                                                                        FILED
                                                                   Aug 09 2017, 6:02 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        William W. Gooden
Attorney General of Indiana                                Mt. Vernon, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          August 9, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           65A05-1611-CR-2624
        v.                                                 Appeal from the Posey Circuit
                                                           Court
Delbert McKinney,                                          The Honorable James M.
Appellee-Defendant.                                        Redwine, Judge
                                                           Trial Court Cause No.
                                                           65C01-1602-F1-72



Riley, Judge.




Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017                   Page 1 of 18
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, State of Indiana (State), appeals the trial court’s denial of its

      motion to exclude Appellee-Defendant, Delbert McKinney (McKinney), during

      the victim’s deposition; and its motion to have the victim testify via closed

      circuit television at McKinney’s trial.


[2]   We reverse and remand.


                                                    ISSUES
[3]   The State presents two issues on interlocutory appeal, which we restate as

      follows:


      (1) Whether the trial court abused its discretion in denying the State’s motion to

      exclude McKinney’s presence during the victim’s deposition; and


      (2) Whether the trial court abused its discretion in denying the State’s motion to

      have the victim testify via closed circuit television during McKinney’s trial.


                       FACTS AND PROCEDURAL HISTORY
[4]   On February 8, 2016, the State filed an Information, charging McKinney with

      child molesting, a Class A felony, Ind. Code § 35-42-4-3 (a)(1); child molesting,

      a Class C felony, I.C. § 35-42-4-3(b); child molesting, a Level 1 felony, I.C. §

      35-42-4-3(a); and child molesting, a Level 4 felony, I.C. § 35-42-4-3(b). The

      alleged victim in McKinney’s child molesting offenses was K.N., born in

      February of 2008.



      Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 2 of 18
[5]   On September 6, 2016, the State filed two motions: a motion to exclude

      McKinney’s presence during K.N.’s deposition; and a motion to have K.N.

      testify via closed circuit television during McKinney’s jury trial. On September

      19, 2016, the trial court conducted a hearing on the State’s motions, during

      which the trial court heard testimony from Dr. Shannon Jones (Dr. Jones), a

      psychologist, and Kayce Clevenger (Clevenger), a psychiatric social worker.


[6]   Dr. Jones, who was also K.N.’s treating physician, testified that in May 2016,

      eight-year-old K.N. became a resident of Evansville Psychiatric Children’s

      Center, a State-operated facility that serves children from ages five to thirteen

      “having significant mental health issues.” (Transcript Vol. II, p. 7). Dr. Jones

      testified that during the course of K.N.’s treatment, she diagnosed K.N. with

      “post[-]traumatic stress disorder, oppositional defiant disorder, and attention

      deficit hyperactivity disorder.” (Tr. Vol. II, p. 8). Dr. Jones indicated that

      K.N.’s post-traumatic stress disorder (PTSD) diagnosis may have resulted from

      the various traumatic events that K.N. had endured in her lifetime.

      Specifically, Dr. Jones stated that K.N. had been “neglected, physically abused,

      sexually abused, and exposed to violence from adults.” (Tr. Vol. II, p. 9). Dr.

      Jones added that K.N. was developmentally delayed, and noted that K.N.’s

      emotional maturity was that of a “toddler or preschooler.” (Tr. Vol. II, p. 11).


[7]   At issue at the hearing was whether K.N. would suffer serious emotional harm

      if required to testify in McKinney’s presence, and whether she would be able to

      effectively narrate the alleged abuse. Dr. Jones testified that having to testify in

      front of McKinney would present a substantial likelihood of emotional harm to

      Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 3 of 18
      K.N. Dr. Jones indicated that there is a “decreased likelihood” of K.N. being

      able to communicate to the jury in the presence of McKinney. (Tr. Vol. II, p.

      10). Dr. Jones added, “[I]f [K.N.] is in front of a bunch of people . . . she will

      be overwhelmed by anxiety.” (Tr. Vol. II, p. 10). Dr. Jones explained that

      during stressful events, K.N. “tends to retreat, hide, get silent. If she is pushed

      further, she gets disagreeable. She starts to act out or act in a negative way, and

      she can eventually become aggressive.” (Tr. Vol. II, p. 10). Dr. Jones specified

      that it would be less stressful for K.N. to testify via “closed circuit TV than it

      would be in open court.” (Tr. Vol. II, p. 12). On cross-examination, Dr. Jones

      was asked to compare the two venues, the courtroom and closed circuit

      television, and give an analysis, on a scale of one to ten, with ten being the most

      stressful and one being the least stressful venue for K.N. Dr. Jones stated that it

      would be difficult to give an analysis on a scale of one to ten; rather she

      explained that “it would be a lot easier to accurately describe the relative levels

      of stress. The least stressful is not talking about it at all. The most stressful is

      talking about it in open court.” (Tr. Vol. II, p. 24). Dr. Jones indicated that

      seeing McKinney in person would be “more traumatic” for K.N. than seeing

      him on a television screen. (Tr. Vol. II, p. 33).


