                                                                        FILED
                                                                    Sep 18 2019, 8:19 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Robert P. Harper                                           Curtis T. Hill, Jr.
Harper & Harper, LLC                                       Attorney General of Indiana
Valparaiso, Indiana                                        Caroline G. Templeton
                                                           Deputy Attorney General
                                                           Dawn Rauch
                                                           Certified Legal Intern
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Phillip B. Kress,                                          September 18, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-490
        v.                                                 Appeal from the Porter Superior
                                                           Court
State of Indiana,                                          The Honorable Jeffrey W. Clymer,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           64D02-1506-F1-4614



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019                       Page 1 of 12
                                           Case Summary
[1]   Following a jury trial, Phillip B. Kress (“Kress”) was convicted of Child

      Molesting, as a Level 4 felony.1 He now appeals. We affirm.



                                                     Issues
[2]   Kress raises two issues, which we restate as follows:


                 I.       Was it error for the trial court to admit certain testimony
                          referring to the victim’s out-of-court statements; and


                 II.      Whether sufficient evidence supports the conviction.


                                Facts and Procedural History
[3]   The State charged Kress with Child Molesting, as a Level 4 felony. Kress filed

      a motion in limine, seeking to exclude evidence regarding the course of the

      investigation as well as repetitive testimony from witnesses other than the

      alleged victim regarding her out-of-court allegations against Kress. App. Vol. II

      at 76-77. Kress articulated concerns about relevance and “creating a prejudicial

      ‘drumbeat repetition’ of [the] victim’s allegation[s] and story.” Id. at 77. The

      court ordered that the alleged victim’s testimony “must precede any testimony




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


      Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019             Page 2 of 12
      from other witnesses” regarding the allegations. Id. at 81. The court also

      ordered that the testimony “may not include ‘vouching’ testimony.” Id.


[4]   Kress was brought to trial in October 2017. The first witness was H.K., the

      eight-year-old daughter of Kress and Melissa McNorton (“McNorton”). H.K.

      testified about spending the night at Kress’s house when she was five years old.

      At that time, H.K. lived with McNorton and saw Kress a couple of times each

      month. H.K. testified that, around bedtime, she was lying in a bed next to

      Kress while her sister was asleep on a separate mattress. H.K. testified that

      Kress used a green, glowing object to touch H.K.’s “privates” under her

      clothing. Tr. Vol. II at 105. Kress told H.K. not to tell anyone. Kress also

      asked H.K. to look at his “private.” Id. at 106. H.K. declined this request and

      went to sleep. H.K. later told family members about the contact.


[5]   After H.K. testified, the State called McNorton as its next witness. Kress

      sought a bench conference, at which he asserted the State was “just going to

      start calling in . . . witness after witness to say the child told them something.”

      Id. Kress objected, claiming this practice “is a form of vouching.” Id. at 117.

      The trial court agreed there could be a vouching issue with “people saying the

      same thing,” but the court would “have to wait and see what the State does.”

      Id at 118. The State then questioned McNorton, eliciting testimony that H.K.

      last went to Kress’s house for an overnight visit on January 2, 2015. McNorton

      testified that when H.K. later learned she would soon see Kress, H.K. “told”

      her grandfather. Id. at 125. McNorton testified she also had a conversation

      with H.K., and relayed H.K.’s allegations to the police. The State asked

      Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019      Page 3 of 12
      whether, in reporting the allegations, McNorton added to or subtracted from

      what H.K. had said. Kress objected, arguing some background testimony had

      been admissible, but the State could not keep referring to the victim’s out-of-

      court allegations: “[McNorton] said she got a statement, she told the police,

      that should be the end of it.” Id. at 127. The court overruled the objection, and

      McNorton testified that she told the police “what [H.K.] said.” Id. at 128.


[6]   Before calling its next witness, the State brought up the objection to vouching,

      acknowledging Kress’s concerns about “bringing in a string of witnesses” to

      refer to the out-of-court allegations. Id. at 135. The State said it did not intend

      to elicit testimony about H.K.’s specific out-of-court allegations, but that

      general testimony referring to those allegations had “important foundational

      information timing-wise” concerning “how this disclosure came out versus

      when it is alleged to have happened.” Id.at 136. At that point, Kress lodged a

      continuing objection to further testimony referring to H.K.’s allegations.


