                                                                              FILED
                                                                         Sep 09 2019, 8:58 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Robert W. Gevers II                                        Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                        Attorney General of Indiana
                                                                 Ian McLean
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jordin C. Shoda,                                           September 9, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2279
              v.                                                 Appeal from the Whitley Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Matthew J.
      Appellee-Plaintiff.                                        Rentschler, Judge
                                                                 Trial Court Cause No.
                                                                 92C01-1707-F1-89



      Mathias, Judge.


[1]   Following a jury trial in Whitley Circuit Court, Jordin C. Shoda (“Shoda”) was

      convicted of two counts of Level 1 felony child molesting and one count of




      Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                       Page 1 of 30
      Level 4 felony child molesting. Shoda appeals and presents three issues for our

      review, which we restate as:


              I.       Whether the trial court abused its discretion by admitting
                       into evidence a video recording of an interview of the
                       victim by a forensic examiner;

              II.      Whether the trial court abused its discretion by admitting
                       into evidence the testimony of a sexual assault nurse
                       regarding statements the victim made to her; and

              III.     Whether the trial court abused its discretion by admitting
                       into evidence the testimony of the victim’s therapist
                       regarding statements the victim made to her.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The victim in this case, A.E., is the daughter of Shoda and M.E. (“Mother”),

      and was born in May 2011. A.E. lived with Mother and had regular visitation

      with Shoda, who was born in February 1992. Shoda lived in the basement of

      his parents’ home, which was finished and had a bathroom with a bathtub and

      shower. During Memorial Day weekend of 2017, Shoda’s brother was getting

      married, and Mother agreed to let A.E. stay with Shoda so that A.E. could

      attend the wedding and be a member of the wedding party. Mother returned on

      Sunday to pick up A.E., and they went to Mother’s father’s house for Memorial

      Day activities.



      Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019         Page 2 of 30
[4]   On the way home from Mother’s father’s house, A.E. disclosed something to

      Mother, presumably the molestation, that upset Mother. Mother stopped at a

      friend’s house, told her what A.E. had said, and called a child abuse hotline

      operated by the Department of Child Services (“DCS”). The hotline operator

      asked Mother certain questions, then asked Mother to take A.E. to the hospital.

      DCS informed the police of the report, and Whitley County Sheriff’s Deputy

      Detective Bill Brice (“Detective Brice”) requested that the child be taken to the

      Bill Lewis Center for Children (the “Center for Children”) in Fort Wayne to be

      examined. Mother took A.E. to the Center for Children, where A.E. was

      examined by Sexual Assault Nurse Sarah Coburn (“Nurse Coburn”).

[5]   Nurse Coburn examined A.E. and asked her non-leading questions, including

      “[D]o you know why you are here today,” and “[D]o you have any concerns

      about your body.” Tr. Vol. 3, p. 48. Nurse Coburn noted her interaction with

      A.E. as follows:


              “No one should touch your front.” “When I was taking a shower
              with daddy he put his front in my back and it hurt.” Patient
              points between buttocks to clarify “back.” “I just said it hurt.”
              “Then he said shush your mouth.” Writer asked did this happen
              one time or more than one time. States “More than one time.”
              “It’s happened a bunch.” “Only in the shower.” “Since it flooded
              in our house I have to take showers with daddy.” “He makes me
              touch his front with my hands.” Writer asked how does that feel?
              States “It feels firm.” “Stuff comes out of his front.” “It’s
              greenish-yellow.” “At first he was doing it a bunch and then he
              stopped.” “Then this weekend I had to do it again.” “I told
              mommy.”

      Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019    Page 3 of 30
      Ex. Vol., State’s Trial Ex. 3.1 Even though she doubted that there would be any

      remaining DNA evidence, as the molestation had taken place while showering,

      Nurse Coburn took samples for a sexual assault kit per standard procedure.


[6]   On the day after Memorial Day, May 30, 2017, Detective Brice asked Mother

      to take A.E. to the Center for Children again so that A.E. could be interviewed

      by Detective Lorrie Frieburger (“Detective Frieburger”), who worked at the

      Center for Children as a forensic interviewer. Detective Frieburger spoke with

      A.E. for approximately thirty minutes using the “Child First” protocol, which

      involves non-leading questions. In the video-recorded interview, A.E. told the

      detective that her father had put his “front” into her “back” when they were in

      the shower and that this hurt. Ex. Vol., State’s Trial Ex. 1 at 07:21–07:26,

      08:10.2 A.E. said that this happened “a bunch of times,” id. at 08:12–08:17, and

      “every single time” she was with her father. Id. at 25:42–25:45. Using diagrams,

      A.E. explained to Detective Frieburger that by “front” she meant her father’s

      genitals, and by “back” she meant her anal area. Id. at 11:00–11:28. A.E. stated

      that this caused her pain because Shoda “digs down there really, really, really

      far.” Id. at 26:50–26:53. When A.E. complained of the pain, Shoda told her to

      “shush your mouth.” Id. at 17:06–17:22. A.E. stated that she had noticed blood



      1
          The quotations apparently indicate A.E.’s words.
      2
        We refer to the time index of the video file itself, not the time code included in the video, which starts at
      16:37:59—apparently the time the interview took place in the twenty-four hour “military” time system. Thus,
      A.E. made the statement regarding her father at seven minutes and twenty-one seconds into the video
      recording, which corresponds to a time of 16:45:21.

      Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                             Page 4 of 30
      on the toilet paper after wiping herself following the molestation. A.E. further

      disclosed that her father made her put her mouth and hands on his penis. A.E.

      also told Detective Frieburger that Shoda had started molesting her when she

      was five years old and that he warned her not to tell anyone about what he did

      to her. A.E. said that she informed her mother of what had happened because

      the last time it had occurred, it had been very painful.

[7]   A.E. later underwent treatment by Nicole Trier (“Trier”), a licensed mental

      health therapist. During her sessions with Trier, A.E. described, in age-

      appropriate language, what appeared to be anal sex with her father.


[8]   On July 19, 2017, the State charged Shoda with two counts of Level 1 felony

      child molesting and one count of Level 4 felony child molesting. On February

      16, 2018, the State filed a notice of its intent to introduce A.E.’s recorded

      statements to Detective Frieburger under the protected persons statute, Indiana

      Code section 35-37-4-6. The trial court held a protected persons hearing on

      June 28, 2018, at which time the State presented the testimony of several

      witnesses, including Mother, Detective Frieburger, Trier, and A.E. The State

      asked no questions of A.E. at the hearing, but Shoda’s counsel did question

      A.E. The trial court took the matter of the admissibility of A.E.’s recorded

      statement to Detective Frieburger under advisement. On July 3, 2018, Shoda

      filed an objection to the State’s request to offer the video recorded statement

      into evidence under the protected persons statute. Two days later, the trial court

      entered an order concluding that A.E.’s statement was admissible.

      Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019       Page 5 of 30
[9]    A three-day jury trial began on July 17, 2018. Immediately before the trial

       began, Shoda referenced a pre-trial motion in limine that he had filed, stating:


               [W]e filed both a motion and a memorandum of law. And,
               obviously this Court had an extended protect[ed] person hearing,
               we know that the Court has ruled on the um, the admission of
               the video taped statement of A.E. by the forensic interviewer and
               that’s going to come in. Um, at the appropriate time I guess,
               um, I don’t think maybe it’s now, but before the tape is played
               I will want to renew my objection and make a continuing
               objection of that to preserve the record.


       Tr. Vol. 2, pp. 161–62 (emphasis added). After granting Shoda’s motion in

       limine with regard to references to a polygraph examination and prior criminal

       history, the trial court stated:

               And in terms of the statements of the alleged victim in this case,
               the law has provided for the jury to hear the allegations made by
               the child on video. But anything said to anybody outside of that
               video tape, including mother, counselor or anyone else will not
               come into evidence because it constitutes hearsay.


       Id. at 163.


[10]   Despite indicating that he would object to the admission of the video-recorded

       interview, Shoda referenced the recording in his own opening statement:


               We all just heard the cress [sic] of the State’s case will be the
               video tape. That tape will be played, there’s no dispute. You’ll
               hear it in its entirety. The good, the bad, the ugly. By way of
               summary that tape, that was made more than a year ag[o]. Okay?

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019        Page 6 of 30
        It was made around May 30, 2017. That’s, that’s the day after
        Memorial Day, last year. It’s not too long. It’s maybe a half hour
        or so. A.E. is six (6) years old. She’s uh, she’s verbal. We’ll see
        on tape . . . a cute, adorable little girl. And she says, and she says
        these things happened to her by her dad. To A.E. she has, she
        has two (2) dads in her life. She has her biological father, Jordin
        and she uh, and she also has a stepfather. So questions are, are
        []posed to A.E. to try and clarify it. And she’s also asked about
        the location, right? The location. Where did this happen? My
        words, not her’s you’ll see on the tape. And A.E. tells us, at first
        she [says], it happens at everyone’s house. And then she clarifies
        later on, clarifies and points at the drawings and says, you know
        it’s dad Jordin’s house. Um, she does then disclose a physical
        sexual assault by her dad in the shower, all right. And among
        [the] things she says, as you will hear on the tape, that he put his
        back, or put his front on her back, put his front on her back. And
        the tape does say that it happened every single time she’s there.
        Not sometimes, not this 18 months ago, every, every single time
        she’s there. So when is the last time A.E. was there, all right?
        With Jordin? Let’s start there. There will be no dispute that’s the,
        that’s the weekend before Memorial Day last year. It was that
        Friday through Sunday, okay? And towards the end of this tape,
        the interviewer will confirm from A.E., you’ll hear, that this last
        time, it’s the day she told her mom. It happened that day and it
        hurt. All right? And we’ll find out that day, all right? The day,
        that’s that Sunday. That’s the, that’s May 28, the day before
        Memorial Day. And so, in large part, that’s on the tape. That’s
        what we’re going to hear.




Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019        Page 7 of 30
       Id. at 175 (emphases added). When the video recording was offered into

       evidence, the record does not indicate that Shoda made any objection.3 See id. at

       183–84.


[11]   Shoda did object on the record, however, when the State offered into evidence

       the notes taken by Nurse Coburn during her examination of A.E. at the Center

       for Children. The trial court overruled the objection, and the notes were

       admitted into evidence. Shoda similarly objected to the admission of the

       statements made by A.E. during her therapy with Trier, which the trial court

       also overruled.

