Anna Wood v. D.W., Minor Child, by next friend, Rhonda Wood , 2015 Ind. App. LEXIS 727 ( 2015 )

Nov 30 2015, 6:11 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rodney T. Sarkovics David W. Stewart
Campbell Kyle Proffitt LLP Michael J. Sobieray
Carmel, Indiana Stewart & Stewart
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anna Wood, November 30, 2015
Appellant-Respondent, Court of Appeals Case No.
29A02-1507-PO-856
v. Appeal from the Hamilton
Superior Court
D.W., Minor Child, by next The Honorable Gail Z. Bardach,
friend, Rhonda Wood, Judge
Appellee-Petitioner Trial Court Cause No.
29D06-1504-PO-3251
Crone, Judge.
Case Summary
[1] Anna Wood appeals the trial court’s grant of a protective order in favor of
Rhonda Wood on behalf of her son, D.W. Anna contends that the trial court
committed reversible error in admitting certain hearsay and opinion evidence.
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We agree and therefore reverse and remand with instructions to vacate the
protective order against her.
Facts and Procedural History
[2] Rhonda has two children: D.W., who was seven years old in June 2015, and
A.W., who was five. Rhonda is divorced from the children’s father, Shaun
Wood. 1 Rhonda and the children reside in Hamilton County, as does Shaun.
Anna is Shaun’s half-sister and lives in Chicago.
[3] On April 13, 2015, Anna filed a petition for a protective order against Rhonda
in Hamilton County because Rhonda was “threatening to contact Animal
Control” about Anna’s dog, which had allegedly bitten A.W. Tr. at 72. 2 On
April 27, Rhonda filed a petition on behalf of each child for a protective order
against Anna, alleging that Anna had committed sex offenses against both
children in Shaun’s home on or about April 21. The petition on behalf of D.W.
reads in relevant part as follows:
Just recently [D.W.] and [A.W.] told Detective [Sarah] Harris [of
the Carmel Police Department] and Emily, a case manager [from
the Department of Child Services (“DCS”)], about very specific
events alleging sexual abuse by Anna. These times included
Easter weekend [April 4 and 5] and during the kids [sic] spring
break. The kids alleged this occurred at their dad’s home. I
1
Shaun’s first name is spelled “Shawn” in the transcript, but both parties refer to him as “Shaun.”
2
The alleged dog bite was a basis for Rhonda’s petition for a protective order as to A.W. At the conclusion
of the hearing on the petition, the trial court remarked, “[T]he only evidence there was about whether or not
a dog bit [A.W.] […] was that it didn’t happen.” Tr. at 81.
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signed a safety plan [drafted by a DCS case manager], which is
attached. Detective Harris and the family case manager have
advised Anna Wood is not to be around the kids. I am unable to
get confirmation from their dad that this is being followed. In
fact, she was with the kids last week after the allegations were
made. Detective Harris and the family case manager told me
they believed the kids. [A.W.] told them of Anna touching her
vagina and that [A.W.] had seen Anna pull on [D.W.’s] penis.
[A.W.] has also stated that Anna has told her to leave the room
and when she looked Anna was pulling [D.W.’s] penis. [A.W.]
stated this occurred at her Dad’s current home. I was informed
by Detective Harris and family case manager, [D.W.] informed
them of specific sexual abuse acts that were as recent as April,
2015. These all involved Anna grabbing or “squishing” his
penis. I was informed none of these described acts happening
[sic] during a time, such as bath time, as to when the kids could
have misconstrue [sic] what occurred. [D.W.] has told his
Grandmother that Anna is still pulling on and squishing his penis
as well. The kids have told me she has been doing it as well.
Appellant’s App. at 11. On April 28, the trial court granted ex parte protective
orders as to both children.
[4] Anna requested a hearing on the petitions, which was held on June 19. The
children’s nanny, Michelle Anderson, testified that when she picked up D.W.
from school at 2:30 p.m. on April 30, he was “crying” and “very upset.” Tr. at
41. She asked him what was wrong. Over Anna’s objection, Anderson testified
that D.W. stated, “Aunt Christy touched my peenie[.]” Id.
[5] Also over Anna’s objection, Detective Harris testified to the effect that she
believed that the children’s sexual abuse allegations against Anna were truthful.
The detective acknowledged, however, that the children had given
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“inconsistent” statements regarding the alleged abuse and that DCS had
“unsubstantiated” those allegations. Id. at 35, 33. Detective Harris had
recommended that child molesting charges be filed against Anna, but as of the
hearing date no charges had been brought.
[6] Anna denied touching D.W.’s penis and denied touching A.W. “in any sexual
way[.]” Id. at 62. Neither D.W. nor A.W. testified at the hearing.
