Attorney for Appellant
Lesa Lux Johnson
Attorneys for Appellee
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
INDIANA SUPREME COURT
Appellant (Defendant below),
STATE OF INDIANA
Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-0006-105736
ON PETITION FOR TRANSFER
5April 14, 2003
Defendant William Carpenter was charged with and found guilty of child molesting as
a class A felony for performing deviate sexual conduct with his three-year-old daughter,
The Court of Appeals affirmed in a not-for-publication opinion. William
Carpenter v. State, No. 49A04-0105-CR-181 (Ind. Ct. App. Feb. 4, 2002). Defendant
sought and we granted transfer. 774 N.E.2d 514 (table).
The evidence most favorable to the judgment indicates that on the morning of
May 19, 2000, after Defendant had gone to work, A.C. complained to her
mother that her moo moo hurt. She told her mother that her
daddy put his fingers in her moo moo and that it hurt real
bad. She also told her mother that her daddys moo moo spit
In addition to A.C.s statements to her mother, the following additional ev
of significance in this case: (1) the testimony of A.C.'s maternal grandfather
as to a conversation he had with A.C. shortly after May 19, 2000;
(2) a videotaped interview of A.C. conducted by Detective Karen Dague and Amy
Hinshaw from Child Protective Services on May 19, 2000; and (3) a medical
examination of A.C. conducted by Dr. Philip Merck at Wishard Memorial Hospital on
May 19, 2000. The details of all of this evidence will be
Prior to the trial, Master Commissioner Diane Marger Moore conducted a Child Hearsay
Hearing in which she determined that A.C. was not competent to testify.
A.C. was cross-examined by defense counsel during this hearing. The trial court
went on to rule that A.C.s mother and grandfather could testify at trial
as to the statements A.C. made to them and that the jury could
view Dague and Hinshaw's videotaped interview with A.C.
This case requires us to determine whether certain out-of-court statements of a child
witness found to be incompetent to testify at trial may be used as
evidence in a child molesting prosecution. It requires us to examine the
interrelationship of the Indiana Rules of Evidence and the Legislatures protected person statute,
Ind. Code § 35-37-4-6 (1998), and to revisit many of the issues we
discussed in Pierce v. State, 677 N.E.2d 39 (Ind. 1997).
There is no dispute that the statements made by A.C. to her mother
ather and those made to the detectives on the videotape constituted hearsay.
Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted. Ind. Evidence Rule 801(c). Hearsay evidence is
inadmissible pursuant to Evidence Rule 802, unless it fits within a few well-delineated
exceptions. Miller v. State, 575 N.E.2d 272, 274 (Ind. 1991).
Hearsay is excluded from judicial proceedings because its admission d
efeats the criminal defendants
right to confront and cross-examine witnesses against him. Williams v. State, 544
N.E.2d 161, 162 (Ind. 1989). At the same time, [h]earsay evidence often
helps the jury find the truth; excluding hearsay testimony can deny the jury
crucial evidence. Billie Wright Dziech & Charles B. Schudson, On Trial 136
(1991) (discussing confrontation and hearsay in child sexual abuse prosecutions). Likely in
an effort to balance these competing interests, the Indiana General Assembly enacted the
protected person statute, Ind. Code § 35-37-4-6, setting forth a detailed set of
conditions under which evidence that is not otherwise admissible will be allowed in
cases involving crimes against children and individuals with certain disabilities. To the
extent relevant to this case, these conditions provide that the statements and videotape
would be admissible if (1) the trial court found, in a hearing attended
by the child, that the time, content, and circumstances of the statement or
videotape provided sufficient indications of reliability and (2) the child was available for
cross-examination at the hearing.
The facts here are highly rem
iniscent of Pierce. In each, a child
made statements to relatives and in a videotaped interview to authorities that allege
criminal sexual abuse of the child on the part of the respective defendants.
The respective trial courts ruled the children were incompetent to testify at
trial because they could not understand the difference between the truth and a
lie. The rules prohibiting the use of hearsay ordinarily bar the prosecution from
using such statements and videotape at trial as evidence against the defendant.
But the court both in Pierce and in this case found the statements
and videotapes admissible under the protected person statute.
Because of the similarity, we will use the analytical template of
examine Defendants claims in this appeal.