[7]   The State then elicited testimony from H.K.’s grandfather, who said he had a

      conversation with H.K. related to the reason for the trial. He testified the

      conversation led him to bring H.K. to McNorton and have H.K. repeat “what

      she said.” Id. at 140. He further testified he told McNorton that they “need[ed]

      to report this.” Id. at 141. He conducted online research concerning where to

      make the report, and eventually spoke with the police the following morning.


[8]   There was also testimony from a detective who described his investigation,

      noting there was a report of “child abuse,” id. at 158, and that he coordinated


      Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019      Page 4 of 12
       interviews about the “alleged abuse,” id. at 159. The detective also testified

       about the date of the “allegation,” id., mentioning police learned “the disclosure

       would have happened approximately six weeks after the incident, which is

       pretty fast,” id. at 160. The detective testified that he prepared a report and

       presented it to the State, and that a charge was drawn from that report.


[9]    The jury found Kress guilty of the Level 4 felony offense, for which Kress was

       sentenced to ten years in the Indiana Department of Correction.


[10]   Kress now appeals.



                                   Discussion and Decision
                                       Admission of Evidence
[11]   “The trial court has broad discretion to rule on the admissibility of evidence.”

       Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). We review evidentiary rulings

       for an abuse of discretion, which occurs when the ruling is clearly against the

       logic and effect of the facts and circumstances. Blount v. State, 22 N.E.3d 559,

       564 (Ind. 2014). Moreover, we may affirm an evidentiary ruling on any theory

       supported by the evidence. Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015).


[12]   Directing us to testimony from (1) McNorton, (2) the grandfather, and (3) the

       detective, Kress argues testimony referring to H.K.’s out-of-court allegations

       constitutes hearsay. Hearsay—which is generally inadmissible—is an out-of-

       court statement offered to prove the truth of the matter asserted. Ind. Evidence

       Rule 801(c); 802. Kress argues “the only reason for the State to offer the
       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019      Page 5 of 12
       statements was to bolster H.K.’s in-court testimony about abuse” and “establish

       the truth of the out-of-court allegations.” Br. of Appellant at 13. Kress further

       argues that “[a]ll of this testimony, at the very least, carried the very strong

       implication that H.K. made an out-of-court statement that [Kress] abused her.”

       Id. In response, the State does not appear to dispute that the challenged

       testimony referred to H.K.’s out-of-court assertions, and that the testimony

       would be inadmissible if offered to prove the truth of the matter asserted. The

       State contends the testimony was admissible because it was offered for other

       purposes: “to establish a timeline,” “to explain the justification for cancelling

       future visits between H.K. and Kress,” and “to provide a foundation for why

       the detective prepared a report and gave it to the State.” Br. of Appellee at 14.


[13]   In a criminal case, “[t]he core issue at trial is, of course, what the defendant did

       (or did not do), not why [someone else] did (or did not do) something.” Blount,

       22 N.E.3d at 565 (emphasis removed). For this reason, the Indiana Supreme

       Court has urged courts to take caution when a prosecutor offers an otherwise-

       inadmissible assertion for the purpose of providing context for the jury. See id.

       at 565-67. Indeed, when an out-of-court assertion is offered for some ancillary

       purpose, “we must pay careful attention” to that proffered purpose. Id. at 566.

       This is because Indiana Evidence Rule 403 contemplates exclusion where the

       probative value of the evidence is “substantially outweighed by a danger

       of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,

       or needlessly presenting cumulative evidence.” Evid. R. 403; see also Blount, 22

       N.E.3d at 565 (noting course-of-investigation testimony “is of little value absent


       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019       Page 6 of 12
       a direct challenge to the legitimacy of the investigation”). In short, Indiana law

       does not permit minimally probative end runs around the rule against hearsay.

       See Blount, 22 N.E.3d at 565. Thus, “[i]f the fact sought to be proved under the

       [proffered] non-hearsay purpose is not relevant, or it is relevant but its danger of

       unfair prejudice substantially outweighs its probative value, the hearsay

       objection should be sustained.” Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994).


[14]   One danger of prejudice arises in the “drumbeat repetition” of an out-of-court

       assertion. See, e.g., Modesitt v. State, 578 N.E.2d 649, 651-52 (Ind. 1991).

       Indeed, in light of a proffered non-hearsay purpose, exclusion might not be

       warranted where there is a mere isolated reference to an assertion. See Evid. R.

