MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                          Oct 15 2015, 8:08 am
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
Michael R. Fisher                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Ricardo Minney,                                          October 15, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1503-CR-172
        v.
                                                         Appeal from the Marion
                                                         Superior Court
State of Indiana,
                                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Anne M.
                                                         Flannelly, Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1406-FA-33132



Riley, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015       Page 1 of 14
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Ricardo Minney (Minney), appeals his conviction and

      sentence for Counts I-II, child molesting, Class A felonies, Ind. Code § 35-42-4-

      3(a)(1) (2013); and Count IV, child molesting, a Class C felony, I.C. § 35-42-4-

      3(b) (2013).


[2]   We affirm.


                                                     ISSUES

[3]   Minney raises two issues on appeal, which we restate as:

      (1) Whether the trial court committed a fundamental error by admitting certain

      testimonies at trial; and

      (2) Whether Minney’s sentence is inappropriate in light of the nature of the

      offenses and his character.


                           FACTS AND PROCEDURAL HISTORY 1

[4]   T.P. (Father) and J.H. (Mother) are the biological parents of J.P., born on April

      25, 2007. In 2008, Father and Mother ended their relationship, and Mother




      1
       In accordance with the revised Administrative Rule 9(G), certain evidence was submitted to our court
      which is declared confidential and must be excluded from public access. Because a number of facts derived

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015         Page 2 of 14
      became the custodial parent. Parenting time was set in accordance with the

      Indiana Parenting Time Guidelines. Thereafter, Father married L.P. and they

      had two children, a son and a daughter. J.P. would visit with Father and L.P.

      every other weekend, a day in the course of the week, and during school

      vacations. Sometime in 2010 or 2011, Mother began a romantic relationship

      with Minney, and shortly thereafter, the two moved in together. J.P. was fond

      of Minney and she referred to him as her “stepdad.” (Transcript p. 31). During

      that time, Mother changed her work schedule where she worked from 1:00 a.m.

      to 9:00 a.m. For the times she was at work, Mother would leave J.P. under her

      parents’ care or under Minney’s supervision.


[5]   On one occasion, while Mother was at work, J.P. was sitting on Minney’s lap

      in the living room. Minney took off J.P.’s pants and underwear and then put

      his lips on J.P.’s “private part,” which J.P. referred to as the “front” where

      “little girls use to pee.” (Tr. p. 32). According to J.P., Minney moved his

      tongue around her private area and J.P. felt like Minney was “sucking on it.”

      (Tr. p. 33). Another time, Minney put J.P.’s mouth on his “private part.” (Tr.

      p. 36). According to J.P., Minney’s private part was the area that “little boys




      from the confidential records are “essential to the resolution of litigation[,]” we have included confidential
      information in this decision only to the extent necessary to resolve this appeal. Admin. R. 9(G)(7)(a)(ii)(c).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015             Page 3 of 14
      use to pee.” (Tr. p. 37). J.P. also described Minney’s penis as “brown and

      cylinder shape” which was “[h]ard.” (Tr. p. 36). Both events occurred when

      J.P. was six years old. On another occasion, Minney was lying on the couch,

      with J.P. sitting close to his penis. According to J.P., Minney had his hands

      around her hips.


[6]   Sometime after the above incidents, J.P. disclosed to Mother that Minney had

      touched her, but Mother failed to act on J.P.’s complaint. According to the

      probable cause affidavit, the above incidents made J.P. act out in a sexualized

      manner, such as kissing girls at school and asking them if they wanted to have

      sex with her. Also, while at Father’s and L.P.’s house, J.P. touched her two-

      year-old half-sister’s private parts. Troubled by J.P.’s aberrant behavior, on

      March 31, 2014, L.P. questioned J.P. if anyone had “done something” to her.

      (Tr. p. 42). Mentioning each name at a time, L.P provided Father’s, Mother’s,

      Minney’s and her own. J.P. answered in the negative on all names, but she

      wavered on Minney’s name. J.P. was afraid that she would get Minney into

      trouble. After further convincing, J.P. divulged to L.P. that Minney had

      touched her inappropriately. The disclosure left J.P. feeling worse, and she

      remained in the bedroom for a while. L.P. reported to Father that Minney had

      molested J.P.


