Indiana Court Decisions – July 13-27, 2022

7th Circuit Court of Appeals

July 15

United States of America v. Thomas L. Goliday

21-1326

7th Circuit vacates conspiracy conviction for drug dealer who didn’t understand charge

The 7th Circuit Court of Appeals has vacated and remanded a drug dealer’s conviction of conspiracy as well as his sentences after concluding a district court failed to clear up any confusion regarding his guilty plea.

In September 2018, officers from the Indianapolis Metropolitan Police Department and the Drug Enforcement Agency executed a search warrant at Thomas Goliday’s home in Indianapolis, recovering assorted drugs and a loaded handgun.

Arriving during the search, Goliday waived his Miranda rights and agreed to speak to the officers, admitting the drugs and gun found in the home were his. Goliday then told the officers he had bought 2 ounces of heroin every week for the last year from the same supplier and would resell the heroin in smaller amounts.

However, “Goliday’s attempted cooperation did not pan out — indeed, from his perspective, it backfired,” the 7th Circuit Court of Appeals wrote. “In the government’s view, his statements to police regarding his heroin purchases supplied the basis for an additional charge. Adding together the weekly two-ounce purchases from his supplier, the indictment charged Goliday with conspiring to distribute more than 1,000 grams of heroin.”

Goliday was also charged with three counts of possession with intent to distribute drugs. Additionally, the government filed an information under 21 U.S.C. § 851 notifying Goliday that, based on a prior felony drug conviction, he faced an enhanced sentence if convicted.

Before the U.S. District Court for the Southern District of Indiana, Goliday pleaded guilty to all charges.

During Goliday’s plea hearing, the government read into the record what it viewed as the factual basis for the conspiracy charge: “Through investigation, officers learned that Goliday had been receiving 2 ounces of heroin a week for a year from a coconspirator, [totaling] in excess of 1,000 grams of heroin, which heroin he then resold to others in exchange for financial remuneration.”

But Goliday told the court that he wanted to get his drug dealer caught and that he didn’t have 1,000 grams of drugs but 80 grams in his house at the time.

According to court documents, Southern Indiana District Judge James P. Hanlon told Goliday, “Well, the question, then, is that there is no allegation that you had 1,000 grams or more of a mixture or substance that contained a detectable amount of heroin. It alleges that there was a conspiracy to possess with intent to distribute and to distribute heroin and that the conspiracy involved 1,000 grams or more.”

When asked if that was true, Goliday confirmed.

The district court subsequently found a sufficient factual basis for Goliday’s guilty plea to the conspiracy charge. Additionally, the district court determined there was sufficient factual support for Goliday’s plea to the three § 841(a)(1) substantive drug possession charges and sentenced him to four concurrent terms of 15 years.

Without the conspiracy charge, Goliday would have faced a statutory minimum sentence of 10 years and a maximum of life.

On appeal, Goliday argued the district court should not have accepted his plea to the conspiracy charge, alleging it did not ensure he understood the nature of the charge and did not confirm the existence of facts sufficient to demonstrate a conspiracy with his heroin supplier.

The 7th Circuit judges agreed, concluding that Goliday cleared the high bar of Rule 11(b) of the Federal Rules of Criminal Procedure and that the district court plainly erred.

“The district court’s explanation is accurate as far as it goes, but on this record it did not go far enough,” Judge Michael Scudder wrote. “According to the district court, the first element of a § 846 conspiracy is that the ‘conspiracy … existed.’ That might have sufficed if, in the totality of the circumstances, other portions of the plea colloquy gave us comfort that Goliday understood the charge against him. But we know from what Goliday later said that he harbored significant confusion about perhaps the key element of the conspiracy charge: ‘an agreement [between Goliday and his supplier] to commit a crime other than the crime that consists of the sale itself.’

“… After the government read its proffered factual basis into the record, Goliday spoke up,” Scudder continued. “He told the district court that he did not understand how he could be liable for the full 1,000 grams involved in the alleged conspiracy, maintaining that he only had ‘80 grams … in [his] house’ and that he had only mentioned the 1,000-gram amount in a statement to investigators ‘to help them [convict his] supplier’ — so they could ‘go bust this guy and get the drugs from him.’”

Further, the 7th Circuit found Goliday’s statements reflected a two-fold misunderstanding.

“First, he did not appreciate that he faced charges for entering into a more wide-reaching partnership with his supplier beyond an agreement to buy particular quantities of heroin,” Scudder wrote. “Second, he did not understand the consequences of conceding that point — that he would be held legally responsible for all drug amounts traceable to that illegal agreement, not just those quantities he possessed at the time of his arrest.

