Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1347 | January 23, 2018 Page 1 of 16

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.

ATTORNEY FOR APPELLANT

Teresa M. Meyers

Osceola, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony L. Gilliam,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 23, 2018

Court of Appeals Case No.

20A05-1706-CR-1347

Appeal from the Elkhart Superior 

Court

The Honorable Teresa L. Cataldo, 

Judge

Trial Court Cause No.

20D03-1508-F1-4

Bailey, Judge.
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Case Summary

[1] Anthony Gilliam (“Gilliam”) appeals his convictions of two counts of child 

molesting, as Level 1 felonies.1 

[2] We affirm.

Issues

[3] Gilliam raises two issues on appeal, namely:

I. Whether the trial court abused its discretion when it 

admitted into evidence the video recording of the childvictim’s forensic interview.

II. Whether the State presented sufficient evidence to sustain 

Gilliam’s two Level 1 felony convictions of child 

molesting.

Facts and Procedural History

[4] In early 2015, Keisha Shorter (“Shorter”) and her several children, including 

then-nine-year-old M.S., lived in a two-story home on Aspenwald Street in 

Elkhart. Several adult males, including Gilliam, also lived in the home. 

Gilliam was a long-time friend of Shorter. M.S. referred to Gilliam as “Tony.” 

Tr. Vol. III at 104.

 

1

 Ind. Code § 35-42-4-3(a)(1); I.C. § 35-31.5-2-221.5(2).
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[5] Gilliam moved into Shorter’s home in early February of 2015, and remained 

there for a few months until Shorter demanded that Gilliam leave the home 

after learning from her daughters M.S. and E.L. of incidents of Gilliam 

inappropriately touching M.S. Shorter contacted her case worker and the 

police to notify them of the incidents. On May 1, 2015, shortly after the 

incidents, M.S. and E.L. both participated in separate forensic interviews 

concerning the incidents involving M.S. and Gilliam. Shorter then spoke with 

Lieutenant James Anderson (“Lt. Anderson”) of the Elkhart police regarding 

the incidents. The police investigation included locating a photograph of 

Gilliam from the Bureau of Motor Vehicles, which Shorter identified.

[6] On August 4, 2015, the State charged Gilliam with two counts of Level 1 felony 

child molesting, each alleging that Gilliam performed or submitted to sexual 

intercourse or other sexual conduct with M.S. The State subsequently amended 

the information, on both counts, to allege only that Gilliam performed or 

submitted to other sexual conduct with M.S., deleting the sexual intercourse 

allegation. In a pre-trial conference held on April 27, 2017, the State informed 

the court and defense counsel that the State may need to conduct a protected 

person hearing during trial, as M.S. was still under the age of fourteen. Defense 

counsel did not raise an objection at that time. 

[7] Gilliam’s jury trial began on May 8, 2017. During the presentation of the 

State’s case-in-chief, M.S.—who was eleven years old at the time—testified 

reluctantly. She testified that “something happened” with Tony when he came 

into her bedroom and laid down “right next to” her. Tr. Vol. III at 105-108. 
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She testified that “a grown-up boy” who lived with her on Aspenwald Street 

touched her “on a part that [sic] nobody should touch a girl.” Id. at 121-22. 

She testified that she did not “want to tell” who touched her. Id. However, she 

testified that, when she was in the boys’ bedroom with no one other than 

Gilliam, a “grown-up boy” touched her “in a part that [sic] girls shouldn’t be 

touched.” Id. at 125. M.S. said she did not remember how she and Gilliam got 

from her bedroom to the boys’ bedroom that night. 

[8] M.S. testified that, soon after the incidents, she told her mother and sister, E.L., 

about it, but that she did not remember what she told them. She stated that her 

mother “kick[ed]” Gilliam out of the house after M.S. told her mother about 

the incidents. Id. at 114. M.S. testified that she also remembered discussing the 

incidents soon thereafter with a “grown-up girl” in a room “with a couch and 

some chairs,” but she stated that she did not remember what they talked about. 