The essential facts in
Pierce were these. At approximately 10 AM on
November 18, 1993, Pierce enticed a child to his car from a Wal-Mart
where the child had been shopping with her mother. Pierce returned her
to the store shortly thereafter where she told her mother and, a few
minutes later, arriving sheriff's officers that he had unbuckled her belt and put
his hand down her pants. At the sheriff's recommendation, the mother then
took the child to a doctor for a physical examination. The exam
revealed no injuries. The mother then took the child to the sheriff's
department for a videotaped interview with the sheriff. The interview began shortly
after 2:30 PM. The videotape was not included in the record on
appeal and we concluded that there was no showing that the videotape was
more than cumulative of the statements the child made immediately following the incident.
Pierce, 677 N.E.2d at 45.
Pierce trial court held a hearing as required by the statute and
concluded that both the childs statements at the Wal-Mart to her mother and
the sheriffs officers and the videotaped statement given to the sheriff later in
the day provided sufficient indications of reliability and were otherwise admissible under the
protected person statute.
As Defendant does here with respect to the A.C.'s statements to her mother
and grandfather, Pierce argued that the testimony recounting the child's statements to her
mother and the sheriff's officers did not satisfy the statutory requirements of reliability.
In holding the trial court within its discretion in allowing the testimony,
we noted its findings that the statements were "spontaneous," that they occurred "a
very short time" after the incident, that the child was "still excited" when
the statements were made, and that "there was no time for an adult
to plant a story in her head." Pierce, 677 N.E.2d at 45.
We went on to note that these findings were supported by the
We were more skeptical of the trial court's finding that the videotaped interview
was also sufficiently reliable. We expressed particular concern that the videotaped interview
with the sheriff "did not occur until several hours after the alleged molestation.
This passage of time tends to diminish spontaneity and increase the likelihood
of suggestion. The interview took place after [the child] went through a
potentially disorienting physical examination at a doctor's office. Moreover, [the child's] mother
suggested several answers to [the child] during the interview and asked her leading
questions." Pierce, 677 N.E.2d at 45.
However, we concluded that Pierce had not established reversible error since he made
"no showing that the videotape was more than cumulative of the statements [the
child] made immediately following the incident."
We begin our analysis of the disputed evidence in this case with the
videotape to which the State and Defendant give dramatically different characterizations. The
[T]he trial court properly found that the videotape had sufficient indicia of reliability.
As the trial court noted, A.C. spoke to two unknown adults.
These adults spoke to A.C. on her level without attempting to overcome A.C.'s
willingness to answer their questions. Further, the questions were not leading, nor
where they suggestive of answers. Finally, throughout the interview, A.C. used consistent
language and terminology with which she was familiar.
Br. of Appellee at 13 (citations to record omitted).
For his part, Defendant urges us to review the videotape ourselves. He
says, "the child is often unresponsive and contradicts herself on even the most
simple of information such as the name and age of her brother and
herself. Most if not all of the questioning by the detective is
leading as was noted by the trial judge." Appellant's Br. at 17.
Highly sensitive to our role as a court of review only, we have
nevertheless reviewed the videotape. In the interview with a police detective and
child welfare caseworker, A.C. said that her father touched her moo moo.
Several times in the interview, A.C. was asked questions about her moo moo.
The detectives asked her to describe her moo moo; to draw her
moo moo; and to point to her moo moo. Initially, A.C. responded
either by shrugging her shoulders or telling the detectives, I dont know.
A.C. was also unable or unwilling to point to her knee, her eyes,
or her nose. At one point, A.C. pointed at her finger and
called it her nose. However, A.C. did tell the detectives that she would
have to go home to show them her moo moo. She also
indicated that both the officer and her father had moo moos. When
asked if her moo moo was with her now, A.C. responded yes.
When asked if her moo moo was on her body, A.C. responded yes.
When the detective pointed to her head and feet and asked A.C.
if either were a moo moo, A.C. shook her head no. She
told the detectives that her father touched the inside of her moo moo
with his hand. She said that it was the reason that she
had to go to the doctor. When asked by the detectives whether
she had her pants on or off when her father touched her moo
moo, A.C. answered, off. A.C. said that her father touched her
moo moo when she was in her bedroom with the door shut.
Later in the interview, when the detectives asked A.C. what she wore over
her moo moo, she answered, tiny shorts. A.C. lifted her legs up
and pointed to her underwear as she was answering this question. When
the officers asked if her moo moo was under her pants, A.C. responded,
yes. A.C. told the detectives that she saw daddys moo moo.
