      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                             FILED
      regarded as precedent or cited before any                                    Apr 20 2018, 8:59 am
      court except for the purpose of establishing                                      CLERK
      the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Joel C. Wieneke                                          Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Brooklyn, Indiana
                                                               Katherine Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael Nussbaum,                                        April 20, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               67A05-1704-CR-836
              v.                                               Appeal from the Putnam Circuit
                                                               Court
      State of Indiana,                                        The Honorable Matthew L.
      Appellee-Plaintiff.                                      Headley, Judge
                                                               Trial Court Cause No.
                                                               67C01-1506-FA-115



      Mathias, Judge.

[1]   Following a jury trial in Putnam Circuit Court, Michael Nussbaum

      (“Nussbaum”) was convicted of eight counts of Class A felony child molesting


      Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018              Page 1 of 20
      and sentenced to an aggregate term of ninety years of incarceration. Nussbaum

      appeals and presents three issues, which we restate as follows:


        I. Whether the trial court abused its discretion by denying Nussbaum’s
           motion to dismiss due to the fact that the State either lost or destroyed a
           video of prior interviews with the victims in which they did not disclose
           any molestation;
       II. Whether the trial court abused its discretion when it redacted statements
           from one of the victim’s recorded cross-examination regarding her
           exposure to pornographic materials; and
      III. Whether the trial court abused its discretion by permitting the jury to see
           and hear the video recordings of the forensic interviews of the victims
           when only an audio recording of the defense’s cross-examination of the
           victims was available.

[2]   We affirm.


                                  Facts and Procedural History
[3]   From the spring of 2006 until the summer of 2012, Nussbaum’s wife, Holly, ran

      a daycare service at the couple’s home. Among the children who stayed at the

      Nussbaum’s daycare were S.P., S.G., and K.C., who were approximately five

      and one-half years old, two and one-half years old, and five years old,

      respectively, when each girl began to attend the daycare. Nussbaum helped his

      wife care for the children.


[4]   In 2012, S.P. reported to her mother than she had seen Nussbaum do sexually

      inappropriate things with S.G. S.P.’s mother reported this information to the

      local office of the Indiana Department of Child Services (“DCS”) and to S.G.’s

      father. On June 16, 2012, S.P.’s mother took her to Susie’s Place Child


      Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 2 of 20
      Advocacy Center, where she was forensically interviewed. However, she did

      not disclose any sexual abuse during the interview. S.G. was also interviewed at

      Susie’s Place on August 18, 2012, but she too did not disclose any abuse and

      denied that anything had happened to her. DCS also interviewed Nussbaum,

      who denied that he had molested the girls. Accordingly, DCS considered the

      allegations unsubstantiated and did not pursue the matter further.


[5]   One year later, in August 2013, S.G. told her father that S.P. had told the truth

      and that “something had happened.” Tr. Vol. 3, p. 146. S.G.’s father, however,

      was unable to glean any details from his daughter. He then took her to his

      sister’s house, hopeful that S.G. would be more forthcoming with her aunt.

      After talking with S.G., her aunt contacted DCS, who began another

      investigation into the allegations of sexual abuse. DCS also contacted S.P.’s

      mother to inform her that S.G. stated that S.P. had also been molested.


[6]   Both girls were again taken to Susie’s Place for a second round of forensic

      interviews. S.G., who was by then nine years old, stated that Nussbaum had,

      on multiple occasions, performed anal sex on her and made her perform oral

      sex on him. She also stated that S.P. was present during these molestations and

      had herself been subject to the abuse. When S.P., who was by then seven years

      old, was interviewed, she too stated that Nussbaum had made her perform oral

      sex on him and had performed anal sex on her.


[7]   In May 2014, K.C. told her mother that Nussbaum had sexually abused her

      too. K.C. was also interviewed at Susie’s Place. During the interview, K.C.,


      Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 3 of 20
      who was by then eleven years old, told the interviewer that Nussbaum had

      performed oral sex on her.


[8]   On June 2, 2015, a grand jury charged Nussbaum in an indictment with eight

      counts of Class A felony child molesting. On January 25, 2016, Nussbaum filed

      a discovery request seeking copies of the recordings of the forensic interviews of

      S.G. and S.P. that took place in 2012, when the girls denied or failed to disclose

      any abuse. Nussbaum later filed a motion to compel disclosure of recordings of

      the interviews from 2012. The State responded that it was unable to locate the

      recordings of the 2012 interviews.


