                                                                               FILED
                                                                           Mar 13 2017, 8:47 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Curtis T. Hill, Jr.
Matthew D. Anglemeyer                                     Attorney General of Indiana
Marion County Public Defender Agency                      Jodi Kathryn Stein
Appellate Division                                        Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Argumedo Alvarez-Madrigal,                                March 13, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1601-CR-162
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Grant W. Hawkins, Judge
                                                          Trial Court Cause No.
                                                          49G05-1407-FA-33963



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017                     Page 1 of 24
[1]   Following a jury trial, Argumedo Alvarez-Madrigal (“Alvarez-Madrigal”) was

      convicted of four counts of Class A felony child molesting1 and two counts of

      Class C felony child molesting.2 He appeals, contending that a statement by a

      State’s witness constituted impermissible vouching evidence and that it was

      reversible error to admit it.


[2]   We affirm.


                                      Facts and Procedural History
[3]   When she was ten years old and in the fourth grade, A.M. met and became

      close friends with fellow fourth-grader S.A.O., whose father is Alvarez-

      Madrigal. During the summer before the girls entered fifth grade, A.M. spent a

      lot of time at S.A.O.’s house. S.A.O.’s mother worked nights, and Alvarez-

      Madrigal watched the children while she slept during the day.


[4]   The facts most favorable to the verdict are that, in May 2014, when A.M. was

      eleven years old, Alvarez-Madrigal began to touch A.M. inappropriately. On

      May 8 or 9, when A.M. was spending the night at S.A.O.’s house, S.A.O. left

      the room to use the restroom, and Alvarez-Madrigal put his hand under A.M.’s

      bra and then felt around her vagina, over her pajamas. From that date to June

      6, A.M. went to S.A.O.’s house almost every day, and Alvarez-Madrigal




      1
       See Ind. Code § 35-42-4-3(a)(1). We note that, effective July1, 2014, a new version of this statute was
      enacted. However, we will apply the statute in effect at the time he committed his crimes in June 2014.
      2
          See Ind. Code § 35-42-4-3(b).


      Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017                          Page 2 of 24
      touched A.M. “[e]very time I would go over there.” Tr. at 43. A.M. testified

      that S.A.O. and her mother “saw what was going on” on various occasions. Id.

      at 93. A.M. was worried that if she told anyone, it would ruin her friendship

      with S.A.O.


[5]   On June 6, 2014, when A.M. entered S.A.O.’s house and began to walk up the

      stairs to S.A.O.’s bedroom, Alvarez-Madrigal put his hand “on [A.M.’s] butt”

      under her underwear. Id. at 47. He kept his hand there as A.M. walked up the

      flight of stairs. When they reached the top of the stairs, S.A.O. came out of her

      bedroom, “looked surprised,” and started yelling at Alvarez-Madrigal. Id. at

      48. A.M. testified that S.A.O.’s mother also came out of her bedroom and

      asked what was going on, but the girls went into S.A.O.’s bedroom without

      saying anything to S.A.O.’s mother. On June 10, while other household

      members were elsewhere in the house, Alvarez-Madrigal kissed A.M. on the

      neck and touched her under her underwear, on her vagina.


[6]   On June 14, 2014, Alvarez-Madrigal drove A.M. and S.A.O. to a swimming

      pool and then back to S.A.O.’s house. S.A.O.’s mother was at home sleeping.

      A.M. went to the upstairs bathroom to change out of her swimming suit, and

      while she was still in the bathroom, she heard S.A.O. open the door and go

      outside the house. A.M. put on a swim cover, which was like a dress, over her

      underwear and bra. She left the bathroom and went downstairs, and Alvarez-

      Madrigal appeared, picked her up under the arms, put her back to the wall, and

      when she started to scream, he put his hand over her mouth. Despite A.M.’s

      protests, Alvarez-Madrigal took off her swim cover and her bra. When A.M.

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 3 of 24
      would not spread her legs, he hit her in the thigh, which left a mark. Alvarez-

      Madrigal pulled down her underwear, threw her onto a couch, and had vaginal

      and anal intercourse with her. When she initially would not open her mouth to

      perform oral sex, he slapped her on the face, leaving a red mark,3 and then he

      stuck his penis in her mouth and moved it back and forth.


