Court of Appeals of Indiana | Opinion | 90A02-1409-CR-664 | July 17, 2015 Page 1 of 24

ATTORNEY FOR APPELLANT

Joseph M. Johnson

Decatur, Indiana

Mark A. Thoma

Leonard Hammond Thoma & Terrill

Fort Wayne, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

David C. Ennik,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 17, 2015

Court of Appeals Case No.

90A02-1409-CR-664

Appeal from the Wells Circuit Court.

The Honorable Kenton W. Kiracofe, 

Judge.

Cause Nos. 90C01-1211-FA-3 & 

90C01-1303-FC-5

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, David C. Ennik (Ennik), appeals his conviction for one 

Count of child molesting as a Class A felony, Ind. Code § 35-42-4-3(a)(1) 

(2012); and two Counts of child molesting as Class C felonies, I.C. § 35-42-4-

3(b) (2012).

[2] We affirm.

ISSUES

[3] Ennik raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by denying Ennik’s motion for 

severance; and

(2) Whether the trial court abused its discretion by admitting hearsay evidence.

FACTS AND PROCEDURAL HISTORY1

[4] T.W. (Father) and J.N. (Mother) are the biological parents of two daughters: 

K.N., born December 14, 2006, and M.W., born February 5, 2008. For the first 

few years of K.N.’s and M.W.’s lives, Mother was the custodial parent. 

 

1

 In accordance with the revised Administrative Rule 9(G), certain evidence was submitted to our court 

which is declared confidential and must be excluded from public access. See Ind. Administrative Rule 

9(G)(2). Despite the fact that the parties have only partially complied with the Administrative Rule, we have 

endeavored to maintain confidentiality on appeal. However, as a number of facts derived from the 

confidential records are “essential to the resolution of litigation[,]” we have included confidential information 

in this decision only to the extent necessary to resolve this appeal. Admin. R. 9(G)(7)(a)(ii)(c). 
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However, as both Father and Mother have frequently rotated in and out of 

jail/prison, K.N. and M.W. have had a very unstable childhood.

[5] At some point in 2008, Mother befriended Ennik. Mother was overwhelmed 

with two small children, so Ennik—who lived with his mother in Bluffton, 

Wells County, Indiana—offered to temporarily care for M.W. Ennik and his 

mother cared for and supported M.W. for approximately the first year of her 

life. Ennik also regularly babysat and provided financial support for K.N.

[6] In the fall of 2010, following an altercation between Mother and her thenboyfriend, the Department of Child Services (DCS) removed K.N. and M.W. 

from Mother’s custody and, at Mother’s request, placed them with Ennik. In 

November of 2010, Father was awarded custody of both girls. Shortly after 

obtaining custody, Father’s wife, K.S., noticed that the girls were acting out in a 

sexualized manner, such as by looking at and inserting their fingers inside each 

other’s private areas. K.S. informed Father of her observations. After 

consulting with family members as to whether such behavior was normal, 

Father believed that the girls were just experiencing a natural phase of curiosity. 

K.N. and M.W. also complained of painful urination and vaginal itching, so 

Father took them to a doctor who advised that Father should discontinue their 

bubble baths and use cream to treat their yeast infections.

[7] For a short period of time after Father was granted custody, Ennik did not have 

any contact with K.N. and M.W. However, at some point, Father had a 

discussion with Ennik and Ennik’s mother and, after observing “how much 
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[K.N. and M.W.] loved [Ennik’s] family,” Father allowed Ennik, then age 

forty-seven, to resume his babysitting duties. (Tr. p. 497). For the next year, 

Father explained that Ennik babysat K.N. and M.W. approximately “every 

other weekend” for “[t]he whole weekend usually.” (Tr. p. 484). Although 

Ennik sometimes babysat K.N. and M.W. inside his mother’s house, at other 

times, he and the girls either stayed in his camper, which was parked in his 

mother’s driveway, or he took them camping at his mother’s other property in 

Ossian, Indiana. The last time Ennik babysat K.N. and M.W. was for a week 

in March of 2012 while Father and K.S. moved into their new home in 

Huntington, Indiana.

[8] In November of 2011, E.R.—another friend of Ennik’s—moved to Bluffton 

with her husband and four children. Because their house was not yet ready, 

E.R. and her family had to live in a hotel for a brief period of time. However, 

in order for her oldest child, B.P.W., born December 15, 2004, to attend school, 

E.R. arranged for B.P.W. to live with Ennik for a few weeks. E.R. and her 

husband both worked second shift, so even after E.R.’s family moved into their 

new house, Ennik continued to babysit B.P.W. and her siblings through 

February of 2012. During the time that Ennik babysat B.P.W., K.N. and M.W. 

were also present on several occasions, and all three girls would sleep in the 

camper with Ennik. 