[8]   Clevenger, a psychiatric social worker and K.N.’s counselor at Evansville

      Psychiatric Children’s Center, testified that since May 2016, she had been

      seeing K.N. for individual therapy at least once a week. When asked whether it

      would be less stressful for K.N. to see McKinney on a television screen,

      Clevenger stated that “[I]t may be a little bit less stressful, but it will still be very


      Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017      Page 4 of 18
      stressful for [K.N.]” (Tr. Vol. II, p. 36). Clevenger similarly stated that K.N.

      did not react very well to stressful situations and indicated that K.N. becomes

      very aggressive. Clevenger added that if K.N. was confronted with the stress of

      facing a courtroom full of jurors, she “would likely react very negatively. She

      would [] probably yell, scream, try to get out of here as much as possible. She

      would probably be aggressive to whomever is closest to her by hitting, kicking .

      . .” (Tr. Vol. II, p. 36). Clevenger indicated that although K.N. would be

      stressed testifying in both venues, either the courtroom or by closed circuit

      television, she indicated that the stress on K.N. would be “significantly less” by

      closed circuit. (Tr. Vol. II, p. 41). Additionally, Clevenger testified that if K.N.

      testified in open court, it may cause lasting emotional harm on her. Clevenger

      emphasized that regardless of the venue, it would be “very traumatic for [K.N.]

      to see [McKinney],” and more particularly, “it will be extremely traumatic for

      [K.N.] to be in the same room” as McKinney. (Tr. Vol. II, p. 41).


[9]   At the close of the evidence, the trial court denied the State’s motion to exclude

      McKinney from K.N.’s deposition. In allowing McKinney’s attendance at

      K.N.’s deposition, the trial court imposed safeguarding measures. Specifically,

      the trial court directed McKinney to sit ten feet away from K.N. at the

      deposition table; and that an officer, of the State’s choosing, should be present

      during the taking of the deposition to ensure that there are no “untoward

      actions or statements” by McKinney. (Tr. Vol. II, p. 56). Finally, the trial

      court stated that “should there be any effort by [] McKinney to interfere with,

      intimidate, stare down, comment, do anything except be present and observe


      Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 5 of 18
       and listen, then the deposition will be terminated immediately.” (Tr. Vol. II, p.

       56).


[10]   Also, the trial court denied the State’s motion to have K.N. testify via closed

       circuit. In denying the State’s motion, the trial court stated:

               As to the closed circuit, I think the testimony is this little girl is
               going to be stressed out no matter what we do, and we all feel
               bad about that. But from the testimony of the experts, there is
               very little difference in stress to her whether [] McKinney is
               present in the [c]ourtroom or she sees him on TV, and she has
               got to see him on TV. The statute requires that. So, since there
               is very little difference, I am trying to weigh his right to a fair trial
               vis-a-vis any harm to [K.N.]. I don’t think we are saving the child
               at all based upon the testimony of the experts. So I am going to
               deny the request for closed circuit testimony, and I have set up
               ground rules for the deposition.


       (Tr. Vol. II, p. 57).


[11]   On October 18, 2016, the State requested the trial court to certify its Order for

       interlocutory appeal, which was granted on November 3, 2016. On December

       30, 2016, this court accepted jurisdiction over the interlocutory appeal.

       Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                           I. Attendance at Deposition

[12]   The State first claims that the trial court abused its discretion in denying its

       motion to exclude McKinney from K.N.’s deposition. The Sixth Amendment

       to the United States Constitution, made applicable to the States via the

       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017      Page 6 of 18
       Fourteenth Amendment, provides: “In all criminal prosecutions, the accused

       shall enjoy the right . . . to be confronted with the witnesses against him.” “A

       witness’s testimony against a defendant is thus inadmissible unless the witness

       appears at trial or, if the witness is unavailable, the defendant had a prior

       opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 124

       S.Ct. 1354 (2004), cert. denied. Similarly, Article 1, Section 13 of the Indiana

       Constitution provides, in part, that: “In all criminal prosecutions, the accused

       shall have the right to . . . meet the witnesses face to face . . . .” Our supreme

       court has held that “Indiana’s confrontation right contains both the right to

       cross-examination and the right to meet the witnesses face to face.” Brady v.

