MEMORANDUM DECISION
Case Summary
[1] Ethan Nichols was convicted of five counts of Level 1 felony child molesting, one count of Level 4 felony child molesting, and one count of Level 6 felony neglect of a dependent. He now appeals, arguing that the trial court erred in admitting the forensic interviews of one of the victims under the Protected Person Statute, Indiana Code section 35-37-4-6, that the court considered improper aggravating factors at sentencing, and that his sentence is inappropriate. We affirm.
Facts and Procedural History
[2] Nichols met A.N. in February 2020. Within two weeks of meeting, Nichols moved into A.N.’s apartment, where she lived with her two daughters, A.B. (born in October 2011) and J.B.L. (born in March 2015), and her two sons, B.B. (born in June 2016) and S.L. (born in February 2018). Nichols and A.N. married in August 2021. By December of that year, A.B. and B.B. were living with other relatives, and Nichols, A.N., J.B.L., and S.L. had moved into a motel room at the Red Roof Inn in Lafayette.
[3] On January 12, 2022, A.B., then ten, disclosed to her grandmother that Nichols had molested her. The same day, her grandmother reported the disclosure to police and advised them that Nichols had other children in his care. When police went to the Red Roof Inn for a wellness check that night, they found J.B.L., then six, and S.L., then three, alone in the motel room. Officers determined the children had been left alone for hours.
[4] The next day, A.B. and J.B.L. were interviewed at the Heartford House Child Advocacy Center. A.B. reported sexual abuse by Nichols, including anal and oral intercourse and masturbation. She explained Nichols would have A.N. go to the gas station to get him a drink, and then hed call A.B. into his room. Hed tell her to take off her pants and underwear and lay on the bed, and then “he would put his hot dog in [her] butt.” Tr. Vol. III p. 20. This happened somewhere between five and fifteen times. See id. at 19; Appellants App. Vol. III p. 147. One time, Nichols also “put his hot dog” in A.B.’s mouth while “he was touching himself.” Tr. Vol. III pp. 20, 128. Nichols threatened A.B. that if she told anyone about the abuse, hed hurt them. In her interview, J.B.L. reported that Nichols and A.N. would leave her and S.L. home alone but didnt disclose any sexual abuse.
[5] In February 2022, A.B. and J.B.L. were referred for child-hearsay evaluations with Dr. Robin Kohli to determine whether they should be deemed unavailable to testify in court. A.B. and J.B.L. both described physical abuse and neglect, including that Nichols and A.N. would beat them and B.B. with a belt or spatula, Nichols would withhold food from the children, and they were often left home alone. A.B. again reported that Nichols would send A.N. out of the house and then force her to submit to anal intercourse. During her evaluation, J.B.L. said she and S.L. were left home alone “more than 50 times” and it was “scary.” Appellants App. Vol. III p. 134. She then disclosed that Nichols would take her up to his room and “force [her] to touch his wee-wee.” Id. at 135. She explained she had to pull her pants and underwear down, and then Nichols “put his penis in [her] front and [her] butt.” Id. She thought Nichols did this to her around ten times. Nichols told J.B.L. not to tell anyone or they would both get in trouble—A.N. would break up with Nichols and give J.B.L. “a butt whipping.” Id. When Dr. Kohli asked J.B.L. if she could testify in court about what Nichols did, J.B.L. said she “didnt want to go to court because ‘[Nichols and A.N.] yell at me. [Nichols is] not allowed to see me.’ ” Id. Dr. Kohli also asked J.B.L. how she would feel if Nichols was outside the door, and she exclaimed, “Id run away and never come to your house again! Ethan should go to prison because people dont do that to kids.” Id. Dr. Kohli noted in her reports from the evaluations that A.B. and J.B.L. both knew the difference between the truth and a lie and promised to tell the truth. She ultimately recommended that the children not be required to testify in the presence of Nichols because doing so would cause “serious emotional distress such that [they] cannot reasonably communicate.” Id. at 140, 149.
