*1 guilt. аppli- doubt of to a reasonable rehearing granted, judg-
cation for TRAVER, Randy Appellant, reversed, ment of the Court and this remanded for a new trial. cause is Indiana, Appellee. STATE of No. 67S00-8807-CR-690. KRAHULIK, JJ., DICKSON concur. Supreme Court Indiana.
SHEPARD, C.J., dissents. March GIVAN, J., separate dissents with SHEPARD, C.J., joins.
opinion in which Justice,
GIVAN, dissenting. granting
I respectfully dissent from the petition rehearing in this case. original majority opin-
As stated
ion, I the trial court did not believe abuse denying
its discretion in the Motion to Cor- if in
rect Error. Even one fills the deficien- Davis, the majori-
cies of the affidavit of do,
ty is wont to we still have a situation materially
which does not deviate from the presented If jury.
evidence one as- appellant's
sumes that Davis fact did see operation
boat in and did the dece- observe thereof,
dent fall from the this does back gainsay the circumstantial
that the victim was stunned a blow to by appellant
the head delivered and that so
stunned, she fell from back of the boat
being operated high speed by appellant. original majority opin-
As set forth
ion, other witnesses heard the cries of the through
victim as the boat travelled
water and observed the return to the boat apparently
location where the fell. victim
They light being also observed a search I nothing
shown on the water. see Fox, Larry
affidavit of D. or in the Jr. Ray
affidavit of Davis that contradicts the already
evidence which has been heard jury appellant. that convicted deny petition rehearing.
I would
SHEPARD, C.J., concurs. *2 Defender, J. Public Carpenter, K. Susan Defender, In- Sauer, Public Deputy
Michael appellant. dianapolis, Gen., Gary Da- Pearson, Atty. Linley E. Gen., Indianapo- Atty. Secrest, Deputy mоn appellee. lis, for KRAHULIK, Justice. Randy Defendant-Appellant, counts two jury of by a convicted incest. count and one terms 20-year to two sentenced
He was
finger
and about Traver's insertion of his
convictions,
to be served
the molestation
consecutively,
fоur-year
and to a
term for
mother,
tongue.
Evelyn,
Traver's
took
analyst
psychiatrist,
conviction,
to a child
to be served concur-
the incest
molestation convictions.
rently with the
Sabesan,
Evelyn suspected
Sharda
after
*3
of issues in this
Traver raises a number
had
that J.T.
beеn molested. Sabesan had
our decision makes it
appeal,
direct
but
three sessions with J.T. wherein she re-
only
certain
necessary to decide
whether
"put
that
private
vealed
Traver had
his
in
improperly ad-
statements were
Patterson
private",
plaсed
her
and
tongue
had
his
on
mitted.
area,
private
top
her
her
but
clothes.
below,
stated
we reverse
For
reasons
Detective Richard Rice testified about a
convictions and the
statement he took from Traver in which
improp-
for incest
attaining
Traver admitted to
erections
er admission of
statements.
Patterson
lap.
when children sat on his
how-
ever,
molesting
his
touching
taking
Traver was convicted
the children or
J.T.,
five-year-old daughter,
another
and
statement,
off their
clothes. Also
this
seven-year-old girl,
The State's cаse
A.G.
Traver admitted that in 1979he had molest-
videotaped
primarily upon
was based
inter
T-year-old girl.
ed another
Newton,
Ann
between J.T. and
and
views
There was also evidence in J.T.'s video-
In
A.G. and Ellen Johnson.
between
statement,
taped
and other statements
at-
girls
game
tapes,
described a
called
by
to her
tributed
others that Traver and
play
which Traver would
"wee-wee"
stay
his mother had instructed J.T. to
si-
reported
them. J.T.
that Traver had stuck
lent,
girl
and warned the
that if she told
finger
tongue
"private
his
into her
done,
anyone about
Traver had
he
what
area,"
"put
private
and had
into her
go
prison
to
and be killed.
private."
reported
A.G.
that Traver would
Traver asserts that he was denied his
play
game
him
which would involve
right to confront his accusers because the
placing his
on her and in
"weiner"
her
upon
convictions rested
out-of-court
state-
"private" area..
ments
declarants whom he could not
Ellen Johnson had A.G. in her elementa-
cross-examine.
ry school class where
exhibited sexu-
Two of the out-of-courtstatements
ally-oriented behavior which led Johnson to
videotapes
which Traver refers are the
inquiry revealing
further
the molestations.
girls talking separately
with adults
possessed
Johnson found that A.G.