       State, 575 N.E.2d 981, 987 (Ind. 1991). “Criminal defendants generally have no

       constitutional right to attend depositions.” State v. Owings, 622 N.E.2d 948, 951

       (Ind. 1993). However, depositions taken in the absence of defendants may not

       be admissible if the deponent is later unavailable for trial. Miller v. State, 517

       N.E.2d 64, 71-73 (Ind. 1987).


[13]   A trial court has broad discretion with regard to rulings on discovery matters

       based upon its duties to promote discovery of the truth and to guide and control

       the proceedings. Miller v. State, 825 N.E.2d 884, 888 (Ind. Ct. App. 2005), trans.

       denied. “Therefore, such rulings will be overturned only for an abuse of

       discretion. An abuse of discretion occurs when the trial court’s decision is

       against the logic and effect of the facts and circumstances before the court.” Id.

       (citation omitted). We may affirm the trial court’s ruling if it is sustainable on




       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 7 of 18
       any legal basis in the record, even though this was not the reason enunciated by

       the trial court. See Benham v. State, 637 N.E.2d 133 (Ind. 1994).


[14]   On appeal, the State argues that McKinney’s confrontation rights would not be

       violated if the deposition is conducted in his absence. In support of its position,

       the State relies on Jones v. State, 445 N.E.2d 98, 99 (Ind. 1983), and Bowen v.

       State, 334 N.E.2d 691 (Ind. 1975). In Jones, a child molesting case, the supreme

       court held that the deposition of a small child could be conducted without the

       defendant being present. Jones, 445 N.E.2d at 100. In Bowen, the defendant

       sought to depose the State’s witnesses before his trial for kidnapping and

       sodomizing two children, ages seven and ten. Bowen, 334 N.E.2d at 691. The

       supreme court held that the refusal to permit the defendant to be present at the

       taking of a deposition did not deny him his right of confrontation guaranteed by

       the Indiana Constitution. Id. The supreme court additionally stated that the

       right of face-to-face confrontation is applicable to those criminal proceedings in

       which the accused may be condemned to suffer grievous loss of either his liberty

       or his property. Id. at 695. The taking of a deposition to discover information

       cannot directly have such consequences upon an accused, although a trial or a

       parole revocation proceeding may. Id. In addition to the case law, the State

       also directs us to Article 1 section 13(b) of the Indiana Constitution, which

       establishes, in part, that: “[V]ictims of crimes, as defined by law shall have the

       right to be treated with fairness, dignity, and respect throughout the criminal

       justice process, . . . to the extent that exercising these rights do not infringe

       upon the constitutional rights of the accused.”

       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017    Page 8 of 18
[15]   At the close of the State’s arguments on its motion to exclude McKinney at

       K.N.’s deposition, the following exchange took place

               [TRIAL COURT]: Where is the deposition going to be taken?


               [STATE]: If it is without [McKinney], it would be at my office.


               [TRIAL COURT]: Well, let’s say it is with McKinney at your
               office, can we set up some ground rules so that [] McKinney is
               separated by substantial space. And I am assuming that you will
               have an officer with you who can report if [] McKinney is in
               anyway trying to intimidate the witness or make any motions or
               anything.


               [STATE]: I can, Your Honor, but again, [Dr. Jones and
               Clevenger] have testified that just the physical presence of
               [McKinney] is going to cause emotional harm. And [Jones v.
               State, 445 N.E.2d 98, 99 (Ind. 1983),] specifically addresses this,
               we can take the deposition without [McKinney].


               [TRIAL COURT]: But if the [c]ourt is not going to do closed
               circuit, frankly isn’t the State better off if we have the deposition
               where the little girl sees [] McKinney at least, you know, as
               opposed to going into this great big courtroom with all of these
               people and then she sees []McKinney? Isn’t the State better off
               with that incremental approach?


               [STATE]: My position is no, Your Honor. We would like to
               take the deposition without [McKinney].


               ****




       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017       Page 9 of 18
        [TRIAL COURT]: Well, when it comes to face-to-face
        confrontation, I do think he has to be in the physical presence of
        the child, but I don’t know why we can’t set up some safeguards
        for the child. I am not saying [] McKinney would do anything. I
        don’t mean that at all. But I think we can set up safeguards as we
        would for anybody in a child situation . . . . what is the length of
        your table where the deposition would be taken? Ten feet?