[6] Given her disclosure to Dr. Kohli, J.B.L. had a second forensic interview about a week later with Jen Bushore-Barry at Heartford House. She told Bushore-Barry that one night, Nichols told her to come to his room and lie down in his bed. Once she laid down, he “touched [her] wee-wee” over her clothes with his hand. Ex. 6T p. 22. J.B.L. pointed between her legs when identifying her “wee-wee.” This was initially the only disclosure J.B.L. made, but she eventually told Bushore-Barry that Nichols “put his wee-wee in [her] booty.” Id. at 42. J.B.L. demonstrated how she would lay on her back with her legs in the air during the abuse. She said if she let Nichols “put his wee-wee all the way in [her] butt,” hed let her have her phone. Id. at 51. Bushore-Barry asked if this happened in any other part of her body, but J.B.L. said it was “always in the booty.” Id. at 50. She thought this happened about ten times.
[7] In March 2022, the State charged Nichols with five counts of Level 1 felony child molesting (Counts I-V), one count of Level 4 felony child molesting (Count VI), and one count of Level 6 felony neglect of a dependent (Count VII). Counts I-III were for Nicholss acts against A.B., Counts IV-VI were for his acts against J.B.L, and Count VII was for leaving J.B.L. and S.L. alone at the Red Roof Inn in January.
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[8] In May, the State moved to introduce A.B.’s and J.B.L.’s forensic interviews under Indianas Protected Person Statute, Indiana Code section 35-37-4-6. In his brief opposing the States motion, Nichols highlighted that J.B.L., in her second forensic interview, disclosed anal intercourse only after she took a break during which she interacted with her grandparents. Nichols argued (among other things) that J.B.L. had the opportunity to be coached and thus her statements during the second interview were not sufficiently reliable.
[9] A hearing on the motion was held in August 2023, and both A.B. and J.B.L. testified via video and were cross-examined. J.B.L. said talking in front of many people makes her nervous, she doesnt like talking about the “bad things” Nichols did to her, she was nervous about “[t]alking about it,” she doesnt want to be around Nichols, and she wouldnt be okay being in the same room as him. Tr. Vol. II pp. 134, 136. Dr. Kohli also testified and opined it would not be in the childrens best interests to testify against Nichols because it would re-traumatize them. She explained that J.B.L. showed elevated scores for avoidance and PTSD and that she was “a little more scattered” and “harder to follow” than A.B. in what she was saying. Id. at 96. That said, Dr. Kohli noted that both girls were “relatively consistent” in their allegations and that she “found that their information was very believable.” Id. at 89. She said she wasnt sure how J.B.L. would handle testifying at trial, but she didnt think J.B.L. should have to go through that. Bushore-Barry testified that during her interview of J.B.L., there was no reason for her to disbelieve J.B.L. or any indications that what she was saying was untrue.
[10] On October 11, 2023, the trial court denied the States protected-person motion as to A.B. but granted it as to J.B.L. A jury trial was held two weeks later. Over Nicholss objection, the trial court admitted the video recordings and transcripts of J.B.L.’s forensic interviews at Heartford House, redacted versions of Dr. Kohlis reports from the child-hearsay evaluations, and the audio recording of J.B.L.’s testimony at the protected-person hearing. The jury found Nichols guilty as charged.
[11] At sentencing, the trial court found several aggravators: Nichols has a criminal history, including four felony convictions, eight misdemeanor convictions, seven petitions to revoke probation filed with four found true and one pending, two petitions to execute community corrections in custody filed with one granted, an outstanding warrant, a pending felony case, and two disciplinary matters while in jail; he has a limited history of substance abuse; previous attempts at rehabilitation have failed; the harm, injury, loss, or damage to the victims was greater than the elements necessary to prove commission of the offense, which “in part ․ goes to ․ the repetitive nature” of the offense; Nichols had care, custody, or control over the victims; and he threatened the victims. Tr. Vol. III p. 220; see also Appellants App. Vol. II pp. 21-22. The court found as mitigators Nicholss employment history and family support. Finding the aggravators to outweigh the mitigators, the trial court sentenced Nichols to forty-five years for each of the five counts of Level 1 felony child molesting, ten years for Level 4 felony child molesting, and two-and-a-half years for Level 6 felony neglect of a dependent. The court ordered Counts I-III to run concurrently, Counts IV-VI to run concurrently to each other but consecutively to Counts I-III, and Count VII to run consecutively to the other counts. This resulted in a total sentence of 92.5 years, two-and-a-half years of which the court suspended to probation, leaving ninety years to serve.