[12]   At the conclusion of the trial, the jury found Shoda guilty as charged. On

       August 27, 2018, the trial court sentenced Shoda to concurrent terms of forty

       years of incarceration on the Level 1 felony convictions and a concurrent term

       of twelve years on the Level 4 felony conviction. Shoda now appeals.


                                              Standard of Review
[13]   All of Shoda’s appellate arguments claim error in the admission of evidence.

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

       of the trial court, and we review the court’s decision only for an abuse of that



       3
         The transcript reveals that when the prosecuting attorney moved to admit the recording into evidence,
       Shoda’s counsel asked to approach the bench. Tr. Vol. 2, p. 183. The transcript then simply notes that a
       “bench conference” was held, with no indication as to whether the bench conference was recorded and
       transcribed. Id. If Shoda did object to the admission of the recording at this bench conference, it is not in the
       transcript.

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                                Page 8 of 30
       discretion. Shelby v. State, 986 N.E.2d 345, 359 (Ind. Ct. App. 2013), trans.

       denied. A trial court abuses its discretion if its decision is clearly against the logic

       and effect of the facts and circumstances before the court, or if the court has

       misinterpreted the law. Id.


                         Admission of A.E.’s Recorded Statement
[14]   Shoda first argues that the trial court abused its discretion by admitting into

       evidence Detective Freiburg’s video-recorded interview of A.E. at the Center

       for Children. Shoda contends that the trial court erred in admitting this

       interview under the protected persons statute because A.E.’s non-

       responsiveness to his questioning at the protected persons hearing made her

       effectively unavailable for cross-examination. The State argues that Shoda

       failed to preserve any error in the admission of the video because he failed to

       make a contemporaneous objection when the video was admitted into

       evidence.


[15]   It is axiomatic that 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. Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App.

       2018), trans. denied (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)).

       Here, Shoda filed a pretrial objection to the State’s request to offer the video-

       recorded statement into evidence under the protected persons statute. And

       immediately before trial began, Shoda noted his intention to “renew” his

       objection to the admission of the recording and his desire to make a continuing
       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019         Page 9 of 30
       objection in order to “preserve the record.” Tr. Vol. 2, pp. 161–62. But it is well

       settled that pretrial motions do not preserve any error for appeal. Our supreme

       court in Brown reiterated that “[a] contemporaneous objection at the time the

       evidence is introduced at trial is required to preserve the issue for appeal,

       whether or not the appellant has filed a pretrial motion to suppress.” 929

       N.E.2d at 207 (citing Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000);

       Wagner v. State, 474 N.E.2d 476, 484 (Ind. 1985)). This rule is no mere

       procedural technicality; instead, its purpose is to allow the trial judge to

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

       errors. Laird, 103 N.E.3d at 1175 (citing Brown, 929 N.E.2d at 207).


[16]   Here, there is no indication in the transcript that Shoda made a

       contemporaneous objection to the admission of the recording. Shoda even

       referenced the tape in his opening statement, presuming that the tape would be

       admitted into evidence. As noted above, when the State moved to admit the

       recording into evidence, Shoda requested a bench conference, but the contents

       of that conference do not appear to have been recorded or transcribed. Nor did

       Shoda make an objection on the record following the bench conference.


[17]   We were presented with a similar situation in Delao v. State, 940 N.E.2d 849

       (Ind. Ct. App. 2011), trans. denied. In that case, the trial judge informed the

       parties prior to trial that, due to the setup of the courtroom, it was difficult to

       record bench conferences without the jury being able to overhear. The judge

       therefore instructed the parties that, if a bench conference was required, it

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019       Page 10 of 30
       would probably be necessary to recess and remove the jury from the courtroom

       before making any arguments. During trial, when the State offered several

       audio recordings into evidence, the defendant did not object on the record but

       instead requested to approach the bench. As the trial court had indicated would

       happen, the subsequent bench conference was not recorded. Immediately

       thereafter, the trial court stated for the record that the defendant had objected

       on grounds of relevancy.


[18]   On appeal, Delao stated that his objection was based on grounds that “key parts

       of the recordings, and the translation of same for the jury, were of sufficiently

       poor quality so as to be confusing and misleading to the jury.” Id. at 852

       (citation and internal quotation marks omitted). We declined Delao’s offer to

       speculate about what the specific basis of his objections had been and held that

       Delao had failed to properly preserve his claim of evidentiary error. Id. We

       noted that “‘the appellant carries the burden of presenting a record for

       sustaining his argument.’” Id. (quoting House v. State, 535 N.E.2d 103, 109 (Ind.

       1989)). In support of our decision, we cited House, a case in which our supreme

       court held that an objection made during an unrecorded sidebar conference was

       not preserved and that the defendant should have corrected any deficiency in

       the record according to the appellate rule allowing for reconstruction of

       allegedly missing portions of the transcript. 535 N.E.2d at 109; see also Ind.

       Appellate Rule 31 (setting forth the procedure for making a statement of the

       evidence when no transcript of all or part of the evidence is available).


       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019       Page 11 of 30
[19]   Following our holding in Delao, we conclude that Shoda has failed to preserve

       any claim of error because he failed to make a contemporaneous objection nor

       has he presented us with a record sufficient to demonstrate that he did preserve

       his claim of error. But see Kien v. State, 782 N.E.2d 398, 406 (Ind. Ct. App.

