                                                                        Sep 09 2015, 8:53 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William W. Gooden                                         Gregory F. Zoeller
      Mt. Vernon, Indiana                                       Attorney General of Indiana

                                                                Angela N. Sanchez
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Melvin C. Hamilton,                                       September 9, 2015
      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                65A04-1412-CR-592
              v.                                                Appeal from the Posey Circuit
                                                                Court
      State of Indiana,                                         The Honorable James M.
      Appellee-Plaintiff.                                       Redwine, Judge
                                                                Trial Court Cause No.
                                                                65C01-1403-FA-71



      Barnes, Judge.


                                              Case Summary
[1]   Melvin Hamilton appeals his convictions for three counts of Class A felony

      child molesting. We reverse and remand.



      Court of Appeals of Indiana | Opinion 65A04-1412-CR-592| September 9, 2015               Page 1 of 12
                                                      Issue
[2]   The sole restated issue before us is whether the trial court properly allowed

      witnesses for the State to vouch for the credibility of the alleged victims.


                                                      Facts
[3]   A.S. and D.P. are the foster children of Heather and Charles Reese. Hamilton

      is Charles’s stepfather. Hamilton frequently babysat the children at his home in

      Posey County. In 2014, A.S. was ten, and D.P. was five. A.S. and D.P. called

      Hamilton “Pappy.” Tr. p. 29.


[4]   On February 24, 2014, A.S. and D.P. spent the night at Hamilton’s house.

      During the night, D.P. awoke to Hamilton putting his finger in her “private.”

      Id. at 46. A.S. was in the same room at the time, and Hamilton also put his

      finger in her “private” while D.P. watched. Id. at 56. Hamilton had done

      similar things to A.S. on at least five prior occasions.


[5]   On the following morning, D.P. spontaneously told Heather that Pappy had

      touched her; when asked where, D.P. pointed to her vagina. Both D.P. and

      A.S. subsequently were interviewed by Molly Elfreich, a trained forensic

      interviewer, and D.P. and A.S. described the molestations to her. A medical

      doctor also examined D.P. and A.S., who recounted the molestations to the

      doctor.




      Court of Appeals of Indiana | Opinion 65A04-1412-CR-592| September 9, 2015   Page 2 of 12
[6]   After the forensic interview and medical examination, Detective Jeremy

      Fortune of the Posey County Sheriff’s Department interviewed Hamilton.

      During the interview, the following exchanged occurred:


              [Fortune]: [T]his is the thing, Chuck, for a five year old to say
              somebody stuck their finger in my vagina is pretty powerful.


              [Hamilton]: Very much so.


              [Fortune]:        That’s pretty powerful.


              [Hamiton]: Where, where is she coming up with that?


              [Fortune]:        And, and to say “Pappy did it” . . .


              [Hamilton]: Exactly.


              [Fortune]:        . . . that’s even more powerful.


              [Hamilton]: I agree.


      Ex. 7 p. 29.


[7]   The State charged Hamilton with three counts of Class A felony child molesting

      and one count of Class C felony child molesting. At his jury trial, during cross-

      examination of D.P., counsel for Hamilton asked, “Has anyone told you what

      to say today?” Tr. p. 51. D.P. said no one had. Similarly, counsel for

      Hamilton asked A.S. during cross-examination, “Has anyone told you what



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       you should say here today?” Id. at 59. A.S. stated only that she had been told

       to tell the truth.


[8]    The State also called Elfreich to testify after D.P. and A.S. testified. Without

       objection, the State asked Elfreich to describe various factors that she would

       look for as indicators that a child had been coached; namely, whether the child

       has trouble recalling details or has to start a story over when detailed questions

       are asked. Also without objection, the State asked Elfreich whether she had

       observed those factors when interviewing D.P. and A.S., and she testified that

       she had not. Then, over Hamilton’s objection, the State asked Elfreich whether

       she had observed any indicators of coaching in either child, and she testified

       that she had not. Also, Hamilton objected to the jury hearing Detective

       Fortune say during his interview of Hamilton that D.P.’s statements describing

       her molestation had been “powerful.” Ex. 7 p. 29. The trial court overruled

       this objection.


