                                                                     Jul 17 2015, 10:02 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joseph M. Johnson                                          Gregory F. Zoeller
Decatur, Indiana                                           Attorney General of Indiana
Mark A. Thoma                                              George P. Sherman
Leonard Hammond Thoma & Terrill                            Deputy Attorney General
Fort Wayne, Indiana                                        Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

David C. Ennik,                                            July 17, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           90A02-1409-CR-664
        v.                                                 Appeal from the Wells Circuit Court.
                                                           The Honorable Kenton W. Kiracofe,
State of Indiana,                                          Judge.
                                                           Cause Nos. 90C01-1211-FA-3 &
Appellee-Plaintiff.
                                                           90C01-1303-FC-5




Riley, Judge.




Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015                    Page 1 of 24
                                      STATEMENT OF THE CASE

[1]   Appellant-Defendant, David C. Ennik (Ennik), appeals his conviction for one

      Count of child molesting as a Class A felony, Ind. Code § 35-42-4-3(a)(1)

      (2012); and two Counts of child molesting as Class C felonies, I.C. § 35-42-4-

      3(b) (2012).


[2]   We affirm.


                                                        ISSUES

[3]   Ennik raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion by denying Ennik’s motion for

      severance; and

      (2) Whether the trial court abused its discretion by admitting hearsay evidence.


                            FACTS AND PROCEDURAL HISTORY1

[4]   T.W. (Father) and J.N. (Mother) are the biological parents of two daughters:

      K.N., born December 14, 2006, and M.W., born February 5, 2008. For the first

      few years of K.N.’s and M.W.’s lives, Mother was the custodial parent.




      1
        In accordance with the revised Administrative Rule 9(G), certain evidence was submitted to our court
      which is declared confidential and must be excluded from public access. See Ind. Administrative Rule
      9(G)(2). Despite the fact that the parties have only partially complied with the Administrative Rule, we have
      endeavored to maintain confidentiality on appeal. However, as a number of facts derived from the
      confidential records are “essential to the resolution of litigation[,]” we have included confidential information
      in this decision only to the extent necessary to resolve this appeal. Admin. R. 9(G)(7)(a)(ii)(c).

      Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015                            Page 2 of 24
      However, as both Father and Mother have frequently rotated in and out of

      jail/prison, K.N. and M.W. have had a very unstable childhood.


[5]   At some point in 2008, Mother befriended Ennik. Mother was overwhelmed

      with two small children, so Ennik—who lived with his mother in Bluffton,

      Wells County, Indiana—offered to temporarily care for M.W. Ennik and his

      mother cared for and supported M.W. for approximately the first year of her

      life. Ennik also regularly babysat and provided financial support for K.N.


[6]   In the fall of 2010, following an altercation between Mother and her then-

      boyfriend, the Department of Child Services (DCS) removed K.N. and M.W.

      from Mother’s custody and, at Mother’s request, placed them with Ennik. In

      November of 2010, Father was awarded custody of both girls. Shortly after

      obtaining custody, Father’s wife, K.S., noticed that the girls were acting out in a

      sexualized manner, such as by looking at and inserting their fingers inside each

      other’s private areas. K.S. informed Father of her observations. After

      consulting with family members as to whether such behavior was normal,

      Father believed that the girls were just experiencing a natural phase of curiosity.

      K.N. and M.W. also complained of painful urination and vaginal itching, so

      Father took them to a doctor who advised that Father should discontinue their

      bubble baths and use cream to treat their yeast infections.


[7]   For a short period of time after Father was granted custody, Ennik did not have

      any contact with K.N. and M.W. However, at some point, Father had a

      discussion with Ennik and Ennik’s mother and, after observing “how much


      Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 3 of 24
      [K.N. and M.W.] loved [Ennik’s] family,” Father allowed Ennik, then age

      forty-seven, to resume his babysitting duties. (Tr. p. 497). For the next year,

      Father explained that Ennik babysat K.N. and M.W. approximately “every

      other weekend” for “[t]he whole weekend usually.” (Tr. p. 484). Although

      Ennik sometimes babysat K.N. and M.W. inside his mother’s house, at other

      times, he and the girls either stayed in his camper, which was parked in his

      mother’s driveway, or he took them camping at his mother’s other property in

      Ossian, Indiana. The last time Ennik babysat K.N. and M.W. was for a week

      in March of 2012 while Father and K.S. moved into their new home in

      Huntington, Indiana.


