Jonathen R. Lovelace v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION FILED
08/31/2017, 10:04 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. Buehler Curtis T. Hill, Jr.
Reed Earhart & Lennox, LLC Attorney General of Indiana
Warsaw, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathen R. Lovelace, August 31, 2017
Appellant-Defendant, Court of Appeals Case No.
43A03-1703-CR-596
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable David C. Cates,
Appellee-Plaintiff. Judge
Trial Court Cause No.
43D01-1611-F4-721
Najam, Judge.
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Statement of the Case
[1] Jonathen R. Lovelace appeals his conviction for child molesting, as a Level 4
felony. He raises one issue on appeal, namely, whether the trial court abused
its discretion when it admitted into evidence a video recording of a child
witness’s interview regarding the alleged molestation.
[2] We affirm.
Facts and Procedural History
[3] Lovelace is the biological son of Andrew Riley (“Andrew”) and the stepson of
Jennifer Riley (“Jennifer”). Andrew and Jennifer also have a minor daughter
together, A.R. On October 27, 2016, Lovelace, who was twenty-three years old
and who lived in his own apartment, visited the residence of Andrew and
Jennifer. After they ate dinner, Lovelace and A.R., who was five years old,
played together in various rooms around the house, including in A.R.’s
bedroom. At one point, Lovelace and A.R. went under the bed, which was a
common place for them to play. Jennifer went into A.R.’s room and asked
them to get out from under the bed. The two did not immediately leave from
their spot. Approximately ten to fifteen minutes later, Andrew went back to the
room and again asked them to get out from under the bed. At this point, the
two emerged. A.R. proceeded with her usual bedtime routine and Lovelace
spent some additional time with Andrew and Jennifer before he returned to his
apartment.
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[4] On October 30, while getting ready for bed, A.R. told Jennifer that she had a
secret to tell. A.R. told Jennifer that Lovelace “let her touch his private and his
booty”1 while they were under the bed on October 27. Tr. at 36. The next
morning, Jennifer went to the Warsaw Police Department station to report
A.R.’s claims. After she gave her statement, Jennifer picked A.R. up from
school and took her to the police station. There, Child Protective Services
Caseworker Kelly Bugg interviewed A.R. During the interview, which was
video recorded and monitored by a police officer, A.R. used a diagram of male
anatomy to show Bugg that she had touched Lovelace on his penis. On
November 2, the State charged Lovelace with one count of child molesting, as a
Level 4 felony, and alleged that he was a habitual offender.
[5] On December 30, the State filed its notice of intent to offer statements and
videotape of a protected person under the Protected Person Statute, Indiana
Code Section 35-37-4-6. On January 10, 2017, the trial court held a hearing on
the Protected Person statute. During the hearing, the State called A.R. as a
witness. Following the hearing, the court found that A.R. “is not able to
understand the nature and obligation of an oath[] and, accordingly, is
unavailable for trial.” Appellant’s App. Vol. II at 13. The court further found
that there was “sufficient indicia of reliability by time, content[,] and
circumstances” for the statement made to Jennifer and the video-recorded
statement to Bugg and that each statement was admissible at trial. Id. at 14.
1
Jennifer testified at trial that A.R. would say “privates and booty” when referring to genitalia. Tr. at 37.
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[6] The trial court held a two-day jury trial on January 17-18, 2017. At the onset of
trial, while the court addressed preliminary matters but before voir dire,
Lovelace objected to the use of A.R.’s video-recorded interview as evidence on
the ground that its admission would violate his Sixth Amendment right to
confront the witness. The trial court overruled his objection and stated that
Lovelace had the opportunity to cross examine A.R. at the January 10 hearing.
After opening statements, Lovelace renewed his objection to the use of the
video recording as evidence. The trial court again overruled his objection.
[7] On January 18, the second day of the trial, the State called Bugg as a witness.
During Bugg’s testimony, the State moved to admit the video-recorded
interview of A.R as State’s exhibit 9. Lovelace responded: “No objection.” Tr.
at 82. The trial court admitted the video-recorded interview as evidence and
played it for the jury.
[8] At the conclusion of the first phase2 of the trial on January 18, the jury found
Lovelace guilty as charged, and the court entered judgment of conviction.
During the second phase of the trial, the jury found Lovelace to be a habitual
offender. On February 16, the trial court sentenced Lovelace to an aggregate
sentence of sixteen years in the Indiana Department of Correction with two
years suspended to probation. This appeal ensued.
2
The trial court bifurcated the trial to address the habitual offender issue separately.
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Discussion and Decision
[9] Lovelace contends that the trial court violated his Sixth Amendment right to
confront a witness against him when it admitted into evidence A.R.’s video-
recorded interview. As our Supreme Court recently held:
The trial court is afforded wide discretion in ruling on the
admissibility of evidence. Nicholson v. State, 963 N.E.2d 1096,
1099 (Ind. 2012). On appeal, evidentiary decisions are reviewed
for abuse of discretion and are reversed only when the decision is
clearly against the logic and effect of the facts and circumstances.
Id.Shinnock v. State, 76 N.E.3d 841, 842-43 (Ind. 2017).
[10] On appeal, Lovelace argues that he “made a timely objection to the admission
of the videotaped statement prior to its introduction into evidence at trial.”
Appellant’s Br. at 7. However, while the record indicates that Lovelace
objected to the use of video evidence on two separate occasions early on the
first day of trial, Lovelace did not object when the State moved to introduce the
video-recorded interview during Bugg’s testimony.
[11] It is well settled that the “failure to make a contemporaneous objection at the
time evidence is introduced at trial will result in waiver of the issue on appeal.
Indeed, an appellate claim will not be preserved upon an objection discussed or
not made immediately prior to or following the admission of evidence.” Dilts v.
State, 49 N.E.3d 617, 619 (Ind. Ct. App. 2015) (second emphasis added).
Because Lovelace did not make a contemporaneous objection to the admission
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of the video-recorded interview, he has waived this issue on appeal. See e.g.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).3 Accordingly, we affirm his
conviction.
[12] Affirmed.
Kirsch, J., and Brown, J., concur.
3
When the State introduced the video-recorded interview into evidence, Lovelace specifically stated: “No
objection.” Tr. at 82. As such, the doctrine of fundamental error is not available to Lovelace on appeal. See
Halliburton v. State, 1 N.E.3d 670 (Ind. 2013).
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