James Walter Folks v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 30 2018, 8:26 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
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Walter Folks, August 30, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1710-CR-2317
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D03-1608-F4-29
May, Judge.
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[1] James Walter Folks appeals his conviction of Level 4 felony incest. 1 Folks
argues the trial court abused its discretion when it admitted two pieces of
evidence that he claims were inadmissible hearsay: a sexual assault
examination report from the hospital and testimony of a school counselor. We
affirm.
Facts and Procedural History
[2] On March 15, 2017, M.F., who was fourteen, was in her room when her uncle,
Folks, entered the room uninvited. Folks instructed M.F. to remove her pants
and underwear and lie on the bed. Folks put a blanket over M.F.’s head and
proceeded to have sexual intercourse with M.F.
[3] Two days later at school, M.F. was crying on her way to class, so a friend took
her to the school’s guidance counselor, Jennifer Johnson. M.F. told Johnson
that Folks had touched her, and M.F. indicated on a doll that he had touched
her between the legs. M.F. was taken to the Child and Family Advocacy
Center for a forensic interview. During the interview, M.F. voluntarily
disclosed what had happened to her. Afterward, M.F.’s father took her to
Elkhart General Hospital for a sexual assault examination conducted by Jamie
Lance, a registered nurse.
1
Ind. Code § 35-46-1-3(a) (2014) ( Incest occurs when a defendant, 18 years old or older, engages in sexual
intercourse or other sexual conduct with a person less than 16 years old who is in one of the identified
familial relations with the defendant.).
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[4] The State charged Folks with Level 4 felony sexual misconduct with a minor 2
and Level 4 felony incest. At trial, Folks objected to the admission the sexual
assault examination report, but the court overruled his objection under the
medical report exception, Indiana Evidence Rule 803(4). A jury found Folks
guilty on both counts, but the trial court entered a conviction of only incest due
to concerns about double jeopardy.
Discussion and Decision
[5] “A trial court has broad discretion in ruling on the admissibility of evidence
and we will disturb its rulings only where it is shown that the court abused that
discretion.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). Both pieces of
challenged evidence are alleged to be inadmissible hearsay. Hearsay is: “A
statement that is not made by the declarant while testifying at the trial or
hearing; and is offered in evidence to prove the truth of the matter asserted.”
Ind. Evidence Rule 801(c)(1)(2). Hearsay is inadmissible except as provided
by law or other court rules. Evid. R. 802.
Medical Report
[6] Folks first argues the trial court abused its discretion by allowing M.F.’s
medical record into evidence because it was inadmissible hearsay. The State
2
Ind. Code § 35-45-4-9 (2014).
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argues we need not determine whether the admission of the medical records
was erroneous as any possible error was harmless.
[7] An error in admitting evidence does not require reversal unless it affects the
substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001).
“The improper admission of evidence is harmless error when the conviction is
supported by such substantial independent evidence of guilt as to satisfy the
reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the conviction.” Barker v. State, 695 N.E.2d 925, 931
(Ind. 1998), reh’g denied. The erroneous admission of evidence may also be
harmless if that evidence is cumulative of other evidence admitted. Donaldson
v. Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).
[8] At trial, Folks did not object to the testimony of Lance, who was the nurse
who treated M.F., and Lance testified to the same statements found in the
medical report. (Compare Tr. Vol. II at 202 with State’s Exhibit 7.) Thus, any
possible error in the admission of the medical report was harmless, because the
report was cumulative of Lance’s testimony. See, e.g., Davis v. Garrett, 887
N.E.2d 942, 947 (Ind. Ct. App. 2008) (holding admission harmless because
evidence was cumulative of other evidence admitted), trans. denied.
[9] However, had Folks objected to the testimony from Lance, the medical record
still could have been admitted into evidence, because it is not excluded by our
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hearsay rules. Indiana Evidence Rule 803(4) provides: “A statement that: (A)
is made by a person seeking medical diagnosis or treatment; (B) is made for--
and is reasonably pertinent to--medical diagnosis or treatment; and (C)
describes medical history; past or present symptoms, pain or sensations; their
inception; or their general cause” is not excluded by the hearsay rule.
