MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Aug 02 2018, 9:21 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian A. McLean
Kevin Wild                                               Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dectrick Price,                                          August 2, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1712-CR-2858
        v.                                               Appeal from the Marion Superior
                                                         Court, Criminal Division
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1606-F1-24344



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018            Page 1 of 6
                                             Case Summary
[1]   Dectrick Price appeals his convictions for two counts of Level 1 felony child

      molesting and one count of Class A misdemeanor intimidation. We affirm.


                                                    Issues
[2]   Price raises one issue, which we restate as whether the trial court properly

      admitted the victim’s recorded interview with a forensic child interviewer.


                                                     Facts
[3]   In 2015, seven-year-old year old T.F. lived with her mother, stepfather, and two

      sisters, ten-year-old T.J. and four-year-old T.I. Price was a friend of T.F.’s

      stepfather. Price occasionally stayed with the family and babysat the children

      while their mother and stepfather worked the evening shift. At some point,

      Price started molesting T.F. T.J. witnessed Price molesting T.F. and threatened

      to tell their mother, but Price told T.J. that he would hit her if she told.


[4]   In October 2015, T.F.’s behavior changed, her grades dropped, she was

      disruptive at school, and she wanted to go to work with her mother. T.F.’s

      mother asked what was happening, but T.F. “wasn’t telling [her] anything.”

      Tr. Vol. II p. 31. In January 2016, T.F.’s family moved, and Price did not

      move with them. In March 2016, T.J. talked to her mother, and their mother

      then talked to T.F. T.F.’s mother took her to the hospital, and she was later

      interviewed by Jill Carr, a forensic child interviewer.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018   Page 2 of 6
[5]   The State charged Price with Count I, Level 1 felony child molesting for

      performing sexual intercourse with T.F.; Count II, Level 1 felony child

      molesting for performing other sexual conduct with T.F.; Count III, Level 5

      felony battery; and Count IV, Class A misdemeanor intimidation for

      threatening T.F. and/or T.J. if they told what Price had done to T.F. The

      battery charge was later dismissed. At the jury trial, T.F. and T.J. testified

      regarding Price’s actions. During cross-examination of T.F., Price questioned

      her regarding her interview with Carr. Later, during Carr’s testimony, the trial

      court admitted T.F.’s recorded interview with Carr over Price’s objection. The

      jury found Price guilty as charged, and the trial court sentenced him to an

      aggregate sentence of sixty-five years with five years suspended to probation.

      Price now appeals.


                                                  Analysis
[6]   Price argues that the trial court abused its discretion by admitting T.F.’s

      recorded interview with the forensic interviewer. The trial court has broad

      discretion to rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d

      38, 40 (Ind. 2014). We review the trial court’s rulings for abuse of that

      discretion and reverse only when admission is clearly against the logic and

      effect of the facts and circumstances. Id. We disregard errors in the admission

      of evidence as harmless error unless they affect the substantial rights of a party.

      VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013); see also Ind. Trial Rule 61.

      In determining whether error in the introduction of evidence affected the

      defendant’s substantial rights, we assess the probable impact of the evidence

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018   Page 3 of 6
      upon the jury. Id. “The improper admission is harmless error if the conviction

      is supported by substantial independent evidence of guilt satisfying the

      reviewing court there is no substantial likelihood the challenged evidence

      contributed to the conviction.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind.

      2011). Further, the admission of hearsay evidence is not grounds for reversal

      where it is merely cumulative of other evidence admitted. VanPatten, 986

      N.E.2d at 267.


[7]   Price argues that the trial court erred by admitting the recorded forensic

      interview of T.F.1 Price contends that the recorded interview was hearsay and

      did not qualify for the exception found in Indiana Evidence Rule 803(5), which

      governs recorded recollections.2 The State argues the recorded interview was

      admissible under Horton v. State, 936 N.E.2d 1277, 1281 (Ind. Ct. App. 2010),

      summarily aff’d in relevant part by Horton v. State, 949 N.E.2d 346 (Ind. 2011).




      1
          Price makes no argument concerning the Protected Person’s Statute, Indiana Code Section 35-37-4-6.
      2
        Indiana Evidence Rule 803(5) provides that the following is not excluded by the rule against hearsay
      regardless of whether the declarant is available as a witness:
                         A record that:
                         (A) is on a matter the witness once knew about but now cannot recall
                         well enough to testify fully and accurately;
                         (B) was made or adopted by the witness when the matter was fresh in the
                         witness’s memory; and
                         (C) accurately reflects the witness’s knowledge.
                         If admitted, the record may be read into evidence but may be received as
                         an exhibit only if offered by an adverse party.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018             Page 4 of 6
[8]    We need not address Price’s argument because any error in the admission of the

       recorded interview was harmless. Price argues that the recorded interview was

       “highly prejudicial” because “[m]uch of the evidence that came into the record

       was from this videotape, including nearly all evidence relating to Counts 2 and

       4.” Appellant’s Br. p. 14. We disagree.


[9]    In Count I, the State charged Price with Level 1 felony child molesting, which

       required the State to prove that Price, who was over twenty-one years old,

       knowingly or intentionally performed sexual intercourse with T.F., who was

       under fourteen years old. In Count II, the State charged Price with Level 1

       felony child molesting, which required the State to prove that Price, who was

       over twenty-one years old, knowingly or intentionally performed other sexual

       conduct with T.F., who was under fourteen years old. Indiana Code Section

       35-31.5-2-221.5 defines other sexual conduct as “an act involving: (1) a sex

       organ of one (1) person and the mouth or anus of another person; or (2) the

       penetration of the sex organ or anus of a person by an object.” Price was also

       charged with Class A misdemeanor intimidation, which required the State to

       prove that Price communicated a threat to another person with the intent that

       “the other person engage in conduct against the other person’s will.” I.C. § 35-

       45-2-1(a)(1).


[10]   At the trial, T.F. testified that she would fall asleep in her room and that Price

       would carry her to the basement. T.F. testified that Price put his “private part”

       inside both the area she uses to “pee” and the area she uses to “poop.” Tr. Vol.

       II p. 73. T.J. testified that she saw Price put “his private part in [T.F.’s] butt.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018   Page 5 of 6
       Id. at 48. T.J. testified that T.F. was “bending over” forward and “crying” and

       that she saw Price’s “private part” going inside T.F.’s body. Id. at 49. When

       questioned what she meant by “butt,” T.J. testified it is the body part T.F. used

       to “[p]oop.” Id. at 50. T.J. testified that she confronted Price and threatened to

       tell her mother. Price said he would hit her if she told.


[11]   The evidence in T.F.’s recorded interview is merely cumulative of her

       testimony. Even if we ignore the recorded interview, the State presented

       substantial independent evidence of guilt and there is no substantial likelihood

       the challenged evidence contributed to the convictions. Any error in the

       admission of the recorded interview is harmless. See, e.g., VanPatten, 986

       N.E.2d at 267 (holding that the forensic nurse examiner’s testimony was

       “merely cumulative and at most harmless error”).


                                                 Conclusion
[12]   Any error in the admission of the recorded interview was harmless. We affirm

       Price’s convictions.


[13]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018   Page 6 of 6
