MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Feb 29 2016, 10:16 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William M. Hardison,                                    February 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A01-1504-CR-273
        v.                                              Appeal from the Floyd Superior
                                                        Court
State of Indiana,                                       The Honorable Susan Orth, Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        22D01-1303-FB-590



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016     Page 1 of 23
                                   Case Summary and Issues
[1]   Following a jury trial, William Hardison1 was convicted of one count of child

      molesting as a Class A felony and one count of child molesting as a Class C

      felony. He received an aggregate sentence of forty-five years executed in the

      Indiana Department of Correction. Hardison appeals his convictions and

      sentence, raising four issues for our review, which we consolidate and restate as

      1) whether the trial court committed fundamental error in admitting certain

      evidence; and 2) whether Hardison’s sentence is inappropriate in light of the

      nature of the offenses and his character. Concluding the trial court did not

      commit fundamental error in the admission of evidence and Hardison’s

      sentence is not inappropriate in light of the nature of the offenses and his

      character, we affirm.



                                Facts and Procedural History
[2]   Born in 1999, J.C. grew up with her mother, D.C;2 J.C.’s father abandoned the

      family when J.C. was two years old. Shortly thereafter, D.C befriended her

      neighbor, Hardison. When J.C. turned five years old, Hardison offered to

      babysit J.C. Needing a break, D.C agreed. Hardison began spending more

      alone time with J.C., including taking J.C. to the park and playing video games




      1
          Hardison often went by the nickname “Billy.”
      2
          To enhance the child victim’s privacy, we abbreviate her mother’s name as well.


      Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 2 of 23
      in his apartment. Recognizing J.C. did not have a fatherly figure in her life,

      Hardison began to act as one, and J.C. would sometimes call Hardison “dad.”

      At some point, Hardison moved to a new apartment, but continued to spend

      alone time with J.C. at his apartment.


[3]   In early February 2013, thirteen-year-old J.C. visited Hardison’s apartment.

      According to J.C.,


              [A]round February 4th or 5th . . . he had asked if I would put in a
              movie and he had on his TV stand, he had, uh, there was, uh, the
              TV was here and the Playstation always stayed right underneath
              of it and it had drawers and he had the movies in there and I took
              the movies out and laid them across the floor and there was one
              in particular that I asked about, because it had naked women on
              the front of it, and I asked what it was, and he said it’s just a
              porno, and I asked what it was and he told me to stick it in.
              Well, I did and I turn, I eventually took it out and put in an
              actual movie, and uh, a little bit later after the mo- the, we had
              watched a scary movie and after that movie was finished, uh the
              dog was, uh, jumping on the couch, so I started playing with him
              and, uh, I started running around the house with him and, uh, I
              had walked into Billy’s bedroom and I sat on the bed to play with
              the dog and Billy sat up on the bed with me and he asked if he
              could touch my breast and I said, I said no, and then he asked if
              he could have sex with me and I said no. And then he just
              stopped asking and then Spike, [the dog], acted like he wanted to
              go to the restroom, so I let him out, because in Billy’s bedroom
              the balcony was, uh, hooked to his bedroom, and I let Spike out
              and I sat on the bed and he asked if he could touch my breast
              again and I said no and he lifted my shirt and he touched my
              breast and then he asked if I would give him oral sex, and I asked
              him if he would quit asking if I did and he said yes, so I did.



      Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 3 of 23
      Transcript at 288-89. Hardison ejaculated into J.C.’s mouth. J.C. “[s]pit it out

      in the sink and rinsed [her] mouth out.” Id. J.C. did not tell her mother

      because “often [Hardison] would tell me not to tell her that things were

      happening because it was normal” for “[a] father and daughter.” Id. at 292.


