Oo Aka v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before Mar 08 2013, 8:27 am

any court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON GREGORY F. ZOELLER

Brownsburg, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

OO AKA, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1207-CR-560

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Kimberly J. Brown, Judge

Cause No. 49G16-1108-FD-61186

March 8, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

On August 27, 2011, Oo Aka hit his wife, C.C. (hereinafter “the victim”), in the hand

and head with a children’s bicycle. As a result of being hit with the bicycle, the victim

sustained injuries on both her hand and her head. On August 30, 2011, the State charged Aka

with Count I, Class D felony domestic battery; Count II, Class A misdemeanor domestic

battery; Count III, Class D felony battery; and Count IV, Class A misdemeanor battery.

Following a jury trial, Aka was found guilty of Counts I through IV. The trial court found

that the Counts III and IV merged into Counts I and II. On appeal, Aka challenges his

convictions by claiming that the trial court abused its discretion on numerous grounds

including: (1) allowing the jury to begin deliberations at 11:15 p.m., (2) finding he and the

victim’s twelve-year-old daughter competent to testify at trial, (3) limiting the scope of a

certain witness’s testimony, and (4) allowing an emergency room nurse who treated the

victim to testify about certain statements made by the victim during the nurse’s evaluation of

the victim. Finding no abuse of the trial court’s discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

Aka and the victim are a Burmese couple who have been married for fifteen years and

have seven children together. The victim was home with the children in their apartment on

the evening of August 27, 2011. When Aka arrived home late that evening, he appeared to

be drunk.

At some point, Aka and the victim began arguing. Their argument awoke their

twelve-year-old daughter, M.N.F., who had been asleep in one of the bedrooms. Upon

hearing her parents arguing, M.N.F. left the bedroom and went to the living room. As

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M.N.F. entered the living room, she saw Aka pick up a small children’s bicycle and strike the

victim. The victim put her hand up to prevent the blow and the bicycle cut her hand. Aka

then struck the victim with the bicycle a second time. The second blow struck the victim on

the back of her head, leaving a six centimeter laceration.

Hurt and bleeding, the victim attempted to flee the apartment. As she fled, Aka

chased after the victim and indicated that he wanted to kill her. The victim ran to the home

of Naw Htoo, a neighbor who helps Burmese refugees. Naw Htoo eventually opened the

door, let the victim into her apartment, and called the police.

When the police arrived, the responding officers found Aka “banging” on Naw Htoo’s

door. Tr. p. 224. Inside, the officers found the victim. The victim was bleeding, and she

pointed at Aka, saying, “he did it.” Tr. p. 225. Aka was subsequently arrested.

On August 30, 2011, the State charged Aka with Count I, Class D felony domestic

battery;1 Count II, Class A misdemeanor domestic battery;2 Count III, Class D felony battery;3

and Count IV, Class A misdemeanor battery.4 The State subsequently amended the charging

information to include Count V, Class D felony criminal recklessness.5

In January of 2012, Aka requested a competency hearing to determine whether M.N.F.

was competent to testify at trial. The trial court conducted a competency hearing on January

1

Ind. Code § 35-42-2-1.3 (2011).

2

Ind. Code § 35-42-2-1.3.

3

Ind. Code § 35-42-2-1 (2011).

4

Ind. Code § 35-42-2-1.

5

The charging information for Count V was not included in Appellant’s Appendix. However, it

appears that the charge of class D felony criminal recklessness was brought in accordance with Indiana Code

section 35-42-2-2 (2011).

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31, 2012, after which it determined that M.N.F. was competent to testify.

