MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                    FILED
Memorandum Decision shall not be regarded as                   May 16 2017, 9:59 am
precedent or cited before any court except for the
                                                                    CLERK
purpose of establishing the defense of res judicata,            Indiana Supreme Court
                                                                   Court of Appeals
collateral estoppel, or the law of the case.                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John C. Bohdan                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Elias N. Berrum,                                        May 16, 2017

Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        02A03-1607-CR-1673
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck, Jr.,
                                                        Judge
Appellee-Plaintiff.
                                                        Trial Court Cause No. 02D05-1510-
                                                        FA-14




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017       Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Elias Berrum (Berrum), appeals his conviction for child

      molesting, a Class A felony; child molesting, a Class C felony; and child

      molesting, a Level 4 felony.


[2]   We affirm.


                                                    ISSUE
[3]   Berrum presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion by admitting into evidence a videotaped interview of

      a child-witness under the recorded recollection exception to the hearsay rule.


              FACTS AND PROCEDURAL HISTORY
[4]   V.R. was born on October 30, 2001. In 2003, V.R.’s mother (Mother) began

      dating Berrum. 1 In the following year, the two resided in a townhouse in Fort

      Wayne, Indiana. In 2007, Mother and Berrum got married; however, in

      August of 2008, the two separated. At the time, Mother worked overnight at

      McDonald’s and on occasion, she would request Berrum to babysit V.R. and




      1
        The record shows that Mother had another daughter, A.M.R. in 2002; A.M.R. and V.R. share a biological
      father. Mother and Berrum together have two children; daughter J.B. born in 2004, and son E.B., born in
      2013.

      Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017           Page 2 of 9
      V.R.’s other sisters, A.M.R. and J.B. On August 11, 2008, six-year-old V.R.

      and her sisters stayed overnight at Berrum’s apartment. The following day,

      V.R. reported to Mother that Berrum had touched her inappropriately. That

      same day, Mother went to the Fort Wayne Police Department and spoke with

      Officer Bobby Lemon (Officer Lemon). Mother reported that V.R. had alleged

      that Berrum had touched V.R.’s “cooter” with his hand. (Tr. p. 171). Mother

      also added that Berrum touched V.R.’s “butt with his cooter.” (Tr. p. 171).

      Mother indicated that V.R. was dressed during the events and no penetration

      occurred. On August 22, 2008, with the assistance of Justin Goree (Goree), a

      Department of Child Services (DCS) employee, Mother agreed to a safety plan

      thereby restricting Berrum’s unsupervised contact with V.R. On August 27,

      2008, Daniel Goewert (Goewert), a child forensic interviewer of the Child

      Advocacy Center in Fort Wayne, conducted a forensic video interview of V.R.

      Goree watched the interview behind a glass screen. During the interview, V.R.

      repeatedly stated that Berrum touched her “cooter with his hand” and that he

      put his “cooter on her butt.” (State’s Exh. 1). Using anatomical drawings, V.R.

      identified the female and male genitalia as “cooter.” (State’s Exh. 1, Tr. p.

      189). In October 2008, DCS and law enforcement closed their investigations

      with respect to V.R.’s sexual molestation claims.


[5]   In July of 2011, Mother reconciled with Berrum. Shortly thereafter, Mother

      and her daughters A.M.R., J.B., and now-nine-year-old V.R., moved in with

      Berrum into a three-bedroom house on South Anthony in Fort Wayne. While

      living at the house on South Anthony, Berrum “masturbated [V.R.’s] vagina”


      Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017   Page 3 of 9
      with his hands, over her underwear. (Tr. p. 50). Berrum also masturbated

      himself while touching V.R.’s vagina. Also, on more than one occasion,

      Berrum fondled V.R.’s bare vagina with his hand. Berrum asked V.R. several

      times to touch his bare penis with her hand. On several occasions, Berrum

      asked V.R. to put her mouth on his penis and “like suck it.” (Tr. p. 54).

      Sometime in 2014, Berrum, V.R., and A.M.R. were watching a Netflix movie

      in the living room. Berrum and V.R. shared a couch and A.M.R. sat on

      another couch. While the movie was playing, Berrum “masturbated [V.R.’s]

      vagina underneath the blankets.” (Tr. p. 55). On Christmas day of 2014,

      V.R.’s extended family was having a party at V.R.’s aunt house. At some

      point, V.R. was sent back to her house on South Anthony with Berrum to

      change her pants. After changing her pants, V.R. indicated that she met

      Berrum downstairs and “he kinda just like presses his penis against my butt.”

