      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Jan 29 2015, 10:02 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                     Gregory F. Zoeller
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      P.A.,                                                     January 29, 2015

      Appellant,                                                Court of Appeals Cause No.
                                                                49A02-1407-JV-450
              v.                                                Appeal from the Marion Superior
                                                                Court, Juvenile Division
                                                                Honorable Geoffrey Gaither,
      STATE OF INDIANA,                                         Magistrate
      Appellee.                                                 Cause No. 49D09-1308-JD-002386



      Friedlander, Judge.



[1]   P.A. appeals his delinquency true findings for acts that would constitute two

      counts of class B felony child molesting if committed by an adult. He presents

      one issue for review, which we restate as follows: Did the juvenile court



      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015    Page 1 of 5
      commit fundamental error when it allowed the State to make an offer to prove

      regarding the substance of excluded evidence?

[2]   We affirm.


[3]   P.A. and A.B. are paternal cousins. In the summer of 2012, P.A. stayed the

      night at A.B.’s house for his first and only time. P.A. and A.B. were sixteen

      and eleven years old, respectively. The two, along with one of A.B.’s friends,

      eventually relaxed on the living room floor while they talked and watched

      television together. After the friend fell asleep, P.A. pulled down A.B.’s pajama

      bottoms and placed his penis in her vagina and then in her anus. A.B. did not

      react to her older cousin’s actions. When he was done, P.A. pulled up A.B.’s

      pajama bottoms and turned over. The next morning he asked if she was okay.

      A.B. testified that she did not report the incident immediately because she was

      afraid she would get in trouble. She disclosed the abuse about a year later

      during a conversation with her mother and sisters about “being safe around

      boys”. Transcript at 49.


[4]   The police were called, and A.B.’s disclosures were investigated by Detective

      Justin Hickman of the Indianapolis Metropolitan Police Department. After

      taking a report from A.B., Detective Hickman met with P.A. and his mother on

      August 19, 2013. During a video recorded interview, P.A. admitted to having

      had vaginal and anal intercourse with A.B. He was taken into custody, and the

      State filed a petition alleging P.A. was delinquent for having committed acts




      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015   Page 2 of 5
      that would be three counts of child molesting, two class B felonies and one class

      C felony, if committed by an adult.

[5]   A.B. and her mother testified at the denial hearing. Detective Hickman was

      then called by the State. P.A. objected to the admission of the videotaped

      statement due to procedural irregularities. Specifically, after securing signatures

      on a juvenile waiver of rights form, Detective Hickman said, “mom do you

      want to come back out to the waiting room with me right now to wait with

      grandma”, and P.A.’s mother left. Id. at 79. P.A. claimed this was a denial of

      his right to have his mother present during the custodial interrogation. The

      juvenile court agreed and excluded the videotaped statement from evidence.

[6]   The State requested that the court view the initial portion of the video and

      reconsider its ruling. After viewing the portion of the video up to and including

      when the mother left, the court reaffirmed its ruling. Immediately thereafter,

      the State indicated its desire to make an offer to prove, and P.A. did not object.

      The State proceeded to detail what the video would reflect if it were permitted

      into evidence. This included P.A.’s eventual confession as to each of the

      delinquency allegations.

[7]   At the conclusion of the fact-finding hearing, the court entered true findings

      with respect to the two class B felony allegations and a not true finding with

      respect to the class C felony allegation.1 P.A. now appeals.



      1
        The evidence for this allegation would have come exclusively from P.A.’s statement, which was not
      admitted into evidence.

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[8]    P.A. asserts the novel argument that the trial court committed fundamental

       error by allowing the State to make an offer to prove regarding his videotaped

       statement. He claims there was no legally justifiable reason to make the offer of

       proof2 and the State must have done so to influence the court in a close case.

[9]    It is well established that fundamental error is “an extremely narrow exception

       to the waiver rule where the defendant faces the heavy burden of showing that

       the alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair

       trial impossible.’” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson

       v. State, 762 N.E.2d 748, 756 (Ind. 2002)). “[F]undamental error is a daunting

       standard that applies ‘only in egregious circumstances.’” Knapp v. State, 9

       N.E.3d 1274, 1281 (Ind. 2014) (quoting Brown v. State, 799 N.E.2d 1064, 1068

       (Ind. 2003)), cert. denied.


[10]   P.A. has failed to establish fundamental error. First, he makes absolutely no

       effort on appeal to establish that the videotape was in fact inadmissible under

       Indiana law. His argument just assumes this to be so. See, e.g. Appellant’s Brief

       at 10 (“[t]he State put inadmissible evidence in front of the trier of fact using a

       procedural process to which it was not entitled to bolster a close case, thereby

       tipping the balance in favor of a true finding”). Moreover, P.A.’s argument that

       he was prejudiced by the alleged error belies the longstanding judicial-

       temperance presumption in which “[w]e presume that the trial judge is aware of



       2
          P.A. contends that the State had no right to appeal the suppression ruling and, moreover, that the details
       of his statement would be irrelevant when reviewing the propriety of the ruling, which was based on
       procedural irregularities.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015              Page 4 of 5
       and knows the law and considers only evidence properly before him or her in

       reaching a decision.” Hinesley v. State, 999 N.E.2d 975, 987 (Ind. Ct. App.

       2014), trans. denied. See also Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012)

       (“[t]he risk of prejudice is quelled when the evidence is solely before the trial

       court”).

[11]   The juvenile court ruled that the videotaped statement was inadmissible. Upon

       urging from the State, the court reconsidered its ruling but once again excluded

       the evidence. Regardless of the purpose behind the State’s offer to prove, it is

       evident from the record before us that the juvenile court did not consider P.A.’s

       statement when making its findings. We reject P.A.’s groundless invitation to

       presume otherwise and to impugn the integrity of the juvenile court.

       Accordingly, even assuming that the evidence was inadmissible and the offer to

       prove was improper, P.A. has not established prejudice, let alone error “so

       prejudicial to [his] rights as to ‘make a fair trial impossible.’” Ryan v. State, 9

       N.E.3d at 668 (quoting Benson v. State, 762 N.E.2d at 756).


       Judgment affirmed.

       Kirsch, J., and Crone, J., concur.




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