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«ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark S. Lenyo Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Monika Prekopa Talbot ...»

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Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 9:07 am

this Memorandum Decision shall not be


regarded as precedent or cited before any Indiana Supreme Court

Court of Appeals

court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.


Mark S. Lenyo Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana IN THE


Donn Lee Rupert, August 12, 2016 Court of Appeals Case No.

Appellant-Defendant, 71A03-1507-CR-918 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Judge Appellee-Plaintiff.

Trial Court Cause No.

71D03-1410-FA-14 Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 1 of 13 Following a jury trial, Donn Lee Rupert was convicted of class A felony child [1] molesting, class C felony child molesting, and class D felony child solicitation.

On appeal, Rupert presents the following issues:

I. Did the trial court abuse its discretion in admitting the victim’s recorded statement pursuant to Ind. Code § 35-37-4-6, also known as the Protected Person Statute (PPS)?

II. Did the State present sufficient evidence to support Rupert’s convictions?

We affirm.

[2] Facts & Procedural History M.F. was born in 2007. In 2009, M.F. and his younger brother, I.F., lived in a [3] house on Victoria Street in South Bend with their mother, L.T. (Mother), maternal grandmother, T.T. (Grandmother), and Rupert, who was Grandmother’s boyfriend. The house on Victoria Street had a basement, but no garage. In 2011, when M.F. was around four years old, the family moved to a house on Kendall Street, which had both a basement and a garage. During the time the family lived together, Rupert, who M.F. and I.F. called “Grandpa Donn,” helped care for the boys. There were occasions when Rupert was alone with the boys, and Rupert would sometimes watch them early in the morning so Grandmother and Mother could sleep in.

Mother and the boys lived at the Kendall Street address for about six months [4] before moving into their own apartment. On the morning of December 8, Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 2 of 13 2012, Mother’s friend, Lauren Alex Swetcoff, was babysitting M.F. and I.F.

while Mother was sleeping. When Swetcoff went to check on the boys, she found them in a closet “taking turns putting each other’s penises in their mouths.” Transcript at 255. Swetcoff told the boys to come out of the closet and then woke Mother and told her what she had seen. Mother was upset, and Swetcoff advised her to speak to the boys calmly to try to figure out what had happened. Swetcoff further advised Mother that she should not make the boys feel like they were in trouble. Later that day, Mother took the boys to McDonald’s to talk about the incident in the closet. The content of this conversation prompted Mother to make a report to authorities that same day.

As a result of Mother’s report, both I.F. and M.F. were interviewed by Sara [5] Jane Wisthuff at the CASIE Center in South Bend. M.F. was five years old at the time. M.F. told Wisthuff that his grandpa who lived with Grandmother— i.e., Rupert—had touched M.F.’s “pee pee” and sucked on it on more than one occasion in the basement and the garage. State’s Exhibit 7. M.F. also said that Rupert made M.F. touch Rupert’s “pee pee” and tried to make him suck it but he refused. He also stated that Rupert had touched his “butt.” Id.

Following M.F.’s disclosures, police attempted to locate Rupert, but were [6] unable to do so for approximately eleven months. During this period, Mother stopped responding to police efforts to contact her, and she subsequently moved out of state, leaving the boys with family. When Rupert was located in October 2013, the State charged him with two counts of class A felony child molesting, Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 3 of 13 one count of class C felony child molesting, and one count of class D felony

–  –  –

On April 7, 2015, Rupert took M.F.’s deposition. At that time, M.F. was eight [7] years old. M.F. testified that Grandpa Donn was “a jerk” because of an incident involving M.F.’s dog. Transcript at 392. Aside from the dog incident, M.F. testified that Grandpa Donn had “[n]ot really” done anything bad to him.

–  –  –

On May 1, the State filed a notice of intent to introduce a video recording of [8] Wisthuff’s interview with M.F. pursuant to the PPS. A PPS hearing was held on May 13, 2015. M.F. testified at the hearing, and when defense counsel confronted him with his deposition testimony, M.F. stated that the incident with the dog was actually not the only bad thing Rupert had done to him.

Defense counsel did not question M.F. further on this subject.

The next day, the trial court ruled that M.F.’s recorded interview was [9] admissible pursuant to the PPS. A three-day jury trial commenced on May 15, 2015, during which M.F.’s recorded interview was admitted over objection. At the conclusion of the evidence, Rupert was found guilty on all counts except for one of the class A felony child molesting charges. Rupert now appeals.

–  –  –

Rupert first argues that the trial court abused its discretion by admitting M.F.’s [10] recorded statement into evidence pursuant to the PPS. As with challenges to Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 4 of 13 the admissibility of other evidence, the decision to admit a statement under the PPS will not be reversed without a showing of a manifest abuse of discretion by the trial court resulting in the denial of a fair trial. Mishler v. State, 894 N.E.2d 1095, 1099 (Ind. Ct. App. 2008), trans. denied. We will find an abuse of discretion only where the trial court’s action is clearly against the logic and effect of the facts and circumstances before it. Id. However, because the protected person statute “impinges upon the ordinary evidentiary regime[,]” a trial court’s responsibilities thereunder carry with them “‘a special level of judicial responsibility.’” Carpenter v. State, 786 N.E.2d 696, 703 (Ind. 2003) (quoting Cox v. State, 706 N.E.2d 547, 551 (Ind. 1997)).

The PPS provides a list of conditions under which evidence that would [11] otherwise be inadmissible will be allowed in cases involving certain crimes against “protected persons.” J.A. v. State, 904 N.E.2d 250, 255 (Ind. Ct. App.