[8]   In November of 2011, E.R.—another friend of Ennik’s—moved to Bluffton

      with her husband and four children. Because their house was not yet ready,

      E.R. and her family had to live in a hotel for a brief period of time. However,

      in order for her oldest child, B.P.W., born December 15, 2004, to attend school,

      E.R. arranged for B.P.W. to live with Ennik for a few weeks. E.R. and her

      husband both worked second shift, so even after E.R.’s family moved into their

      new house, Ennik continued to babysit B.P.W. and her siblings through

      February of 2012. During the time that Ennik babysat B.P.W., K.N. and M.W.

      were also present on several occasions, and all three girls would sleep in the

      camper with Ennik.


[9]   In December of 2011, Mother was incarcerated, and she was released on

      September 11, 2012. Immediately upon her release, Mother began exercising

      parenting time with five-year-old K.N. and four-year-old M.W. On September

      Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 4 of 24
       22, 2012, during her weekend parenting time, Mother was bathing K.N. and

       M.W., and she explained to them that only she, Father, or K.S. should ever

       wash the girls. K.N. responded that Ennik “did” and when Mother inquired

       further, “K.N. just pointed to her private and held two fingers up and wiggled

       them.” (Tr. pp. 371-72). When Mother questioned M.W., K.N. whispered to

       M.W. that it was okay to share the “secret” with Mother. (Tr. p. 371). Mother

       immediately contacted the police.


[10]   On September 23, 2012, the Wells County DCS office commenced an

       investigation. DCS Family Case Manager Wendeline Garrett (FCM Garrett)

       interviewed K.N. and M.W. individually using the “Finding Words”

       methodology. (Tr. p. 152). Detective Sergeant Steven Cale (Detective Cale) of

       the Bluffton Police Department was present during the interviews, which were

       video recorded.


[11]   During the interview with K.N., FCM Garrett asked whether she had ever

       received “a touch that somebody told you not to tell about.” (Defendant’s Exh.

       C, p. 18). K.N. answered affirmatively, stating that it was “somebody my mom

       knows. . . . His name is Dave”—i.e., Ennik. (Defendant’s Exh. C, p. 19). K.N.

       then repeatedly circled the vaginal area on an anatomical diagram to indicate

       why she did not like going to Ennik’s. She stated that he had told her not to tell

       anyone that he had touched her there. K.N. also drew two “[f]ingers” on the

       diagram to show what part of Ennik’s body had touched her, and she answered

       that he had touched her “[u]nder” her clothes and “[u]nder” her underwear,

       and his fingers were on the “[i]nside.” (Defendant’s Exh. C, pp. 22, 24-25, 27).

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 5 of 24
       K.N. said that the touching occurred at Ennik’s house, where he lives with his

       mom, and that she had been playing in the living room when Ennik “said come

       here.” (Defendant’s Exh. C, p. 23). K.N. added that “[h]e did it to my sister,

       too.” (Defendant’s Exh. C, p. 24). After answering that the touching had

       occurred “[m]ore” than one time, K.N. held up five fingers, then one finger,

       then ten fingers. (Defendant’s Exh. C, p. 26). K.N. explained that the touching

       “hurt” and denied that Ennik had ever asked her to touch any part of his body.

       (Defendant’s Exh. C, p. 29).


[12]   On the other hand, M.W. initially denied that anyone had ever touched her in a

       way that she did not like. When specifically asked about Ennik, M.W.

       explained that he was their babysitter, and she liked going to his house because

       it was “[f]un.” (Defendant’s Exh. B, p. 16). M.W. stated that Ennik would

       help her take baths by washing her hair, but she washed her own body. Later in

       the interview, FCM Garrett informed M.W. that “[K.N.] talked to [Detective

       Cale] and I about a touch that she got on her body that she did not like, that it

       hurt. . . . [D]id she tell you about that?” (Defendant’s Exh. B, p. 18). M.W.

       nodded her head yes and answered that “Dave”—i.e., Ennik—had been the one

       who touched K.N. (Defendant’s Exh. B, p. 19). M.W. then pointed to the

       vagina on an anatomical diagram to indicate where Ennik had touched K.N.

       When asked whether anyone had ever touched her there, M.W. nodded her

       head and answered that “Dave” had done so. (Defendant’s Exh. B, p. 19).

       M.W. pointed to the fingers on the anatomical diagram to show what part of

       his body Ennik had used to touch her, and she answered that he touched her on


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 6 of 24
       the “[o]utside” of her clothes and indicated that she did not like the touching.

       (Defendant’s Exh. B, p. 20).