[9]   At the hearing on Nussbaum’s motion to compel, the State acknowledged that

      S.G. and S.P. were interviewed at Susie’s Place in 2012 and did not disclose

      any abuse. Shelly Chadd (“Chadd”), the director of DCS’s Putnam County

      office, testified at the hearing that she was aware of S.G. and S.P.’s 2012

      interviews and that DCS concluded at that time that the allegations of

      molestation by Nussbaum were unsubstantiated. Chadd, however, did not

      recall watching the videos and could not remember any details of the

      interviews. Chadd explained that, when the interviews had been conducted, the

      recordings were given to a law enforcement officer who was present. Trisha

      Guinn (“Guinn”), a DCS investigator who also attended the interviews,

      testified that the recordings of the 2012 interviews were given to Charlie

      Bollinger (“Bollinger”), an investigator who worked for the Putnam County

      Prosecutor’s Office in 2012. Guinn could not recall any details of the interviews



      Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 4 of 20
       other than the order in which the girls were interviewed and that S.G. had

       denied that any molestation had occurred.


[10]   On July 21, 2016, Nussbaum filed a motion to dismiss the first seven of the

       eight counts—the counts alleging that Nussbaum had molested S.G. and S.P.—

       based upon the State’s failure to preserve the recordings of the 2012 interviews.

       The trial court denied Nussbaum’s motion to dismiss on January 18, 2017,

       concluding:


               The 2012 “lost tapes” are the central issue. A Department of
               Child Services case manager, Department of Child Services
               Director, Prosecutor Investigator and Child Advocacy
               Representative (who conducted the interviews) all testified that
               no one can find the tapes. All agree that the children did not
               disclose any abuse by Defendant. In fact, because there was a
               nondisclosure, the interview ceased, the Department of Child
               Services unsubstantiated its case[,] and no prosecution resulted.
               The case was effectively closed.

               [The] Court finds that the tapes are potentially useful evidence
               and not constitutionally material. The Defendant may cross
               exam[ine] each of the State’s witnesses on their negligence of
               keeping evidence (and not following established protocol). Each
               of these witnesses admitted that this loss of evidence is “on
               them” but no bad faith has been shown. This will clearly go to
               the credibility of those witnesses and they can be vigorously
               cross-examined on the issue in front of the jury.


       Appellant’s App. Vol. 3, pp. 21–22.


[11]   Before the trial court issued its order denying Nussbaum’s motion to dismiss,

       the court held a child hearsay hearing regarding the three victims. During the

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 5 of 20
       hearing, Nussbaum’s trial counsel cross-examined the children via closed-

       circuit television. On cross-examination, S.G. admitted that she had a laptop

       computer and that she had used this computer to view online images and videos

       of men and women engaged in sexual activities. Thereafter, the State filed a

       motion in limine requesting that Nussbaum make no reference to S.G.’s, or any

       other witness’s, prior sexual history outside of that allowed by Indiana

       Evidence Rule 412. The trial court initially denied the State’s motion in limine,

       but later reversed its decision and ordered that evidence regarding S.G.’s

       viewing pornography on the internet would not be admissible.


[12]   A three-day jury trial commenced on February 20, 2017. During trial, the trial

       court admitted into evidence video recordings of the 2013 forensic interviews

       with S.G., S.P., and K.G., and the videos were played to the jury. Nussbaum

       requested that the jury be permitted to listen to only the audio of the recordings,

       because only audio recordings were made of his cross-examination of the

       children at the child hearsay hearing. The trial court denied Nussbaum’s

       request. Thus, the jury watched video recordings of the forensic interviews but

       heard only audio recordings of Nussbaum’s cross-examination of the girls at the

       child hearsay hearing.


[13]   At the conclusion of the trial, the jury found Nussbaum guilty as charged. At a

       sentencing hearing held on March 23, 2017, the trial court sentenced Nussbaum

       to the advisory sentence of thirty years on each count. The court ordered that

       the sentences on the counts involving each individual victim be served

       concurrently, but consecutively to the counts involving the other two victims,

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 6 of 20
       for an aggregate sentence of ninety years of incarceration. Nussbaum now

       appeals.