Id. at 117-18. M.S. testified that she would have remembered the incident 

better closer to the time when it happened, i.e., approximately two years prior 

to the trial. Gilliam then had the opportunity to, and briefly did, cross-examine 

M.S.

[9] Following M.S.’s testimony, the parties discussed the video from the forensic 

interview of M.S., and the State requested a protected person hearing, pursuant 

to the Protected Person Statute (“PPS”), Indiana Code Section 35-37-4-6. The 

trial court, outside the presence of the jury, held a PPS hearing over Gilliam’s 

objections, and heard testimony from M.S. and Julie Reed (“Reed”), the 

forensic interviewer who interviewed M.S. about the incidents with Gilliam. At 
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the PPS hearing, M.S. testified under oath that she agreed to be truthful and 

that she understood what it meant to be truthful. She testified that she talked to 

a “grown-up lady” in a room with a blue couch about “what happened with

Tony.” Id. at 136. She testified that she was “correct and truthful” when she 

went to the Child Advocacy Center2 and spoke with the lady there. Id. She 

also testified that it was “easier to remember things” during the interview, 

which was closer in time to the incidents with Gilliam, than at trial two years 

later. Id. And M.S. testified that there were some things she did not remember 

now that she might have told the lady in the interview. Id. at 137. 

[10] Gilliam was given the opportunity to cross-examine M.S. at the PPS hearing 

but declined to do so. However, defense counsel argued that the video of the 

interview was inadmissible under the PPS, Indiana Rule of Evidence 403, and 

the rule against hearsay. The State argued the video was admissible under the 

PPS and as a recorded recollection exception to the hearsay rule. The trial 

court found that the video was admissible under the PPS and that its probative 

value outweighed any prejudice to Gilliam. The court offered Gilliam the 

opportunity to have a transcript of the PPS hearing admitted into evidence, 

pursuant to the statute, but Gilliam declined. Reed then testified before the 

jury, over defense objections, regarding her forensic interview with M.S. on 

May 1, 2015, and the trial court admitted the video of the forensic interview 

 

2

 That center is located in the “CAPS”—defined by Reed as “Child and Parent Services”—building in 

Elkhart. Id. at 182, 185-86, 224. Therefore, throughout the trial, the parties and witnesses state that M.S.’s 

forensic interview took place “at CAPS.” See, e.g., id. at 136.
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into evidence. State’s Ex. 1. The video was then played for the jury, following 

the trial court’s admonishment to the jury concerning the video.

[11] On May 10, the jury found Gilliam guilty on both of the amended counts of 

child molesting. On May 25, the trial court sentenced Gilliam to concurrent 

terms of thirty-five years’ imprisonment, with five years of each sentence 

suspended to probation. Gilliam now appeals his convictions.

Discussion and Decision

Admissibility of Recording of Forensic Interview of M.S.

Standard of Review

[12] Gilliam contends that the trial court erred in admitting M.S.’s video-recorded

interview into evidence when M.S. also provided live testimony at trial. 

We review a trial court’s evidentiary rulings for an abuse of 

discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005). 

An abuse of discretion occurs if the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before 

the court or if it misinterprets the law. Carpenter v. State, 786 

N.E.2d 696, 703 (Ind. 2003). Our supreme court also has 

observed that the Protected Person Statute (“PPS”), under which 

the trial court here admitted the videotape, “impinges upon the 

ordinary evidentiary regime such that we believe a trial court's 

responsibilities thereunder carry with them ... a special level of 

judicial responsibility.” Id.

Cox v. State, 937 N.E.2d 874, 876 (Ind. Ct. App. 2010) (internal quotation and 

citation omitted), trans. denied.
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Hearsay Exceptions

[13] The PPS states, in relevant part:

(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 [certain 

enumerated offenses, including child molesting] if the 

requirements of subsection (e) are met.

