Opinion
Court of Appeals Case No. 21A-CR-1409
07-22-2022
John William ROSENBAUM, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Zachary J. Stock, Carmel, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A. T. McLean, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Zachary J. Stock, Carmel, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A. T. McLean, Deputy Attorney General, Indianapolis, Indiana
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Defendant, John Rosenbaum, III (Rosenbaum), appeals his convictions for child molesting, a Level 3 felony, Ind. Code § 35-42-4-3(a), and child molesting, a Level 4 felony, I.C. § 35-42-4-3(b).
[2] We affirm.
ISSUES
[3] Rosenbaum presents this court with two issues, which we restate as:
(1) Whether the trial court abused its discretion when it admitted both the recorded interview and the live trial testimony of the child victim; and
(2) Whether the trial court abused its discretion when it relied on the Child Deposition Statute (CDS) in denying Rosenbaum's request to depose the child victim.
FACTS AND PROCEDURAL HISTORY
[4] Mother was previously married to J.V., and that union produced daughter V.V., who was born on May 24, 2013. Mother and J.V. divorced, and Mother subsequently married Rosenbaum sometime in 2016. In December 2019, Mother and Rosenbaum lived at a home in Avon, Indiana, with V.V. and V.V.’s older brother, N.V. J.V. had parenting time with V.V. and N.V. every other weekend.
[5] On December 30, 2019, Mother worked from home at her job as a medical claim examiner. Rosenbaum, who was unemployed, was home that day, as were V.V. and N.V. During her lunch break, Mother lay down with Rosenbaum, who was resting in bed in their bedroom. V.V. came in and found a spot between Mother and Rosenbaum on the bed. As the three were sharing time together, Mother saw Rosenbaum kiss V.V.’s neck in a manner that concerned her, as the kisses resembled those Rosenbaum gave to Mother. Mother, who as a volunteer at her church had received training on body safety for children, did not say anything to Rosenbaum at that moment. After Mother's lunch break was over and she had returned to her desk to work, V.V. approached Mother and told her that Rosenbaum wanted kisses and had asked her to lift her shirt. Mother confronted Rosenbaum and asked him if he had asked V.V. to lift her shirt, which he denied. Rosenbaum left the house for a doctor's appointment, and Mother and V.V. had a discussion about good and bad secrets. During this discussion, V.V. reported molestation by Rosenbaum. After Rosenbaum returned from his appointment, Mother asked him if he had touched V.V. without specifically relating what V.V. had told her. Rosenbaum denied having touched V.V.
[6] Mother took the children and went to her parents’ home. Mother asked V.V. questions about how Rosenbaum had touched her, and V.V. responded by sticking her hand down her pants. Mother contacted law enforcement. V.V. was taken that day to Riley Children's Hospital for a sexual assault examination. On December 31, 2019, V.V. was interviewed by Emily Perry (Perry) at Susie's Place in Avon, a child advocacy center. During the interview, V.V. reported that on more than one occasion Rosenbaum had touched her "private parts" with his hand inside her underwear. (Exh. 1). When demonstrating this act, V.V. made a vigorous digging motion with her hand on her vagina. V.V. also reported that Rosenbaum had directed her to touch his "thing", which "stuck out", and that something had come out of Rosenbaum's "thing". (Exh. 1). When demonstrating this act, V.V. made a motion with her hand in the air simulating an act of masturbation on a penis. At times during the interview, V.V. began to weep and had difficulty continuing. Perry suggested that V.V. draw to relate what happened instead of just talking. V.V. drew a picture of her and Rosenbaum lying sideways in a bed, with Rosenbaum's arm reaching to her vagina. V.V. reported that Rosenbaum "did a bad secret" because he had told her not to tell anybody what had happened. (Exh. 1).
[7] Also on December 31, 2019, investigators of the Avon Police Department (APD) found Rosenbaum at home. Upon greeting the officers, Rosenbaum commented, "I know what this is about and I'm not coming home any time soon." (Transcript Vol. III, p. 16). Later that day, Rosenbaum provided a recorded statement at the APD to lead investigator Officer Brian Nugent (Officer Nugent). Although neither Mother nor Officer Nugent told Rosenbaum the specifics of V.V.’s report, Rosenbaum stated in his interview that Mother had confronted him with V.V.’s report that he had touched V.V.’s vagina, he had V.V. touch his penis, and that he had referred to this conduct as "wee wee time." (Tr. Vol. III, p. 23). Rosenbaum told Officer Nugent that on December 30, 2019, he had accidentally touched V.V.’s lips with his lips after Mother had gotten out of bed at the end of her lunch break. Even though he had not been told that he was being charged or that he was under arrest, during a break in the interview when Rosenbaum was left in the room alone, he placed a cell phone call and stated, "I'm going to jail now." (Tr. Vol. III, p. 27). At the conclusion of the interview, Rosenbaum was taken into custody.
