                                                        FILED
                                                      Jun 07 2012, 8:42 am
FOR PUBLICATION
                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MARK F. JAMES                                GREGORY F. ZOELLER
Anderson, Agostino & Keller P.C.             Attorney General of Indiana
South Bend, Indiana
                                             JODI KATHRYN STEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

A.R.M.,                                      )
                                             )
      Appellant-Respondent,                  )
                                             )
             vs.                             )      No. 71A05-1111-JV-613
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Petitioner.                   )


                   APPEAL FROM THE ST. JOSEPH PROBATE COURT
                         The Honorable Peter J. Nemeth, Judge
                            Cause No. 71J01-1102-JD-104



                                    June 7, 2012


                             OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       A.R.M. appeals his adjudication as a delinquent child for committing child

molesting, as a Class C felony when committed by an adult, and battery, as a Class B

misdemeanor when committed by an adult. A.R.M. presents a single issue on appeal,

namely, whether the juvenile court admitted a videotape of an interview with the victim

contrary to the provisions of Indiana Code Section 35-37-46-6, the Protected Person

Statute (“PPS”). We hold that the juvenile court did not err when it determined that the

child victim’s videotaped statement to a forensic interviewer was reliable and that, on the

facts presented, the child victim had testified at the fact-finding hearing, which was

equivalent to the trial required by the PPS.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In February 2011, T.M. and her four children lived with friends in South Bend.

One of the friends had two teenage children, including A.R.M., who was then thirteen

years old. T.M.’s youngest child, S.M., was seven years old at the time. On February 8,

A.R.M.’s mother was looking for him at bedtime and found him in the bathroom.

A.R.M. was clothed, but he was handling the zipper/button area and waistband of his

jeans. S.M. had just been in the bathroom with A.R.M., and he sat down in the hallway

outside the bathroom with his head hanging down. A.R.M.’s mother demanded from

A.R.M. to know what had happened.




                                               2
       T.M. heard the voices and stood in the bathroom doorway with A.R.M.’s mother.

When T.M. asked S.M. if “anything [had] happened between” S.M. and A.R.M. and “if

there was any inappropriate touching involved,” transcript at 28-29, S.M. nodded yes.

       After finding alternate housing, T.M. and her children moved out of A.R.M.’s

home two days later, and on February 14 they moved to the Y.W.C.A. T.M. reported the

incident to personnel at the Y.W.C.A., who in turn relayed her report to DCS. And on

February 16, a CASIE Center1 forensic interviewer conducted an interview of S.M. The

State filed a petition alleging A.R.M. to be a juvenile delinquent for having committed

child molesting, as a Class C felony, when committed by an adult. The State later filed

an amended delinquency petition to add an allegation that A.R.M. had committed battery,

as a Class B misdemeanor, when committed by an adult.

       On August 2, the juvenile court convened for the fact-finding hearing. When the

State offered into evidence the videotaped statement S.M. had given to the CASIE Center

interviewer, A.R.M. objected that the State had not met the requirements of the Protected

Person Statute, Indiana Code Section 35-37-4-6.2 As a result, the juvenile court first

heard evidence on the admissibility of S.M.’s videotaped statement under the PPS.

       S.M. testified at the hearing but, when the State asked him about the February 8

incident in the bathroom with A.R.M., S.M. answered that he could not remember

anything. At the conclusion of the State’s direct examination, A.R.M. was given an




       1
         The CASIE Center is the St. Joseph County Child Abuse Center. CASIE stands for Child
Abuse Services Investigation and Education.
       2
           The PPS is also known as the child hearsay statute.
                                                     3
opportunity to cross-examine the victim but declined and moved for a directed verdict. 3

Following argument by counsel and recesses to allow the juvenile court to research the

matter, the juvenile court ruled that S.M.’s videotaped statement was admissible, and it

denied the motion for a “directed verdict.” The court then heard additional evidence and

viewed the videotaped statement. The following day, the juvenile court issued an order

finding that the State had proved the allegations in the delinquency petition beyond a

reasonable doubt.

