State v. Velasquez
2011 Ind. App. LEXIS 223
| Ind. Ct. App. | 2011Background
- G.S., born January 2000, lived with Velasquez as her mother’s partner; Velasquez was her stepfather and primary caregiver while her mother worked.
- G.S. disclosed in June 2008 that Velasquez had molested her; emergency and Meadows Hospital evaluations followed with no immediate physical signs noted.
- DCS removed G.S. and her brother on June 30, 2008; G.S. received counseling and treatment from Kline and Dr. Spencer; mother refused to engage with Spencer.
- Velasquez was charged in two counts (C Felony and A Felony child molesting) with joinder granted in October 2009; notices to admit Rule 404(b) evidence were filed and ruled admissible.
- Trial proceeded February 16-18, 2010; the trial court gave a preliminary character-evidence admonition and evidence of prior incidents was admitted; jurors heard testimony from Kline and Spencer, though some vouching concerns were raised.
- Jury acquitted Velasquez; the State appealed a reserved question of law on preliminary instruction and exclusion of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Premature limiting instruction on character evidence | Velasquez argues the instruction was improper before any evidence was offered. | Velasquez contends the court erred in giving a preliminary limiting instruction sua sponte. | No abuse; instruction proper to limit 404(b) evidence. |
| Exclusion of Kline under 803(4) hearsay | Kline’s statements to G.S. were admissible as 803(4) (health/treatment) and properly relied upon for diagnosis or treatment. | Trial court excluded Kline’s statements as not meeting the reliance requirement. | Trial court erred in excluding Kline’s statements under 803(4). |
| Kline qualified as an expert or allowed to testify as social worker | Kline could credibly provide expert testimony under Rule 702 based on experience. | Social worker may only provide factual testimony, not expert testimony, per IC 25-23.6-4-6. | Court erred in limiting Kline’s testimony as to expert qualification; 702(evidence could be admitted. |
| Excluding testimony under Rule 704(b) about PTSD diagnosis | Dr. Spencer’s PTSD-related testimony and demeanor observations were admissible to show consistency with trauma. | Avoids impermissible vouching and conclusions about credibility; diagnosis testimony barred. | Trial court erred in excluding Dr. Spencer’s PTSD-based testimony. |
| Excluding G.S.'s grandmother’s demeanor testimony under 704(b) | P.S.’s observations of demeanor post-abuse were relevant to trauma and not to credibility of accusations. | Damaging or improper vouching if testimony concerns credibility. | Trial court erred in excluding P.S.’s demeanor testimony. |
Key Cases Cited
- Gravens v. State, 836 N.E.2d 490 (Ind. Ct. App. 2005) (jury instructions reviewed for accuracy and scope; abuse of discretion standard)
- Humphrey v. State, 680 N.E.2d 836 (Ind. 1997) (sua sponte limiting instructions permitted)
- Nash v. State, 754 N.E.2d 1021 (Ind. Ct. App. 2001) (803(4) admissibility depends on reliability and expert reliance for diagnosis or treatment)
- McClain v. State, 675 N.E.2d 329 (Ind. 1996) (statements may be admissible if to promote diagnosis or treatment; non-requirement of familiarity with ultimate diagnostician)
- Burnett v. State, 815 N.E.2d 201 (Ind. Ct. App. 2004) (expert qualification based on knowledge, skill, experience, training, or education)
- Stout v. State, 612 N.E.2d 1076 (Ind. Ct. App. 1993) (704(b) admissibility for consistency with other victims and non-credibility determinations)
- Malinski v. State, 794 N.E.2d 1071 (Ind. 2003) (application of 704(b) regarding demeanor testimony)
- Rose v. State, 846 N.E.2d 363 (Ind. Ct. App. 2006) (704(b) limits expert to weight of testimony, not credibility inference)