2009), trans. denied. A “protected person” is defined, in relevant part, as “a child who is less than fourteen (14) years of age[.]” I.C. § 35-37-4-6(c)(1). The PPS provides that a statement or videotape that: (1) is made by a person who at the time of trial is a protected person; (2) concerns an act that is a material element of a listed group of offenses (including sex crimes) that was allegedly committed against that person; and (3) is not otherwise admissible into evidence, is admissible if certain requirements are met. I.C. § 35-37-4-6(d).

One such requirement is that the protected person must either testify at trial or [12] be determined to be unavailable as a witness within the meaning of the PPS.

I.C. § 35-37-4-6(e)(2). Additionally, the trial court must find, in a hearing Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 5 of 13 conducted outside the presence of the jury and attended by the protected person, “that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.” I.C. § 35-37-4-6(e). Rupert challenges the trial court’s findings on both of these requirements.

As it pertains to this case, a protected person is unavailable as a witness if, [13]

–  –  –

I.C. § 35-37-4-6(e)(2)(B)(i). In this case, Dr. Victor Tan, a psychologist who had worked extensively with M.F., opined that, if required to testify in Rupert’s presence, M.F. would suffer emotional distress such that he would be unable to reasonably communicate what had occurred. Specifically, Dr. Tan testified that M.F. is friendly and does not show outward distress, but he has a fragile sense of security and has difficulty communicating when he is uncomfortable. Dr. Tan stated that when he had spoken with M.F. about the possibility of testifying, M.F. sometimes said that he was comfortable with it, but other times expressed reservations or did not want to talk about it. Dr. Tan testified further that the fact that M.F. was not communicative about the molestation during the deposition was consistent with his experience with M.F. When Dr. Tan began working with M.F., M.F. would often say he did not remember things, change the subject, or ignore Dr. Tan rather than discuss uncomfortable subjects. Even in a therapeutic setting, it took M.F. about eight months to be able to tell his Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 6 of 13 brother and grandfather what had happened to him. Dr. Tan testified that he anticipated that M.F. would be traumatized and revert to his defense strategy of shutting down. This is ample evidence to support the trial court’s finding that M.F. was unavailable for the purposes of the PPS, and Rupert’s arguments to the contrary are nothing more than requests to substitute our judgment for that

–  –  –

Next, Rupert argues that M.F.’s recorded statement did not bear sufficient [14] indicia of reliability to support its admission pursuant to the PPS. Factors to be considered by the trial court in determining the reliability of a statement under the PPS include: the time and circumstances of the statement, whether there was a significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, use of age-appropriate terminology, spontaneity, and repetition. Taylor v. State, 841 N.E.2d 631, 635 (Ind. Ct. App.

2006), trans. denied. Additionally, “[l]engthy and stressful interviews or examinations preceding the statement may cast doubt on the reliability of the statement or videotape sufficient to preclude its admission.” Pierce v. State, 677 Rupert makes a number of assertions concerning M.F.’s purportedly confident and outgoing demeanor while testifying at the protected person hearing. However, Rupert’s claims are unsupported by the record because no video recording was made of the hearing. The trial court, as the fact-finder on this issue, is in a unique position to observe the demeanor of witnesses, and we therefore afford their judgments in that regard deference. See D.C. v. J.A.C., 977 N.E.2d 951, 956-57 (Ind. 2012) (noting that appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence” (quoting Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002)). In any event, even if we accept Rupert’s claims concerning M.F.’s demeanor as true, they are in keeping with Dr.

Tan’s description of M.F.’s personality and coping mechanisms.

Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 7 of 13 N.E.2d 39, 44 (Ind. 1997). There are undoubtedly many other relevant factors to consider in individual cases. Id.

Rupert first argues that the recorded interview is not sufficiently reliable because [15] it gives no indication of when the molestation actually occurred. Our Supreme Court has noted that “passage of time tends to diminish spontaneity and increase the likelihood of suggestion.” Id. at 45. Nevertheless, the passage of time between an alleged molestation and a recorded statement is only one factor to be considered and is not necessarily dispositive. See Mishler, 894 N.E.2d

–  –  –

The precise dates of M.F.’s molestation are unclear. Although M.F. did not [16] give the dates of the molestations, his description of the locations where the incidents occurred—in the basement and the garage—suggest that they occurred when the family lived at the Kendall Street address. Indeed, the charging information alleged that the molestations took place between December 2011 and December 2012, which coincides with the time the family lived on Kendall Street. M.F.’s recorded statement was made in December

2012. Thus, the molestations could have occurred anywhere from just days to one year before M.F.’s initial disclosure. Although the passage of time between an alleged molestation and a victim’s disclosure generally weighs against a finding of reliability, this court has affirmed a trial court’s decision to admit a victim’s statement made after a longer delay. See Ennik v. State, 40 N.E.3d 868, 879 (Ind. Ct. App. 2015) (affirming admission of statement pursuant to the PPS Court of Appeals of Indiana | Memorandum Decision 71A03-1507-CR-918 | August 12, 2016 Page 8 of 13 where “anywhere from nine to twenty-two months passed between the actual molestation and [the victim’s] initial disclosure”), trans. denied.

Rupert also asserts that there was a significant opportunity for coaching by [17] Mother, but he does not develop this argument with citation to authority or the record. Nevertheless, we note that the opportunity for coaching arises after the victim’s initial disclosure. Nunley v. State, 916 N.E.2d 712, 718 (Ind. Ct. App.

2009), trans. denied. Here, M.F. made his initial disclosure on December 8, 2012, and the recorded statement was made three days later on December 11, 2012.

This court has affirmed the admission of recorded statements pursuant to the PPS under similar circumstances. See M.T. v. State, 787 N.E.2d 509, 513 (Ind.

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