DARDEN, Judge.
The State appeals a reserved question of law following a jury's acquittal of Andy J. Velasquez, II for child molesting as a class A felony and child molesting as a class C felony.
We affirm in part and reverse in part.
1. Whether the trial court abused its discretion in instructing the jury.
2. Whether the trial court abused its discretion in excluding evidence.
G.S. was born in January of 2000. When G.S. was in the second grade, she resided in Bloomington with her mother ("Mother"), brother, and Velasquez, her stepfather. Velasquez cared for G.S. while Mother was at work. Velasquez often punished G.S. by sending her to her room or "beat[ing] [her] with a stick" on her buttocks. (Tr. 153).
On June 15, 2008, Velasquez sent G.S. to her room. Shortly thereafter, G.S. asked to use the bathroom. After she finished, G.S. told Mother "she had a secret...." (Tr. 258). G.S. informed Mother that "[h]er butt" hurt and alleged that Velasquez had molested her. (Tr. 259).
That same afternoon, Mother and Velasquez took G.S. to the emergency room at
On June 30, 2008, the Monroe County Department of Child Services ("DCS") removed G.S. and her brother from Mother's care and placed them with Mother's parents. Judy Kline, a clinical social worker specializing in "sexual abuse and domestic violence," (tr. 175), met with G.S. at the grandparents' home "[t]o counsel her, to get to know her, to make an assessment... and to deal with whatever issues she was dealing with." (Tr. 178). Kline informed G.S. of her purpose, namely, to "help [G.S.] to just work through whatever" she "need[ed] to work through." (Tr. 178).
Dr. Jennifer Spencer, a psychologist, met with G.S. four times over a period of four months during the summer and fall of 2008 for the purpose of "generat[ing] a mental health diagnosis and the treatment recommendations." (Tr. 217). Dr. Spencer also reviewed G.S.'s medical and school records. In addition, she interviewed G.S.'s former and current therapist and met with G.S.'s grandparents; Mother, however, refused to meet with Dr. Spencer.
After reviewing G.S.'s medical records, Dr. Spencer learned that G.S. previously had been diagnosed with bi-polar disorder, "post-traumatic stress, oppositional defiant disorder, [and] attention deficit disorder...." (Tr. 221). Mother also had expressed concern that G.S. had "Asperser's [sic] disorder, which is an autism spectrum issue." (Tr.222).
On December 15, 2008, the State charged Velasquez with class C felony child molesting under Cause Number 53C09-0812-DC-1072. On July 2, 2009, pursuant to Indiana Code section 35-37-4-6, the State filed a notice of intent to introduce statements made by G.S. to DCS case manager Larry Brown, Kline, and Dr. Spencer. Following a hearing, the trial court found G.S.'s statements to be inadmissible.
On August 20, 2009, the State charged Velasquez with class A felony child molesting under Cause Number 53C09-0908-FA-696. On October 23, 2009, the trial court granted the State's motion for joinder.
On January 28, 2010, and February 2, 2010, the State filed notices of intent to introduce evidence pursuant to Indiana Evidence Rule 404(b) that Velasquez "disciplined [G.S.] by striking her with a stick"; made threats to Mother; and made threats to G.S. (App.19). The trial court held a hearing on the State's notices on February 4, 2010, after which it ruled the evidence admissible.
The trial court commenced a three-day jury trial on February 16, 2010. Prior to the presentation of evidence, the trial court gave the following preliminary instruction as an admonishment to the jury:
(Tr. 140; App. 36).
During the trial, G.S. testified that Velasquez would "beat [her] with a stick" on her "butt" as punishment. (Tr. 153, 155).
Kline and Dr. Spencer also testified during the trial. Velasquez's counsel objected, arguing that the testimony constituted vouching testimony. The trial court sustained the objections. The trial court also excluded testimony of G.S.'s grandmother, P.S.
On February 18, 2010, the State filed a motion to reconsider its ruling on Dr. Spencer's testimony and made an offer of proof. The trial court denied the motion. The jury found Velasquez not guilty on all charges.
Additional facts will be provided as necessary.
Indiana Code section 35-38-4-2 provides that an appeal may be taken by the State to the Court of Appeals "[u]pon a question reserved by the state, if the defendant is acquitted." When the defendant has been acquitted and the State appeals a reserved question of law, only questions of law are considered by this court. State v. Hunter, 898 N.E.2d 455, 457-58 (Ind.Ct.App.2008). Although the issue addressed is moot, the purpose of the appeal is to provide guidance to the trial court in future cases. Id.
The State asserts that the trial court "abused its discretion by giving a preliminary character evidence instruction before the jury heard any evidence." State's Br. at 9. The State also asserts that the preliminary instruction "was confusing and misled the jury." Id. at 12.
Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct.App.2005) (internal citations omitted), trans. denied.