                                             I. Motion to Dismiss

[14]   Nussbaum first argues that the trial court erred in denying his motion to dismiss

       the charges related to S.G. and S.P. due to the failure to preserve the recordings

       of the 2012 interviews of these girls. We review a trial court’s ruling on a

       motion to dismiss for an abuse of discretion. Filice v. State, 886 N.E.2d 24, 32

       (Ind. Ct. App. 2008), trans. denied. A trial court abuses its discretion only when

       its decision is clearly against the logic and effect of the facts and circumstances

       or when the court has misinterpreted the law. Id.


[15]   It is well settled that a criminal defendant has the right to examine physical

       evidence in the hands of the State. Roberson v. State, 766 N.E.2d 1185, 1187

       (Ind. Ct. App. 2002), trans. denied. The State’s failure to preserve such evidence

       may, under certain circumstances, constitute the denial of the due process of

       law. Id. To determine whether a failure to preserve evidence deprives the

       defendant of due process, we first determine whether the evidence at issue was

       “potentially useful evidence” or “materially exculpatory evidence.” Id. (citing

       Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied).


[16]   If the evidence was only potentially useful, the defendant must establish bad

       faith on the part of the State. Albrecht v. State, 737 N.E.2d 719, 724 (Ind. 2000)

       (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)). “The United States

       Supreme Court has described potentially useful evidence as ‘evidentiary

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 7 of 20
       material of which no more can be said than that it could have been subjected to

       tests, the results of which might have exonerated the defendant.’” Roberson, 766

       N.E.2d at 1188 (quoting Youngblood, 488 U.S. at 57)).


[17]   In contrast, materially exculpatory evidence, as the term suggests, is evidence of

       an exculpatory nature. And “exculpatory” had been defined as “‘[c]learing or

       tending to clear from alleged fault or guilt; excusing.’” Albrecht, 737 N.E.2d at

       724 (quoting Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997)).1 To

       meet the standard of being “materially exculpatory,” the evidence at issue

       “must both possess an exculpatory value that was apparent before the evidence

       was destroyed, and be of such a nature that the defendant would be unable to

       obtain comparable evidence by other reasonably available means.” Id. Unlike

       merely potentially useful evidence, the State’s good or bad faith in failing to

       preserve materially exculpatory evidence is immaterial. Roberson, 766 N.E.2d at

       1188 (citing Chissell, 705 N.E.2d at 504).


[18]   Here, Nussbaum argues that the lost recordings of the 2012 interviews were

       materially exculpatory evidence and not merely potentially useful evidence. We

       disagree. The parties agree that, in the 2012 interviews, neither S.G. nor S.P.

       disclosed any abuse by Nussbaum. Thus, when DCS declared the initial

       allegations against Nussbaum to be unsubstantiated, any potential exculpatory

       nature of the recordings was not apparent, as no charges were brought against



       1
        The Samek court itself quoted this definition from Black’s Law Dictionary. See 688 N.E.2d at 1288 (citing
       Black’s Law Dictionary 566 (6th ed.1990)).

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018            Page 8 of 20
       Nussbaum at that time. Moreover, the statements of S.G. and S.P. do not

       excuse, clear, tend to clear, or otherwise exonerate Nussbaum from guilt. The

       fact that the girls did not disclose any abuse or denied any abuse does not mean

       that no abuse occurred. Indeed, it is not uncommon for victims of sexual abuse

       to be hesitant to talk about the abuse they have suffered. We instead consider

       S.G.’s and S.P.’s statements in the 2012 interviews to simply be evidence that

       would impeach the credibility of their later statements that Nussbaum did abuse

       them.


[19]   Accordingly, we conclude that the recordings of the 2012 interviews were not

       materially exculpatory evidence, but only potentially useful evidence. As such,

       in order to establish a denial of due process sufficient to support a dismissal of

       the charges, Nussbaum must also show that the State destroyed the evidence in

       bad faith. In this context, “bad faith” has been defined as being “not simply bad

       judgment or negligence, but rather implies the conscious doing of wrong

       because of dishonest purpose or moral obliquity.” Samek, 688 N.E.2d at 1289

       (quoting Black’s Law Dictionary 139 (6th ed. 1990)).


[20]   Here, there is no indication of such moral obliquity or dishonest purpose in the

       failure to preserve the recordings.2 This is not to say that we condone the failure



       2
         Nussbaum notes that the Indiana Archives and Records Administration policy or rule 2008-33 provides in
       relevant part:
              Retention & Disposition: TRANSFER to the RECORDS CENTER one (1) year after
              assignment of unsubstantiated status. DESTROY after an additional twenty-three (23) years in
              the RECORDS CENTER. TOTAL RETENTION: twenty-four (24) years.
       Available at: http://www.in.gov/iara/3262.htm. Nussbaum claims that this policy is applicable to DCS and
       its failure to follow this policy should be considered as per se bad faith. But the authority cited by Nussbaum in

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018                Page 9 of 20
       of the prosecutor’s office and DCS to preserve the recording. To the contrary, it

       reflects poorly on both. But there is simply no indication that either the

       prosecutor’s office or DCS acted in bad faith.