[8] On January 2, 2020, the State filed an Information, charging Rosenbaum with Level 3 felony child molesting for performing or submitting to other sexual conduct with V.V. and with Level 4 felony child molesting for performing or submitting to fondling or touching V.V. with the intent to arouse or satisfy his desires. The theory of the Level 3 felony charge was that Rosenbaum had penetrated V.V.’s vagina with his hand, and the Level 4 felony charge was based on the State's allegation that Rosenbaum had directed V.V. to place her hand on his penis. On August 25, 2020, Rosenbaum filed his notice of intention to depose V.V. on September 3, 2020, to which the State responded on August 28, 2020, objecting that V.V. was protected from deposition by the then newly effective CDS which prohibited the deposition of child victims under the age of sixteen unless certain conditions were met. V.V. did not appear for the scheduled deposition. On September 9, 2020, Rosenbaum filed a motion to depose V.V., arguing that the CDS conflicted with the Indiana Trial Rules and was without effect. On September 25, 2020, the State filed its further objection to Rosenbaum deposing V.V. and requested a hearing. On October 26, 2020, the trial court held a hearing on Rosenbaum's request to depose V.V. On October 27, 2020, the trial court issued its written order denying Rosenbaum's request, declining to find the CDS invalid and finding that Rosenbaum had not met the CDS's requirements to show that V.V.’s deposition was necessary.
[9] On March 25, 2021, the State filed its notice of intent to introduce V.V.’s forensic interview pursuant to Indiana's Protected Persons Statute (PPS) and requested a hearing on the matter. Rosenbaum objected to the use of both V.V.’s recorded interview and her in-trial testimony, arguing that the State could present either form of testimony but not both. On April 5, 2021, the trial court held the PPS hearing at which Perry described Susie's Place and testified that Indiana follows the Child First interview protocol for child interviews, the goals of which are to take a child's report in the least traumatizing, but nonleading or suggestive, manner possible. Perry detailed the measures in place at Susie's Place to assure that interviews were conducted in adherence with professional standards, and she confirmed that those standards were followed when she interviewed V.V. V.V. testified at the PPS hearing and was cross-examined about the circumstances of her first report to Mother, what she reported during her examination at Riley Hospital, and the circumstances of her parenting time with J.V. On April 7, 2021, the trial court issued its written order, granting the State's request to admit V.V.’s forensic interview. The trial court found that V.V. was a protected person under the PPS, V.V. was subject to cross-examination at the PPS hearing, Perry was a trained forensic interviewer, and that the State, through Perry and V.V.’s testimony and the recording of the interview, had established sufficient indicia of the reliability of V.V.’s statement to allow its admission at trial pursuant to the PPS.
[10] On April 12, 2021, the trial court convened Rosenbaum's two-day jury trial. Rosenbaum entered a continuing objection to the State's intent to call V.V. as a trial witness and have her recorded interview admitted into evidence. Mother testified about the events of December 30 and 31, 2019, but did not state the details of V.V.’s reports concerning the offenses. V.V.’s recorded interview was admitted during Perry's testimony. V.V. testified and, using a facial tissue box, demonstrated how Rosenbaum had touched her vagina with his hand, which the prosecutor described for the record as "[r]ight on the side on the inside ... with ... two fingers." (Tr. Vol. II, p. 247). V.V. was cross-examined about the facts that Mother had talked to her about good touch/bad touch, V.V. called both Rosenbaum and J.V. ‘Dad’ at times, and Mother having talked to her about good boundaries with J.V.’s new male roommate who was present during J.V.’s parenting time with V.V. and N.V. Officer Nugent testified that he had never spoken to V.V., and he refrained from repeating V.V.’s reports to Mother and others apart from testifying about Rosenbaum's statements regarding what Mother had told him about V.V.’s reports. The jury found Rosenbaum guilty as charged.