[12] Nichols now appeals.
Discussion and Decision
I. The trial court did not abuse its discretion in admitting J.B.L.’s forensic interviews under the Protected Person Statute
[13] Nichols contends the trial court erred in admitting J.B.L.’s forensic interviews under the Protected Person Statute. As with challenges to the admissibility of other evidence, a trial courts decision to admit statements under the Protected Person Statute is reviewed for an abuse of discretion. Mishler v. State, 894 N.E.2d 1095, 1099 (Ind. Ct. App. 2008). We will not reverse such a decision absent a showing of a manifest abuse of discretion by the trial court resulting in the denial of a fair trial. Id.
[14] The Protected Person Statute allows for the admission of otherwise inadmissible hearsay evidence relating to specified crimes whose victims are “protected persons.” Ind. Code § 35-37-4-6
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; Tyler v. State, 903 N.E.2d 463, 465 (Ind. 2009). Here, the statute applies because J.B.L. was the victim of a sex crime and under fourteen years old. I.C. § 35-37-4-6(a)(1), (c)(1). The purpose of the Protected Person Statute is to “spare children the trauma of testifying in open court against an alleged sexual predator.” Tyler, 903 N.E.2d at 466. But as our Supreme Court has explained, the statute “impinges upon the ordinary evidentiary regime” and therefore the trial courts duties under the statute carry with them “a special level of judicial responsibility.” Carpenter v. State, 786 N.E.2d 696, 703 (Ind. 2003) (quotation omitted).
[15] Under the Protected Person Statute, certain conditions must be met before otherwise inadmissible hearsay evidence will be allowed. As relevant here, the trial court must find, in a hearing attended by the protected person (either in person or by closed-circuit television) and outside the jurys presence, “that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.” I.C. § 35-37-4-6(f)(1). In addition, the protected person must either testify at trial or be found “unavailable as a witness” for one of three reasons, including:
From the testimony of a provider, and other evidence, if any, the court finds that the protected persons 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.
Id. at (f)(2)(B)(i). Finally, if the protected person is found to be “unavailable as a witness,” the protected person must be available for cross-examination at the hearing or when the statement or videotape was made. Id. at (g).
[16] Nichols first argues the trial court erred in finding J.B.L.’s statements in the interviews to be sufficiently reliable. Considerations for determining whether a protected persons 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.
[17] Nichols highlights the inconsistencies between J.B.L.’s forensic interviews and child-hearsay evaluation: she made no disclosure of sexual abuse in the first interview, then said Nichols “put his penis in [her] front and [her] butt” during the hearsay evaluation, and then said it was “always in the booty” in the second interview. He also emphasizes the break in J.B.L.’s second forensic interview, claiming J.B.L. “d[id] not disclose sexual conduct with Nichols until after a break where maternal grandparents interact[ed]” with her. Appellants Br. p. 15. First, this is inaccurate. Before the break, J.B.L. reported that Nichols “touched [her] wee-wee” over her clothes. Additionally, to the extent Nichols is implying that J.B.L.’s grandparents coached her during the break, that is purely speculative. While J.B.L. did interact with her grandparents in the waiting room during the break, there is no evidence that they discussed the abuse. In fact, multiple witnesses testified that two Heartford House staff members monitor the waiting room to ensure the child doesnt discuss the incident that is the subject of the interview with their family. And although J.B.L. didnt report anal intercourse until after the break, she had already disclosed anal intercourse to Dr. Kohli a week earlier.
