MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Jan 23 2018, 10:01 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Teresa M. Meyers                                         Curtis T. Hill, Jr.
Osceola, Indiana                                         Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony L. Gilliam,                                      January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1706-CR-1347
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1508-F1-4



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018             Page 1 of 16
                                               Case Summary
[1]   Anthony Gilliam (“Gilliam”) appeals his convictions of two counts of child

      molesting, as Level 1 felonies.1


[2]   We affirm.



                                                         Issues
[3]   Gilliam raises two issues on appeal, namely:


                 I.       Whether the trial court abused its discretion when it
                          admitted into evidence the video recording of the child-
                          victim’s forensic interview.


                 II.      Whether the State presented sufficient evidence to sustain
                          Gilliam’s two Level 1 felony convictions of child
                          molesting.


                                Facts and Procedural History
[4]   In early 2015, Keisha Shorter (“Shorter”) and her several children, including

      then-nine-year-old M.S., lived in a two-story home on Aspenwald Street in

      Elkhart. Several adult males, including Gilliam, also lived in the home.

      Gilliam was a long-time friend of Shorter. M.S. referred to Gilliam as “Tony.”

      Tr. Vol. III at 104.




      1
          Ind. Code § 35-42-4-3(a)(1); I.C. § 35-31.5-2-221.5(2).


      Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 2 of 16
[5]   Gilliam moved into Shorter’s home in early February of 2015, and remained

      there for a few months until Shorter demanded that Gilliam leave the home

      after learning from her daughters M.S. and E.L. of incidents of Gilliam

      inappropriately touching M.S. Shorter contacted her case worker and the

      police to notify them of the incidents. On May 1, 2015, shortly after the

      incidents, M.S. and E.L. both participated in separate forensic interviews

      concerning the incidents involving M.S. and Gilliam. Shorter then spoke with

      Lieutenant James Anderson (“Lt. Anderson”) of the Elkhart police regarding

      the incidents. The police investigation included locating a photograph of

      Gilliam from the Bureau of Motor Vehicles, which Shorter identified.


[6]   On August 4, 2015, the State charged Gilliam with two counts of Level 1 felony

      child molesting, each alleging that Gilliam performed or submitted to sexual

      intercourse or other sexual conduct with M.S. The State subsequently amended

      the information, on both counts, to allege only that Gilliam performed or

      submitted to other sexual conduct with M.S., deleting the sexual intercourse

      allegation. In a pre-trial conference held on April 27, 2017, the State informed

      the court and defense counsel that the State may need to conduct a protected

      person hearing during trial, as M.S. was still under the age of fourteen. Defense

      counsel did not raise an objection at that time.


[7]   Gilliam’s jury trial began on May 8, 2017. During the presentation of the

      State’s case-in-chief, M.S.—who was eleven years old at the time—testified

      reluctantly. She testified that “something happened” with Tony when he came

      into her bedroom and laid down “right next to” her. Tr. Vol. III at 105-108.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 3 of 16
      She testified that “a grown-up boy” who lived with her on Aspenwald Street

      touched her “on a part that [sic] nobody should touch a girl.” Id. at 121-22.

      She testified that she did not “want to tell” who touched her. Id. However, she

      testified that, when she was in the boys’ bedroom with no one other than

      Gilliam, a “grown-up boy” touched her “in a part that [sic] girls shouldn’t be

      touched.” Id. at 125. M.S. said she did not remember how she and Gilliam got

      from her bedroom to the boys’ bedroom that night.


[8]   M.S. testified that, soon after the incidents, she told her mother and sister, E.L.,

      about it, but that she did not remember what she told them. She stated that her

      mother “kick[ed]” Gilliam out of the house after M.S. told her mother about

      the incidents. Id. at 114. M.S. testified that she also remembered discussing the

      incidents soon thereafter with a “grown-up girl” in a room “with a couch and

      some chairs,” but she stated that she did not remember what they talked about.

      Id. at 117-18. M.S. testified that she would have remembered the incident

      better closer to the time when it happened, i.e., approximately two years prior

      to the trial. Gilliam then had the opportunity to, and briefly did, cross-examine

      M.S.


[9]   Following M.S.’s testimony, the parties discussed the video from the forensic

      interview of M.S., and the State requested a protected person hearing, pursuant

      to the Protected Person Statute (“PPS”), Indiana Code Section 35-37-4-6. The

      trial court, outside the presence of the jury, held a PPS hearing over Gilliam’s

      objections, and heard testimony from M.S. and Julie Reed (“Reed”), the

      forensic interviewer who interviewed M.S. about the incidents with Gilliam. At

      Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 4 of 16
       the PPS hearing, M.S. testified under oath that she agreed to be truthful and

       that she understood what it meant to be truthful. She testified that she talked to

       a “grown-up lady” in a room with a blue couch about “what happened with

       Tony.” Id. at 136. She testified that she was “correct and truthful” when she

       went to the Child Advocacy Center2 and spoke with the lady there. Id. She

       also testified that it was “easier to remember things” during the interview,

       which was closer in time to the incidents with Gilliam, than at trial two years

       later. Id. And M.S. testified that there were some things she did not remember

       now that she might have told the lady in the interview. Id. at 137.