[7]   Acting on the allegations, Father summoned Mother and Mother’s extended

      family for an emergency family meeting. The purpose of the meeting was to

      inquire about J.P.’s assertions, or if anyone had “seen any red flags or heard

      anything” that would allow Father to believe J.P.’s claims. (Tr. p. 61). The

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 4 of 14
      meeting did not yield any results, but it was agreed that they would all keep an

      eye on J.P. After the meeting, Father went home where he picked up J.P. and

      took her to the hospital for an evaluation. The hospital contacted Department

      of Child Services (DCS). DCS Family Case Manager Michelle Tackette (FCM

      Tackette) arrived at the hospital and took a report. The report was then sent to

      DCS Forensic Interviewer, Laura Fuhrmann (Fuhrmann), who interviewed

      J.P. on April 3, 2014. During the fifteen-minute video recorded interview, J.P.

      disclosed to Fuhrmann that Minney had molested her. FCM Tackette was

      watching the interview in another room across the hallway. After the

      interview, DCS contacted Detective Nicolle Lynn (Detective Lynn) of the

      Indianapolis Metropolitan Police Department and provided her with J.P.’s

      report.


[8]   On June 25, 2014, the State filed an Information, charging Minney with Count

      I, II, and III, child molesting, Class A felonies; and Count IV, child molesting,

      a Class C felony. A jury trial was held on February 19, 2015. The State sought

      to introduce Father’s, Mother’s, L.P.’s, and J.P.’s testimony, as well as

      Fuhrmann’s interview of J.P. and Detective Lynn’s testimony.


[9]   During the trial, Fuhrmann stated that she is trained to interview children who

      have allegedly been sexually abused. Fuhrmann stated she used “Finding

      Words/Child First Protocol” methodologies to conduct the interview. (Tr. p.

      118). She explained that the methods involve building a rapport with the child;

      making the child feel comfortable; talking about the child’s family; and going

      over an anatomical diagram with body parts where the child points out what

      Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 5 of 14
       parts are acceptable to touch and those that are not. Fuhrmann’s observation of

       J.P. during the interview was that she “was very calm and able to communicate

       about what had happened. She felt comfortable in the room and was able to

       talk with me.” (Tr. p. 122). Also, Fuhrmann stated that J.P.’s assertions of the

       molestation were “pretty consistent.” (Tr. p. 124). Detective Lynn testified

       that her investigation involved viewing J.P.’s video recorded interview and also

       questioning FCM Tackette, Mother, Father, and J.P.’s extended family.

       Detective Lynn stated that formal charges do not always arise from an

       investigation; however, in this case, they did.


[10]   At the close of the evidence, Minney moved for a directed verdict on Count III,

       arguing that there were only two potential acts of sexual deviate conduct which

       were covered in Counts I and II. After hearing arguments from both sides, the

       trial court granted Minney’s motion and dismissed Count III. Subsequently,

       the jury found Minney guilty of Counts I, II, and IV. On March 2, 2015, the

       trial court held Minney’s sentencing hearing where it merged Count IV into

       Count I, and then sentenced Minney to an executed sentence of thirty years

       each for both Class A felonies of child molesting in the Department of

       Correction (DOC). Minney’s sentences were to run concurrently.


[11]   Minney now appeals. Additional facts will be provided as necessary.




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                                   DISCUSSION AND DECISION

                                           I. Admission of Evidence

[12]   Minney first argues that it was fundamental error for the trial court to admit

       Fuhrmann’s and Detective Lynn’s testimonies into evidence. We initially

       observe that the decision to admit or exclude evidence is within a trial court’s

       sound discretion and is afforded great deference on appeal. Carpenter v. State,

       786 N.E.2d 696, 702 (Ind. 2003). An abuse of discretion occurs when the trial

       court’s decision is clearly erroneous and against the logic and effect of the facts

       and circumstances before it or it misinterprets the law. Id. at 703. When

       reviewing the admissibility of evidence, we consider only the evidence in favor

       of the trial court’s ruling and any unrefuted evidence in the defendant's favor.

       Redding v. State, 844 N.E.2d 1067, 1069 (Ind. Ct. App. 2006).


[13]   Because Minney did not object to the admission of this evidence at trial, he has

       waived appellate review of this issue. See Manuel v. State, 793 N.E.2d 1215,

       1218 (Ind. Ct. App. 2003), trans. denied. However, as noted above, Minney

       attempts to preserve the issue, claiming that the trial court committed

       fundamental error in admitting Fuhrmann’s and Detective Lynn’s testimonies

       into evidence.


[14]   The fundamental error exception is very narrow, and it arises only when there

       are “clearly blatant violations of basic and elementary principles, and the harm

       or potential for harm could not be denied.” Warriner v. State, 435 N.E.2d 562,

       563 (Ind. 1982). To be fundamental error, the resulting error must deny the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 7 of 14
       defendant fundamental due process. Id. In determining whether the error in

       the introduction of evidence affected an appellant’s substantial rights, we assess

       the probable impact of the evidence on the jury. Manual, 793 N.E.2d at 1219.