[9] In December of 2011, Mother was incarcerated, and she was released on

September 11, 2012. Immediately upon her release, Mother began exercising 

parenting time with five-year-old K.N. and four-year-old M.W. On September 
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22, 2012, during her weekend parenting time, Mother was bathing K.N. and 

M.W., and she explained to them that only she, Father, or K.S. should ever 

wash the girls. K.N. responded that Ennik “did” and when Mother inquired 

further, “K.N. just pointed to her private and held two fingers up and wiggled 

them.” (Tr. pp. 371-72). When Mother questioned M.W., K.N. whispered to 

M.W. that it was okay to share the “secret” with Mother. (Tr. p. 371). Mother 

immediately contacted the police.

[10] On September 23, 2012, the Wells County DCS office commenced an 

investigation. DCS Family Case Manager Wendeline Garrett (FCM Garrett)

interviewed K.N. and M.W. individually using the “Finding Words” 

methodology. (Tr. p. 152). Detective Sergeant Steven Cale (Detective Cale) of 

the Bluffton Police Department was present during the interviews, which were 

video recorded. 

[11] During the interview with K.N., FCM Garrett asked whether she had ever 

received “a touch that somebody told you not to tell about.” (Defendant’s Exh. 

C, p. 18). K.N. answered affirmatively, stating that it was “somebody my mom 

knows. . . . His name is Dave”—i.e., Ennik. (Defendant’s Exh. C, p. 19). K.N. 

then repeatedly circled the vaginal area on an anatomical diagram to indicate 

why she did not like going to Ennik’s. She stated that he had told her not to tell 

anyone that he had touched her there. K.N. also drew two “[f]ingers” on the 

diagram to show what part of Ennik’s body had touched her, and she answered 

that he had touched her “[u]nder” her clothes and “[u]nder” her underwear, 

and his fingers were on the “[i]nside.” (Defendant’s Exh. C, pp. 22, 24-25, 27). 
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K.N. said that the touching occurred at Ennik’s house, where he lives with his 

mom, and that she had been playing in the living room when Ennik “said come 

here.” (Defendant’s Exh. C, p. 23). K.N. added that “[h]e did it to my sister, 

too.” (Defendant’s Exh. C, p. 24). After answering that the touching had 

occurred “[m]ore” than one time, K.N. held up five fingers, then one finger, 

then ten fingers. (Defendant’s Exh. C, p. 26). K.N. explained that the touching 

“hurt” and denied that Ennik had ever asked her to touch any part of his body. 

(Defendant’s Exh. C, p. 29).

[12] On the other hand, M.W. initially denied that anyone had ever touched her in a 

way that she did not like. When specifically asked about Ennik, M.W. 

explained that he was their babysitter, and she liked going to his house because 

it was “[f]un.” (Defendant’s Exh. B, p. 16). M.W. stated that Ennik would 

help her take baths by washing her hair, but she washed her own body. Later in 

the interview, FCM Garrett informed M.W. that “[K.N.] talked to [Detective 

Cale] and I about a touch that she got on her body that she did not like, that it 

hurt. . . . [D]id she tell you about that?” (Defendant’s Exh. B, p. 18). M.W. 

nodded her head yes and answered that “Dave”—i.e., Ennik—had been the one 

who touched K.N. (Defendant’s Exh. B, p. 19). M.W. then pointed to the 

vagina on an anatomical diagram to indicate where Ennik had touched K.N. 

When asked whether anyone had ever touched her there, M.W. nodded her 

head and answered that “Dave” had done so. (Defendant’s Exh. B, p. 19). 

M.W. pointed to the fingers on the anatomical diagram to show what part of 

his body Ennik had used to touch her, and she answered that he touched her on 
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the “[o]utside” of her clothes and indicated that she did not like the touching. 

(Defendant’s Exh. B, p. 20).

[13] On September 26, 2012, DCS received an anonymous tip, reporting that 

B.P.W. and her three younger sisters may also have been molested by Ennik 

while he babysat them. On October 5, 2012, FCM Garrett and Detective Cale 

interviewed B.P.W. and two of her siblings. At that time, neither B.P.W. nor 

her siblings disclosed any inappropriate touching by Ennik.

