Dectrick Price v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 02 2018, 9:21 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Ann Johnson Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Ian A. McLean
Kevin Wild Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dectrick Price, August 2, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1712-CR-2858
v. Appeal from the Marion Superior
Court, Criminal Division
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1606-F1-24344
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018 Page 1 of 6
Case Summary
[1] Dectrick Price appeals his convictions for two counts of Level 1 felony child
molesting and one count of Class A misdemeanor intimidation. We affirm.
Issues
[2] Price raises one issue, which we restate as whether the trial court properly
admitted the victim’s recorded interview with a forensic child interviewer.
Facts
[3] In 2015, seven-year-old year old T.F. lived with her mother, stepfather, and two
sisters, ten-year-old T.J. and four-year-old T.I. Price was a friend of T.F.’s
stepfather. Price occasionally stayed with the family and babysat the children
while their mother and stepfather worked the evening shift. At some point,
Price started molesting T.F. T.J. witnessed Price molesting T.F. and threatened
to tell their mother, but Price told T.J. that he would hit her if she told.
[4] In October 2015, T.F.’s behavior changed, her grades dropped, she was
disruptive at school, and she wanted to go to work with her mother. T.F.’s
mother asked what was happening, but T.F. “wasn’t telling [her] anything.”
Tr. Vol. II p. 31. In January 2016, T.F.’s family moved, and Price did not
move with them. In March 2016, T.J. talked to her mother, and their mother
then talked to T.F. T.F.’s mother took her to the hospital, and she was later
interviewed by Jill Carr, a forensic child interviewer.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018 Page 2 of 6
[5] The State charged Price with Count I, Level 1 felony child molesting for
performing sexual intercourse with T.F.; Count II, Level 1 felony child
molesting for performing other sexual conduct with T.F.; Count III, Level 5
felony battery; and Count IV, Class A misdemeanor intimidation for
threatening T.F. and/or T.J. if they told what Price had done to T.F. The
battery charge was later dismissed. At the jury trial, T.F. and T.J. testified
regarding Price’s actions. During cross-examination of T.F., Price questioned
her regarding her interview with Carr. Later, during Carr’s testimony, the trial
court admitted T.F.’s recorded interview with Carr over Price’s objection. The
jury found Price guilty as charged, and the trial court sentenced him to an
aggregate sentence of sixty-five years with five years suspended to probation.
Price now appeals.
Analysis
[6] Price argues that the trial court abused its discretion by admitting T.F.’s
recorded interview with the forensic interviewer. The trial court has broad
discretion to rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d
38, 40 (Ind. 2014). We review the trial court’s rulings for abuse of that
discretion and reverse only when admission is clearly against the logic and
effect of the facts and circumstances. Id. We disregard errors in the admission
of evidence as harmless error unless they affect the substantial rights of a party.
VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013); see also Ind. Trial Rule 61.
In determining whether error in the introduction of evidence affected the
defendant’s substantial rights, we assess the probable impact of the evidence
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018 Page 3 of 6
upon the jury. Id. “The improper admission is harmless error if the conviction
is supported by substantial independent evidence of guilt satisfying the
reviewing court there is no substantial likelihood the challenged evidence
contributed to the conviction.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind.
2011). Further, the admission of hearsay evidence is not grounds for reversal
where it is merely cumulative of other evidence admitted. VanPatten, 986
N.E.2d at 267.
[7] Price argues that the trial court erred by admitting the recorded forensic
interview of T.F.1 Price contends that the recorded interview was hearsay and
did not qualify for the exception found in Indiana Evidence Rule 803(5), which
governs recorded recollections.2 The State argues the recorded interview was
admissible under Horton v. State, 936 N.E.2d 1277, 1281 (Ind. Ct. App. 2010),
summarily aff’d in relevant part by Horton v. State, 949 N.E.2d 346 (Ind. 2011).
1
Price makes no argument concerning the Protected Person’s Statute, Indiana Code Section 35-37-4-6.
2
Indiana Evidence Rule 803(5) provides that the following is not excluded by the rule against hearsay
regardless of whether the declarant is available as a witness:
A record that:
(A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as
an exhibit only if offered by an adverse party.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018 Page 4 of 6
[8] We need not address Price’s argument because any error in the admission of the
recorded interview was harmless. Price argues that the recorded interview was
“highly prejudicial” because “[m]uch of the evidence that came into the record
was from this videotape, including nearly all evidence relating to Counts 2 and
4.” Appellant’s Br. p. 14. We disagree.
[9] In Count I, the State charged Price with Level 1 felony child molesting, which
required the State to prove that Price, who was over twenty-one years old,
knowingly or intentionally performed sexual intercourse with T.F., who was
under fourteen years old. In Count II, the State charged Price with Level 1
felony child molesting, which required the State to prove that Price, who was
over twenty-one years old, knowingly or intentionally performed other sexual
conduct with T.F., who was under fourteen years old. Indiana Code Section
35-31.5-2-221.5 defines other sexual conduct as “an act involving: (1) a sex
organ of one (1) person and the mouth or anus of another person; or (2) the
penetration of the sex organ or anus of a person by an object.” Price was also
charged with Class A misdemeanor intimidation, which required the State to
prove that Price communicated a threat to another person with the intent that
“the other person engage in conduct against the other person’s will.” I.C. § 35-
45-2-1(a)(1).
[10] At the trial, T.F. testified that she would fall asleep in her room and that Price
would carry her to the basement. T.F. testified that Price put his “private part”
inside both the area she uses to “pee” and the area she uses to “poop.” Tr. Vol.
II p. 73. T.J. testified that she saw Price put “his private part in [T.F.’s] butt.”
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018 Page 5 of 6
Id. at 48. T.J. testified that T.F. was “bending over” forward and “crying” and
that she saw Price’s “private part” going inside T.F.’s body. Id. at 49. When
questioned what she meant by “butt,” T.J. testified it is the body part T.F. used
to “[p]oop.” Id. at 50. T.J. testified that she confronted Price and threatened to
tell her mother. Price said he would hit her if she told.
[11] The evidence in T.F.’s recorded interview is merely cumulative of her
testimony. Even if we ignore the recorded interview, the State presented
substantial independent evidence of guilt and there is no substantial likelihood
the challenged evidence contributed to the convictions. Any error in the
admission of the recorded interview is harmless. See, e.g., VanPatten, 986
N.E.2d at 267 (holding that the forensic nurse examiner’s testimony was
“merely cumulative and at most harmless error”).
Conclusion
[12] Any error in the admission of the recorded interview was harmless. We affirm
Price’s convictions.
[13] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2858 | August 2, 2018 Page 6 of 6