[15]   Specifically, Minney argues that Fuhrmann’s and Detective Lynn’s testimonies

       added no new factual evidence but were only offered to “vouch” and “bolster”

       J.P.’s testimony. (Appellant’s Br. p. 6). Put differently, Minney argues that

       their testimonies were the functional equivalent of telling the jury that J.P. was

       telling the truth.


[16]   Vouching testimony is generally prohibited under Indiana Evidence Rule

       704(b), which states: “Witnesses 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 testimony is 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), trans. denied; Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App.

       2012). It is essential that the trier of fact determine the credibility of the

       witnesses and the weight of the evidence. Gutierrez, 961 N.E.2d at 1034.


[17]   Minney cites to Hoglund v. State, 962 N.E.2d 1230, 1232 (Ind. 2012). In that

       case, our supreme court observed that “[f]or over two decades our courts have

       adhered to relaxed evidentiary rules concerning the testimony of children who

       are called upon as witnesses to describe sexual conduct.” Id. In so doing,

       Indiana had been part of a minority of jurisdictions that allow “some form of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 8 of 14
       vouching of child witness testimony in child molestation cases.” Id. at 1235.

       Disagreeing with the previous line of cases, the Hoglund court enunciated a new

       rule:

               [W]e expressly overrule that portion of Lawrence allowing for “some
               accrediting of the child witness in the form of opinions from parents,
               teachers, and others having adequate experience with the child, that
               the child was not prone to exaggerate or fantasize about sexual
               matters.” [Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984)]. This
               indirect vouching testimony is little different than testimony that the
               child witness is telling the truth.


       Id. at 1237. More broadly, the court disallowed testimony by any witness,

       whether lay or expert, that another witness—including a child witness—is or is

       not telling the truth. Id.


[18]   In the instant case, during direct examination, the State questioned Fuhrmann

       as follows:

               Q. [] How long did your interview with J.P. take?
               A. It was approximately 15 minutes.
               Q. Okay. During that interview, did she make a disclosure to you
               with regard to sexual abuse involving [] Minney?
               A. Yes.
               Q. Okay. Did she at all sway back and forth in what she was telling
               you during that interview?
               A. No.
               Q. Okay. Would you say she was pretty consistent in that time that
               you talked to her?
               A. Yes.
               Q. Okay. And the technique that you previously described the
               rapport building, open-ended questions, and is that the technique that
               you used with her?



       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 9 of 14
        A. Yes.
        Q. Okay. And who observed this interview?
        A. The caseworker, Michelle Tackett.
        Q. Okay. What’s the purpose of that? Why have somebody observe?
        A. My role in the interview is just to ask the questions and to gain the
        information. I have no other role in the case other than just to do that.
        Whereas, the caseworker, it’s her job then to assess and make any
        determination of what the next steps will be. Also, when you have
        someone observing the interview, if there is something that I may have
        left out or something that I was unable to notice, she’s able to notice
        that because two eyes are better than one.
        Q. Got it. So you were just kind of collecting any information the
        child will give you?
        A. Yes.

        (Tr. pp. 124-25).


Viewing Fuhrmann’s responses from the above excerpt, we do not believe that

they carry a vouching force. Fuhrmann’s role was to collect the information,

and make no assessment regarding the case. The closest Fuhrmann came in her

testimony to providing what Minney mischaracterizes as indirect vouching

would be Fuhrmann’s testimony that J.P.’s narration of Minney molesting her

was pretty consistent. Even if we were to assume that this was improper

vouching, we cannot agree that its admission resulted in fundamental error. At

issue in this case was the credibility of J.P., who was thoroughly questioned on

cross-examination and whose testimony did not waver from that given during

direct-examination. The testimony of a sole child witness is sufficient to sustain

a conviction of child molesting. Stewart v. State, 768 N.E.2d 433, 436 (Ind.

2002). In this regard, we conclude that Fuhrmann’s response that J.P.’s

testimony was consistent was not so prejudicial to Minney as to make a fair


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       trial impossible. Minney has not established error in the admission of

       Fuhrmann’s testimony regarding “vouching,” let alone fundamental error.