[13]   On September 26, 2012, DCS received an anonymous tip, reporting that

       B.P.W. and her three younger sisters may also have been molested by Ennik

       while he babysat them. On October 5, 2012, FCM Garrett and Detective Cale

       interviewed B.P.W. and two of her siblings. At that time, neither B.P.W. nor

       her siblings disclosed any inappropriate touching by Ennik.


[14]   On October 5, 2012, a registered nurse/sexual assault nurse examiner, Joyce

       Moss (Nurse Moss), conducted forensic examinations of K.N. and M.W. at the

       Fort Wayne Sexual Assault Treatment Center. K.N. informed Nurse Moss that

       Ennik “touched [her] with [two] fingers” “on [her] skin” and “on the inside.”

       (Appellant’s App. p. 824). K.N. pointed to her own internal female sex organs

       and anal folds to indicate where Ennik touched her and explained that “he said

       don’t tell anyone.” (Appellant’s App. p. 824). K.N. also reported that “it hurt”

       and “burned when [she] peed.” (Appellant’s App. p. 824). Nurse Moss did not

       detect any physical injuries during her examination of K.N. At the start of her

       examination, M.W. identified the female genitalia as the “bottom” and referred

       to the buttocks as the “butt.” (Appellant’s App. p. 831). She then stated to

       Nurse Moss that Ennik “touched [her] bottom” on her “skin” and on the

       “inside” with his finger. (Appellant’s App. p. 831). As she explained where she

       was touched, M.W. pointed to her own vagina. M.W. added that the touching

       occurred “one time” and “it hurted.” (Appellant’s App. p. 831). Nurse Moss

       did not detect any physical injuries during M.W.’s examination. At trial, the

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 7 of 24
       parties stipulated to the admission of Nurse Moss’ written reports, which

       included K.N.’s and M.W.’s statements.


[15]   On November 13, 2012, the State filed an Information in Cause Number

       90C01-1211-FA-000003 (Cause #003), charging Ennik with Count I, child

       molesting of K.N., a Class A felony, I.C. § 35-42-4-3(a)(1) (2012); and Count II,

       child molesting of M.W., a Class C felony, I.C. § 35-472-4-3(b) (2012).


[16]   In March of 2013, E.R. noticed that B.P.W. was scratching her vagina, which

       led to “[a] mother/daughter conversation.” (Tr. p. 505). B.P.W. then disclosed

       to E.R. that she had been afraid during her first interview with DCS five

       months earlier. She claimed that she did not tell the truth about Ennik and that

       he had, in fact, touched her vagina with his finger. E.R. contacted DCS, and

       on March 14, 2013, FCM Garrett and Detective Cale re-interviewed B.P.W.

       This time, B.P.W. alleged that Ennik had touched her vagina while she was

       lying in bed in his camper. On March 19, 2013, the State filed an Information

       in Cause Number 90C01-1303-FC-000005 (Cause #005), charging Ennik with

       one Count of child molesting of B.P.W., a Class C felony, I.C. § 35-42-4-3(b)

       (2012).


[17]   On July 17 and 31, 2013, Dr. Amanda Mayle (Dr. Mayle), a clinical

       psychologist, met with K.N. and M.W. to assess their abilities to recount their

       allegations, understand the nature and obligation of an oath, and provide

       testimony in court. K.N. recalled that Ennik had “touched us on our bottoms,

       in the front” on one occasion while they were in the camper, and that his


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 8 of 24
       fingers stayed on the “outside.” (Defendant’s Exh. D). On the other hand,

       M.W. stated that Ennik “touched [her] on the bottom” as she pointed to her

       vagina, while she was asleep in the camper, which caused her to wake up and

       yell. (Defendant’s Exh. D). She also stated that Ennik had touched her on top

       of her clothes, that it happened twice, and that he told her not to tell anyone.

       On August 5, 2013, Dr. Mayle filed a report in which she determined that K.N.

       demonstrated “the ability to tell the difference between the truth and a lie and

       the importance of telling the truth and understand the nature of an oath.”

       (Defendant’s Exh. D). Dr. Mayle reached the same conclusion with respect to

       M.W. At trial, Dr. Mayle’s written reports, which included the detailed

       statements of K.N. and M.W., were admitted pursuant to the parties’

       stipulation.


[18]   On January 24, 2014, the State filed a Motion for Joinder of Offenses in Causes

       #003 and #005. On February 7 and 12, 2014, Ennik filed objections to the

       State’s motion for joinder in Cause #005 and Cause #003, respectively.

