MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 24 2017, 6:03 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Hershberger,                                       August 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1702-CR-320
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1508-F1-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017          Page 1 of 20
                                       Statement of the Case
[1]   Jason Hershberger appeals his convictions for six counts of child molesting, five

      as Level 1 felonies and one as a Class A felony, following a jury trial.

      Hershberger presents the following issues for our review:

              1.       Whether the trial court abused its discretion when it
                       admitted into evidence a videorecording of a child
                       witness’s forensic interview regarding the alleged
                       molestations.

              2.       Whether the trial court abused its discretion when it made
                       two other evidentiary rulings.

              3.       Whether the trial court abused its discretion when it struck
                       a remark by defense counsel during closing argument.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2009, Hershberger and Megan Allen had a one-month-long relationship.

      Allen became pregnant by Hershberger, and their daughter, C.H., was born on

      February 25, 2010. Allen had primary custody of C.H., and Hershberger

      exercised parenting time with C.H. every other weekend.


[4]   In 2012, Hershberger began dating Katie Schrock, who had four children,

      including son E.P., born June 3, 2009, and daughter I.H., born October 2, 2010.

      Shortly after he and Schrock started dating, Hershberger “signed I.’s birth

      certificate” as her father. Tr. Vol. 5 at 15. In October 2012, Schrock lost

      custody of her children, and Hershberger was given full custody of E.P. and
      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 2 of 20
      I.H.1 Hershberger lived with the children at his mother’s house in Walkerton.

      He and the children, including C.H. during visitations, slept in the basement of

      the house in one room that included three beds.


[5]   In July 2013, after visiting with Hershberger, C.H. complained to Allen of pain

      in her “front butt,”2 and Allen saw that the area around C.H.’s vagina was red.

      Tr. Vol. 3 at 62. Allen took C.H. to St. Joseph’s Regional Medical Center for a

      physical examination. There, Allen was instructed to contact the Department

      of Child Services (“DCS”), and Allen took C.H. to be interviewed at the Casie

      Center, a child advocacy center. Sally Wisthuff interviewed C.H. and found no

      indication that C.H. had been molested.


[6]   On December 2, 2014, I.H. left Hershberger’s house to visit with Schrock, and

      she told Schrock that her “front butt hurt.” Tr. Vol. 5 at 22. Schrock examined

      I.H.’s vaginal area and saw that it was “completely red down there.” Id.

      Accordingly, on December 5, Schrock took I.H. to a local hospital and

      requested that a rape kit and examination be conducted on I.H. Dr. Steven

      Spilger examined I.H. and found no indication of molestation. But, given the

      nature of Schrock’s concerns, Dr. Spilger contacted DCS, and Schrock was

      advised to take I.H. to the Casie Center for an interview.




      1
          At some point, Schrock began to exercise regular overnight visitation with I.H.
      2
          Both C.H. and I.H. refer to their vaginas as their “front butts.”


      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 3 of 20
[7]   In the course of her interview at the Casie Center, then four-year-old I.H. stated

      that Hershberger: put a “buzzy thing” in her “front butt”; put his finger in her

      “front butt”; and put his “dingy”3 in her mouth, in her “front butt,” and in her

      “back butt.” State’s Ex. 11. I.H. stated that Hershberger takes his “dingy” out

      of her mouth “when it drips.” Id. I.H. explained that Hershberger wiped off

      “the drips” with a blanket or towel, and she put her underwear and pants back

      on afterwards. Id.


[8]   After I.H.’s interview, DCS contacted Allen and advised her to take then-four-

      year-old C.H. to the Casie Center for another interview. After that interview,

      Allen took C.H. to a local hospital, where Brittany Troyer, a registered nurse,

      conducted a sexual assault examination of C.H. Nurse Troyer found that

      C.H.’s vagina and anus were red and irritated, and she found that C.H.’s anus

      was slightly dilated. Nurse Troyer concluded that C.H. may have been sexually

      abused.


[9]   On August 24, 2015, the State charged Hershberger with ten counts of child

      molesting, five as Class A felonies, and five as Level 1 felonies. Seven of the

      counts related to I.H., two counts related to C.H., and one count related to E.P.