“… Faced with Goliday’s evident confusion on this crucial point, Rule 11 required the district court to tap the brake pedal and slow things down a touch to ensure that Goliday knew what he was accepting responsibility for.”

Similarly, the 7th Circuit found error with respect to the district court’s Rule 11(b)(3) obligation to ensure a sufficient factual basis for accepting Goliday’s guilty plea on the conspiracy count.

“We have rejected the argument before and do so again today,” Scudder wrote. “A prosecution based ‘only on evidence that a buyer and seller traded in large quantities of drugs, used standardized transactions, and had a prolonged relationship’ leaves the jury to ‘choose between two equally plausible inferences’ — a conspiracy and an ordinary buyer-seller relationship are equally likely. … With the evidence thus ‘essentially in equipoise,’ we have said, ‘the jury must acquit’ in the absence of ‘some other evidence of a conspiratorial agreement to tip the scales.’”

“… That leaves the question whether the error is so serious as to impugn the ‘fairness, integrity, or public reputation of the judicial proceedings’ and justify the exercise of ‘our discretionary authority to correct an unpreserved error,’” Scudder wrote. “… We believe the answer is yes in the totality of what is before us here. The district court did not ensure that Goliday had ‘real notice of the true nature of the charges against him,’ which the Supreme Court has called ‘the first and most universally recognized requirement of due process.’ Bousley v. United States, 523 U.S. 614, 618 (1998). And its failure to ensure an adequate basis for the plea means the court may have allowed Goliday to plead guilty to an offense of which he is actually innocent. … Neither error can stand.”

Thus, the 7th Circuit vacated the conspiracy conviction under 21 U.S.C. § 846 and remanded for further proceedings on the charge. Additionally, because the mandatory minimum sentence for the § 846 conviction may have increased Goliday’s sentence on the other three convictions, the case was remanded for plenary resentencing.

The case is United States of America v. Thomas L. Goliday, 21-1326.

__________

July 26

Lelah Jerger, et al. v. Shannon Blaize, et al.

21-3011

DCS caseworkers who allegedly threatened parents with CHINS case must face civil suit

Two DCS caseworkers who allegedly threatened a couple with a CHINS proceeding if they did not submit their child to a blood draw must face the parents’ civil lawsuit, the 7th Circuit Court of Appeals has ruled, overturning a lower court finding that the caseworkers were protected by qualified immunity.

Judge Michael Scudder wrote for the unanimous appellate panel that reinstated and remanded the case of Lelah Jerger, et al. v. Shannon Blaize, et al., 21-3011.

Parents Lelah and Jade Jerger sued the Indiana Department of Child Services in 2018 for alleged violations of their 14th Amendment rights, as well as alleged violations of their daughter, J.J.’s, Fourth Amendment rights.

J.J. began experiencing seizures at 15 months old, and doctors at Riley Hospital in Indianapolis diagnosed her with epilepsy. During at least one seizure, the child turned blue and lost consciousness for about 15 seconds.

Doctors prescribed Keppra to treat J.J.’s condition, but her parents delayed filling the prescription until they could get a second opinion. In the meantime, they treated the seizures with CBD oil prescribed by a chiropractic neurologist.

When the Jergers had not filled the Keppra prescription after several months, a Riley social worker called DCS to report medical neglect. The social worker claimed multiple doctors had recommended Keppra, but the Jergers refused to give it to her because of its potential side effects.

Caseworker Allicyn Garrett visited the Jergers’ home the next day, and Lelah acknowledged her initial concerns about the medication. However, the mother also said she and her husband had finally begun giving J.J. the prescribed medication a few days earlier after getting a second opinion.

Garrett then consulted with her supervisor, Shannon Blaize, and ultimately asked the Jergers to sign a safety plan agreeing to administer Keppra to the child and to take her in for a blood test that same day.

The Jergers declined to sign the plan but did take J.J. in for a blood draw the next day. The test confirmed their claim that the child had begun the medication.

“But what happened in between Garrett’s presentation of the Safety Plan and the eventual blood test gave rise to this litigation and remains the subject of serious debate,” Scudder wrote.

According to the Jergers, they took J.J. for a blood draw because Garrett had threatened them with J.J. being adjudicated as a child in need of services, which would mean they could lose their rights to make medical decisions on her behalf. Thus, they filed a federal lawsuit alleging the DCS investigation and demand for a blood test amounted to constitutional violations.

