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The Indiana Court of Appeals reversed a grandfather’s child molestation convictions Monday, finding the child’s statements violated Indiana Supreme Court precedent.
David Wanke is the paternal grandfather of N.W. and Ashton Wheeler is his daughter-in-law. Prior to the alleged incident, Wanke brought clothing and some toys for his four grandchildren but the majority of the things were for N.W.
In July 2022, Wake visited the Wheeler’s home. The children were outside playing on a trampoline. Wanke held N.W. while her siblings played.
According to Wheeler, he insisted on holding her. Wheeler could see Wanke was holding N.W. in a manner that was “not normal.” N.W. was facing toward Wanke and he had his hand “under her leg.”
The next morning, N.W. went to the bathroom and started yelling for her mother.
Wheeler went to the bathroom and saw that N.W.’s underwear was “bloody.” N.W. told Wheeler that something had happened with Wanke near the trampoline. Wheeler then contacted local law enforcement and took N.W. to a nearby hospital.
At the hospital, Courtney Benson, a nurse practitioner with specialized training in sexual assault, examined N.W. As part of her examinations, Benson asks the patient to explain what happened. N.W. stated Wanke “poked” her through her clothes and “used his nails” on her.
Benson then did a physical examination of N.W., including an examination of N.W.’s genitals. Benson located “an abrasion . . . to the inner aspect of [N.W.’s] left labia majora.” She concluded that such an injury is not “normal” and could not have been caused by “anything besides external force.”
The state charged Wanke with Level 1 felony child molesting and with being a habitual offender.
N.W. was called as a witness.
She was six years old at the time of the trial. She testified that she did not remember anything about the alleged incident. The state did not ask her about her interaction with Benson.
The state called Benson as a witness and asked her about her diagnosis and treatment of N.W., including her questions to N.W. and her responses.
Wanke objected to Benson testifying to N.W.’s out-of-court statements.
At no point during Benson’s testimony did she state that she had had any kind of dialogue with N.W. about her role as a nurse, the purpose of N.W. meeting with her, or the need to speak truthfully.
Nonetheless, the Knox Superior Court overruled Wanke’s objection and permitted Benson to testify to N.W.’s out-of-court statements to her.
The jury found Wanke guilty of Level 1 felony child molesting and further found him to be a habitual offender.
On appeal, Wanke argued that the trial court erred when it permitted Benson to testify on N.W.’s statements to her at the hospital.
The appellate court agreed and found that trial court had erred citing VanPatten v. State, 986 N.E.2d 255, 265-67 (Ind. 2013).
VanPatten holds there must be affirmative evidence in the record that a young child understands the role of a medical professional and the purpose of their visit with the professional in order to infer that the child was motivated to speak truthfully for the purposes of medical diagnosis or treatment.
“The State established no record at all as to whether N.W. understood Nurse Benson’s role or the role of nurses or doctors in general. Nor is there testimony from any witness concerning past experiences N.W. may have had at medical facilities or with medical providers from which one may be able to infer that a five-year-old child understood why she was being examined,” Judge Paul Mathias wrote.
Next, the appellate court addressed the probable impact of Benson’s admitted statements. It found her testimony had a significant probable impact on the outcome of the trial and thus the error is admission of the testimony was not harmless.
“The erroneous admission of Nurse Benson’s testimony readily undermines our confidence in the outcome of Wanke’s trial. Nurse Benson’s testimony as to what N.W. had said to her was unique, specific, and substantial,” Mathias wrote.
Finally, the appellate court found retrial is not prohibited.
“Wheeler testified that Wanke was holding N.W. awkwardly near the trampoline, and the next morning there was blood in N.W.’s underwear. And, in his own defense, Wanke told the jury that N.W. had reported to law enforcement that something had happened with him while he was holding her down by the trampoline,” Mathias wrote. “That evidence, while not overwhelming, would have been a sufficient basis for a conviction.”
The court reversed Wanke’s conviction and remanded for further proceedings.
The case is David C. Wanke Sr. v. State of Indiana, 23A-CR-2423.
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