       2003), trans. denied (noting that the lack of a record justifies giving the appellant

       the benefit of the doubt in speculating about what may have been discussed

       during any unrecorded sidebar conference) (citing Ben-Yisrayl v. State, 753

       N.E.2d 649, 661 (Ind. 2001)).


[20]   Even if we were to consider Shoda’s claim on the merits, he would not prevail.

       Indiana Code section 35-37-4-6, known as the “protected person statute,”

       provides a list of certain conditions under which evidence that would otherwise

       be inadmissible will be allowed in cases involving certain crimes against

       “protected persons.” J.A. v. State, 904 N.E.2d 250, 255 (Ind. Ct. App. 2009),

       trans. denied. Among the crimes to which the protected person statute applies

       are sex crimes under Indiana Code chapter 35-42-4, which includes child

       molesting.4 Id. at 255 n.4. A “protected person” is defined to include “a child

       who is less than fourteen (14) years of age.” I.C. § 35-37-4-6(c)(1).


[21]   Subsection (d) of the protected person statute provides that


                  A statement or videotape that:



       4
           See Ind. Code § 35-42-4-3 (defining the crime of child molesting).

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019      Page 12 of 30
                (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 [a listed group
                of offenses that includes child molesting] that was allegedly
                committed against the person; and

                (3) is not otherwise admissible into evidence;

           is admissible in evidence in a criminal action for [a listed group
           of offenses that includes child molesting] if the requirements of
           subsection (e)5 are met.


I.C. § 35-37-4-6(d).




5
    Subsection (e) of the protected persons statute provides:
           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:
                        (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.
I.C. § 35-37-4-6(e). Shoda makes no argument that the requirements of subsection (e) were not met.

Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                                  Page 13 of 30
[22]   Subsection (f) of the protected persons statute, which is at issue here, provides:


               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.


       I.C. § 35-37-4-6(f) (emphasis added). Thus, before a recorded statement by a

       protected person may be admitted into evidence at trial, the protected person

       must have been available for cross-examination either when the statement or

       video was made or at the protected persons hearing.

[23]   In the present case, A.E. was not subject to cross-examination at the time the

       video was made. But she was present and subject to cross-examination at the

       protected persons hearing. Shoda claims, however, that A.E. was effectively

       unavailable for cross-examination because she “shut down” and would not

       answer questions regarding her father or any inappropriate touching.

       Appellant’s Br. at 13. We disagree with this characterization of A.E.’s

       testimony at the protected persons hearing.


[24]   After asking some preliminary questions about A.E.’s family and school,

       Shoda’s counsel and A.E. engaged in the following exchange:




       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019        Page 14 of 30
        Q.       All right A.E. A.E. we talked about this when we met last
                 time. I want to make sure I understand you. Are there, are
                 there parts on our body where no one should touch us?
                 You have to answer out loud. Is that a yes?
        A.       Yes.
        Q.       Okay. What do you, what do you call those parts?
        A.       I don’t know.
        Q.       Do you like to swim?
        A.       Hm, hm (affirmative answer).
        Q.       All right. And when you go swimming, you wear a
                 swimsuit?
        A.       Hm, hm (affirmative answer).
        Q.       Yeah. Of course you do. And those swimsuit, that
                 swimsuit that covers, covers up your private parts, right? Is
                 that a yes?
        A.       Hm, hm (affirmative answer).
        Q.       Yes. Should, no[]one should touch our swimsuit parts,
                 right? No[]one should touch underneath our swimsuits,
                 correct?
        A.       Hm, hm (affirmative answer).
        Q.       Is that yes?
        A.       Yeah.
        Q.       All right. Has anyone touched you under your swimsuit
                 parts? It’s okay to answer it. Has anyone touched you
                 underneath swimsuit parts? (Inaudible) under your
                 swimsuit? A.E. [your] dad’s name is Jordin, right? Has
                 Jordin ever touched under your swimsuit parts? A.E.
                 you know, you know the difference right, you’re seven
                 (7) years old, you’re almost as old as me. You gave
                 (inaudible) when I told (inaudible) didn’t you? You
                 thought that was really funny, do you remember
                 (inaudible)? Did you (inaudible).
        A.       What?


Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019       Page 15 of 30
               Q.       How old do you think I was?
               A.       50?
               Q.       50, gosh good for you. Very good. Um, do you know the
                        difference between a good touch and bad touch? Yeah? All
                        right. Well if you’re mom gives you a hug and kiss?
               A.       Hm, hm (affirmative answer).
               Q.       Is that a good touch or a bad touch? Let me ask you
                        another question. I’m sorry? What did you say? Did you
                        say something?
               Q.       Uh, uh (negative answer).
               A.       No? If the dog, all right, if a dog bites your leg?
               A.       Hm, hm (affirmative answer).
               Q.       Bites on your leg and hurts you. Is that a good touch or a
                        bad touch?

       Tr. Vol. 2, pp. 148–50 (emphasis added). A bench conference was then held,

       after which Shoda’s counsel asked A.E. regarding pictures she had drawn.