[11] On June 7, 2021, the trial court held Rosenbaum's sentencing hearing. The trial court sentenced Rosenbaum to nine years in the Department of Correction for his Level 3 felony conviction. The trial court sentenced Rosenbaum to six years for his Level 4 felony conviction, all suspended to probation, with four years to be served on home detention as a condition of probation. The trial court ordered Rosenbaum's sentences to be served consecutively.
[12] Rosenbaum now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. V.V.’s Recorded Interview
A. Standard of Review
[13] Rosenbaum contends that the trial court erred when it admitted V.V.’s recorded interview pursuant to the PPS when V.V. was also called as a live witness at trial. As a general rule, we defer to a trial court's evidentiary ruling and review it only for an abuse of discretion. Carpenter v. State , 786 N.E.2d 696, 702 (Ind. 2003). An abuse of discretion occurs when the trial court's ruling is clearly against the logic and effect of the facts and circumstances before it, or when the trial court has misinterpreted the law. Id. at 703. Our supreme court has recognized that the PPS impinges on the ordinary evidentiary regime such that a trial court's rulings made pursuant to the statute carry with them a special level of judicial responsibility. Id. In addition, inasmuch as addressing Rosenbaum's argument calls upon us to interpret a rule of evidence or a statute, those are matters which we review de novo. Norton v. State , 137 N.E.3d 974, 983 (Ind. Ct. App. 2019), trans. denied. We will not reverse a criminal conviction unless "the error affects the substantial rights of a party or is inconsistent with substantial justice[.]" Carpenter , 786 N.E.2d at 704. B. The PPS
[14] The PPS provides for the admission, under certain circumstances, of hearsay statements which would otherwise be inadmissible under the Indiana Evidence Rules. Shoda v. State , 132 N.E.3d 454, 466 (Ind. Ct. App. 2019). The PPS, codified at Indiana Code section 35-37-4-6, provides in relevant part as follows:
(d) A statement or videotape that:
(1) is made by a person who at the time of trial is a protected person;
(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and
(3) is not otherwise admissible in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met.
Subsection (e) provides that such a statement or videotape is admissible if, after a hearing attended by the protected person, the trial court finds that "the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability." The PPS allows for the admission of such hearsay statements when the protected person testifies at trial and when the protected person is found to be unavailable. I.C. § 35-37-4-6(e)(2).
[15] In Tyler v. State , 903 N.E.2d 463 (Ind. 2009), our supreme court addressed the admissibility of a child molest victim's prerecorded statement when that child also testifies at trial. Tyler was charged with four counts of child molesting and one count of vicarious sexual gratification for offenses against five children. Id. at 465. After the offenses had been reported, all five children underwent videotaped interviews with a social worker. Id. The five children all testified at trial, and the prerecorded interviews of three of the children were also admitted into evidence. Id. Tyler was convicted on all charges and appealed, arguing that the admission of the three prerecorded interviews was unduly prejudicial under Evidence Rule 403 and that the trial court had committed fundamental error by admitting the prerecorded interviews after the children had testified at trial. Id.
[16] In assessing Tyler's arguments, the court acknowledged the tension between the PPS's goal of sparing "children the trauma of testifying in open court against an alleged sexual predator", a defendant's federal and state constitutional rights to a fair trial, the concerns underlying the general prohibition against the admission of hearsay, and issues regarding the susceptibility of children to suggestion. Id. at 466. The court observed that the statute explicitly provides for the admission of both prerecorded and live testimony from the same protected person and that the PPS addresses the above-referenced concerns by requiring a trial court to find the statement reliable before its admission and by requiring the protected person to be made available for cross-examination. Id. Nevertheless, the court found that the PPS "should only be used when necessary to further its basic purpose of avoiding further injury to the protected person." Id. Therefore, the court held that, where a child's pretrial recorded statement and the child's live testimony "are consistent and both are otherwise admissible," either the pretrial statement or the live testimony may be admitted into evidence, but not both. Id. at 467. The court reasoned that the admission of both a pretrial recorded statement and consistent trial testimony is cumulative and could be unfairly prejudicial; if a protected person is able to testify in open court without serious distress, the pretrial statement is not necessary; and if the protected person testifies in court, the admission of the pretrial statement does not further the PPS's goal of protecting children from the experience of testifying. Id. at 466-67. While finding that the trial court had erred in admitting the three recorded interviews at Tyler's trial, the court concluded that the ruling did not constitute reversible error because the recorded statements, being cumulative, were of minimal probative value and that their prejudicial effect was insignificant in face of the consistent trial testimony of all five children. Id. at 467.
