      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                             FILED
      this Memorandum Decision shall not be                                         Jan 25 2019, 6:45 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
      Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Brooklyn, Indiana                                        Kelly A. Loy
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Kevin Snapp,                                             January 25, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1041
              v.                                               Appeal from the Vigo Superior
                                                               Court
      State of Indiana,                                        The Honorable Michael J. Lewis,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               84D06-1412-FA-3138



      Mathias, Judge.


[1]   Following a jury trial in Vigo Superior Court, Kevin Snapp was convicted of

      four counts of Class A felony child molesting, four counts of Level 1 felony

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019                   Page 1 of 9
      child molesting, five counts of Class C felony child molesting, five counts of

      Level 4 felony child molesting, five counts of Class B felony vicarious sexual

      conduct, and five counts of Level 3 felony vicarious sexual conduct. Snapp

      appeals and presents one issue, which we restate as whether the trial court

      abused its discretion in admitting into evidence the videotaped forensic

      interviews of the five victims even though the victims testified at trial.

[2]   We affirm.


                                 Facts and Procedural History
[3]   At the time relevant to this appeal, Snapp was friends with Shelly S. (“Shelly”)

      and her family. Shelly thought of Snapp as a brother, and her daughters A.S.,

      born in May 2008, and S.S., born in August 2009, considered Snapp to be their

      uncle. In 2011, Snapp began to babysit Shelly’s children and later the children

      of Shelly’s coworker Jamie R. (“Jamie”): daughter G.C., born in January 2005;

      daughter A.R., born in October 2008; and son E.O., born in June 2010. In

      2014, Snapp watched both Shelly and Jamie’s children overnight while they

      worked.


[4]   Snapp subjected the children to horrific, repeated sexual abuse. He fondled all

      of the girls and inserted his finger into their sexual organs. He also offered the

      children treats if they would perform oral sex on S.S. and made the girls

      perform oral sex on each other. Snapp had the four girls perform oral sex on

      E.O. Snapp also performed oral sex on all five children, and he made S.S., A.S.,

      A.R. and E.O. perform oral sex on him. Snapp took photographs and video

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 2 of 9
      recordings of the children naked and engaged in various sexual acts using a

      mobile phone. G.C. also saw obscene anime cartoons on Snapp’s computer. In

      an effort to hide his sexual abuse of the children, Snapp threatened the children

      that if they told anyone what happened, they would get into trouble.


[5]   In November 2014, Shelly’s children disclosed the abuse to their mother, and

      she immediately informed Jamie. At the time of the disclosure, A.S. was six

      years old, S.S. was five, G.C. was nine, A.R. was six, and E.O. was four. Shelly

      and Jamie reported the abuse to the police and took their children to the

      hospital for examination. On December 11 and 12, 2014, all five children were

      individually interviewed at the Child Advocacy Center by a caseworker from

      the Department of Child Services.


[6]   On December 18, 2014, the police executed a search warrant on Snapp’s

      apartment and arrested Snapp. During interrogation by the police, Snapp

      admitted that his username for the computers in his apartment complex’s

      computer lab was “Ksnapp” and that he used a username for an email address

      and a YouTube account of “snappator” or “snapperator2” Ex. Vol., State’s Ex.

      30 at 6:40, 14:40, 15:25. Snapp also admitted that he once had a small purple

      smartphone that he used to view pornography but claimed that he had disposed

      of that phone. He further admitted that he had some child pornography sent via

      email on that same cell phone.


[7]   Based on the information garnered during Snapp’s interrogation, the police

      searched the computer lab in Snapp’s apartment complex. There, they found a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 3 of 9
      computer with a password-protected user profile with the username “KSnapp.”

      This profile contained image files depicting anime cartoon children in sexually

      explicit poses with bare breasts. Id. at State’s Exs. 25–28. This same profile also

      contained an image showing A.R.’s mouth on her brother E.O.’s penis. Id. at

      State’s Ex. 6. This image was sent on July 30, 2014 to or from the email address

      “ksnappanator614@gmail.com.” Id.


