Riley, J.
Appellant-Plaintiff, State of Indiana (State), appeals the trial court’s denial of its motion to exclude Appellee-Defendant, Delbert McKinney (McKinney), during the victim’s deposition; and its motion to have the victim testify via closed circuit television at McKinney’s trial.
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On February 8, 2016, the State filed an Information, charging McKinney with child molesting … The alleged victim in McKinney’s child molesting offenses was K.N., born in February of 2008.
… On September 19, 2016, the trial court conducted a hearing on the State’s motions, during which the trial court heard testimony from Dr. Shannon Jones (Dr. Jones), a psychologist, and Kayce Clevenger (Clevenger), a psychiatric social worker.
… Dr. Jones testified that during the course of K.N.’s treatment, she diagnosed K.N. with “post[-]traumatic stress disorder, oppositional defiant disorder, and attention deficit hyperactivity disorder.” …
… Dr. Jones testified that having to testify in front of McKinney would present a substantial likelihood of emotional harm to K.N. … Dr. Jones indicated that seeing McKinney in person would be “more traumatic” for K.N. than seeing him on a television screen.
Clevenger, a psychiatric social worker and K.N.’s counselor at Evansville Psychiatric Children’s Center, testified that since May 2016, she had been seeing K.N. for individual therapy at least once a week. … Clevenger indicated that although K.N. would be stressed testifying in both venues, either the courtroom or by closed circuit television, she indicated that the stress on K.N. would be “significantly less” by closed circuit. …
At the close of the evidence, the trial court denied the State’s motion to exclude McKinney from K.N.’s deposition. In allowing McKinney’s attendance at K.N.’s deposition, the trial court imposed safeguarding measures. Specifically, the trial court directed McKinney to sit ten feet away from K.N. at the deposition table; and that an officer, of the State’s choosing, should be present during the taking of the deposition to ensure that there are no “untoward actions or statements” by McKinney. …
Also, the trial court denied the State’s motion to have K.N. testify via closed circuit. …
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The State first claims that the trial court abused its discretion in denying its motion to exclude McKinney from K.N.’s deposition. The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” …
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On appeal, the State argues that McKinney’s confrontation rights would not be violated if the deposition is conducted in his absence. In support of its position, the State relies on Jones v. State, 445 N.E.2d 98, 99 (Ind. 1983), and Bowen v. State, 334 N.E.2d 691 (Ind. 1975). In Jones, a child molesting case, the supreme court held that the deposition of a small child could be conducted without the defendant being present. … In Bowen, the defendant sought to depose the State’s witnesses before his trial for kidnapping and sodomizing two children, ages seven and ten. … The supreme court held that the refusal to permit the defendant to be present at the taking of a deposition did not deny him his right of confrontation guaranteed by the Indiana Constitution. …
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In the instant case, Dr. Jones and Clevenger testified that K.N. would suffer emotional harm if she testified in the presence of McKinney. … In addition, we find the procedural safeguards of having McKinney sit at the deposition table, ten feet apart from K.N. requires a level of rationalization about fears that is unrealistic for any eight-year old child, let alone one who is “especially weak psychologically” and whose delayed “emotional maturity approaches that of a toddler or preschooler.” …
… The trial court’s denial of the State’s motion to exclude McKinney from K.N.’s deposition is against the logic and effect of the facts and circumstances before the court. Thus, we hold that the trial court abused its discretion.
The State also argues that the trial court abused its discretion in denying its motion to have K.N. testify at trial via two-way closed circuit television. A child who is less than fourteen years of age and is a victim of a sex crime is a protected person. See I.C. §35-37-4-6 (b)(2), (c)(1). …
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In Brady v. State, 575 N.E.2d 981, 991-92 (Ind. 1991), our supreme court noted:
The essential purpose of I.C. [§]35-37-4-8 as a whole is to protect child witnesses and other witnesses who fall within the class of persons labeled “protected persons” from the potentially traumatic experience of having to testify in open court before the person they are accusing. …
There can be no dispute that the State’s evidence satisfied the requirements of the Protected Person Statute under subsection (e)(i) and (iii). Here, both Dr. Jones and Clevenger testified that it would be more stressful, therefore, implying that it would be more traumatic for K.N. to testify in the same room with McKinney. …
… Therefore, we conclude the that trial court abused its discretion in denying the State’s motion to allow to K.N. testify via closed-circuit television at McKinney’s trial.
Reversed and remanded.
Najam, J. and Bradford, J. concur