MEMORANDUM DECISION
Weissmann, Judge.
[1] Following a bench trial, James Yarbrough was convicted on seven counts of child molesting against several girls. He appeals only his conviction related to an act of sexual intercourse with a 13-year-old victim (Victim 1). During trial, the State used a transcript of Victim 1s prior interview with police to refresh her memory. On appeal, Yarbrough tries to frame this act as improper impeachment, claiming the trial court erred in using it as substantive evidence of his guilt. We reject his arguments and affirm.
Facts
[2] Between 2006 and 2014, Yarbrough repeatedly molested his girlfriends five daughters. He engaged in sexual intercourse, performed oral sex on the girls, and directed them to do the same to him. After Yarbroughs actions were reported in 2020, the State charged Yarbrough with five counts of Class A felony child molesting, two counts of Class C felony child molesting, and one count of Class D child solicitation.
[3] At trial, Victim 1 testified about Yarbroughs crimes against her. During her testimony, Victim 1 forgot whether Yarbrough actually had sexual intercourse with her, or just attempted to do so. The State then showed the victim a transcript of her interview with a detective two years earlier. After Victim 1 reviewed the relevant portion of the transcript, the State again asked Victim 1 whether Yarbough had “full blown sex” with her, to which Victim 1 replied, “Yes.” Tr. Vol. II, p. 153.
[4] The trial court found Yarbrough guilty of the child molesting charges but acquitted him of child solicitation. Yarbrough appeals only his child molesting conviction related to Victim 1.
Discussion and Decision
[5] Yarbrough argues that sufficient evidence does not support the finding that he had sexual intercourse with Victim 1. He claims the State introduced Victim 1s prior statements as impeachment evidence, which the trial court improperly considered as substantive evidence. If true, and Victim 1s testimony cannot be considered, Yarbrough contends that the State failed to prove the sexual intercourse element of his charged crime beyond a reasonable doubt.
The State Did Not Impeach Victim 1
[6] As has long been the rule in Indiana, “evidence that was introduced to impeach the credibility of a witness” at trial cannot be considered as substantive evidence of the defendants guilt. Humphrey v. State, 73 N.E.3d 677, 686 (Ind. 2017) (quoting Webster v. State, 413 N.E.2d 898, 901 (Ind. 1980)). Hoping to find shelter under this rule, Yarbrough attempts to classify the States proffering of Victim 1s prior statement as impeachment evidence. He is mistaken.
[7] The State used the prior statement to refresh Victim 1s memory—not as an impeachment device. Our rules of evidence allow for a “writing or object to refresh the witnesss memory.” Ind. Evidence Rule 612(a)(1). The basic process requires the witness to “first state that [they do] not recall the information sought,” then the questioner may use writings or other methods to refresh the witnesss memory. Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000). A “simple colloquy” establishing the witnesss forgotten memory “is all that is required under Rule 612.” Id. (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)). The following exchange during Victim 1s testimony reflects exactly that: Q: And what happened that time when you were 13?
A: I came home from school, and nobody was there except for him.
Q: When you say him, who do you mean?
A: Yarbrough
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A: Theres not really much I remember from that day. I remember him doing something to me though.
Q: Okay. You say you remember him doing something to you?
A: Yeah.
Q: What was that?
A: He kept trying to have sexual intercourse with me.
Q: Did he?
A: I dont remember.
Q: Tell me what you mean by trying?
A: He kept wanting me to do stuff. He kept wanting me to have sexual intercourse with him that day.
Q: How did you know thats what he wanted you to do?
A: Because he said it.
Q: Okay. You said—what did he say to you?
A: I dont remember.
Q: Do you really not remember, or do you not want to talk about it?
A: I dont remember.
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Q: Do you remember giving a deposition with Mr. Neel?
A: Yes.
Q: And do you remember previously telling us that Yarbrough did have full blown sex with you that day?
A: No. I dont remember that.
Q: Sorry, I believe I misspoke. Do you remember speaking with Detective Guynn here, and giving a statement?
A: That detective?
Q: Yes.
A: No.
Q: Do you remember giving a statement?
A: Yes.
Q: Your Honor, may I approach?
The Court: You may.
Q: Its page 9 and into 10. Im just going to have you read the bottom and then 10, okay?
(Witness reviews document)
Q: Did you read the bottom of page 9, page 10, and the top of page 11?
A: Yes.
Q: Okay. Ill take those back from you. Okay. So you gave that statement closer in time to when that happened, right?
A: Yeah.
Q: And did reading the transcript refresh your memory?
A: Yes.
Q: Did you previously say that Yarbrough did have full blown sex with you?
A: Yes.
Q: And that by full blown sex, you meant that he put his penis in your vagina?
A: Yes.
Tr. Vol. II, pp. 149-53 (cleaned up). Yarbrough did not object during this exchange.
[8] Victim 1 testified that she had forgotten the substance of the States question. Thus, the State appropriately responded by trying to refresh her memory. This was not impeachment. See Griffith v. State, 31 N.E.3d 965, 969-72 (Ind. 2015) (discussing the procedure for impeachment evidence); see also Evid. R. 613(b). As Yarbrough only cites cases involving the impeachment of a witness with a prior inconsistent statement, instead of cases about refreshing a witnesss memory, his argument here misses the mark. See, e.g., Stoltmann v. State, 793 N.E.2d 275, 281-82 (Ind. Ct. App. 2003) (citing Humphrey v. State, 680 N.E.2d 836, 838 (Ind. 1997)). [9] Because the trial court properly relied on Victim 1s testimony as evidence that Yarbrough had sexual intercourse with her, sufficient evidence exists establishing his guilt. Accordingly, we affirm.
Mathias, J., and Tavitas, J., concur.
Memorandum Decision by Judge Weissmann
Judges Mathias and Tavitas concur.