[7]   When S.A.O. began to enter the house, Alvarez-Madrigal collected A.M.’s

      clothes and threw them at her and told her to go to the bathroom. A.M. saw

      S.A.O. peeking around the corner. A.M. hurried to the bathroom, but heard

      Alvarez-Madrigal talking to S.A.O. in the kitchen and begging S.A.O., “Please

      don’t tell your mother. I’ll do anything for you.” Tr. at 69. When A.M. left

      the bathroom, Alvarez-Madrigal “banged [her] against the wall” and told A.M.

      that he would kill her if she told anyone. Id. at 70. A.M. left the house and

      spoke to S.A.O. outside, telling her some, but not all, of the things Alvarez-

      Madrigal had done to her, and A.M. asked S.A.O. to tell her father to stop

      touching A.M. S.A.O. told A.M. that she would “have a talk with him.” Id. at

      72. A few weeks after the June 14 incident, A.M. told a friend, P.J., about what

      S.A.O.’s father had done to her, and P.J. told a mentor. On June 29, 2014, a

      report was made to Indiana Department of Child Services (“DCS”).


[8]   When DCS made an unannounced visit to A.M.’s home on or about June 29,

      A.M. told her mother what Alvarez-Madrigal had done to her. A.M. also told



      3
       A.M.’s parents later asked her about the redness near her mouth, but A.M. told them “that [she] just hit it
      on something.” Tr. at 97.

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017                          Page 4 of 24
      DCS assessment case manager Nola Hunt (“Hunt”) and the accompanying

      Indianapolis Metropolitan Police Department (“IMPD”) officer about Alvarez-

      Madrigal’s conduct. Hunt paged IMPD Detective Mark Barnett (“Detective

      Barnett”), the “on-call” child abuse detective. Detective Barnett decided “an

      immediate response” was warranted “based primarily on the proximity of the

      alleged victim and suspect . . ., living on the same street.” Id. at 187-88. Hunt

      then transported A.M. and A.M.’s parents to DCS offices, where A.M.

      participated in a forensic interview at the Child Advocacy Center with IMPD

      Detective Nicolle Flynn (“Detective Flynn”). During the interview, A.M.

      disclosed information of a sexual nature describing what had happened to her

      about two weeks prior. Hunt and Detective Barnett observed the interview

      from another room, and based on what he observed, Detective Barnett

      prepared, and later executed, a search warrant for Alvarez-Madrigal’s

      residence. Detective Barnett interviewed Alvarez-Madrigal and his wife, and,

      at some point, S.A.O. and P.J. were also interviewed by DCS. A.M. was

      examined on July 2, 2014, and again on July 9, 2014, at the Riley Hospital

      Pediatric Center for Hope.


[9]   On July 3, 2014, the State charged Alvarez-Madrigal with five counts of Class

      A felony child molesting and two counts of Class C felony child molesting. At

      the two-day August 2015 jury trial, the State presented the testimony of A.M.,

      P.J., S.A.O., and S.A.O.’s mother. The State also presented the testimony of

      Hunt, Detective Flynn, and Detective Barnett. The last witness to testify was




      Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 5 of 24
       Shannon Thompson, M.D. (“Dr. Thompson”), a pediatrician at Riley

       Children’s Hospital (“Riley”) on the child abuse protection team.


[10]   Dr. Thompson examined A.M. at the second examination, on July 9, 2014.

       Dr. Thompson stated that the reason A.M. returned to Riley was because she

       was having “continued genital pain and itching.” Id. at 293. Dr. Thompson

       testified that although neither examination at Riley revealed physical injuries,

       the lack of physical findings was “very common” in sexual abuse cases. Id. at

       296. She explained that there are various reasons for that, including that no

       injury occurred in the first place or that “disclosure often occurs days to months

       later,” and the genital tissue heals quickly. Id. at 297. She testified that,

       therefore, it is “very common” for a child to have a normal exam. Id. at 298.

       The State continued direct examination of Dr. Thompson regarding the

       frequency with which she observes physical injuries:


               STATE: In terms of the cases you have seen, do you know what
               percentage of children you see with injuries?


               THOMPSON: So overall about 4 to 5 percent of children who
               have been victims of sexual abuse will have some kind of obvious
               physical evidence of penetration or sexual abuse. In my
               experience I’ve probably seen one.


               STATE: One in 10 years of being a child abuse pediatrician?


               THOMPSON: 7 1/2 years.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017    Page 6 of 24
               STATE: My math is not great. Okay. And does that mean that
               all the rest of those children are making up allegations?