When asked by the detectives if her father had every touched her with
his moo moo, A.C. said no. However, A.C. told the detectives that
her father peed on myself. The detectives asked her if her father
peed on her, A.C. responded yes.
In reviewing the admissibility of the videotape at the Child Hearsay Hearing, the
trial court noted that [t]here were two adults unknown to A.C. in the
room, and neither wearing a uniform of any type. Both were sitting
at the childs level and in an innocuous environment. The court found
inconsistencies in A.C.s statements but indicated that Defendant would be able to point
out those inconsistencies during the trial. On these bases, the trial court
found that the statutory requirement of "sufficient indications of reliability" had been met
and that the videotape could therefore be shown to the jury.
Defendant challenges the admissibility of the videotape on two grounds. First, he
argues that this court held in Pierce that fairness required the jury be
shown a videotape of the cross-examination of the child at the Child Hearsay
Hearing whenever the State is permitted to introduce a videotape of a childs
statements to police. Second, he maintains that the trial court abused its
discretion in finding indicia of reliability in A.C.'s videotaped statements.
It is true that in
Pierce, we said that a Defendant normally should
be allowed to show a videotape of the cross-examination of the child at
a Child Hearsay Hearing, at least where the State is permitted to show
the jury a videotape statement of the child incriminating the defendant.
here the Child Hearsay Hearing was not videotaped and nothing in the record
suggests that Defendant requested the cross-examination to be videotaped or shown to the
jury. Because Defendant did not seek to have the cross-examination videotaped or
otherwise raise this argument at the hearing or at trial, it is not
available to him here.
We defer comment on Defendant's second argument until we review the remai
At the Child Hearsay Hearing, A.C.s mother reported A.C.s statements to her on
ning of May 19. The mother testified that on the morning
of May 19, 2000, after Defendant had gone to work, A.C. told her
that her moo moo was sore, that her daddy stuck his fingers in
her moo moo and that it hurt real bad, and that her daddys
moo moo spit on her. The mother testified that moo moo was
A.C.s way of describing her privates.
At the same Child Hearsay Hearing, A.C.s maternal grandfather testified that a couple
of days after May 19, 2000, during one of their weekend walks, A.C.
had told him that her daddy played with her moo moo and it
hurt real bad. During the trial, the grandfather testified to additional statements
that were not offered during the Child Hearsay Hearing concerning other statements that
A.C. made to him during their walks. At trial, but not at
the hearing, he testified that within a week of May 19, 2000, she
had told him that the Defendant had touched it and one time in
her bedroom he spread her legs way far and put his head down
there, that Defendant "somehow showed himself to her in the bedroom, and told
her to touch him," that A.C. told him that "it hurt real bad"
when Defendant touched her moo moo and that she "wanted him to stop."
The grandfather testified at trial that A.C. had asked him to "have"
Dr. Merck, the physician who examined A.C., was not a witness at the
Child Hearsay Hearing. However, he did testify at trial. Dr. Merck
testified that he examined A.C. on May 19, 2000. He said that
her external genitalia was somewhat reddened or erythematous. He further testified that
his examination neither confirmed nor negated the possibility of molestation.
In reviewing the admissibility of the statement made to A.C.s mother, the trial
court determined that the mother had no reasons or suspicions and was not
in a position of being in a hostile situation with the defendant at
the time the statements were made. In reviewing the admissibility of the
statements made to A.C.s grandfather, the court recognized that the grandfather could not
specifically identify the dates on which the conversations occurred. The court stated
that the grandfather indicated that the first [conversation between A.C. and her grandfather]
was within a few days of what he called the incident and later
defined as the Defendants arrest, and indicated that the second [conversation between the
A.C. and her grandfather] was within a week of the incident. However,
the court determined that the time factor did not depreciate from or is
not a negative circumstance in terms of considering the statement. The court
said that it could find no other circumstance or motive on the part
of the grandfather to distort statements that were in the language used by
the child. Finally, the court found that A.C.s term for genitals and
her description of what occurred was consistent between the various statements. On
these bases, the trial court found that there was sufficient indicia of reliability
to allow the mothers and grandfathers accounts of A.C.s statements to be introduced.
Defendant challenges these conclusions, arguing that the indicia of reliability was not sufficient
to permit the statements to be presented at trial.
As a general matter, the decision to admit or exclude evidence is within
a trial courts sound discr
etion and is afforded great deference on appeal.
