Donn Lee Rupert v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 12 2016, 9:07 am
this Memorandum Decision shall not be
CLERK
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark S. Lenyo Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donn Lee Rupert, August 12, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1507-CR-918
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jerome Frese,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1410-FA-14
Altice, Judge.
Case Summary
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[1] Following a jury trial, Donn Lee Rupert was convicted of class A felony child
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?
[2] We affirm.
Facts & Procedural History
[3] M.F. was born in 2007. In 2009, M.F. and his younger brother, I.F., lived in a
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.
[4] Mother and the boys lived at the Kendall Street address for about six months
before moving into their own apartment. On the morning of December 8,
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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.
[5] As a result of Mother’s report, both I.F. and M.F. were interviewed by Sara
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.
[6] Following M.F.’s disclosures, police attempted to locate Rupert, but were
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,
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one count of class C felony child molesting, and one count of class D felony
child solicitation.
[7] On April 7, 2015, Rupert took M.F.’s deposition. At that time, M.F. was eight
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.
Id. at 394.
[8] On May 1, the State filed a notice of intent to introduce a video recording of
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.
[9] The next day, the trial court ruled that M.F.’s recorded interview was
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.
I. Admissibility under the Protected Person Statute
[10] Rupert first argues that the trial court abused its discretion by admitting M.F.’s
recorded statement into evidence pursuant to the PPS. As with challenges to
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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)).
[11] The PPS provides a list of conditions under which evidence that would
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).
[12] One such requirement is that the protected person must either testify at trial or
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
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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.
[13] As it pertains to this case, a protected person is unavailable as a witness if,
[f]rom the testimony of a psychiatrist, physician, or psychologist,
and other evidence, if any, the court finds that the protected
person’s testifying in the physical presence of the defendant will
cause the protected person to suffer serious emotional distress
such that the protected person cannot reasonably communicate.
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
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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
of the trial court, which we will not do.1
[14] Next, Rupert argues that M.F.’s recorded statement did not bear sufficient
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
1
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.
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N.E.2d 39, 44 (Ind. 1997). There are undoubtedly many other relevant factors
to consider in individual cases. Id.
[15] Rupert first argues that the recorded interview is not sufficiently reliable because
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
at 1101.
[16] The precise dates of M.F.’s molestation are unclear. Although M.F. did not
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
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where “anywhere from nine to twenty-two months passed between the actual
molestation and [the victim’s] initial disclosure”), trans. denied.
[17] Rupert also asserts that there was a significant opportunity for coaching by
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.
Ct. App. 2003) (finding statement admissible under the PPS where two
days passed between child’s initial disclosure and interview). We note further
that M.F.’s use of age-appropriate language during the interview suggests that
he had not been coached. Specifically, when Wisthuff asked M.F. if Mother was
worried about something, M.F. stated that Rupert had “sucked” his “pee
pee” in the garage and the basement. State’s Exhibit 7. In response to Wisthuff’s
questions, M.F. disclosed further that Rupert had made M.F. touch Rupert’s
“pee pee” and tried to make him “suck” it and that Rupert had touched M.F.’s
“butt.” Id. M.F. described Rupert’s “pee pee” as “big” and with a “brown
beard.” Id. M.F. repeated his description of events several times during the
interview while continuing to use age-appropriate language.
[18] Rupert also argues that Mother and M.F. each had a motive to fabricate the
allegations. With respect to Mother, Rupert makes no claim that there was any
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animosity between them or that she bore him any ill will. Instead, he claims
that in light of Mother’ background, she “certainly . . . could have coached
M.F. to make allegations against someone else to deflect the focus on her
unstable lifestyle.” Appellant’s Brief at 17. This argument is entirely speculative
and ultimately unconvincing. Rupert has not directed our attention to any
evidence suggesting that DCS or the police were involved in Mother’s life until
she contacted authorities following M.F.’s disclosure of the molestation.