Both parties moved for summary judgment, and the Indiana Southern District Court ultimately ruled for the caseworkers. Although the court determined the caseworkers did not “coerce” the Jergens into the blood draw, it also determined they were entitled to qualified immunity, regardless.

In vacating that judgment, the 7th Circuit noted, “To our eye, both the summary judgment briefs submitted in the district court and now the competing arguments pressed on appeal expose material disagreement on the issue of consent — whether the Jergers chose of their own volition to take J.J. for the blood draw or whether that decision was the product of coercion.

“… If the facts, as represented by the Jergers, portray a clearly established constitutional violation, the district court’s decision cannot stand,” Scudder wrote. “… We have hard time aligning the district court’s conclusions with these principles.”

Specifically, the appellate court pointed to three issues: Lelah’s testimony that Garrett said J.J. “would” become a CHINS if they didn’t take her for a blood draw; the Jergers’ testimony that Garrett said they did not have time to consult a lawyer before taking J.J. for a blood draw; and the Jergers’ testimony that they were met by police when they arrived at the hospital for the blood draw.

“A reasonable jury, crediting the Jergers’ perspective on these three matters, could find that the DCS case workers employed coercion to get Lelah and Jade to go through with the blood draw on September 22,” Scudder wrote. “Foremost, Lelah could have heard Garrett’s admonition that J.J. ‘would become a Child in Need of Services’ as a statement informing her and her husband of a certain outcome — that the impending CHINS court proceeding, with which they were unfamiliar, was sure to result in them losing their right to make medical decisions for their daughter.

“… On that understanding, the Jergers could have concluded that they had no real choice but to take J.J. for the blood draw,” the judge continued. “Lelah and Jade’s testimony that they had no time to seek legal advice to better understand their rights and DCS’s authority only adds to that conclusion, as does their perspective on why the police were present at the hospital upon their arrival with J.J.

“Taking these facts together, the Jergers paint a picture of coercion, not ‘freely and voluntarily given’ consent,” he concluded. “… Thus, without the consent Blaize and Garrett rely on, and no other proffered justification for the search, the Jergers have done enough to create a jury question on whether the DCS defendants violated their and J.J.’s constitutional rights.”

Noting the defendants disagreed with the Jergers’ account, Scudder reiterated that “(s)ummary judgment is not available in the face of this factual tug-of-war.”

“Nor is qualified immunity where the parties dispute facts material to the consent question,” he added.

As a final note, the 7th Circuit opined that “it seems that much of the disagreement between the parties … might have been avoided by the DCS case workers taking steps to better inform the Jergers about the legal proceedings the state intended to commence and what rights the Jergers would have before and during those proceedings.”

“In no way are we suggesting that the case workers shouldered any affirmative obligation to advise the Jergers,” Scudder wrote. “But tapping the brake pedal long enough to convey objective and accurate information to the Jergers about DCS’s intentions and their rights in any impending CHINS proceedings may have kept this difficult situation from ever getting to a courthouse.”

Indiana Supreme Court

July 19

National Collegiate Athletic Association v. Jennifer Finnerty, et al.

21S-CT-409

Justices create new framework for determining if good cause exists to limit, prohibit high-level depositions

A trial court must revisit the question of whether three of the Indianapolis-based NCAA’s highest-ranking executives have to sit for depositions in a concussion lawsuit after the Indiana Supreme Court established a new framework for examining requests to limit depositions.

Addressing two issues of first impression, the justices established a legal framework harmonizing the apex doctrine’s underlying principles with Indiana’s applicable trial rules.

The case involves the NCAA’s efforts to prevent key executives — President Mark Emmert, Chief Legal Officer/Chief Operating Officer Donald Remy and Chief Medical Officer Dr. Brian Hainline — from facing depositions conducted by attorneys representing three deceased former college football players.

The litigation centers on Neal Anderson, who played at the University of Illinois from 1960-1964; Andrew Solonoski Jr., a North Carolina State University player from 1966-1970; and Cullen Finnerty, who died at 30 after playing at the University of Toledo and Grand Valley State University from 2001-2006.

Representatives for each claimed they suffered chronic traumatic encephalopathy, or CTE, and asserted claims including negligence and fraudulent concealment against the NCAA. Those claims were consolidated in Marion Superior Court, and the plaintiffs sought to depose Emmert, Remy and Hainline.

The NCAA responded with a motion for a protective order to quash the subpoenas, relying partly on the apex doctrine, which shields high-level executives from depositions unless the executive “possesses unique or personal knowledge relevant to the issues being litigated” and has information that “cannot be obtained through a less intrusive discovery method.”

