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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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