A jury trial was conducted on May 31, 2012. After a full day of trial, jury

deliberations began at approximately 11:15 p.m. Aka moved for a mistrial due to the lateness

of the hour, and this motion was denied by the trial court. The jury returned guilty verdicts

on Counts I through IV and an acquittal on Count V. The trial court found that Counts III

and IV merged into Counts I and II, and sentenced Aka to an aggregate term of 545 days of

incarceration. This appeal follows.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in

Allowing the Jury to Begin Deliberations Late in the Evening

Aka contends that the trial court abused its discretion in allowing the jury to begin

deliberating at 11:15 p.m., after having worked for nearly thirteen-and-a half to fourteen

hours. The Indiana Supreme Court has previously held that “the trial judge is in the best

position to determine whether or not to adjourn the trial.” Peck v. State, 563 N.E.2d 554, 559

(Ind. 1990). The rationale behind this position was set forth by the Indiana Supreme Court in

King v. State, in which the Court stated:

The trial judge was also a participant in the trial and was in a better situation to

assess fatigue and state of mind tha[n] this court. The decision to continue into

the night was one of those undoubtedly made after considering all of the

negative aspects whether raised by appellant or not. The judge had the unique

ability to weigh the pros and cons of an adjournment and his determination

will not be disturbed. That is not to say that all decisions of this type will be

met with approval. Rather, it means that a clear showing of abuse of discretion

coupled with prejudice to the defendant must be shown.

531 N.E.2d 1154, 1161 (Ind. 1988).

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Generally, a showing of prejudice requires more that an allegation of a long jury work

day and an unfavorable result. See generally Farrell v. State, 622 N.E.2d 488, 492-93 (Ind.

1993) (providing that where defendants have been unable to show more than late hours and

an adverse verdict, courts have been reluctant to reverse a conviction); Peck, 563 N.E.2d at

559 (providing that the trial court did not abuse its discretion in handing the case over to the

jury at approximately 9:30 p.m. and letting the jury deliberate for nearly four hours when the

jury had a number of breaks during the day and did not appear exhausted); Evans v. State,

563 N.E.2d 1251, 1258 (Ind. 1990) (providing that the trial court did not abuse its discretion

in subjecting the jury to allegedly “overbearing” trial hours when final argument on the

penalty phase began at 10:00 p.m.), reh’g granted on other gnds.; Morris v. State, 266 Ind.

473, 484-85, 364 N.E.2d 132, 139 (1977) (providing trial court did not abuse its discretion in

denying the jury’s request for sleep and/or coffee at 3:30 a.m. when there were no motels or

restaurants open and there was no showing in the record that the denial in any way influenced

the jury in their decision); Moore v. State, 569 N.E.2d 695, 702 (Ind. Ct. App. 1991)

(providing that the trial court did not abuse its discretion in having the jury work

continuously for seventeen hours). In Moore, the appellant raised an argument similar to that

raised by Aka in the instant matter. Specifically, the appellant argued that the trial court

abused its discretion in having the jury work continuously for seventeen hours, with the jury

returning a verdict at 2:05 a.m. 569 N.E.2d at 702. The appellant, however, did not make a

showing of prejudice or juror fatigue, and this court concluded that his challenge appeared to

be based on an unfavorable result, rather than on a bona-fide concern for the jury’s ability to

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function with mental acuity after a long day. Id.

In the instant matter, Aka argues that the trial court abused its discretion in allowing

the jury to begin deliberations at 11:15 p.m., after an approximately thirteen-and-a-half to

fourteen hours of work. Aka acknowledges that the jury was given “a lot of breaks” during

the day, Tr. p. 279, but argues that fourteen hours is “too long to expect jurors to work and

still be mentally sharp enough to fairly consider all the evidence and render a reliable and just

verdict.” Appellant’s Br. p. 12. Aka, however, does not point to anything in the record that

would demonstrate juror fatigue such that would impact the jury’s ability to consider the

evidence and render a reliable verdict. Again, Aka’s claim relating to the long hours put in

by the jury, without more, is insufficient to prove prejudice. See generally Farrell, 622

N.E.2d at 493; Peck, 563 N.E.2d at 559; Evans, 563 N.E.2d at 1258; Morris, 266 Ind. at 484-

85, 364 N.E.2d at 139; Moore, 569 N.E.2d at 702.

