Court of Appeals of Indiana | Opinion 19A-CR-2925 | August 6, 2020 Page 1 of 9

ATTORNEY FOR APPELLANT

Jeffery Haupt

Law Office of Jeffery Haupt

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Tiffany A. McCoy

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jared J. Gorby,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

August 6, 2020

Court of Appeals Case No.

19A-CR-2925

Appeal from the

St. Joseph Superior Court

The Honorable 

John M. Marnocha, Judge

Trial Court Cause No.

71D02-1906-F3-20

Vaidik, Judge.

Case Summary

[1] Jared J. Gorby appeals his conviction for Level 3 felony child molesting. He 

argues that the trial court abused its discretion by allowing the video of the 

forensic interview of the victim to be played for the jury under Indiana Rule of 
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Evidence 803(5)—the “recorded recollection” exception to the rule against 

hearsay. We disagree and affirm.

Facts and Procedural History

[2] Gorby, who was born in 1999, lived with his father, his stepmother, and his 

brother in North Liberty until May 2017 and again from December 2018 

through March 2019. His stepmother’s daughter (Gorby’s stepsister), Alexis 

Torres, lived across the street with her husband and her two children. Torres’s 

daughter, B.B., who was born in 2014, was very close with Gorby and 

described him as her best friend and favorite uncle. 

[3] On May 21, 2019, B.B. told Torres that Gorby had molested her. Two days 

later, B.B. participated in a forensic interview at The CASIE Center in South 

Bend. B.B. explained that Gorby had her play the “copy game,” in which they 

watched a video of Anna and Elsa, the princesses from the animated movie 

Frozen, and “had to copy everything that Anna and Elsa did.” Tr. Vol. III p. 46. 

She said that, in the video, Anna and Elsa have a “peeing thing” like Gorby 

and they “do all this stuff.” Id. at 50-52, 59. She explained that “Anna and Elsa 

puts her sister’s one of that in her mouth” and that “that’s the part that’s 

bothering me because I have to do it with Jared.” Id. at 59. When asked “Does 

he do anything to that part?” B.B. responded, “Yeah. He, like, puts it in my 

mouth.” Id. at 63. She said, “I go down on that,” which means “like, I’m falling 

when I come down on it . . . [b]ut I’m not. I’m just, like, leaning on it; and it 

kind of hurts my mouth when I do it.” Id. at 64. She said she told Gorby to 
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“stop that” because it was “[h]urting my head and mouth and throat.” Id. at 65. 

She talked about “pee” that is “usually white” and that “goes all the way down 

in my throat into my legs right here out” and “outside we have pee in our throat 

or mouth.” Id. at 60. 

[4] A few days later, Gorby agreed to be interviewed at the St. Joseph County 

Special Victims Unit. He initially denied any wrongdoing but eventually cried, 

said that he was a “piece of sh**,” and told the detective that he had put his 

penis on B.B.’s lips “for two to four seconds[.]” Id. at 119, 130. An examination 

of Gorby’s phone revealed a Google search for “Shadbase,” an artist who 

“draws cartoon pornography of well-known cartoon characters.” Id. at 124-26. 

One such drawing is of Anna and Elsa “with penises performing oral sex on 

each other.” Id. at 126.

[5] The State charged Gorby with Level 3 felony child molesting. The case 

proceeded to a jury trial in October 2019. The State put B.B. on the stand and 

asked her if she and Gorby ever did anything that she “didn’t like[.]” Tr. Vol. II 

p. 42. B.B. responded, “Play the copycat game.” Id. She explained that in the 

copycat game “you have to copy Anna and Elsa” and that Anna and Elsa are 

on the screen of Gorby’s tablet. Id. at 43. She said that Anna and Elsa were 

doing something that was “[n]ot okay” but repeatedly said that she did not 

“remember” or did not “know” exactly what it was. Id. at 42, 44, 45. However, 

she said that she remembered being interviewed at The CASIE Center and that 

she told the interviewer “stuff that was the truth[.]” Id. at 44. During a break in 

trial, she was shown the video of her forensic interview. Afterward, she testified 
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that she still did not remember what Anna and Elsa were doing or what she and 

Gorby did, but she said—twice—that everything she told the interviewer was 

“the truth.” Tr. Vol. III pp. 15-16. As such, the State asked to show the jury the 

video of B.B.’s forensic interview under Indiana Rule of Evidence 803(5)—the 

“recorded recollection” exception to the rule against hearsay. Over Gorby’s 

objection, the court allowed the video to be played.

[6] Gorby took the stand in his own defense and testified that he had never touched 

B.B. inappropriately. He said that when he told the detective that he put his 

penis on B.B.’s lips, he “really wasn’t sure what was going with the interview

[sic]” and had admitted to “[s]omething I didn’t do.” Id. at 175, 176. 

[7] The jury found Gorby guilty as charged. The trial court imposed the advisory 

sentence of nine years, with five years to serve in the Department of Correction 

and four years suspended to probation.

[8] Gorby now appeals.

Discussion and Decision

[9] Gorby contends that B.B.’s forensic interview was inadmissible hearsay that 

should not have been shown to the jury. Generally, the decision to admit or 

exclude evidence is committed to the sound discretion of the trial court and will 

be reviewed only for an abuse of that discretion. Ballard v. State, 877 N.E.2d 

860, 861-62 (Ind. Ct. App. 2007).
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[10] There is no dispute that B.B.’s statements during the forensic interview were 

hearsay, which is defined as “a statement that: (1) is not made by the declarant 

while testifying at the trial or hearing; and (2) is offered in evidence to prove the 

truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is generally 

inadmissible. Ind. Evidence Rule 802. However, Evidence Rules 803 and 804

set forth numerous exceptions. Here, the trial court admitted B.B.’s interview

under the “recorded recollection” exception—Evidence Rule 803(5). That rule 

allows the admission of “[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.” Ind. 