(e) A statement or videotape described in subsection (d) is 

admissible in evidence in a criminal action listed in subsection (a) 

or (b) if, after notice to the defendant of a hearing and of the 

defendant’s right to be present, all of the following conditions are 

met:

(1) The court finds, in a hearing:

(A) conducted outside the presence of the jury; and

(B) attended by the protected person;

that the time, content, and circumstances of the statement 

or videotape provide sufficient indications of reliability.
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(2) The protected person:

(A) testifies at the trial; or

(B) is found by the court to be unavailable as a 

witness for one (1) of the following reasons:

(i) From the testimony of a psychiatrist, 

physician, or psychologist, and other 

evidence, if any, the court finds that the 

protected person’s testifying in the physical 

presence of the defendant will cause the 

protected person to suffer serious emotional 

distress such that the protected person cannot 

reasonably communicate.

(ii) The protected person cannot participate in 

the trial for medical reasons.

(iii) The court has determined that the 

protected person is incapable of 

understanding the nature and obligation of an 

oath.

(f) If a protected person is unavailable to testify at the trial for a 

reason listed in subsection (e)(2)(B), a statement or videotape 

may be admitted in evidence under this section only if the 

protected person was available for cross-examination:

(1) at the hearing described in subsection (e)(1); or

(2) when the statement or videotape was made.
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I.C. § 35-37-4-6. Thus, the PPS provides an exception to the rule against 

hearsay by allowing, under the statutorily-specified conditions, the admission 

into evidence of an out-of-court statement for the truth of the matter stated.

[14] Since M.S. was a child younger than age fourteen—both at the time of the 

crime and at the time of trial—she is a “protected person” under the statute. 

I.C. § 35-37-4-6(c)(1). And the crime of child molesting is listed as an offense 

covered by the statute. I.C. § 35-37-4-6(a)(1); I.C. § 35-42-4-3. Therefore, the 

PPS is applicable to this case.3

[15] However, Gilliam maintains that the video recording of M.S.’s interview was 

not admissible under the PPS because our Supreme Court has interpreted the 

statute as inapplicable when the protected person testifies live at trial.

4

 In 

support, he cites Tyler v. State, 903 N.E.2d 463 (Ind. 2009), where our Supreme 

Court acknowledged that the PPS

on its face provides that prior videotaped testimony may be 

admitted even if the protected person testifies at the trial.

Specifically, the statute provides that a protected person’s 

statement or videotape is admissible if that person testifies at trial 

as long as the court finds that the statement provides “sufficient 

 

3

 Gilliam does not contend that he was not given proper notice under the statute, that the court failed to give 

the proper jury instruction required by the statute, or that the PPS hearing failed to follow statutorily-required 

procedures. Id.

4

 Gilliam does not challenge the trial court’s finding that the video-recording of M.S.’s interview provides

sufficient indications of reliability pursuant to the PPS.
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indications of reliability” and the defendant is given notice. I.C. 

§ 35–37–4–6(e).

Id. at 467. Nevertheless, the supreme court “exercise[d] its supervisory powers” 

to hold that, if both the recorded and the live testimonies are consistent and 

otherwise admissible,

testimony of a protected person may be presented in open court 

or by prerecorded statement through the PPS, but not both 

except as authorized under the Rules of Evidence. If the person 

is able to testify live without serious emotional distress such that 

the protected person cannot reasonably communicate, that is 

clearly preferable. 

Id. The court noted that “consistent” testimony is cumulative and, therefore, 

has the potential to cause unfair prejudice. Id. 

[16] Here, M.S.’s recorded and live testimonies are not “consistent” within the 

meaning of Tyler because they are not cumulative. M.S.’s video-taped 

testimony provided key additional information that was missing from her live 

testimony; i.e., testimony that Gilliam committed “other sexual conduct” by 

“penetration of the sex organ ... of a person by an object.” I.C. § 35-42-4-

3(a)(1); I.C. § 35-31.5-2-221.5(2). See A.R.M. v. State, 968 N.E.2d 820, 826 (Ind. 