[4]   On February 15, Hardison invited J.C. over to his apartment, stating he had a

      gift for her. When J.C. arrived, Hardison gave her a “dog key chain thing and a

      Valentine heart, little one with chocolates in it.” Id. at 293. During the visit

      Hardison again requested J.C. perform oral sex on him. J.C. refused, but

      Hardison grabbed J.C.’s hand and forced J.C. to stroke his penis. J.C.

      attempted to stop when Hardison removed his hand from J.C.’s hand, but then

      Hardison put his hand back and told J.C. to keep going. Hardison ejaculated

      on J.C.’s hand. After Hardison returned J.C. to her mother’s residence, J.C. sat

      in her room and cried; again, she did not tell her mother. At some point

      unclear from the record, J.C. disclosed Hardison’s acts of molestation to her

      neighbor, Jasmine Ross. Ross told D.C., and D.C. called the police.


[5]   The Indiana Department of Child Services (“DCS”) assigned Margaret Kochert

      to J.C’s case, and Kochert scheduled a forensic interview with Rebecca

      Sanders, a child forensic interviewer with the Family and Children’s Place. At

      the forensic interview, J.C. disclosed Hardison’s acts of molestation. On

      February 27, Detective Kelly Brown with the New Albany Police Department

      interviewed Hardison about J.C.’s allegations, and Hardison denied molesting

      J.C. and denied owning pornographic movies. Hardison later submitted to a

      stipulated polygraph examination. During the examination, the examiner

      Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 4 of 23
      asked Hardison whether he had oral sex with J.C. and whether J.C. performed

      oral sex on him. Hardison denied both allegations, but his responses indicated

      deception. When questioned about his deception by Detective Brown,

      Hardison continued to deny any acts of molestation and stated, “I hope that girl

      burns in hell.” Id. at 118. Despite previously stating he did not own

      pornographic material, Hardison admitted J.C. turned on a video game console

      and a pornographic movie started playing. Hardison also stated he thought

      J.C. had a crush on him and there was one incident where she sat on his lap

      and gave him a kiss.


[6]   On March 19, the State charged Hardison with two counts of child molesting as

      Class B felonies. The State later amended Count I to a Class A felony and

      Count II to a Class C felony. At trial, the State called numerous witnesses,

      including J.C.; Hardison testified J.C.’s allegations were false. The jury found

      Hardison guilty of both counts. The trial court entered a judgment of

      conviction and sentenced Hardison to forty-five years for the Class A felony

      conviction and eight years for the Class C felony conviction, to be served

      concurrently. This appeal ensued. Additional facts will be added as necessary.




      Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 5 of 23
                                Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[7]   Hardison contends the trial court committed fundamental error in admitting

      repetitious testimony, vouching testimony, and testimony of Hardison’s prior

      uncharged acts of molestation. On appeal, we afford the trial court wide

      discretion in ruling on the admissibility of evidence. Beasley v. State, No. 49S02-

      1601-CR-20, 2016 WL 166541, at *2 (Ind. Jan. 14, 2016). In such

      circumstances, our review is limited to determining whether the trial court

      abused that discretion. Id. However, because Hardison did not

      contemporaneously object to the admission of the evidence at trial, a fact he

      concedes, the claims of error are waived. See Jackson v. State, 735 N.E.2d 1146,

      1152 (Ind. 2000). Consequently, we will only reverse the trial court if the trial

      court committed fundamental error in the admission of evidence. Brown v.

      State, 929 N.E.2d 204, 207 (Ind. 2010). The fundamental error exception is

      extremely narrow. Id. “Fundamental error is a substantial, blatant violation of

      due process that must be so prejudicial to the rights of a defendant as to make a

      fair trial impossible.” Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (internal

      quotation marks and citation omitted).


                                    B. Challenged Testimony
[8]   Hardison contends the trial court committed fundamental error in admitting the

      testimony of five witnesses, including J.C. First, Hardison cites to Detective

      Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 6 of 23
Brown’s testimony about the lack of DNA evidence. Specifically, Detective

Brown stated there is likely no DNA evidence when there is an allegation of

oral sex and fondling made ninety-six hours after the alleged acts of

molestation. In addition, Detective Brown testified at length regarding the

process of investigating claims of child molestation. As a part of this process,

Detective Brown explained once an allegation of child abuse is made, he

schedules an interview for the child at the Child Advocate Center to see if the

child discloses abuse during the interview.