               THOMPSON: No, it doesn’t mean that. It just means it’s the
               nature of the abuse. Like I said, often the disclosure is late,
               injuries are subtle or even very obvious it healed by the time we
               get to see them. And in fact some statistics will quote that less than
               two to three children out of a thousand are making up claims.


       Id. at 298-99 (emphasis added).


[11]   Alvarez-Madrigal then objected, stating, “This clearly calls for speculation. It’s

       not relevant to the facts in this case.” Id. at 299. The State responded, “She’s a

       child abuse expert. She has talked about her evaluation of psychological and

       emotional mental health. It’s part of her job to know statistics.” Id. The trial

       court did not expressly rule on the objection, but stated, “Then ask her this, ask

       every question in terms of reasonable medical certainty.” Id. The State

       proceeded to ask Dr. Thompson, “[W]ith regard to this case to a degree of

       reasonable medical certainty, what’s your opinion as to A.M.’s exam?” Id. Dr.

       Thompson responded that A.M. did not have any overt symptoms or physical

       findings that would be consistent with sexual abuse, but that lack of physical

       findings would not be determinative, and that the history that A.M. provided

       was consistent with sexual abuse. Id. at 299-300.


[12]   Upon cross examination, Dr. Thompson acknowledged that, although there

       was no physical injury or infection observed, A.M. was reporting complaints of

       physical pain. Dr. Thompson explained that A.M.’s complaints were


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017         Page 7 of 24
       considered “somatic complaints,” which are “fairly common” in sexual abuse

       victims. Id. at 303, 305. When asked if the terms “somatic” or

       “psychosomatic” would be used when a patient is misleading a doctor about

       pain, Dr. Thompson replied, “No, I would not use that term.” Id. at 305. She

       continued, “[I]t’s actual physical pain that is manifested because of emotional

       trauma,” which could be, by way of example, pelvic pain, headaches, or

       abdominal pain. Id. She testified that the “pain that the person is experiencing

       is real.” Id.


[13]   At the conclusion of the evidence, Alvarez-Madrigal moved for a directed

       verdict, which the trial court granted as to one count of Class A felony child

       molesting. The jury found Alvarez-Madrigal guilty of the remaining four

       counts of Class A felony child molesting and guilty of two counts of Class C

       felony child molesting. On October 1, 2015, the trial court sentenced Alvarez-

       Madrigal to an aggregate sixty-one-year sentence. Alvarez-Madrigal petitioned

       for and was granted permission to file this belated appeal.


                                      Discussion and Decision
[14]   Alvarez-Madrigal asserts that Dr. Thompson’s testimony that “And in fact

       some statistics will quote that less than two to three children out of a thousand

       are making up claims” was vouching testimony prohibited by Indiana Evidence

       Rule 704(b) and that the trial court erred by admitting it into evidence. A trial

       court has broad discretion in ruling on the admissibility of evidence, and we

       will disturb its rulings only where it is shown that the court abused that


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017     Page 8 of 24
       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.


[15]   Indiana Evidence Rule 704(b) provides that “[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.” Such vouching testimony is considered an invasion of the

       province of the jurors in determining what weight they should place upon a

       witness’s testimony. Carter v. State, 31 N.E.3d 17, 29 (Ind. Ct. App. 2015),

       trans. denied.


[16]   We disagree with Alvarez-Madrigal’s claim that Dr. Thompson’s testimony

       violated the prohibition against vouching. This court’s recent decision in Carter

       provides us with some guidance. There, at defendant’s trial on five counts of

       child molesting, the forensic examiner, Patricia Smallwood (“Smallwood”),

       testified, over Carter’s objections, to matters including how children deal with

       sexual abuse, the disclosure process, and how and why children recant or

       retract their disclosures of abuse. Id. at 24. She stated that boys are more likely

       to retract, and that when a child retracts, it does not mean that the abuse did not

       happen. Id. She testified that frequently, by the time of disclosure, the child

       has been abused so many times that individual instances run together, and

       children have difficulty relating specific events or details. Id. On appeal, Carter

       asserted, among other things, that Smallwood’s testimony constituted

       impermissible vouching.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017       Page 9 of 24
[17]   The Carter court rejected the defendant’s claim, explaining:


               [S]he never mentioned [the child victim] in her testimony or
               made any statement or opinion regarding the truth or falsity of
               [the child]’s allegations of molestation. Smallwood did not
               purport to have any opinion regarding the case at bar, nor did she
               refer to any specific facts at issue. Her testimony was broad,
               generalized, and included reference to results of research studies.