Rupert’s suggestion that Mother made the report to deflect attention that she
was apparently not receiving is puzzling, to say the least. Indeed, by making
the report, Mother invited authorities into her life and exposed herself to
investigation by both DCS and the police.
[19] With respect to M.F., Rupert claims that M.F. knew Mother was upset about
the incident in the closet and argues that M.F. “very well could have implicated
someone else to eliminate questions into his own conduct.” Id. at 18. We note
that M.F. testified at the PPS hearing that he got in trouble when the babysitter
caught him and I.F. in the closet together and that Mother was angry with him.
However, other evidence presented at the PPS hearing indicates that after
Swetcoff discovered M.F. and I.F. in the closet, she woke Mother to tell her
what she had seen. Mother was upset, but Swetcoff advised her to talk to the
boys calmly without scaring them or making them think they were in trouble in
order to determine what had happened. Later that day, Mother took the boys
to McDonald’s to discuss the incident, and she contacted authorities that same
day. Moreover, during M.F.’s interview at the CASIE Center, Wisthuff
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repeatedly assured M.F. that he was not in trouble. Accordingly, the trial court
was within its discretion to conclude that M.F. did not have a strong motive to
fabricate.
[20] Finally, Rupert makes a vague suggestion that Wisthuff asked leading questions
during the recorded interview. Specifically, he asserts that “[r]ather than asking
open ended questions, the interviewer rests upon statements made by M.F. to
further develop Rupert as a suspect.” Id. It is unclear to us what Rupert means
by this assertion, and he gives no specific examples of any objectionable
questions. Our review of the recorded statement leaves us with no doubt that
Wisthuff was a skillful interviewer and very careful to ask open-ended, non-
leading questions. Rupert’s argument in this regard is without merit.2
[21] Based on our review of the record, we cannot conclude that the trial court’s
finding that M.F.’s recorded statement bore sufficient indicia of reliability to be
admissible pursuant to the PPS was clearly against the logic and effect of the
2
Rupert also argues that a number of “extrinsic factors” negatively affect the reliability of M.F.’s statement.
Appellant’s Brief at 17. In support of this claim, Rupert directs our attention to Grandmother’s testimony
indicating that Mother had provided an unstable living environment for the boys that allowed them to be
exposed to pornography, sexual activity, and other inappropriate situations. We note, however, that Rupert
did not present evidence of these so-called “extrinsic factors” at the PPS hearing. Indeed, the testimony
supporting Rupert’s factual claims in this regard was not presented until after the recorded interview was
admitted into evidence at trial, and Rupert did not renew his previous objection to the admission of the
recorded interview on the basis of such evidence. Furthermore, Rupert has made no attempt on appeal to
explain how or why these factors would have any bearing on the reliability of M.F.’s statement. See Wingate
v. State¸900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (explaining that a party waives an issue where the party
fails to support his argument with cogent argument). For all of these reasons, we find Rupert’s argument in
this regard waived.
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facts and circumstances before it. Because Rupert has not established that the
trial court’s finding in this regard was an abuse of discretion, he is not entitled
to reversal on this basis.
II. Sufficiency of the Evidence
[22] Rupert also argues that the State presented insufficient evidence to support his
convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences flowing
therefrom. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, the judgment will not be
disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007). The uncorroborated testimony of a victim alone is sufficient to
support a conviction. Jenkins v. State, 34 N.E.3d 258, 262 (Ind. Ct. App. 2015),
trans. denied.
[23] M.F.’s recorded statement is sufficient to support Rupert’s convictions.
Nevertheless, Rupert directs our attention to M.F.’s deposition testimony and
the lack of corroborating or physical evidence that any molestation occurred.
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In other words, Rupert argues that we should credit conflicting evidence in his
favor. We will not indulge his blatant request to reweigh the evidence.
[24] Judgment affirmed.
[25] Bailey, J. and Bradford, J., concur.
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