        [State:] And if they disclose you’re looking for signs they
        fabricated, is that correct?
        [Detective Brown:] Uh, obviously, uh, through that
        investigation, through that testimony, yes, we’re looking for any
        signs or any type of motivation for any of the story to be
        fabricated.
        [State:] And if you don’t see those signs and they disclose, then
        what do you do?
        [Detective Brown:] A true investigation will then ensue.


Tr. at 86-87. Thereafter, the State asked what steps Detective Brown took to

corroborate J.C.’s disclosure:

        [Detective Brown:] Uh, like I said, there was certain [sic]
        individuals that were mentioned within, uh, the interview, so I
        began reaching out to them, making phone calls and stuff. And
        at times, uh, during any investigation with the police, a lot of
        times it’s very difficult. Uh, we make phone calls, we don’t get
        returned phone calls, we knock on doors, we might not get an
        answer and we leave a business card, but a lot times [sic] we
        don’t get a call back, that there were a chance to make, get a hold
        of certain individuals in this case.

Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 7 of 23
               [State:] And in your opinion, was there, at this point, you were
               able to corroborate enough to move on into the investigation?
               [Detective Brown:] Yes, Ma’am.
               [State:] And how did you move forward in the investigation?


       Id. at 91. Hardison did not object, and Detective Brown continued to testify

       about the steps he took to move forward in the investigation.


[9]    On cross-examination, Hardison’s counsel also stated the allegations on at least

       one occasion, observing, “But that’s a long way from fondling her and having

       him be masturbated and oral sex and all that stuff.” Id. at 146-47. Moreover,

       Hardison elicited testimony from Detective Brown about how he corroborated

       J.C.’s allegations, and Detective Brown testified that he discovered the acts of

       molestation had been occurring since J.C. was five or six years old. Hardison

       did not move to strike but instead, immediately questioned Detective Brown

       about why the State did not charge Hardison with those acts of molestation.

       Detective Brown stated J.C. struggled to recall specific dates because the acts of

       molestation had occurred for many years. Again, Hardison did not move to

       strike and continued to ask questions about the exact dates Hardison molested

       J.C.


[10]   On re-direct, Detective Brown stated that the acts of molestation began when

       J.C. was five or six years old. Hardison objected, arguing the line of

       questioning lacked relevancy. The State argued the defense previously opened

       the door to the line of questioning in its cross-examination of Detective Brown,




       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 8 of 23
       and the trial court agreed, overruling the objection. Thereafter, Detective

       Brown testified:


               [State:] Tell me, tell me what starts at five (5) or six (6). Let’s go
               through it.
               [Detective Brown:] Um, [J.C.], during the initial police report,
               through the Child Advocate Center interview, had uh, had made
               statements that Mr. Hardison had been, uh, molesting her since
               that-that age, had been doing, uh, had been giving Mr. Hardison
               oral sex and had been masturbating him for, uh, multiple,
               multiple times.
               [State:] What started off first?
               [Detective Brown:] I believe it was the, uh, the masturbating by
               hand.


       Id. at 157-58.


[11]   Second, Hardison cites to Kochert’s testimony. At trial, Kochert testified that

       she substantiated J.C.’s allegation. Kochert stated that when she substantiates

       an allegation of molestation, that means she believes that it did occur, but

       clarified:

               [State:] So I do want to be clear. When you say substantiate,
               you don’t mean that they’re a hundred percent (100%) guilty, do
               you, you just mean there’s a factual foundation on which to
               move forward.
               [Kochert:] Correct.
               [State:] So at that point there’s no real way to determine whether
               these things are actually true, it’s just, uh, a way then you can
               proceed with the investigation?
               [Kochert:] Correct.
               [State:] So in this case, did you substantiate or not?
               [Kochert:] Yes, we substantiated.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 9 of 23
       Id. at 194. At the completion of Kochert’s testimony, the trial court was

       concerned Kochert may have vouched for J.C.’s credibility and offered to

       provide the jury with a limiting instruction. Hardison refused the offer, stating,

       “It’d just be, it call, it calls attention to that fact. I think [the State] handled her

       great. I have no objections to it.” Id. at 306.