        [STATE]: Ten feet, yeah.


        ****


        [TRIAL COURT]: . . . All right. I am going to allow McKinney
        to be present at the deposition at the opposite end of the table at
        the Prosecuting Attorney’s Office with the understanding that the
        Prosecuting Attorney may have an officer of his choosing, by
        agreement of []McKinney and his counsel, sitting next to []
        McKinney approximately ten feet away from the child in the
        same room as long as [] McKinney does or says nothing of any
        nature that would be further stressful or intimidating to the child.
        Should any such activity take place, the Court orders that the
        deposition will cease immediately.


(Tr. Vol. II, pp. 54-56). The State now argues that the “trial court’s proposed

compromise—requiring McKinney to sit at the opposite end of the table and

having a court officer nearby to prevent McKinney from engaging in []acts of

intimidation—is well meaning but entirely inadequate.” (State’s Br. p. 15).

The State continues that it “will not be less traumatic for K.N. to encounter

[McKinney] simply because she is told by adults that [McKinney] will stay at

the other end of the conference table.” (State’s Br. p. 15). Although McKinney

concedes that he has no right to be present during the deposition, he, however,

Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 10 of 18
       claims that “there is nothing in the law that prohibits the trial court from

       permitting [his] presence” at the deposition. (Appellees’ Br. p. 10).


[16]   In the instant case, Dr. Jones and Clevenger testified that K.N. would suffer

       emotional harm if she testified in the presence of McKinney. Dr. Jones, K.N.’s

       psychiatrist, strongly “recommended” against any encounter between K.N. and

       McKinney, and Clevenger additionally testified that it would be “very stressful”

       and “extremely traumatic” for K.N. to be in the same room with McKinney.

       (Tr. Vol. II, pp. 28, 36, 41). In addition, we find the procedural safeguards of

       having McKinney sit at the deposition table, ten feet apart from K.N. requires a

       level of rationalization about fears that is unrealistic for any eight-year old

       child, let alone one who is “especially weak psychologically” and whose

       delayed “emotional maturity approaches that of a toddler or preschooler.” (Tr.

       Vol. II, pp. 22, 31). We agree with the State that it will not be any less

       traumatic for K.N. to encounter McKinney simply because she is told

       McKinney will stay at the other end of the conference table.


[17]   Directing K.N. to be in the same room with her alleged molester, McKinney, at

       the pre-trial stage, despite the unequivocal expert evidence that K.N. could

       potentially experience emotional harm if she testified in the presence of

       McKinney, was undeniably harmful to K.N—an eight-year-old, who is

       diagnosed with PTSD and has a deferred development. See IND. CONST. art. 1

       § 13(b) (stating that “victims of crimes, as defined by law shall have the right to be

       treated with fairness, dignity, and respect throughout the criminal justice process, . . . to

       the extent that exercising these rights do not infringe upon the constitutional

       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017          Page 11 of 18
       rights of the accused.”) (emphasis added). The trial court’s denial of the State’s

       motion to exclude McKinney from K.N.’s deposition is against the logic and

       effect of the facts and circumstances before the court. Thus, we hold that the

       trial court abused its discretion.


                                           II. Closed Circuit Television

[18]   The State also argues that the trial court abused its discretion in denying its

       motion to have K.N. testify at trial via two-way closed circuit television. A

       child who is less than fourteen years of age and is a victim of a sex crime is a

       protected person. See I.C. §35-37-4-6 (b)(2), (c)(1). The Protected Person

       Statute states in relevant part:

               (c) On the motion of the prosecuting attorney, the court may
               order that the testimony of a protected person be taken in a room
               other than the courtroom, and that the questioning of the
               protected person by the prosecution and the defense be
               transmitted using a two-way closed circuit television arrangement
               that:


               (1) allows the protected person to see the accused and the trier of
               fact; and


               (2) allows the accused and the trier of fact to see and hear the
               protected person.


               ....


               (e) The court may not make an order under subsection (c) or (d)
               unless:


       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 12 of 18
               (1) the testimony to be taken is the testimony of a protected
               person who:


               ....