Ct. App. 2012) (video-taped interview regarding alleged child molestation 

admissible under PPS where child-victim also testified live at trial but could not 

recall the incident); cf. Cox, 937 N.E.2d at 876 (video of interview not made 

under oath found not admissible under PPS where child testified at trial only 

that he understood the difference between truth and a lie; thus, there was no 
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sworn statement regarding the truth of the video, which was the only evidence 

regarding the crime). 

[17] Moreover, even if the video-taped interview was inadmissible under the PPS as 

interpreted by Tyler, it was nevertheless admissible under Indiana Rule of 

Evidence 803(5) as a recorded recollection. Tyler, 903 N.E.2d at 467 (noting 

prerecorded statements inadmissible through PPS may nevertheless be 

admissible under Rules of Evidence). A record that:

(A) is on a matter the witness once knew about but now cannot 

recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was 

fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge

is a recorded recollection not excluded by the rule against hearsay. Ind. 

Evidence Rule 803(5). However, in order for such a record to be admissible 

under that hearsay exception, “the witness must be able to ‘vouch for the 

accuracy of the prior [statement].’” Kubsch v. State, 866 N.E.2d 726, 734 (Ind. 

2007) (quoting Gee v. State, 389 N.E.2d 303, 309 (Ind. 1979)); see also Williams v. 

State, 698 N.E.2d 848, 850 n.4 (Ind. Ct. App. 1998) (noting that, “before a 

statement can be admitted under the recorded recollection hearsay exception, 

certain foundational requirements must be met, including some

acknowledgment that the statement was accurate when it was made”), trans. 

denied. 
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[18] Here, M.S. testified under oath that she knew about the incidents involving 

Gilliam touching her “in a part that [sic] girls shouldn’t be touched,” Tr. Vol. 

III at 125, and that she truthfully told the forensic interviewer about it soon 

after the incidents. She also testified that she remembered the incidents better at 

the time of the recorded interview than at the time of trial. And she testified 

that there were some things she did not remember at the time of trial that she 

may have told Reed at the interview. That is a sufficient foundation to admit 

M.S.’s recorded interview under the recorded recollection exception to the 

hearsay requirement. See Williams, 698 N.E.2d at 850-51 & n.4 (noting child’s 

videotaped interview was admissible into evidence under recorded recollection 

exception to hearsay rule). 

Right to Confront Witness

[19] Gilliam also maintains that the admission of the video of M.S.’s forensic 

interview violated his “constitutional right to confrontation.”5 Appellant’s Br. 

at 4. Both the federal and state constitutions provide for the right of a criminal 

defendant to be confronted with the witnesses against him. U.S. Const., 

amend. VI; Ind. Const. art. 1, § 13. Thus, “[t]estimonial statements of 

witnesses absent from trial [are admissible] only where the declarant is 

unavailable, and only where the defendant has had a prior opportunity to crossexamine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). However, “when

 

5

 Gilliam does not state whether he raises his confrontation claim under the federal constitution or the state 

constitution. 
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the declarant appears for cross-examination at trial, the Confrontation Clause 

places no constraints at all on the use of his prior testimonial statements.” Id. at 

59 n.9. 

[20] Here, M.S. testified at trial and was subject to cross-examination by Gilliam. 

M.S. also testified and was available for cross-examination during the in-trial 

PPS hearing, although Gilliam declined to exercise his right to cross-examine at 

that time. Thus, Gilliam was provided the opportunity to confront M.S. And, 

contrary to Gilliam’s assertions, the confrontation clause does not require an 

opportunity to cross-examine at the time of the prior testimonial statement—

here, the forensic interview—where the declarant testified at the PPS hearing or 

trial and the defendant had the opportunity to cross-examine the declarant. 

Perryman v. State, 80 N.E.3d 234, 245 (Ind. Ct. App. 2017); see also Mishler v. 

State, 894 N.E.2d 1095, 1102 (Ind. Ct. App. 2008) (“[A]s long as the declarant 

testifies, a defendant’s right to confront witnesses against him is not violated 

even if the declarant is unable to recall the events in question.”). This is true 

whether the prior testimony is admitted under the PPS, Perryman, 80 N.E.2d at 

245, or under the recorded recollection exception to the hearsay rule, Williams, 

698 N.E.2d at 851. 

[21] The trial court did not abuse its discretion by admitting M.S.’s video-recorded 

forensic interview into evidence.
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Sufficiency of the Evidence

[22] Gilliam challenges the sufficiency of the evidence to support his convictions. 