[25]   As the above-emphasized portion of this exchange indicates, it appears as if

       A.E. simply didn’t understand the questions asked of her. When she responded

       by asking “What?” Shoda simply switched his line of questioning and never

       revisited the questions regarding the touching. Nor did he ask the trial court to

       emphasize to A.E. that she needed to answer Shoda’s questions as best she

       could. We are therefore unable to conclude that Shoda has established that

       A.E. was truly unavailable for cross-examination.

[26]   We rejected a similar argument in Perryman v. State, 80 N.E.3d 234 (Ind. Ct.

       App. 2017). In Perryman, the defendant was convicted of battery and neglect of


       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019         Page 16 of 30
       his girlfriend’s eight-year-old son. At Perryman’s trial, the trial court had

       admitted a recorded interview with the child after holding a protected persons

       hearing at which the child was subject to cross-examination. On appeal,

       Perryman argued inter alia that the admission of the child’s recorded statement

       under the protected persons statute was unconstitutional because the child’s

       alleged inability to provide “any coherent and meaningful testimony about the

       cause of his injuries” at the protected persons hearing denied Perryman the

       opportunity for “full, adequate, and effective cross examination.” Id. at 246

       (citations and internal quotation marks omitted).

[27]   In rejecting Perryman’s argument, we noted that “[w]hether the opportunity

       was full and fair is an inquiry into whether the state or the trial court

       impermissibly limited a defendant's cross-examination of the witnesses against

       him, not an inquiry into the mental faculties of those witnesses or the character

       of their testimony.” Id. Even a witness’s lapses of memory do not constitute a

       deprivation of the right to cross-examine. Id. (citing Delaware v. Fensterer, 474

       U.S. 15, 19 (1985) (“It does not follow [from the requirement that a defendant

       be allowed the opportunity to impeach a witness on cross-examination] that the

       right to cross-examine is denied by the State whenever the witness’[s] lapse of

       memory impedes one method of discrediting him.”)). As explained by the

       United States Supreme Court:

               The Confrontation Clause guarantees only an opportunity for
               effective cross-examination, not cross-examination that is
               effective in whatever way, and to whatever extent, the defense
       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019       Page 17 of 30
               might wish. . . . It is sufficient that the defendant has the
               opportunity to bring out such matters as the witness’ bias, his
               lack of care and attentiveness, his poor eyesight, and even (what
               is often a prime objective of cross-examination) the very fact that
               he has a bad memory. . . . The weapons available to impugn the
               witness’[s] statement when memory loss is asserted will of course
               not always achieve success, but successful cross-examination is
               not the constitutional guarantee.


       United States v. Owens, 484 U.S. 554, 559–60 (1988) (quoted in Perryman, 80

       N.E.3d at 246–47); see also Fowler v. State, 829 N.E.2d 459, 466 (Ind. 2005)

       (holding that a defendant cannot claim a denial of the opportunity for cross-

       examination by a recalcitrant trial witness’s refusal to answer unless the

       defendant seeks to compel testimony), abrogated in part on other grounds by Giles v.

       California, 554 U.S. 353 (2008).


[28]   Two decisions of this court have held that there was an unconstitutional

       frustration of the opportunity for cross-examination in the context of the

       protected persons statute, and both involved the trial court finding that the

       protected person was unavailable due to his or her incapability of understanding

       the nature and obligation of an oath, not simply because of lapsed memory or

       non-responsiveness. Perryman, 80 N.E.3d at 247 (citing Anderson v. State, 833

       N.E.2d 119, 126 (Ind. Ct. App. 2005); Purvis v. State, 829 N.E.2d 572, 581 (Ind.

       Ct. App. 2005), trans. denied). These cases are inapplicable here, because the

       trial court found that A.E. was capable of distinguishing truth from falsehood.

       See Perryman, 80 N.E.3d at 247 (distinguishing Anderson and Purvis because the


       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019    Page 18 of 30
       witness was not found incapable of understanding the nature of his oath and

       instead affirmatively demonstrated his capacity to distinguish truth from

       falsehood and to appreciate the importance of that distinction); see also Pierce v.

       State, 677 N.E.2d 39, 48 (Ind. 1997) (holding that child witness was available

       for cross-examination where she was on the witness stand during the protected

       persons hearing, the court did nothing to prevent the defense from questioning

       her, yet the defense conducted no actual cross-examination).


[29]   In summary, Shoda was not deprived of his right to confrontation simply

       because A.E. did not understand some of the questions put to her on cross-

       examination at the protected persons hearing. Neither the State nor the trial

       court did anything to impair Shoda’s ability to cross-examine A.E. Moreover,

       any lapses in A.E.’s memory or her unresponsiveness did not amount to a

       denial of the right to cross-examine. See id. Therefore, the trial court did not

       abuse its discretion by admitting A.E.’s statements into evidence under the

       protected persons statute.


                              A.E.’s Statement to Nurse Coburn
[30]   Shoda next argues that the trial court abused its discretion by admitting into

       evidence Nurse Coburn’s notes and testimony regarding what A.E. told her

       during the sexual assault examination. Shoda claims that the admission of this

       evidence was improper for a variety of reasons.




       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019     Page 19 of 30
[31]   He first contends that the admission of Nurse Coburn’s notes and testimony

       regarding what A.E. told her was improper because the State failed to comply

       with the notice provisions of the protected persons statute. Subsection (g) of the

       statute provides that a protected person’s statement may not be admitted into

       evidence under the statute “unless the prosecuting attorney informs the

       defendant and the defendant’s attorney at least ten (10) days before the trial of:

       (1) the prosecuting attorney’s intention to introduce the statement or videotape

       in evidence; and (2) the content of the statement or videotape.” I.C. § 35-37-4-

       6(g).