               (B) is found by the court to be a protected person who should be
               permitted to testify outside the court room because:


               (i) the court finds from the testimony of a psychiatrist, physician,
               or psychologist and any other evidence that the protected
               person’s testifying in the physical presence of the defendant
               would cause the protected person to suffer serious emotional
               harm and the court finds that the protected person could not
               reasonably communicate in the physical presence of the
               defendant to the trier of fact;


               (ii) . . . ; or


               (iii) evidence has been introduced concerning the effect of the
               protected person’s testifying in the physical presence of the
               defendant, and the court finds that it is more likely than not that
               the protected person’s testifying in the physical presence of the
               defendant creates a substantial likelihood of emotional or mental
               harm to the protected person.


       I.C. § 35-37-4-8.


[19]   In denying the State’s motion to have K.N. testifying via a two-way closed

       circuit television, the trial court stated, in part:

               As to the closed circuit, I think the testimony [of] this little girl is
               going to be stressed out no matter what we do, and we all feel
               bad about that. But from the testimony of the experts, there is

       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017      Page 13 of 18
        very little difference in stress to her whether [] McKinney is
        present in the [c]ourtroom or she sees him on TV, and she has
        got to see him on TV. The statute requires that. So, since there
        is very little difference, I am trying to weigh his right to a fair trial
        vis-a-vis any harm to [K.N.].”


(Tr. Vol. II, p. 57). The State argues that the statutory requirements of Indiana

Code section 35-37-4-8 (e)(i) and (iii), by directing us to the testimony of Dr.

Jones, K.N.’s psychiatrist, and Clevenger, K.N.’s therapist. Dr. Jones initially

testified that K.N. was “behind in almost all of her developmental milestones.”

(Tr. Vol. II, p. 11). She clarified that K.N.

        is not quite mildly intellectually disabled, but she is pretty low
        functioning cognitively. She has more difficulty learning. She is
        what used to be called a slow learner. She is at least a year or
        two behind in gaining all of her academic skills. She tends to
        over rely on learned, rote methods of dealing with her life and so
        anything new presents more of a challenge and she can get
        overwhelmed by new stuff. She doesn’t solve problems very
        effectively. Her use of language is much more what we call
        concrete, not as uh . . . not expressing an understanding of
        deeper, more abstract psychological concepts. Her ability to
        relate information with logical time course markers is a little
        impaired. So she tends to jump around. Yesterday was three
        years ago in her mind, and I am exaggerating a little bit, but a
        year ago might be just yesterday in her mind.


(Tr. Vol. II, p. 11). Dr. Jones has diagnosed K.N. as suffering from “post[-

]traumatic stress disorder, oppositional defiant disorder, and attention deficit-

hyperactivity disorder.” (Tr. Vol. II, p. 9). Dr. Jones pointed out that K.N. is

an “exceptionally weak child psychologically. So the risk of harm for her is


Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017      Page 14 of 18
greater than [for] a child who hasn’t had all of the other traumas and doesn’t

have the other developmental disabilities.” (Tr. Vol. II, p. 31). Dr. Jones noted

that during stressful events, K.N. “tends to retreat, hide, get silent. If she is

pushed further, she gets disagreeable. She starts to act out or act in a negative

way, and she can eventually become aggressive.” (Tr. Vol. II, p. 10). Dr. Jones

added that “in the presence of the jury and in a room with” McKinney, “there

is a decreased likelihood that [K.N.] is going to able to effectively communicate

if she is in front [of] a bunch of people because she will be overwhelmed by

anxiety and make it almost hard for her to talk and communicate effectively.”

(Tr. Vol. II, p. 10). Dr. Jones further testified that it would be “much less

stressful” for K.N. “to testify via closed circuit TV than it would be in front of

an open court.” (Tr. Vol. II, p. 10). At the very end of Dr. Jones’ testimony,

the following exchange occurred between the trial court and Dr. Jones:

        [TRIAL COURT]: By Indiana law, the child has to see []
        McKinney, and [] McKinney not only has to see the child, but he
        has to hear the child. If we set this up by closed circuit television,
        for that to work, since it is really hard to hear in here, especially
        an eight-year[-]old child, that television monitor is probably
        going to be about four feet out in front of you, and that is what
        she is going to be looking at. What do you think would be more
        traumatic, looking at the television monitor or looking at []
        McKinney over there.


        [DR. JONES]: Looking at [] McKinney in person.


        [TRIAL COURT]: If he is just sitting there.



Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017   Page 15 of 18
               [DR. JONES]: Correct. You have got to understand, children
               don’t perceive reality in quite the same way that adults do.
               Television makes it less real.


       (Tr. Vol. II, p. 33).


