A grandfather convicted of molesting his granddaughter failed to persuade the Indiana Court of Appeals that a video of his granddaughter’s statement published at his trial was impermissible hearsay.
In Paul M. Robey v. State of Indiana, 20A-CR-2187, 10-year-old B.B. was staying with her grandparents, Paul and Patricia Robey, at their home in Martinsville in November 2018. When Patricia had gone to bed, B.B. began to fall asleep in Paul’s lap but awoke when she “felt his hand starting to go down [her] pants.” B.B. pretended to be asleep and rolled over so Robey couldn’t continue to touch her.
B.B. told her mother what happened, and the Indianapolis Metropolitan Police Department took a report. B.B. then underwent a forensic interview, which was recorded on video.
Martinsville Police then questioned Robey, who claimed he thought B.B. was his wife at the time because he was “half asleep” during the incident. But the state charged Robey with Level 4 felony child molesting, publishing the video of B.B.’s forensic interview during the trial over Robey’s objection.
A jury convicted Robey and he appealed, alleging reversible error in the Morgan Superior Court’s decision to allow the video of B.B.’s interview, which he claimed was a recorded recollection. The court had allowed a 46-minute portion of the interview to be published to the jury but not admitted as an exhibit.
But “(i)n his appellate brief, Robey raises several challenges to the trial court’s evidentiary ruling, most of which are waived because he made no such objections on the record at trial,” Judge Terry Crone wrote in a Thursday opinion affirming Robey’s conviction.
“… The only challenge that Robey preserved is that the State failed to establish that the video was ‘on a matter [B.B.] once knew about but now [could not] recall well enough to testify fully and accurately … ,’” Crone wrote. “To be sure, B.B. was able to testify fully and accurately about the essential elements of the crime with which Robey was charged, and the video simply added some minor details to her account. Thus, the video was merely cumulative of B.B.’s testimony, and any error in its publication was harmless.”