       Following a February 12, 2014 hearing, on February 27, 2014, the trial court

       issued an Order granting the State’s motion for joinder. In particular, the trial

       court found that “the nature of the offenses are of the same or similar character,

       [and] they are also based on the same conduct and are a series of acts connected

       together, namely [Ennik] allegedly molesting the children while babysitting and

       bathing them.” (Appellant’s App. p. 133). On March 7, 2014, Ennik filed a

       Motion to Reconsider Joinder, Alternatively, Motion for Severance, which the

       trial court denied on June 17, 2014.


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 9 of 24
[19]   On June 26 and 27, 2014, the trial court held a protected person hearing—i.e., a

       child hearsay hearing—pursuant to Indiana Code section 35-37-4-6(e)(2)(B)(i)

       as to K.N. and M.W.2 During the hearing, Dr. Mayle testified that, based on

       her counseling sessions with K.N. and M.W., she did not “believe [M.W.]

       would be able to[] [communicate the facts in a jury trial setting with Ennik

       present in the courtroom].” (Tr. p. 171). Likewise, Dr. Mayle explained that

       “[K.N.] would completely shut down as well.” (Tr. p. 172). In lieu of K.N.

       and M.W. testifying, the State sought to introduce the recorded interviews

       conducted by FCM Garrett and Detective Cale, as well as statements made by

       K.N. and M.W. to Mother, Nurse Moss, and Dr. Mayle. Ennik was provided

       with the opportunity to cross-examine K.N. and M.W. via closed-circuit

       television at the protected person hearing. In sharing her version of events for

       the fifth time, K.N. was initially reluctant to discuss the allegations. However,

       she eventually stated that Ennik touched her on her skin with his fingers. She

       added that she did not see him touch anyone else and that it did not hurt.

       M.W. stated under oath that Ennik touched her one time in a “[b]ad spot” on

       top of her clothes and that she saw him touch K.N. and B.P.W. while they were

       all inside the camper. (Tr. p. 198). On July 14, 2014, the trial court concluded

       that K.N. and M.W. were both unavailable to testify at trial “as testifying in the

       physical presence of [Ennik] would cause the children to suffer serious

       emotional distress such that they could not reasonably communicate.”



       2
          B.P.W. was not part of the protected person hearing as she was found able to—and did—testify during the
       trial.

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015                     Page 10 of 24
       (Appellant’s App. p. 276). Furthermore, the trial court concluded that the

       statements made by K.N. and M.W. to Mother and their recorded interviews

       with FCM Garrett and Detective Cale could be admitted at trial.


[20]   A four-day jury trial commenced on August 4, 2014. At the close of the

       evidence on August 7, 2014, the jury returned a guilty verdict on all three

       Counts. On August 29, 2014, the trial court conducted a sentencing hearing

       and imposed a sentence of fifty years for child molesting as a Class A felony,

       and eight years on each of the two Class C felony child molesting charges. The

       trial court ordered Ennik’s sentences to run consecutively, resulting in an

       aggregate term of sixty-six years, fully executed in the Indiana Department of

       Correction.


[21]   Ennik now appeals. Additional facts will be provided as necessary. 3


                                     DISCUSSION AND DECISION

                                                I. Joinder/Severance

[22]   Before trial, the trial court, over Ennik’s objection, granted the State’s motion to

       join the offenses in Cause #003 and Cause #005. Thereafter, Ennik filed a

       Motion to Reconsider Joinder, Alternatively, Motion for Severance. Ennik

       now contends that the trial court erred in granting the State’s motion for




       3
         Contrary to Indiana Appellate Rule 44(D)-(E), Ennik’s forty-eight page brief exceeds the thirty-page limit
       and does not include a certification that the word count is less than 14,000. We remind the parties that
       compliance with the appellate rules is essential for our court’s efficient review of cases.

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015                        Page 11 of 24
       joinder, whereas the State asserts that the trial court properly denied Ennik’s

       motion for severance.


[23]   Once the State’s motion for joinder was granted over Ennik’s objection, proper

       procedure required him to file a motion for severance, which he did. See I.C. §

       35-34-1-12(a) (stating that a motion for severance must be made before the start

       of trial, or before the close of evidence if based upon a ground not previously

       known, or the right to severance will be waived). Then, once his motion for

       severance was overruled, it was incumbent upon Ennik to renew his severance

       motion “before or at the close of all the evidence during trial.” I.C. § 35-34-1-

       12(b). Here, because Ennik did not renew his severance motion during the trial,

       the State correctly argues that he has waived the matter for appeal. See I.C. §

       35-34-1-12(b) (“The right to severance of offenses or separate trial is waived by

       failure to renew the motion.”). Nevertheless, Ennik maintains that the causes

       were improperly joined notwithstanding his motion for severance, and he

       further contends that his objection to the joinder and subsequent motion to

       reconsider/motion for severance satisfies the statutory requirement for a

       renewal of the motion. Although we disagree and find that Ennik waived this

       issue for appeal by failing to renew his severance motion at trial, we will

       address his claim on the merits.