      Prior to trial, the State dismissed three of the counts related to I.H., as well as

      the one count related to E.P. Also prior to trial, the State filed its




      3
          C.H. and I.H. both referred to Hershberger’s penis as a “dingy.”


      Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 4 of 20
                  notice of its intention to introduce the witness statements [of
                  I.H.] and audio/video recording in evidence should the trial
                  court find that the victim is an unavailable witness, and requests
                  a hearing on the matter. Upon such a finding being made by the
                  Court, the State will request that the Court conduct a hearing
                  outside of the jury's presence to determine the admissibility of her
                  statements and the videotape pursuant to I.C. [§] 35-37-4-6[, the
                  Protected Person Statute].


       Appellant’s App. Vol. 3 at 70.


[10]   On September 12 and October 7, 2016, the trial court conducted a hearing on

       the State’s motion under the Protected Person Statute and granted that motion.

       On December 12, the trial court conducted a jury trial, during which then-six-

       year-old C.H. took the stand and testified that Hershberger: put his “dingy” or

       “front” into her; made her touch his “dingy”; made her put his “dingy” in her

       mouth; put his “dingy” inside her butt; and put a “buzzy thing” inside her

       “front part.” Tr. Vol. 3 at 175-83. C.H. also testified that she saw Hershberger

       put his “dingy” in I.’s “back.” Id. at 186. Finally, C.H. identified two sex toys,

       including a vibrator, officers found in a drawer in Hershberger’s bedroom.

       C.H. explained that Hershberger used one of the sex toys by placing it “on” his

       “dingy” and “kind of like move[d] around a little bit.” 4 Id. at 204-05. I.H. did

       not testify, but the trial court admitted into evidence the State’s Exhibit 11,

       which is a videorecording of I.H.’s interview at the Casie Center.




       4
           In addition to a vibrator, officers found a sex toy that appears to have both a fake vagina and a fake anus.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017                Page 5 of 20
[11]   The jury found Hershberger guilty as charged. Accordingly, the trial court

       entered judgment of conviction for six counts of child molesting, five as Level 1

       felonies and one as a Class A felony. The court sentenced Hershberger to an

       aggregate term of ninety years. This appeal ensued.


                                      Discussion and Decision
                                   Issue One: Protected Person Statute

[12]   Hershberger first contends that the trial court abused its discretion when it

       admitted into evidence State’s Exhibit 11, the videorecording of I.H.’s interview

       at the Casie Center. The trial court is afforded wide discretion in ruling on the

       admissibility of evidence. Shinnock v. State, 76 N.E.3d 841, 842 (Ind. 2017). On

       appeal, evidentiary decisions are reviewed for abuse of discretion and are

       reversed only when the decision is clearly against the logic and effect of the

       facts and circumstances. Id. at 842-43.


[13]   The Protected Person Statute, Indiana Code Section 35-37-4-6 (2017), defines a

       “protected person” in relevant part as a child under the age of fourteen. The

       statute provides further in relevant part as follows:

               (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


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 6 of 20
                   (3) is not otherwise admissible in evidence;

          is admissible in evidence in a criminal action for an offense listed
          in subsection (a)[5] 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:

                            (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) 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:




5
    Subsection (a) includes “sex crimes,” which include child molesting. Ind. Code § 35-42-4-3.


Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017             Page 7 of 20
                                  (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.

        (f) If a protected person is unavailable to testify at the trial for a
        reason listed in subsection (e)(2)(B), a statement or videotape
        may be admitted in evidence under this section only if the
        protected person was available for cross-examination:

                 (1) at the hearing described in subsection (e)(1); or

                 (2) when the statement or videotape was made.


Id. (emphases added).



Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 8 of 20
[14]   Hershberger maintains that the trial court should have excluded State’s Exhibit

       11 from the evidence because the State made an insufficient showing that I.H.

       was unavailable to testify at trial and because the interview did not contain

       sufficient indicia of reliability to render it admissible. We address each

       contention in turn.


