MEMORANDUM DECISION                                                             FILED
                                                                           Apr 27 2017, 11:16 am
Pursuant to Ind. Appellate Rule 65(D),                                          CLERK
this Memorandum Decision shall not be                                       Indiana Supreme Court
                                                                               Court of Appeals
regarded as precedent or cited before any                                        and Tax Court

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
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Joas & Stotts                                            Attorney General of Indiana
Madison, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul W. Barnes, Sr.,                                     April 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1610-CR-2313
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Darrell M. Auxier,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         39C01-1506-F1-591



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017                Page 1 of 12
                                             Case Summary
[1]   Paul W. Barnes, Sr., appeals his convictions for two counts of level 1 felony

      child molesting. He argues that the trial court abused its discretion in finding

      that he opened the door to the admission of testimony vouching for the victim.

      We conclude that Barnes did not open the door to the vouching testimony, but

      that the error in admitting the testimony was harmless. Therefore, we affirm.


                                 Facts and Procedural History
[2]   Barnes is B.B.’s paternal grandfather. In February 2015, ten-year-old B.B. lived

      with her younger brother and her mother. B.B.’s older brother lived with

      Barnes. On Friday, February 20, B.B. and her younger brother went to spend

      the weekend with Barnes. B.B.’s older brother left to spend the weekend with

      his aunt.


[3]   On Saturday, February 21, B.B. and her younger brother were playing video

      games in the game room. Barnes called B.B. to his bedroom and closed the

      door. He removed B.B.’s clothing and then took off his pants and underwear.

      Barnes pushed up against B.B. and rubbed his penis inside and outside her

      vagina. Barnes then placed her legs on his shoulders and told B.B. to “[f**ck]

      me.” Tr. Vol. 2 at 68. Barnes also said, “[D]o you like this? … I bet you do.”

      Id. B.B. “didn’t like it” and it “hurt.” Id. at 70, 73. B.B. told Barnes that she

      wanted her mom. At one point, B.B.’s younger brother knocked on Barnes’s

      bedroom door to see if B.B. could come back out and play video games. Barnes

      told him that B.B. would come out in a little bit. After Barnes was finished, he


      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 2 of 12
      used a towel or a shirt to wipe a “sticky” substance from B.B.’s thighs. Id. at

      72. He also wiped off his “private area.” Id. B.B. got dressed and left the

      room. She did not tell her younger brother what happened because “he was too

      young.” Id. at 73.


[4]   The next day, Barnes told B.B. to shower. After her shower and before she got

      dressed, he told her to lie down on his bed. He pulled down his pants and

      underwear and told her that he wanted to “do it one more time.” Id. at 78. He

      repeated his actions of the day before, rubbing his penis outside and inside of

      her vagina, which hurt her. Id. at 77. When he was finished, he wiped the

      same kind of sticky substance off B.B.’s thighs that he had the day before. He

      also had sticky stuff on “his private area” that he wiped off. Id. at 79.

      Afterward, he sprinkled baby powder between her legs.


[5]   That evening, Barnes took B.B. and her younger brother home. B.B. went

      upstairs while Barnes talked to her mother. She waited to tell her mother what

      happened because she “was scared that [Barnes] would do something.” Id. at

      80. After he left, she wrote down on a piece of paper what happened and gave

      it to her mother. She wrote it down because she did not “like saying that kind

      of stuff.” Id. at 81. B.B.’s mother started crying. She wanted to make sure that

      B.B. was not bleeding, so she told B.B. to pull down her underwear and

      immediately saw baby powder caked around B.B.’s vagina.


[6]   B.B.’s mother called the police. A police officer came to their residence and

      made a report. B.B.’s mother took her to the hospital emergency room. B.B.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 3 of 12
      was also taken to a children’s hospital for a sexual assault examination, and no

      physical injuries were discovered. A sexual assault evidence collection kit was

      also performed on B.B. The following day, Stephanie Back, a forensic

      interviewer with the Child Advocacy Center, interviewed B.B.


[7]   In June 2015, the State charged Barnes with two counts of level 1 felony child

      molesting. A jury trial was held in August 2016. The State began its case-in-

      chief with B.B.’s mother’s testimony. B.B. then testified regarding what Barnes

      did to her on February 21 and 22, 2015. Barnes’s defense counsel did not cross-

      examine her. The jury also heard testimony from B.B.’s brothers, the police

      officer who responded to the initial report of child molestation, two detectives,

      and the child abuse pediatrician who was on call at the children’s hospital when

      B.B. was admitted.