In light of the lack of evidence tending to demonstrate juror fatigue or prejudice, we

conclude that Aka’s argument, like the appellant’s argument in Moore, appears to be based

on an unfavorable result, rather than on a bona-fide concern for the jury’s ability to function

with mental acuity after a long day. 569 N.E.2d at 702. The jurors were given many breaks

during the day and nothing indicates that the long hours on the single day of trial rendered

them unable to reach a just and reliable verdict. As such, we conclude that the trial court did

not abuse its discretion in this regard.

II. Whether the Trial Court Abused its Discretion in Finding Aka and the Victim’s

Twelve-Year-Old Daughter to be a Competent Witness

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Aka next contends that the trial court abused its discretion in finding that he and the

victim’s twelve-year-old daughter, M.N.F., was competent to testify at trial. Specifically,

Aka claims that the record does not demonstrate that M.N.F. understood the difference

between telling a lie and telling the truth, knew that she was required to tell the truth, or

actually understood what a true statement was. The State, for its part, argues that Aka has

waived the instant challenge on appeal, and, alternatively, that the trial court acted within its

discretion in determining that M.N.F. was competent to testify at trial.

In Kochersperger v. State, 725 N.E.2d 918, 922 (Ind. Ct. App. 2000), this court

determined that the defendant had waived his challenge to the competency of the child

witness on appeal because he had “offered no objection to the trial court’s ruling at the

conclusion of the competency hearing and likewise failed to offer any objection when [the

child] was called as a witness at trial.” In concluding that the defendant had waived his

challenge to the competency of the child witness, this court noted that a “‘[t]imely objection

should be made to any improprieties that may occur during the course of a trial so that the

trial judge may be informed and may take effective action to remedy the error or grievance

complained of.’” Id. (quoting Jackson v. State, 485 N.E.2d 144, 145 (Ind. Ct. App. 1985),

trans. denied). “A defendant’s failure to object to a child’s testimony acts as a waiver of any

question of the competency of the child as a witness.” Id. (citing Jackson, 485 N.E.2d at

145).

In the instant matter, like in Kochersperger, Aka did not object to the trial court’s

determination that M.N.F. was competent at the conclusion of the competency hearing or

7

when M.N.F. was called as a witness at trial. During both the competency hearing and

M.N.F.’s trial testimony, counsel for the State and Aka asked M.N.F. questions relevant to a

competency determination. Aka did not object during either proceeding upon hearing

M.N.F.’s answers to counsels’ questions. As such, in light of this court’s conclusion in

Kochersperger, we conclude that Aka has waived appellate consideration of his challenge to

M.N.F.’s competency to testify. See id.

Waiver notwithstanding, we conclude that the trial court properly determined that

M.N.F. was competent to testify. “According to the Indiana Rules of Evidence, ‘[e]very

person is competent to be a witness except as otherwise provided in these rules or by act of

the Indiana General Assembly.” Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007),

trans. denied. With respect to child witnesses, “[w]e require trial courts to establish that

child witnesses are competent to testify by demonstrating that they (1) understand the

difference between telling a lie and telling the truth, (2) know they are under a compulsion to

tell the truth, and (3) know what a true statement actually is.” Haycraft v. State, 760 N.E.2d

203, 209 (Ind. Ct. App. 2001). “One proper technique for determining that a prospective

child witness understands the meaning of truth is to ask the child to give an example of

someone telling a lie.” Harrington v. State, 755 N.E.2d 1176, 1181 (Ind. Ct. App. 2001).