The trial court issued an order restricting the topics of Emmert and Remy’s depositions but not Hainline’s. The NCAA moved to certify the order for interlocutory appeal, but that motion was deemed denied when the trial court had not ruled within 30 days.

The trial court belatedly granted the motion for certification a few weeks later, but the NCAA did not ask the Court of Appeals of Indiana to accept jurisdiction because it believed it was time-barred.

The NCAA then filed a second protective order or, alternatively, asked the trial court to certify its decision for interlocutory appeal.

The trial court did the latter, and a split Court of Appeals of Indiana ruled in 2021 that the NCAA’s time for seeking an interlocutory appeal had long-since passed. The majority held that the NCAA’s second motion for a protective order was “nothing more than a motion for the trial court to reconsider its earlier ruling seeking a renewed opportunity to” appeal.

COA Judge Elizabeth Tavitas dissented, arguing that she would address the NCAA’s interlocutory appeal “even if the second motion for a protective order was repetitive under Trial Rule 53.4(A).”

The Supreme Court granted transfer, addressing two issues of first impression.

First, the justices determined that a trial court’s order on a repetitive motion or a motion to reconsider is an “other interlocutory order” under Indiana Appellate Rule 14(B). As a result, the NCAA’s appeal was properly before the high court.

“A discretionary interlocutory appeal is proper so long as the party timely and successfully moves (1) the trial court to certify the order and (2) the Court of Appeals to accept jurisdiction over the appeal,” Chief Justice Loretta Rush wrote. The court determined that although the NCAA did not clear both hurdles for an appeal of the order denying its first motion for a protective order, it did clear them for an appeal of the order denying its second motion.

The justices declined to adopt the apex doctrine, but instead established a legal framework that harmonizes its underlying principles with Indiana’s existing trial rules — more specifically, a framework for determining good cause to limit or prohibit the deposition of a high-ranking official.

“When a party seeks to limit or prohibit the deposition of a high-ranking official, our trial courts should use this framework to determine whether good cause exists for issuing a protective order,” Rush wrote, later encouraging trial courts “to issue findings and conclusions when rendering their decisions.”

First, the Supreme Court concluded that courts must determine whether the deponent qualifies as an apex official before relying on that status in deciding whether good cause exists. If the trial court finds good cause and the party seeking the deposition did not file a responsive motion, the justices concluded that the court should issue a protective order either prohibiting the deposition or otherwise limiting it under Trial Rule 26(C).

“But when the requesting party submits a responsive motion, the trial court must determine whether either the executive’s apex status or the good cause showing has been negated or rebutted,” Rush wrote.

The court noted that whether the motion negates or rebuts the basis for a protective order will dictate how a trial court should proceed.

“When confronted with a responsive motion that rebuts — rather than negates — the apex official’s good cause showing, the court must use its discretionary authority to balance the parties’ needs and impose a protective order that (1) restricts the topical scope of the deposition or (2) requires the exhaustion of less intrusive discovery methods,” Rush wrote.

“Less intrusive methods may include deposing lower-level employees, deposing a corporate designee, or submitting to the corporation interrogatories and requests for production of documents,” she continued. “If the party seeking the deposition exhausts alternative methods to no avail, the court should modify the protective order upon the party establishing a specific, outstanding need for the deposition.”

The justices observed that the trial court in the case at hand did not have the benefit of such a framework when it denied the NCAA’s second motion for a protective order.

“Further, in that second order — the appealed order before us — the court summarily denied the NCAA’s motion, leaving us unable to determine whether its reasoning comported with our guidance,” Rush concluded. “We therefore remand to the trial court to evaluate the NCAA’s motion in light of our guidance and encourage it to enter findings and conclusions supporting its decision.”

The case is National Collegiate Athletic Association v. Jennifer Finnerty, et al., 21S-CT-409.

_________

July 21

City of Gary v. Jeff Nicholson, et al.

22S-MI-252

Justices toss Gary ‘welcoming ordinance’ lawsuit for lack of standing

A lawsuit challenging the city of Gary’s “welcoming ordinance” for immigrants was thrown out by the Indiana Supreme Court after the justices determined the plaintiffs lacked standing to sue the city.

After hearing oral arguments in June, the justices granted transfer then dismissed the case of City of Gary v. Jeff Nicholson, et al., 22S-MI-252.