        On August 16, A.R.M. filed a motion requesting the juvenile court to certify its

fact-finding order for interlocutory appeal. The juvenile court obliged on August 17, but

this court denied A.R.M.’s request to accept jurisdiction over the appeal. On November

1, the juvenile court held a dispositional hearing and adjudicated A.R.M. to be a

delinquent child for having committed the offenses of child molesting, as a Class C

felony, and battery, as a Class B misdemeanor, and committed him to the Indiana

Department of Correction for placement at the Indiana Boys School.                         A.R.M. now

appeals.

                                 DISCUSSION AND DECISION

        A.R.M. contends that the juvenile court abused its discretion because it admitted

S.M.’s videotaped statement from the CASIE Center contrary to the Protected Person

Statute. Specifically, A.R.M. contends that the videotape did not meet the standard under

the PPS to be reliable and that the State did not meet the requirement of having S.M.


        3
          A party may move for judgment on the evidence under Trial Rule 50 in civil proceedings, such
as a juvenile delinquency proceeding, not a motion for directed verdict, but only in a jury trial. A.R.M.’s
motion for a “directed verdict” is more properly a motion for dismissal under Trial Rule 41. See Bowyer
v. Ind. Dep’t of Natural Res., 944 N.E.2d 972, 981 n.10 (Ind. Ct. App. 2011).
                                                    4
testify or showing, through medical testimony or other evidence, that S.M. was

unavailable to testify at the fact-finding hearing. We conclude that the juvenile court did

not abuse its discretion when it determined that the videotape was reliable and that S.M.

testified at the fact-finding hearing. As such, the State satisfied the requirements of the

PPS for the videotape to be admitted at the fact-finding hearing.

       The PPS provides, in relevant part:

       (a) This section applies to a criminal action involving the following
       offenses where the victim is a protected person under subsection (c)(1) or
       (c)(2):

              (1) Sex crimes (IC 35-42-4).

              (2) Battery upon a child (IC 35-42-2-1(a)(2)(B)).

                                             ***

       (c) As used in this section, “protected person” means:
              (1) a child who is less than fourteen (14) years of age;

                                             ***

       (d) 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 an offense listed in
              subsection (a) or (b) that was allegedly committed against the
              person; and
              (3) is not otherwise admissible in evidence;

       is admissible in evidence in a criminal action for an offense listed in
       subsection (a) or (b) if the requirements of subsection (e) are met.

       (e) A statement or videotape described in subsection (d) is admissible in
       evidence in a criminal action listed in subsection (a) or (b) if, after notice to
       the defendant of a hearing and of the defendant’s right to be present, all of
       the following conditions are met:

              (1) The court finds, in a hearing:


                                              5
                    (A) conducted outside the presence of the jury; and
                    (B) attended by the protected person in person or by
                    using closed circuit television testimony as described
                    in section 8(f) and 8(g) [IC 35-37-4-8(f) and IC 35-37-
                    4-8(g)] of this chapter;

             that the time, content, and circumstances of the statement or
             videotape provide sufficient indications of reliability.

             (2) The protected person:

                    (A) testifies at the trial; or
                    (B) is found by the court to be unavailable as a witness
                    for one (1) of the following reasons:

                           (i) From the testimony of a psychiatrist,
                           physician, or psychologist, and other
                           evidence, if any, the court finds that the
                           protected person’s testifying in the
                           physical presence of the defendant will
                           cause the protected person to suffer
                           serious emotional distress such that the
                           protected person cannot reasonably
                           communicate.
                           (ii) The    protected   person     cannot
                           participate in the trial for medical
                           reasons.
                           (iii) The court has determined that the
                           protected person is incapable of
                           understanding the nature and obligation
                           of an oath.

Ind. Code § 35-37-4-6. The PPS applies in juvenile delinquency cases. J.A. v. State, 904

N.E.2d 250, 255 (Ind. Ct. App. 2009), trans. denied. And the statute applies in this case

because S.M. was a victim of a sex crime, Ind. Code § 35-37-4-6(a)(1), and was under

fourteen years of age, Ind. Code § 35-37-4-6(c).