[12]   Third, Hardison cites to Sanders’s testimony. Sanders testified at trial about her

       forensic interview with J.C., and Sanders stated she found J.C.’s statements

       describing the acts of molestation to be consistent. Fourth, Hardison cites to

       Ross’s testimony that J.C. had disclosed Hardison’s acts of molestation to her.

       Finally, Hardison cites to J.C.’s testimony.

               [State:] Now, you used the term oral sex. Is that how he said it?
               [J.C.] No.
               [State:] What did he say?
               [J.C.] He asked if I would suck his dick.
               [State:] How in the world would you know how to do that?
               [J.C.] He had me do it since I was little.


       Id. at 289. Hardison did not object.


[13]   Hardison contends the trial court committed fundamental error in admitting the

       above testimony because, when taken together, the testimony amounted to a

       drumbeat repetition of J.C.’s allegations, impermissible vouching testimony,

       and testimony of Hardison’s prior uncharged acts of molestation.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 10 of 23
                                         1. Repetitious Testimony

[14]   Hardison argues the trial court committed fundamental error when it permitted

       several of the State’s witnesses to recount J.C.’s allegations before J.C. took the

       stand. Specifically, Hardison cites to Modesitt v. State, 578 N.E.2d 649 (Ind.

       1991), and argues the State—through the testimony of Detective Brown, Ross,

       Kochert, and Sanders—created a prejudicial drumbeat repetition of the

       allegations against him. The State argues the witnesses only briefly

       acknowledged the nature of the allegations and did not present lengthy and

       repetitious hearsay evidence of J.C.’s allegations. We agree with the State.


[15]   In Modesitt, the State charged Modesitt with three counts of child molestation

       and one count of criminal deviate sexual conduct. At trial, the victim’s mother,

       a welfare caseworker, and a psychologist all testified before the victim. The

       trial court allowed, over objection, each witness to testify as to what the victim

       had told each of them concerning the acts of molestation. For example, the

       mother testified to several “instances of molestation involving breasts, vagina

       and penis that occurred . . . .” Id. at 650. The child welfare caseworker testified

       as to what the victim had disclosed in the interview, which overlapped the

       specific details the mother had testified to. In addition, the psychologist also

       “testified in a videotaped deposition as to what the victim had related to her

       concerning these same, and additional, instances of sexual molestation.” Id.

       The Court noted that “by putting into evidence the victim’s out-of-court charges

       against Modesitt by three separate and repetitive witnesses prior to calling the

       victim herself, the prosecutor effectively precluded Modesitt from effective cross

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 11 of 23
       examination of the[] charges.” Id. at 651 (emphasis in original). Such

       testimony essentially “vouchsafed” the victim’s veracity. Id.


[16]   At the outset, we note the four witnesses cited by Hardison all testified before

       J.C. testified. Unlike the witnesses in Modesitt, however, Ross’s, Kochert’s, and

       Sanders’s testimony merely provided, in some general fashion, that J.C.

       disclosed sexual abuse; the testimony was brief and no witness elaborated upon

       the allegations with any specificity. See Modesitt, 578 N.E.2d at 651. As to

       Detective Brown’s testimony, at no point did he detail J.C.’s allegations.

       Detective Brown merely acknowledged there would likely be no DNA evidence

       when there is an allegation of oral sex and fondling made ninety-six hours after

       the alleged acts of molestation; he also restated the allegations on re-direct. In

       addition, in a day and age where courtroom television dramas exaggerate the

       use and capability of scientific evidence, jurors likely expect there to be DNA

       evidence in criminal cases, see generally Hon. Donald E. Shelton, Juror

       Expectations for Scientific Evidence in Criminal Cases: Perceptions and Reality about the

       “CSI Effect” Myth, 27 T.M. Cooley L. Rev. 1 (2010), and we cannot fault the

       State for eliciting testimony showing why there was no DNA evidence in the

       present case. Moreover, when comparing the above witnesses’ testimony to

       J.C.’s testimony, J.C.’s testimony was much more detailed and explicit.