Bacher v. State, 686 N.E.2d 791, 793 (Ind. 1997). We recently went
so far as to say that we will not reverse the trial courts
decision unless it represents a manifest abuse of discretion that results in the
denial of a fair trial. Zawacki v. State, 753 N.E.2d 102 (Ind.
2001). An abuse of discretion in this context occurs where the trial
courts decision is clearly against the logic and effect of the facts and
circumstances before the court or it misinterprets the law. Hardiman v. State,
712 N.E.2d 976, 982 (Ind. 1999). At the same time, the protected
person statute impinges upon the ordinary evidentiary regime such that we believe a
trial court's responsibilities thereunder carry with them what we recently called in another
context "a special level of judicial responsibility." See Cox v. State, 706
N.E.2d 547, 551 (Ind. 1999).
As was implicit in Pierce, we apply somewhat heightened scrutiny in
We turn first to the discrete issue of the proper interpretation of A.C.'s
use of the term "moo moo." During the hearing, none of the
State, Defendant, or trial court questioned the child specifically about the details concerning
the meaning of "moo moo," i.e., whether she made the statements to her
mother and grandfather about her and her father's "moo moo," when they were
made, or what she meant by them. As indicated supra, A.C.s mother
explained during the hearing that the word moo moo was a word that
A.C. had come up with on her own to describe her privates.
A.C.s grandfather testified during the hearing that A.C. had started to refer to
her genitalia as moo moo when she had problems with yeast infections.
At trial, A.C.s mother testified that she had no idea why A.C. used
the word moo moo to describe her genitalia, but that it is what
she had always called it. A.C.s mother further testified that A.C. also
called "boys' private areas moo moos. At trial, A.C.s grandfather also testified
that A.C. had used the term moo moo to describe her genitalia.
The defendant objected to the admission of the hearsay statements at both the
hearing and the subsequent trial, but did not make any contrary arguments as
to the proper interpretation of A.C.'s use of the term moo moo.
In examining the interpretation of A.C.'s use of the term moo moo, the
trial court concluded, They were close in time to the event, they were
in terms that the child apparently uses, although she did not use those
terms today, but what she apparently uses, based on the testimony of her
mother. We see no abuse of discretion in concluding that, by her
use of the term "moo moo," A.C. was referring to her own and
to male genitalia.
However, on the broader issue of whether there was sufficient indicia of reliability
to present the statements of the mother and grandfather and the videotape to
the jury, we are unable to sustain the trial court's ruling. In
Pierce, we found highly significant that the child's statements were spontaneous and occurred
a very short time after the alleged molestation. It is true that
A.C. repeated the same or similar statements to her mother, to her grandfather,
and on the videotape. But here there is no evidence at all
as to when the alleged molestation occurred. That is, while the evidence
supports a conclusion that the mother sought both medical attention and the intervention
of law enforcement after her conversation with A. C. on May 19, there
is absolutely nothing of record to tie the alleged molestation to May 19
or any other date. Indeed by alleging in its charging information that
the offense occurred on or before April 1, 2000 and May 19, 2000,
the State effectively concedes there was a period exceeding six weeks during which
the alleged molestation could have taken place.
Pierce, we expressed our concern that the videotape interview occurred several hours
after the alleged molestation and after the "potentially disorienting physical examination at a
doctor's office." Pierce, 677 N.E.2d at 45. Our reason for concern
was that intervening delay created the potential for an adult to plant a
story or cleanse one. Id. The same concern attaches to the videotape
interview here, and it appears that A.C.'s statements to her grandfather occurred at
least a full day after her statements to her mother and her videotape
Added to these difficulties, we note that during the competency determin
ation at the
hearing, A.C. was asked three times in different ways whether she understood the
difference between the truth and a lie. A.C. responded that she did
It was on this basis that the trial court found that
she was incompetent to be a witness in the case and unavailable to
testify at trial. While it is certainly true that the protected person
statute provides that a statement or videotape made by a child incapable of
understanding the nature and obligation of an oath is nevertheless admissible if the
statute's requirements are met, there is a degree of logical inconsistency in deeming
reliable the statements of a person who cannot distinguish truth from falsehood.
We find that the testimony recounting A.C.'s statements to her mother and grandfather
and her videotape interview failed to exhibit sufficient indications of reliability as the
protected person statute requires because of the combination of the following circumstances: there
was no indication that A.C.'s statements were made close in time to the
alleged molestations, the statements themselves were not sufficiently close in time to each
other to prevent implantation or cleansing, and A.C. was unable to distinguish between
truth and falsehood.
