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.”