The
about what Traver had done to them.
strong ability to know the difference be-
other statements are conversations bе-
reality
fantasy,
tween
and did not be-
workers,
tween the children and social
allegation.
lieve she had fabricated the
teachers, physicians,
parents.
and foster
qualified
Ann
an
who was
trial. All of the
Both children testified at
expert
abuse,
in child
reached cеr-
sexual
statements were allowed as substantive ev-
(11)
tain conclusions after eleven
sessions
pursuant
idence
Patterson
(28)
twenty-eight
J.T.
sessions
(1975),
55, 324 N.E.2d
over
268 Ind.
girls'
with A.G. Newton found both
behav-
objection
there was an inade-
Traver's
that
sexually-abused
ior consistent with
chil-
quate
challenges
Traver
foundation.
dren. She found no inconsistencies. New-
of these statements because the
they
present
also found
had a
ton
that
giving
girls
acknowledged
neither
understanding
of the difference between
testimony
nor offered in-court
statements
and,
reality
fаlsity
opinion, they
her
charges.
about
had not fabricated their stories.
Gurney
Patterson,
Tina
testified at trial that she
out-of-
In
we held that
given custody
of J.T. after her removal
a declarant who
court
present and
for cross-examination
Gurney
available
from the Trаver household.
relat
may
evidence. The
be used as substantive
ed a conversation with J.T. wherein
offering
statement
party
the out-of-court
game
her and her
told
husband about
Instead,
ar-
Traver
videotaped statement.
burden
has the
as substantive
in-court
that A.G.'s
foundatiоn,
gues
Doug-
proper
establishing the
result, there was
and as
Traver
implicate
Ind.,
(1984),
v. State
lass
cross-examine.
nothing
him to
virtually
declarant, at
requires
which
statement
making the
trial, acknowledge
A.G. testi
record reveals
it.
testimony consistent
live
and offer
talking
rememberеd
that she
in court
fied
Ind.,
Traver
about
v. State
"on TV"
Lambert
workers
the social
meet both
fails to
point
She
the declarant
game."
If
the "wee-wee
generally
requirements,
legs when
her
area between
ed
unless
used to
body Traver
part
not admissible
what
asked
*4
trial
thе
did not
from which
game."
She
evidence
"weewee
was
play the
there
his
part
of
the witness
that
that
did with
conclude
Traver
could
recall what
court
having
remembered
and
that Traver
saying
the statement
not recall
and did
body,
memory.
live
After this
of
feigning lack
her.
so,
on
"weiner"
is
put his
but
done
Ind., 446 N.E.2d
the
permitted
(1988),
trial
testimony,
the
court
v. State
Watkins
for
videotaped statement
the out-of-court
the
play
949,
to
Whether
State
960-61.
evi-
as substantive
admissible
statement
jury.
the
trial court
by the
determined
is to be
dence
evi
sufficient
here contains
record
The
entire testimo-
the witness'
of
the basis
young
by a
acknowledgement
of
dence
Ind.,
(1988),
524
v. State
Hodges
ny.
videotape
the
of
support admission
to
774, 782.
N.E.2d
as
Traver
identified
The child
statement.
the "wee-wee
played
had
who
person
the
re
foundational
of the
рurpose
The
Traver
that
her,
testified
and
game"
that
(1)
ensure
to
is two-fold:
quirement
play
legs to
between
the area
had used
(2)
made,
to
actually
was
statement
the
testimony contained
live
The
game.
that
to cross-exam
right
defendant's
preserve
Traver
implicating
information
sufficient
State, 446
v.
Watkins
the witness.
ine
acknowledg
sufficient
and demonstrated
Where,
example, a declar-
949.
N.E.2d
videotape state
of the
the content
ment of
making the
nor
admitted
ant neither
conducted,
have
could
Traver
that
testify on Fifth
ment
refused to
statement
complete cross
to,
full and
he chosen
had
declarant
the
grounds,
Amendment
tes
in-court
though the
Even
examination.
Brew
cross-examination.
not available
videotape
the
detailed as
not as
timony was
507,
Ind., 450 N.E.2d
(1983),
v.
ster
State
considering
that,
statement,
conclude
we
testi
in-court
the declarant's
if
Even
510.
taking into
testimony as a whole
A.G.'s
out-of-court
the
is consistent
mony
understanding,
minimal
age
account
spe
does not
statement,
the declarant
but
video
admitted
properly
trial court
having made
acknowledgе
cifically
Ind., 533
(1989),
v. State
tape. Wyrick
inade
may be
statement,
foundation
(1986),
118, 120;
v. State
Edwards
N.E.2d
Ind.,
(1990),
562
v. State
_
Hendricks
quate.
1209, 1211.
Ind.,
N.E.2d
500
of the
benefit
obvious
725.