Our standard of review of the sufficiency of the evidence is well-settled:

When reviewing the sufficiency of the evidence needed to 

support a criminal conviction, we neither reweigh evidence nor 

judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 

(Ind. 2009). “We consider only the evidence supporting the 

judgment and any reasonable inferences that can be drawn from 

such evidence.” Id. We will affirm if there is substantial 

evidence of probative value such that a reasonable trier of fact 

could have concluded the defendant was guilty beyond a 

reasonable doubt. Id.

Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. 

Moreover, “[a] conviction may be based on circumstantial evidence alone so 

long as there are reasonable inferences enabling the factfinder to find the 

defendant guilty beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d 

385, 388 (Ind. Ct. App. 2012) (citation omitted), trans. denied.

[23] To support Gilliam’s convictions of child molesting, as Level 1 felonies, the 

State was required to prove that Gilliam was over twenty-one years of age and, 

with a child under age fourteen, knowingly or intentionally engaged in “other 

sexual conduct” by committing “an act involving ... the penetration of the sex 

organ or anus of a person by an object.” I.C. § 35-42-4-3(a)(1); I.C. § 35-31.5-2-

221.5(2). The penetration element may be proven by evidence of any 

penetration of the female sex organ, including external genitalia, and proof of 

penetration of the vagina is not required. See, e.g., Morales v. State, 19 N.E.3d 
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292, 298 (Ind. Ct. App. 2014), trans. denied. “To sustain a conviction for child 

molesting ..., proof of the ‘slightest penetration’ of the female sex organ ... is 

sufficient,” and penetration may be “inferred from circumstantial evidence.”

Mastin v. State, 966 N.E.2d 197, 202 (Ind. Ct. App. 2012) (quoting Dinger v. 

State, 540 N.E.2d 587, 590 (Ind. 1990)), trans. denied. Moreover, a finger is “an 

object” within the meaning of Indiana Code Section 35-31.5-2-221.5(2). See 

Gasper v. State, 833 N.E.2d 1036, 1044 (Ind. Ct. App. 2005) (citing Stewart v. 

State, 555 N.E.2d 121, 126 (Ind. 1990)), trans. denied. 

[24] Here, it is undisputed that, at the time of the incidents, Gilliam was over age 

twenty-one and M.S. was under age fourteen. Furthermore, M.S. testified at 

trial that, when she was in the boys’ bedroom with no one other than Gilliam, a 

“grown-up boy” touched her “in a part that [sic] girls shouldn’t be touched.” 

Id. at 125. And she stated in the forensic interview that, while she was living on 

Aspenwald Street, “Tony” twice in the same day put his hand in her pants and 

inside her underwear, touched her “inside the crack,” and moved his fingers. 

State’s Ex. 1 at 16:59 - 17:08 and 24:25 - 24:32. M.S.’s pre-recorded statement 

and live testimony at trial were sufficient evidence to sustain Gilliam’s 

convictions. See Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct. App. 

2015) (quoting Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001)) (“‘[a] molested 

child’s uncorroborated testimony is sufficient to sustain a conviction.’”); Stetler 

v. State, 972 N.E.2d 404, 407 (Ind. Ct. App. 2012) (noting that a child witness 

does not have to give a “detailed anatomical description of penetration;” it is 
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sufficient if the victim’s “limited sexual vocabulary” described the act of 

penetration), trans. denied. 

Conclusion

[25] The trial court did not abuse its discretion when it admitted M.S.’s videorecorded forensic interview into evidence, as it was admissible both under the 

PPS and as a recorded recollection exception to the hearsay rule. And the State 

provided sufficient evidence to support Gilliam’s convictions of child molesting.

[26] Affirmed.

Kirsch, J., and Pyle, J., concur.