C. Analysis
i. Consistency of Statements
[17] Rosenbaum contends that the trial court's admission of V.V.’s prerecorded statement "violated the spirit, if not the letter, of the Tyler rule." (Appellant's Br. p. 10). The State's initial response to this argument is that Tyler is only implicated when the prerecorded statement and live testimony are consistent and that V.V.’s recorded interview was not consistent with her trial testimony. Although Rosenbaum does not take an explicit position on whether V.V.’s taped statement was consistent with her trial testimony other than to state that the taped statement was "cumulative" and "not the only evidence" of his guilt, he has argued that Tyler barred the admission of V.V.’s recorded interview, so we will address the State's argument first, as it is a threshold issue. (Appellant's Br. pp. 10, 11).
[18] There appears to be a dearth of law concerning what standard to apply to an analysis of whether a recorded interview and trial testimony are consistent for purposes of the application of Tyler . The Tyler decision itself provides little guidance, as the court simply characterized the two types of evidence as being consistent without delving into a detailed comparison. Neither party has cited any post- Tyler decisions turning on the consistency of the two types of evidence, and our own research uncovered none. The State urges us to simply determine whether the two types of evidence are cumulative without making any argument or offering any authority for its proposition that cumulativeness and consistency are equivalent in this context.
[19] However, courts are required to assess the consistency between trial testimony and prior statements in other contexts such as the impeachment of witnesses and the Evidence Rule pertaining to the admission of hearsay as substantive evidence. Our supreme court has acknowledged that the determination of whether a prior statement is inconsistent for impeachment purposes is not an exact science. Dunlap v. State , 761 N.E.2d 837, 843 n.6 (Ind. 2002). A prior statement may be deemed to be insufficiently inconsistent to be impeaching where it is not directly inconsistent and the prior statement does not "foreclose the possibility" of the witness's trial testimony. Stubbs v. State , 560 N.E.2d 528, 531 (Ind. 1990). We have also observed that a prior statement may not be used for impeachment if it and the trial testimony are "reconcilable with each other[.]" Southtown Props., Inc. v. City of Fort Wayne , 840 N.E.2d 393, 404 (Ind. Ct. App. 2006) (quotation omitted), trans. denied. For a statement to be admissible non-hearsay as a prior consistent statement, it "need not be completely consistent" with trial testimony; rather it is enough if the two statements are "essentially the same." Cline v. State , 726 N.E.2d 1249, 1253 (Ind. 2000). Put another way, "[m]inor inconsistencies between trial testimony and prior statements do not necessarily render the prior statements inadmissible" as a prior consistent, non-hearsay statement. Mitchell v. State , 726 N.E.2d 1228, 1234 (Ind. 2000), abrogated on other grounds.
Evidence Rule 801(d)(1) provides in relevant part that an out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination and the statement (emphasis added):
(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at trial, hearing, or other proceeding or in a deposition; [or]
(B) is consistent with the declarant's testimony, and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying[.]
[20] With this guidance in mind, we turn to the State's contentions regarding inconsistencies between V.V.’s prerecorded interview and her trial testimony regarding the offense involving Rosenbaum's penetration of V.V.’s vagina with his hand. The State argues that, in her interview, V.V. described the offense "indistinctly" and demonstrated Rosenbaum's actions by "plac[ing] her hand over her crotch." (Appellee's Br. p. 15). The State contrasts this with V.V.’s trial testimony where she demonstrated Rosenbaum's touching her vagina on a tissue box, which the prosecutor characterized for the record as "[r]ight on the side on the inside" using "two fingers." (Tr. Vol. II, p. 247). The State contends that this evidence is inconsistent because, unlike her interview, V.V.’s trial testimony showed evidence of penetration of her vagina by Rosenbaum's fingers.
