                                                                        Aug 04 2015, 10:02 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                        Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Cynthia L. Ploughe
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Stephen Ferguson,                                         August 4, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A04-1412-CR-557
                 v.                                             Appeal from the Marion Superior
                                                                Court.
                                                                The Honorable Lisa Borges, Judge.
      State of Indiana,                                         Cause No. 49G04-1404-FA-017352
      Appellee-Plaintiff.




      Sharpnack, Senior Judge


                                          Statement of the Case
[1]   Stephen Ferguson appeals from his conviction of two counts of Class A felony
                              1
      child molesting, contending that the trial court committed errors which




      1
          Ind. Code § 35-42-4-3 (2007).


      Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015                   Page 1 of 9
      individually and cumulatively amounted to reversible error denying Ferguson a

      fair trial. We affirm.


                                                     Issues
[2]   Ferguson presents the following issues for our review:

              I.       Whether the trial court abused its discretion by failing to
                       inform the jury that certain testimony had been struck
                       from the record;
              II.      Whether the trial court acted as a witness during trial in
                       violation of Indiana Rule of Evidence 605; and
              III.     Whether the errors cumulatively amount to fundamental
                       error.

                                Facts and Procedural History
[3]   A.W. was six years old at the time of the incidents leading to the charges

      against Ferguson. Although her parents were no longer in a relationship, A.W.

      lived with her mother, K.R., while her father, G.W., had liberal visitation with

      A.W. She would stay with her mother during the week and would spend

      weekends with her father. There was no animosity between the two parents.


[4]   In January 2014, K.R. began a relationship with Ferguson. Initially, Ferguson

      would spend nights with K.R. at her home and by March had moved in with

      her. Almost immediately after Ferguson moved in, he developed an “issue”

      with A.W. spending time with her father. Tr. p. 123. K.R. saw nothing wrong

      with A.W. spending time with G.W., but relented after many arguments with

      Ferguson involving threats that he would leave her. A.W. did not visit her


      Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015        Page 2 of 9
      father for a couple of weekends per Ferguson’s wishes, but eventually she was

      allowed to resume visitation with her father after Ferguson acquiesced.


[5]   On several occasions, while at her mother’s house, A.W. would awake at night

      to feel something “wet” on her private areas, which she described as the area

      she used to pee. Tr. pp. 14, 16. After opening her eyes, she would see

      Ferguson between her legs below her vagina licking her like he was “licking a

      sucker.” Id. at 16, 19. When A.W. would try to close her legs, Ferguson would

      push them open with his hands. This occurred on more than one occasion.


[6]   A.W. told her father what Ferguson had done, and G.W. immediately took

      A.W. to her grandmother’s house. While A.W. was talking to her

      grandmother, A.W.’s aunt and mother arrived and heard A.W.’s account of

      what Ferguson had done. A.W. was taken to the hospital for an examination

      and was later interviewed by a forensic interviewer.


[7]   The State charged Ferguson with two counts of Class A felony child molesting.

      At Ferguson’s jury trial, A.W. was the first witness and testified what Ferguson

      had done to her and repeated that account during cross-examination. The next

      witness called by the State was G.W. who testified on direct examination about

      what happened after A.W. told him of Ferguson’s actions. During cross-

      examination of G.W. the following occurred:

              Q:       [by defense counsel, BJ] And then you came downtown
                       or came somewhere to make a police report the next day?
              A:       No, they had us go to the Child Protective Services, I
                       think.

      Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015    Page 3 of 9
        Q:       [by BJ] Okay. And did you take A.W. there?
        A:       Yes.
        Q:       [by BJ] Her mom as well?
        A:       Yeah, all of us was in the room. A.W. – they took her in
                 the other room by herself –
        Q:       [by BJ] Right.
        A:       -- and let her talk. And when she came out, the detectives
                 told her that they believe her.
        [by BJ]           Judge, we would strike that last statement.
        [G.W.]            Why?
        [The Court] Okay.
        [G.W.]            Tell the whole truth.
        [The Court] Okay. Just – I’m sorry. If the parties would
        approach?
Side Bar Colloquy Out Of Hearing Of Jury

        [The Court] What was the basis for striking that?
        [BJ]              He – I don’t know if you heard him. He said the
                          detectives told us they believe her.
        [The Court] Well—
        [BJ]              I mean –
        [The Court] Right. I’ll show it to be stricken. I’ll admonish the
                    jurors.
End Side Bar Colloquy

        [The Court] Ladies and gentlemen, you know, you’re to – you’re
                    to base your decision on the testimony that you hear
                    and see today. And you’re to make your decision as
                    to the credibility of each witness, all right. The
                    opinions of other people, though heartfelt, are not
                    something you can consider, all right.
Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015       Page 4 of 9
               [BJ]              Thanks, Judge.
               [The Court] Mm-hmm.
       Tr. pp. 77-78. Defense counsel continued cross-examination and the trial

       proceeded.


[8]    The jury found Ferguson guilty of both counts of Class A felony child

       molesting. The trial court sentenced Ferguson to concurrent terms of forty

       years to be served in the Department of Correction. Ferguson now appeals.


                                     Discussion and Decision
                   I. Failure to Inform Jury Testimony Was Struck
[9]    Although the trial court did admonish the jury not to consider the opinions of

       other people about the credibility of a witness, Ferguson claims that the trial

       court made a reversible error by not specifically telling the jury it had stricken

       “the detectives told her that they believe her.” Id. at 77.


[10]   Ferguson argues that the trial court abused its discretion in not telling the jury

       the statement had been struck from the record. However, that argument is not

       available to Ferguson because he made no objection to the admonishment on

       any ground. Rather his counsel thanked the court for giving the

       admonishment.


[11]   The failure to properly object at trial waives any error on appeal. Banks v. State,

       567 N.E.2d 1126, 1129 (Ind. 1991). Having made no objection to the

       admonishment, the only line of argument open to Ferguson would be to argue

       that it was fundamental error to not advise the jury that the challenged
       Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015     Page 5 of 9
       testimony had been struck and, in effect, allow the improper vouching

       testimony to stand. Cases have reviewed instances of vouching testimony as

       fundamental error. For example in Kindred v. State, 973 N.E.2d 1245, 1257-58

       (Ind. Ct. App. 2012), trans. denied, the issue of vouching for the credibility of a

       victim of child molesting was examined for fundamental error, and we

       acknowledged the elimination of the vouching testimony exception in child

       molesting cases as announced in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012).

       Likewise, in Bean v. State, 15 N.E.3d 12, 22-23 (Ind. Ct. App. 2014), trans.

       denied, we concluded that the vouching testimony of two key witnesses, the

       victim’s mother and the DCS investigator, in addition to instances of

       prosecutorial misconduct constituted fundamental error requiring a reversal of

       the defendant’s convictions.


[12]   However, Ferguson makes no argument that it was fundamental error in his

       opening brief or in his reply brief after the State in its appellee’s brief made the

       points that there had been no objection in the trial court and no contention of

       fundamental error on appeal. The issue of the trial court’s failure to advise the

       jury that it had struck the challenged testimony is waived.


                                         II. Evidence Rule 605
[13]   Ferguson challenges the trial court’s use in its admonishment to the jury of the

       words “though heartfelt” in referring to the opinions of others as to the

       credibility of witnesses. Tr. p. 78. Ferguson argues that in using those words

       the trial court violated Evidence Rule 605, which provides:


       Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015      Page 6 of 9
               The presiding judge may not testify as a witness at the trial. A
               party need not object to preserve the issue.
       As we have indicated, Ferguson made no objection to the trial court’s

       admonition. However, as the rule provides, no objection is required to raise an

       Evidence Rule 605 claim of error on appeal.


[14]   Although Ferguson vigorously argues the issue of the claimed testimony of the

       trial court as a witness in violation of Evidence Rule 605, the State does not

       address the issue in its appellee’s brief. Where an appellee’s brief fails to

       address an issue raised by an appellant in the opening brief, it is the same, as to

       that issue, as though the appellee filed no brief. Cox v. State, 780 N.E.2d 1150,

       1162 (Ind. Ct. App. 2002). Where an appellee files no brief, we review to

       determine if the appellant has made a prima facie showing of reversible error.