[8]   As a result of its investigation, the State charged Snapp with five counts of Class

      A felony child molesting, five counts of Level 1 felony child molesting, five

      counts of Class C felony child molesting, five counts of Level 4 felony child

      molesting, five counts of Class B felony vicarious sexual conduct, and five

      counts of Level 3 felony vicarious sexual conduct.

[9]   On September 8, 2017, the State filed a motion under the Protected Persons

      Statute (“PPS”) to admit the videotaped forensic interviews of the children. In

      response, Snapp filed a motion to exclude the children’s recorded interviews.

      The trial court held a hearing on the matter on February 16, 2018. On the first

      day of the hearing, the State presented the videotaped interviews of Jamie’s

      children, G.C., A.R., and E.O., and these children were available for purposes

      of cross-examination by Snapp. The State indicated that G.C. would be

      available to testify at trial, but argued that A.R. and E.O. were unavailable to

      testify at trial for purposes of the PPS. Snapp argued that the State failed to

      show that these two children were unavailable. The trial court agreed with

      Snapp and found that G.C., A.R., and E.O. were all available to testify at trial.

      On the second day of the PPS hearing, the State presented the videotaped

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 4 of 9
       interviews of Shelly’s daughters, A.S. and S.S., and Snapp’s counsel cross-

       examined both girls regarding their videotaped statements. The trial court

       found that, for purposes of the PPS, these two witnesses were unavailable to

       testify at trial.


[10]   Snapp’s jury trial commenced on February 26, 2018. At the trial, the State

       offered into evidence the videotaped forensic interviews of all five children over

       Snapp’s objections. The trial court allowed the State to play the videos of A.S.’s

       and S.S.’s interviews, followed by videos of Snapp’s cross-examination of these

       two witnesses at the PPS hearing. A.S. and S.S. did not testify at the trial, but

       the State did call G.C., A.R., and E.O. and as witnesses.

[11]   The first of these witnesses, A.R., testified regarding her age and why she was

       in court. She also identified Snapp and testified as to her school and grade level.

       The State then played the video of A.R.’s forensic interview over Snapp’s

       objection. Although she was available for cross-examination, Snapp’s counsel

       did not ask A.R. any questions.

[12]   The State then called E.O. to the stand, who testified regarding his name, age,

       and where he went to school. He also stated that he was in court because of

       Snapp. But when asked whether he could identify Snapp, E.O. responded

       negatively. The State then played the video of E.O.’s forensic interview over

       Snapp’s objection. Again, although E.O. was available for cross-examination,

       Snapp’s counsel asked him no questions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 5 of 9
[13]   The State then called G.C. to testify. She too testified regarding her name, age,

       and where she went to school. When asked why she was in court, G.C.

       indicated that she was there because of Snapp. Unlike E.O., however, G.C. was

       able to identify Snapp. Once again, the State played the video of G.C.’s forensic

       interview over Snapp’s objection. On cross-examination, Snapp asked G.C.

       whether she remembered accusing another man of touching her when she was

       three years old. G.C. indicated that she did not remember this.


[14]   Following the close of its case-in-chief, the State moved to dismiss Counts 5

       and 10 of the information, which alleged Class A felony child molesting and

       Level 1 felony child molesting with E.O. as the named victim. The trial court

       granted this motion. The jury subsequently found Snapp guilty on the

       remaining counts, and, on March 29, 2018, the trial court sentenced Snapp to

       an aggregate term of 129 years of incarceration. Snapp now appeals.


                                      Discussion and Decision

[15]   On appeal, Snapp argues that the trial court abused its discretion by admitting

       into evidence the videos of the forensic interviews of the three children who

       also testified at trial. Snapp argues that, because the children testified at trial,

       the videos of their interviews were inadmissible.


       A. Standard of Review

[16]   Decisions regarding the admission of evidence are entrusted to the discretion of

       the trial court. Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App. 2018), trans.