[10]   Gilliam was given the opportunity to cross-examine M.S. at the PPS hearing

       but declined to do so. However, defense counsel argued that the video of the

       interview was inadmissible under the PPS, Indiana Rule of Evidence 403, and

       the rule against hearsay. The State argued the video was admissible under the

       PPS and as a recorded recollection exception to the hearsay rule. The trial

       court found that the video was admissible under the PPS and that its probative

       value outweighed any prejudice to Gilliam. The court offered Gilliam the

       opportunity to have a transcript of the PPS hearing admitted into evidence,

       pursuant to the statute, but Gilliam declined. Reed then testified before the

       jury, over defense objections, regarding her forensic interview with M.S. on

       May 1, 2015, and the trial court admitted the video of the forensic interview



       2
         That center is located in the “CAPS”—defined by Reed as “Child and Parent Services”—building in
       Elkhart. Id. at 182, 185-86, 224. Therefore, throughout the trial, the parties and witnesses state that M.S.’s
       forensic interview took place “at CAPS.” See, e.g., id. at 136.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018             Page 5 of 16
       into evidence. State’s Ex. 1. The video was then played for the jury, following

       the trial court’s admonishment to the jury concerning the video.


[11]   On May 10, the jury found Gilliam guilty on both of the amended counts of

       child molesting. On May 25, the trial court sentenced Gilliam to concurrent

       terms of thirty-five years’ imprisonment, with five years of each sentence

       suspended to probation. Gilliam now appeals his convictions.



                                  Discussion and Decision
       Admissibility of Recording of Forensic Interview of M.S.
                                              Standard of Review


[12]   Gilliam contends that the trial court erred in admitting M.S.’s video-recorded

       interview into evidence when M.S. also provided live testimony at trial.


               We review a trial court’s evidentiary rulings for an abuse of
               discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005).
               An abuse of discretion occurs if the trial court’s decision is clearly
               against the logic and effect of the facts and circumstances before
               the court or if it misinterprets the law. Carpenter v. State, 786
               N.E.2d 696, 703 (Ind. 2003). Our supreme court also has
               observed that the Protected Person Statute (“PPS”), under which
               the trial court here admitted the videotape, “impinges upon the
               ordinary evidentiary regime such that we believe a trial court's
               responsibilities thereunder carry with them ... a special level of
               judicial responsibility.” Id.


       Cox v. State, 937 N.E.2d 874, 876 (Ind. Ct. App. 2010) (internal quotation and

       citation omitted), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 6 of 16
                                              Hearsay Exceptions


[13]   The PPS states, in relevant part:


               (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 [certain
               enumerated offenses, including child molesting] 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;


                       that the time, content, and circumstances of the statement
                       or videotape provide sufficient indications of reliability.
       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 7 of 16
                (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.


        (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.



Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 8 of 16
       I.C. § 35-37-4-6. Thus, the PPS provides an exception to the rule against

       hearsay by allowing, under the statutorily-specified conditions, the admission

       into evidence of an out-of-court statement for the truth of the matter stated.


[14]   Since M.S. was a child younger than age fourteen—both at the time of the

       crime and at the time of trial—she is a “protected person” under the statute.

       I.C. § 35-37-4-6(c)(1). And the crime of child molesting is listed as an offense

       covered by the statute. I.C. § 35-37-4-6(a)(1); I.C. § 35-42-4-3. Therefore, the

       PPS is applicable to this case.3


[15]   However, Gilliam maintains that the video recording of M.S.’s interview was

       not admissible under the PPS because our Supreme Court has interpreted the

       statute as inapplicable when the protected person testifies live at trial.4 In

       support, he cites Tyler v. State, 903 N.E.2d 463 (Ind. 2009), where our Supreme

       Court acknowledged that the PPS


                on its face provides that prior videotaped testimony may be
                admitted even if the protected person testifies at the trial.
                Specifically, the statute provides that a protected person’s
                statement or videotape is admissible if that person testifies at trial
                as long as the court finds that the statement provides “sufficient




       3
         Gilliam does not contend that he was not given proper notice under the statute, that the court failed to give
       the proper jury instruction required by the statute, or that the PPS hearing failed to follow statutorily-required
       procedures. Id.
       4
         Gilliam does not challenge the trial court’s finding that the video-recording of M.S.’s interview provides
       sufficient indications of reliability pursuant to the PPS.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018              Page 9 of 16
               indications of reliability” and the defendant is given notice. I.C.
               § 35–37–4–6(e).