The State argues that the trial court improperly instructed the jury on character evidence because it did so "before the State ever offered any character evidence, or even gave an opening statement...." State's Br. at 9-10. Citing to Evidence Rule 105, the State maintains that the trial court should have admonished the jury on character evidence at the time the State sought to admit such evidence, if any.
Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ind. Evidence Rule 404(b). Such evidence, however, may "be admissible for other purposes...." Id.
Evid. R. 105. Although Evidence Rule 105 provides that the trial court shall admonish the jury "upon request," it "does not preclude trial courts from giving a limiting
In this case, the State argues that Evidence Rule 105 allows for a limiting instruction or admonishment only at the time the evidence is offered and admitted. Where a trial court's evidentiary ruling involves the interpretation of a rule of evidence, we apply a de novo standard of review. Tyler v. State, 903 N.E.2d 463, 467 n. 4 (Ind.2009).
We do not read Evidence Rule 105 as allowing an admonishment or limiting instruction only at the time evidence is offered. Instead, the purpose of the rule is "to enable a party to request a limiting admonishment at the time the evidence is offered, rather than waiting until the jury instructions." Humphrey, 680 N.E.2d at 839 n. 7 (citing 12 ROBERT L. MILLER, JR., INDIANA PRACTICE § 105.104 (3rd ed. 2007) (Evidence Rule 105 "requires the trial court ... to inform the jury of the limited use to which evidence may be put at the time the evidence is offered, rather than waiting until the end of trial.")). Thus, a party may seek a limiting instruction or admonishment either prior to trial or at the time evidence is admitted. See id.
In this case, Velasquez's counsel sought a limiting instruction prior to the presentation of evidence. While the more common practice may have been to admonish the jury at the time the character evidence was offered, and a limiting instruction is "usually" given after the presentation of evidence, see id., we cannot say that the trial court in this case abused its discretion in giving a preliminary limiting instruction.
The State had filed notices of intent to introduce evidence pursuant to Indiana Evidence Rule 404(b) and admittedly "did present evidence that Velasquez had used a stick to punish G.S....." State's Br. at 12. Thus, it was not ultimately speculative for the trial court to give a limiting instruction or admonishment prior to the presentation of evidence. See Thakkar v. State, 613 N.E.2d 453, 460 (Ind.Ct.App. 1993) (finding no error in giving preliminary instruction on circumstantial evidence where the trial court admitted circumstantial evidence at trial).
The State, however, also argues that the preliminary instruction "was confusing and misled the jury" because it "permitt[ed] the jurors to conclude that any evidence offered by the State was character evidence that could not be considered as proof of Velasquez's guilt." State's Br. at 12. We cannot agree.
Again, the trial court instructed the jury as follows:
(Tr. 140; App. 36) (emphasis added). The State's argument that the instruction "gave the jury an option to consider all of the State's evidence as merely establishing the relationship between Velasquez and G.S.", State's reply br. at 5, "ignores the presumption that jurors are presumed to follow the instructions of the trial court." See Buckner v. State, 857 N.E.2d 1011, 1016 (Ind.Ct.App.2006). Accordingly, we decline to reverse the trial court's giving of the limiting instruction prior to the presentation
The State also asserts that the trial court abused its discretion in excluding the testimony of Kline, Dr. Spencer, and G.S.'s grandmother, P.S. Specifically, the State argues that the trial court 1) improperly found that Kline's testimony did not meet the hearsay exception under Evidence Rule 803(4); 2) abused its discretion in finding that the State had qualified Kline as an expert witness, thereby limiting Kline's testimony as a social worker; and 3) improperly excluded testimony under Evidence Rule 704(b).
Redding v. State, 844 N.E.2d 1067, 1069 (Ind.Ct.App.2006) (internal citations omitted), reh'g denied.
The State argues that the trial court improperly found that Kline's testimony did not meet the hearsay exception under Evidence Rule 803(4). Generally, hearsay evidence is inadmissible pursuant to Evidence Rule 802. However, an exception to the hearsay rule applies to
Evid. R. 803(4).
Hearsay is admitted under this exception because the reliability of the out-of-court statement is assured based upon the belief that a declarant's self-interest in seeking medical treatment renders it unlikely the declarant will mislead the person that she wants to treat her. Nash v. State, 754 N.E.2d 1021, 1023 (Ind.Ct.App. 2001). If the declarant's statements are made to advance a medical diagnosis or treatment, Evidence Rule 803(4) encompasses statements made to non-physicians, including clinical social workers. See In re Paternity of H.R.M., 864 N.E.2d 442, 446 (Ind.Ct.App.2007) (finding that the rule applied to statements made to a clinical social worker specializing in working with abused children).
