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Friend v. State

Court of Appeals of Indiana

October 8, 2019

Marty Friend, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-1509-FA-20

          Attorney for Appellant Stacy R. Uliana Bargersville, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

          Baker, Judge.

         [¶1] Marty Friend appeals his conviction for Level 1 Felony Child Molestation, [1] arguing that the trial court erred by denying his motions for preliminary discovery of privileged records and by refusing to admit certain evidence. Finding no error, we affirm.


         [¶2] In 2010, Friend and his wife, Kathy Friend (Kathy), adopted seven-year-old A.F. from a Russian orphanage and brought her to Indiana. A.F. had trouble adjusting to life in the United States. She did not follow rules, did not respect her teachers' authority, and was terrified to sleep in a room by herself. A.F. would often sleep on the floor of her parents' bedroom and felt confused and alone because of the language barrier. A.F. would aggressively wrestle with her classmates "because of the way that she was used to playing with other kids" in Russia. Tr. Vol. IV p. 129. A.F. was repeatedly cited for bullying and frequently got into trouble. A.F. would often laugh at inappropriate times in class and was unable to communicate her true feelings due to her poor English skills. A.F. and Friend had difficultly bonding during this period and for most of her childhood.

         [¶3] After Friend and Kathy divorced in the summer of 2012, Kathy, who had physical custody of A.F., moved with the child to Bloomington. A.F. stayed with Friend in Kokomo every other weekend. During those visits, Friend and A.F. constantly fought and called each other names. A.F. complained about the time she had with Friend, and Kathy noticed that A.F. would return from these weekend visits "unkempt, hadn't showered[] . . . like an animal." Id. at 184. Also, A.F. continued to have academic and social problems at school.

         [¶4] In 2014, Kathy became so worried about A.F.'s condition that she arranged for A.F. to see a private social worker, Kate Creason. As part of her overall evaluation, A.F. was assessed for Reactive Attachment Disorder (RAD), which is a psychological condition that results from a lack of an intimate bond between parent and child during infancy. RAD is often diagnosed in adopted children due to their sometimes unstable upbringing; it is characterized by meanness, physical aggression, lying, cruelty to animals, and an apparent lack of empathy. Creason did not diagnose A.F. with RAD, and neither Friend nor Kathy received records or other documents from those sessions.

         [¶5] In February 2015, when A.F. was in sixth grade, Kathy received a phone call from the school therapist telling her that A.F. was cutting her wrist with a dull knife. Kathy talked with A.F. and asked her what had been going on. Unable to put her thoughts into words, A.F. wrote down the following passage in a notebook:

Dad touches me inappropriate places down their and up their and last Friday he made me suck it like he put his thing in my thing ☹

         Appellant's App. Vol. II p. 37; State's Ex. 5(A) (capitalization, punctuation, and spelling in original). Kathy promised A.F. that she would stop it.

         [¶6] A.F. testified that Friend had started molesting her during weekend visits just after he and Kathy split up and divorced in 2011-12. Friend would give A.F. a back massage and then start to move his hands "[a]ll over [A.F.'s] body." Tr. Vol. V p. 149. Friend's hands would then move to and grope A.F.'s breasts and vagina. Friend would squeeze A.F.'s breasts and insert his fingers into her vagina. A.F. stated that "[i]t didn't feel bad, but it was confusing." Id. at 153. Friend would then direct A.F. to put her hands on his penis and move them up and down until "[w]hite stuff," id. at 161, came out of his body. Friend also directed A.F. to put her mouth on his penis until the same thing happened. All the while, Friend twice ordered A.F. "not to tell [Kathy]." Id. at 171.