[17]   Finally, we note Sanders’s, Kochert’s, Ross’s, and Detective Brown’s testimony

       did not restate the allegations with any more specificity than Hardison’s counsel

       when he observed, “But that’s a long way from fondling her and having him be

       masturbated and oral sex and all that stuff.” Tr. at 156. Ultimately, our review

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 12 of 23
       of the record indicates no drumbeat repetition of J.C.’s allegations; J.C. was the

       only witness to testify as to her version of the events, and the remaining

       witnesses merely restated the general allegations. See Stone v. State, 536 N.E.2d

       534, 540-41 (Ind. Ct. App. 1989) (finding “rampant repetition” of the victim’s

       testimony because between the five witnesses and the victim, the victim’s

       version of the alleged molestation was presented to the jury a total of seven

       times; as a result, “the line between [the victim’s] credibility became

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

       maturity, emotion, and professionalism to [the victim’s] out-of-court

       statements”), trans. denied. Therefore, we conclude the trial court did not

       commit fundamental error in allowing the testimony.


                                            2. Vouching Testimony

[18]   Although very similar to the argument above, Hardison next contends the trial

       court committed fundamental error when it permitted Detective Brown,

       Kochert,3 and Sanders to vouch for J.C.’s credibility. Under Indiana Evidence

       Rule 704(b), “[w]itnesses may not testify to opinions concerning intent, guilt, or

       innocence in a criminal case; the truth or falsity of allegations; whether a

       witness has testified truthfully; or legal conclusions.” This rule prohibits both

       direct and indirect vouching testimony. Hoglund v. State, 962 N.E.2d 1230,




       3
        In his brief, Hardison claims “Jasmine Ross, the DCS employee,” vouched for J.C., but his citations are to
       Kochert’s testimony. Br. of Appellant at 14. Considering Ross was J.C.’s neighbor, and Kochert was the
       DCS employee, we examine Kochert’s testimony to see if she impermissibly vouched for J.C.’s credibility.
       Nevertheless, our review of Ross’s testimony does not indicate she impermissibly vouched for J.C.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016        Page 13 of 23
       1235-36 (Ind. 2012). “[T]estimony concerning whether an alleged child victim

       is not prone to exaggerate or fantasize about sexual matters is an indirect but

       nonetheless functional equivalent of saying the child is ‘telling the truth.’” Id. at

       1236 (quotation and citation omitted). Vouching testimony is considered an

       “invasion of the province of the jurors in determining what weight they should

       place upon a witness’s testimony.” Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied.


[19]   In Heinzman v. State, 970 N.E.2d 214 (Ind. Ct. App. 2012), vacated in part, and

       summarily aff’d in part, 979 N.E.2d 143 (Ind. 2012), we encountered a similar

       claim of impermissible vouching testimony. There, a DCS investigator

       testified:

               Q: Would it be a proper statement to say that when you
               substantiate a case you find a reason to believe the allegations
               may have some factual foundation?
               A: Yes, that would be correct.
               Q: So there’s no way for you to tell or to say whether or not at
               that point in time that they are absolutely beyond doubt true, but
               they have a foundation upon which to proceed with further
               investigation?
               A: That’s correct.
               Q: Okay. And if you had unsubstantiated it, then there would
               have been no basis for further investigation as far as your
               department was concerned; is that correct?
               A: That’s correct.


       Id. at 221-22. We concluded the testimony neither directly vouched for the

       truthfulness of the victim nor constituted an opinion regarding the truth of the

       allegations because the investigator “testified that there was a factual basis to
       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 14 of 23
       support further investigation. She did not testify to an opinion concerning guilt

       or innocence, the truth or falsity of allegations, or whether a witness had

       testified truthfully.” Id. at 223.