       Id. A prima facie showing is error at first sight, on first appearance, or on the

       face of it. Id.


[15]   It is obvious here that the trial judge was not sworn in as a witness and did not

       “testify” in the usual sense of that word. The question is whether her use of the

       words “though heartfelt” was sufficiently testimonial in nature to violate

       Evidence Rule 605. There are no Indiana cases addressing the issue of what

       constitutes impermissible judicial testimony under Indiana Evidence Rule 605,

       leading us to turn to other sources to guide us in our resolution of this issue.


[16]   The reason for the broad rule prohibiting a judge from testifying as a witness in

       a trial or a proceeding over which he or she is presiding is that taking the role of

       a witness is inconsistent with the judge’s customary duty of impartiality. 98

       Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015     Page 7 of 9
       C.J.S. § 185 (2015). Both the federal and state evidentiary rules provide a bright

       line test with respect to that conduct in terms of the judge stepping down from

       the bench, being sworn in, and actually taking the witness stand. As Judge

       Miller observes, however, the rule provides less of a bright line where a judge

       may become a witness in “less overt ways.” Robert Lowell Miller, Jr., 13 Ind.

       Practice, Indiana Evidence § 605.101 (3d ed.). “Indiana Rule 605 should be

       interpreted the same way as the federal rule on this issue. Regional Advisory

       Committee unofficial commentary to Ind. Evid. Rule 605, Appendix B (‘Rule

       605 applies even if the judge testifies without being formally called as a

       witness.’)”. Id. n.7.


[17]   Although several of the cases Miller cites involve challenges brought under

       Federal Rule of Evidence 605, resolution of the question whether the particular

       judge has become a witness in one of those “less overt ways” often involves

       analysis falling under judicial fair comment and not the evidentiary rule. Error

       is found where the judge’s comments add to the evidence and are not merely

       summarizations of or fair comment on evidence already adduced at trial.


[18]   The origin of the fair comment analysis appears to come from a case pre-dating

       the federal rule. See Quercia v. United States, 289 U.S. 466, 472, 53 S. Ct. 698, 77

       L. Ed. 1321 (1933) (judicial commentary about how defendant’s wiping of his

       hands while testifying was behavior classically indicative of lying found to be

       reversible error). A few cases involving challenges brought under the federal

       rule use that fair comment analysis. See e.g., United States v. Paiva, 892 F.2d 148,

       159 (1st Cir. 1989) (trial judge’s commentary explaining to jury difference

       Court of Appeals of Indiana |Opinion 49A04-1412-CR-557 | August 4, 2015      Page 8 of 9
       between field testing and lab analysis while ruling on objection was error but

       harmless); United States v. Nickl, 427 F.3d 1286, 1294-95 (10th Cir. 2005)

       (reversible error committed when judge commented on intent element of aiding

       and abetting charge by stating that he accepted witness’s guilty plea in

       companion case because he was convinced of her intent); United States v.

       Blanchard, 542 F.3d 1133, 1151-53 (7th Cir. 2008) (reversible error where judge

       told jury statement he made about government witness’s credibility in

       suppression hearing, which was read into record by prosecution, was his

       statement and judicial testimony).


[19]   We find here that the trial court’s use of “though heartfelt” was not testimony

       and was not improper comment on an issue to be decided by the jury. The trial

       court instructed the jury not to consider the opinions of others as to the

       credibility of witnesses. “Though heartfelt” emphasized the instruction by

       saying it was not relevant how “heartfelt” the opinions may have been.


                                         III. Cumulative Error
[20]   Ferguson claims that the irregularities at trial cumulatively amount to reversible

       error. Here, having found no error we need not consider whether the alleged

       errors amounted to cumulative error.


[21]   Affirmed.


       Bailey, J., and Barnes, J., concur.




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