         [¶7] On September 2, 2015, the State charged Friend with one count of Class A felony child molestation and one count of Level 1 felony child molestation. On March 7, 2016, Friend filed a verified motion seeking all medical records from A.F.'s one-on-one sessions with Creason. Friend argued that Creason's reports might contain information that A.F. had been diagnosed with RAD, and consequently, that she could have been lying about the molestation allegations. Following a August 5, 2016, evidentiary hearing on the motion, the trial court denied Friend's request, finding that Friend "has simply not made a substantiated claim that the records he seeks do in fact contain material or exculpatory information." Appellant's App. Vol. II p. 123. Friend filed two motions to reconsider, including one request that the trial court conduct an in camera review of the materials and one request to seal the records, which the trial court denied on December 21, 2016, and August 30, 2017, respectively.

         [¶8] On October 4, 2017, Friend filed a notice of intent to use evidence in the form of 137 emails and text messages along with testimony from expert witness Dr. Gerald Wingard. In response, the State filed a motion in limine seeking to exclude that evidence. Friend requested a pretrial admissibility ruling on this motion. Following a hearing, the trial court issued an order on May 9, 2018, granting the State's motion and excluding the evidence from trial. The trial court denied Friend's motions to reconsider on July 31, 2018.

         [¶9] Following Friend's August 20-23, 2018, jury trial, Friend was found guilty of Level 1 felony child molestation but not guilty of Class A felony child molestation. Thereafter, on September 20, 2018, the trial court sentenced Friend to forty years imprisonment in the Department of Correction, with ten years suspended to probation. Friend now appeals.

         Discussion and Decision

         I. Preliminary Discovery

         [¶10] First, Friend argues that the trial court erroneously denied his requests for preliminary discovery of A.F.'s privileged records. First, he argues that some of the information in those records might have been material to his defense. Next, he argues that his federal constitutional rights entitle him to the records so that he may construct a complete defense.

         [¶11] We will reverse discovery matter rulings "only where the trial court has reached an erroneous conclusion which is clearly against the logic and effect of the facts [and circumstances] of the case." Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 15 (Ind.Ct.App. 1996). "Due to the fact-sensitive nature of discovery matters, the ruling of the trial court is cloaked in a strong presumption of correctness on appeal." Id. "We may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though this was not the reason enunciated by the trial court." Williams v. State, 819 N.E.2d 381, 384-85 (Ind.Ct.App. 2004).

         Materiality and Privilege

         [¶12] Friend sought A.F.'s records from her one-on-one sessions with Creason, the social worker, arguing that the results of the RAD evaluation were essential to Friend's defense that A.F. was fabricating the molestation allegations. Lying, a lack of empathy, and aggressive behavior are well-known symptoms of RAD, so Friend contends that proof that A.F. was diagnosed with the disorder was material to his claim that A.F. had been lying.

         [¶13] In Jorgensen v. State, our Supreme Court held that:

[w]ith respect to nonprivileged information, there are two principal questions which a trial court must consider in ruling on questions relating to discovery in a criminal trial: (1) is there a sufficient designation of the items sought to be discovered; and (2) are the items sought material to the defense? If the answers to both questions are affirmative, the trial court must grant the discovery motion unless the State makes a showing of paramount interest in nondisclosure.

574 N.E.2d 915, 917 (Ind. 1991) (emphasis added). So, we must first decide whether information is privileged before we conduct a Jorgensen inquiry. If it is privileged, the Jorgensen inquiry does not apply. If it is not privileged, the Jorgensen inquiry does apply and we must conduct that inquiry. "Put differently, [if] there is no chance that the information sought . . . is anything other than privileged[] . . . that ends the inquiry." In re Crisis Connection, Inc., 949 N.E.2d 789, 795 (Ind. 2011).

         [¶14] In Indiana, "privileges are statutory in nature and . . . it is within the power of the legislature to create them." State v. Pelley, 828 N.E.2d 915, 918 (Ind. 2005). Indiana Code section 25-23.6-6-1 states that "[m]atters communicated to a counselor in the counselor's official capacity by a client are privileged information and may not be disclosed by the counselor to any person," except under specific circumstances enumerated in the ...

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