MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Dec 02 2019, 7:18 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Antonio G. Sisson                                        Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Vince M. Bryan,                                          December 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-851
        v.                                               Appeal from the
                                                         Delaware Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Thomas A. Cannon, Jr., Judge
                                                         Trial Court Cause No.
                                                         18C05-1805-F1-2



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019              Page 1 of 9
                                          Case Summary
[1]   Vince M. Bryan appeals his convictions for two counts of Level 1 felony child

      molesting, two counts of Level 4 felony child molesting, and two counts of

      Level 5 felony child solicitation. He argues that the trial court committed

      reversible error in admitting testimony about the victims’ allegations before the

      victims themselves testified and that the evidence is insufficient to support his

      convictions. We affirm.



                            Facts and Procedural History
[2]   In 2015, N.S. (who was born in October 2005) and J.S. (who was born in

      October 2007) (collectively, “the children”) lived with their mother, Stephanie

      Reel, in Muncie. Stephanie, who struggled with addiction, had “involvement

      with [the] Department of Child[] Services [throughout] the lifetime of” N.S.

      and J.S. and had “lost custody [of them] a couple times.” Tr. Vol. I p. 162.

      During the summer of 2015, Stephanie often “h[u]ng out” with Vince. Id. at

      164. Sometimes, Stephanie would bring the children with her to Vince’s house.

      According to Stephanie, the children called him “Vinny.” Id. at 163. On three

      or four occasions, the children spent the night at Vince’s house without

      Stephanie.


[3]   In November 2015, the children told Jeffrey Reel (Stephanie’s brother) that

      “Vinny” had inappropriately touched them. Id. at 211. Jeffrey told Stephanie

      about the allegations, but Stephanie did not do anything about it. In January


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 2 of 9
      2016, the children were removed from Stephanie’s custody (unrelated to this

      case) and placed in foster care.


[4]   At some point, the children told their foster parents that Vince had molested

      them, and this information “got reported to DCS.” Id. at 141.


[5]   In March 2018, Muncie Police Department Officer Kristopher Swanson, who is

      a member of the Sexual Molest and Abuse Response Team (SMART), received

      an email from DCS about the children’s allegations against Vince. Shortly

      thereafter, Officer Swanson interviewed N.S., J.S., Stephanie, Jeffrey, and

      Vince. During his interview, Vince admitted that the children frequently came

      over to his house in the summer of 2015 and that they called him “Vinny.” Id.

      at 118. When Officer Swanson told Vince about the allegations that the

      children had made against him, he denied that they had ever spent the night at

      his house, started “throw[ing] out” different names of people who could have

      molested them, and tried to “change the subject.” Id. at 119.


[6]   Thereafter, the State charged Vince with Count 1: Level 1 felony child

      molesting (N.S.); Count 2: Level 1 felony child molesting (J.S.); Count 3: Level

      4 felony child molesting (N.S.); Count 4: Level 4 felony child molesting (J.S.);

      Count 5: Level 5 felony child solicitation (N.S.); and Count 6: Level 5 felony

      child solicitation (J.S.). A jury trial was held in February 2019.


[7]   Officer Swanson was the second witness to testify for the State (the first witness

      was another police officer who testified about background information). On

      direct exam, Officer Swanson testified that he interviewed N.S. and J.S. in

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 3 of 9
      April 2018 at the Child Advocacy Center. Officer Swanson did not testify

      about what N.S. or J.S. told him during their interviews. On cross-exam,

      however, defense counsel asked Officer Swanson numerous questions about

      what the children told him during their interviews, including how many times

      the alleged incidents occurred, where they occurred, who was present when the

      incidents occurred, and whether Vince was naked during any of the incidents.

      See id. at 144-51. On redirect, when the State asked Officer Swanson what J.S.

      told him during his interview, defense counsel made a hearsay objection. Id. at

      155. The trial court overruled the objection, finding that defense counsel

      opened the door to this line of questioning. Id. Officer Swanson then testified

      that the children told him that “Vinny” touched their penises using his mouth

      and hand. Id. at 156, 158.


[8]   Jeffrey was the fourth witness to testify for the State. On direct exam, Jeffrey

      testified that when he was alone with N.S. and J.S. in the car one day in

      November 2015, N.S. asked him if he could “keep a secret.” Id. at 211. When

      the State asked Jeffrey what that secret was, defense counsel made another

      hearsay objection. Id. The trial court overruled the objection, and Jeffrey

      testified that N.S. told him that “Vinny” had “pulled on their privates” and

      “sucked on their privates” and that J.S. corroborated what N.S. said. Id.


[9]   N.S. and J.S. were the last witnesses to testify for the State. They testified live

      from the Child Advocacy Center using a closed-circuit television system. They

      testified that they knew Vince and that they called him “Vinny.” Ex. 27 (3:20-



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 4 of 9
       3:36 & 1:58:30-38). They then testified that “Vinny” touched their penises with

       his hand, put his mouth on their penises, and made them touch his penis.


[10]   After the State rested, Vince moved for a directed verdict because “neither of

       the alleged victims identified [Vince] as the person that sexually assaulted

       them.” Tr. Vol. I p. 241. The trial court denied his motion. At the conclusion

       of trial, the jury found Vince guilty of all six charges. The trial court sentenced

       him to seventy years, with forty years executed and thirty years suspended to

       probation.


[11]   Vince now appeals.