[19]   With regards to Minney’s claim that Detective Lynn also vouched for J.P.’s

       testimony, we note that during the State’s case-in-chief, the following exchange

       took place between the State and Detective Lynn:

               Q. You did watch the tape, right?
               A. Yes, I did.
               Q. And did you speak to anyone after that?
               A. Yes.
               Q. Who did you [] speak to[?] [F]amily members of J.P.?
               A. Yes, I talked to the [DCS] worker. I also talked to [] [M]other,
               [F]ather, her stepmother, maternal grandmother, paternal
               grandmother, and her aunt.
               Q. And eventually you screened the case, right?
               A. That’s correct.
               Q. And what is screening a case?
               A. Screening a case basically means that I gather all the information
               that I have about a case. So all of my interviews, any additional
               evidence that I might have, and kind of put into a bundle [] and give it
               to the prosecutor.
               Q. And did you meet with the prosecutor to go over this case?
               A. Yes, I did.
               Q. Do [] formal charges result from every investigation []?
               A. Absolutely not.
               Q. And so formal charges were filed in this case, right?
               A. Yes.

               (Tr. pp. 140-41).


[20]   Minney argues that Detective Lynn’s “statement that charges do not result from

       every investigation but did from this one[,] implicitly informed the jury that the

       evidence in this case, which consisted solely of the testimony of J.P., was


       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 11 of 14
       worthy to [believe].” (Appellant’s Br. p. 8). Again we disagree. The jury

       already knew that charges had been filed against Minney, otherwise there

       would be no trial. Moreover, given the context of Detective Lynn’s

       questioning, she did not specifically comment on any of the things precluded by

       Rule 704(b). Detective Lynn’s response was an answer to a general question in

       her role as an investigator; therefore, it cannot be said to be vouching. For the

       foregoing reasons, Minney’s argument that Detective Lynn’s testimony

       amounted to vouching also fails.


                                          II. Inappropriate Sentence

[21]   In his last argument, Minney claims that his concurrent thirty-year sentences for

       the two Counts of child molesting is inappropriate in light of the nature of the

       offenses and his character. Indiana Appellate Rule 7(B) provides that we “may

       revise a sentence authorized by statute if, after due consideration of the trial

       court’s decision, [we find] that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” The burden is on the

       defendant to persuade the appellate court that his or her sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       “Ultimately the length of the aggregate sentence and how it is to be served are

       the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       Whether we regard a sentence as appropriate at the end of the day turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other considerations that come to light in a

       given case. Id.

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[22]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). For his Class A felonies, Minney faced a sentencing range of

       twenty to fifty years, with the advisory sentence being thirty years. Ind. Code §

       35-50-2-4. Here, the trial court imposed concurrent sentences of thirty years for

       each Count.


[23]   Turning to the nature of the offense, Minney argues that there was “no physical

       harm to [J.P.,] and there was no allegation or suggestions that threats were

       made.” (Appellant’s Br. p. 16). We find it offensive that Minney attempts to

       diminish the seriousness of his offenses by claiming that J.P. suffered no serious

       physical harm. Minney was Mother’s live-in boyfriend, and J.P. felt kinship

       toward Minney as she regarded him as stepfather. While Mother was away at

       work, Minney used J.P. to satisfy his sexual needs at least three times.

       Additionally, the significant harm to J.P. as a result of these crimes makes

       Minney’s offenses even more egregious. J.P. became increasingly sexual, in

       that, she started kissing girls at school, and she also fondled her little sister’s

       private parts. It is obvious that J.P. will suffer emotional scars that come with

       losing her innocence at the hands of someone masquerading as her protector.

       For these reasons, we cannot say that Minney’s sentence is inappropriate in

       light of the nature of the offenses.


[24]   With respect to Minney’s character, he notes to us that he has one prior juvenile

       arrest. Minney further suggests that we take into account that he has no adult

       criminal history, he had graduated from college, he was gainfully employed,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1503-CR-172 | October 15, 2015   Page 13 of 14
       and had otherwise lived a legally and morally commendable lifestyle. The fact

       that he molested J.P. belies his claim to have been living a largely law-abiding

       and moral life. Also, we find that even though Minney’s criminal history is

       minor and that he was a productive member of society, he violated his position

       of trust with J.P., and that speaks volumes of his unsavory character. See McCoy

       v. State, 856 N.E.2d 1259, 1264 (Ind. Ct. App. 2006) (being in a position of trust

       aggravates the charge of child molesting and concerns the character of the

       offender). Here, Minney has failed to meet his burden in persuading us that his

       sentence is inappropriate in light of his character.


[25]   After due consideration of the evidence before us, including the fact that a

       concurrent sentence was ordered in the instant case, we cannot say that

       Minney’s thirty-year executed sentence is inappropriate in light of the nature of

       the offenses and his character.


                                               CONCLUSION

[26]   Based on the foregoing, we conclude that (1) the trial court did not commit a

       fundamental error by admitting Fuhrmann’s and Detective Lynn’s testimonies;

       (2) Minney’s sentence is not inappropriate in light of the nature of the offenses

       and his character.


[27]   Affirmed.


[28]   Brown, J. and Altice, J. concur




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