       403. However, as additional testimony about the assertion “beats the drum,”

       there is increasing danger the jury will use the testimony for an improper

       purpose. For example, the jury might use the testimony as proof of the matter

       asserted. See, e.g., Blount, 22 N.E.3d at 568 (suggesting a limiting instruction

       might avoid this risk). Or, the jury could treat the repetitive testimony as a

       form of vouching for the credibility of the declarant. See, e.g., Modesitt, 578

       N.E.2d at 651. As to the latter risk, this type of problematic vouching is not the

       blatant type prohibited by Evidence Rule 704(b)—where a witness directly

       opines about “the truth or falsity of allegations” or “whether a witness has

       testified truthfully.” Evid. R. 704(b). Rather, the risk is insidious. That is, the

       repeated references might eventually inundate the jury, leading them toward an

       inference that witnesses are vouching for the credibility of the declarant. See,

       e.g., Stone v. State, 536 N.E.2d 534, 540 (Ind. Ct. App. 1989) (identifying


       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019      Page 7 of 12
       impermissible vouching where the victim’s credibility “became increasingly

       unimpeachable as each adult added his or her personal eloquence, maturity,

       emotion, and professionalism to [the] out-of-court statements”), trans. denied.


[15]   Kress argues that the challenged testimony constituted unduly prejudicial

       “drumbeat repetition,” and that the testimony should have been excluded.

       Nonetheless, assuming arguendo Kress has identified evidentiary error, this

       Court is obligated to disregard harmless error. See Ind. Appellate Rule 66(A)

       (requiring us to disregard error that does not affect a party’s substantial rights).

       Error is harmless if the conviction is supported by “substantial independent

       evidence of guilt” satisfying us there is “no substantial likelihood that the

       questioned evidence contributed to the conviction.” Lafayette v. State, 917

       N.E.2d 660, 666 (Ind. 2009). “Put another way, ‘we judge whether the jury’s

       verdict was substantially swayed. If the error had substantial influence, or if

       one is left in grave doubt, the conviction cannot stand.’” Williams v. State, 43

       N.E.3d 578, 583 (Ind. 2015) (quoting Lafayette, 917 N.E.2d at 666).


[16]   Indiana courts have identified reversible error where the challenged testimony

       repeated the victim’s specific allegations. See, e.g., Kindred v. State, 973 N.E.2d

       1245, 1248-51 (Ind. Ct. App. 2012) (involving repetition of the victim’s specific

       allegations of molestation), abrogated on other grounds; Stone, 536 N.E.2d at 540

       (“The trial court abused its discretion by admitting all seven statements in their

       entirety. The undue prejudice . . . of repeating [the victim’s] out-of-court

       statement six times far outweighed the probative value of such testimony.”).

       Moreover, the Indiana Supreme Court has expressed particular concern about

       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019       Page 8 of 12
       eliciting this sort of specific, repetitive testimony before the victim ever testifies.

       See Modesitt, 578 N.E.2d at 651 (noting that “[p]rior to putting the victim on the

       stand, the victim’s veracity had been, in essence, vouchsafed by permitting the

       three witnesses to repeat” the specific allegations). Here, however, the ruling

       on the motion in limine prevented the type of testimony warranting reversal in

       those cases. Indeed, here, H.K. was the first witness to testify and she was

       subjected to cross-examination. She gave specific, descriptive testimony about

       the touching. The subsequent witnesses gave only general testimony about the

       existence of allegations. No subsequent witness delved into H.K.’s version of

       events. Thus, unlike in other cases, here, the jury heard H.K.’s story just once.


[17]   In seeking reversal, Kress claims the case “turned on H.K.’s testimony,” and

       the State did not offer “physical evidence or additional testimonial evidence” to

       support H.K.’s allegation. Br. of Appellee at 13. We are not unmindful that

       there is a fine line between impermissible vouching testimony and admissible

       corroboration testimony—especially where, as here, the case turns on whether

       the jury found the victim to be credible. However, in light of the general nature

       of the challenged testimony—which followed H.K.’s specific testimony—we

       ultimately conclude that there is no substantial likelihood that the challenged

       testimony contributed to the jury’s decision to convict Kress. Any error is

       harmless. See, e.g., Surber v. State, 884 N.E.2d 856, 864 (Ind. Ct. App. 2008)

       (determining any error was harmless where the victim testified first and the

       subsequent testimony was “brief, consistent with, and did not elaborate upon”

       the victim’s testimony), trans. denied.; McGrew v. State, 673 N.E.2d 787, 796


       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019         Page 9 of 12
       (Ind. Ct. App. 1996) (declining to find reversible error where, although the

       victim was not the first to testify, the challenged testimony was “brief and

       consistent with” the victim’s later testimony), summarily aff’d in pertinent part.


