Jason Hershberger v. State of Indiana (mem. dec.)
71A03-1702-CR-320
| Ind. Ct. App. | Aug 24, 2017Background
- Hershberger had a relationship with Megan Allen; their child C.H. was born Feb 25, 2010; Hershberger had parenting time every other weekend.
- Hershberger began dating Katie Schrock in 2012; Schrock had two children I.H. and E.P.; Hershberger signed I.H.'s birth certificate.
- In 2013-2014 Hershberger lived with Schrock's children at his mother’s Walkerton home; children slept in a basement room with three beds.
- In July 2013 C.H. complained of pain near her vagina; Allen observed redness around C.H.'s vagina and contacted DCS.
- In Dec 2014 I.H. reported injuries to Schrock; Schrock had I.H. undergo medical and Casie Center interviews; I.H. disclosed sexual acts by Hershberger.
- At trial, the State sought to admit I.H.'s Casie Center interview under the Protected Person Statute; the court granted this motion and the jury heard testimony including C.H.'s account and the admissibility of State's Exhibit 11.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Protected Person Statute applicability | Hershberger contends I.H. unavailable; reliability supports admission | Unavailability and reliability not sufficiently shown | Court did not abuse; I.H. unavailable and interview reliable |
| Admission of photographs of sex toy | Photos corroborate C.H.'s testimony | Photos irrelevant or prejudicial | Trial court did not abuse; exhibits were highly relevant |
| Hearsay and defense testimony | Proffered statements necessary to explain vocabulary; not offered for truth | Testimony framed as hearsay | Issue waived; no reversible error found |
| Closing argument about unknown DNA | DNA evidence could be noted as part of the record | Admonition needed; argument improperly suggested another molester | Waived on appeal; court admonished jurors; no reversible error |
| Exclusion of defense theory on third-party liability | DNA could support third-party liability | Defense did not present admissible third-party evidence | Waived; not argued below; not reversible |
Key Cases Cited
- Shinnock v. State, 76 N.E.3d 841 (Ind. 2017) (evidentiary rulings reviewed for abuse of discretion)
- Carpenter v. State, 786 N.E.2d 696 (Ind. 2003) (reliability concerns under protected witness statutes)
- Pribie v. State, 46 N.E.3d 1241 (Ind. Ct. App. 2015) (evidence of unknown male DNA rebuttal under Rule 412)
- Davis v. State, 74 N.E.3d 1215 (Ind. Ct. App. 2017) (waiver principle for appellate review of evidentiary objections)
- Walls v. State, 993 N.E.2d 262 (Ind. Ct. App. 2013) (closing argument discretion and admonishment relevance)