[9]    The jury found Hamilton guilty of three counts of Class A felony child

       molestation and not guilty of the Class C felony child molestation charge. The

       trial court sentenced Hamilton accordingly, and he now appeals.


                                                    Analysis
[10]   Hamilton contends that the trial court erred in overruling his objections to

       purported vouching by Elfreich and Detective Fortune regarding the

       truthfulness of D.P.’s and A.S.’s testimony. “A trial court has broad discretion

       in ruling on the admissibility of evidence and we will disturb its rulings only

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       where it is shown that the court abused 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.


[11]   In Hoglund, our supreme court addressed existing case law regarding vouching

       testimony in the context of child sex abuse cases. Specifically, in Lawrence v.

       State, 464 N.E.2d 923, 925 (Ind. 1984), the court had held that trial courts were

       allowed to permit “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 is not prone to exaggerate or fantasize about sexual matters.” The

       Hoglund court noted that Lawrence predated the adoption of the Indiana

       Evidence Rules. In particular, Indiana Evidence Rule 704(b), enacted in 1994,

       provides: “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.” Cases decided by this

       court after adoption of the Evidence Rules construed Lawrence “as representing

       an exception to Rule 704(b) noting that the Rule is relaxed in the child

       molestation context.” Hoglund, 962 N.E.2d at 1234 (citing, e.g., Rose v. State,

       846 N.E.2d 363, 367 (Ind. Ct. App. 2006)).


[12]   The Hoglund court overruled Lawrence. Specifically, the court held 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.” Id. at 1237. The court held that such

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       testimony is at odds with Evidence Rule 704(b) and that it was inappropriate to

       carve out an exception to the rule for sex abuse cases. Id.


[13]   In Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012), trans. denied, this

       court addressed Hoglund’s holding in the context of testimony related to

       whether an alleged child sex abuse victim had been “coached.” Ultimately, we

       stated:


                 We hold that general testimony about the signs of coaching, as
                 well as the presence or absence of those signs in the child victim
                 at issue, preserves the ultimate credibility determination for the
                 jury and therefore does not constitute vouching. By contrast,
                 where a witness opines as to whether the child victim was
                 coached—offering an ultimate opinion . . . the witness invades
                 the province of the jury and vouches for the child.


       Kindred, 973 N.E.2d at 1258. Another panel of this court followed Kindred in

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


[14]   Very recently, in Sampson v. State, No. 87S01-1410-CR-684 (July 30, 2015), our

       supreme court overruled Kindred and Archer.1 In Sampson, the State asked a

       forensic interviewer a number of questions related to coaching of alleged child

       sex abuse victims, including what the possible signs are of a child having been




       1
         Although the Sampson opinion does not mention Bean v. State, 15 N.E.3d 12 (Ind. Ct. App. 2014), trans.
       denied, part of that case has been called into question by Sampson. Specifically, we stated in Bean that
       testimony from a forensic interviewer that he did not observe any signs of inaccuracy or coaching in the
       alleged molestation victim was not improper vouching. Bean, 15 N.E.3d at 20, n.5. After Sampson, this
       statement is inaccurate. We note that the trial court specifically relied upon this footnote in Bean in
       overruling Hamilton’s objection to Elfreich’s testimony.

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       coached and whether the interviewer had observed any such signs in the alleged

       victim in the case. The defendant failed to object to any of the questions and

       was convicted of Class C felony child molesting.