                                      Sufficiency of Evidence
[18]   “A person may be convicted of an offense only if his guilt is proved beyond a

       reasonable doubt.” I.C. § 35-41-4-1(a). Here, the State could meet its burden

       by proving, beyond a reasonable doubt, Kress touched H.K.—a child under the

       age of fourteen—“with intent to arouse or to satisfy the sexual desires” of either

       H.K. or Kress. I.C. § 35-42-4-3(b). In reviewing for sufficient evidence, we

       neither reweigh evidence nor judge credibility of witnesses. Bowles v. State, 737

       N.E.2d 1150, 1151-52 (Ind. 2000). Moreover, “[w]e view all evidence and

       reasonable inferences drawn therefrom in a light most favorable to the

       conviction.” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). We affirm if

       there is substantial evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. McElfresh v. State,

       51 N.E.3d 103, 107 (Ind. 2016). Furthermore, it is well-established that the

       State can meet its burden through the uncorroborated testimony of a single

       witness. Sallee v. State, 51 N.E.3d 130, 135 (Ind. 2016). This is so “even when

       that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[19]   Kress challenges the sufficiency of evidence presented at trial. He does not,

       however, challenge the sufficiency of evidence that he touched H.K., who was

       under the age of fourteen—and we discern no deficiency concerning these


       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019      Page 10 of 12
       elements. Kress instead challenges the sufficiency of evidence that he intended

       the touching to arouse or to satisfy the sexual desires of either H.K. or Kress.

       “The intent element of child molesting may be established by circumstantial

       evidence and may be inferred from the actor’s conduct and the natural and

       usual sequence to which such conduct usually points.” Bowles, 737 N.E.2d at

       1152.


[20]   Kress claims the State “did not establish how long the touching lasted” and

       there was no evidence Kress “touched his own privates or did anything to

       suggest that he was sexually aroused.” Br. of Appellant at 10. Kress argues the

       State did not “offer the ‘glowing thing’ into evidence or establish what it was.”

       Id. Kress also points out the evidence concerned only a “single incident.” Id.


[21]   We must decline Kress’s invitation to reweigh evidence, and instead focus on

       evidence presented at trial. Here, H.K. testified Kress touched her “privates,”

       under her clothes, with a green, glowing object. H.K. further testified it tickled

       when Kress touched her in this manner. After touching H.K. with the object,

       Kress told H.K. not to tell anyone. Kress also asked H.K. to view his “private.”


[22]   Kress directs us to J.V. v. State, wherein this Court affirmed a conviction of

       Child Molesting, identifying sufficient evidence of sexual intent. 766 N.E.2d

       412 (Ind. Ct. App. 2002), trans. denied. There, the victim testified he felt a hard

       object touch his bottom, and heard the defendant say it would only hurt for a

       little while. Id. at 415-416. The victim pulled back the covers, saw the

       defendant’s exposed “privates,” and felt a wetness near the area of the touching.


       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019     Page 11 of 12
       Id. at 416. Kress compares the instant evidence to the evidence in J.V., arguing

       the evidence of sexual intent was stronger in J.V. However, J.V. does not

       establish a minimum standard of evidence to support a conviction. We must

       instead apply our well-established standard of review. In doing so, we identify

       sufficient evidence from which a reasonable jury could conclude, beyond a

       reasonable doubt, Kress intended to arouse his or H.K.’s sexual desires. 2


[23]   We conclude that sufficient evidence supports the conviction.


[24]   Affirmed.


       Najam, J., and May, J., concur.




       2
         At the close of the State’s case-in-chief, Kress moved for judgment on the evidence pursuant to Indiana
       Trial Rule 50. He asks that, “[i]n addition to a sufficiency review,” we review the denial of that motion. Br.
       of Appellant at 9. A court may grant a Trial Rule 50 motion only “where there is a total absence of evidence
       on some essential issue or where the evidence is without conflict and susceptible [of] only one inference, an
       inference favorable to the defendant.” State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987). For the reasons
       set forth above, we conclude the court did not err by denying the motion for judgment on the evidence.

       Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019                            Page 12 of 12
