MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Aug 30 2018, 8:26 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
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Walter Folks,                                      August 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1710-CR-2317
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1608-F4-29



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018           Page 1 of 2
[1]       James Walter Folks appeals his conviction of Level 4 felony incest. 1 Folks

          argues the trial court abused its discretion when it admitted two pieces of

          evidence that he claims were inadmissible hearsay: a sexual assault

          examination report from the hospital and testimony of a school counselor. We

          affirm.



                         Facts and Procedural History
[2]       On March 15, 2017, M.F., who was fourteen, was in her room when her uncle,

          Folks, entered the room uninvited. Folks instructed M.F. to remove her pants

          and underwear and lie on the bed. Folks put a blanket over M.F.’s head and

          proceeded to have sexual intercourse with M.F.


[3]       Two days later at school, M.F. was crying on her way to class, so a friend took

          her to the school’s guidance counselor, Jennifer Johnson. M.F. told Johnson

          that Folks had touched her, and M.F. indicated on a doll that he had touched

          her between the legs. M.F. was taken to the Child and Family Advocacy

          Center for a forensic interview. During the interview, M.F. voluntarily

          disclosed what had happened to her. Afterward, M.F.’s father took her to

          Elkhart General Hospital for a sexual assault examination conducted by Jamie

          Lance, a registered nurse.




      1
        Ind. Code § 35-46-1-3(a) (2014) ( Incest occurs when a defendant, 18 years old or older, engages in sexual
      intercourse or other sexual conduct with a person less than 16 years old who is in one of the identified
      familial relations with the defendant.).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018             Page 2 of 3
[4]       The State charged Folks with Level 4 felony sexual misconduct with a minor 2

          and Level 4 felony incest. At trial, Folks objected to the admission the sexual

          assault examination report, but the court overruled his objection under the

          medical report exception, Indiana Evidence Rule 803(4). A jury found Folks

          guilty on both counts, but the trial court entered a conviction of only incest due

          to concerns about double jeopardy.



                                Discussion and Decision
[5]       “A trial court has broad discretion in ruling on the admissibility of evidence

          and we will disturb its rulings only where it is shown that the court abused that

          discretion.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). Both pieces of

          challenged evidence are alleged to be inadmissible hearsay. Hearsay is: “A

          statement 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)(1)(2). Hearsay is inadmissible except as provided

          by law or other court rules. Evid. R. 802.


                                            Medical Report
[6]       Folks first argues the trial court abused its discretion by allowing M.F.’s

          medical record into evidence because it was inadmissible hearsay. The State




      2
          Ind. Code § 35-45-4-9 (2014).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018   Page 3 of 4
       argues we need not determine whether the admission of the medical records

       was erroneous as any possible error was harmless.


[7]    An error in admitting evidence does not require reversal unless it affects the

       substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001).

       “The improper admission of evidence is harmless error when the conviction is

       supported by such substantial independent evidence of guilt as to satisfy the

       reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the conviction.” Barker v. State, 695 N.E.2d 925, 931

       (Ind. 1998), reh’g denied. The erroneous admission of evidence may also be

       harmless if that evidence is cumulative of other evidence admitted. Donaldson

       v. Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).


[8]    At trial, Folks did not object to the testimony of Lance, who was the nurse

       who treated M.F., and Lance testified to the same statements found in the

       medical report. (Compare Tr. Vol. II at 202 with State’s Exhibit 7.) Thus, any

       possible error in the admission of the medical report was harmless, because the

       report was cumulative of Lance’s testimony. See, e.g., Davis v. Garrett, 887

       N.E.2d 942, 947 (Ind. Ct. App. 2008) (holding admission harmless because

       evidence was cumulative of other evidence admitted), trans. denied.


[9]    However, had Folks objected to the testimony from Lance, the medical record

       still could have been admitted into evidence, because it is not excluded by our

      Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018   Page 4 of 5
        hearsay rules. Indiana Evidence Rule 803(4) provides: “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” is not excluded by the hearsay rule.


[10]    For a report to be admissible under that exception, the declarant’s self-interest

        in obtaining effective medical treatment must be considered. The court must

        determine: “1) is the declarant motivated to provide truthful information in

        order to promote diagnosis and treatment; and 2) is the content of the

        statement such that an expert in the field would reasonably rely on it in

        rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.

        1996). Statements made by victims of sexual assault “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).


[11]    The first prong regarding the declarant’s motivation can generally be inferred

        from the fact a victim sought medical treatment. Id. at 260-61. However,

        when children are brought to a medical provider by their parents, an “inference

        [of the declarant’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. Thus, in these situations,


       Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018   Page 5 of 6
        evidence must be presented to show the child understood the medical

        professional’s role and the importance of being truthful. Id. 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. at 261.


[12]    Lance testified about the examination that she and the doctor performed on

        M.F. Lance explained the medical questions she asked M.F. as part of the

        examination. Lance testified that M.F. was cooperative during the procedure.

        (Tr. Vol. II at 199-203.) M.F. also testified she was examined by a doctor and

        knew why they were doing the tests. (Tr. Vol. II at 84.) In VanPatten, the

        Court acknowledged a six-year-old child would not comprehend the situation

        the same way an adult does. VanPatten, 986 N.E.2d at 265. In contrast, M.F.

        was fourteen years old and an honor student. We have little doubt M.F.

        understood the purpose of the examination. Accordingly, the medical records

        are not inadmissible hearsay, as Folks contends. See Perry v. State, 956 N.E.2d

        41, 49 (Ind. Ct. App. 2011) (medical record prepared by nurse during

        evaluation was admissible), reh’g denied.


                                            School Counselor
[13]    Folks also challenges the testimony of Jennifer Johnson, the school counselor,

        who testified about her conversation with M.F. on March 17, 2017. Folks

        argues the testimony given by Johnson was inadmissible hearsay. Folks did


       Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018   Page 6 of 7
        not object to this testimony at trial and therefore waived any error in its

        admission. See Geiger v. State, 721 N.E.2d 891, 895 (Ind. Ct. App. 1999)

        (failure to specifically object results in waiver of that issue for appeal).


[14]    Waiver notwithstanding, the admission of Johnson’s testimony was harmless.

        Johnson testified M.F. reported her uncle touched her and M.F. pointed on a

        doll to explain where he touched her. Johnson’s testimony is cumulative of,

        and less detailed than, the medical report and the testimony of Lance. Because

        the testimony given by Johnson was the same information found in the

        medical report and testified to by Lance, the admission of it was harmless. See

        Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993) (admission of improper

        evidence is harmless when other substantial independent evidence shows

        guilt).



                                           Conclusion
[15]    Testimony from Lance, the nurse who conducted the sexual assault

        examination, was cumulative of the medical report and, therefore, admission

        of the report was harmless error. Nevertheless, the report would have been

        admitted because it met the criteria for being admissible despite being hearsay,

        according to Indiana Rule of Evidence 803(4). Folks’ argument regarding

        Johnson’s testimony is waived because Folks did not object at trial. Waiver

        notwithstanding, the admission was harmless as Johnson’s testimony was

        cumulative of, and less detailed than, Lance’s testimony. We accordingly

        affirm Folks’ conviction of Level 4 felony incest.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018   Page 7 of 8
[16]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1710-CR-2317 | August 30, 2018   Page 8 of 8