                                             Availability to Testify

[15]   During the hearing on the State’s motion under the Protected Person Statute,

       Darlene Radcliff, a licensed therapist with a bachelor’s degree in psychology

       and a master’s degree in social work, testified that she treated I.H. for post-

       traumatic stress disorder (“PTSD”) from February of 2015 until February or

       March of 2016. Radcliff testified further that “[I.H.] would, indeed, suffer

       extreme distress emotionally, if she were required to testify. She did not

       complete treatment, and she didn’t really receive the support that she needed

       during that time outside of treatment.” Tr. Vol. 2 at 88. And this colloquy

       ensued:

               Q:       Okay. Do you believe that if she is called upon to testify
                        in the trial of Jason Hershberger whether [sic] or not she
                        would be able to reasonably communicate the events?

               A:       I believe that it would be very likely that she would not be
                        able to speak or that she would be just unable to engage
                        and may, in fact, disassociate.

               Q:       Now, obviously, you were looking into the future based on
                        what you were talking about, but again, disassociate, is
                        that the taking herself out of the position as it were?


       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 9 of 20
               A:       Yes. When confronted with a trigger or a reminder of
                        anything traumatic children can become very
                        overwhelmed in the moment and unable to function,
                        unable to communicate, as they normally would have in
                        other settings where they felt safe.


       Id. at 88-89.


[16]   Also at the hearing, Dr. Jeff Burnett, a psychologist, testified that he saw I.H.

       on two occasions in August of 2016. Dr. Burnett testified that he believed I.H.

       would “be likely to experience significant emotional distress” if she were to

       testify at trial. Id. at 128. But Dr. Burnett did not have a “firm opinion” about

       I.H.’s ability to “reasonably communicate” if called to testify at trial. Id.


[17]   Hershberger contends that, “[b]ecause I.H. testified at the protected person

       hearing in front of Mr. Hershberger without suffering apparent distress and Dr.

       [Burnett] could form no opinion as to whether I.H. would be able to

       communicate at trial, I.H. was available as a witness for trial.” Appellant’s Br.

       at 21-22. But that contention ignores Radcliff’s testimony that, if called to

       testify at trial, I.H. would suffer “extreme distress,” would likely be unable to

       speak or engage, and “may . . . disassociate.” Tr. Vol. 2 at 88-89. We cannot

       say that the trial court abused its discretion when it found that I.H. was

       unavailable to testify under the Protected Person Statute.


                                             Indicia of Reliability

[18]   Hershberger asserts that I.H.’s forensic interview does not have sufficient

       indicia of reliability to be admissible under the Protected Person Statute. First,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 10 of 20
       Hershberger maintains that, because there is no evidence showing when the

       alleged molestations occurred other than sometime between April 1, 2012, and

       December 8, 2014, there is no way to know whether I.H.’s statements to the

       forensic interviewer on December 8, 2014, were made days, weeks, months, or

       years after the molestations. Citing our Supreme Court’s opinion in Carpenter v.

       State, 786 N.E.2d 696, 703 (Ind. 2003), Hershberger contends that reliability is

       lacking because “too much time” may have passed between the time of the

       statement and the alleged molestations. Appellant’s Br. at 23. But in Carpenter,

       there was “no evidence at all as to when the alleged molestation occurred.” 786

       N.E.2d at 703 (emphasis added). In contrast, here, I.H. gave her interview at

       the Casie Center only a few days after leaving Hershberger’s house and

       complaining to Schrock that her “front butt hurt.” Tr. Vol. 5 at 22. And

       Schrock observed that I.H.’s vaginal area was “completely red” at that time. Id.

       Thus, the evidence supports a determination that Hershberger had recently

       molested I.H. at the time she gave the interview at the Casie Center.


[19]   Hershberger also contends that, given that “I.H.’s mother took her in for a ‘rape

       exam’ just after getting married also leaves open the risk that the mother may

       have coached I.H. or attempted to exploit her by fabricating a complaint of

       sexual assault in an effort to better her chances of regaining custody over I.H.”

       Appellant’s Br. at 23. But Hershberger does not support that contention with

       evidence of coaching or Schrock’s ulterior motives, and it is mere speculation.