       31 N.E.3d at 29. Similarly, in Baumholser v. State, 62 N.E.3d 411 (Ind. Ct. App.

       2016), trans. denied, the defendant challenged the testimony of the forensic

       interviewer, Molly Elfreich (“Elfreich”). There, when Elfreich was asked at

       trial whether all children she had interviewed would disclose immediately,

       Elfreich testified that “most of the time [disclosure of a crime by a child] is

       delayed in some way.” Id. at 414. Baumholser did not object to this testimony.

       On appeal, Baumholser argued that Elfreich’s testimony was vouching

       testimony prohibited by Indiana Evidence Rule 704(b). The Baumholser court

       determined,

               Elfreich’s testimony did not relate to the truth or falsity of [the
               victim]’s allegations. Rather, Elfreich was making a statement
               about how victims of child molestation behave in general. Thus,
               her testimony was not improper vouching.


       Id. at 416 (citing Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012)

       (testimony on the general behavior of domestic violence victims “does not cross

       the line into impermissible vouching”), trans. denied).




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 10 of 24
[18]   Here, in a like way, Dr. Thompson’s testimony cited to a research statistic,

       addressing how victims of child molestation behave in general. Dr. Thompson

       was being asked about what percentage of children exhibit physical injury or

       trauma, and she replied that “about 4 to 5 percent of children who have been

       victims of sexual abuse will have some kind of obvious physical evidence of

       penetration or sexual abuse.” Tr. at 298. The State then asked, “[D]oes that

       mean that all the rest of those children are making up allegations?” and Dr.

       Thompson replied:


               No, it doesn’t mean that. It just means it’s the nature of the
               abuse. Like I said, often the disclosure is late, injuries are subtle
               or even very obvious it healed by the time we get to see them.
               And in fact some statistics will quote that less than two to three children
               out of a thousand are making up claims.


       Id. at 298-99. Dr. Thompson’s statement was explaining that a lack of physical

       injuries is not indicative that a child is fabricating the abuse, and it was based

       on her education and experience. It was not a statement as to A.M.’s

       credibility. It was not an opinion regarding the truth of the allegations against

       Alvarez-Madrigal. It was not an opinion about, or related to, whether A.M.

       had been coached, and it did not concern whether A.M. was a truthful person

       in general. See Robey v. State, 7 N.E.3d 371, 380 (Ind. Ct. App. 2014) (family

       case manager’s testimony that child victim’s demeanor was “matter of fact”

       was general in nature, did not directly comment on whether victim’s

       accusations were true or whether victim was a truthful person in general), trans.

       denied. Nor was Dr. Thompson’s testimony a statement that a claim has been

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017          Page 11 of 24
       substantiated. See Bean v, State, 15 N.E.3d 12, 19 (Ind. Ct. App. 2014) (“This

       Court has held that testimony that a claim has been substantiated constitutes an

       opinion regarding the truth of the allegations, thereby violating Indiana

       Evidence Rule 704(b).”), trans. denied. In sum, Dr. Thompson expressed no

       opinion “concerning intent, guilt, or innocence in a criminal case; the truth or

       falsity of allegations; whether a witness has testified truthfully; or legal

       conclusion,” Indiana Evidence Rule 704(b), and we find that Dr. Thompson’s

       non-solicited and general statistical statement properly left the determination of

       A.M.’s credibility to the province of the jury. Accordingly, Dr. Thompson’s

       testimony was not vouching testimony prohibited by Indiana Evidence Rule

       704(b), and the trial court did not abuse its discretion by admitting the

       testimony into evidence.


[19]   Moreover, even assuming that the challenged testimony by Dr. Thompson –

       “[S]ome statistics will quote that less than two to three children out of a

       thousand are making up claims” – constituted improper vouching, we find no

       reversible error. Tr. at 299. The record reflects that, immediately after Dr.

       Thompson made the statement, counsel for Alvarez-Madrigal objected: “This

       clearly calls for speculation. It’s not relevant to the facts in this case.” Id. The

       trial court did not expressly rule on the objection, but instead directed: “Then

       ask her this, ask her every question in terms of reasonable medical certainty.”