[21] We do not find that the State's identified evidence is sufficient to establish the required inconsistency between V.V.’s recorded interview and her trial testimony. At her forensic interview, V.V. made a digging motion with her hand into her crotch when demonstrating the offense, from which the jury could have inferred that Rosenbaum penetrated her vagina. V.V.’s use of two fingers to demonstrate the offense at trial does not foreclose the possibility that her interview description of the offense was accurate because she also used her fingers to demonstrate the offense during her interview. Thus, V.V.’s interview and her trial testimony are not irreconcilable; the differences between them are minor in that they essentially describe the same act, namely that Rosenbaum dug into her vagina with his hand using his fingers. The State makes no argument regarding the consistency of V.V.’s recorded interview and her trial testimony regarding the Level 4 felony offense based on Rosenbaum's act of having V.V. place her hand on his penis. Therefore, we conclude that V.V.’s recorded interview and her trial testimony were consistent, Tyler applies, and that the trial court abused its discretion when it admitted both V.V.’s prerecorded interview and her trial testimony.
ii. Harmless Error
[22] As the Tyler decision itself made clear, the improper admission of both a prerecorded statement and live, in-trial testimony by a child molestation victim is subject to harmless error analysis. Tyler , 903 N.E.2d at 467. Rosenbaum likens his case to Cox v. State , 937 N.E.2d 874, 879 (Ind. Ct. App. 2010), trans. denied , wherein this court reversed Cox's convictions on multiple counts of child molestation after the child victim's prerecorded statement and his live testimony were both admitted at trial. The State called the child to testify regarding his ability to distinguish between the truth and lie, but it did not have him testify about the offenses themselves. Id. at 876. The State then had the child's forensic interview, which had already been deemed admissible by the trial court during a PPS hearing, admitted into evidence in lieu of the child's in-court testimony. Id. Cox was convicted and appealed, invoking Tyler . Id. After having concluded that the procedure involved was in contravention of Tyler , the court held that the error was not harmless because all the evidence of Cox's guilt came from the recorded interview, foreclosing the possibility that the child might make inconsistent statements upon which he could be challenged. Id. at 879. The Cox court also found it significant that the prerecorded interview had not been made under oath or after the child had been examined as to whether he understood the difference between the truth and a lie, and, therefore, there was no sworn statement or testimony supporting Cox's convictions. Id.
[23] We cannot conclude that Cox dictates that we find reversible error on this issue, as we find Cox to be factually distinguishable. As Rosenbaum acknowledges, unlike Cox , V.V.’s taped statement "was not the only evidence" of his guilt, and V.V. testified at trial about the offenses, rendering her subject to cross-examination about any inconsistencies between her recorded interview and her trial testimony. (Appellant's Br. p. 11). In addition, Perry testified at the PPS hearing and at trial that prior to the interview, she confirmed with V.V. that she would only talk about things that had really happened. Perry also testified that she had been trained during an interview of a young child to constantly consider whether there were alternate explanations for what a child reported and that she followed that procedure when interviewing V.V. Most significantly, at trial and prior to her testimony, V.V. established her oath by confirming that she understood the difference between a lie and the truth. Therefore, the concerns regarding the safeguards on the veracity of the child's statement present in Cox are not at issue here.
[24] Additionally, one of the Tyler court's primary rationales for its holding was to avoid the admission of unfairly prejudicial, cumulative evidence. See Tyler , 903 N.E.2d at 467 (citing Modesitt v. State , 578 N.E.2d 649, 650-52 (Ind. 1991), wherein the "drum beat" repetition of the molestation victim's prior statements by her mother, caseworker, and psychologist required reversal). Here, the prosecutor's questioning of Mother, Perry, and the investigating officers was carefully tailored to avoid having the witnesses repeat the substance of their conversations with V.V. and reports of V.V.’s allegations. There was no relentless repetition of the allegations before the jury. Compare Stone v. State , 536 N.E.2d 534, 541 (Ind. Ct. App. 1989) (concluding that the drum beat of repetition of the victim's story seven times through five witnesses, some of whom recounted the victim's story in its entirety, required reversal), trans. denied. In addition, without more explanation, we do not credit Rosenbaum's bald assertion that the admission of V.V.’s recorded interview, coupled with her affirmation that the things she had told Perry were true, "effectively immunized the statements from any type of serious challenge." (Appellant's Br. p. 11). V.V. testified in open court and could have been questioned closely regarding her interview and any inconsistencies between it and her trial testimony. 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. See Carpenter , 786 N.E.2d at 704.
