MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Feb 13 2020, 1:38 pm

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Hanson                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott A. Steffey,                                        February 13, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1089
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David M. Zent,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1803-FA-2



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020              Page 1 of 11
                                             Case Summary
[1]   Scott Steffey appeals his convictions and sentence for child molesting, a Class A

      felony; child molesting, a Level 1 felony; and vicarious sexual conduct, a Level

      3 felony. We affirm.


                                                     Issues
[2]   Steffey raises two issues, which we restate as follows:


              I.       Whether the trial court properly admitted testimony from
                       the sexual assault nurse examiner.

              II.      Whether the trial court properly imposed consecutive
                       sentences.

                                                     Facts
[3]   N.W. (“Mother”) and C.P. (“Father”) had three children, C.W., W.P., and

      A.P. C.W. is two years older than W.P., and W.P. is one year older than A.P.

      Mother had custody of the children, but Mother had substance abuse and

      mental health issues. Mother and the children lived with Mother’s parents,

      who were friends and neighbors with Steffey.


[4]   The children regularly went to Steffey’s residence. In approximately 2013,

      when A.P. was six years old, Steffey began having sexual intercourse with her.

      A.P. told W.P. about the abuse, and W.P. confronted Steffey. Steffey admitted

      the sexual activity to W.P. and told W.P. “not to tell anybody.” Tr. Vol. I p.

      39. W.P. was “a little scared” and did not tell anyone. Id. at 40. Steffey began

      showing pornography to W.P. and C.W. Eventually, Steffey showed W.P. and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 2 of 11
      C.W. how to have sexual activity with A.P. Steffey told the children that

      Steffey and the children would “get in trouble” if they told anyone of the abuse.

      Id. at 80. The sexual abuse involved oral and vaginal sex acts, which were

      occurring daily at some period of time.


[5]   In 2017, the children were removed from Mother’s custody by the Department

      of Child Services due to Mother’s substance abuse and mental health issues.

      The children were first placed with an aunt and uncle, and then Father took

      custody of the children. Steffey continued to babysit and visit the children

      while they lived with their aunt and uncle and Father, and the sexual abuse

      continued. A few months after Father obtained custody of the children, law

      enforcement became involved as a result of an incident involving the children in

      the neighborhood. At that time, the children disclosed Steffey’s sexual abuse.


[6]   The State charged Steffey with: Count I, child molesting, a Class A felony, for

      performing or submitting to sexual intercourse with A.P. between February

      2013 and June 2014; Count II, child molesting, a Level 1 felony, for performing

      or submitting to sexual intercourse with A.P. between July 2014 and August

      2017; Count III, vicarious sexual gratification, a Level 3 felony, for directing,

      aiding, inducing, or causing A.P. to engage in sexual intercourse with C.W. or

      W.P. with the intent to arouse or satisfy the sexual desires of A.P., C.W., W.P.,

      or Steffey; Count IV, child molesting, a Class C felony, for fondling or touching

      A.P.; and Count V, child molesting, a Level 4 felony, for fondling or touching

      A.P.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 3 of 11
[7]   At a bench trial in March 2019, Angela Mellon, a sexual assault nurse examiner

      at the Fort Wayne Sexual Assault Treatment Center, testified regarding her

      medical forensic examination of A.P. During her direct testimony, Steffey

      objected to Nurse Mellon’s testimony on hearsay grounds, but the trial court

      overruled the objection.


[8]   The trial court found Steffey guilty as charged. The trial court did not enter

      judgment of conviction in Counts IV and V. The trial court sentenced Steffey

      to: fifty years in the Department of Correction (“DOC”) for Count I; forty years

      in the DOC for Count II; and sixteen years in the DOC for Count III. The trial

      court noted that “molestation is a crime of violence” and ordered the sentences

      to be served consecutively, for an aggregate sentence of 106 years in the DOC.

      Tr. Vol. III p. 34. Steffey now appeals.


                                                  Analysis
                                  I. Admission of Nurse’s Testimony

[9]   Steffey argues that the trial court abused its discretion by admitting Nurse

      Mellon’s testimony. The trial court has broad discretion to rule on the

      admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). We

      review rulings on the admissibility of evidence for an abuse of discretion. Id.

      An abuse of discretion occurs “when admission is clearly against the logic and

      effect of the facts and circumstances.” Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 4 of 11
[10]   Steffey argues that Nurse Mellon’s testimony was hearsay, and the State argues

       that it was admissible as a hearsay exception under Indiana Evidence Rule

       803(4), which provides:


               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:


                                                     *****


               (4) Statement Made for Medical Diagnosis or Treatment. A
               statement that:


                        (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.