[7] At the conclusion of the hearing, the trial court found that “[t]here was no
testimony by anyone of what may have happened to [A.W.]” and dismissed the
protective order as to her. Id. at 80. The court found “by a preponderance of
the evidence that there was an act of sexual abuse or a sex offense” committed
against D.W. and therefore continued the protective order as to D.W. Id. at 81-
82. 3 The court extended that order to protect A.W. and required Anna to stay
away from Shaun’s home regardless of whether D.W. is present. Appellant’s
App. at 26 (protective order), 31 (order on Anna’s motion to clarify). Anna
now appeals.
Discussion and Decision
[8] A parent may file a petition for a protective order on behalf of a child against a
person who has committed domestic violence (which includes a sex offense)
against the child. Ind. Code §§ 34-26-5-2(b), 34-6-2-34.5. Upon a showing of
3
Rhonda’s petition as to D.W. contained allegations regarding three other incidents. The trial court found
no evidence of any danger as to the first, and Rhonda presented no evidence regarding the other two.
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domestic violence by a preponderance of the evidence, “the court shall grant
relief necessary to bring about a cessation of the violence or the threat of
violence.” Ind. Code § 34-26-5-9(f).
[9] Anna argues that the trial court erred in granting Rhonda’s petition for a
protective order as to D.W. because no competent evidence was introduced that
she committed a sex offense against D.W. Her argument focuses on two pieces
of evidence: (1) D.W.’s statement to Anderson that Anna had touched his
“peenie”; and (2) Detective Harris’s opinion to the effect that the children’s
sexual abuse allegations against Anna were true. 4 “Our standard of review of a
trial court’s admission or exclusion of evidence is an abuse of discretion.” In re
Des. B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014).
A trial court abuses its discretion only if its decision is clearly
against the logic and effect of the facts and circumstances before
the court. It is well-established that errors in the admission of
evidence are to be disregarded as harmless error unless they affect
the substantial rights of a party. To determine whether the
admission of evidence affected a party’s substantial rights, we
assess the probable impact of the evidence upon the finder of fact.
Id. (citations and quotation marks omitted).
4
Anna also challenges the admissibility of a cellphone voicemail message from D.W. to Rhonda on April 30
that states in pertinent part, “And because they touch Christy’s peenie I’m lying and I’m not lying.” Tr. at
53. There is no indication that the trial court relied on this unintelligible statement in finding that Anna
committed a sex offense against D.W., so we do not address it.
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Section 1 – The trial court abused its discretion in admitting
D.W.’s statement as an excited utterance.
[10] D.W.’s statement to Anderson that Anna touched his “peenie” was hearsay.
See Ind. Evidence Rule 801(c) (defining hearsay as “a statement that: (1) is not
made by the declarant while testifying at the trial or hearing; and (2) is offered
in evidence to prove the truth of the matter asserted.”). Hearsay is not
admissible unless the evidence rules “or other law provides otherwise.” Ind.
Evidence Rule 802. Over Anna’s hearsay objection, the trial court admitted
D.W.’s statement as an excited utterance, which is not excluded “by the rule
against hearsay, regardless of whether the declarant is available as a witness[.]”
Ind. Evidence Rule 803. An excited utterance is “[a] statement relating to a
startling event or condition, made while the declarant was under the stress of
excitement that it caused.” Ind. Evidence Rule 803(2).
[11] Our supreme court has stated,
The underlying rationale of the excited utterance exception is
that such a declaration from one who has recently suffered an
overpowering experience is likely to be truthful. While the event
and the utterance need not be absolutely contemporaneous, lapse
of time is a factor to consider in determining admissibility.
Similarly, that the statements were made in response to inquiries
is also a factor to be considered. Whether given in response to a
question or not, the statement must be unrehearsed and made
while still under the stress of excitement from the startling event.
Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000) (citations omitted); see also
Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (“Although the amount of time
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that passes between the startling event and the statement is not necessarily
dispositive, it is one factor to consider when determining the admissibility of
statements. A long period of time reduces the likelihood that a statement is
made without deliberate thought and under the stress of excitement of an
event.”) (citation omitted).
[12] “Determining whether a statement constitutes an excited utterance is essentially
a factual determination subject to a clearly erroneous standard of review,
sometimes described as the functionally equivalent abuse of discretion.”
Davenport v. State, 749 N.E.2d 1144, 1148 (Ind. 2001). “For a hearsay statement
to be admitted as an excited utterance, three elements must be shown: (1) a
startling event, (2) a statement made by a declarant while under the stress of
excitement caused by the event, and (3) that the statement relates to the event.”
Id. “This is not a mechanical test. It turns on whether the statement was
inherently reliable because the witness was under the stress of an event and
unlikely to make deliberate falsifications.” Id.; see also Fowler v. State, 829
N.E.2d 459, 463 (Ind. 2005) (“The ultimate issue is whether the statement is
deemed reliable because of its spontaneity and lack of thoughtful reflection and
deliberation.”), cert. denied (2006).