[20]   Finally, Hershberger asserts that “the statement itself shows plainly that it is

       lacking in reliability” given that I.H. “changed her answers repeatedly and the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 11 of 20
interviewer occasionally resorted to suggestive questioning.” Appellant’s Br. at

23. But, as the State points out, the trial court considered those points and

concluded as follows:


        Given the range of dates (from 2012 to 2014) contained in the
        charging information, I.H.’s December, 2014 interview may have
        been conducted at a time remote from some of the charged
        offenses. Nonetheless, it appears that the interview was
        conducted shortly after I.H.’s initial disclosure to her mother.[]
        There was little time for coaching the child between the time of
        her initial disclosure and the interview at the CASIE Center.
        More significantly, there was no evidence of coaching apparent
        in the interview. I.H.’s disclosure was not a concise, rehearsed
        narrative offered by a child eager to talk about abuse. I.H.
        meandered in her conversation. She became distracted. She led
        the interviewer through a variety topics before returning to a
        discussion of the alleged abuse.

        Notwithstanding the twists and turns the interview sometimes
        took, the interviewer seemed to be following a specific protocol
        as she spoke with I.H. First, Ms. Verduin first built rapport with
        the child, then she showed I.[H.] pictures of a boy and a girl.
        Through questioning, Ms. Verduin determined what words I.[H.]
        used for the parts of the body. The interviewer asked I.[H.] about
        touches ( e.g. “Are there any parts on the girl’s body that nobody
        should touch?” “Has anybody ever touched you?”). At some
        point during this inquiry, I.H. disclosed that Jason had touched
        her “front butt.” Ms. Verduin then tried to use open-ended
        questions as she moved into an inquiry about the abuse. At times
        Ms. Verduin had to resort to asking closed questions. These
        direct questions did not, however, suggest specific answers.[] In
        light of I.H.’s age at the time of the interview, the Court does not
        find that the interviewer’s use of direct questions made the child’s
        statement unreliable.



Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 12 of 20
               Ultimately the most persuasive evidence of reliability came from
               the words I.H. used and the details she provided. She told her
               story in fragments, in a young child’s way, using a young child’s
               words. Threaded through her disclosure were idiosyncratic
               descriptions of what she claimed had happened: She described
               what was apparently a sexual device as a “buzzy” thing; she
               described the “drip” of ejaculate; and she repeatedly reminded
               her interviewer that there were things that were not to be
               discussed. These idiosyncratic details, details that were relayed
               in the developmentally appropriate vocabulary of the child, have
               led the Court to conclude that I.H.’s statements were reliable.


       Appellant’s App. Vol. 2 at 225-27.


[21]   We agree with the trial court’s conclusion that I.H.’s interview contains

       sufficient indicia of reliability to be admissible under the Protected Person

       Statute. To the extent Hershberger avers that I.H.’s occasional nonsensical

       responses render the entire interview unreliable, the trial court disagreed, and

       the court’s reasoning is sound. We hold that the trial court did not abuse its

       discretion when it admitted into evidence the videorecorded interview I.H. gave

       at the Casie Center.


                                 Issue Two: Other Evidentiary Rulings

[22]   Hershberger also contends that the trial court abused its discretion when it

       admitted into evidence two photographs of a sex toy officers found in his

       bedroom and when it prohibited him from testifying to a statement he had

       previously made to I.H. We address each contention in turn. Again, we review

       the trial court’s evidentiary rulings for an abuse of discretion. See Shinnock, 76

       N.E.3d at 842.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 13 of 20
                                                   Photographs

[23]   Hershberger maintains that the trial court abused its discretion when it

       admitted, over his objections, two photographs of a sex toy. State’s Exhibit 10

       is a photograph showing a sex toy and a vibrator lying in a drawer among

       clothing. State’s Exhibit 21 is a photograph showing the underside of the sex

       toy revealing two holes that appear to serve as a fake vagina and a fake anus.

       The depiction of the sex toy in Exhibit 10 does not show the holes, as the holes

       are facing down in that photograph. Only Exhibit 21 shows the two holes in

       the sex toy. Hershberger asserts that the trial court abused its discretion when it

       admitted the photographs because they are not relevant and because any

       relevance is outweighed by the risk of unfair prejudice. We cannot agree.