[32]   However, Shoda made no such objection at trial. Instead, he based his

       objection on grounds that the State had not met the requirements of Indiana

       Evidence Rule 803(4). Specifically, his counsel stated:


               We object your Honor, we do not believe that the foundational
               requirements had been met under the, under the Indiana trial
               rules of evidence. Um, specifically 803(4). Um, and that the two
               (2) prongs, the first prong of that test with respect to whether the
               declarant was motivated by truthful information for treatment
               and diagnosis, I don’t believe there is a sufficient foundation.
               Um, and it would be impermissible hearsay.


       Tr. Vol. 3, p. 51. “A party may not object to the admission of evidence on one

       ground at trial and seek reversal on appeal based on a different ground.” Casady

       v. State, 934 N.E.2d 1181, 1191 (Ind. Ct. App. 2010) (citing Malone v. State, 700




       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019      Page 20 of 30
       N.E.2d 780, 784 (Ind. 1998)), trans. denied. By not raising this objection at trial,

       Shoda has waived it for purposes of appeal.

[33]   Waiver notwithstanding,6 Shoda’s argument is misplaced. The protected

       persons statute is applicable when evidence is otherwise inadmissible. That is, it

       permits, under certain circumstances, the admission of otherwise inadmissible

       evidence. See I.C. § 35-37-4-6(d) (providing that a statement or videotape made

       by a protected person and concerning an act that is a material element of a

       listed offense and “is not otherwise admissible in evidence” is admissible if the

       requirements of subsection (e) are met); see also Tyler v. State, 903 N.E.2d 463,

       465 (Ind. 2009) (noting that the protected persons statute allows for the

       admission of otherwise inadmissible hearsay). The implication of this is that if

       the hearsay is admissible through the rules of evidence, the protected persons

       statute is inapplicable. See Coomer v. State, 575 N.E.2d 683, 685 (Ind. Ct. App.

       1991) (holding that protected persons statute was inapplicable where child’s

       prior testimony was admissible under exception to the hearsay rule). Because

       we conclude infra that A.E.’s statements were admissible under the exception to

       the hearsay rule in Evidence Rule 803(4), Shoda’s argument regarding the

       protected persons statute are misplaced.


[34]   Shoda also argues that A.E.’s statements to Nurse Coburn do not meet the

       requirements for admissibility under Evidence Rule 803(4), which provides that


       6
           Shoda makes no argument of fundamental error regarding the admission of this evidence.

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                        Page 21 of 30
       a statement is not excluded by the hearsay rule, “regardless of whether the

       declarant is available as a witness,” if the statement:


               (A) is made by a person seeking medical diagnosis or treatment;

               (B) is made for—and is reasonably pertinent to—medical
               diagnosis or treatment; and

               (C) describes medical history; past or present symptoms, pain or
               sensations; their inception; or their general cause.


[35]   This medical treatment or diagnosis exception is “‘based upon the belief that a

       declarant’s self-interest in seeking medical treatment renders it unlikely that the

       declarant would mislead the medical personnel [] she wants to treat her.’”

       Ramsey v. State, 122 N.E.3d 1023, 1030 (Ind. Ct. App. 2019), trans. denied

       (quoting Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans.

       denied). “In order to satisfy the requirement of the declarant’s motivation, the

       declarant must subjectively believe that he or she was making the statement for

       the purpose of receiving medical diagnosis or treatment.” Id. at 1031 (citing 13

       Robert Lowell Miller Jr., Indiana Practice: Indiana Evidence § 803.104 at 312 (4th

       ed. 2018)). As we explained in Ramsey:


               There is a two-step analysis for determining whether a statement
               is properly admitted under Indiana Evidence Rule 803(4): “(1)
               whether the declarant is motivated to provide truthful
               information in order to promote diagnosis and treatment; and (2)
               whether the content of the statement is such that an expert in the
               field would reasonably rely upon it in rendering diagnosis or
               treatment.”

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019    Page 22 of 30
       Id. (quoting Palilonis, 970 N.E.2d at 726).


[36]   “Statements made by victims of sexual . . . molestation about the nature of the .

       . . abuse—even those identifying the perpetrator—generally satisfy the second

       prong of the analysis because they assist medical providers in recommending

       potential treatment for sexually transmitted disease, pregnancy testing,

       psychological counseling, and discharge instructions.” VanPatten v. State, 986

       N.E.2d 255, 260 (Ind. 2013) (citing Palilonis, 970 N.E.2d at 726–27).


[37]   The first prong—regarding the declarant’s motivation—can generally be

       inferred from the fact a victim sought medical treatment. Walters v. State, 68

       N.E.3d 1097, 1100 (Ind. Ct. App. 2017) (citing VanPatten, 986 N.E.2d at 260–

       61), trans. denied. However, when young children are brought to a medical

       provider by their parents, the inference of the child’s motivation may be less

       than obvious, as the child may not understand the purpose of the examiner or

       the relationship between truthful responses and accurate medical treatment. Id.

       at 1100–01 (citing VanPatten, 986 N.E.2d at 260–61). In such situations,

       “evidence must be presented to show the child understood the medical

       professional’s role and the importance of being truthful.” Id. at 1101. “Such

       evidence may be presented ‘in the form of foundational testimony from the

       medical professional detailing the interaction between [her] and the declarant,

       how [she] explained [her] role to the declarant, and an affirmation that the

       declarant understood that role.’” Id. (quoting VanPatten, 986 N.E.2d at 261)

       (alterations in Walters).