Generally, "statements attributing fault or identity are typically inadmissible under" Evidence Rule 803(4). Nash, 754 N.E.2d at 1025. In Nash, however, this court determined that in cases "where injury
Nash, 754 N.E.2d at 1024.
In this case, Velasquez objected when the State asked Kline, "What, if anything, did [G.S.] say to you about not wanting to see [Velasquez?]" (Tr. 179). The State therefore made an offer of proof, during which Kline stated that she "didn't diagnose" G.S. and that it was for a psychiatrist to determine whether G.S. had falsely accused Velasquez. (Tr. 187). Kline further testified that her "job as a clinical social worker is not whether [she] believe[s] [G.S.] or not, it's to help her work through the issues that she's dealing with." (Tr. 182-83).
The trial court sustained Velasquez's objection, stating:
(Tr. 192).
Subsequently, the trial court explained its ruling as follows:
(Tr. 246).
Although the States presents an extensive argument regarding whether the State satisfied the first part of the two-part test for determining the admissibility of statements under Evidence Rule 803(4), we need not address that issue as the trial court found that the State had met this requirement. Thus, we need only determine whether the trial court properly found that the State failed to meet the second requirement for the admission of statements under Evidence Rule 803(4);
We cannot say that in order for statements to be admissible under Evidence Rule 803(4), they must be in furtherance of diagnosis and treatment. Rather, case law states that the statements must be relied upon either to render a diagnosis or provide treatment. See Nash, 754 N.E.2d at 1024 (stating that the content of the statement must be "such that an expert in the field would reasonably rely upon it in rendering diagnosis or treatment" (emphasis added)).
We also cannot say that the statement must be made to the individual who ultimately will render a diagnosis or provide treatment. See McClain v. State, 675 N.E.2d 329, 331 (Ind.1996) (recognizing that "`[s]tatements made to hospital attendants, ambulance drivers or even family members might be included'" within the exception (quoting Fed.R.Evid. 803(4) advisory committee's note)). It is necessary only that "the statement is made to promote diagnosis or treatment." Id. (emphasis added).
Here, Kline testified that she is a clinical social worker, specializing in "sexual abuse and domestic violence." (Tr. 175). She further testified that DCS referred her to G.S. to "do an assessment and therapy . . . ." (Tr. 175). According to Kline's testimony, the purpose of an assessment is to determine "what the family's needs are, and what kind of services they might want." (Tr. 176).
Kline's testimony clearly shows that her purpose was to provide treatment for G.S. and G.S.'s family. Thus, any statements made by G.S. to Kline, upon which Kline, or another therapist, would have reasonably relied to provide treatment, including therapy, to G.S., were admissible. We therefore find that the trial court erred in excluding G.S.'s statements under the premise that Kline did not rely upon the statements to render a diagnosis.
The State further argues that the trial court "abused its discretion by concluding that the State had qualified Kline, a licensed clinical social worker, as an expert witness." State's Br. at 18. The State maintains that this qualification limited Kline's testimony, contrary to Indiana Code section 25-23.6-4-6, which provides that a "social worker licensed under [Article 23.6] may provide factual testimony but may not provide expert testimony."
Burnett v. State, 815 N.E.2d 201, 204 (Ind. Ct.App.2004) (internal citations omitted).
To the extent the State contends that a question of law exists as to whether someone who may qualify as an expert is precluded from giving factual
While Indiana Code section 25-23.6-4-6 prohibits a licensed clinical social worker from providing expert testimony, it does not prohibit an expert from providing factual testimony. It also cannot prohibit a licensed clinical social worker from being qualified as an expert as Evidence Rule 702(a) allows that a witness may qualify as an expert on the basis of experience alone. See Evid. R. 702(a); Burnett v. State, 815 N.E.2d 201, 204 (Ind.Ct.App.2004) ("[A] witness may qualify as an expert on the basis of practical experience alone."). Nevertheless, it does not appear from the record that this was the basis for the trial court sustaining Velasquez's objection to Kline's testimony.
The State contends that the trial court abused its discretion in excluding the testimony of Kline, Dr. Spencer, and G.S.'s maternal grandmother. Specifically, the State maintains that "[t]he trial court's repeated exclusions of factual and expert testimonial evidence under the `no vouching' rule demonstrate the court's fundamental misunderstanding of the rule." State's Br. at 20.
Evidence Rule 704(b) instructs that "[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Thus, the State may not seek an opinion from an expert as to whether the witness is telling the truth. Head v. State, 519 N.E.2d 151, 153 (Ind.1988). It is permissible, however, "to receive the testimony of an expert as to whether or not the child is prone to exaggerate or fantasize and also to express an opinion as to the child's ability to accurately describe a sexual occurrence." Id. Additionally, "[e]xpert testimony that an individual's subsequent behavior is consistent or inconsistent with that observed from other victims is a type of evidence which is admissible."