“The determination as to a witness’s competency lies within the sound discretion of

the trial court and is reviewable only for a manifest abuse of that discretion.” D.G. v. State,

947 N.E.2d 445, 448-49 (Ind. Ct. App. 2011). “It is within the sound discretion of the trial

court to determine whether a child is competent to testify based on the trial court’s

8

observation of the child’s demeanor and responses to questions posed to him or her by

counsel and the court.” Id. at 449. “To be qualified to testify, a child need not be a model

witness, have an infallible memory, or refrain from making inconsistent statements.” Kien,

866 N.E.2d at 385.

In the instant matter, Aka claims that the trial court abused its discretion in finding

M.N.F. to be competent to testify at trial because “[t]he record does not demonstrate that

[M.N.F.] understood the difference between telling a lie and telling the truth, knew she was

required to tell the truth, or actually understood what a true statement was.” Appellant’s Br.

p. 14. However, despite Aka’s claim to the contrary, upon review, we conclude that the

record does in fact demonstrate that M.N.F. understood the difference between telling a lie

and telling the truth, knew that she was under compulsion to tell the truth, and knew what a

true statement actually was. During the competency hearing, M.N.F. engaged in the

following exchange with the deputy prosecuting attorney:

[The State]: I’m going to show you this. Can you tell the Judge what that’s a

picture of?

[M.N.F.]: Dog.

[The State]: Okay, and if I said that was a picture of a cat, would that be the

truth?

[M.N.F.]: She lie.

[The State]: It would be a lie, is that what you said?

[M.N.F.]: Yes.

[The State]: Okay, do you know if telling the truth or telling a lie is a good

thing?

[M.N.F.]: Telling the truth is good; lying is not good.

[The State]: Okay, and you know, do you know we’re in a court room today?

[M.N.F.]: Yes.

[The State]: Do you think it’s important to tell the truth when you’re in a

court room?

[M.N.F.]: Yes, I think so.

9

[The State]: And do you think you should lie when you’re in the court room?

[M.N.F.]: No.

Tr. p. 18.

Likewise, at trial, M.N.F. engaged in the following exchange with the deputy

prosecuting attorney:

[The State]: Okay, and what’s your favorite color, [M.N.F.]?

[M.N.F.]: Purple.

[The State]: Okay, and if I told you today that I was wearing purple, would

that be the truth or would that be a lie?

[M.N.F.]: A lie.

[The State]: Okay, alright. And you know you need to tell the truth in the

courtroom today?

[M.N.F.]: Mm.

[The State]: Can you answer yes or no for me? Can you answer yes or no?

do you know you need to tell the truth today?

[M.N.F.]: Yes.

Tr. p. 118. M.N.F. also engaged in the following exchange with Aka’s counsel:

[The Defense]: Before we left I had asked you if you knew what it meant

to tell a lie.

[M.N.F.]: Yes, I know.

[The Defense]: Can you tell me what it means to tell a lie? Do you know

what a lie is?

[M.N.F.]: I know what a lie is.

[The Defense]: What is it? And you can describe it however you want.

[M.N.F.], have your brothers or sisters -- you’ve got six or seven brothers and

sisters?

[M.N.F.]: Yes.

[The Defense]: And some of them are younger than you?

[M.N.F.]: Yes, yes.

[The Defense]: Has a younger brother or sister ever told a lie that you

know of?

[M.N.F.]: One of them did.

[The Defense]: Okay, can you tell me about that? What they lied about?

[M.N.F.]: My brother was supposed to take a bread to my aunt, and

he ate it all. He didn’t take it, but then he said [he] didn’t eat it.

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Tr. pp. 128-29.

Upon review, we conclude that these exchanges with counsel demonstrate that M.N.F.

understood the difference between telling a lie and telling the truth, knew that she was under

compulsion to tell the truth, and knew what a true statement actually was. In arguing that the

trial court abused its discretion in finding that M.N.F. was competent to testify, Aka claims

the record demonstrates that M.N.F. was not competent to testify because M.N.F. could not

articulate what a promise was and the fact that she testified that, while she remembered

talking to defense counsel before trial, she did not remember giving a taped statement about

the night her mother was injured. Aka’s claim, however, merely amounts to an invitation for

this court to reweigh M.N.F.’s testimony and reassess her credibility, which we will not do.

See Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (providing that upon review, appellate

courts do not reweigh the evidence or assess the credibility of the witnesses). In light of the

testimony demonstrating that M.N.F. knew both what a true statement was as well as the

difference between the truth and a lie, and also knew that she needed to tell the truth, we

conclude that the trial court did not abuse its discretion in finding M.N.F. competent to testify

at trial.