[11]   “Rule 803(4)’s exception is grounded in a belief that the declarant’s self-interest

       in obtaining proper medical treatment makes such a statement reliable enough

       for admission at trial[.]” VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013).

       “Rule 803(4) reflects the idea that people are unlikely to lie to their doctors

       because doing so might jeopardize their opportunity to be made well.” Id.


               This belief of reliability, though, necessitates a two-step analysis
               for admission under Rule 803(4): First, “is the declarant
               motivated to provide truthful information in order to promote

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 5 of 11
               diagnosis and treatment,” and second, “is the content of the
               statement such that an expert in the field would reasonably rely
               on it in rendering diagnosis or treatment.” Statements made by
               victims of sexual assault or molestation about the nature of the
               assault or 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.


               The first prong of the test, the declarant’s motive to promote
               treatment or diagnosis, is equally crucial to a determination of
               reliability. “[T]he declarant must subjectively believe that he was
               making the statement for the purpose of receiving medical
               diagnosis or treatment.” With most declarants, this is generally a
               simple matter: “[o]ften, for example where a patient consults
               with a physician, the declarant’s desire to seek and receive
               treatment may be inferred from the circumstances.”


       Id. at 260-61 (internal citations omitted).


[12]   Steffey makes no argument regarding the first prong on the VanPatten test.

       Steffey does not dispute that A.P.’s statements were “made by a person seeking

       medical diagnosis or treatment” or that A.P.’s statement “describes medical

       history; past or present symptoms, pain or sensations; their inception; or their

       general cause.” Evid. R. 803(4).


[13]   Steffey argues that “Evidence R. 803(4) should be inapplicable to entities that

       are quasi-law enforcement entities conducting evidence-gathering activities

       rather than legitimate medical facilities engaged in the business of diagnosis and

       treatment of medical problems.” Appellant’s Br. p. 27. Steffey contends that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 6 of 11
       the Fort Wayne Sexual Assault Treatment Center should not qualify as a

       medical provider because it “is an arm of law enforcement and not a medical

       provider at all.” Id. at 33. According to Steffey, “the use of Sexual Assault

       Nurse Examiners as witnesses in sexual abuse cases is merely a ruse designed to

       allow the State to exploit an otherwise legitimate exception to the Hearsay

       Rule.” Id. at 34. Steffey’s argument appears to be that A.P.’s statements to

       Nurse Mellon were made for law enforcement purposes, not medical treatment

       purposes. This argument concerns only the second prong of the VanPatten test

       and whether the statement was “made for--and [was] reasonably pertinent to--

       medical diagnosis or treatment.” Evid. R. 803(4).


[14]   Nurse Mellon testified that she works at the Fort Wayne Sexual Assault

       Treatment Center (the “Center”), which has been in operation since 1996. The

       Center is a licensed and credentialed facility, which serves Allen County and

       sixteen surrounding counties. The nurses also have privileges at the local

       hospitals. The Center appears as a standard doctor’s office. Nurse Mellon

       testified that, as part of a medical forensic exam, she performs a head to toe

       examination looking for injuries; takes a detailed health history from the

       patient; provides emergency contraceptives and medications to prevent the

       most common sexually transmitted infections; assesses any mental health issues

       and provides resources for follow-up counseling; activates a crisis intervention

       team if the patient is in danger of harming himself or herself or others; provides

       follow-up testing, including pregnancy testing; provides referrals for testing for

       sexually transmitted infections; and provides detailed discharge planning,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 7 of 11
       which can include follow-up with a primary health care physician, follow-up

       with community resources, and the arrangement of a safety plan. Nurse

       Mellon then detailed her interactions with A.P., her examination of A.P., and

       her treatment recommendations for A.P.


[15]   The use of sexual assault nurse examiners in a hospital setting has been

       approved by this Court. See, e.g., Steele v. State, 42 N.E.3d 138, 143 (Ind. Ct.