      (Tr. p. 61). V.R. told Berrum that she did not “want to do this.” and then

      walked to the car. (Tr. p. 61). On the drive back to V.R.’s aunt’s house,

      Berrum talked to V.R. about how much he loved her as a daughter and that he

      had made a lot of sacrifices for her and the family.


[6]   Sometime in 2015, V.R. and Mother were arguing, and V.R. mentioned that

      Berrum had touched her inappropriately. Mother expressed worry and

      indicated that she would talk to Berrum since “it’s not a good thing” and it

      “shouldn’t be happening.” (Tr. p. 69). In April of 2015, V.R.’s family went

      shopping. When they got back home, V.R. went upstairs; however, she came

      back downstairs when she heard Berrum threaten to beat one of her sisters.


      Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017   Page 4 of 9
      V.R. scolded Berrum, and the two began arguing. Moments later, Mother

      joined in the argument. In the process, referencing the sexual abuse, V.R.

      yelled to Mother “he’s doing this to me and you don’t even care because you

      are not doing anything about it.” (Tr. p. 71). Feeling frustrated with the

      argument, V.R. went to the restroom and attempted to commit suicide by

      cutting herself. When V.R. exited the restroom, she was bleeding and she went

      upstairs to talk to her sister. Upon seeing the cuts, V.R.’s sister called Mother

      for assistance. On that same day, Mother took V.R. to the hospital. At the

      hospital, the nurse who attended to V.R.’s cuts questioned V.R. regarding any

      history of abuse. V.R. confessed that Berrum had been molesting her. For a

      week, V.R. stayed at the hospital, and when she was discharged, she moved in

      with her biological father.


[7]   On October 12, 2015, the State filed an Information, charging Berrum with

      Count I, child molesting, a Class A felony; Count II, child molesting, a Level I

      felony; Count III, child molesting, a Class C felony; and Count IV, child

      molesting, a Level 4 felony. Shortly before Berrum’s jury trial, the State

      amended the charging information by changing the dates of the offenses. A

      bifurcated jury trial was held on May10-11, 2016. During trial, Berrum moved,

      and the State agreed, for the dismissal of Count II, thereby leaving Counts I,

      III, and IV. The trial court subsequently dismissed Count II. At trial, V.R. was

      questioned about her first sexual abuse claim against Berrum in 2008 where she

      had alleged that Berrum had touched her inappropriately. V.R. indicated that

      she could not recall the details of the allegations she had made in 2008 despite


      Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017   Page 5 of 9
      watching the forensic video interview a few times prior to trial. Over Berrum’s

      objection, the trial court allowed the State to publish the videotaped forensic

      interview to the jury under the recorded recollection exception to the hearsay

      rule. At the close of the evidence, the jury found Berrum guilty on all three

      Counts of child molesting. On June 10, 2016, the trial court conducted

      Berrum’s sentencing hearing. At the end of the hearing, the trial court

      sentenced Berrum to an executed sentence of fifty years on the Class A felony.

      With respect to his Class C felony, the trial court sentenced Berrum to a

      consecutive term of four years. Lastly, Berrum was sentenced to a concurrent

      executed term of six years on the Level 4 felony.


[8]   Berrum now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                        I. Admission of the Evidence

[9]   A trial court has broad discretion in ruling on the admissibility of evidence, and,

      on review, we will disturb its ruling only on a showing of abuse of discretion.

      Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When

      reviewing a decision under an abuse of discretion standard, we will affirm if

      there is any evidence supporting the decision. Id. A claim of error in the

      admission or exclusion of evidence will not prevail on appeal unless a

      substantial right of the party is affected. Ind. Evidence Rule 103(a). In

      determining whether error in the introduction of evidence affected a defendant’s




      Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017   Page 6 of 9
       substantial rights, we assess the probable impact of the evidence on the jury.

       Sparkman, 722 N.E.2d at 1262.