[10] For a report to be admissible under that exception, the declarant’s self-interest
in obtaining effective medical treatment must be considered. The court must
determine: “1) is the declarant motivated to provide truthful information in
order to promote diagnosis and treatment; and 2) is the content of the
statement such that an expert in the field would reasonably rely on it in
rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.
1996). Statements made by victims of sexual assault “satisfy the second prong
of the analysis because they assist medical providers in recommending
potential treatment for sexually transmitted disease, pregnancy testing,
psychological counseling, and discharge instructions.” VanPatten v. State, 986
N.E.2d 255, 260 (Ind. 2013).
[11] The first prong regarding the declarant’s motivation can generally be inferred
from the fact a victim sought medical treatment. Id. at 260-61. However,
when children are brought to a medical provider by their parents, an “inference
[of the declarant’s motivation] may be less than obvious” as the child may not
understand the purpose of the examiner or the relationship between “truthful
responses and accurate medical treatment.” Id. Thus, in these situations,
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evidence must be presented to show the child understood the medical
professional’s role and the importance of being truthful. Id. Such evidence
may be presented “in the form of foundational testimony from the medical
professional detailing the interaction between [her] and the declarant, how
[she] explained [her] role to the declarant, and an affirmation that the declarant
understood that role.” Id. at 261.
[12] Lance testified about the examination that she and the doctor performed on
M.F. Lance explained the medical questions she asked M.F. as part of the
examination. Lance testified that M.F. was cooperative during the procedure.
(Tr. Vol. II at 199-203.) M.F. also testified she was examined by a doctor and
knew why they were doing the tests. (Tr. Vol. II at 84.) In VanPatten, the
Court acknowledged a six-year-old child would not comprehend the situation
the same way an adult does. VanPatten, 986 N.E.2d at 265. In contrast, M.F.
was fourteen years old and an honor student. We have little doubt M.F.
understood the purpose of the examination. Accordingly, the medical records
are not inadmissible hearsay, as Folks contends. See Perry v. State, 956 N.E.2d
41, 49 (Ind. Ct. App. 2011) (medical record prepared by nurse during
evaluation was admissible), reh’g denied.
School Counselor
[13] Folks also challenges the testimony of Jennifer Johnson, the school counselor,
who testified about her conversation with M.F. on March 17, 2017. Folks
argues the testimony given by Johnson was inadmissible hearsay. Folks did
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not object to this testimony at trial and therefore waived any error in its
admission. See Geiger v. State, 721 N.E.2d 891, 895 (Ind. Ct. App. 1999)
(failure to specifically object results in waiver of that issue for appeal).
[14] Waiver notwithstanding, the admission of Johnson’s testimony was harmless.
Johnson testified M.F. reported her uncle touched her and M.F. pointed on a
doll to explain where he touched her. Johnson’s testimony is cumulative of,
and less detailed than, the medical report and the testimony of Lance. Because
the testimony given by Johnson was the same information found in the
medical report and testified to by Lance, the admission of it was harmless. See
Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993) (admission of improper
evidence is harmless when other substantial independent evidence shows
guilt).
Conclusion
[15] Testimony from Lance, the nurse who conducted the sexual assault
examination, was cumulative of the medical report and, therefore, admission
of the report was harmless error. Nevertheless, the report would have been
admitted because it met the criteria for being admissible despite being hearsay,
according to Indiana Rule of Evidence 803(4). Folks’ argument regarding
Johnson’s testimony is waived because Folks did not object at trial. Waiver
notwithstanding, the admission was harmless as Johnson’s testimony was
cumulative of, and less detailed than, Lance’s testimony. We accordingly
affirm Folks’ conviction of Level 4 felony incest.
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[16] Affirmed.
Riley, J., and Mathias, J., concur.
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