[24]   “The degree of deference owed to a trial court’s ruling on a motion for

       severance depends on the basis for joinder.” Pierce v. State, 29 N.E.3d 1258,

       1264 (Ind. 2015). Two or more offenses may properly be joined in the same

       information if the offenses: “(1) are of the same or similar character, even if not

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 12 of 24
       part of a single scheme or plan; or (2) are based on the same conduct or on a

       series of acts connected together or constituting parts of a single scheme or

       plan.” I.C. § 35-34-1-9(a). Indiana Code section 35-34-1-11(a) provides that a

       defendant has “an absolute right to severance of offenses which have been

       joined ‘solely on the ground that they are of the same or similar character.’”

       Davidson v. State, 558 N.E.2d 1077, 1083 (Ind. 1990). Thus, where causes are

       joined solely under subsection 9(a)(1), i.e., same or similar character, the trial

       court has no discretion to deny a severance motion, and we review its decision

       de novo. Pierce, 29 N.E.3d at 1264. However, if the offenses have been joined

       under subsection 9(a)(2) because the defendant’s underlying acts are connected

       together, we review the trial court’s ruling for an abuse of discretion. Id. In this

       case, the trial court found that joinder was appropriate because “the nature of

       the offenses are of the same or similar character” and because “they are based

       on the same conduct and are a series of acts connected together.” (Appellant’s

       App. p. 133).


[25]   If two or more offenses could be joined in the same information because they

       are of the same or similar character, “the court, upon motion of the defendant, may

       order that the indictments or informations be joined for trial.” I.C. § 35-34-1-

       10(a) (emphasis added). However, if two or more offenses may be joined based

       on the same conduct or a series of acts connected together or constituting a

       single scheme or plan, “the court, upon motion of the defendant or the prosecuting

       attorney, or on its own motion shall join for trial all of such indictments or

       informations unless the court, in the interests of justice, orders that one (1) or

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 13 of 24
       more of such offenses shall be tried separately.” I.C. § 35-34-1-10(b) (emphasis

       added). In this case, Ennik maintains that although the offenses charged under

       Cause #003 and Cause #005 are of the same or similar character, they are not

       based on the same conduct or on a series of acts connected together or parts of a

       single scheme or plan. Thus, because it was the State—not Ennik—which

       requested the joinder of Causes #003 and #005, Ennik posits that joinder was

       erroneous. And because he argues that the causes were joined only because of

       similar character, Ennik also claims that he was entitled to severance as a

       matter of right.4 We disagree.


[26]   “Subsection 9(a)(1) refers to the nature of the charged offenses; subsection

       9(a)(2) refers to the operative facts underlying those charges.” Pierce, 29 N.E.3d

       at 1265. “To determine whether offenses warrant joinder under subsection

       9(a)(2), we ask whether the operative facts establish a pattern of activity beyond

       mere satisfaction of the statutory elements.” Id. at 1266. Our supreme court

       has previously determined that joinder under subsection 9(a)(2) may be justified

       “‘if the State can establish that a common modus operandi linked the crimes and

       that the same motive induced that criminal behavior.’” Craig v. State, 730

       N.E.2d 1262, 1265 (Ind. 2000) (quoting Ben-Yisrayl v. State, 690 N.E.2d 1141,




       4
         Ennik solely claims that he was entitled to severance as a matter of right; he does not argue that the trial
       court abused its discretion in joining the causes under subsection 9(a)(2) by failing to evaluate whether
       “severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each
       offense considering: (1) the number of offenses charged; (2) the complexity of the evidence to be offered; and
       (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each
       offense.” I.C. § 35-34-1-11(a). Thus, we limit our review “to whether [Ennik’s] ‘absolute right to a severance
       of the offenses’ was violated.” Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App. 2003), trans. denied.

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015                           Page 14 of 24
       1145 (Ind. 1997)). It is well established that offenses can “be linked by a

       defendant’s efforts to take advantage of his special relationship with the

       victims.” Pierce, 29 N.E.3d at 1266; see Turnpaugh v. State, 521 N.E.2d 690, 692

       (Ind. 1988) (finding the molestation of two “young sisters who were overnight

       guests sufficiently shows that the misconduct in each case was part of a series of

       acts committed together and part of a single scheme or plan”).