[24]   As the State correctly points out, the photographs of the sex toy corroborate

       C.H.’s testimony that she saw Hershberger place the sex toy “on” his “dingy”

       and “kind of like move around a little bit.” Tr. Vol. 3 at 204-05. And the

       photographs depict different things—Exhibit 10 shows where and how the sex

       toy was stored in a drawer in the bedroom, and Exhibit 21 shows the two holes

       in the bottom of the sex toy. The photographs are highly relevant in that a

       typical six-year-old child would be unfamiliar with such a device absent the

       exposure to it she described, and that relevance is not substantially outweighed

       by prejudice to Hershberger. We hold that the trial court did not abuse its

       discretion when it admitted into evidence State’s Exhibits 10 and 21.


                                                     Hearsay

[25]   Hershberger frames his contention on this issue as follows:
       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 14 of 20
               In an effort to explain how the children became familiar with and
               adopted the term “buzzy thing,” Mr. Hershberger’s counsel
               attempted to ask him questions during his testimony about things
               he said to I.H. on an occasion where he discovered her in
               possession of the vibrator. In sustaining the State’s objection the
               trial court correctly defined hearsay when it ruled “It’s an out of
               court statement offered for the truth of the matter asserted
               therein. I don’t think there’s an exception for whether it’s what
               you said. I’m sustaining the objection.” While this explanation
               is factually correct, it overlooks the fact that “[a]ny statement not
               offered for purposes of proving the facts asserted therein simply
               [are] not hearsay, and therefore cannot be subject to any hearsay
               exception.” Byrd v. State, 579 N.E.2d 457, 463 (Ind. Ct. App.
               1991) (citing Ballard’s Estate v. Ballard, 434 N.E.2d 136 (Ind. Ct.
               App. 1982)).

               The intended purpose of Mr. Hershberger’s testimony was to
               explain an alternative theory as to how the children became
               familiar with the vibrator that he was accused of using during
               acts of child molestation. His testimony concerning his own out
               of court statements was not being offered for the purpose of
               proving the facts asserted in those out of court statements, but
               rather to show the origins of the term “buzzy thing.”


       Appellant’s Br. at 16.


[26]   As the State correctly points out, Hershberger made no argument to the trial

       court that the proffered statement was not hearsay because it was not being

       offered to prove the truth of the matter asserted. See Evid. R. 801(c)(2). He




       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 15 of 20
       makes this contention for the first time on appeal, and it is, therefore, waived. 6

       Davis v. State, 74 N.E.3d 1215, 1220 (Ind. Ct. App. 2017).


                                      Issue Three: Closing Argument

[27]   Finally, Hershberger contends that the trial court abused its discretion when,

       during closing argument, it sustained the State’s objection when his defense

       counsel “started to talk about the significance of the fact that DNA from a

       male, other than Mr. Hershberger, was discovered on C.H.’s underwear.”

       Appellant’s Br. at 17. The proper scope of closing argument is within the trial

       court’s sound discretion. Walls v. State, 993 N.E.2d 262, 269 (Ind. Ct. App.

       2013), trans. denied. We will not find that the trial court abused its discretion

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

       circumstances before it. Id.


[28]   During his closing argument, defense counsel stated as follows:


               However, they did find an unknown male’s DNA on [C.H.’s]
               underwear. On her underwear. And that’s something that we
               didn’t hear anything in the State’s argument about, well, that’s
               really not something we want to talk about. Some other person who
               might have done this or . . .




       6
        Hershberger makes no contention on appeal that the proffered statements were not hearsay under Indiana
       Evidence Rule 801(d).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017      Page 16 of 20
Tr. Vol. 6 at 105 (emphasis added). The State interrupted defense counsel and

asked to approach the bench, and the following colloquy transpired during a

side bar conference:


        [State]:      That’s certainly not a fact in evidence, and if he
        was, at this point, going to argue to the jury that there is someone
        else who could have molested this child, there should have been
        a notice that was filed and evidence presented to that effect.