[13] Anna points out that Rhonda failed to establish how much time elapsed
between the alleged molestation and D.W.’s statement, which was made on
April 30. Rhonda alleged in her protective order petition that the molestation
occurred on or about April 21, but it is axiomatic that “pleadings are not
evidence[.]” Ewing v. Timmons, 135 Ind. App. 274, 278, 193 N.E.2d 497, 499
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(1963). 5 Although lapse of time is not a dispositive factor, admitting a hearsay
statement relating to a startling event with no foundational evidence regarding
when the event occurred would undermine the rationale for the excited
utterance exception to the hearsay rule. 6 The mere fact that D.W. exhibited
stress when he made the statement is not sufficient. Absent any indication of
how much time elapsed between the alleged molestation and D.W.’s statement,
we conclude that the trial court abused its discretion in admitting the statement
as an excited utterance. 7 Cf. D.G.B. v. State, 833 N.E.2d 519, 527 (Ind. Ct. App.
2005) (holding that trial court abused its discretion in admitting molestation
victim’s statements as excited utterances, where victim “had spent the day
resting, had been released from the hospital, and an entire day had passed since
the event took place.”). 8
5
Anna testified that she last saw D.W. on April 12, more than two weeks before he made his statement to
Anderson. Rhonda presented no contrary evidence.
6
Here, the trial court was reduced to “hypothesiz[ing]” about what prompted D.W. to make his statement to
Anderson on April 30. Tr. at 78. This undermines the rationale for admitting the statement.
7
“[W]e may affirm a trial court’s decision regarding the admission of evidence if it is sustainable on any basis
in the record.” Johnson v. State, 6 N.E.3d 491, 499 (Ind. Ct. App. 2014). Rhonda posits no other basis for the
admissibility of D.W.’s statement, and we are unaware of any in this particular context. Cf. Ind. Code § 35-
37-4-6 (regarding admissibility of statements of “protected persons” in criminal actions).
8
We are unpersuaded by Rhonda’s reliance on Holmes v. State, 480 N.E.2d 916 (Ind. 1985), and Jones v. State,
800 N.E.2d 624 (Ind. Ct. App. 2003), in which the precise time of the startling events was unknown but was
unquestionably within a matter of minutes and not more than three hours, respectively, of when the
statements at issue were made.
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Section 2 – The trial court abused its discretion in admitting
Detective Harris’s opinion regarding the truthfulness of the
children’s allegations.
[14] Indiana Evidence Rule 704(b) states in pertinent part that witnesses may not
testify to opinions concerning “the truth or falsity of allegations[.]” Over
Anna’s objection, the trial court admitted Detective Harris’s opinion to the
effect that the children’s sexual abuse allegations against Anna were true. This
was an abuse of discretion. 9
Conclusion
[15] D.W.’s statement and Detective Harris’s opinion were the only probative
evidence that Anna committed a sexual offense/domestic violence against
D.W. 10 Consequently, the trial court’s erroneous admission of this evidence
9
When Anna objected to Detective Harris’s opinion based on Evidence Rule 704(b), the trial court replied,
“I can accept it as an expert opinion.” Tr. at 31. Evidence Rule 702(a) states,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine a
fact in issue.
Rule 702(a) does not permit an expert witness to give an opinion as to the truth or falsity of allegations, and
Rule 704(b) in fact prohibits it. Ritchie v. State, 875 N.E.2d 706, 728 (Ind. 2007).
10
Rhonda mentions a “safety plan” that was initiated by DCS on April 21. Petitioner’s Ex. B. The plan
mentions only “allegations” without describing them, id., and Detective Harris acknowledged that DCS had
“unsubstantiated” them. Tr. at 33. Rhonda also mentions hearsay statements that Anna successfully
objected to. And finally, Rhonda mentions Detective Harris’s recommendation that child molesting charges
be filed against Anna. The detective offered no details regarding the basis for that recommendation other
than her opinion that D.W.’s sexual abuse allegations were true, and we have held her opinion inadmissible.
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affected Anna’s substantial rights and cannot be considered harmless. 11
Therefore, we reverse and remand with instructions to vacate the protective
order against Anna. 12
[16] Reversed and remanded.
May, J., and Bradford, J., concur.
11
Indiana Code Section 34-26-5-9(f) states, “A finding that domestic or family violence has occurred
sufficient to justify the issuance of an order under this section means that a respondent represents a credible
threat to the safety of a petitioner or a member of a petitioner’s household.” Rhonda asserts,
The protective order was properly issued against Anna because it was established by a
preponderance of the evidence that Anna represents a credible threat to the safety of [D.W.], or
has placed [D.W.] in fear of physical harm. When a sex offense is involved, it need not actually
be committed by a family member.
Appellee’s Br. at 10. The only stated basis for Rhonda’s protective order petition as to D.W. was that Anna
had committed a sex offense against him. Appellant’s App. at 10. Because Rhonda failed to present any
admissible evidence that a sex offense occurred, she also failed to establish that Anna represents a credible
threat to D.W.’s safety.
12
Given our resolution of this appeal, we need not address Anna’s arguments that the trial court erred in
extending D.W.’s protective order to A.W. and requiring her to stay away from Shaun’s home regardless of
whether D.W. is present.
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