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019   Page 23 of 30
[38]   In VanPatten, our supreme court held that the State had not established that the

       six-year-old victims understood the importance of telling the nurse the truth in

       order to get accurate medical treatment. VanPatten, 986 N.E.2d at 265. The

       nurse had observed the police interviews, the medical examination had been

       directly preceded by extensive interviews at the DCS, and the children

       themselves did not testify that they had understood the nurse’s role. Id. at 266.

       Moreover, the nurse was unable to testify regarding what she said to the

       victims, how they responded, and if they understood the situation. Id. at 266–

       67; see also Walters, 68 N.E.3d at 1101 (summarizing VanPatten).


[39]   Shoda claims that here, as in VanPatten, the State failed to establish that A.E.

       understood the importance of telling the truth to Nurse Coburn in order to get

       accurate medical treatment. We disagree.

[40]   Here, A.E. had not been forensically examined by the police or a therapist prior

       to her statements to Nurse Coburn. Instead, she was given a sexual assault

       examination immediately after disclosing the molestation. Cf. VanPatten, 986

       N.E.2d at 265 (noting that a prior forensic interview by DCS “mudd[ied] the

       issue of whether the underlying motivation even from their parents was to seek

       medical treatment for their children or to assist the police in their

       investigation.”). Nor did Nurse Coburn observe any prior forensic interview of

       A.E. before her interaction with A.E. Cf. id. (noting that nurse’s admission that

       she observed prior DCS interview before she spoke with the victims “rais[ed]



       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019    Page 24 of 30
       the concern that [the nurse’s] questioning may have steered the answers to

       support the allegations brought up in the interview.”).


[41]   We agree with the State that A.E.’s experience was similar to that of any child

       taken to see medical personnel after disclosing an injury. Mother testified at the

       protected persons hearing7 that the medical staff at the Center for Children

       explained to A.E. that “they were going to take [A.E.] back to the appointment

       area, doctor’s office.” Tr. Vol. 2., p. 13.

[42]   In VanPatten, the examining nurse testified as to what her standard procedures

       were but did not record this in the report used to refresh her memory at trial.

       This, the court held, “undercut” the court’s ability to infer that the children

       were motivated to respond truthfully to the nurse’s questions because they

       understood her professional role. VanPatten, 986 N.E.2d at 266.


[43]   Here, Nurse Coburn testified as to her usual practice:

                I do explain to children that I’m a nurse and that it’s my job to
                make sure that their body’s okay. I do explain that I will be
                taking a look at their body at the top of their head all the way
                down to their toes, but that I won’t do anything without their
                permission. I also ask the child if they understand what a nurse
                does.




       7
        As noted by the State, a trial court may consider evidence from a pre-trial hearing when ruling on the
       admissibility of evidence at trial. Kelley v. State, 825 N.E.2d 420, 426 (Ind. Ct. App. 2005).

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                           Page 25 of 30
       Tr. Vol. 3, p. 47. And, in contrast to the nurse in VanPatten, Nurse Coburn’s

       usual practices were recorded in her report. Specifically, she indicated in her

       report how she explained the role of a nurse and the examination to A.E. and

       discussed why nurses need to know what happened for purposes of medical

       treatment. Ex. Vol., State’s Trial Ex. 3. Nurse Coburn also indicated in her

       report that A.E. understood Coburn’s role as a nurse and the purpose of the

       examination and treatment. Id. Specifically A.E. indicated her understanding

       by saying, “Nurses check you for strep throat.” Id. Thus, even though Nurse

       Coburn could not recall the exact words she spoke to A.E., her standard

       procedure, confirmed by her contemporaneous notes, sufficiently establish that

       she explained to A.E. her role as a nurse and that A.E. understood that her

       statements to Nurse Coburn were for the purpose of medical treatment.


[44]   The trial court could reasonably conclude from these facts and circumstances

       that A.E. was motivated to provide truthful information to Nurse Coburn to

       promote medical diagnosis and treatment. Thus, we are unable to say that the

       trial court abused its discretion in concluding that A.E.’s out-of-court

       statements to Nurse Coburn were admissible under the exception to the hearsay

       rule contained in Evidence Rule 803(4). See Walters, 68 N.E.3d at 1101 (holding

       that trial court did not abuse its discretion by admitting evidence of child

       victim’s statement to nurse where nurse had not attended any previous

       interview with the child, the physical examination took place on a different day

       than the forensic interviews, the nurse was able to recall how she explained her


       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019      Page 26 of 30
       role to the child, and the interview took place in a building similar to a doctor’s

       office separate from law enforcement agencies); Cooper v. State, 714 N.E.2d 689,

       694 (Ind. Ct. App. 1999) (holding that trial court did not abuse its discretion by

       admitting evidence of child’s out-of-court statement to nurse where child knew

       that she was in the emergency room for an examination due to her having been

       molested and where child understood the professional role of the nurse and

       doctor who examined her, triggering the motivation to provide truthful

       information), trans. denied.