       Id. at 467. Nevertheless, the supreme court “exercise[d] its supervisory powers”

       to hold that, if both the recorded and the live testimonies are consistent and

       otherwise admissible,


               testimony of a protected person may be presented in open court
               or by prerecorded statement through the PPS, but not both
               except as authorized under the Rules of Evidence. If the person
               is able to testify live without serious emotional distress such that
               the protected person cannot reasonably communicate, that is
               clearly preferable.


       Id. The court noted that “consistent” testimony is cumulative and, therefore,

       has the potential to cause unfair prejudice. Id.


[16]   Here, M.S.’s recorded and live testimonies are not “consistent” within the

       meaning of Tyler because they are not cumulative. M.S.’s video-taped

       testimony provided key additional information that was missing from her live

       testimony; i.e., testimony that Gilliam committed “other sexual conduct” by

       “penetration of the sex organ … of a person by an object.” I.C. § 35-42-4-

       3(a)(1); I.C. § 35-31.5-2-221.5(2). See A.R.M. v. State, 968 N.E.2d 820, 826 (Ind.

       Ct. App. 2012) (video-taped interview regarding alleged child molestation

       admissible under PPS where child-victim also testified live at trial but could not

       recall the incident); cf. Cox, 937 N.E.2d at 876 (video of interview not made

       under oath found not admissible under PPS where child testified at trial only

       that he understood the difference between truth and a lie; thus, there was no

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 10 of 16
       sworn statement regarding the truth of the video, which was the only evidence

       regarding the crime).


[17]   Moreover, even if the video-taped interview was inadmissible under the PPS as

       interpreted by Tyler, it was nevertheless admissible under Indiana Rule of

       Evidence 803(5) as a recorded recollection. Tyler, 903 N.E.2d at 467 (noting

       prerecorded statements inadmissible through PPS may nevertheless be

       admissible under Rules of Evidence). A record that:


                 (A) is on a matter the witness once knew about but now cannot
                 recall well enough to testify fully and accurately;


                 (B) was made or adopted by the witness when the matter was
                 fresh in the witness’s memory; and


                 (C) accurately reflects the witness’s knowledge


       is a recorded recollection not excluded by the rule against hearsay. Ind.

       Evidence Rule 803(5). However, in order for such a record to be admissible

       under that hearsay exception, “the witness must be able to ‘vouch for the

       accuracy of the prior [statement].’” Kubsch v. State, 866 N.E.2d 726, 734 (Ind.

       2007) (quoting Gee v. State, 389 N.E.2d 303, 309 (Ind. 1979)); see also Williams v.

       State, 698 N.E.2d 848, 850 n.4 (Ind. Ct. App. 1998) (noting that, “before a

       statement can be admitted under the recorded recollection hearsay exception,

       certain foundational requirements must be met, including some

       acknowledgment that the statement was accurate when it was made”), trans.

       denied.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 11 of 16
[18]   Here, M.S. testified under oath that she knew about the incidents involving

       Gilliam touching her “in a part that [sic] girls shouldn’t be touched,” Tr. Vol.

       III at 125, and that she truthfully told the forensic interviewer about it soon

       after the incidents. She also testified that she remembered the incidents better at

       the time of the recorded interview than at the time of trial. And she testified

       that there were some things she did not remember at the time of trial that she

       may have told Reed at the interview. That is a sufficient foundation to admit

       M.S.’s recorded interview under the recorded recollection exception to the

       hearsay requirement. See Williams, 698 N.E.2d at 850-51 & n.4 (noting child’s

       videotaped interview was admissible into evidence under recorded recollection

       exception to hearsay rule).


                                             Right to Confront Witness


[19]   Gilliam also maintains that the admission of the video of M.S.’s forensic

       interview violated his “constitutional right to confrontation.”5 Appellant’s Br.

       at 4. Both the federal and state constitutions provide for the right of a criminal

       defendant to be confronted with the witnesses against him. U.S. Const.,

       amend. VI; Ind. Const. art. 1, § 13. Thus, “[t]estimonial statements of

       witnesses absent from trial [are admissible] only where the declarant is

       unavailable, and only where the defendant has had a prior opportunity to cross-

       examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). However, “when



       5
         Gilliam does not state whether he raises his confrontation claim under the federal constitution or the state
       constitution.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018           Page 12 of 16
       the declarant appears for cross-examination at trial, the Confrontation Clause

       places no constraints at all on the use of his prior testimonial statements.” Id. at

       59 n.9.