[20]   Clevenger, K.N.’s therapist, likewise testified that the likelihood of K.N.

       suffering emotional harm if she testified in the presence of McKinney was

       significant. Clevenger stated that the closed-circuit method “may be a little bit

       less stressful, but it will still be very stressful for [K.N.]” (Tr. Vol. II, p. 36).

       Clevenger correspondingly stated that during stressful events, K.N. becomes

       very aggressive, and if confronted with stress in a courtroom full of jurors, she

       “would likely react very negatively. She would [] probably yell, scream, try to

       get out of here as much as possible. She would probably be aggressive to

       whomever is closest to her by hitting, kicking . . .” (Tr. Vol. II, p. 36).

       Additionally, Clevenger stated that if K.N. testified in open court, it may cause

       lasting emotional harm to K.N. Clevenger emphasized that irrespective of the

       venue, it would be “extremely traumatic for [K.N.] to be in the same room”

       with McKinney. (Tr. Vol. II, p. 41).


[21]   In Brady v. State, 575 N.E.2d 981, 991-92 (Ind. 1991), our supreme court noted:


               The essential purpose of I.C. [§]35-37-4-8 as a whole is to protect
               child witnesses and other witnesses who fall within the class of
               persons labeled “protected persons” from the potentially
               traumatic experience of having to testify in open court before the
               person they are accusing. In removing the protected person from
               the often intimidating and sterile environs of the courtroom to a
               nearby private room during the trial and interposing a two-way

       Court of Appeals of Indiana | Opinion 65A05-1611-CR-2624 | August 9, 2017      Page 16 of 18
               closed circuit television arrangement which would permit the
               witness to see the accused and the trier of fact and would allow
               the accused and the trier of fact to see and hear the witness, the
               witness’s testimony would be facilitated and the threat of
               emotional or mental harm to the witness would be significantly
               reduced. In such a [closed-circuit] arrangement, there is no
               person or body interposed between the witness and the accused
               and a face-to-face meeting as contemplated by the Constitution
               occurs. In such manner, the main goal of the statute, reducing
               the trauma caused by in-court testimony before the accused, can
               still be achieved in large measure without compromising
               appellant’s constitutional right to meet the witnesses face to face.


[22]   There can be no dispute that the State’s evidence satisfied the requirements of

       the Protected Person Statute under subsection (e)(i) and (iii). Here, both Dr.

       Jones and Clevenger testified that it would be more stressful, therefore,

       implying that it would be more traumatic for K.N. to testify in the same room

       with McKinney. Both witnesses indicated that K.N.’s stress would be lessened

       if she testified via closed circuit television rather than in open court. Dr. Jones

       further stated that in “orders of magnitude,” K.N.’s stress levels would be

       several times greater than it would be if she testified via closed circuit. (Tr. Vol.

       II, p. 26). Dr. Jones stated that “there is a decreased likelihood that [K.N.] is

       going to be able to effectively communicate” at trial since she would be

       “overwhelmed by anxiety.” (Tr. Vol. II, p. 10). Clevenger testified that it

       would be “significantly less stressful” for K.N. to see McKinney on a television

       monitor. (Tr. Vol. II, pp. 26, 41).


[23]   Nothing in the Protected Person Statute purports an all or nothing proposition.

       As noted in Brady, the purpose of the Protected Person Statute is to protect
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       child witnesses and other witnesses who fall within the class of persons labeled

       “protected persons” from the potentially traumatic experience of having to

       testify in open court before the person they are accusing. See Brady, 575 N.E.2d

       at 989. We recognize that even if the harm to the victim is lessened rather than

       completely alleviated, the purpose of the statute would be served. Here, the

       State presented uncontradicted evidence indicating that K.N. would be

       emotionally harmed if she testified in the presence of McKinney, and more so,

       she would be unable to effectively communicate in open court. Accordingly,

       we find that the trial court’s assertion that there is very little difference on the

       emotional stress that K.N. would endure if she testified in the presence of

       McKinney in the courtroom, is against the logic and effect of the facts and

       circumstances before the court. Therefore, we conclude the that trial court

       abused its discretion in denying the State’s motion to allow to K.N. testify via

       closed-circuit television at McKinney’s trial.


                                              CONCLUSION
[24]   Based on the foregoing, we conclude that the trial court abused its discretion in

       denying the State’s motion to exclude McKinney from K.N.’s deposition. In

       addition, under the facts and circumstances of the case, we hold that the trial

       court abused its discretion in denying the State’s request for K.N. to testify via

       closed circuit television.


[25]   Reversed and remanded.


[26]   Najam, J. and Bradford, J. concur

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