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Shoda v. State

Court of Appeals of Indiana

September 9, 2019

Jordin C. Shoda, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal 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, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

          MATHIAS, JUDGE.

         [¶1] 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.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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").

         [¶5] 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.[1] 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.

         [¶6] 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.[2] 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 painful.

         [¶7] 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 her father.

         [¶8] 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 admissible.

         [¶9] 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 court stated:

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.

         [¶10] 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.[3] See id. at 183-84.

         [¶11] 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.

         [¶12] 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 appeals.

         Standard of Review

         [¶13] 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. Id.

         Admission of A.E.'s Recorded Statement

         [¶14] 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.

         [¶15] 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).

         [¶16] 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.

         [¶17] 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.

         [¶18] 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).

         [¶19] 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)).

         [¶20] 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.[4] 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. § 35-37-4-6(c)(1).

         [¶21] 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 protected person;
(2)concerns an act that is a material element of [a listed group of offenses that includes child molesting] that was allegedly ...

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