[21]   We also cannot ignore that the jury was made well aware that S.G. and S.P. did

       not disclose any abuse during the 2012 interviews. Nussbaum cross-examined

       both S.G. and S.P. regarding their prior statements and also cross-examined

       those responsible for the retention of the recordings. Thus, the jury was aware

       of the general nature of the content of the lost recordings and the fact that the

       State failed to preserve them.


[22]   An almost identical situation was before the District Court of Appeals of

       Florida in State v. Larrinaga, 569 So.2d 911 (Fla. Dist. Ct. App. 1990). In that

       case, a police detective spoke with two children in a videotaped interview, in

       which both children denied that the defendant had sexually abused them. The

       police therefore closed the investigation and erased the videotape one year later.

       Thereafter, the investigation was reopened when the children stated that the

       defendant had, in fact, sexually abused them. The trial court granted the

       defendant’s motion to dismiss on grounds of the destroyed evidence. On

       appeal, however, the Larrinaga court reversed. Id. at 913. The court determined

       that the destroyed videotape was only potentially useful to the defendant’s case



       support of his argument notes that “a violation of a statute enacted for reasons of safety is negligence per se, or
       negligence as a matter of law.” N. Indiana Transit, Inc. v. Burk, 228 Ind. 162, 172, 89 N.E.2d 905, 909 (1950).
       The Archives and Records Administration policy is not a statute enacted for reasons of safety. And even if it
       were, the failure to follow it would establish at most negligence, not bad faith. See Samek, 688 N.E.2d at 1289
       (noting that bad faith must be more than mere bad judgment or negligence).

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018                Page 10 of 20
       and noted that the trial court had found that the tape was not destroyed in bad

       faith. And although the detective could not recall the details of the interview,

       the defendant would still be able to present his account of the interview, i.e.,

       that the children denied abuse at that time. Id. The court therefore held that the

       defendant was not entitled to dismissal of the charges. Id.


[23]   The same is true here. There was no finding of bad faith, the evidence on the

       tapes was only potentially useful, and Nussbaum was still able to present to the

       jury the gist of the information gleaned in the 2012 interviews, i.e., that S.G.

       and S.P. failed to disclose any abuse at that time. Accordingly, we conclude

       that the trial court did not abuse its discretion when it denied Nussbaum’s

       motion to dismiss based upon the State’s failure to preserve the recordings of

       the 2012 interviews.


                                         II. Exclusion of Evidence

[24]   Nussbaum also claims that the trial court abused its discretion when it excluded

       evidence that S.G. had viewed pornography on her computer. Decisions

       regarding the admission of evidence are left to the sound discretion of the trial

       court. Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied.

       On appeal, we review the court’s decision only for an abuse of that discretion.

       Id. The trial court abuses its discretion only if its decision regarding the

       admission of evidence is clearly against the logic and effect of the facts and

       circumstances before it, or if the court has misinterpreted the law. Id.




       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 11 of 20
[25]   Nussbaum claims that evidence regarding S.G.’s exposure to pornography

       “could combat the likely assumption by the jury that she, and the other girls,

       would not be able to describe the sex acts that were the basis of the charges

       against Nussbaum unless those acts had actually happened.” Appellant’s Br. at

       18. Nussbaum argues that “the sexual innocence inference theory made the

       testimony from S.G. admissible, and in turn would allow the defense to connect

       S.G. to the other girls to demonstrate that they all had been exposed to this

       knowledge about sex acts.”3 Id.