III. Whether the Trial Court Abused its Discretion in Prohibiting a Witness from

Providing Impeachment Testimony Relating to a Specific Collateral Matter

Aka also contends that the trial court abused its discretion and violated his rights to

present a defense and to a fair try by excluding certain evidence of the victim’s bias against

him.

[T]he decision to admit or exclude evidence is within the trial court’s sound

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discretion and is afforded great deference on appeal. Bacher v. State, 686

N.E.2d 791, 793 (Ind. 1997). The admission or exclusion of evidence will not

generally be reversed on appeal absent a manifest abuse of discretion that

results in a denial of a fair trial. See Becker v. State, 695 N.E.2d 968, 973 (Ind.

Ct. App. 1998). An abuse of discretion occurs where the trial court’s decision

is clearly against the logic and effect of the facts and circumstances before the

court. Myers v. State, 718 N.E.2d 783, 789 (Ind. Ct. App. 1999), trans. denied.

Moreover, this court will find an abuse of discretion when the trial court

controls the scope of cross-examination to the extent that a restriction

substantially affects the defendant’s rights. Nasser v. State, 646 N.E.2d 673,

681 (Ind. Ct. App. 1995).

Zawacki v. State, 753 N.E.2d 100, 102 (Ind. Ct. App. 2001).

During trial, Aka’s counsel questioned the victim about whether she had entered into a

relationship with a new boyfriend. The State objected, claiming that “whether she has a new

boyfriend or not is completely irrelevant” because the trial was taking place nearly nine

months after Aka hit the victim in the head with the bicycle. Tr. p. 200. Aka’s counsel stated

that the evidence was relevant to show bias because it was the defense’s position that the

victim falsely accused Aka of battering her and that she began a relationship with another

man shortly after Aka’s arrest. The trial overruled the State’s objection but indicated that it

believed that the line of questioning was “very close to not being relevant.” Tr. p. 201. The

victim denied that she had a new boyfriend, but rather simply a male friend. The victim also

denied that this male friend lived with her.

After the victim denied having a new boyfriend and living with him, Aka’s counsel

attempted to question the victim’s neighbor, Naw Htoo, about whether the victim had a new

live-in boyfriend. During the cross-examination of Naw Htoo, the following exchange and

sidebar discussion occurred:

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[The Defense]: Since this incident or shortly after the incident, you’ve

seen [the victim] in that apartment complex?

[Htoo]: Yes, I did.

[The Defense]: Okay, and shortly after this incident you’ve seen [the

victim] with another man, is that right?

[The State]: Objection, Judge. May we approach?

[The Court]: You may.

(COUNSEL APPROACHES FOR SIDEBAR DISCUSSION)

[The State]: Again, I’m saying this is not relevant to the testimony. In

addition, we think this is improper impeachment because [the victim] did say

she does have a male friend. So, for those reasons I would object.

[The Court]: Ms. Turner?

[The Defense]: Yes, Judge. I believe my question was shortly after the

incident if she’s seen him around the neighborhood with her, and the answer

will be yes. My next question will be has [the victim] denied that she lived

with this man, and she is going to say that -- she is going to impeach [the

victim] and say, no that this guy is living there, has been living there since this

incident.

[The State]: And then Judge, we would say that that’s impeachment on

a collateral matter. It’s not relevant to this case.

[The Court]: Alright, is there anything else? Your objection is as to

relevancy?

[The State]: Yes, and improper impeachment.

[The Court]: Okay.

[The Defense]: I think it’s relevant. It goes to -- it impeaches [the

victim], and it goes to her credibility. It shows her motive to lie, bias.

[The Court]: Okay, and you’re talking about something after this

incident, is that right?

[The Defense]: Shortly thereafter, yes.

[The Court]: Okay, alright. Step back please.

(END OF SIDEBAR DISCUSSION)

[The Court]: The State’s objection is sustained.