       App. 2015) (rejecting the defendant’s argument that the sexual assault nurse

       examiner, who examined the patient in a hospital, was acting as a “law

       enforcement adjunct” rather than a “nurse who was assisting with the diagnosis

       and treatment of [the victim’s] injuries”). Although the Center is not a hospital

       and does assist in the collection of evidence, as detailed by Nurse Mellon, the

       Center also provides significant medical treatment and diagnosis of their

       patients. Under these circumstances, we cannot say that A.P.’s examination at

       the Center was for law enforcement purposes, and not medical treatment

       purposes. A.P.’s statements were “made for--and [are] reasonably pertinent to--

       medical diagnosis or treatment.” See Evid. R. 803(4). We conclude that A.P.’s

       statements to Nurse Mellon were admissible under Evidence Rule 803(4). 1 See,

       e.g., Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017) (holding that




       1
         Steffey makes no argument regarding the admission of State’s Exhibit 11, which is A.P.’s medical records
       from the Fort Wayne Sexual Assault Treatment Center, and we do not address the admissibility of those
       records.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020               Page 8 of 11
       the testimony of a sexual assault nurse examiner employed by the Center was

       admissible under Indiana Evidence Rule 803(4)).


[16]   Moreover, any error in the admission of Nurse Mellon’s testimony is harmless.

       “Errors in the admission or exclusion of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of the party.” Turben v.

       State, 726 N.E.2d 1245, 1247 (Ind. 2000); Ind. Trial Rule 61. Nurse Mellon’s

       testimony regarding A.P.’s statements was merely cumulative of the testimony

       of A.P., W.P., and C.W. Any error was harmless.


                                         II. Consecutive Sentencing

[17]   Next, Steffey argues that the trial court abused its discretion by ordering the

       sentence for Count III to be served consecutive to the sentence for Count II.

       Sentencing decisions rest within the sound discretion of the trial court.

       McElfresh v. State, 51 N.E.3d 103, 107 (Ind. 2016). As long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. An abuse of discretion will be found where the decision is clearly against the

       logic and effect of the facts and circumstances before the court or the

       reasonable, probable, and actual deductions to be drawn therefrom. Id.


[18]   According to Steffey, the consecutive sentencing violates Indiana Code Section

       35-50-1-2, which provides:


               [E]xcept for crimes of violence, the total of the consecutive terms
               of imprisonment, exclusive of terms of imprisonment under IC
               35-50-2-8 and IC 35-50-2-10 (before its repeal) to which the
               defendant is sentenced for felony convictions arising out of an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 9 of 11
               episode of criminal conduct shall not exceed the period described
               in subsection (d).


       Ind. Code § 35-50-1-2(c). Under subsection (d), “the total of the consecutive

       terms of imprisonment to which the defendant is sentenced for felony

       convictions arising out of an episode of criminal conduct may not exceed the

       following: . . . If the most serious crime for which the defendant is sentenced is

       a Level 1 felony, the total of the consecutive terms of imprisonment may not

       exceed forty-two (42) years.” I.C. § 35-50-1-2(d)(6). An “episode of criminal

       conduct” means “offenses or a connected series of offenses that are closely

       related in time, place, and circumstance.” I.C. § 35-50-1-2(b).


[19]   Although vicarious sexual gratification, which was charged in Count III, is not

       a crime of violence, child molesting, which was charged in Count II, is a crime

       of violence under the statute. See I.C. § 35-50-1-2(a)(11). Steffey argues that

       “the trial court erred in not limiting the total consecutive sentences in Counts

       [II] and [III] to a total of 42 years, or, in the alternative, limiting his sentence in

       Count [III] to the advisory sentence of nine (9) years.” Appellant’s Br. p. 37.

       Steffey seems to argue that, because Count III was not a crime of violence,

       Indiana Code Section 35-50-1-2 limits the trial court’s ability to impose

       consecutive sentencing. Our Supreme Court rejected this argument in Ellis v.

       State, 736 N.E.2d 731, 737 (Ind. 2000). In Ellis, the Court held that

       “consecutive sentencing between a crime of violence and those that are not

       crimes of violence” is “exempt” from the sentencing limitation of Indiana Code

       Section 35-50-1-2. See also Johnson v. State, 749 N.E.2d 1103, 1110 (Ind. 2001)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 10 of 11
       (“[T]he limitations the statute imposes on consecutive sentencing do not apply

       between crimes of violence and those that are not crimes of violence.”).

       Steffey’s argument fails.


                                                 Conclusion
[20]   The trial court properly admitted the testimony of Nurse Mellon and, if the trial

       court erred, any error was harmless. Additionally, the trial court properly

       sentenced Steffey. We affirm.


[21]   Affirmed.


       Najam, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1089 | February 13, 2020   Page 11 of 11