[26]   The State counters that this evidence is inadmissible under Indiana Evidence

       Rule 412, sometimes referred to as the “Rape Shield Rule.” See Oatts v. State,

       899 N.E.2d 714, 720 (Ind. Ct. App. 2009) (citing State v. Walton, 715 N.E.2d

       824, 826 (Ind. 1999)).4 Evidence Rule 412(a) governs the admissibility of

       evidence of past sexual conduct and provides in relevant part:




       3
         Nussbaum also complains that the State did not make a contemporaneous objection during the child
       hearsay hearing when he cross-examined S.G. regarding her viewing pornography on her laptop. But the jury
       was not present during this hearing, and the State sought to exclude S.G.’s testimony on this issue prior to
       the start of trial. Moreover, during trial, Nussbaum objected to the fact that the portions of his cross-
       examination regarding S.G.’s having viewed pornography had been excised from the recording of his cross-
       examination played to the jury. The trial court overruled this objection. Thus, the trial court had an
       opportunity to make a final ruling on the admissibility of this evidence at the time it was presented to the
       jury, which is the underlying rationale for the contemporaneous objection requirement. See Clausen v. State,
       622 N.E.2d 925, 928–29 (Ind. 1993) (noting that the purpose of the contemporaneous objection requirement
       is to afford the trial court an opportunity to consider the evidence in the context in which it is being offered
       and make a final determination on admissibility).
       4
         Evidence Rule 412 incorporates the basic principles of Indiana Code section 35-37-4-4, the Rape Shield
       Act. Oatts, 899 N.E.2d at 720 (citing Walton, 715 N.E.2d at 826). To the extent that this statute conflicts with
       Evidence Rule 412, the evidentiary rule controls. See id. at 720 n.8 (citing Williams v. State, 681 N.E.2d 195,
       200 n.6 (Ind. 1997)). Neither party bases their argument on this statute.

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018               Page 12 of 20
                (a) Prohibited Uses. The following evidence is not admissible in
                a civil or criminal proceeding involving alleged sexual
                misconduct:
                    (1) evidence offered to prove that a victim or witness engaged
                    in other sexual behavior; or
                    (2) evidence offered to prove a victim’s or witness’s sexual
                    predisposition.

                (b) Exceptions.
                    (1) Criminal Cases. The court may admit the following
                    evidence in a criminal case:
                         (A) evidence of specific instances of a victim’s or witness’s
                         sexual behavior, if offered to prove that someone other
                         than the defendant was the source of semen, injury, or
                         other physical evidence;
                         (B) evidence of specific instances of a victim’s or witness’s
                         sexual behavior with respect to the person accused of the
                         sexual misconduct, if offered by the defendant to prove
                         consent or if offered by the prosecutor; and
                         (C) evidence whose exclusion would violate the
                         defendant’s constitutional rights.[5]


[27]   Here, the evidence at issue consisted of S.G.’s testimony that she had viewed

       pornography on her computer. Under the plain language of Evidence Rule

       412(a), this evidence was inadmissible because it was offered to prove that S.G.

       engaged in sexual behavior (viewing pornography). Nor was it admissible under




       5
         In addition to these explicit exceptions, one common-law exception survived the 1994 adoption of the
       Indiana Rules of Evidence, i.e., evidence of a prior accusation of rape is admissible if: (1) the victim has
       admitted that his or her prior accusation of rape was false; or (2) the victim’s prior accusation is demonstrably
       false. Oatts, 899 N.E.2d at 721 (citing Walton, 715 N.E.2d at 826–828). This common-law exception is
       inapplicable in the present case.

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018               Page 13 of 20
       the first two exceptions provided in Rule 412(b): it was not offered to prove that

       someone else was the source of any physical evidence, nor was it offered to

       prove consent, which would itself not be relevant in a prosecution for child

       molesting.


[28]   Still, Evidence Rule 412(b)(1)(C) provides that a court may admit evidence that

       would otherwise be excluded under the rule if such exclusion would violate the

       defendant’s constitutional rights. Nussbaum argues that the exclusion of the

       evidence in question violated his constitutional right to cross-examine witnesses

       and present a defense. As this court noted in Oatts, the right to cross

       examination is not absolute. 899 N.E.2d at 722 (citing Tague v. Richards, 3 F.3d

       1133, 1137 (7th Cir. 1993)). Instead, “the Confrontation Clause guarantees an

       opportunity for effective cross-examination, not cross-examination that is

       effective in whatever way, and to whatever extent, the defense might wish.” Id.

       (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). And the right to confront

       witnesses “‘may, in appropriate cases, bow to accommodate other legitimate

       interests in the criminal trial process.’” Id. (quoting Chambers v. Mississippi, 410

       U.S. 284, 295 (1973)).