        [Court]:         Response?

        [Defense counsel]: All I’m talking about is the test result, which she
        put into evidence. I think I’m able to make—

        [Court]:     I don’t think you can argue inferences this child was
        molested, without running [afoul of] [Evidence Rule] 412. You
        can argue that the State didn’t say anything about it.

        [Defense counsel]: All right.

        [Court]:      And kind of what you’ve done so far. There’s just,
        you know, lurking out there [sic], and they never addressed it.
        But I don’t think you can do anything, going to that someone
        else was [the] molester.

        [State]:     I would ask for an admonishment to the jury not to
        consider that someone else might have done this.

        [Court]:         I don’t think he got that far to suggesting someone
        else.

        [State]:         That’s what he started to say.

        [Court]:      I’m sorry. I didn’t write it down totally. What
        specifically had you just last said?

Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 17 of 20
        [Defense counsel]: I can’t remember. I’m sorry.

        [State]:         I believe he specifically said that someone else . . .

                                                ***

        [State]:         Someone else may have done this to this child.

        [Court]:         All right. I will admonish them.


Id. at 105-06 (emphasis added). The trial court then admonished the jurors as

follows: “You are admonished and directed to ignore and not consider in any

way [defense counsel’s] last statement.” Id. at 106. Defense counsel then

requested another side bar conference, and this colloquy ensued:


        [Defense counsel]: I think they are able to. I think they should be
        able to consider the fact that there’s some other male’s DNA on there.

        [Court]:         Okay. Regarding someone.

        [Defense counsel]: Right.

        [Court]:     I just said, the last statement. I don’t think you
        want me to say, again, regarding whether someone else molested
        her. But I will be happy to say that.

        [Defense counsel]: Okay.

        [Court]:         I just thought it would be better.

        [Defense counsel]: Yeah. Yeah. Okay.




Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 18 of 20
       Id. at 107 (emphasis added). Then the trial court stated: “You are admonished

       to ignore [defense counsel’s] statement suggesting or calling into question

       whether anyone else might have molested C.[H.] Id.


[29]   On appeal, in a footnote, Hershberger points out that Evidence Rule

       412(b)(1)(A) explicitly permits “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.” And

       this court has observed that Evidence Rule 412(b)(1)(A) “contemplates that if

       the State” presents evidence of DNA belonging to an unknown male to the

       jury, a defendant is then “allowed to present evidence showing that the DNA

       came from someone else.” Pribie v. State, 46 N.E.3d 1241, 1248 (Ind. Ct. App.

       2015), trans. denied. Thus, Hershberger would have been permitted to present

       evidence that someone other than him molested C.H.


[30]   But Hershberger made no attempt to present evidence that someone else

       molested C.H. And, during closing argument, in response to the State’s

       objection, defense counsel argued only that the jury “should be able to consider

       the fact that there’s some other male’s DNA on there.” Tr. Vol. 6 at 107.

       Defense counsel did not argue that he should have been able to make an

       inference based on that evidence that someone other than Hershberger molested

       C.H. The trial court explicitly permitted defense counsel to comment on the

       evidence that an unknown male’s DNA was found on C.H.’s underwear. For

       the first time on appeal, Hershberger asserts that the trial court should have

       permitted his defense counsel to “make an argument . . . that someone other

       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 19 of 20
       than Mr. Hershberger may have been responsible for the molestation of these

       young children.” Appellant’s Br. at 18. Hershberger has waived this issue on

       appeal. Davis, 74 N.E.3d at 1220.


                                                   Conclusion

[31]   The trial court did not abuse its discretion when it admitted into evidence the

       videorecording of I.H.’s interview at the Casie Center under the Protected

       Person Statute. The trial court did not abuse its discretion when it admitted

       into evidence two photographs of a sex toy, State’s Exhibits 10 and 21. And

       Hershberger has waived for our review his contentions that the trial court

       abused its discretion both when it excluded hearsay testimony and when it

       restricted defense counsel’s closing argument. Accordingly, we affirm

       Hershberger’s convictions.


[32]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1702-CR-320 | August 24, 2017   Page 20 of 20