                                 Discussion and Decision
                                   I. Admission of Evidence
[12]   Vince contends that the trial court erred in admitting testimony from Officer

       Swanson and Jeffrey regarding what the children told them because it was

       hearsay. Specifically, Vince argues that Officer Swanson’s and Jeffrey’s

       testimony, “prior to testimony of the victims, should have been excluded

       because their testimony had the potential to unfairly prejudice the jury and

       elevate the credibility of the victims.” Appellant’s Br. p. 10. He therefore asks

       us to reverse his convictions. In support of his argument, Vince relies on

       Modesitt v. State, 578 N.E.2d 649 (Ind. 1991).


[13]   In Modesitt, the defendant was charged with molesting an eleven-year-old girl.

       The victim’s mother, a caseworker, and a psychologist testified at length about

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 5 of 9
       what the victim told each of them about the defendant’s conduct before the

       State called the victim to testify. Our Supreme Court held that the “drumbeat

       repetition” of the victim’s statements by other witnesses before the victim was

       called to testify “precluded direct, immediate cross examination of the

       statements and constitutes error requiring reversal.” Id. at 652.


[14]   We find no Modesitt violation here. Officer Swanson testified on direct exam

       that he interviewed each child, but he did not testify as to what they told him.

       On cross-exam, however, defense counsel asked Officer Swanson numerous

       questions about what the children told him, including how many times the

       alleged incidents occurred, where they occurred, who was present when the

       incidents occurred, and whether Vince was naked during any of the incidents.

       See Tr. Vol. I pp. 144-51. On redirect, the trial court allowed Officer Swanson

       to testify more about what the children told him because defense counsel

       opened the door to such testimony. See id. at 155. Notably, Vince does not

       acknowledge the trial court’s specific ruling in his brief. The State argues in its

       brief that Vince opened the door to the testimony, and Vince did not file a reply

       brief to respond to this claim. We agree with the trial court that Vince opened

       the door to Officer Swanson’s redirect testimony about what the children told

       him during their interviews. See Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009)

       (holding that otherwise inadmissible evidence may be admitted where the

       defendant opens the door to questioning on that evidence), reh’g denied. Having

       opened the door, Vince cannot now be heard to complain about Officer

       Swanson’s redirect testimony.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 6 of 9
[15]   This then leaves us with Jeffrey. Jeffrey briefly testified on direct exam about

       what the children told him in the car in November 2015. Jeffrey’s testimony on

       this point comprises less than one page of his twenty-page testimony. See Tr.

       Vol. I p. 211 (Jeffrey testified that “[N.S.] said that [“Vinny”] pulled on their

       privates, he sucked on their privates, which [J.S.] . . . co[rr]oborated . . . .”).

       This is not the sort of “drumbeat repetition” that Modesitt prohibits. See, e.g.,

       Norris v. State, 53 N.E.3d 512, 526 (Ind. Ct. App. 2016) (finding that “the

       challenged testimony of the two witnesses merely provided an overview of the

       situation and a summary of [the victim’s] accusations, without elaborating on

       [the victim’s] evidence,” was “brief and consistent with [the victim’s] later

       testimony,” and therefore did not constitute fundamental error); McGrew v.

       State, 673 N.E.2d 787, 796 (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, 682 N.E.2d 1289 (Ind. 1997).


                                 II. Sufficiency of the Evidence
[16]   Vince next contends that the evidence is insufficient to support his convictions.1

       When reviewing the sufficiency of the evidence to support a conviction,




       1
         Vince also argues that the trial court erred in denying his motion for a directed verdict. Because his
       argument in this regard is the same as his sufficiency argument, and our standard of review is the same in
       both cases, we treat his directed-verdict and sufficiency arguments as one. See Edwards v. State, 862 N.E.2d
       1254, 1262 (Ind. Ct. App. 2007) (“If the evidence is sufficient to sustain a conviction upon appeal, then a
       motion for a directed verdict is properly denied; thus, our standard of review is essentially the same as that
       upon a challenge to the sufficiency of the evidence.”), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019                      Page 7 of 9
       appellate courts must consider only the probative evidence and reasonable

       inferences supporting the verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind.

       2016). It is the fact-finder’s role, not that of appellate courts, to assess witness

       credibility and weigh the evidence to determine whether it is sufficient to

       support a conviction. Id. It is not necessary that the evidence “overcome every

       reasonable hypothesis of innocence.” Id. (quotation omitted). The evidence is

       sufficient if an inference may reasonably be drawn from it to support the

       verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).


[17]   Specifically, Vince argues that the evidence is insufficient to support his

       convictions because N.S. and J.S. did not identify him “in court, nor via a

       photograph” and there was no “physical or medical evidence” presented to

       show that they were sexually assaulted. Appellant’s Br. p. 12. Numerous

       witnesses identified the defendant in court as Vince M. Bryan. See Tr. Vol. I pp.

       94, 114, 163, 207. Although neither N.S. nor J.S. pointed to the defendant or a

       photo of the defendant as Vince M. Bryan, they testified that they knew Vince

       M. Bryan and that they called him “Vinny.” They then testified that “Vinny”

       touched their penises with his hand, put his mouth on their penises, and made

       them touch his penis. The evidence is sufficient to prove that Vince is the one

       who molested N.S. and J.S. As for the fact that there was no physical or




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 8 of 9
       medical evidence presented to show that N.S. and J.S. were sexually molested,

       it is well established that a conviction can be sustained on the uncorroborated

       testimony of a single witness, even when that witness is the victim. Bailey v.

       State, 979 N.E.2d 133, 135 (Ind. 2012). Here, both N.S. and J.S. testified that

       Vince touched their penises with his hand, put his mouth on their penises, and

       made them touch his penis. We therefore affirm Vince’s convictions.


[18]   Affirmed.


[19]   Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-851 | December 2, 2019   Page 9 of 9