[27]   In the present case, Ennik “exploited his position” as a babysitter by molesting

       three young females entrusted to his care. Pierce, 29 N.E.3d at 1266.

       Furthermore, Ennik’s “method was consistent.” Id. at 1267. While babysitting

       each of the three girls, Ennik touched their vaginas with his fingers. Each girl

       stated that on at least one occasion, the touching occurred while they were lying

       in bed in Ennik’s camper. Accordingly, the trial court correctly found that

       joinder was proper under both subsection 9(a)(1) and 9(a)(2); thus, Ennik was

       not entitled to severance as a matter of right.


                                             II. Admission of Hearsay

                                                 A. Standard of Review

[28]   “[T]he decision to admit or exclude evidence is within a trial court’s sound

       discretion and is afforded great deference on appeal.” Carpenter v. State, 786

       N.E.2d 696, 702 (Ind. 2003). Accordingly, our court will reverse a trial court’s

       ruling on the admission of evidence only if “it represents a manifest abuse of

       discretion that results in the denial of a fair trial.” Id. It is an abuse of

       discretion if “the trial court’s decision is clearly against the logic and effect of


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015       Page 15 of 24
       the facts and circumstances before the court or it misinterprets the law.” Trujillo

       v. State, 806 N.E.2d 317, 323 (Ind. Ct. App. 2004).


                                     B. Indiana’s Protected Person Statute

[29]   Ennik claims that the trial court abused its discretion by admitting into evidence

       the statements of K.N. and M.W. made to Mother and to FCM Garrett and

       Detective Cale during their recorded interviews.5 A hearsay statement is one

       that “is not made by the declarant while testifying at the trial or hearing” and

       “is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence

       Rule 801(c). In general, hearsay is not admissible unless the Rules of Evidence

       specifically provide otherwise. Evid. R. 802. It is undisputed that K.N.’s and

       M.W.’s statements to Mother, as well as their recorded interviews with FCM

       Garrett and Detective Cale, constitute hearsay.


[30]   “Hearsay is excluded from judicial proceedings because ‘its admission defeats

       the criminal defendant’s right to confront and cross-examine witnesses against

       him.’” Carpenter, 786 N.E.2d at 698 (quoting Williams v. State, 544 N.E.2d 161,

       162 (Ind. 1989)). Yet, hearsay evidence also “often helps the jury find the truth;

       excluding hearsay testimony can deny the jury crucial evidence.” Id. “[I]n an

       effort to balance these competing interests,” the Indiana General Assembly has

       enacted special procedures for introducing evidence that would otherwise be

       inadmissible in cases involving crimes against children. Id. at 698-99. Indiana



       5
        Ennik concedes that he stipulated to the admission of the hearsay statements made by K.N. and M.W. to
       Nurse Moss and Dr. Mayle; thus, he does not challenge them on appeal.

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015                   Page 16 of 24
       Code section 35-37-4-6—the “Protected Person Statute”—enumerates “a

       detailed set of conditions” under which a child’s hearsay statements are

       admissible. Id. at 699.


[31]   The Protected Person Statute defines a “protected person,” in part, as “a child

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

       or videotape that is made by a protected person, and which would otherwise be

       inadmissible hearsay, may be admitted in a criminal action involving a sex

       offense if it concerns a material element of the charged offense and if the

       following conditions are satisfied:

               (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 . . . ;
                    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.




       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015           Page 17 of 24
                        (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(d)-(e); see I.C. § 35-37-4-6(b)(2). Considerations for

       determining whether a protected person’s hearsay statements are sufficiently

       reliable include: “(1) the time and circumstances of the statement, (2) whether

       there was significant opportunity for coaching, (3) the nature of the questioning,

       (4) whether there was a motive to fabricate, (5) use of age appropriate

       terminology, and (6) spontaneity and repetition.” Surber v. State, 884 N.E.2d

       856, 862 (Ind. Ct. App. 2008), trans. denied. “There are undoubtedly many

       other factors in individual cases.” Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997).


[32]   Here, the trial court found that K.N. and M.W.—both less than fourteen years

       of age—were unavailable to testify based on Dr. Mayle’s opinion that they

       would suffer serious emotional distress such that they would be unable to

       reasonably communicate. The trial court further concluded that the time,

       content, and circumstances of K.N.’s and M.W.’s statements and recorded

       interviews provided sufficient indications of reliability. Relying on Pierce and

       Carpenter, Ennik now asserts that K.N.’s and M.W.’s statements were not

       sufficiently reliable because (1) their statements “were made long after any

       alleged molestation”; (2) their statements to law enforcement were inconsistent

       with the statements made to Mother, Nurse Moss, and Dr. Mayle; (3) FCM

       Garrett’s questioning was “suggestive”; (4) there was no independent

       corroboration of their statements; and (5) “[t]here is evidence to suggest the

       ‘implantation’ of a story.” (Appellant’s Br. pp. 45-46).