[14] On October 5, 2012, a registered nurse/sexual assault nurse examiner, Joyce 

Moss (Nurse Moss), conducted forensic examinations of K.N. and M.W. at the 

Fort Wayne Sexual Assault Treatment Center. K.N. informed Nurse Moss that 

Ennik “touched [her] with [two] fingers” “on [her] skin” and “on the inside.” 

(Appellant’s App. p. 824). K.N. pointed to her own internal female sex organs 

and anal folds to indicate where Ennik touched her and explained that “he said 

don’t tell anyone.” (Appellant’s App. p. 824). K.N. also reported that “it hurt” 

and “burned when [she] peed.” (Appellant’s App. p. 824). Nurse Moss did not 

detect any physical injuries during her examination of K.N. At the start of her 

examination, M.W. identified the female genitalia as the “bottom” and referred 

to the buttocks as the “butt.” (Appellant’s App. p. 831). She then stated to 

Nurse Moss that Ennik “touched [her] bottom” on her “skin” and on the 

“inside” with his finger. (Appellant’s App. p. 831). As she explained where she 

was touched, M.W. pointed to her own vagina. M.W. added that the touching 

occurred “one time” and “it hurted.” (Appellant’s App. p. 831). Nurse Moss 

did not detect any physical injuries during M.W.’s examination. At trial, the 
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parties stipulated to the admission of Nurse Moss’ written reports, which 

included K.N.’s and M.W.’s statements. 

[15] On November 13, 2012, the State filed an Information in Cause Number 

90C01-1211-FA-000003 (Cause #003), charging Ennik with Count I, child 

molesting of K.N., a Class A felony, I.C. § 35-42-4-3(a)(1) (2012); and Count II, 

child molesting of M.W., a Class C felony, I.C. § 35-472-4-3(b) (2012).

[16] In March of 2013, E.R. noticed that B.P.W. was scratching her vagina, which 

led to “[a] mother/daughter conversation.” (Tr. p. 505). B.P.W. then disclosed 

to E.R. that she had been afraid during her first interview with DCS five 

months earlier. She claimed that she did not tell the truth about Ennik and that

he had, in fact, touched her vagina with his finger. E.R. contacted DCS, and 

on March 14, 2013, FCM Garrett and Detective Cale re-interviewed B.P.W. 

This time, B.P.W. alleged that Ennik had touched her vagina while she was 

lying in bed in his camper. On March 19, 2013, the State filed an Information 

in Cause Number 90C01-1303-FC-000005 (Cause #005), charging Ennik with 

one Count of child molesting of B.P.W., a Class C felony, I.C. § 35-42-4-3(b) 

(2012).

[17] On July 17 and 31, 2013, Dr. Amanda Mayle (Dr. Mayle), a clinical 

psychologist, met with K.N. and M.W. to assess their abilities to recount their 

allegations, understand the nature and obligation of an oath, and provide 

testimony in court. K.N. recalled that Ennik had “touched us on our bottoms, 

in the front” on one occasion while they were in the camper, and that his 
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fingers stayed on the “outside.” (Defendant’s Exh. D). On the other hand, 

M.W. stated that Ennik “touched [her] on the bottom” as she pointed to her 

vagina, while she was asleep in the camper, which caused her to wake up and 

yell. (Defendant’s Exh. D). She also stated that Ennik had touched her on top 

of her clothes, that it happened twice, and that he told her not to tell anyone. 

On August 5, 2013, Dr. Mayle filed a report in which she determined that K.N. 

demonstrated “the ability to tell the difference between the truth and a lie and 

the importance of telling the truth and understand the nature of an oath.” 

(Defendant’s Exh. D). Dr. Mayle reached the same conclusion with respect to 

M.W. At trial, Dr. Mayle’s written reports, which included the detailed 

statements of K.N. and M.W., were admitted pursuant to the parties’ 

stipulation.

[18] On January 24, 2014, the State filed a Motion for Joinder of Offenses in Causes

#003 and #005. On February 7 and 12, 2014, Ennik filed objections to the 

State’s motion for joinder in Cause #005 and Cause #003, respectively. 