[20]   Here, Hardison cites to the parts of Sanders’s testimony where she stated she

       found J.C.’s statements in the forensic interview to be consistent, parts of

       Detective Brown’s testimony where he stated he corroborated J.C.’s allegations,

       and parts of Kochert’s testimony where she stated she substantiated J.C.’s

       claims. We are not persuaded any of this testimony carried any kind of

       vouching force.


[21]   As to Detective Brown’s testimony, he testified generally about how he

       investigates claims of child molestation and stated if he finds no signs of

       fabrication following a child’s disclosure, then a true investigation will begin.

       At no point did he testify whether he believed J.C. showed signs of fabrication

       or whether he believed J.C.’s allegations to be true; nor did he opine as to

       whether any other witness had testified truthfully. See id. Rather, he stated

       based upon J.C.’s disclosure, and his subsequent interviews with those

       mentioned in J.C.’s interview, the case required further investigation.


[22]   As to Sanders’s testimony, she testified her role in the investigation was “just to

       get as much detail as a possibly [sic] can without ever leading them to any

       details or suggesting any details to them.” Tr. at 211. Sanders’s goal was not to

       elicit the truth, but rather to provide an atmosphere where J.C. would feel

       comfortable discussing Hardison’s acts of molestation.


       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 15 of 23
[23]   As to Kochert’s testimony, she testified that her goal in an investigation is to

       either substantiate or unsubstantiate a child’s disclosure of abuse. If she does

       substantiate a claim, she testified she believes the act of molestation occurred,

       but that it did not mean the alleged individual was guilty of child molestation.

       Similar to Heinzman, Kochert stated a substantiation meant there was enough of

       a factual foundation to move forward in the investigation. In our view, these

       witnesses neither directly vouched for J.C.’s truthfulness nor offered an opinion

       regarding the truth of J.C.’s disclosure. See Heinzman, 970 N.E.2d at 223.


[24]   In addition, we note Hardison invited any error in the admission of Kochert’s

       testimony. After it became concerned Kochert may have impermissibly

       vouched for J.C.’s credibility, the trial court offered to provide the jury with a

       limiting instruction. Hardison declined the offer. When a limiting instruction

       provides that certain evidence may be considered for only a particular purpose,

       the law will presume that the jury will follow the trial court’s admonitions.

       Ware v. State, 816 N.E.2d 1167, 1176 (Ind. Ct. App. 2004). Here, not only did

       Hardison choose not to object to the alleged vouching testimony, but Hardison

       also declined the trial court’s offer to provide a limiting instruction to the jury;

       Hardison made a strategic decision, claiming he did not want to call more

       attention to the fact Kochert substantiated J.C.’s allegations. “A party may not

       invite error, then later argue that the error supports reversal, because error

       invited by the complaining party is not reversible error.” Gamble v. State, 831

       N.E.2d 178, 184 (Ind. Ct. App. 2005) (citation omitted), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 16 of 23
[25]   We conclude the trial court did not err in admitting Sanders’s, Kochert’s, and

       Detective Brown’s testimony. Accordingly, the trial court did not commit

       fundamental error.


                                         3. Prior Alleged Misconduct

[26]   Hardison’s final contention is the trial court committed fundamental error in

       allowing the State to elicit testimony about Hardison’s prior uncharged acts of

       molestation in violation of Indiana Evidence Rule 404(b). 4 “Evidence Rule

       404(b) specifically bars the admission of evidence of other crimes, wrongs, or

       bad acts allegedly committed by the defendant to prove the defendant’s

       character, and forbids the use of this kind of evidence to show that the

       defendant acted in a manner consistent with that character.” Wilhelmus v. State,

       824 N.E.2d 405, 414 (Ind. Ct. App. 2005).


[27]   On cross-examination, Hardison elicited testimony from Detective Brown

       about how Detective Brown began to corroborate J.C.’s allegations against

       Hardison. In doing so, Detective Brown stated that Hardison’s acts of

       molestation had been occurring since J.C. was five or six years old. Hardison’s

       counsel did not move to strike but instead, immediately questioned Detective

       Brown about the alleged prior uncharged acts of molestation. Detective Brown

       testified the State did not charge Hardison with the prior alleged acts of



       4
         Hardison also argues evidence of his alleged prior molestations of J.C. was inadmissible under Rules 401,
       402, and 403. Because we conclude any error in admitting evidence of prior uncharged acts was not
       fundamental, we need not address the merits of Hardison’s additional arguments pertaining to the admission
       of prior uncharged acts.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016       Page 17 of 23
       molestation because J.C. struggled to recall specific dates. Again, Hardison did