      Further, the decision to admit statements under the Protected Person Statute will

not be reversed absent a showing of a manifest abuse of discretion by the trial court


                                            6
resulting in the denial of a fair trial. Mishler v. State, 894 N.E.2d 1095, 1099 (Ind. Ct.

App. 2008) (citing M.T. v. State, 787 N.E.2d 509, 511 (Ind. Ct. App. 2003). An abuse of

discretion occurs only when the trial court’s action is clearly erroneous and against the

logic and effect of the facts and circumstances before the court. Id. (citing Myers v.

State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999)).

       Before we consider the merits of A.R.M.’s claims, we must consider the State’s

claim that A.R.M. waived his challenge to the admissibility of the videotaped statement

by failing to include the same in the record on appeal. In support the State cites Davis v.

State, 935 N.E.2d 1215 (Ind. Ct. App. 2010), where we held that “[i]t is a defendant’s

duty to present and adequate record clearly showing the alleged error, and where he fails

to do so, the issue is waived.” Id. at 1217. We agree with the State that the preferred

course would be to include in the record on appeal all juvenile evidence so as to aid our

review. But, except for the narrow exception discussed below, the issues on appeal

concern whether the procedural requirements of the PPS were followed and do not

require review of the videotape itself. The State does not show how review of the

videotaped statement in this case is necessary to review of the procedural issues raised by

A.R.M., nor does it argue that such is necessary. Therefore, the State has not shown that

A.R.M.’s failure to include the videotaped statement hinders our review.         As such,

A.R.M. has not waived review, and we consider the merits of A.R.M.’s issues on appeal.

However, as discussed below, any argument based on the content of the videotape is

waived.




                                            7
        A.R.M. first contends that the admission of S.M.’s videotaped statement to the

CASIE interviewer does not meet the reliability requirements under the PPS. Again, the

statute requires the juvenile court to determine whether a statement is reliable by holding

a hearing outside the presence of the jury on the admissibility of the tape, and the

protected person must attend the hearing in person or via closed circuit television

testimony.4     Ind. Code § 35-47-4-6(e)(1).             The hearing affords a juvenile court an

opportunity to consider the competency and credibility of the child, as well as the

circumstances surrounding the out of court statement to ensure its reliability. See Stahl v.

State, 497 N.E.2d 927, 929 (Ind. Ct. App. 1986). Considering the evidence admitted at

the hearing, the juvenile court must determine whether “the time, content, and

circumstances of the statement or videotape provide sufficient indications of reliability.”

Ind. Code § 35-37-4-6(e)(1).

        In challenging the reliability of the videotape, A.R.M. contends that

        the testimony of [S.M.’s] mother suggests a clear opportunity for the victim
        to [have been] coached. She believed an incident [had] occurred between
        the victim and A.R.M. She testified that the victim “agreed with her” when
        she questioned him about anything that [had] occurred between the victim
        and A.R.M. Additionally, because over a week passed between the alleged
        incident and the video, the victim’s statement is not spontaneous.

Appellant’s Brief at 5-6.           But “the lack of spontaneity between the child’s first

molestation revelation and the time that statement is videotaped, standing alone, does not

render the statement inadmissible under [Indiana Code Section] 35-37-4-6.” Stahl, 497

N.E.2d at 930. And the fact that S.M.’s mother, immediately after the incident and in the

        4
           The hearing regarding the admissibility of the out-of-court statement may be held in a hearing
before the trial date and before a jury is convened or, instead, it may be held outside the presence of the
jury after a jury trial has been convened. The present case implicates the latter situation but in a juvenile
court setting without a jury.
                                                     8
hallway outside the bathroom, asked S.M. whether something happened and he nodded to

agree does not, without more, indicate coaching. Indeed, A.R.M.’s mother had already

been asking A.R.M. what had happened after realizing that he and S.M. had been in the

bathroom together.