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015       Page 18 of 24
[33]   In Pierce, our supreme court affirmed the trial court’s reliability determination

       regarding statements a child had made to her mother and police officers, as well

       as her videotaped interview. 677 N.E.2d at 39. First, the court concluded that

       the child’s “statements were spontaneous and occurred ‘a very short time’ after

       the alleged molestation.” Id. at 45. The child’s answers were neither prompted

       nor suggested, and the child’s mother was available for cross-examination “as

       to the potential for any implantation or cleansing of [the child’s] story.” Id.

       The supreme court noted its concern with the delay of several hours between

       the alleged molestation and the child’s videotaped interview as the “passage of

       time tends to diminish spontaneity and increase the likelihood of suggestion.”

       Id. Also, the interview occurred after the child’s “potentially disorienting

       physical examination at a doctor’s office[,]” and the child’s mother “suggested

       several answers to [the child] during the interview and asked her leading

       questions.” Id. Nonetheless, the child’s statements were consistent with her

       previous spontaneous statements and were in her own words, and the Pierce

       court found “no showing that the videotape was more than cumulative of the

       statements [the child] made immediately following the incident.” Id.


[34]   Conversely, in Carpenter, our supreme court reversed the trial court’s

       determination that a child’s statements to her mother and grandfather and her

       videotaped interview with DCS were reliable. 786 N.E.2d at 696. First, there

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

       703. In the charging information, the State alleged “a period exceeding six

       weeks during which the alleged molestation could have taken place[,]” but there

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 19 of 24
       was no indication that the disclosure was made close in time to the molestation.

       Id. Second, because the child’s statements to her grandfather were made a full

       day after her disclosure to her mother and the videotaped interview, there was

       an opportunity for “implantation or cleansing.” Id. at 704. Finally, the

       Carpenter court noted that the child was unable to distinguish between the truth

       and a lie, and “there is a degree of logical inconsistency in deeming reliable the

       statements of a person who cannot distinguish truth from falsehood.” Id.


[35]   In this case, there was a significant gap between the alleged molestation and

       K.N.’s initial disclosure to Mother. Similar to Carpenter, the date of the

       molestation is unclear. Because K.N. and M.W. were unable to pinpoint a

       specific timeframe except to indicate that it occurred while Ennik was

       babysitting and while they were living with Father because Mother was

       incarcerated, the State charged that the alleged molestation could have taken

       place anytime between December 1, 2010, and December 31, 2011—a span of

       thirteen months. K.N. did not report the abuse to Mother until September 22,

       2012. Thus, anywhere from nine to twenty-two months passed between the

       actual molestation and K.N.’s initial disclosure. While this substantial passage

       of time certainly casts doubt on the reliability of the girls’ statements, we are

       mindful that it is “only one factor to be considered and is not necessarily

       dispositive.” Mishler v. State, 894 N.E.2d 1095, 1100 (Ind. Ct. App. 2008), trans.

       denied. As the trial court found, “[c]ommon sense and experience have shown

       that rarely do children disclose abuse or molestation immediately after it

       occurs.” (Appellant’s App. p. 276). We also take into account the evidence


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 20 of 24
       establishing that K.N. and M.W. both loved and trusted Ennik, and they

       consistently stated throughout the investigation that Ennik had warned them

       not to tell anyone about the touching.


[36]   It is also important to consider that K.N.’s statements were made

       spontaneously in response to Mother’s instructions that only she, Father, and

       K.E. should ever bathe them. See Trujillo, 806 N.E.2d at 327 (noting the child’s

       statements were made “in response to her mother’s non-leading, non-suggestive

       inquiry about how her day had gone”). The next day, Mother took K.N. and

       M.W. to be interviewed at the DCS office, and both girls disclosed

       inappropriate touching by Ennik. Regarding any concern that the delay

       provided an opportunity for Mother to plant a story or coach the girls, Mother

       testified that she did not discuss the matter with the girls between K.N.’s initial

       disclosure and their interview with FCM Garrett. See A.R.M. v. State, 968

       N.E.2d 820, 826 (Ind. Ct. App. 2012) (finding no abuse of discretion in the trial

       court’s reliability determination where there was no evidence that the child’s

       mother “discussed the incident with [the child] again before [the child] was

       interviewed . . . , let alone coached him”). Moreover, Mother was available for

       cross-examination at the protected person hearing regarding the possibility that

       she planted or coached the children’s versions of events. Instead, Mother

       testified that prior to K.N.’s disclosure in the bathtub, she had no reason to

       suspect that Ennik would ever touch the girls inappropriately as he had been a

       close friend and had always helped her by taking care of the girls.