[8]   Following an extended discussion outside the jury’s presence, the State

      requested that Back be permitted to testify regarding the signs of coaching in

      children and whether she had observed signs of coaching when she interviewed

      B.B. Barnes objected, but the trial court concluded that Barnes had opened the

      door to such testimony and permitted Back to testify. Id. at 213.                      The

      emergency room doctor who examined B.B. testified, followed by Back. Back

      testified that she was trained to look for signs of coaching in children and that

      those signs included whether the child makes eye contact, makes emotional

      statements, or corrects the interviewer when the interviewer is speaking. She

      explained that she also considers whether the child has provided consistent

      statements to investigators or has a motive to fabricate. Tr. Vol. 3 at 22. She

      Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017     Page 4 of 12
       then testified that she saw no signs of coaching when she interviewed B.B. Id.

       at 23.


[9]    After Back testified, the State introduced evidence from the sexual assault kit.

       Two of the external genital swabs tested positive for the presence of sperm cells.

       Id. at 43. The DNA from the sperm cells was consistent with Barnes’s DNA,

       and that DNA profile was estimated to occur once in eight trillion unrelated

       individuals. Id. at 44, 64-65. The DNA sample from the external genital swabs

       was of such high quality that it was unlikely that the sperm cells had been

       deposited on something else and then transferred to B.B. Id. at 45-46, 64. A

       major DNA profile and a minor DNA profile were also recovered from non-

       sperm cells. The DNA from the minor profile was consistent with Barnes’s and

       was estimated to occur once in 3400 unrelated individuals. Id. at 47.


[10]   Barnes testified that he did not have sexual intercourse with B.B. or place his

       penis on the outside of her vagina and never touched her in an inappropriate

       manner. Id. at 68-69. He also testified that he was never in the bedroom

       behind closed doors with her. Id. at 113. In addition, he explained how his

       semen could have been found on B.B. He testified that he uses kerosene to heat

       his residence, but B.B.’s mother does not like the smell. So, he keeps clothing

       for each of the children in a dresser in the children’s bedroom. When the

       children come to his house, they change into the clothes Barnes keeps for them.

       Barnes then washes the clothes they were wearing when they arrived, so that

       they can wear clean clothes when they return home. He testified that on the

       evenings of February 20 and 21, B.B. and her younger brother either played

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 5 of 12
       Xbox or watched television the entire time. On February 22, Barnes watched a

       NASCAR race on television. He told each child to take a shower. His

       bedroom was close to the bathroom, so he laid their clean clothes on his bed.

       Then, he masturbated in his bedroom beside the children’s clothes. Id. at 84.

       When he was done, he “reached down and grabbed something to wipe off on,

       and it ended up being [B.B.’s] underwear.” Id. at 85. Barnes testified that he

       “was going to take them and throw them in the washing machine, but I was so

       pre-occupied with the race [that he] hurried back up the hall to go watch the

       race, and I forgot about them.” Id. at 85.


[11]   The jury found Barnes guilty as charged. The trial court sentenced Barnes to

       concurrent executed terms of forty years each. This appeal ensued. Additional

       facts will be provided as necessary.


                                      Discussion and Decision
[12]   Barnes challenges the trial court’s admission of Back’s testimony that B.B

       showed no signs of coaching during her interview. “A trial court has broad

       discretion in ruling on the admissibility of evidence” and we will reverse its

       ruling only upon an abuse of that discretion. Hoglund v. State, 962 N.E.2d 1230,

       1237 (Ind. 2012). “An abuse of discretion occurs when the trial court’s decision

       is clearly against the logic and effect of the facts and circumstances before it.”

       Id.


[13]   Indiana Evidence Rule 704(b) provides, “Witnesses may not testify to opinions

       concerning intent, guilt, or innocence in a criminal case; the truth or falsity of

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 6 of 12
       allegations; whether a witness has testified truthfully; or legal conclusions.” In

       general, expert testimony that a child did not exhibit any signs of coaching

       constitutes improper vouching for the alleged victim’s credibility in violation of

       Evidence Rule 704(b). Sampson v. State, 38 N.E.3d 985, 989-92 (Ind. 2015);

       Hoglund, 962 N.E.2d at 1237. However, expert testimony about the signs of

       coaching and whether a child exhibited such signs is permissible “provided the

       defendant has opened the door to such testimony.” Sampson, 38 N.E.2d at 992.