        There is no evidence that T.M. discussed the incident with S.M. again before S.M.

was interviewed at the CASIE Center, let alone coached him. Further, the CASIE Center

interviewer testified regarding her extensive training and experience in conducting child

interviews like the one at issue in this case. Thus, the setting and circumstances of the

videotape do not weigh against a finding of reliability.                 Because the tape was not

submitted as part of the record on appeal, we cannot review it to consider the content of

the tape, and any argument regarding reliability based on the content of the videotape is

waived. Therefore, on the record before us, we cannot say that the juvenile court abused

its discretion when it determined that the time, content, and circumstances of the

videotape provide sufficient indications of reliability.5 See Ind. Code § 35-37-4-6(e)(1).

        A.R.M. next contends that the juvenile court erred when it admitted the videotape

because S.M. did not testify at the fact-finding hearing and was not found to be

unavailable to testify under the PPS. Again, the relevant part of the PPS provides that,

once a statement is determined to be reliable, it may be admitted into evidence at the trial

if:

                (2) The protected person:


        5
         A.R.M. does not assert that his rights under the Confrontation Clause were violated in this case.
Nevertheless, we observe that A.R.M.’s counsel had the opportunity to cross-examine S.M. and could
have played the videotaped statement and examined S.M. on the merits of S.M.’s statements. But
A.R.M.’s counsel instead rested after moving for a directed verdict.
                                                    9
                        (A) testifies at the trial; or
                        (B) is found by the court to be unavailable as a witness
                        for one (1) of the following reasons:

                                (i) From the testimony of a psychiatrist,
                                physician, or psychologist, and other
                                evidence, if any, the court finds that the
                                protected person’s testifying in the
                                physical presence of the defendant will
                                cause the protected person to suffer
                                serious emotional distress such that the
                                protected person cannot reasonably
                                communicate.
                                (ii) The    protected   person     cannot
                                participate in the trial for medical
                                reasons.
                                (iii) The court has determined that the
                                protected person is incapable of
                                understanding the nature and obligation
                                of an oath.

Ind. Code § 35-37-4-6(e)(2).

        Here, although the admissibility of the videotape was the focus of the first part of

the fact-finding hearing, the parties treated the entirety of the fact-finding hearing as the

“trial” contemplated in the PPS. S.M. testified at the hearing, and immediately after that

examination, A.R.M. moved for a “directed verdict.”                  S.M.’s inability to recall the

incident does not change the fact that he testified. And, as noted above, A.R.M. had the

opportunity to cross-examine S.M. but declined to do so. As such, we conclude that S.M.

testified at the fact-finding hearing, and subsection (e)(2) of the PPS was satisfied.6

        In sum, A.R.M. has not shown that the juvenile court abused its discretion when it

determined that S.M.’s videotaped statement to the CASIE Center interviewer was


        6
            Because we conclude that S.M. testified as contemplated in Section 35-37-4-6(e)(2)(A), we
need not consider A.R.M.’s argument that the State failed to show that S.M. was unavailable to testify at
the trial under Section 35-37-4-6(e)(2)(B).
                                                   10
reliable. And S.M. testified at the fact-finding hearing. The requirements under the PPS

for admission of S.M.’s videotaped statement at the CASIE Center were satisfied.

Therefore, A.R.M. has not shown that the trial court abused its discretion when it

admitted S.M.’s videotaped statement under the PPS, and we affirm the adjudication that

A.R.M. is a juvenile delinquent for having committed the offenses of child molesting, as

a Class C felony, and battery, as a Class B misdemeanor.7

        We affirm.

RILEY, J., and DARDEN, J., concur.




        7
           Because we conclude that the requirements under the PPS for admission of the videotape were
satisfied in this case, we need not consider the State’s alternative argument that, even if the PPS
requirements had not been satisfied, the videotape was properly admitted under Evidence Rule 803(5).
However, we pause to note that such argument would not have prevailed. “The recorded recollection
exception applies when a witness has insufficient memory of the event recorded, but the witness must be
able to ‘vouch for the accuracy of the prior [statement].’ ” Kubsch v. State, 866 N.E.2d 726, 734-35 (Ind.
2007), cert denied, 553 U.S. 1067 (2008). No such vouching testimony was elicited from S.M. in this
case.
                                                   11