The case dates back to 2017, when Gary passed its “Welcoming City” ordinance to “ensure that the immigration status of those who live, work, or pass through the city will not affect how they are treated by Gary agencies and agents, including its police department and social services providers.”

Jeff Nicholson, Douglas Grimes, Greg Serbon and Cheree Calabro sued the city over the ordinance, alleging four of its provisions violated Indiana Code §§ 5-2-18.2-3 and -4.

The plaintiffs’ complaint alleged they had statutory and public standing based on their “public interests in the performance of public duties required by Chapter 18.2, including interests in enforcement of the law and public safety.”

The Lake Superior Court granted summary judgment for the plaintiffs, prohibiting Gary from enforcing parts of its ordinance. But a split Court of Appeals of Indiana found that only limited portions of Gary’s ordinance violated state statutes, partially affirming and reversing and remanding.

“The plaintiffs claim they have standing to sue under principles of public standing and a separate statutory right to sue under Indiana Code section 5-2-18.2-5. … Indiana law is clear that standing requires an injury,” Justice Geoffrey Slaughter wrote. “… But the plaintiffs, acknowledging they have alleged no injury, argue instead that lack of injury is ‘irrelevant’ here because they have statutory and public standing. We disagree. Because the plaintiffs allege no injury, there is no justiciable dispute.”

The plaintiffs argued they had “domicile-standing” under I.C. 5-2-18.2-5. But the high court noted in its six-page opinion that similar to the Endangered Species Act’s “citizen-suit” provision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) — and unlike the utility code’s “adversely affected” provision in Solarize Indiana, Inc. v. Southern Indiana Gas and Elec. Co., 182 N.E.3d 212 (Ind. 2022) — Section 18.2-5 has no injury requirement.

“Thus, the statute upon which the plaintiffs rely for ‘domicile standing’ cannot meet our constitutional requirements for conferring standing,” Slaughter wrote.

It further declined to find that the plaintiffs have public standing, noting that although Indiana’s public-standing doctrine is unsettled, at a minimum it requires some type of injury.

“Finally, the State’s intervention here does not alter our standing analysis,” Slaughter concluded. “The State did not file a separate complaint, sought no relief from Gary, intervened only to ‘offer its view of the meaning of the relevant statutory provisions’, and conceded at oral argument that dismissal would be appropriate if the plaintiffs lack standing. Because we hold that plaintiffs lack standing, we also hold that dismissal is warranted here.”

As such, the unanimous justices remanded to the trial court with instructions to dismiss the action.

Court of Appeals of Indiana

July 14

Mario M. Angulo, Jr. v. State of Indiana

21A-CR-1465

127-year sentence upheld in ‘horrific’ torture, murder case

A man who brutally tortured and murdered a woman and seriously injured and robbed another individual will keep his 127-year sentence behind bars, the Court of Appeals of Indiana has affirmed.

Mario M. Angulo Jr. was charged and convicted of murder, Level 2 felony robbery resulting in serious bodily injury and two counts of Level 3 felony criminal confinement.

Angulo’s convictions stem from a violent encounter with two individuals — Kimberly Dyer and Robert Porter — at an Elkhart County resident’s home that was often frequented for the purpose of using drugs.

While at the house in October 2019, Dyer invited Porter, who was selling marijuana in exchange for jewelry. Dyer then gave another individual two sheets of paper with a list of names of some individuals present believed to be providing information to the police about criminal activity.

Angulo, who had close ties with the Latin Kings and was 19 at the time of the offense, and two other men then went through Dyer’s belongings on suspicion that she was working with police, and they discovered a notebook with the names of most of the people who were at the house along with a design of the residence.

Dyer was then ordered into the basement of the home and several individuals, including Angulo, interrogated her about the notebook.

Angulo and two others, including Donald Owen, then brutally tortured and killed Dyer, who suffered 83 distinct injuries, stuffed her body into a sealed trash bin and dumped her body in a remote location in Michigan. Porter was also terrorized, wounded and robbed.

In December 2019, Angulo was charged with Dyer’s murder, Level 2 felony robbery resulting in serious bodily injury to Porter and two counts of Level 3 felony criminal confinement that named Porter and Dyer as the victims.

The state also indicated its intent to seek a sentence of life imprisonment without parole. However, Angulo was sentenced to 65 years for murder, 30 years for robbery and 16 years on each count of criminal confinement. He was ordered to serve the sentences consecutively.

On appeal, Angulo asserted that the Elkhart Circuit Court abused its discretion in granting the state’s motion for joinder that permitted Angulo to be tried with a codefendant, one of the other individuals who committed the murder, which he claimed impinged on his right to “compel witnesses to testify on his behalf.”