[29]   There are situations in which application of Evidence Rule 412 might violate a

       defendant’s Sixth Amendment rights, e.g. “when the trial court restricts a

       defendant from giving his own account of the events at issue,” or when “a

       defendant establishes that the victim engaged in a similar pattern of sexual

       acts.” Id. The exclusion of the evidence at issue here—that S.G. had viewed

       pornography on her computer—did not restrict Nussbaum from giving his own

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 14 of 20
       account of the events at issue. To the contrary, he was able to testify to the jury

       that he did nothing sexually inappropriate to the girls. Nor did the excluded

       evidence tend to show that S.G. had engaged in a similar pattern of sexual acts.


[30]   Instead, Nussbaum claims that exclusion of this evidence prevented him from

       countering the so-called “sexual innocence inference” theory. This theory is

       “‘based on the premise that because most children of tender years are ignorant

       of matters relating to sexual conduct, a child complainant’s ability to describe

       such conduct may persuade the jury that the charged conduct in fact

       occurred.’” Id. at 724 (quoting Grant v. Demskie, 75 F.Supp.2d 201, 213

       (S.D.N.Y. 1999), aff’d by 234 F.3d 1262 (2nd Cir. 2000)).6 This theory also

       reasons that, “‘[t]o demonstrate that the child had acquired sufficient

       knowledge to fabricate a charge against the defendant . . . the court should

       allow the defense to offer evidence that the child acquired sexual experience

       with someone else before he or she accused the defendant.’” Id.


[31]   Nussbaum claims that the jury should have been permitted to hear that S.G.

       had viewed on her computer sexual behavior similar to that she accused

       Nussbaum of, i.e. oral, vaginal, and anal sex. This, he argues, would dispel any

       inference of sexual innocence on the part of S.G.


[32]   The weakness with Nussbaum’s argument is that there is no indication as to

       precisely when S.G. viewed the pornographic images on her computer. If she


       6
        The Grant court was in turn quoting the article Consent, Credibility, and the Constitution: Evidence Relating to a
       Sex Offense Complainant's Past Sexual Behavior, 44 CATH. U. L. Rev. 709, 806 (1995), by Clifford S. Fishman.

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018                  Page 15 of 20
       had done so before she made her accusations against Nussbaum, then this

       evidence might have been relevant to dispel any inference of sexual innocence

       on the part of S.G. See Oatts, 899 N.E.2d at 724 (noting that a court should

       allow the defense to offer evidence that the child acquired sexual experience

       before she accused the defendant) (citing Grant, 75 F.Supp.2d at 213). If,

       however, S.G. viewed the images after she made her accusations against

       Nussbaum, we fail to see how this could have been used to rebut any inference

       of sexual innocence, as by that point, she would have already been subject to

       sexual acts. See id.


[33]   At trial, Nussbaum noted that there was evidence that S.G. had access to the

       laptop when she went to the Nussbaums’ daycare. But this does not establish

       that she necessarily viewed the pornographic images at this time. As the

       proponent of the evidence, it was Nussbaum’s burden to establish that S.G.

       viewed the pornography before she made her statements implicating

       Nussbaum. See C.S. v. State, 71 N.E.3d 848, 852–53 (Ind. Ct. App. 2017) (“The

       proponent of evidence has the burden to show its admissibility.”). Because of

       the uncertainty regarding when S.G. viewed the pornography, the trial court

       did not abuse its discretion when it excluded this evidence.


[34]   Even if we were to conclude otherwise, we do not think that the exclusion of

       this evidence constituted reversible error. We do not think the informing the

       jury that S.G. had viewed pornography would have played a significant role in

       the jury’s decision to convict, especially given the unequivocal testimony of the

       three victims. See Teague v. State, 978 N.E.2d 1183, 1189 (Ind. Ct. App. 2012)

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 16 of 20
       (noting that any evidentiary error is harmless if there is substantial independent

       evidence of guilt that satisfies us that there is no substantial likelihood the

       challenged evidence contributed to the conviction).


                         III. Recordings of the Child Hearsay Hearings

[35]   Lastly, Nussbaum argues that the trial court erred by permitting the jury to see

       and hear the video recordings of the forensic interviews of the victims when

       only an audio recording of the defense’s cross-examination of the victims was

       available. In addressing this argument, we again note that questions regarding

       the admissibility of evidence are entrusted to the discretion of the trial court.

       Harrison, 32 N.E.3d at 250.