N.E.2d
the admis
permits
it
rule is that
hand,
in-court
J.T.'s
the other
On
that
guilt
of
evidence
testimonial
of
sion
of
that
than
less detailed
testimony is much
State,
v.
lost. Watkins
that she
be
stand
on the
otherwise
testified
A.G. She
(1978),
959;
v. State
Stone
446
adult
talking to
recall
not
did
1372, 1375.
Ind.
videotaped interview.
participating
talking in front
recall
not
did
to She
unable
he was
that
claims
Traver
portion of
videocamera,
ac-
when
neither
she
A.G. because
сross-examine
her,
initially
she
shown
videotape was
the statements
having given
knowledged
herself,
a few
after
but
recognize
testimony consistent
in-court
nor offered
ac
she
from the State
questions
more
that the video-
concedes
Traver
them.
on the
Newton
hеrself and
knowledged
first founda-
satisfy the
taped statements
talking to Newton
recall
did not
tape. She
Patterson,
no
because
purpose
tional
part
recall what
did not
She
Traver.
gave
that A.G.
the fact
disputes
play
the "wee-wee
there
body was used
under Patterson
admitted
for their admission. We
was no foundation
J.T.
did not cross-examine
Traver
game."
that
the erroneous
conclude
at all.
hearsay
preju-
so
these oral
testimony does not contain
Her live
that
the conviction for moles-
diced Traver
having mаde the
acknowledgement
any
must
reversed as well.
tation of A.G.
be
testimony im
any
or
videotaped statement
duty
This Court has a
to assess
circum
these
Traver. Under
plicating
erroneously-admit
probable impact of
is not a
stances,
that
there
we concludе
Ind.,
(1982),
ted evidence. Short v. State
for admission
foundation
sufficient
Admit
substantive evidence.
Introduction of inad
448 N.E.2d
merely
cumula
the missible evidence which
gave
dispute
is no
J.T.
tedly, there
guilt
preju
is not
tive and not decisive
videotape. None
statement shown
subject
Ind.,
theless,
oath or
was not under
dicial error. Watkins
gave
However, reversal
she
when
is com
to cross-examination
be v. Jaske to the conviction. See tributed Be (1989), Ind., 22. 539 vidеotape state State
In addition to findings of physical were no cause there ments, other Patterson there were several the con eyewitnesses, and no defen molestation trial over statements admitted upon the credi large part rested viction Ellen John objection. Ann dant's The sum of bility of A.G. and son, Dr. were Gurney, Tina Sabesan video testimony and A.G.'s hearsay objec adults' testify over Traver's permitted to much girl or was taped Patterson tions about conversations testi live in-court than the child's greater concerning Trаv other were hearsay statements mony. The oral; statements were er. All of these cumulative, a sub there is because merely videotaped. conclude that We none were repetition of likelihood stantial in error were admitted these statements unfairly through hearsay adult adequate was estab no foundation because impression created prejudicially asked girls either not lished. Both were vouching for witnesses were that the adult stand, de these The evidence credibility the child. them, making making not recall nied or did accu product against Traver was acknowledgement, Without this them. must conclude We sations not have been oral statements should these would not reverse I therefore ity opinion. hearsay repeating as to A.G. error. prejudicial those accusations 418, 287 N.E.2d State, Ind. v. Mitchell relating to Therefore, the conviction 860. reversed. is also of A.G. the molestation a number has raised
Although Traver them resolve issues, need not we other v. retried. Irons must be this case 290-91, (1979), 272 Ind. 603, 605-6. HAGEL, Appellant VON Leonard hereby each conviction Accordingly, (Petitioner Below), remanded reversed, cause is and this trial. a new grant
instructions Indiana, Appellee STATE C.J., SHEPARD, and DeBRULER Below). (Respondent JJ., DICKSON, concur. 49A02-9005-PC-266. No. GIVAN, J., and dissents concurs Indiana, Appeals of Court opinion. separate District. Third Justice, concurring dissent- GIVAN, Dec. ing. opinion majority with the
I concur *6 as appellant's conviction
reversal majority is I think of J.T. application in its observation
correct rule.
the Patterson from the
However, dissent respectfully I conviction reversing appellant's
majority majority opin- As stated A.G.
as to admitting not err
ion, court did the trial be- interview with videotape of an during trial. of A.G.'s
cause the re- compliance with
Thus there was Accept rule. of the Patterson
quirements opin- majority by the
ing this observation their disagree with
ion, foreed to I am that statements conclusion
ultimate concerning their interviews
adult witnesses appellant prejudiced A.G. so be reversed. A.G. must as to testimony of A.G. accepts
When video- properly-admitted
coupled with statements, is suffi- there prior
tape of her convic- appellant's to sustain
cient evidence as to A.G.
tion admissions that the assume
Even if we by the
of additional majority opinion,
adults, set forth cu- are they nevertheless improper,
were proper- which was to the evidence mulative major- theory presented
ly