       Id. Alvarez-Madrigal did not seek to strike Dr. Thompson’s testimony or ask

       for admonishment. On appeal, the State argues that, because a party may not

       assert one basis at trial and other on appeal, Alvarez-Madrigal has waived his


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017       Page 12 of 24
       vouching argument. Appellant’s App. at 12 (citing R.W. v. State, 975 N.E.2d 407,

       411 (Ind. Ct. App. 2012), trans. denied and Howard v. State, 818 N.E.2d 469 (Ind.

       Ct. App. 2004), trans. denied). Anticipating that he might face this waiver

       argument, Alvarez-Madrigal maintains that he preserved his claimed error, and

       even if he did not, it was fundamental error4 to admit Dr. Thompson’s

       testimony. Appellee’s Br. at 21-22.


[20]   Assuming without deciding that, as Alvarez-Madrigal claims, he properly

       preserved his claim that Dr. Thompson’s testimony constituted impermissible

       vouching, we find no reversible error. We will reverse a conviction for

       preserved error in the admission of evidence if the error is inconsistent with

       substantial justice or affects the substantial rights of a party. Ind. Evidence Rule

       103(a); Hamilton v. State, 43 N.E.3d 628, 633-34 (Ind. Ct. App. 2015) (citing

       Bradford v. State, 960 N.E.2d 871, 877 (Ind. Ct. App. 2012)), on reh’g, 49 N.E.3d

       554 (Ind. Ct. App. 2015), trans. denied; see also Norris v. State, 53 N.E.3d 512, 524

       (Ind. Ct. App. 2016) (“Errors in the admission or exclusion of evidence are to

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

       party.”). In analyzing the prejudicial effect on a defendant’s substantial rights




       4
         The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal.
       It is an extremely narrow exception that allows a defendant to avoid waiver of an issue, and it is available
       only in egregious circumstances. Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App. 2016), trans denied. It is
       error that makes “a fair trial impossible or constitute[s] clearly blatant violations of basic and elementary
       principles of due process, presenting an undeniable and substantial potential for harm. Id. (quotations
       omitted). Harm is not shown by the fact that the defendant was ultimately convicted; rather harm is found
       when error is so prejudicial as to make a fair trial impossible. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind.
       2012).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017                          Page 13 of 24
       from the erroneous admission of evidence, we look to the probable impact of

       the evidence on the factfinder. Hoglund, 962 N.E.2d at 1238. The improper

       admission of evidence is deemed harmless if there is substantial independent

       evidence of guilt supporting a conviction such that we can say there is no

       substantial likelihood that the questioned evidence contributed to the

       conviction. Id.


[21]   Here, A.M. testified to the incidents with specificity and consistency, and,

       contrary to Alvarez-Madrigal’s suggestion, his convictions did not rest entirely

       on A.M.’s uncorroborated testimony. That is, other evidence was consistent

       with or supported A.M.’s allegations. A.M.’s friend P.J. testified to exchanging

       Facebook messages and texts with A.M. about the matter, which led to P.J.

       sharing her concerns about A.M. with her mentor, and a report was made to

       DCS. Tr. at 78. As a result of information received by DCS, Hunt initiated an

       investigation and made an unannounced visit to A.M.’s home, where Hunt

       spoke to A.M.’s mother and to A.M. As Hunt was at the front door, explaining

       that she was an employee with DCS and wanted to speak with A.M. and her

       parents, A.M. “burst out in tears” and said she knew why DCS was at the

       home, and she stated “what happened,” which was the first time that A.M.

       mentioned anything about it to her parents. Id. at 79. Hunt and an IMPD

       officer spoke to A.M., and as a result of what A.M. said, Hunt called Detective

       Barnett, the on-call child abuse detective, who found that immediate response

       was warranted because the suspect lived in proximity, “living on the same

       street” as A.M. Id. at 187-88. Hunt took A.M. and her parents to the Child


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 14 of 24
       Advocacy Center for an interview, and based on what Detective Barnett heard

       and observed, he obtained a search warrant for Alvarez-Madrigal’s residence.


[22]   S.A.O. also provided testimony that was consistent with aspects of A.M.’s

       testimony. She stated that on June 14, after the girls had been swimming, she

       waited outside for A.M. for “a long time kind of” and that, when A.M. came

       outside, she was sad. Id. at 265. S.A.O. stated that A.M. wanted to go for a

       walk and that during the walk, A.M. began crying, told S.A.O. about

       something S.A.O.’s father had done to her, and asked S.A.O. to speak to her

       father about it. S.A.O. testified that, at some point on their walk, A.M. told her

       that Alvarez-Madrigal had kissed her on the neck and touched her private parts.