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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 6 of 9
       denied). On appeal, we review the trial court's decision only for an abuse of that

       discretion. Id. The 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.


[17]   To preserve a claim of evidentiary error for purposes of appeal, a defendant

       must make a contemporaneous objection at the time the evidence is introduced.

       Id. (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)). This is true

       regardless of whether the appellant filed a pre-trial motion seeking to exclude

       the evidence in question. Id. “The purpose of this rule is to allow the trial judge

       to consider the issue in light of any fresh developments and also to correct any

       errors.” Id. Even if a party objects at trial, he may not object to the admission of

       evidence on one ground at trial and seek reversal on appeal based on different

       grounds. Boatner v. State, 934 N.E.2d 184, 187 (Ind. Ct. App. 2010).


       B. Snapp Failed to Preserve His Appellate Argument

[18]   Snapp argues that the trial court abused its discretion in admitting the videos of

       the interviews with G.C., A.R., and E.O., because these children also testified

       at trial. He contends that, where the State chooses to present a child victim’s

       live testimony, the PPS does not apply, and the videos were therefore

       inadmissible. See Cox v. State, 937 N.E.2d 874, 878 (Ind. Ct. App. 2010)

       (holding that trial court committed reversible error by permitting child witness

       to testify at trial regarding preliminary matters and then also admitting recorded

       forensic interview of child), trans. denied. This, however, was not the basis of

       Snapp’s objections at trial.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 7 of 9
[19]   Instead, Snapp objected on grounds that the State did not meet its burden of

       demonstrating that the videos were reliable, that there was a lack of foundation

       and authentication, that the statements in the videos were hearsay, that the

       admission of the videos would violate his right to confrontation as guaranteed

       by the Sixth Amendment, that his counsel was not present at the time the

       videos were taken, that the State did not establish the chain of custody, and that

       the children were not under oath at the time of the statements.1 Tr. Vol. 3, pp.

       194–95, 236; Tr. Vol. 4, pp. 51, 55, 57. Because Snapp argues on appeal that the

       videos were inadmissible based on grounds that he did not argue below, his

       claim of error was not preserved.2 See Boatner, 934 N.E.2d at 187–88 (holding

       that defendant failed to preserve his argument that victim’s statements were

       inadmissible under the Confrontation Clause where his grounds for objection at

       trial was that the statements were hearsay).3




       1
         At the PPS hearing, Snapp also argued that the State had not shown that testifying at trial would cause
       serious emotional distress to the children. Tr. Vol. 2, pp. 109–10, 131–32, 160. As noted, the trial court
       agreed with regard to the three children who did testify at trial.
       2
         Snapp did argue in his pre-trial Motion to Exclude Hearsay Statements of Children that “[a] party may not
       introduce testimony via the protected person statute if the complaining witness testifies in open court as to the
       same matters. To allow both the hearsay and the testimony would create cumulative evidence which can be
       unfairly prejudicial.” Appellant’s App. p. 103 (emphasis added). This is close to, but still different than,
       Snapp’s argument on appeal that, if their recorded interviews were admitted, the children could not testify at
       all, or that if they testified at all, the recorded interviews were inadmissible. More importantly, Snapp only
       made this argument in his pre-trial motion and did not present this argument when the evidence was
       admitted at trial. See Laird, 103 N.E.3d at 1175 (noting that pre-trial motion is insufficient to preserve
       evidentiary error for appeal and that the opponent of evidence must make a contemporaneous objection
       when the challenged evidence is introduced at trial).
       3
           Snapp makes no argument that the admission of the children’s statements constituted fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019                      Page 8 of 9
                                                 Conclusion

[20]   Snapp failed to object to the introduction of the videos of the children’s forensic

       interviews on the same grounds that he now argues on appeal. As a result, this

       issue was not properly preserved for appellate review, and we must affirm the

       judgment of the trial court.


[21]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1041 | January 25, 2019   Page 9 of 9