                              A.E.’s Statements to Her Therapist
[45]   Lastly, Shoda argues that the trial court abused its discretion by admitting

       evidence of A.E.’s out-of-court statements to her therapist, Trier. He first

       claims, as he did with regard to A.E.’s statement to Nurse Coburn, that this

       evidence was inadmissible because the State failed to give the required notice

       under the protected persons statute. Yet again, however, there is no indication

       in the record that Shoda objected on these grounds at trial. This argument is

       therefore waived for purposes of appeal. See Casady, 934 N.E.2d at 1191 (citing

       Malone, 700 N.E.2d at 784). And again, the purpose of the protected persons

       statute is to allow, under certain circumstances, evidence that is otherwise

       inadmissible under the Rules of Evidence. Thus, if A.E.’s statements to Trier are

       admissible under Evidence Rule 803(4), the protected persons statute is

       inapplicable. See Tyler, 903 N.E.2d at 465; Coomer, 575 N.E.2d at 685.



       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019    Page 27 of 30
[46]   Shoda also argues that A.E.’s statements to Trier did not meet the foundational

       requirements of Evidence Rule 803(4). In support of his argument, he relies on

       the decision of our supreme court in McClain v. State, 675 N.E.2d 329 (Ind.

       1996). In that case, the trial court had permitted a family therapist to testify that

       the victim had told her that “someone had put their mouth on, I believe his

       term the first time was, his private part.” Id. at 330 (citation omitted). On

       appeal, the defendant argued that this statement did not fall within the ambit of

       Evidence Rule 803(4).

[47]   The McClain court noted that, in order to qualify as a statement made to

       promote diagnosis or treatment, “there must be evidence that the declarant

       understood the professional’s role in order to trigger the motivation to provide

       truthful information.” Id. (citing United States v. Barrett, 8 F.3d 1296, 1300 (8th

       Cir. 1993). In McClain, there was no such evidence. Specifically, there was no

       evidence that the victim sought the therapist’s help or believed that he was

       receiving any treatment. Instead, the child victim testified that the therapist was

       his “counselor” and that he talked to her about what McClain had done to him.

       Id. Accordingly, the court held that “the record is devoid of any evidence

       showing that the victim understood that he was speaking to a trained

       professional for the purposes of obtaining diagnosis of, or providing treatment

       for, emotional or psychological injuries.” Id.




       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019      Page 28 of 30
[48]   Here, however, there is evidence indicating that A.E. knew that she was

       speaking to a trained professional for the purpose of obtaining treatment. Trier

       testified that she explained to A.E. why they were meeting:


               I explained to her that I was a play therapist and I often when
               bad, sad or scary things happen with kids, that it feels good to
               talk about that with, with someone who is trained to talk about
               those things. And we share a book, that’s part of that trauma
               curriculum, that explains what play therapy is, showed her
               around the room and encouraged her that this was a place that
               was safe to talk about anything that she wanted to talk about.


       Tr. Vol. 3, p. 78. Trier also explained to A.E. the purpose of “what we do” and

       explained mental health to her. Id. at 80. A.E. appeared to understand the

       therapeutic purpose behind her interaction with Trier. See id. at 79 (Trier

       agreeing that A.E. understood “the therapeutic purpose behind what [Trier]

       was doing.”).


[49]   Because there was evidence that A.E. understood that she was speaking with

       Trier for the purpose of obtaining treatment for her psychological or emotional

       trauma, we cannot say that the trial court abused its discretion by concluding

       that A.E.’s statements to Trier were made for and pertinent to medical

       treatment. See In re A.F., 69 N.E.3d 932, 948 (Ind. Ct. App. 2017) (holding that

       trial court did not abuse its discretion by admitting evidence of child’s out-of-

       court statement to therapist where the record established that the child

       understood that she was someplace safe, the therapist explained that therapy


       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019      Page 29 of 30
       was a means by which the child could work to solve problems, and that the

       therapist was there to help her), trans. denied. Accordingly, the trial court did not

       abuse its discretion by admitting Trier’s testimony recounting A.E.’s statements

       regarding Shoda’s molestation during the therapy sessions.8


                                                   Conclusion
[50]   The trial court did not abuse its discretion by concluding that A.E.’s statements

       during the forensic interview were admissible under the protected persons

       statute, because A.E. was available for cross-examination at the protected

       persons hearing. Nor did the trial court abuse its discretion in the admission of

       A.E.’s statements to Nurse Coburn or to her therapist, Trier, as those

       statements fell within the exception to the hearsay rule for statements made for

       the purpose of medical diagnosis or treatment. Accordingly, we affirm the

       judgment of the trial court.9

[51]   Affirmed.


       May, J., and Brown, J., concur.




       8
         Although Shoda also claims that the trial court erred by admitting a picture drawn by A.E. during her
       therapy with Trier, he does not fully develop this argument, and we therefore consider it waived.
       9
        Because we reject Shoda’s claim that the admission of this evidence was improper, we need not address his
       argument that any error was not harmless.

       Court of Appeals of Indiana | Opinion 18A-CR-2279 | September 9, 2019                           Page 30 of 30