       Id. at 278-81. When S.A.O. was asked at trial if she spoke to her father as A.M.

       had asked, S.A.O. testified, “I didn’t say exactly what [A.M.] said. I just said,

       dad, she doesn’t like when you tickle her feet, stuff like that.” Id. at 270.


[23]   Dr. Thompson also provided testimony that supported A.M.’s reports of abuse.

       Dr. Thompson testified that A.M. presented at Riley with complaints of genital

       pain and explained that A.M. was experiencing “somatic complaints,” which

       are fairly common in sexual abuse cases. Id. at 303, 305. She testified that the

       term does not mean that the patient is fabricating feelings of physical pain, as

       the “pain that the person is experiencing is real” and may stem from emotional

       trauma. Id. at 305.


[24]   Alvarez-Madrigal urges us to find that the factual statistic to which Dr.

       Thompson testified “likely influenced” the jury, especially given “the


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 15 of 24
       inconsistencies, contradictions and peculiarities from other parts of the trial[.]”

       Appellant’s Br. at 18. This assertion is an argument that A.M.’s testimony was

       not entirely consistent with that of S.A.O. and her mother, who stated that they

       did not see or hear anything and did not observe red marks on A.M. S.A.O.

       also denied that her father had begged her not to tell her mother, as A.M. had

       testified to hearing, and S.A.O’s mother stated that she did not come out of her

       room into the hallway, as A.M. had described, to ask what was going on.

       However, the fact that S.A.O. and her mother – who were Alvarez-Madrigal’s

       daughter and wife, respectively – denied hearing or seeing anything happen

       does not mean that A.M. was inconsistent. It means that there was a witness

       credibility determination to be made, and, here, the jury believed A.M.


[25]   The record before us indicates that there was substantial independent evidence

       of guilt supporting Alvarez-Madrigal’s convictions. We do not find that Dr.

       Thompson’s isolated factual statistic, which was not elicited and was

       spontaneously offered, likely had substantial influence on the verdict.5 See

       Hoglund, 962 N.E.2d at 1238 (improper admission of evidence is harmless error

       if conviction is supported by substantial independent evidence of guilt satisfying




       5
         We note that Alvarez-Madrigal, in arguing that admission of Dr. Thompson’s testimony was not harmless,
       asserts that “another instance of vouching occurred” at trial, during Detective Flynn’s testimony when she
       stated that A.M. had disclosed during the interview matters in the nature of a “sexual assault” and that
       criminal charges are not always filed in every case that is investigated. Appellant’s Br. at 20-21. Alvarez-
       Madrigal suggests that, by this testimony, the State was attempting “to persuade the jury that A.M.’s
       allegation of sexual assault was credible.” Id. at 21. Alvarez-Madrigal did not object at trial to the now-
       challenged testimony, nor does he provide case law or support for the assertion that Detective Flynn’s
       testimony constituted vouching. The State asserts, and we agree, that Alvarez-Madrigal has waived any
       argument with regard to Detective Flynn’s testimony. Ind. Appellate Rule 46(A)(8).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017                       Page 16 of 24
       reviewing court that there is no substantial likelihood the challenged evidence

       contributed to conviction); Norris, 53 N.E.3d at 525 (finding that interviewer’s

       testimony stating that she found “indicia of reliability” to be present in child

       victim’s testimony was vouching, but holding single instance of improperly

       admitted testimony did not affect defendant’s substantial rights and was

       harmless). Accordingly, the trial court did not commit reversible error when it

       admitted Dr. Thompson’s testimony over Alvarez-Madrigal’s objection.


[26]   Affirmed.


[27]   Robb, J., concurs.


[28]   Barnes, J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 17 of 24
       Argumendo Alvarez-Madrigal,
       Appellant-Defendant,                                      Court of Appeals Case No.
                                                                 49A02-1601-CR-162
               v.

       State of Indiana,
       Appellee-Plaintiff.




       Barnes, Judge, concurring in result.


[29]   I concur in result here. I do not believe Alvarez-Madrigal adequately preserved

       his claim on appeal that Dr. Thompson gave impermissible vouching

       testimony. He objected to the testimony on the basis that it was “speculation”

       and “not relevant . . . .” Tr. p. 299. A party cannot object on one basis at trial

       and seek reversal on appeal on a different ground. Boatner v. State, 934 N.E.2d

       184, 187 (Ind. Ct. App. 2010). Thus, in order for Alvarez-Madrigal to prevail

       on his unpreserved claim that Dr. Thompson’s testimony was impermissible

       vouching, he must establish that it was fundamental error. See Absher v. State,

       866 N.E.2d 350, 355 (Ind. Ct. App. 2007). I believe Dr. Thompson’s testimony

       was erroneous but not fundamental error.