The State argues that the trial court improperly excluded Kline's testimony under Evidence Rule 704(b) when the State attempted to elicit an answer to the question, "What, if anything, did [G.S.] say to you about not wanting to see [Velasquez?]" (Tr. 179). We disagree.
Velasquez initially objected to Kline's testimony as hearsay. He subsequently changed his objection to one based on vouching testimony when the State sought to admit the testimony under Evidence Rule 803(4). The trial court sustained the objection under Evidence Rule 803(4), not under Evidence Rule 704(b). We therefore cannot say that the trial court improperly excluded Kline's testimony as vouching.
We note, however, that the trial court subsequently excluded Kline's testimony regarding G.S.'s "demeanor when th[e] topic [of Velasquez] was raised." (Tr. 194). The record shows the following colloquy:
(Tr. 194-95).
Here, the record clearly shows that the State did not attempt to elicit testimony regarding whether Kline believed G.S.'s allegations to be true; rather, the State attempted to elicit testimony regarding G.S.'s behavior when discussing Velasquez. Such testimony does not amount to impermissible vouching. Therefore, we find that the trial court improperly excluded the testimony on the grounds that it constituted vouching.
The State also contends that the trial court abused its discretion in limiting Dr. Spencer's testimony regarding her diagnosis of post-traumatic stress disorder ("PTSD") in G.S.
Here, Dr. Spencer testified at length regarding PTSD in children. She testified that it is "basically a severe anxiety disorder that can occur when somebody has been exposed to a very traumatic event," including, but not limited to, "a personal assault" or "child molesting[.]" (Tr. 206-07). She further testified that symptoms in children often include nightmares, hallucinations or flashbacks, temper tantrums, irritability, difficulty sleeping, and "emotional
The State then elicited the following testimony from Dr. Spencer:
(Tr. 220-23). Velasquez objected, stating, "she's vouching, corroborating, I don't know what it is, so I object and move to strike." (Tr.223).
The following colloquy then took place:
(Tr. 223-26). In ruling on the State's subsequent motion to reconsider and offer of proof, the trial court later clarified the ruling as follows: "the bottom line is . . . that [Dr. Spencer's] diagnosis necessarily carries with it a finding that the child was sexually abused." (Tr. 245).
Again, testimony encompassed by Evidence Rule 704(b) is inadmissible because it invades "the province of the jurors in determining what weight they should place upon a witness's testimony." Rose v. State, 846 N.E.2d 363, 367 (Ind.Ct.App. 2006). Therefore, "[i]n child molesting cases, adult witnesses are prohibited from making direct assertions as to their belief in the child's testimony[.]" Stout, 612 N.E.2d at 1080. Expert testimony, however, is admissible to show that an individual's subsequent behavior is consistent or inconsistent with that observed from other victims. Id.
Here, we cannot necessarily say that Dr. Spencer's testimony constituted vouching testimony. Dr. Spencer did not specifically state that she believed G.S.'s allegations or testimony. Her testimony merely explained that G.S.'s behaviors were inconsistent with prior diagnoses. Cf. Weis v. State, 825 N.E.2d 896, 901 (Ind.Ct.App. 2005) (finding that a police officer's testimony that "with the alleged perpetrator being [the victim's] stepfather, there is no contact" and that "[t]his is a person who has caused great damage so we don't have any contact," did not impermissibly invade the jury's province as it merely explained the course of the investigation and protocol on restricting visitation with an alleged abuser without judging the victim's credibility).
Moreover, Dr. Spencer's testimony regarding G.S.'s behavior, including her diagnosis of PTSD based upon that behavior, only would tend to show that G.S. had suffered a traumatic experience and that her behavior was consistent with that experience;
The State also asserts that the trial court abused its discretion in excluding the testimony of G.S.'s grandmother, P.S., as vouching. We agree.
P.S. testified that DCS placed G.S. in her home in June of 2008, after G.S. alleged that Velasquez had molested her. The State then examined P.S. as follows:
(Tr. 275).
Velasquez objected to the testimony. Finding that the "testimony shall certainly goes [sic] with . . . Doctor Spencer's testimony concerning predicates for her diagnosis that was not admitted that was most certainly placed on record of what you see in [PTSD]," the trial court sustained the objection. (Tr. 276).
P.S. was testifying about G.S.'s demeanor, based upon her personal observations. She did not offer an opinion as to any allegations G.S. may have made, G.S.'s credibility, or the truthfulness of her testimony.
In conclusion, we find no abuse of discretion in the giving of a preliminary instruction pursuant to Evidence Rules 105 and 404(b). We do, however, find that the trial court erred in excluding the testimony of witnesses under Evidence Rules 802 and 704(b).
Affirmed in part and reversed in part.
BRADFORD, J., and BROWN, J., concur.