Evidence Rule 803(5). Gorby does not dispute that the second element was 

satisfied, i.e., that the record (the video) was made when the events were fresh 

in B.B.’s memory. He challenges only the trial court’s findings that the first and 

third elements were satisfied.1

[11] Regarding the first element—whether the record “is on a matter the witness 

once knew about but now cannot recall well enough to testify fully and 

accurately”—Gorby argues that at one point B.B. “seemed to indicate that this 

1 The State asserts that Gorby waived his argument regarding Evidence Rule 803(5) because his “objection 

and argument below [] specifically challenged whether admission of the evidence would violate his right of 

confrontation under the federal constitution.” Appellee’s Br. p. 12. We disagree. The hearsay issue and the 

confrontation issue are closely related and were addressed together, at length, by the trial court. We do note, 

however, that Gorby did not renew his confrontation claim on appeal. As such, we limit our discussion to 

Evidence Rule 803(5). 
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was something she simply did not want to talk about” rather than something 

she did not remember. Appellant’s Br. p. 15. He directs us to the following 

exchange that B.B. had with the prosecutor after the first break in her 

testimony:

Q. All right, B. How are you doing?

A. Fine.

Q. Okay. Were you a little scared before?

A. (Nods head yes.)

Q. Okay. And we were talking about the copycat game. Is that 

something that we can talk about now?

A. (Shakes head no.)

Q. No? No? Why are you scared? Do you remember when we 

talked about the copycat game before?

A. (Nods head yes.)

Q. Can you tell me about the copycat game?

A. (No audible response.)

Q. What did you look at when you played the copycat game?

A. (No audible response.)
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Q. Is this something you don’t want to talk about right now? 

Not right now?

A. (Shakes head no.)

Q. Okay.

Tr. Vol. II pp. 48-49 (emphasis added).

[12] We first observe this was by no means a clear indication by B.B. that she was 

trying to avoid the details rather than struggling to remember them. When 

asked if the copycat game was “something you don’t want to talk about” 

(emphasis added), her response was to shake her head “no.” Taken literally,

that was B.B. saying, “No, it’s not something that I don’t want to talk about.”

If B.B. meant to indicate that she did not want to talk about the copycat game, 

it would have made more sense for her to nod her head “yes” than to shake it 

“no.”

[13] But even if we assume that shaking her head “no” was B.B.’s way of indicating 

that she did not want to talk about the copycat game, that must be weighed 

against all the times she said she did not “remember” or did not “know” what 

the game entailed. See Tr. Vol. II pp. 42, 44, 45; Tr. Vol. III pp. 15, 16. To the 

extent B.B. gave conflicting answers, it was up to the trial court to decide 

whether B.B. couldn’t remember the events or simply did not want to talk about 

them. See Ind. Evidence Rule 104(a) (“The court must decide any preliminary 

question about whether . . . evidence is admissible.”). The trial court—after 
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seeing and hearing B.B. testify—concluded that she could not remember the 

events and that Evidence 803(5)(A) was therefore satisfied. We will not second 

guess that conclusion.2

[14] As for the third element of Rule 803(5)—whether the record “accurately reflects 

the witness’s knowledge”—Gorby cites the principle that a trial court should 

not admit a statement under the rule “when the witness cannot vouch for the 

accuracy of the statement nor remember having made the statement.” Ballard, 

877 N.E.2d at 862. Gorby notes that B.B., during the following exchange with 

the prosecutor, denied having talked about certain things during her forensic 

interview: 

Q. Do you remember having an interview with a lady at the 

CASIE Center at the place with all the toys?

A. Yeah.

Q. Yeah. And did you talk to her about the copycat game?

A. No.

2 The State cites Impson v. State, 721 N.E.2d 1275, 1283 (Ind. Ct. App. 2000), where a panel of this Court 

stated that insufficient memory can be found even when a reluctant witness falsely claims lack of memory to 

avoid answering a question. The panel cited the 1995 edition of Indiana Practice, which in turn cited the 

1992 edition of McCormick on Evidence. To the extent McCormick at one time supported that proposition, 

it no longer does. The current edition of McCormick notes that two courts (the Sixth Circuit in 1978 and the 

Pennsylvania Supreme Court in 1981) have held that reluctance to testify can satisfy the insufficient-memory 

requirement, but it is otherwise skeptical of the proposition. 2 McCormick on Evidence § 282 (8th ed. 2020). 

We share that skepticism. Reluctance to answer a question simply is not the same as lack of memory, which 

is what Evidence Rule 803(5)(A) expressly requires.
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Q. No?

A. No.

Q. Did you tell her stuff that happened?

A. No.

Q. No?

A. No.

Tr. Vol. II p. 44. At other points, however, B.B. testified that everything she 

told the interviewer—including the details of the copycat game—was the truth. 

See id.; Tr. Vol. III pp. 15, 16, 22. Again, it was the trial court’s task to weigh 

that testimony against B.B.’s denials. See Evid. R. 104(a). Having done so, the 

court concluded that B.B. had adequately vouched for the accuracy of the 

statements she made during the interview and that Evidence Rule 803(5)(C)

was therefore satisfied. We will not disturb that decision. 

[15] The trial court did not abuse its discretion by admitting B.B.’s forensic interview 

into evidence under Evidence Rule 803(5).

[16] Affirmed.

May, J., and Robb, J., concur.