                                           II. Recorded Recollection


[10]   Berrum now argues that he was erroneously convicted of child molesting, a

       Class C felony. Specifically, Berrum argues the trial court’s admission of V.R.’s

       videotaped interview was reversible error because it did not satisfy the recorded

       recollection exception to the hearsay rule. Hearsay is an out-of-court statement

       offered in court to prove the truth of the matter asserted. Ind. Evidence Rule

       801(c). Hearsay evidence is generally inadmissible pursuant to Indiana

       Evidence Rule 802. However, our evidence rules provide the following

       exception for admission of hearsay as a recorded recollection:

               A memorandum or record concerning a matter about which a witness
               once had knowledge but now has insufficient recollection to enable the
               witness to testify fully and accurately, shown to have been made or
               adopted by the witness when the matter was fresh in the witness's
               memory and to reflect that knowledge correctly. If admitted, the
               memorandum or record may be read into evidence but may not itself
               be received as an exhibit unless offered by an adverse party.


       Evid. R. 803(5). This exception allows admission of a recorded statement if:

               (a) the memorandum or record relates to a matter about which a
               witness once had knowledge, (b) the witness has insufficient
               recollection at trial to enable the witness to testify fully and accurately,
               (c) the witness is shown to have made or adopted the memorandum or
               record, (d) the memorandum or record was adopted when the matter
               was fresh in the witness’s memory, and (e) the memorandum or record
               is shown to reflect the witness’s knowledge correctly.


       Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017     Page 7 of 9
       Impson v. State, 721 N.E.2d 1275, 1282–83 (Ind. Ct. App. 2000)). “[B]efore a

       statement can be admitted under the recorded recollection hearsay exception,

       certain foundational requirements must be met, including some

       acknowledgment that the statement was accurate when it was made.” Ballard v.

       State, 877 N.E.2d 860, 862 (Ind. Ct. App. 2007). (quotation marks omitted). A

       trial court should not admit a witness’s statement into evidence when the

       witness cannot vouch for the accuracy of the statement or remember having

       made the statement. Ballard, 877 N.E.2d at 862.


[11]   On appeal, Berrum claims that video interview did not reflect V.R.’s knowledge

       correctly, i.e., V.R. could not recall the specific acts of molestations. As such,

       Berrum contends that V.R.’s videotaped interview should not have been

       admitted under Evidence Rule 805(3). In the instant case, the State sought to

       admit a video recording interview conducted between V.R. and Goewert, a

       child forensic interviewer of the Child Advocacy Center in Fort Wayne. The

       interview which occurred on August 27, 2008, was conducted a couple of

       weeks after V.R. had first disclosed that Berrum had touched her vagina with

       his hand. Before the trial court allowed the recording to be published to the

       jury, it was shown, through questioning of V.R., that the recording related to

       the abuse by Berrum, that the recorded interview was made when the matter

       was fresh in V.R.’s memory, and that V.R. was telling the truth when she spoke

       with Goewert. It was also shown that V.R. was about six years old when she

       was first interviewed, it had been it had been six years since the abuse took




       Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017   Page 8 of 9
       place, and V.R. did not fully and accurately remember her sexual abuse claims

       against Berrum.


[12]   Here, we conclude the videotaped interview was properly admitted under the

       recorded recollection exception to the hearsay rule. V.R. clearly could not

       recall the specific details of Berrum molesting her. However, during the

       interview and at trial, V.R. noted the narration of the events of 2008 were

       truthful. Here, we conclude that the videotaped interview pertained to a matter

       V.R. once knew about but could not remember well enough to accurately and

       fully recall at trial. See Horton v. State, 936 N.E.2d 1277, 1283 (Ind. Ct. App.

       2010) (finding the admission of a videotaped interview under the recorded

       recollection exception to the hearsay rule was proper in light of the fact the

       child victim could not recall “some specific details” during live testimony, the

       victim’s statements at trial were consistent with the statements made during the

       interview, and the victim timely adopted the statements made during the

       interview as accurate), summarily aff’d on this ground, 949 N.E.2d 346 (Ind.

       2011).


                                            CONCLUSION
[13]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in admitting V.R.’s videotaped interview.


[14]   Affirmed.


[15]   Crone, J. and Altice, J. concur


       Court of Appeals of Indiana | Memorandum Opinion 02A03-1607-CR-1673 | May 16, 2017   Page 9 of 9