       not move to strike and continued to ask questions about the exact dates

       Hardison molested J.C. On re-direct, the State asked Detective Brown to

       clarify when Hardison “really” began molesting J.C., and Detective Brown

       responded, “Uh, when [J.C] was approximately six (6) years old . . . .” Tr. at

       156. Hardison objected, arguing the question was “not relevant to the charges

       filed” in the case. Id. at 157. The State argued Hardison had previously opened

       the door to such testimony, and the trial court agreed.


[28]   Following the conclusion of Detective Brown’s testimony, the trial court

       discussed the issues regarding the admission of Rule 404(b) evidence; the trial

       court was concerned with the admission of testimony about Hardison’s prior

       uncharged acts of molestation. During the sidebar, the State again argued the

       defense opened the door to such testimony, but the trial court recommended

       both parties “move on.” Id. at 168. However, the State indicated it intended to

       elicit testimony from J.C. about Hardison’s prior uncharged acts of molestation

       because the door had been opened to such testimony. Hardison did not offer a

       response to the State’s request, stating, “I’ll just let it ride and object at the right

       time.” Id. at 169. The trial court took the matter under advisement.


[29]   Before J.C. testified for the State, the trial court again brought counsel together

       to discuss the admission of Rule 404(b) evidence. The trial court stated it

       agreed with the State that a door had been opened, but concluded the jury was

       no longer left with a wrong impression about why Hardison was not charged

       with prior acts of molestation. Based on this reasoning, the trial court told both

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 18 of 23
       parties to “stay away from continued questioning regarding” Hardison’s prior

       uncharged acts of molestation. Id. Thereafter, the State called J.C. to testify,

       and after describing how Hardison made her perform oral sex, J.C. stated, “He

       had me do it since I was little.” Id. at 289. Hardison did not object.


[30]   On appeal, Hardison concedes he did not object at trial, and therefore argues

       the admission of prior uncharged acts of molestation constituted fundamental

       error. Assuming the trial court did err,5 we conclude the trial court did not

       commit fundamental error. It is well-settled “the erroneous admission of . . .

       uncharged bad act evidence to prove guilt does not always require reversal.”

       Oldham v. State, 779 N.E.2d 1162, 1173 (Ind. Ct. App. 2002), trans. denied. In

       Manuel v. State, 793 N.E.2d 1215 (Ind. Ct. App. 2003), trans. denied, Manuel was

       convicted of three counts of child molesting. On appeal, Manuel argued the

       admission of the child victim’s testimony regarding prior uncharged

       molestations constituted fundamental error. We concluded,

               D.M.’s testimony regarding the uncharged molestations was brief
               and lacked detail. In contrast, her testimony regarding the
               charged molestations was lengthy, detailed, and graphic.
               Evidence supporting Manuel’s convictions consisted of D.M.’s
               testimony, physical evidence of seminal material in her mouth,
               and testimony that he babysat D.M. on the night of the charged
               molestations. We conclude that the admission of D.M.’s
               testimony regarding the prior uncharged molestations had a



       5
         Both parties dispute whether the defense previously opened the door, and assuming it did, whether the door
       had been closed through the testimony of Detective Brown; the record indicates the trial court heavily
       struggled with this issue. Because we conclude any error was harmless, we need not address whether the trial
       court did, in fact, err.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016       Page 19 of 23
               minimal impact on the jury, did not deny Manuel fundamental
               due process, and therefore was not fundamental error.


       Id. at 1219.