       “Opening the door refers to the principle that where one party introduces

       evidence of a particular fact, the opposing party is entitled to introduce evidence

       in explanation or rebuttal thereof, even though the rebuttal evidence otherwise

       would have been inadmissible.” Id. at n.4; see also Clark v. State, 915 N.E.2d

       126, 130 (Ind. 2009) (“The door may be opened when the trier of fact has been

       left with a false or misleading impression of the facts.”). Thus, “‘once a child’s

       credibility is called into question proper expert testimony may be appropriate.’”

       Sampson, 38 N.E.3d at 992 (quoting Steward v. State, 652 N.E.2d 490, 499 (Ind.

       1995)). Here, Barnes contends that the trial court erred in finding that he

       opened the door to Back’s testimony.


[14]   Back was not included on the State’s final witness list but Barbara Vernon was.

       Vernon had not interviewed B.B., but she was expected to testify during the

       State’s case-in-chief “concerning characteristics, mannerisms, and behaviors

       common among child abuse victims” and “in rebuttal concerning the presence

       or absence of signs of coaching.” Tr. Vol. 2 at 201. At trial, Barnes made an

       oral motion in limine regarding Vernon’s testimony. A lengthy debate followed


       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 7 of 12
       outside the jury’s presence. Defense counsel argued that Vernon’s testimony

       constituted improper vouching for B.B. in violation of Evidence Rule 704(b)

       and “the evidence in the trial so far ha[d] not been an attack on [her]

       credibility.” Id. at 205. The prosecutor responded that defense counsel was

       going to stand before the jury during closing argument and

               talk about [B.B.’s] testimony and talk about her behaviors and
               talk about the number of times she was … interviewed by
               different people, and [she is] a confused little child who is simply
               parodying or mimicking information that she has heard either
               from her mother or from the doctor or from whomever, … and
               we are entitled to … address those potential issues.


       Id. at 208.


[15]   As the discussion continued, defense counsel stated,

               [T]he theory of the case is that … B.B. was subjected to multiple
               sets of questioning at the hands of inexpert interviewers and that
               that is a … source or explanation for her testimony. … If the
               court determines that that is an attack on her credibility, then I
               cannot in all good conscience say that I’m not going to be
               attacking her credibility.


       Id. at 211.


[16]   The prosecutor argued that the defense’s theory of the case constituted implicit

       coaching, which opened the door to testimony regarding whether B.B. was

       coached. Although the trial court ruled that Vernon would be permitted to

       testify, the prosecutor stated that he wished to call Back to testify specifically


       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 8 of 12
       about her interview with B.B. The trial court agreed that “that door is going to

       be opened” and ruled that “the State can present evidence about the signs of

       coaching and whether or not [B.B] exhibited such signs.” Id. at 213. Defense

       counsel objected to Back’s testimony, arguing that his theory that the

       circumstances of B.B.’s questioning gave rise to her account was not the same

       as coaching. He also argued that the issue had not been presented for litigation

       at that point, as “[n]either side had elicited any evidence of coaching.” Id. at

       214, 218. Ultimately, the trial court ruled that Back would be permitted to

       testify. Id. at 219.


[17]   Barnes contends that he did not open the door to Back’s coaching testimony

       because at that point in the trial he had not questioned any witnesses in a

       manner that suggested B.B. had been coached or that had called her credibility

       into question. The State counters that Back’s testimony was permissible to

       “rebut Barnes’ claim that B.B. was coached by adults asking her leading

       questions and giving their own account of the molestation in her presence.”