       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 21 of 24
[37]   “Doubt may be cast on the reliability of the statement or videotape if it is

       preceded by lengthy or stressful interviews or examinations.” Taylor v. State,

       841 N.E.2d 631, 635 (Ind. Ct. App. 2006), trans. denied. Whereas the Pierce and

       Carpenter courts found it concerning that the children were interviewed after

       physical exams, here, K.N. and M.W. were not physically examined by Nurse

       Moss until several weeks after their interviews with FCM Garrett. Also, distinct

       from Pierce, Mother was not present during K.N.’s and M.W.’s recorded

       interviews and thus could not suggest answers. However, Ennik asserts that

       FCM Garrett’s questions were suggestive, as evidenced by the fact that M.W.

       denied being touched until FCM Garrett “suggested to her that K.N. had said

       something to them.” (Appellant’s Br. p. 45). The record reveals that FCM

       Garrett was trained in interviewing techniques for young children and relied on

       the Finding Words methodology, which is a generally accepted approach for

       interviewing a child in a molestation case. FCM Garrett did not suggest the

       identity of the person who may have touched K.N., nor did FCM Garrett offer

       the details of the touching, such as where K.N. was touched and with what

       body part. Rather, M.W. volunteered that “Dave” had touched K.N. with his

       fingers, and she pointed to the vagina on the anatomical diagram. (Defendant’s

       Exh. B, p. 19). Thereafter, M.W. acknowledged that Ennik had also touched

       her in the same manner.


[38]   Although there were some inconsistencies in each of the girls’ subsequent

       statements to Nurse Moss and Dr. Mayle—such as the number of times the

       touching occurred—K.N. and M.W. consistently reported that Ennik touched


       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 22 of 24
       their vaginas with his fingers. Furthermore, it was up to the trial court, as the

       trier of fact during the protected person hearing, to make a decision based on its

       assessment of K.N.’s and M.W.’s credibility, and Dr. Mayle testified at the

       hearing that “at this age[,]” it would not be uncommon for children to “give

       different information to different people.” (Tr. p. 170). Moreover, K.N. and

       M.W. were subject to cross-examination, which was recorded and played for

       the jury, and Ennik was able to point out the inconsistencies in the girls’

       statements to the trier of fact. See Carpenter, 786 N.E.2d at 701.


[39]   The evidence also establishes that K.N. and M.W. had no motive to fabricate a

       story. During the protected person hearing, both Father and Mother testified

       that K.N. and M.W. loved Ennik and enjoyed spending time with him.

       Detective Cale testified that he is trained to detect signs that a child has been

       coached, and he observed no signs that either K.N. or M.W. were coached, and

       he further stated that both girls used age-appropriate language to describe the

       molestation. FCM Garrett also testified that she observed no indications that

       K.N.’s or M.W.’s responses were coached. In Carpenter, the supreme court

       found it significant that the child was unable to distinguish the difference

       between the truth and a lie. Here, Dr. Mayle testified at the protected person

       hearing that both K.N. and M.W. knew the difference between a truth and a lie,

       and during their cross-examinations, both girls swore to tell the truth.


[40]   Finally, as to Ennik’s claim that there was no independent corroboration of

       M.W.’s or K.N.’s statements, i.e., the detection of a physical injury during the

       medical examination, it is well established that “[c]orroboration should not be

       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 23 of 24
       considered when determining the reliability of the statement because Indiana

       Code section 35-37-4-6 does not limit admission only to statements where there

       is independent corroborative evidence of the crime.” M.T. v. State, 787 N.E.2d

       509, 512 (Ind. Ct. App. 2003). Under all of these facts and circumstances, we

       cannot conclude that the trial court abused its discretion in admitting K.N.’s

       and M.W.’s statements to Mother and their recorded interviews with FCM

       Garrett and Detective Cale.


                                                 CONCLUSION

[41]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in denying Ennik’s motion for severance, and the trial court did not

       abuse its discretion by admitting the hearsay statements of Mother and the

       recorded interviews with FCM Garrett and Detective Cale.


[42]   Affirmed.


[43]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015   Page 24 of 24