[30]   Despite my colleagues’ thoughtful opinion, I am convinced that a similar

       vouching question to the one here was addressed, explained, and held improper


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017              Page 18 of 24
       by our supreme court in Sampson v. State, 38 N.E.3d 985 (Ind. 2015), and this

       court in Hamilton v. State, 43 N.E.3d 628 (Ind. Ct. App. 2015), aff’d on r’hg, trans.

       denied. I am the author of Hamilton, and I stand behind it without reservation. I

       also understand that some cases may be distinguishable to allow some of the

       testimony provided here by Dr. Thompson. I also understand that crimes

       against children are particularly heinous. Our society as a whole—including

       investigators, prosecutors, and the judiciary—are understandably horrified by

       these crimes. I am, too.


[31]   The flip side of that coin, however, is that persons accused of such offenses face

       a stigma associated with no other type of crime, and they are entitled to the full

       protection of the law before they may be convicted. When we put in place a set

       of rules to govern the admission of evidence in these types of cases, we do so

       because of our obligation under the law to presume innocence and ensure that

       defendants receive a fair trial, regardless of the heinousness of the allegations.

       Dating back to cases such as Lannan v. State, 600 N.E.2d 1334 (Ind. 1992), and

       Modesitt v. State, 578 N.E.2d 649 (Ind. 1991), Indiana courts have constructed a

       pattern of rules to address the appropriate ways to try these sorts of cases.


[32]   Most recently, in Sampson, our supreme court held that expert witnesses cannot

       testify as to the general signs that a child has or has not been coached and then

       testify as to whether a particular child exhibited any such signs, unless the

       defendant has opened the door to such testimony. Sampson, 38 N.E.3d at 991-

       92. As the court explained,



       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 19 of 24
               when a jury is presented with expert testimony concerning
               certain coaching behaviors, the invited inference that the child
               has or has not been coached because the child fits the behavioral
               profile is likely to be just as potentially misleading as expert
               testimony applying the coaching behaviors to the facts of the case
               and declaring outright that a given child has or has not been
               coached.


       Id. at 991. The court overruled previous cases from this court in reaching this

       decision: Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012), trans. denied,

       and Archer v. State, 996 N.E.2d 341 (Ind. Ct. App. 2013), trans. denied. The

       Sampson court did not reverse the defendant’s child molestation conviction,

       however, because the defendant did not object to the testimony and the error

       was not fundamental, in light of the victim’s testimony. Sampson, 38 N.E.3d at

       992-93. The Sampson opinion relied heavily upon Hoglund v. State, 962 N.E.2d

       1230, 1237 (Ind. 2012), which held that allowing testimony that a child is not

       prone to exaggerate or fantasize about sexual matters is “indirect vouching

       testimony [that] is little different than testimony that the child witness is telling

       the truth.”


[33]   In Hamilton, we addressed a case in which there was in fact a timely objection

       to the type of improper vouching testimony prohibited by Sampson. We

       rejected the trial court’s ruling that the defendant had opened the door to such

       testimony because he had asked the two alleged victims whether anyone had

       told them what to say in court, noting that both victims had said no and that no

       other evidence of alleged coaching was presented. Hamilton, 43 N.E.3d at 633.

       We explained that, for a defendant to open the door to otherwise inadmissible

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017    Page 20 of 24
       evidence, the defendant “‘must leave the trier of fact with a false or misleading

       impression of the facts related.’” Id. at 632-33 (quoting Beauchamp v. State, 788

       N.E.2d 881, 896 (Ind. Ct. App. 2003)). “Merely asking the witnesses whether

       they had been told what to say is not equivalent to presenting evidence that they

       had been told what to say, or creating a false impression in the jury that they

       had been.” Id. at 633. A false impression may be created if a child recants an

       abuse claim during trial, or if the defendant attempts to argue or present

       evidence that a child is not acting like a sexual abuse victim. Id. (citing Steward

       v. State, 652 N.E.2d 490, 499 (Ind. 1995)). Ultimately, we reversed the

       defendant’s convictions, stating:

               If there is to be a rule barring vouching testimony . . . then it is
               extremely difficult to imagine a scenario in which such
               testimony, where an objection to it was raised at trial, is harmless
               in a case such as this where a conviction depends entirely upon
               assessing the credibility of the alleged victim. Otherwise there
               would seem to be little point in having such a rule.


