (citing
Brown, 929 N.E.2d at 207).
Here, there is no indication in the transcript that Shoda
made a contemporaneous objection to the admission of the
recording. Shoda even referenced the tape in his opening
statement, presuming that the tape would be admitted into
evidence. As noted above, when the State moved to admit the
recording into evidence, Shoda requested a bench conference,
but the contents of that conference do not appear to have
been recorded or transcribed. Nor did Shoda make an objection
on the record following the bench conference.
We were presented with a similar situation in Delao v.
State, 940 N.E.2d 849 (Ind.Ct.App. 2011), trans.
denied. In that case, the trial judge informed the
parties prior to trial that, due to the setup of the
courtroom, it was difficult to record bench conferences
without the jury being able to overhear. The judge therefore
instructed the parties that, if a bench conference was
required, it would probably be necessary to recess and remove
the jury from the courtroom before making any arguments.
During trial, when the State offered several audio recordings
into evidence, the defendant did not object on the record but
instead requested to approach the bench. As the trial court
had indicated would happen, the subsequent bench conference
was not recorded. Immediately thereafter, the trial court
stated for the record that the defendant had objected on
grounds of relevancy.
On appeal, Delao stated that his objection was based on
grounds that "key parts of the recordings, and the
translation of same for the jury, were of sufficiently poor
quality so as to be confusing and misleading to the
jury." Id. at 852 (citation and internal
quotation marks omitted). We declined Delao's offer to
speculate about what the specific basis of his objections had
been and held that Delao had failed to properly preserve his
claim of evidentiary error. Id. We noted that
"'the appellant carries the burden of presenting a
record for sustaining his argument.'" Id.
(quoting House v. State, 535 N.E.2d 103, 109 (Ind.
1989)). In support of our decision, we cited House,
a case in which our supreme court held that an objection made
during an unrecorded sidebar conference was not preserved and
that the defendant should have corrected any deficiency in
the record according to the appellate rule allowing for
reconstruction of allegedly missing portions of the
transcript. 535 N.E.2d at 109; see also Ind.
Appellate Rule 31 (setting forth the procedure for making a
statement of the evidence when no transcript of all or part
of the evidence is available).
Following our holding in Delao, we conclude that
Shoda has failed to preserve any claim of error because he
failed to make a contemporaneous objection nor has he
presented us with a record sufficient to demonstrate that he
did preserve his claim of error. But see Kien v.
State, 782 N.E.2d 398, 406 (Ind.Ct.App. 2003),
trans. denied (noting that the lack of a record
justifies giving the appellant the benefit of the doubt in
speculating about what may have been discussed during any
unrecorded sidebar conference) (citing Ben-Yisrayl v.
State, 753 N.E.2d 649, 661 (Ind. 2001)).
Even if we were to consider Shoda's claim on the merits,
he would not prevail. Indiana Code section 35-37-4-6, known
as the "protected person statute," provides a list
of certain conditions under which evidence that would
otherwise be inadmissible will be allowed in cases involving
certain crimes against "protected persons."
J.A. v. State, 904 N.E.2d 250, 255 (Ind.Ct.App.
2009), trans. denied. Among the crimes to which the
protected person statute applies are sex crimes under Indiana
Code chapter 35-42-4, which includes child
molesting. Id. at 255 n.4. A "protected
person" is defined to include "a child who is less
than fourteen (14) years of age." I.C. §
Subsection (d) of the protected person statute provides that
A statement or videotape that:
(1)is made by a person who at the time of trial is a
(2)concerns an act that is a material element of [a listed
group of offenses that includes child molesting] that was