The Indiana Court of Appeals has affirmed a man’s child molesting conviction after finding that the admission of a forensic interview video played for the jury under Indiana Rule of Evidence 803(5) was not an abuse of discretion.
In Jared J. Gorby v. State of Indiana, 19A-CR-02925, Jared Gorby was convicted of Level 3 felony child molesting and sentenced to the advisory sentence of nine years, with five years served in the Department of Correction and four years suspended to probation.
During his trial, the St. Joseph Superior Court allowed a video of the forensic interview of the victim to be played for the jury under Indiana Rule of Evidence 803(5). Gorby later appealed, arguing that allowing the video was an abuse of the trial court’s discretion.
In his appeal, Gorby contended that the victim’s forensic interview was inadmissible hearsay that should not have been shown to the jury. But the Indiana Court of Appeals affirmed, finding that the trial court did not abuse its discretion in allowing the jury to see the video.
It first addressed Gorby’s challenge to the trial court’s findings that the first and third elements were satisfied under the “recorded recollection” exception.
“Regarding the first element — whether the record ‘is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately’ — Gorby argues that at one point B.B. ‘seemed to indicate that this was something she simply did not want to talk about’ rather than something she did not remember,” Chief Judge Nancy Vaidik wrote for the appellate court.
“To the extent B.B. gave conflicting answers, it was up to the trial court to decide whether B.B. couldn’t remember the events or simply did not want to talk about them. The trial court — after seeing and hearing B.B. testify — concluded that she could not remember the events and that Evidence (Rule) 803(5)(A) was therefore satisfied. We will not second guess that conclusion.”
On the third element of Rule 803(5), the appellate court similarly declined to disturb the trial court’s conclusion that the victim had adequately vouched for the accuracy of the statements she made during the interview and that the rule was therefore satisfied.
It thus found the trial court did not abuse its discretion by admitting the victim’s forensic interview into evidence under Evidence Rule 803(5).