       Id. at 634. Clearly, the recent trend in the case law is to restrict both direct and

       indirect forms of vouching for a child witness’s credibility unless the door has

       been opened to such vouching. Moreover, the door must be opened by

       something more than simply questioning the witness and attempting to poke

       holes in his or her testimony, which is always the point of cross-examination.


[34]   Here, Alvarez-Madrigal cross-examined A.M. about possible inconsistencies in

       her testimony and conflicts with pre-trial statements. I do not believe this

       amounted to opening the door for vouching testimony. And, I disagree with

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 21 of 24
       my colleagues that Dr. Thompson’s testimony was permissible, especially with

       respect to her statistical statement about the number of children who

       purportedly make up molestation claims. That kind of testimony is, in my

       mind, the type of indirect vouching addressed and rejected in Hoglund, Sampson,

       and Hamilton. Even if Dr. Thompson’s testimony was not directly tied to A.M.,

       what other conclusion could a jury draw from this testimony other than,

       “there’s a very small chance this child is making these things up”?


[35]   A number of other courts take the same dim view of statistical vouching

       evidence such as this. For example, in Wheat v. State, 527 A.2d 269 (Del. 1987),

       the Delaware Supreme Court reversed a molestation conviction after an expert

       witness on child abuse testified about typical behaviors exhibited by an abuse

       victim, and also testified “that in general, between thirty percent and forty

       percent of children recant, alter, or otherwise minimize their original allegations

       of sexual abuse, but that fewer than five percent recant and maintain the altered

       statement.” Wheat, 527 A.2d at 271. The court flatly rejected the admissibility

       of this testimony. It stated, “[t]o the extent such expert testimony is given in

       general terms and directed to behavior factors in evidence, it is admissible. To

       the extent it attempts to quantify the veracity of a particular witness or provide

       a statistical test for truth telling in the courtroom, it is clearly unacceptable.” Id. at

       275 (emphasis added). The court held that the expert had “impermissibly

       invaded the credibility province of the trier of fact in ‘lie detector’ fashion.” Id.

       See also United States v. Brooks, 64 M.J. 325, 329-30 (C.A.A.F. 2007) (reversing

       military convictions for indecent liberties with a child because of expert’s


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017       Page 22 of 24
       plainly erroneous testimony that only two to five percent of child sex abuse

       allegations were fabricated; convictions were reversed despite no objection to

       the testimony); State v. MacRae, 677 A.2d 698, 702 (N.H. 1996) (holding expert

       testimony that seventy to eighty percent of males treated at a certain substance

       abuse facility also attended by victim had been sexually abused was erroneous

       but was harmless because defendant had presented similar evidence); State v.

       Lindsey, 720 P.2d 73, 75 (Ariz. 1986) (reversing incest convictions based on

       expert’s inadmissible testimony that only “a very small proportion” of incest

       allegations are false and stating, “trial courts should not admit expert testimony

       that quantifies the probabilities of the credibility of another witness”); Aguirre v.

       State, 379 P.3d 1149 (Kan. Ct. App. 2016)6 (holding defendant received

       ineffective assistance of counsel and vacating convictions for rape and indecent

       liberties with a child where trial counsel did not object to expert testimony that

       “very few children lie about sexual abuse” and that ninety-three percent of

       children who recant an abuse allegation are lying about the recantation).


[36]   In sum, I believe this court should unequivocally hold that statistical evidence

       about the possibility a witness is lying invades the province of the fact finder

       and is inadmissible vouching. That said, I do not believe Alvarez-Madrigal

       adequately preserved his claim of error in this case. I also cannot say he

       established fundamental error, given A.M.’s detailed testimony and other




       6
        This case was not published; however, unlike in Indiana, there is not an absolute bar in the Kansas rules of
       appellate procedure upon citing it as precedent. See Kan. Sup. Ct. R. 7.04.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017                         Page 23 of 24
evidence in the record that corroborated it. See Sampson, 38 N.E.3d at 992-93.

On that basis, I vote to affirm Alvarez-Madrigal’s convictions.




Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017   Page 24 of 24