[31]   Similar to Manuel, the testimony here regarding the uncharged acts of

       molestation was brief and lacked detail; in contrast, J.C.’s testimony regarding

       the charged acts of molestation was very explicit and detailed. In addition,

       evidence supporting Hardison’s convictions consisted of J.C.’s testimony,

       Hardison’s stipulated polygraph results, and testimony showing J.C. and

       Hardison often spent time alone together in Hardison’s apartment. Finally, we

       note Hardison testified in his own defense and denied molesting J.C. Such

       testimony provided the jury with two conflicting stories and the choice of

       whom to believe; the jury believed J.C. Therefore, we conclude the admission

       of evidence regarding the prior uncharged acts of molestation had, if any, a

       minimal impact on the jury and did not deny Hardison fundamental due

       process; accordingly, the trial court did not commit fundamental error. See

       Manuel, 793 N.E.2d at 1219.


                                  II. Inappropriate Sentence
                                       A. Standard of Review
[32]   Hardison also contends his sentence is inappropriate in light of the nature of the

       offenses and his character. A reviewing court possesses the authority to revise a

       defendant’s sentence “if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

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       and the character of the offender.” Ind. Appellate Rule 7(B). The burden is on

       the defendant to persuade the reviewing court the sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[S]entencing is principally

       a discretionary function in which the trial court’s judgment should receive

       considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       It is not for the reviewing court “to achieve a perceived ‘correct’ result in each

       case,” but “[t]he principal role of appellate review should be to attempt to

       leaven the outliers.” Id. at 1225. Whether we regard a sentence as

       inappropriate turns on “the culpability of the defendant, the severity of the

       crime, the damage done to others, and myriad other factors that come to light

       in a given case.” Id. at 1224.


                                      B. Hardison’s Sentence
[33]   As to the nature of the offenses, the advisory sentence is the starting point the

       legislature selected as an appropriate sentence for the crime committed.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). Here, Hardison was convicted of a Class A felony and a Class

       C felony. Pursuant to Indiana Code section 35-50-2-4(a), an individual who

       commits a Class A felony “shall be imprisoned for a fixed term of between

       twenty (20) and fifty (50) years, with the advisory sentence being thirty (30)

       years.” Pursuant to Indiana Code section 35-50-2-6(a), an individual who

       commits a Class C felony “shall be imprisoned for a fixed term of between two

       (2) and eight (8) years, with the advisory sentence being four (4) years.”

       Hardison received a forty-five-year sentence on Count I and an eight-year

       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 21 of 23
       sentence on Count II, to be served concurrently for an aggregate sentence of

       forty-five years executed in the Indiana Department of Correction.


[34]   We note Hardison was in a position of trust and authority in relation to J.C.

       Initially, Hardison befriended D.C. and earned her trust. After recognizing

       D.C. needed assistance with J.C.’s care, Hardison capitalized on the

       opportunity to spend more alone time with J.C. As a result, Hardison earned

       J.C.’s trust and became the fatherly figure J.C. lacked in her life. In addition,

       Hardison exploited J.C.’s vulnerability by persuading J.C. that sexual conduct

       was normal in a father-daughter relationship. J.C. testified Hardison’s actions

       have left her angry, upset, confused, bothered, and contemplating suicide on

       multiple occasions. See Tr. at 500-02. We cannot ignore such conduct.


[35]   As to his character, we note there is nothing in the record to indicate Hardison’s

       character is especially egregious beyond the conduct for which he was

       convicted. We do note, however, that after being confronted with his

       polygraph results, Hardison stated, “I hope that girl burns in hell.” Id. at 118.

       In any event, our goal on appeal is to leaven the outliers, not achieve the

       “correct” result. See Cardwell, 895 N.E.2d at 1222. Therefore, we are not

       persuaded Hardison’s sentence is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 22 of 23
                                               Conclusion
[36]   Concluding the trial court did not commit fundamental error and Hardison’s

       sentence is not inappropriate in light of the nature of the offenses and his

       character, we affirm.


[37]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1504-CR-273 | February 29, 2016   Page 23 of 23