Following a February 12, 2014 hearing, on February 27, 2014, the trial court 

issued an Order granting the State’s motion for joinder. In particular, the trial 

court found that “the nature of the offenses are of the same or similar character, 

[and] they are also based on the same conduct and are a series of acts connected 

together, namely [Ennik] allegedly molesting the children while babysitting and 

bathing them.” (Appellant’s App. p. 133). On March 7, 2014, Ennik filed a 

Motion to Reconsider Joinder, Alternatively, Motion for Severance, which the 

trial court denied on June 17, 2014.
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[19] On June 26 and 27, 2014, the trial court held a protected person hearing—i.e., a 

child hearsay hearing—pursuant to Indiana Code section 35-37-4-6(e)(2)(B)(i)

as to K.N. and M.W.2 During the hearing, Dr. Mayle testified that, based on 

her counseling sessions with K.N. and M.W., she did not “believe [M.W.] 

would be able to[] [communicate the facts in a jury trial setting with Ennik 

present in the courtroom].” (Tr. p. 171). Likewise, Dr. Mayle explained that 

“[K.N.] would completely shut down as well.” (Tr. p. 172). In lieu of K.N. 

and M.W. testifying, the State sought to introduce the recorded interviews 

conducted by FCM Garrett and Detective Cale, as well as statements made by 

K.N. and M.W. to Mother, Nurse Moss, and Dr. Mayle. Ennik was provided 

with the opportunity to cross-examine K.N. and M.W. via closed-circuit 

television at the protected person hearing. In sharing her version of events for 

the fifth time, K.N. was initially reluctant to discuss the allegations. However, 

she eventually stated that Ennik touched her on her skin with his fingers. She 

added that she did not see him touch anyone else and that it did not hurt. 

M.W. stated under oath that Ennik touched her one time in a “[b]ad spot” on 

top of her clothes and that she saw him touch K.N. and B.P.W. while they were 

all inside the camper. (Tr. p. 198). On July 14, 2014, the trial court concluded 

that K.N. and M.W. were both unavailable to testify at trial “as testifying in the 

physical presence of [Ennik] would cause the children to suffer serious 

emotional distress such that they could not reasonably communicate.” 

 

2

 B.P.W. was not part of the protected person hearing as she was found able to—and did—testify during the 

trial.
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(Appellant’s App. p. 276). Furthermore, the trial court concluded that the 

statements made by K.N. and M.W. to Mother and their recorded interviews 

with FCM Garrett and Detective Cale could be admitted at trial.

[20] A four-day jury trial commenced on August 4, 2014. At the close of the 

evidence on August 7, 2014, the jury returned a guilty verdict on all three

Counts. On August 29, 2014, the trial court conducted a sentencing hearing

and imposed a sentence of fifty years for child molesting as a Class A felony, 

and eight years on each of the two Class C felony child molesting charges. The 

trial court ordered Ennik’s sentences to run consecutively, resulting in an

aggregate term of sixty-six years, fully executed in the Indiana Department of 

Correction.

[21] Ennik now appeals. Additional facts will be provided as necessary.3

DISCUSSION AND DECISION

I. Joinder/Severance

[22] Before trial, the trial court, over Ennik’s objection, granted the State’s motion to 

join the offenses in Cause #003 and Cause #005. Thereafter, Ennik filed a 

Motion to Reconsider Joinder, Alternatively, Motion for Severance. Ennik 

now contends that the trial court erred in granting the State’s motion for 

 

3

 Contrary to Indiana Appellate Rule 44(D)-(E), Ennik’s forty-eight page brief exceeds the thirty-page limit 

and does not include a certification that the word count is less than 14,000. We remind the parties that 

compliance with the appellate rules is essential for our court’s efficient review of cases.
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joinder, whereas the State asserts that the trial court properly denied Ennik’s 

motion for severance.

[23] Once the State’s motion for joinder was granted over Ennik’s objection, proper 

procedure required him to file a motion for severance, which he did. See I.C. § 

35-34-1-12(a) (stating that a motion for severance must be made before the start 

of trial, or before the close of evidence if based upon a ground not previously 

known, or the right to severance will be waived). Then, once his motion for 

severance was overruled, it was incumbent upon Ennik to renew his severance 

motion “before or at the close of all the evidence during trial.” I.C. § 35-34-1-

12(b). Here, because Ennik did not renew his severance motion during the trial, 

the State correctly argues that he has waived the matter for appeal. See I.C. § 

35-34-1-12(b) (“The right to severance of offenses or separate trial is waived by 

failure to renew the motion.”). Nevertheless, Ennik maintains that the causes 

were improperly joined notwithstanding his motion for severance, and he 

further contends that his objection to the joinder and subsequent motion to 

reconsider/motion for severance satisfies the statutory requirement for a 

renewal of the motion. Although we disagree and find that Ennik waived this 

issue for appeal by failing to renew his severance motion at trial, we will 

address his claim on the merits. 