II. Victim's Deposition
A. Standard of Review
[25] Rosenbaum also argues that the trial court abused its discretion when it declined to rule that the CDS was a nullity and denied his pretrial motion to depose V.V. Trial courts have broad discretion in ruling on discovery matters, and we review their discovery rulings only for an abuse of that discretion. Ramirez v. State , 186 N.E.3d 89, 93 (Ind. 2022). Inasmuch as resolution of Rosenbaum's claims entails issues of statutory construction, those are matters that we review de novo. Suggs v. State , 51 N.E.3d 1190, 1193 (Ind. 2016).
B. The CDS
[26] The CDS, which became effective on March 18, 2020, prohibits the ability of criminal defendants to depose the victim of a sex offense if the victim is less than sixteen years old, unless certain conditions are met. Ind. Code § 35-40-5-11.5(a), (c). If the prosecutor does not agree to allow a defendant to depose a child victim, the defendant may petition the trial court for authorization to do so. I.C. § 35-40-5-11.5(d). The trial court may authorize the deposition if, after holding a hearing, it finds that either "there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim's testimony" or that "the deposition is necessary ... due to the existence of extraordinary circumstances" and "in the interest of justice." I.C. § 35-40-5-11.5(d)(2), (3).
[27] Rosenbaum did not claim below, and does not claim here, that he made the requisite showing under the CDS of V.V.’s unavailability or any exigent circumstances. Rather, Rosenbaum relies on a series of decisions from this court resulting from interlocutory appeals in which we determined that the CDS is a nullity because it is a procedural law that conflicts with the Indiana Rules of Trial Procedure and, as a result, a trial court abuses its discretion in denying a request to depose a child victim based on that statute. See Sawyer v. State , 171 N.E.3d 1010, 1018 (Ind. Ct. App. 2021) ; Church v. State , 173 N.E.3d 302, 306-07 (Ind. Ct. App. 2021) ; State v. Riggs , 175 N.E.3d 300, 309-10 (Ind. Ct. App. 2021) ; Pate v. State , 176 N.E.3d 228, 234 (Ind. Ct. App. 2021).
When this appeal was briefed by the parties, these cases were pending transfer to the Indiana supreme court. On June 23, 2022, transfer was granted in all four cases.
C. Analysis
[28] On June 23, 2022, after this matter was fully briefed, our supreme court issued its opinion in Church upholding the validity of the CDS. Church v. State , 189 N.E.3d 580 (Ind. 2022). Church argued in relevant part that the CDS was a procedural statute that conflicted with his right to depose witnesses under Trial Rules 26 and 30 as well as Indiana Code section 35-37-4-2, which provides that a defendant may depose witnesses in criminal cases. Id. at *4. In rejecting this argument, our supreme court acknowledged the general rules that "[t]o the extent a procedural statute is at odds with one of our procedural rules, the rule governs" but that the Trial Rules "cannot abrogate or modify substantive law." Id. The court adopted a test for determining how a statute with both substantive and procedural elements is classified and held that the determination is made by examining the statute's "predominant objective." Id. at *6. If the statute in question "predominantly furthers judicial administration objectives, the statute is procedural." Id. However, if the statute "predominantly furthers public policy objectives involving matters other than the orderly dispatch of judicial business," the statute is substantive. Id. (quotation omitted). While acknowledging that the CDS contained procedural elements, the Church court concluded that it was a substantive statute because it "predominantly furthers public policy objectives" of guarding child victims of sex crimes from needless trauma inflicted through compelled discovery depositions and of vindicating child victims’ rights conferred under the Indiana Constitution's Article 1, section 13(b) "to be treated with fairness, dignity, and respect throughout the criminal justice process ... to the extent that exercising these rights does not infringe upon the constitutional rights of the accused." Id. Noting that a criminal defendant does not have a constitutional right to depose witnesses for discovery purposes, the court held that the CDS reflects a clear legislative balancing of policy considerations to secure these rights and that the statute is not a procedural statute that merely controls the judicial dispatch of litigation. Id. The court concluded that "because the statute is substantive, we need not consider whether it conflicts with our procedural rules." Id.
[29] Here, Rosenbaum raises claims identical to those raised in Church , in that he contends that the CDS conflicts with Trial Rules 26 and 30, as applicable to a criminal case through Indiana Code section 35-37-4-2. Because our supreme court has rejected those arguments, we conclude that the trial court did not abuse its discretion in relying on the CDS to prohibit Rosenbaum from deposing V.V.
CONCLUSION
[30] 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. 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.
[31] Affirmed.
[32] Najam, J. and Robb, J. concur