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Justices order new molestation trial after nurse’s statements admitted improperly

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Ruling that statements two 6-year-olds made regarding alleged molestation to a nurse should not have been admitted under the hearsay exception in Ind. Rule of Evidence 803(4), the Indiana Supreme Court reversed two child molesting convictions and ordered a new trial.

In Gerald P. VanPatten v. State of Indiana, 02S03-1205-CR-251, Justice Steven David wrote that “the question before us is whether the record reflects that the child adequately understood the role of the medical professional and the purpose of the visit in order for us to infer that the child was motivated to speak truthfully.”

E.R. spent the night at her friend’s home in August 2009. The next morning, E.R. and S.D. claimed that S.D.’s father, Gerald VanPatten, molested them. The children were interviewed by a Department of Child Services caseworker and later by nurse Joyce Moss at the Fort Wayne Sexual Assault Treatment Center. E.R. claimed she was molested that night; S.D. said she had been previously molested. A biological sample was able to be collected from only E.R.

VanPatten was convicted of Class A felony and Class C felony child molesting related to his daughter and Class A felony child molesting related to E.R.

He argued on appeal that Moss’ testimony as to what E.R. and S.D. told her during their examinations should not have been admitted. She testified after S.D. took the stand and recanted her previous allegations. The trial court allowed Moss’ testimony as substantive evidence. He only challenged his convictions related to his daughter.

The two-step analysis outlined in McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996), should be used to determine whether the nurse’s statements could be admitted under Rule 803(4). The first step is whether the declarant is motivated to provide truthful information in order to promote diagnosis and treatment; the second is whether the content of the statement is such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.

When testifying at trial, Moss had no specific memory of what she said to the two girls prior to interviewing them and there was no testimony to establish the girls knew what telling the truth meant or the importance of it in a medical examination, David wrote.

“This is not to say that Moss did not necessarily discuss these things with S.D. and E.R., or that her work as a sexual assault examiner was somehow deficient. But without that firm indication of reliability in the record, we have no choice on appellate review but to conclude that the statements made to her by S.D. and E.R. should not have been admitted under the hearsay exception found in Indiana Rule of Evidence 803(4), and it was an abuse of the trial court’s discretion to do so,” David wrote.

The justices found this to be a reversible error regarding the convictions relating to S.D. and ordered a new trial on the two charges.

Justice Mark Massa concurred in result, in which Justice Loretta Rush joined. Massa wrote that Moss’ statements may possibly be entered under the Protected Person Statute rather than Rule 803(4) and that on remand, if the prosecutor wants to admit Moss’ statements under that statute, the judge will have to conduct a hearing to determine whether those statements have “sufficient indications of reliability.”

 

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  • Nonsense
    Evidence or testimony is either admissable or it isn't. What is this nonsense about can't admit under one statute so we will make another statute that nullifies the other statute but the other statute is still law? There are so many laws on the books in this country that not one person, one lawyer, one prosecutor or one judge that knows what they are! In fact the people that proposed and/or enacted trhese laws don't know what they are either. Ignorance of the law must be an excuse, because the majority of the laws are written and/or passed by ignorant people. There is no doubt in my mind that even those people don't know the law.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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