However, it is not every error or abuse of discretion that warrants reversal
of judgment of conviction. Only when the error abuse of discretion affects
the substantial rights of a party or is inconsistent with substantial justice is
reversal warranted. Ind. R. Tr. P. 61. Finding that it was
error an abuse of discretion to admit A.C.s hearsay statements into evidence, we
necessarily examine whether there was sufficient evidence to support Defendant's conviction without the
improperly admitted evidence.
The offense of child molesting is defined in Ind. Code § 35-42-3(a) as
rformance or submission of sexual intercourse or deviate sexual conduct with a
child under fourteen years of age. Ind. Code § 35-42-4-3(a)(1). The
only evidence in support of the element of performance of deviate sexual conduct
was the improperly admitted hearsay statements of A.C. to her mother and grandfather
and on the videotape, i.e., without A.C.s hearsay statements, there was a complete
failure of evidence on an essential element of the charged offense. We
find the admissible evidence submitted at trial insufficient to sustain Defendant's conviction.
Defendant advances several arguments to the effect that the evidence actually presented at
trial was insufficient as a matter of law to sustain his conviction.
A consequence of such a holding would be that Defendant could not be
retried on these charges. Stahl v. State, 686 N.E.2d 89, 94 (Ind.
First, we wish to make clear that our reversal of Defendant's conviction on
grounds of improperly admitted evidence does not bar retrial.
all the evidence, even that erroneously admitted, is sufficient to support the jury
verdict, double jeopardy does not bar a retrial on the same charge.")
As to the three claims of insufficient evidence Defendant advances, we believe relatively
summary treatment sufficient. As to Defendant's claim that the State did not
present sufficient evidence that the charged offense occurred in Indiana, we find that
there was evidence of record that the family was living in Indiana when
the alleged events complained of occurred. As to Defendant's claim that the
State failed to prove that he was over the age of 21 when
the charged offense occurred, there was testimony at trial that one witness had
Defendant for "thirty-seven years." As to Defendant's claim that A.C.'s hearsay
statements offered at trial via the testimony of her mother, her grandfather, and
the videotape were "incredibly dubious," we find the consistency of these statements alone
mandates against application of the "incredible dubiosity rule," which is implicated only where
a sole witness presents inherently contradictory testimony. Whedon v. State, 765 N.E.2d
1276, 1278 (Ind. 2002).
Having previously granted transfer, we remand for a new trial or other proceeding
consistent with this opinion.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-4-3(a).(1998).
Footnote: Additional statutory requirements to be satisfied on the facts of this case
are not impl
icated by this appeal. These are found in Ind. Code
§ 35-37-4-6(c)(2), (e), and (f) (1993).
In this case there was no cross-examination of the victim at the
hearing. If that cross-examination takes place and a videotape is to be
admitted, it is within the trial courts discretion, and we believe the better
practice, to permit the cross-examination to be videotaped and shown with the tape
of the victims statements. The basis for admitting the tape of the
victims statements is its reliability as determined by the trial court, not the
cross-examination. In this respect, the tape is qualitatively the same as testimony
ecounting out-of-court statements. Nonetheless use of the tape of the victim smacks
of permitting the victim to become a witness, albeit it an electronically reproduced
witness. Although the statute does not explicitly speak to the point, under
those circumstances fairness to the defendant would normally require giving the defendant the
option to display to the trier of fact a tape of any cross-examination
done either during the hearing or during the taping of the statement itself.
As with any tape offered at trial, the trial court may order
or the parties may agree to editing of objectionable portions of the tape.
The points made in this paragraph are in exercise of our supervisory
powers and are not derived from constitutional jurisprudence. They are not applicable
to proceedings conducted before publication of this opinion. Pierce, 677 N.E.2d at
May 19, 2000, was a Friday and the grandfather testified that his
conversation occurred "during a wee
At the child hearsay hearing A.C. was also questioned by the State:
Q Okay, do you know how to tell the truth?
A (Inaudible response.)
Q Say it out loud please.
After cross examination by the defendant, A.C. was questioned again by the State:
Q Just wrap it up. I want to talk to you a little
bit more about telling the truth. Do you know what it means
to tell the truth?
A. (Inaudible response.)
Q You have to use a word out loud.
Q Do you know what it means to tell a lie?