[18] In any event, Nichols raised this issue to the trial court, which it apparently rejected in granting the protected-person motion as to J.B.L. The court acknowledged in its order that there was no evidence J.B.L. was subject to undue influence and that she used age-appropriate words in describing Nicholss actions. The court also noted that although J.B.L. didnt disclose the sexual abuse until her evaluation with Dr. Kohli, she eventually disclosed it in her second Heartford House interview “with appropriate questioning.” Appellants App. Vol. II p. 244. After questioning J.B.L. at the protected-person hearing, the trial court was satisfied she knew the difference between telling the truth and telling a lie. Also during the hearing, Bushore-Barry testified that there was no reason for her to disbelieve J.B.L. or indications that she was being untruthful during the second forensic interview. This evidence supports the trial courts finding that J.B.L.’s interviews were sufficiently reliable.
[19] Nichols also argues the trial court erred in finding that J.B.L. was unavailable as a witness. Under the Protected Person Statute, a “provider,” which includes a licensed psychologist, see I.C. § 35-37-4-6(d)(2), “must present evidence regarding the potential for serious emotional harm to the protected person that testifying would cause,” Norris v. State, 53 N.E.3d 512, 518 (Ind. Ct. App. 2016). Thus, the “trial courts observations of the child[,] standing alone, are insufficient to meet the statutory standard of unavailability.” Id. In its order granting the protected-person motion as to J.B.L., the trial court noted J.B.L. testified at the protected-person hearing that talking in front of many people makes her nervous, she was nervous to talk about the “bad things” Nichols did to her, she didnt want to be around Nichols, and she wouldnt be okay in the same room as him. But this testimony before the trial court was not the only evidence supporting its unavailability determination. Dr. Kohli, a licensed clinical psychologist, explained in her report from the child-hearsay evaluation that J.B.L. showed clinically significant scores for avoidance and PTSD. When Dr. Kohli asked J.B.L. how shed feel if Nichols was outside the door, she responded, “Id run away and never come to your house again!” Based on her evaluation, Dr. Kohli recommended that J.B.L. not be required to testify because doing so would cause “serious emotional distress such that [she] cannot reasonably communicate.” At the hearing, Dr. Kohli couldnt say whether J.B.L. was in a better position to testify than she was during the evaluation, but she opined that J.B.L. was traumatized from the abuse and testifying in front of Nichols would re-traumatize her. This evidence about the potential for serious emotional harm to J.B.L. if she were to testify supports the trial courts conclusion that she was unavailable.
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See id. at 519-20 (affirming finding of unavailability where protected person showed symptoms of generalized anxiety disorder, reactive attachment disorder, and impaired parent/child relationship, and clinical psychologist concluded that these conditions may render the protected person unable to communicate and testifying may worsen conditions).
[20] The trial court did not abuse its discretion in admitting J.B.L.’s forensic interviews under the Protected Person Statute.
II. Nichols has not shown that the trial court abused its discretion in sentencing him
[21] Nichols next challenges the trial courts finding of several aggravating factors. Our trial courts enjoy broad discretion in identifying aggravators and mitigators, and we will reverse only for an abuse of that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013).
[22] Nichols first argues the trial court abused its discretion in finding as an aggravator that the harm, injury, loss, or damage suffered by the victims was significant and greater than the elements necessary to prove the commission of the offense. He contends that “the seriousness of the offense of Level 1 Molesting is cooked into the sentencing range” and that the trial court “fail[ed] to specify in what manner the nature of this offense is more serious than other types of Level 1 Child Molesting cases.” Appellants Br. p. 24. But when identifying this aggravator at sentencing, the trial court explained:
The harm, injury or damage to the victims is greater than the elements necessary. You know, in part this goes to, I think the repetitive nature becomes an aggravating factor. That which occurred. I recognize what were talking about, the mere penetration. But these kids know what happened. Its going to be a long way, I think a long time for them to work through it if they ever do.
Tr. Vol. III p. 220. Nichols was convicted for molesting each girl three times, but both A.B. and J.B.L. said the molestations occurred more often than that—A.B. said it happened between five and fifteen times, and J.B.L. said it happened around ten times. Additionally, the incidents of abuse spanned a period of well over a year. These facts and the courts explanation support the aggravator that harm, injury, loss, or damage to the victims was significant and greater than the elements necessary to prove the offenses, so we find no abuse of discretion.
