MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    Oct 23 2018, 8:39 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
Michael R. Auger                                         Curtis T. Hill, Jr.
Franklin, Indiana                                        Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA
Tyler Wade Buskirk,                                      October 23, 2018
                                                         Court of Appeals Case No.
Appellant-Defendant,                                     18A-CR-350
        v.                                               Appeal from the Johnson Circuit
                                                         Court
State of Indiana,                                        The Honorable K. Mark Loyd,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No.
                                                         41C01-1704-F3-22



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018                       Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tyler Buskirk (Buskirk), appeals his conviction for child

      molesting, a Level 3 felony, Ind. Code § 35-42-4-3(a).


[2]   We affirm.


                                                    ISSUE
[3]   Buskirk raises one issue on appeal, which we restate as: Whether the trial court

      erred in admitting the child victim’s prior out-of-court statement after the victim

      had already testified at trial.


                      FACTS AND PROCEDURAL HISTORY
[4]   Nineteen-year-old Buskirk moved into his Grandmother’s home in Franklin,

      Indiana, early in the summer of 2016 because he had been kicked out of his

      father’s home and had nowhere else to go. Also living in Grandmother’s home

      were Mother and her eight-year-old daughter, J.M. By June 21, 2016, Buskirk

      had been living there for approximately one month.


[5]   On June 21, 2016, Mother went to work in the evening and left J.M. in

      Grandmother’s care. Later that evening, Grandmother retired to her bedroom,

      as was her custom. Buskirk and J.M. sat on the couch in the living room

      together. J.M. and Buskirk went into Mother’s bedroom. Grandmother

      eventually realized that it was after 11:00 p.m. and time for J.M. to be in bed,

      so she went through the home looking for her. The lights were off in the home,

      so Grandmother called out for J.M. and Buskirk. J.M. came running out of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 2 of 9
      Mother’s bedroom. Grandmother observed that J.M. had her underpants

      hidden in her hands behind her back and that the child was not clothed apart

      from a long shirt. Buskirk followed J.M. out of the bedroom. Grandmother

      was suspicious and asked Buskirk if he had done anything to J.M., which

      Buskirk denied.


[6]   Grandmother’s suspicions were not allayed. When Mother returned from work

      the next morning, Grandmother indicated to her that they needed to talk after

      Mother rested. That afternoon Grandmother and Mother retrieved J.M. from

      the Girls Club where she had spent the day. They went to a local restaurant,

      where J.M. disclosed to them that Buskirk had touched her inappropriately.

      Grandmother alerted the authorities and was directed to bring the child to the

      Franklin Police Department. There, Detective Matt Harris (Detective Harris)

      advised that J.M. should be taken to Riley Hospital, where J.M. underwent a

      sexual assault examination. On June 23, 2016, J.M. was interviewed by

      Detective Harris and reported that Buskirk had directed her to rub his penis,

      had attempted to place his penis in her vagina, and had directed her to place his

      penis in her mouth. (State’s Exhibit 22B). 1 As part of the investigation,

      physical evidence was collected and sent to the Indiana State Police Laboratory

      for testing, including the sheets from Mother’s bed, a used condom from the

      trashcan in Mother’s bedroom, several toothbrushes, J.M.’s sexual assault kit,



      1
        The DVD recording of the June 23, 2016, interview was admitted into evidence as State’s Exhibit 22, but
      the DVD was not transmitted as part of the record on appeal. A transcript of the interview was admitted as
      State’s Exhibit 22B.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018                  Page 3 of 9
      and a buccal swab from Buskirk. Due to laboratory protocols for submitting

      items, it took approximately ten months for the tests to be completed.


[7]   On April 4, 2017, the State charged Buskirk with child molesting as a Level 3

      felony. On May 16, 2017, the State filed a notice of discovery compliance in

      which it disclosed its intention to introduce J.M.’s statement at trial. On

      November 14 through 17, 2017, Buskirk’s jury trial took place. Buskirk’s

      counsel developed a theory that Grandmother had coached J.M. into making

      the allegations in order to exact revenge on Buskirk’s father, with whom

      Grandmother had a contentious relationship. J.M. testified that Buskirk had

      made her rub his penis with her hand, attempted to place his penis in her

      vagina, and directed her to lick his penis. As part of his cross-examination of

      J.M., Buskirk’s counsel questioned J.M. about how many times she had spoken

      to the prosecutor about the allegations. Defense counsel also posed the

      following questions:


              Counsel: You don’t remember? Okay. Does [the prosecutor]
              have a dog?

              J.M.: Yes.

              Counsel: Okay. What’s the dog’s name?

              J.M.: Nook.

              Counsel: What’s his name?

              J.M.: Nook.

              Counsel: Okay. You ever play with that dog?

              J.M.: Sometimes.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 4 of 9
        Counsel: Sometimes? Okay. How many times have you played
        with that dog?

        J.M.: Only a few.

        Counsel: How many?

        J.M.: Only a few.

        Counsel: Two?

        J.M.: I only played with him, like, a few times.

        Counsel: A few times, okay. Did you see the dog each time you
        told [the prosecutor] what happened?

        J.M.: Yes.