[24] “The degree of deference owed to a trial court’s ruling on a motion for 

severance depends on the basis for joinder.” Pierce v. State, 29 N.E.3d 1258, 

1264 (Ind. 2015). Two or more offenses may properly be joined in the same 

information if the offenses: “(1) are of the same or similar character, even if not 
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part of a single scheme or plan; or (2) are based on the same conduct or on a 

series of acts connected together or constituting parts of a single scheme or 

plan.” I.C. § 35-34-1-9(a). Indiana Code section 35-34-1-11(a) provides that a 

defendant has “an absolute right to severance of offenses which have been 

joined ‘solely on the ground that they are of the same or similar character.’” 

Davidson v. State, 558 N.E.2d 1077, 1083 (Ind. 1990). Thus, where causes are 

joined solely under subsection 9(a)(1), i.e., same or similar character, the trial 

court has no discretion to deny a severance motion, and we review its decision 

de novo. Pierce, 29 N.E.3d at 1264. However, if the offenses have been joined

under subsection 9(a)(2) because the defendant’s underlying acts are connected 

together, we review the trial court’s ruling for an abuse of discretion. Id. In this 

case, the trial court found that joinder was appropriate because “the nature of 

the offenses are of the same or similar character” and because “they are based 

on the same conduct and are a series of acts connected together.” (Appellant’s 

App. p. 133).

[25] If two or more offenses could be joined in the same information because they 

are of the same or similar character, “the court, upon motion of the defendant, may 

order that the indictments or informations be joined for trial.” I.C. § 35-34-1-

10(a) (emphasis added). However, if two or more offenses may be joined based 

on the same conduct or a series of acts connected together or constituting a 

single scheme or plan, “the court, upon motion of the defendant or the prosecuting 

attorney, or on its own motion shall join for trial all of such indictments or 

informations unless the court, in the interests of justice, orders that one (1) or 
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more of such offenses shall be tried separately.” I.C. § 35-34-1-10(b) (emphasis 

added). In this case, Ennik maintains that although the offenses charged under 

Cause #003 and Cause #005 are of the same or similar character, they are not 

based on the same conduct or on a series of acts connected together or parts of a 

single scheme or plan. Thus, because it was the State—not Ennik—which 

requested the joinder of Causes #003 and #005, Ennik posits that joinder was 

erroneous. And because he argues that the causes were joined only because of 

similar character, Ennik also claims that he was entitled to severance as a 

matter of right.4 We disagree.

[26] “Subsection 9(a)(1) refers to the nature of the charged offenses; subsection 

9(a)(2) refers to the operative facts underlying those charges.” Pierce, 29 N.E.3d 

at 1265. “To determine whether offenses warrant joinder under subsection 

9(a)(2), we ask whether the operative facts establish a pattern of activity beyond 

mere satisfaction of the statutory elements.” Id. at 1266. Our supreme court 

has previously determined that joinder under subsection 9(a)(2) may be justified 

“‘if the State can establish that a common modus operandi linked the crimes and 

that the same motive induced that criminal behavior.’” Craig v. State, 730 

N.E.2d 1262, 1265 (Ind. 2000) (quoting Ben-Yisrayl v. State, 690 N.E.2d 1141, 

 

4

 Ennik solely claims that he was entitled to severance as a matter of right; he does not argue that the trial 

court abused its discretion in joining the causes under subsection 9(a)(2) by failing to evaluate whether 

“severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each 

offense considering: (1) the number of offenses charged; (2) the complexity of the evidence to be offered; and 

(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each 

offense.” I.C. § 35-34-1-11(a). Thus, we limit our review “to whether [Ennik’s] ‘absolute right to a severance 

of the offenses’ was violated.” Booker v. State, 790 N.E.2d 491, 494 (Ind. Ct. App. 2003), trans. denied. 
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1145 (Ind. 1997)). It is well established that offenses can “be linked by a 

defendant’s efforts to take advantage of his special relationship with the 

victims.” Pierce, 29 N.E.3d at 1266; see Turnpaugh v. State, 521 N.E.2d 690, 692 

(Ind. 1988) (finding the molestation of two “young sisters who were overnight 

guests sufficiently shows that the misconduct in each case was part of a series of 

acts committed together and part of a single scheme or plan”).

[27] In the present case, Ennik “exploited his position” as a babysitter by molesting 

three young females entrusted to his care. Pierce, 29 N.E.3d at 1266. 