[23] Nichols also challenges the aggravator that previous attempts at rehabilitation have failed, contending its merely a restatement of the fact that he has a criminal history because the trial court “failed to specify precisely what was being referenced in the finding of this aggravating circumstance.” Appellants Br. p. 25. But in addition to discussing Nicholss prior convictions, the trial court added that he repeatedly violated probation and community corrections, his probation was revoked four times, he was twice placed in segregation for violations while in jail, and he had a pending felony case and an outstanding warrant at the time of sentencing. These facts support the trial courts finding that previous attempts at rehabilitation have failed, and the court did not abuse its discretion in considering this as a separate aggravator.
III. Nicholss sentence is not inappropriate
[24] Finally, Nichols asks us to reduce his sentence under Indiana Appellate Rule 7(B), which provides that an appellate court “may revise a sentence authorized by statute if, after due consideration of the trial courts decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The appellate courts role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 159-60 (Ind. 2019) (quotation omitted). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[25] The sentencing range for Level 1 felony child molesting as charged here is twenty to fifty years, with an advisory sentence of thirty years. I.C. § 35-50-2-4(c). The sentencing range for a Level 4 felony is two to twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5. And the sentencing range for a Level 6 felony is six months to two-and-a-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). Nichols thus faced a maximum sentence of 264.5 years. The trial court sentenced him to a total term of 92.5 years, with two-and-a-half years suspended to probation.
[26] Tellingly, Nicholss inappropriateness argument does not address the nature of his offenses—which certainly does not support a reduction in his sentence. Nichols exploited his position of care and control over A.B. and J.B.L. He devised opportunities for the molestations by sending A.N. to run errands for him. Once he got them alone, Nichols forced A.B. to submit to anal and oral intercourse and subjected J.B.L. to fondling and anal intercourse. He threatened both of the children, telling A.B. that he would hurt anybody she told about the abuse and J.B.L. that A.N. would give her “a butt whipping” if she told anyone. And these were not isolated incidents—Nichols molested A.B. between five and fifteen times and J.B.L. around ten times for over a year. Nothing about the nature of these offenses warrants a revision in Nicholss sentence.
[27] Nicholss character doesnt support a reduction in his sentence either. He notes his employment history and his family support, which the trial court found to be mitigating factors. But Nichols also abused and neglected his stepchildren by beating them with a spatula and belt, denying them food, and leaving them home alone, including leaving J.B.L. and S.L. alone in a motel room “more than 50 times.” Also, at the time of sentencing, Nichols was twenty-five and had four felony convictions, eight misdemeanor convictions, seven petitions to revoke probation filed with four found true and one pending, two petitions to execute community corrections in custody filed with one granted, a pending felony case, an outstanding warrant, and two disciplinary matters while in jail. While his prior convictions are mostly driving-related, as the trial court noted, this lengthy criminal history shows “disdain for that which the Court, which the law requires” and that Nichols “do[es]nt care what the law says.” Tr. Vol. III p. 218. Nichols has failed to persuade us that his sentence—which is already far below the statutory maximum—is inappropriate.
[28] Affirmed.
FOOTNOTES
1
. A.N. was also charged with Level 6 felony neglect of a dependent. She pled guilty in August 2022.
2
. The legislature has amended the statute several times in recent years. Neither party contends these amendments have any bearing on the proceedings in this case, so we cite the current version of the statute.
3
. In his availability argument, Nichols also highlights that the jury heard only the audio of J.B.L.’s cross-examination from the protected-person hearing because the trial court couldnt locate the video recording from the hearing. See Appellants Br. p. 20. The Protected Person Statute requires that a protected person found unavailable to testify at trial be available for cross-examination at the protected-person hearing or when the statement or videotape sought to be admitted into evidence was made. I.C. § 35-37-4-6(g). Defense counsel cross-examined J.B.L. at the protected-person hearing. The fact that the jury wasnt able to view a video of J.B.L.’s cross-examination has no bearing on the trial courts finding of unavailability under the statute.
Vaidik, Judge.
Weissmann, J., and Foley, J., concur.