       Appellee’s Br. at 8. We must agree with Barnes. Before the motion in limine

       was made, the jury had heard the testimony of B.B.’s mother, B.B., her

       brothers, the police officer who responded to the initial report of child

       molestation, two detectives, and the child abuse pediatrician who was on call at

       the children’s hospital when B.B. was admitted. However, the State does not

       cite to any portion of the transcript preceding the motion of limine that shows

       evidence of coaching or that B.B.’s credibility was called into question. The

       State relies solely on the content of defense counsel’s closing argument. The


       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 9 of 12
       potential substance of closing argument does not open the door to otherwise

       impermissible evidence.1 When Back testified, no evidence regarding whether

       B.B. had been told what to say or calling her credibility into question had been

       introduced. Simply put, there was no evidence to rebut. See Norris v. State, 53

       N.E.3d 512, 524 (Ind. Ct. App. 2016) (concluding that trial court abused its

       discretion in admitting testimony that victim demonstrated indicia of reliability

       during interview where testimony was “neither in response to defense

       questioning, nor to rebut an express claim that victim had been coached.”);

       Hamilton v. State, 43 N.E.3d 628, 633 (Ind. Ct. App. 2015) (concluding that

       defendant had not opened door to coaching testimony where defense counsel

       had asked two alleged victims whether anyone had told them what to say in

       court and both victims said no and no other evidence of alleged coaching was

       presented), aff’d on reh’g, 49 N.E.3d 554 (2015), trans. denied (2016).

       Accordingly, the trial court abused its discretion in permitting Back to testify

       that she did not observe any signs of coaching.


[18]   However, “‘[e]rrors in the admission or exclusion of evidence are to be

       disregarded as harmless error unless they affect the substantial rights of a

       party.’” Norris, 53 N.E.3d at 524-25 (quoting Hubbell v. State, 754 N.E.2d 884,

       890 (Ind. 2001)). “The improper admission is harmless error if the conviction is

       supported by substantial independent evidence of guilt satisfying the reviewing



       1
         As such, we need not decide whether the concept of coaching an alleged child victim is broad enough to
       encompass the possibility of unintentionally suggestive circumstances surrounding the reporting and
       questioning of the victim.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017          Page 10 of 12
       court there is no substantial likelihood the challenged evidence contributed to

       the conviction.” Hoglund, 962 N.E.2d at 1238.


[19]   Barnes asserts that his convictions rest primarily on B.B.’s credibility and that

       “[e]vidence supporting the credibility of a witness cannot be said to be harmless

       when the conviction rested primarily on the credibility of the witness.”

       Appellant’s Br. at 13 (citing Hamilton, 49 N.E.3d at 556). Here, however, there

       was more than B.B.’s testimony to support Barnes’s convictions. Significantly,

       two of the external genital swabs from B.B.’s sexual assault kit contained

       Barnes’s sperm cells.2 He contends that he presented a plausible alternative

       explanation for the presence of his semen; namely, that he used B.B.’s

       underwear to wipe himself after masturbating on February 22. However, the

       State presented expert testimony that given the quality of the DNA sample, it

       was unlikely that his sperm was transferred onto B.B. from a different material.

       Tr. Vol. 3 at 45-46, 64. In addition, B.B. testified consistently regarding the

       molestations. Tr. Vol. 2 at 62-80. Certain details of B.B.’s account were

       corroborated by her younger brother and were contrary to Barnes’s claims. For

       example, her younger brother testified that when he and B.B. were playing

       Xbox on February 21, Barnes called B.B. to come to his bedroom. Id. at 62,

       105. He also testified that while Barnes and B.B. were in the bedroom, the door

       was completely closed and he knocked on the door and asked if B.B. could



       2
         The State asserts that seminal material was found on several swabs “from the inside” and outside of B.B.’s
       vagina. Appellee’s Br. at 12. While preliminary testing of the vaginal swabs indicated that seminal material
       “might” be present, subsequent testing on all four of the vaginal swabs was negative for sperm cells. Tr. Vol.
       3 at 42.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017             Page 11 of 12
       play. Id. at 71, 106. Further, Barnes’s testimony contradicted what he told

       investigators after B.B. reported the molestations. Barnes testified that on

       Sunday, he was watching the race and did not see B.B. come out of the shower,

       but he told police that the children “come out of the bathroom to the bedroom.

       We go in there. I make sure they’re good and dry and they get their clothes

       on.” Tr. Vol. 3 at 105-06. We conclude that there was substantial independent

       evidence of guilt supporting Barnes’s convictions such that Back’s testimony did

       not likely have a substantial influence on the verdict. See Hoglund, 962 N.E.2d

       at 1238 (concluding that admission of vouching testimony was harmless where

       victim “testified at length concerning what happened to her” and “her

       testimony remained consistent and unshaken under aggressive cross-

       examination.”).


[20]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1610-CR-2313| April 27, 2017   Page 12 of 12