Furthermore, Ennik’s “method was consistent.” Id. at 1267. While babysitting 

each of the three girls, Ennik touched their vaginas with his fingers. Each girl 

stated that on at least one occasion, the touching occurred while they were lying 

in bed in Ennik’s camper. Accordingly, the trial court correctly found that 

joinder was proper under both subsection 9(a)(1) and 9(a)(2); thus, Ennik was 

not entitled to severance as a matter of right.

II. Admission of Hearsay

A. Standard of Review

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

discretion and is afforded great deference on appeal.” Carpenter v. State, 786 

N.E.2d 696, 702 (Ind. 2003). Accordingly, our court will reverse a trial court’s 

ruling on the admission of evidence only if “it represents a manifest abuse of 

discretion that results in the denial of a fair trial.” Id. It is an abuse of 

discretion if “the trial court’s decision is clearly against the logic and effect of 
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the facts and circumstances before the court or it misinterprets the law.” Trujillo 

v. State, 806 N.E.2d 317, 323 (Ind. Ct. App. 2004).

B. Indiana’s Protected Person Statute

[29] Ennik claims that the trial court abused its discretion by admitting into evidence 

the statements of K.N. and M.W. made to Mother and to FCM Garrett and 

Detective Cale during their recorded interviews.5 A hearsay statement is one 

that “is not made by the declarant while testifying at the trial or hearing” and 

“is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence 

Rule 801(c). In general, hearsay is not admissible unless the Rules of Evidence 

specifically provide otherwise. Evid. R. 802. It is undisputed that K.N.’s and 

M.W.’s statements to Mother, as well as their recorded interviews with FCM 

Garrett and Detective Cale, constitute hearsay.

[30] “Hearsay is excluded from judicial proceedings because ‘its admission defeats 

the criminal defendant’s right to confront and cross-examine witnesses against 

him.’” Carpenter, 786 N.E.2d at 698 (quoting Williams v. State, 544 N.E.2d 161, 

162 (Ind. 1989)). Yet, hearsay evidence also “often helps the jury find the truth; 

excluding hearsay testimony can deny the jury crucial evidence.” Id. “[I]n an 

effort to balance these competing interests,” the Indiana General Assembly has 

enacted special procedures for introducing evidence that would otherwise be 

inadmissible in cases involving crimes against children. Id. at 698-99. Indiana 

 

5

 Ennik concedes that he stipulated to the admission of the hearsay statements made by K.N. and M.W. to 

Nurse Moss and Dr. Mayle; thus, he does not challenge them on appeal.
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Code section 35-37-4-6—the “Protected Person Statute”—enumerates “a

detailed set of conditions” under which a child’s hearsay statements are 

admissible. Id. at 699.

[31] The Protected Person Statute defines a “protected person,” in part, as “a child 

who is less than fourteen (14) years of age.” I.C. § 35-37-4-6(c)(1). A statement 

or videotape that is made by a protected person, and which would otherwise be 

inadmissible hearsay, may be admitted in a criminal action involving a sex 

offense if it concerns a material element of the charged offense and if the 

following conditions are satisfied:

(1) The court finds, in a hearing:

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

(B) attended by the protected person in person or by using closed 

circuit television testimony . . . ;

that the time, content, and circumstances of the statement or 

videotape provide sufficient indications of reliability.

(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.
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(iii) The court has determined that the protected person is 

incapable of understanding the nature and obligation of an 

oath.

I.C. § 35-37-4-6(d)-(e); see I.C. § 35-37-4-6(b)(2). Considerations for 

determining whether a protected person’s hearsay statements are sufficiently 

reliable include: “(1) the time and circumstances of the statement, (2) whether 

there was significant opportunity for coaching, (3) the nature of the questioning, 

(4) whether there was a motive to fabricate, (5) use of age appropriate 

terminology, and (6) spontaneity and repetition.” Surber v. State, 884 N.E.2d 

856, 862 (Ind. Ct. App. 2008), trans. denied. “There are undoubtedly many 

other factors in individual cases.” Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997). 