(Transcript Vol. V, pp. 9-10). At the close of J.M.’s testimony, the State sought

to have her June 23, 2016, forensic interview admitted into evidence. Buskirk’s

counsel objected on the basis that the interview was not under oath and that it

contained information that would be inappropriate or inadmissible unless

severely redacted. The prosecutor responded that Buskirk’s counsel had

repeatedly asked J.M. how many times she had spoken to Grandmother about

the allegations and how many times she had spoken to the prosecutor in

preparation for trial. The prosecutor argued, “He’s brought up our facility dog,

indicating or insinuating that the facility dog is the means for us to get her to

say what we want her to say.” (Tr. Vol. V, p. 20). The trial court indicated that

the interview would be redacted and that defense counsel’s objection would be

overruled, “if that’s the only thing you got.” (Tr. Vol. V, p. 20). Buskirk’s

counsel participated in the redaction of the interview and lodged no further

Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 5 of 9
      objection to its admission. Defense counsel answered “No” when asked by the

      trial court if he had any objection to the publication of the admitted portions of

      the forensic interview. (Tr. Vol. V, p. 34). The jury found Buskirk guilty. On

      December 19, 2017, the trial court sentenced Buskirk to serve nine years with

      the Indiana Department of Correction, with two years suspended to probation.


[8]   Buskirk now appeals. Additional facts will be added as necessary.


                              DISCUSSION AND DECISION
[9]   Buskirk contends that the trial court erred when it admitted J.M.’s forensic

      interview into evidence because its admission was not in accordance with

      Indiana Code section 35-37-4-6(e), commonly referred to as the Protected

      Person Statute. Generally, we review a trial court’s decision regarding the

      admission of evidence at trial for an abuse of the trial court’s discretion. Fansler

      v. State, 100 N.E.3d 250, 253 (Ind. 2018). However, such decisions are not

      subject to review unless a contemporaneous objection was made at trial.

      Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). In addition, any issues

      raised for the first time on appeal are waived. See Weis v. State, 825 N.E.2d 896,

      902 (Ind. Ct. App. 2005) (holding that Weis’ failure to object at trial on the

      basis of the Protected Person Statute resulted in the waiver of his claims that the

      victim’s statements were improperly admitted). Here, Buskirk’s counsel made

      some preliminary objections to the admission of the forensic interview, but

      none of those objections pertained to the Protected Person Statute. In addition,




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 6 of 9
       Buskirk’s counsel did not object to the forensic interview when it was admitted

       at trial or when it was published to the jury. As such, his claim is waived.


[10]   Perhaps in an attempt to circumvent the effect of his waiver, Buskirk contends

       that “the trial court was going to admit the videotaped statement no matter

       what the defense counsel argued.” (Appellant’s Br. p. 20). Our review of the

       record does not support such a conclusion. Although the trial court set out a

       plan regarding the redaction of J.M.’s statement and its admission, it did not

       foreclose the possibility of further objections by Buskirk’s counsel.

       Furthermore, although Buskirk claims that he was prejudiced by the admission

       of J.M.’s statement, he does not argue that the admission of J.M.’s videotaped

       statement constituted fundamental error or that it somehow deprived him of a

       fair trial. We conclude that Buskirk has waived his claim of error pertaining to

       the admission of J.M.’s videotaped statement.


[11]   However, even if Buskirk had preserved his claim or argued that the admission

       of J.M.’s statement constituted fundamental error, it would not have resulted in

       the reversal of his conviction. A claim that has been waived by a defendant’s

       failure to raise a contemporaneous objection may be reviewed on appeal if the

       reviewing court determines that a fundamental error has occurred. Brown v.

       State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. However, the doctrine of

       fundamental error is narrow and may lead to reversal only where it has

       rendered a fair trial impossible or where there has been a “‘blatant violation of

       basic principles, the harm or potential for harm is substantial, and the resulting

       error denies the defendant fundamental due process.’” Id. The fundamental

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 7 of 9
       error doctrine will, therefore, only be applicable in “‘egregious circumstances.’”

       Id. (citation omitted).


[12]   The Protected Person Statute provides for the admission of a protected person’s

       out-of-court statement if that statement “is not otherwise admissible in

       evidence.” I.C. § 35-37-4-6(d)(3). Here, it was not necessary for the State to

       seek admission of J.M.’s statement under the Protected Person Statute and

       comply with its strictures because the statement was independently admissible

       on other grounds. Indiana Evidence Rule 801(d)(1)(B) provides that a prior

       out-of-court statement is admissible as non-hearsay if the witness/declarant

       testified at trial, was subject to cross-examination, the statement is consistent

       with the witness’ trial testimony, and the statement is offered to rebut an

       express or implied charge of recent fabrication or recent improper influence.

       Here, Buskirk’s counsel questioned J.M. regarding the number of occasions she

       had spoken with the prosecutor in preparation for trial and about petting the

       dog at the prosecutor’s office, which implied that the prosecutor used the dog to

       procure J.M.’s testimony. The State was permitted to rebut that implied charge

       of recent fabrication or improper influence with J.M.’s prior, consistent

       statement, and, thus, its admission did not constitute fundamental error.


[13]   Even if there had been no independent basis for the admission of J.M.’s

       statement, we would still find no fundamental error. The State provided

       Buskirk with notice that they intended to admit the statement at trial, and

       Buskirk does not claim that he did not have access to the statement prior to

       trial. Therefore, we cannot find that any lack of awareness of the contents of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 8 of 9
       J.M.’s statement or the possibility of its introduction at trial deprived Buskirk of

       a fair trial. In addition, J.M. testified at trial. Her videotaped statement was

       not the only evidence of the allegations, and it was merely cumulative evidence

       the admission of which did not amount to fundamental error. See Weis, 825

       N.E.2d at 903 (finding no fundamental error in the admission of the victim’s

       prior consistent statements absent the hearing required under the Protected

       Person Statute because the victim testified at trial).


                                             CONCLUSION
[14]   In light of the foregoing, we conclude that Buskirk waived his claim of error

       based on the admission of J.M.’s prior out-of-court statement, which, regardless

       of that waiver, did not constitute fundamental error.


[15]   Affirmed.


[16]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-350 | October 23, 2018   Page 9 of 9