[36]   Here, video recordings of the forensic interviews of the victims were made. But

       only audio recordings of Nussbaum’s cross-examination of the victims were

       made during the child-hearsay hearing. Both of these recordings were admitted

       into evidence and played before the jury. At trial, Nussbaum requested that

       only the audio portion of the video recordings of the forensic interviews be

       played for the jury. The trial court denied this request.


[37]   Nussbaum argues that, by allowing the jury to view the video recording of the

       forensic interviews, “the jury was permitted to view the sympathetic demeanor

       developed during the accommodating . . . child forensic interview process, but

       could not see the witnesses as they were confronted.” Appellant’s Br. at 24.

       This, he claims, created an unfair advantage to the State.




       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 17 of 20
[38]   The State argues that, by not objecting to the fact that the child hearsay

       hearings were not recorded on video, Nussbaum has waived this argument for

       purposes of appeal. There is some merit to the State’s position. By the time the

       child hearsay hearings were held, Nussbaum was aware that the forensic

       interviews of the children had been recorded on video. If Nussbaum felt that

       only recording the audio of the child hearsay hearings would prejudice him, he

       should have requested that the trial court make video recordings of his cross-

       examination of the victims. Thus, Nussbaum has waived any argument

       regarding the failure of the trial court to ensure that video recordings of the

       child hearsay hearings were made.


[39]   However, Nussbaum’s appellate argument is not that the trial court erred by

       failing to make a video recording of the child hearsay hearing. His argument is

       that the trial court should have “level[ed] the playing field” and played only the

       audio portion of the forensic interviews. And Nussbaum affirmatively asked the

       trial court that the jury be allowed to hear only the audio portions of the

       recordings of the forensic interviews because the jury could only hear the audio

       of his cross-examination. Tr. Vol. 3, p. 159.

[40]   We see little difference between (1) arguing that the trial court erred by failing

       to make video recordings of the child hearsay hearings, and (2) arguing that

       only the audio from the recordings of the forensic interviews should be played

       because there was no video recording made of the child hearsay hearings. The

       basic premise underlying both arguments is that there was no video recording

       made of the child hearsay hearings. Yet Nussbaum did not object to the fact the

       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 18 of 20
       child hearsay hearings were recorded only on audio at the time the recordings

       were made. This is akin to invited error, and at the very least, constitutes waiver

       of the issue for purposes of appeal.


[41]   Waiver notwithstanding, we would still not conclude that the trial court’s

       decision to allow the jury to view the video recordings of the forensic interviews

       constituted reversible error. Surely it is the better practice for both the

       interviews and the child hearsay hearings to be recorded in the same manner,

       preferably on some form of video media. But we cannot say that allowing the

       jury to view the video recording of the forensic interviews amounted to

       reversible error. There is no indication that the cross-examination of the

       children was recorded only on audio just to hamstring the defense. In fact, there

       is little explanation in the record for why the child hearsay hearings were not

       video recorded. Be that as it may, we cannot say that the trial court abused its

       considerable discretion on evidentiary matters when it allowed the video

       recording of the forensic interviews to be played to the jury.


                                                 Conclusion
[42]   The trial court did not err in denying Nussbaum’s motion to dismiss based on

       the fact that the recordings of the 2012 interviews with S.G. and S.P. were

       unavailable. The substance of these interviews—that the children did not

       disclose any abuse at that time—was made known to the jury, and Nussbaum

       was permitted to question S.G. and S.P. regarding their prior inconsistent

       statements. He was also allowed to cross-examine those responsible for keeping

       track of this recording, thereby exposing the jury to their arguably negligent
       Court of Appeals of Indiana | Memorandum Decision 67A05-1704-CR-836 | April 20, 2018   Page 19 of 20
       handling of this evidence. More importantly, this evidence was only potentially

       useful impeachment evidence, and there is no indication that the State

       destroyed or misplaced the video of the 2012 interviews in bad faith.

       Furthermore, the trial court did not abuse its discretion by excluding evidence

       that S.G. had viewed pornography on her laptop because there is no indication

       as to when she viewed the pornography, and it is not uncommon for children to

       be exposed to pornography online. Thus, we conclude that this evidence would

       do little to dispel any inference of sexual innocence. Lastly, the trial court did

       not err in allowing the jury to view the video recordings of the forensic

       interviews despite the fact that only audio recordings of Nussbaum’s cross-

       examination of the victims at the child hearsay hearings was available.

       Accordingly, we affirm the judgment of the trial court.


[43]   Affirmed.


       Najam, J., and Barnes, J., concur.




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