Tr. pp. 217-19.

Aka argues on appeal that the trial court abused its discretion in sustaining the State’s

objection to his counsel’s line-of-questioning of Naw Htoo about whether the victim has a

new live-in boyfriend because such evidence is relevant to show that the victim is biased

13

against Aka. Aka claims that such bias is relevant to his theory that the victim falsely

accused him of battering her. The State, conversely, argues that the trial court properly

sustained its objection because Naw Htoo’s testimony regarding whether the victim had a

new live-in boyfriend nine months after Aka battered the victim was not relevant to show

bias, but rather amounted to an impermissible attempt to impeach the victim on collateral

matters.

Impeachment upon collateral matters is impermissible. Jackson v.

State, 728 N.E.2d 147, 153 (Ind. 2000) (addressing that the common law rule

preventing impeachment upon collateral matters was still valid following the

adoption of the Indiana Rules of Evidence). The determination of whether a

matter is collateral depends upon whether the offering party would be entitled

to prove it as part of the case in chief, apart from the contradiction it supplies.

Andrews v. State, 529 N.E.2d 360, 365 (Ind. Ct. App. 1988), cert. denied 493

U.S. 919, 110 S.Ct. 281, 107 L.Ed.2d 261 (1989). In other words, the question

is whether the evidence is admissible for any purpose independent of the

contradiction of the witness. Id. A party may inquire into a collateral matter

on cross-examination. Highley v. State, 535 N.E.2d 1241, 1243 (Ind. Ct. App.

1989), trans. denied. However, the questioner is bound by the answer received

and may not impeach the witness with extrinsic evidence unless the evidence

would be independently admissible. Id. When evidence is used in a manner

solely to prejudice a jury against the witness and is not material to the

litigation, the evidence is referred to as an “evidentiary harpoon” and its

admission is improper. Henson v. State, 530 N.E.2d 768, 770

(Ind.Ct.App.1988), trans. denied.

Kien v. State, 782 N.E.2d 398, 409 (Ind. Ct. App. 2003). However, “[e]vidence of bias,

prejudice, or ulterior motives on the part of a witness is relevant at trial, as it may discredit

the witness or affect the weight of the witness’s testimony.” Zawacki, 753 N.E.2d at 102

(citing Ind. Evidence Rule 616; Sigler v. State, 733 N.E.2d 509, 511 (Ind. Ct. App. 2000),

trans. denied).

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At best, Naw Htoo’s testimony was marginally relevant to show bias and we conclude

that the trial court’s exclusion of Naw Htoo’s testimony regarding whether the victim had a

new live-in boyfriend was, at most, harmless. Aka argues that the evidence was relevant to

prove that the victim was biased against him and falsely accused him of battering her.

However, the victim’s testimony regarding Aka’s attack on her was corroborated by the

testimony of Aka and the victim’s twelve-year-old daughter who testified that she, apparently

unbeknownst to both Aka and the victim, saw Aka strike the victim in the head with the

bicycle. As such, we conclude that Aka has failed to demonstrate that the trial court abused

its discretion in this regard.

IV. Whether the Trial Court Abused its Discretion in

Admitting Inadmissible Hearsay During Trial

Aka next contends that the trial court abused its discretion in admitting inadmissible

hearsay into evidence. Specifically, Aka claims that the trial court erroneously allowed Laura

Hobbs, the forensic nurse examiner who examined the victim in the hospital emergency

room, to testify about out-of-court statements made by the victim. The State, for its part,

claims that the victim’s statements to Hobbs fell under the “medical diagnosis exception” to

the hearsay rule set forth in Indiana Evidence Rule 803(4).

Hearsay is a statement, other than one made by the declarant while testifying at trial,

offered to prove the truth of the matter asserted. Nash v. State, 754 N.E.2d 1021, 1023 (Ind.

