Mischler v. State, 20A03-0712-CR-577 (Oct 23, 2008)
Counsel for Mischler: Juan Garcia
One prior misdemeanor conviction for possession of marijuana did not “demonstrate a character of such recalcitrance or depravity that [it] justif[ies] a [maximum sentence].” Hollin v. State, 877 N.E.2d 462, 465-66 (Ind. 2007).
Court admitted hearsay statements under protected person statute. Mischler argued the hearsay statements were made months after the alleged molest and therefore are not reliable.
Considerations in determining reliability include: (1) the time and circumstances of the statement, considering whether there was significant opportunity for coaching; (2) the nature of the questioning; (3) whether there was a motive to fabricate; (4) use of age-appropriate terminology; and (5) spontaneity and repetition.
Court holds that “even though some time passed between the touchings and the statements, this is just one factor to be considered and is not necessarily dispositive.” Court also notes the hearsay statements were made “to trained professionals and nothing in the record suggests that any of the interviewers used leading questions.”
Full opinion at http://www.in.gov/judiciary/opinions/pdf/10230805jgb.pdf
