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.”



  • 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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.