Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 1 of 5 

### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Matthew D. Anglemeyer Marion County Public Defender Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

P.A., A

ppellan t ,
v. 

### STATE OF INDIANA, A

ppellee. January 29, 2015 Court of Appeals Cause No. 49A02-140 7 -JV-450 Appeal from the Marion Superior Court, Juvenile Division Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-1308-JD-002386


### Friedlander, Judge.

[1] P.A. appeals his delinquency true findin gs for acts that would constitute two counts of class B felony child molesting if committed by an adult. He presents one issue for review, which we restate as follows: Did the juvenile courtCourt of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 2 of 5 commit fundamental error when it allowed the State to make an offer to prove regarding the substance of excluded evidence?

[2] We affirm.

[3] P.A. and A.B. are paternal cousins. In the summer of 2012, P.A. stayed the night at A.B.’s house for his first and on ly time. P.A. and A.B. were sixteen and eleven years old, respectively. The two, along with one of A.B.’s friends, eventually relaxed on the living room floor while they talked and watched television together. After the friend fe ll asleep, P.A. pulled down A.B.’s pajama bottoms and placed his penis in her vagina and then in her an us. A.B. did not react to her older cousin’s actions. When he was don e, P.A. pulled up A.B.’s pajama bottoms and turned over. The ne xt morning he asked if she was okay. A.B. testified that she did not report the incident immediately because she was afraid she would get in trouble. She disclosed the abuse about a year later during a conversation with her mother and sisters ab out “being safe around boys”. Transcript at 49.

[4] The police were called, and A.B.’s disc losures were investigated by Detective Justin Hickman of the Indi anapolis Metropolitan Police Department. After taking a report from A.B., Detective Hi ckman met with P.A. and his mother on August 19, 2013. During a video record ed interview, P.A. admitted to having had vaginal and anal intercourse with A.B. He was taken into custody, and the State filed a petition alleging P.A. wa s delinquent for having committed actsCourt of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 3 of 5 that would be three counts of child molest ing, two class B felonies and one class C felony, if committed by an adult.

[5] A.B. and her mother testified at the de nial hearing. Detective Hickman was then called by the State. P.A. objecte d to the admission of the videotaped statement due to procedural irregularities. Specifically, after securing signatures on a juvenile waiver of rights form , Detective Hickman said, “mom do you want to come back out to the waiting room with me right now to wait with grandma”, and P.A.’s mother left. Id . at 79. P.A. claimed this was a denial of his right to have his mother present du ring the custodial interrogation. The juvenile court agreed and excluded the videotaped statement from evidence.

[6] The State requested that the court view the initial portion of the video and reconsider its ruling. After viewing the portion of the video up to and including when the mother left, the court reaffirm ed its ruling. Immediately thereafter, the State indicated its desire to make an offer to prove, and P.A. did not object. The State proceeded to detail what the video would reflect if it were permitted into evidence. This includ ed P.A.’s eventual confe ssion as to each of the delinquency allegations.

[7] At the conclusion of the fact-finding h earing, the court ente red true findings with respect to the two class B felony allegations and a not true finding with respect to the class C felony allegation. 1 P.A. now appeals.

1 The evidence for this allegation would have come exclusively from P.A.’s statement, which was not admitted into evidence.Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 4 of 5 [8] P.A. asserts the novel argument that the trial court committed fundamental error by allowing the State to make an offer to prove regarding his videotaped statement. He claims there was no legally justifiable reason to make the offer of proof 2 and the State must have done so to influence the court in a close case.

[9] It is well established that fundamental error is “an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so pr ejudicial to the defendant’s rights as to ‘make a fair trial impossible.’” Ryan v. State , 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State , 762 N.E.2d 748, 756 (Ind. 2002)). “[F]undamental error is a daunting standard that applies ‘only in egregious circumstances.’” Knapp v. State , 9 N.E.3d 1274, 1281 (Ind. 2014) (quoting Brown v. State , 799 N.E.2d 1064, 1068 (Ind. 2003)), cert. denied

.

[10] P.A. has failed to establis h fundamental error. First, he makes absolutely no effort on appeal to establish that the videotape was in fact inadmissible under Indiana law. His argument ju st assumes this to be so. See, e.g. Appellant’s Brief at 10 (“[t]he State put inadmi ssible evidence in front of the trier of fact using a procedural process to which it was not en titled to bolster a close case, thereby tipping the balance in favor of a true find ing”). Moreover, P. A.’s argument that he was prejudiced by the alleged erro r belies the longstanding judicialtemperance presumption in which “[w]e pr esume that the trial judge is aware of

2 P.A. contends that the State had no right to appeal the suppression ruling and, moreover, that the details of his statement would be irrelevant when reviewing the propriety of the ruling, which was based on procedural irregularities.Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 5 of 5 and knows the law and considers only evid ence properly before him or her in reaching a decision.” Hinesley v. State , 999 N.E.2d 975, 987 (Ind. Ct. App. 2014), trans. denied

. See also Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012) (“[t]he risk of prejudice is quelled when the evidence is sole ly before the trial court”).

[11] The juvenile court ruled that the videot aped statement was inadmissible. Upon urging from the State, the court reconsidered its ruli ng but once again excluded the evidence. Regardless of the purpose be hind the State’s offe r to prove, it is evident from the record befo re us that the juvenile co urt did not consider P.A.’s statement when making its findings. We reject P.A.’s groundless invitation to presume otherwise and to impugn the integrity of the juvenile court. Accordingly, even assuming that the evidence was inadmissible and the offer to prove was improper, P.A. has not establ ished prejudice, let alone error “so prejudicial to [his] rights as to ‘make a fair trial impossible.’” Ryan v. State , 9 N.E.3d at 668 (quoting Benson v. State , 762 N.E.2d at 756).

Judgment affirmed.
Kirsch, J., and Crone, J., concur.