Marilyn Odendahl for www.theindianalawyer.com

A trial court, which excused two young girls from testifying against their abuser at trial and instead allowed their prior statements to be admitted into evidence, did not abuse its discretion, the Indiana Court of Appeals has ruled.

David Ennik was charged with one count of child molesting, a Class A felony, and two counts of child molesting,  Class C felonies. Prior to Ennik’s trial, Wells Circuit Court held a protected person hearing to determine if the two youngest victims, K.N. and M.W., could recount their experience in court.

After hearing testimony form a psychiatrist who examined the girls as well as from the state and Ennik, the trial court concluded K.N. and M.W. would not be available to testify at trial since “testifying in the physical presence of (Ennik) would cause the children to suffer serious emotional distress such that they could not reasonably communicate.”

Further, the court allowed the statements made by K.N. and M.W. to their mother and their recorded interviews with officials from the Indiana Department of Child Services and law enforcement to be admitted at trial.

Ennik was subsequently convicted on all charges and sentenced to an aggregate term of 65 years. On appeal, he argued that by allowing the jury to hear the victims’ statements, the trial court had abused its discretion by admitting hearsay evidence.

The Court of Appeals echoed the finding in Mishler v. State, 894 N.E.2d 1095, 1100 (Ind. Ct. App. 2008), trans. denied, that rarely do children disclose abuse or molestation immediately after it happens.

In affirming Ennik’s conviction, the Court of Appeals found the evidence established the girls had no motive to fabricate their story and that their statements to their mother were spontaneous. The DCS and police officials testified that they observed no signs the girls were coached about what to say.

The unanimous panel concluded that the trial court did not abuse its discretion by admitting hearsay statements of the victims’ mother and the recorded interviews with officials.

The case is David C. Ennik v. State of Indiana, 90A02-1409-CR-664.