The COA rejected that argument, noting that Angulo had not established that Owen would have been willing to waive his right against self-incrimination had he been tried separately from Angulo.

“In fact, Owen chose not to testify in his own defense, and there is no reason to believe that he would have been any more willing to risk incriminating himself had he been tried separately,” Judge Robert Altice wrote.

The Court of Appeals ultimately concluded that the evidence established that Angulo committed “four extremely serious crimes” against the victims in Mario M. Angulo, Jr. v. State of Indiana, 21A-CR-1465.

Angulo also argued that the trial court erred in granting the state’s motion in limine that unfairly limited his right to cross-examine and impeach Porter, and that he was denied his right to present a defense because the trial court restricted him from questioning a witness on direct examination.

Angulo further claimed that there was insufficient evidence to support the robbery conviction, and that his sentence was inappropriate in light of the nature of the offenses and his character.

The COA concluded that Angulo waived his argument that the trial court improperly restricted his right to cross-examine Porter. It also rejected Angulo’s contention that the trial court’s exclusion of a law enforcement commander’s testimony unfairly impinged on his right to present a “meaningful defense.”

Finally, the appellate court found Angulo failed to establish that his sentence is inappropriate.

“The horrific nature of Angulo’s offenses in this case, as well as his dismissive attitude towards the value of Dyer’s life, speak for themselves, and Angulo’s known but unaddressed pattern of using methamphetamine does nothing to change that,” Altice wrote.

“Finally, we reject Angulo’s reliance on cases that prohibit the death penalty and life sentences for juveniles. Angulo was nineteen years old when he committed the offenses, and the trial court accounted for his age in its sentencing statement,” Altice continued. “And while our Supreme Court and the United States Supreme Court have held that juveniles should be treated differently from adults, Angulo was not a juvenile when he committed the offenses. The cases on which Angulo relies do not stand for the principle that young adults are to be afforded the protections given to juveniles.”

__________

July 22

John William Rosenbaum, III v. State of Indiana

21A-CR-1409

COA affirms child molester’s convictions despite abuse of discretion

The Court of Appeals of Indiana has affirmed a child molester’s convictions after finding that while the trial court abused its discretion in admitting the child’s consistent recorded pretrial statement, the abuser failed to prove his substantial rights were affected as a result.

In the case of John William Rosenbaum, III v. State of Indiana, 21A-CR-1409, John Rosenbaum III was convicted of Level 3 felony child molesting and Level 4 felony child molesting after abusing his stepchild, V.V.

Two questions came before the Court of Appeals for consideration.

The appellate court first looked into whether the Hendricks Superior Court abused its discretion when it admitted both the recorded interview and the live trial testimony of the child victim. Rosenbaum also questioned whether the trial court abused its discretion when it relied on the Child Deposition Statute in denying his request to depose the child victim.

The Court of Appeals concluded that V.V.’s recorded interview and her trial testimony were consistent, the case of (Tyler v. State, 903 N.E.2d 463 (Ind. 2009)) applied and the Hendricks Superior Court abused its discretion when it admitted both the interview and the trial testimony.

However, it noted that although the trial court abused its discretion, the differences were “minor in that they essentially describe the same act … ,” and that the concerns regarding the safeguards on the veracity of the child’s statement present in (Cox v. State, 937 N.E.2d 874, 879 (Ind. Ct. App. 2010), trans. denied) were not at issue in the case at hand.

“In short, we conclude that Rosenbaum has failed to establish that his substantial rights were affected by the admission of V.V.’s recorded interview,” Judge Patricia Riley wrote.

As for the deposition issue, the appellate court cited the Indiana Supreme Court’s decision in Church v. State, 173 N.E.3d 302 (Ind. Ct. App. 2021), noting that the high court already rejected arguments that the Child Deposition Statute conflicts with Trial Rules 26 and 30, as applicable to a criminal case through Indiana Code § 35-37-4-2.

As such, the COA concluded that the trial court did not abuse its discretion in relying on the CDS to prohibit Rosenbaum from deposing V.V.

“Based on the foregoing, we conclude that the trial court abused its discretion when it admitted V.V.’s consistent recorded pretrial statement but that Rosenbaum failed to establish that his substantial rights were affected as a result,” Riley wrote. “We further conclude that the trial court did not abuse its discretion when it rejected Rosenbaum’s request to depose his child victim pursuant to a valid statute limiting Rosenbaum’s right to do so.”•