[20]   Here, M.S. testified at trial and was subject to cross-examination by Gilliam.

       M.S. also testified and was available for cross-examination during the in-trial

       PPS hearing, although Gilliam declined to exercise his right to cross-examine at

       that time. Thus, Gilliam was provided the opportunity to confront M.S. And,

       contrary to Gilliam’s assertions, the confrontation clause does not require an

       opportunity to cross-examine at the time of the prior testimonial statement—

       here, the forensic interview—where the declarant testified at the PPS hearing or

       trial and the defendant had the opportunity to cross-examine the declarant.

       Perryman v. State, 80 N.E.3d 234, 245 (Ind. Ct. App. 2017); see also Mishler v.

       State, 894 N.E.2d 1095, 1102 (Ind. Ct. App. 2008) (“[A]s long as the declarant

       testifies, a defendant’s right to confront witnesses against him is not violated

       even if the declarant is unable to recall the events in question.”). This is true

       whether the prior testimony is admitted under the PPS, Perryman, 80 N.E.2d at

       245, or under the recorded recollection exception to the hearsay rule, Williams,

       698 N.E.2d at 851.


[21]   The trial court did not abuse its discretion by admitting M.S.’s video-recorded

       forensic interview into evidence.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 13 of 16
                                  Sufficiency of the Evidence
[22]   Gilliam challenges the sufficiency of the evidence to support his convictions.

       Our standard of review of the sufficiency of the evidence is well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.

       Moreover, “[a] conviction may be based on circumstantial evidence alone so

       long as there are reasonable inferences enabling the factfinder to find the

       defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d

       385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.


[23]   To support Gilliam’s convictions of child molesting, as Level 1 felonies, the

       State was required to prove that Gilliam was over twenty-one years of age and,

       with a child under age fourteen, knowingly or intentionally engaged in “other

       sexual conduct” by committing “an act involving … the penetration of the sex

       organ or anus of a person by an object.” I.C. § 35-42-4-3(a)(1); I.C. § 35-31.5-2-

       221.5(2). The penetration element may be proven by evidence of any

       penetration of the female sex organ, including external genitalia, and proof of

       penetration of the vagina is not required. See, e.g., Morales v. State, 19 N.E.3d

       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 14 of 16
       292, 298 (Ind. Ct. App. 2014), trans. denied. “To sustain a conviction for child

       molesting …, proof of the ‘slightest penetration’ of the female sex organ … is

       sufficient,” and penetration may be “inferred from circumstantial evidence.”

       Mastin v. State, 966 N.E.2d 197, 202 (Ind. Ct. App. 2012) (quoting Dinger v.

       State, 540 N.E.2d 587, 590 (Ind. 1990)), trans. denied. Moreover, a finger is “an

       object” within the meaning of Indiana Code Section 35-31.5-2-221.5(2). See

       Gasper v. State, 833 N.E.2d 1036, 1044 (Ind. Ct. App. 2005) (citing Stewart v.

       State, 555 N.E.2d 121, 126 (Ind. 1990)), trans. denied.


[24]   Here, it is undisputed that, at the time of the incidents, Gilliam was over age

       twenty-one and M.S. was under age fourteen. Furthermore, M.S. testified at

       trial that, when she was in the boys’ bedroom with no one other than Gilliam, a

       “grown-up boy” touched her “in a part that [sic] girls shouldn’t be touched.”

       Id. at 125. And she stated in the forensic interview that, while she was living on

       Aspenwald Street, “Tony” twice in the same day put his hand in her pants and

       inside her underwear, touched her “inside the crack,” and moved his fingers.

       State’s Ex. 1 at 16:59 - 17:08 and 24:25 - 24:32. M.S.’s pre-recorded statement

       and live testimony at trial were sufficient evidence to sustain Gilliam’s

       convictions. See Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct. App.

       2015) (quoting Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001)) (“‘[a] molested

       child’s uncorroborated testimony is sufficient to sustain a conviction.’”); Stetler

       v. State, 972 N.E.2d 404, 407 (Ind. Ct. App. 2012) (noting that a child witness

       does not have to give a “detailed anatomical description of penetration;” it is




       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 15 of 16
       sufficient if the victim’s “limited sexual vocabulary” described the act of

       penetration), trans. denied.



                                               Conclusion
[25]   The trial court did not abuse its discretion when it admitted M.S.’s video-

       recorded forensic interview into evidence, as it was admissible both under the

       PPS and as a recorded recollection exception to the hearsay rule. And the State

       provided sufficient evidence to support Gilliam’s convictions of child molesting.


[26]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018   Page 16 of 16