Ct. App. 2001) (citing Ind. Evidence Rule 801(c)). Hearsay is inadmissible unless admitted

pursuant to a recognized exception. Id. (citing Evid. R. 802). “Indiana Evidence Rule 803(4)

15

sets forth the ‘medical diagnosis exception’ to the hearsay rule.” Perry v. State, 956 N.E.2d

41, 49 (Ind. Ct. App. 2011). “Rule 803(4) provides for the admissibility of statements ‘made

for purposes of medical diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general character of the cause or

external source thereof insofar as reasonably pertinent to diagnosis or treatment.’” Id.

(quoting Evid. R. 803(4)). “The rationale underlying the exception is that a declarant’s self-

interest in seeking treatment reduces the likelihood that she will fabricate information that

she provides to those who treat her.” Id. (citing McClain v. State, 675 N.E.2d 329, 331 (Ind.

1996)).

“In determining the admissibility of hearsay under Rule 803(4), courts evaluate (1)

whether the declarant’s motive was to provide truthful information to promote diagnosis and

treatment and (2) whether the content of the statement is such that an expert in the field

would reasonably rely on it in rendering diagnosis or treatment.” Id. (citing In re Paternity of

H.R.M., 864 N.E.2d 442, 446 (Ind. Ct. App. 2007)). “Statements attributing fault or

establishing a perpetrator’s identity are typically inadmissible under the medical diagnosis

exception, as identification of the person responsible for the declarant’s condition or injury is

often irrelevant to diagnosis and treatment.” Id. (citing Beverly v. State, 801 N.E.2d 1254,

1259 (Ind. Ct. App. 2004), trans. denied). However, we have noted that in cases involving

child abuse, sexual assault, and/or domestic violence, courts may exercise their discretion in

admitting medical diagnosis statements which relay the identity of the perpetrator. Id. (citing

Nash, 754 N.E.2d at 1024-25); see also Dowell v. State, 865 N.E.2d 1059 (Ind. Ct. App.

16

2007), summarily aff’d in relevant part, 873 N.E.2d 59 (Ind. 2007).

In Nash, we considered whether the statement given by the victim of domestic sexual

abuse to a nurse who examined the victim. 754 N.E.2d at 1023-25. As we recognized in

Nash:

All victims of domestic sexual abuse suffer emotional and psychological

injuries, the exact nature and extent of which depend on the identity of the

abuser. The physician generally must know who the abuser was in order to

render proper treatment because the physician’s treatment will necessarily

differ when the abuser is a member of the victim’s family or household. In the

domestic sexual abuse case, for example, the treating physician may

recommend special therapy or counseling and instruct the victim to remove

herself from the dangerous environment by leaving the home and seeking

shelter elsewhere. In short, the domestic sexual abuser’s identity is admissible

under Rule 803(4) where the abuser has such an intimate relationship with the

victim that the abuser’s identity becomes “reasonably pertinent” to the victim’s

proper treatment.

Id. at 1025 (quoting United States v. Joe, 8 F.3d 1488, 1494-95 (10th Cir. 1993)). We

believe that the same can be said of all victims of domestic abuse, and would expand our

conclusion in Nash to encompass all victims of domestic abuse, not only victims who suffer

domestic abuse of a sexual nature.

“The extent to which a statement as to cause is pertinent to diagnosis or

treatment rests within the discretion of the trial judge, who may consider the

health care provider’s testimony in making that determination.” 13 Robert

Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 803.104 (3d ed. 2007)

(citations omitted); see also Ind. Evidence Rule 104(a) (“Preliminary questions

concerning ... the admissibility of evidence shall be determined by the

Court[.]”); 21A Charles Alan Wright & Kenneth W. Graham, Jr., Federal

Practice and Procedure § 5053.3 (2d ed. 2005) (“The judge determines the

preliminary facts regarding the hearsay exceptions in Rule 803[.]”).

Perry, 956 N.E.2d at 50. “An abuse of discretion occurs if a trial court’s decision is clearly

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against the logic and effect of the facts and circumstances before the court.” Lehman v.