[32] Here, the trial court found that K.N. and M.W.—both less than fourteen years 

of age—were unavailable to testify based on Dr. Mayle’s opinion that they

would suffer serious emotional distress such that they would be unable to 

reasonably communicate. The trial court further concluded that the time, 

content, and circumstances of K.N.’s and M.W.’s statements and recorded 

interviews provided sufficient indications of reliability. Relying on Pierce and 

Carpenter, Ennik now asserts that K.N.’s and M.W.’s statements were not 

sufficiently reliable because (1) their statements “were made long after any 

alleged molestation”; (2) their statements to law enforcement were inconsistent 

with the statements made to Mother, Nurse Moss, and Dr. Mayle; (3) FCM 

Garrett’s questioning was “suggestive”; (4) there was no independent 

corroboration of their statements; and (5) “[t]here is evidence to suggest the 

‘implantation’ of a story.” (Appellant’s Br. pp. 45-46).
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[33] In Pierce, our supreme court affirmed the trial court’s reliability determination 

regarding statements a child had made to her mother and police officers, as well 

as her videotaped interview. 677 N.E.2d at 39. First, the court concluded that 

the child’s “statements were spontaneous and occurred ‘a very short time’ after 

the alleged molestation.” Id. at 45. The child’s answers were neither prompted 

nor suggested, and the child’s mother was available for cross-examination “as 

to the potential for any implantation or cleansing of [the child’s] story.” Id. 

The supreme court noted its concern with the delay of several hours between 

the alleged molestation and the child’s videotaped interview as the “passage of 

time tends to diminish spontaneity and increase the likelihood of suggestion.” 

Id. Also, the interview occurred after the child’s “potentially disorienting 

physical examination at a doctor’s office[,]” and the child’s mother “suggested 

several answers to [the child] during the interview and asked her leading 

questions.” Id. Nonetheless, the child’s statements were consistent with her 

previous spontaneous statements and were in her own words, and the Pierce 

court found “no showing that the videotape was more than cumulative of the 

statements [the child] made immediately following the incident.” Id. 

[34] Conversely, in Carpenter, our supreme court reversed the trial court’s 

determination that a child’s statements to her mother and grandfather and her 

videotaped interview with DCS were reliable. 786 N.E.2d at 696. First, there 

was “no evidence at all as to when the alleged molestation occurred.” Id. at 

703. In the charging information, the State alleged “a period exceeding six 

weeks during which the alleged molestation could have taken place[,]” but there 
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was no indication that the disclosure was made close in time to the molestation. 

Id. Second, because the child’s statements to her grandfather were made a full 

day after her disclosure to her mother and the videotaped interview, there was 

an opportunity for “implantation or cleansing.” Id. at 704. Finally, the 

Carpenter court noted that the child was unable to distinguish between the truth 

and a lie, and “there is a degree of logical inconsistency in deeming reliable the 

statements of a person who cannot distinguish truth from falsehood.” Id.

[35] In this case, there was a significant gap between the alleged molestation and 

K.N.’s initial disclosure to Mother. Similar to Carpenter, the date of the 

molestation is unclear. Because K.N. and M.W. were unable to pinpoint a 

specific timeframe except to indicate that it occurred while Ennik was 

babysitting and while they were living with Father because Mother was 

incarcerated, the State charged that the alleged molestation could have taken 

place anytime between December 1, 2010, and December 31, 2011—a span of 

thirteen months. K.N. did not report the abuse to Mother until September 22, 

2012. Thus, anywhere from nine to twenty-two months passed between the 

actual molestation and K.N.’s initial disclosure. While this substantial passage 

of time certainly casts doubt on the reliability of the girls’ statements, we are 

mindful that it is “only one factor to be considered and is not necessarily 

dispositive.” Mishler v. State, 894 N.E.2d 1095, 1100 (Ind. Ct. App. 2008), trans. 

denied. As the trial court found, “[c]ommon sense and experience have shown 

that rarely do children disclose abuse or molestation immediately after it 

occurs.” (Appellant’s App. p. 276). We also take into account the evidence 
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establishing that K.N. and M.W. both loved and trusted Ennik, and they 

consistently stated throughout the investigation that Ennik had warned them 

not to tell anyone about the touching.

[36] It is also important to consider that K.N.’s statements were made 

spontaneously in response to Mother’s instructions that only she, Father, and 

K.E. should ever bathe them. See Trujillo, 806 N.E.2d at 327 (noting the child’s 

statements were made “in response to her mother’s non-leading, non-suggestive 

inquiry about how her day had gone”). The next day, Mother took K.N. and 

M.W. to be interviewed at the DCS office, and both girls disclosed 

inappropriate touching by Ennik. Regarding any concern that the delay 

provided an opportunity for Mother to plant a story or coach the girls, Mother 

testified that she did not discuss the matter with the girls between K.N.’s initial 

disclosure and their interview with FCM Garrett. See A.R.M. v. State, 968 

N.E.2d 820, 826 (Ind. Ct. App. 2012) (finding no abuse of discretion in the trial 