State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010), trans. denied. “However, if a trial court

abused its discretion by admitting the challenged evidence, we will only reverse for that error

if the error is inconsistent with substantial justice or if a substantial right of the party is

affected.” Id. “Any error caused by the admission of evidence is harmless error for which

we will not reverse a conviction if the erroneously admitted evidence was cumulative of

other evidence appropriately admitted.” Id.

During trial, Hobbs testified about her duties as a forensic nurse examiner and that her

examination of a victim of domestic violence is relevant to the diagnosis and treatment of her

patient. Specifically, Hobbs engaged in the following exchange upon direct examination by

the State:

[Hobbs]: A forensic nurse examiner is staffed through the emergency

department as well as on call, and we help the emergency room nurses until

we’re consulted by a nurse or a physician to see a patient for a forensic

medical exam.

[The State]: What is a forensic medical exam?

[Hobbs]: A forensic medical exam is for patients that have been in trauma,

assaulted, sexual assault, physical assault, child abuse, domestic violence. And

we see them to take a thorough history and do a thorough physical exam, as

well as document injuries, that which may include photography, collect

evidence.

****

[The State]: Is a domestic related assault relevant to the diagnosis and

treatment of the patient?

[Hobbs]: Yes, it is important to know whether a patient has a safe place to

go home. There’s also psychological and emotional issues that domestic

violence patients face that are different than some of our other patients, and we

like to try to address those while we have the opportunity in the emergency

room.

[The State]: Okay, is a detailed knowledge of the incident that caused the

patient to come to the hospital important for diagnosing and treating a patient?

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[Hobbs]: Yes.

Tr. pp. 78, 83.

With respect to the victim in the instant matter, Hobbs testified as follows:

Well, first we asked her how she obtained her injuries, and that’s when I talked

to her about what services I can offer with the forensic medical examination,

collecting forensic evidence, taking photographs, and doing a thorough history

and physical of what happened that evening, and she agreed. And so I then

talked to her in-depth … asking her about the incidents that happened, and why

she was here, and then based on her answers, I did a thorough physical exam

and documented the injuries on the chart and as well as photo documentation.

Tr. p. 85. Hobbs further testified that during this examination, the victim told her about how

she had sustained the injury to her head. Specifically, Hobbs testified that the victim told her

that “her husband had come home and was angry, and had tried to hit her over the head twice

with a child’s bicycle, and she had tried to defend herself, and then went to the neighbor’s

house and called the police.” Tr. p. 103.

In Nash, we concluded that the victim’s statement to the emergency room nurse

identifying the defendant as her attacker was pertinent to the nurse’s examination of the

victim and the emergency room staff’s course of treatment of the victim. 754 N.E.2d at

1025. Likewise, in Perry, we concluded that the victim’s statement to the emergency room

nurse identifying the defendant as her attacker was pertinent to the diagnosis and treatment of

the victim’s injuries. 956 N.E.2d at 50.

In the instant matter, similar to the conclusions in Nash and Perry, we conclude that

the victim’s statements to Hobbs were pertinent to the diagnosis and treatment of the victim’s

injuries. The victim’s statements were also pertinent to recommendations by the emergency

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room staff for potential future psychological treatment, as well as to the determination as to

whether the victim had a safe place to go upon her release from the hospital. As such, we

conclude that the victim’s statements to Hobbs were not inadmissible hearsay because the

statements fell under the “medical diagnosis exception” to the hearsay rule set forth in Rule

803(4).

CONCLUSION

In sum, we conclude that the trial court acted within its discretion in allowing the jury

to begin deliberations in the evening hours, and that the trial court acted within its discretion

in finding M.N.F. competent to testify at trial. We also conclude that the trial court acted

within its discretion in limiting the scope of Naw Htoo’s testimony and in allowing Hobbs to

testify about statements made to her by the victim during Hobbs’s examination of the victim

in the emergency room. Accordingly, we affirm the judgment of the trial court.

The judgment of the trial court is affirmed.

NAJAM, J., and FRIEDLANDER, J., concur.

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