court’s reliability determination where there was no evidence that the child’s 

mother “discussed the incident with [the child] again before [the child] was 

interviewed . . . , let alone coached him”). Moreover, Mother was available for 

cross-examination at the protected person hearing regarding the possibility that 

she planted or coached the children’s versions of events. Instead, Mother 

testified that prior to K.N.’s disclosure in the bathtub, she had no reason to 

suspect that Ennik would ever touch the girls inappropriately as he had been a 

close friend and had always helped her by taking care of the girls.
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[37] “Doubt may be cast on the reliability of the statement or videotape if it is 

preceded by lengthy or stressful interviews or examinations.” Taylor v. State, 

841 N.E.2d 631, 635 (Ind. Ct. App. 2006), trans. denied. Whereas the Pierce and 

Carpenter courts found it concerning that the children were interviewed after 

physical exams, here, K.N. and M.W. were not physically examined by Nurse 

Moss until several weeks after their interviews with FCM Garrett. Also, distinct 

from Pierce, Mother was not present during K.N.’s and M.W.’s recorded 

interviews and thus could not suggest answers. However, Ennik asserts that 

FCM Garrett’s questions were suggestive, as evidenced by the fact that M.W. 

denied being touched until FCM Garrett “suggested to her that K.N. had said 

something to them.” (Appellant’s Br. p. 45). The record reveals that FCM 

Garrett was trained in interviewing techniques for young children and relied on 

the Finding Words methodology, which is a generally accepted approach for 

interviewing a child in a molestation case. FCM Garrett did not suggest the 

identity of the person who may have touched K.N., nor did FCM Garrett offer 

the details of the touching, such as where K.N. was touched and with what 

body part. Rather, M.W. volunteered that “Dave” had touched K.N. with his 

fingers, and she pointed to the vagina on the anatomical diagram. (Defendant’s 

Exh. B, p. 19). Thereafter, M.W. acknowledged that Ennik had also touched 

her in the same manner.

[38] Although there were some inconsistencies in each of the girls’ subsequent 

statements to Nurse Moss and Dr. Mayle—such as the number of times the 

touching occurred—K.N. and M.W. consistently reported that Ennik touched 
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their vaginas with his fingers. Furthermore, it was up to the trial court, as the 

trier of fact during the protected person hearing, to make a decision based on its 

assessment of K.N.’s and M.W.’s credibility, and Dr. Mayle testified at the 

hearing that “at this age[,]” it would not be uncommon for children to “give 

different information to different people.” (Tr. p. 170). Moreover, K.N. and 

M.W. were subject to cross-examination, which was recorded and played for 

the jury, and Ennik was able to point out the inconsistencies in the girls’ 

statements to the trier of fact. See Carpenter, 786 N.E.2d at 701.

[39] The evidence also establishes that K.N. and M.W. had no motive to fabricate a 

story. During the protected person hearing, both Father and Mother testified 

that K.N. and M.W. loved Ennik and enjoyed spending time with him. 

Detective Cale testified that he is trained to detect signs that a child has been 

coached, and he observed no signs that either K.N. or M.W. were coached, and 

he further stated that both girls used age-appropriate language to describe the 

molestation. FCM Garrett also testified that she observed no indications that 

K.N.’s or M.W.’s responses were coached. In Carpenter, the supreme court 

found it significant that the child was unable to distinguish the difference 

between the truth and a lie. Here, Dr. Mayle testified at the protected person 

hearing that both K.N. and M.W. knew the difference between a truth and a lie, 

and during their cross-examinations, both girls swore to tell the truth. 

[40] Finally, as to Ennik’s claim that there was no independent corroboration of 

M.W.’s or K.N.’s statements, i.e., the detection of a physical injury during the 

medical examination, it is well established that “[c]orroboration should not be 
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considered when determining the reliability of the statement because Indiana 

Code section 35-37-4-6 does not limit admission only to statements where there 

is independent corroborative evidence of the crime.” M.T. v. State, 787 N.E.2d 

509, 512 (Ind. Ct. App. 2003). Under all of these facts and circumstances, we 

cannot conclude that the trial court abused its discretion in admitting K.N.’s 

and M.W.’s statements to Mother and their recorded interviews with FCM 

Garrett and Detective Cale.

CONCLUSION

[41] Based on the foregoing, we conclude that the trial court acted within its 

discretion in denying Ennik’s motion for severance, and the trial court did not 

abuse its discretion by admitting the hearsay statements of Mother and the 

recorded interviews with FCM Garrett and Detective Cale.

[42] Affirmed.

[43] Bailey, J. and Barnes, J. concur