[15]   After reviewing case law from Indiana and other jurisdictions, the court held:


                  We conclude therefore that the subtle distinction between an
                  expert’s testimony that a child has or has not been coached versus an
                  expert’s testimony that the child did or did not exhibit any “signs or
                  indicators” of coaching is insufficient to guard against the dangers
                  that such testimony will constitute impermissible vouching as we
                  expressed in Hoglund. Nevertheless, “once a child’s credibility is
                  called into question proper expert testimony may be
                  appropriate.” Steward [v. State], 652 N.E.2d [490,] 499 [(Ind.
                  1995)]. “[B]ehavioral characteristics of child abuse victims, even
                  where inadmissible to prove abuse, are far less controversial
                  when offered to rebut a claim by the defense that a child
                  complainant’s behavior . . . is inconsistent with her claim of
                  abuse.” Id. at 496. We thus align ourselves with those
                  jurisdictions that permit testimony about the signs of coaching
                  and whether a child exhibited such signs or has or has not been
                  coached, provided the defendant has opened the door to such
                  testimony.


       Sampson, slip op. at 9.2


[16]   The Sampson opinion also contains the following observation as to what

       constitutes “opening the door” to otherwise inadmissible vouching evidence:

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




       2
           The time period for filing a petition for rehearing in Sampson has not yet passed.


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       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 p. 9 n.4. “‘The door may be opened

       when the trier of fact has been left with a false or misleading impression of the

       facts.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009)). Although

       this court has generally stated that, “when a defendant interjects an issue in a

       trial, he opens the door to otherwise inadmissible evidence,” we also have

       emphasized, “evidence relied upon to open the door must leave the trier of fact

       with a false or misleading impression of the facts related.” Beauchamp v. State,

       788 N.E.2d 881, 896 (Ind. Ct. App. 2003).


[17]   In Steward, relied upon by the Sampson opinion, the court held that expert

       testimony regarding “child sexual abuse syndrome” is inadmissible unless a

       defendant has first called a child’s credibility into question. Steward, 652

       N.E.2d at 499. Specifically, the court noted that “if the defense discusses or

       presents evidence of” behavior that is seemingly inconsistent with having been

       abused, “or if during trial testimony the child recants a prior allegation of

       abuse,” then expert testimony regarding “child sexual abuse syndrome” may be

       admissible. Id.


[18]   Ultimately, the Sampson court held that, although any testimony opining

       whether a child has been coached is inadmissible, such testimony did not

       constitute fundamental error in the case before it. Sampson, slip op. at 10.

       Specifically, the court noted that defense counsel had thoroughly cross-

       examined the alleged victim, whose testimony never wavered from that given

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       during direct examination. Id. The defendant’s testimony also coincided with

       the alleged victim’s in many ways, except for the having denied molesting the

       victim. Id. And, the defendant had thoroughly cross-examined the forensic

       interviewer regarding the basis on which she had reached her conclusion that

       the alleged victim had not been coached. Id.


[19]   Here, Hamilton did not object to testimony by Elfreich regarding whether either

       D.P. or A.S. had trouble recalling details or had to start their narrative over

       when being asked detailed questions, which according to Elfreich would have

       been indicators of coaching. However, Hamilton did object to Elfreich being

       asked, “did you observe any indicators of coaching” in either D.P. or A.S., to

       which she responded “No, I did not.” Tr. p. 81. Hamilton’s failure to object to

       the first questions but objecting to the last question was consistent with this

       court’s holdings in Kindred and Archer. Also, Hamilton’s objection to Elfreich’s

       ultimate opinion on coaching preserved the issue for review, unlike in Sampson.

       It is clear under Sampson that all of Elfreich’s testimony regarding indicators of

       coaching was inadmissible. It is the type of vouching testimony deemed to

       improperly invade the province of the jury to assess witness credibility. See

       Head v. State, 519 N.E.2d 151, 153 (Ind. 1988) (reversing molestation

       convictions for improper vouching evidence described as “an invasion of the

       province of the jury in determining what weight they would place upon the

       child’s testimony.”).


[20]   In overruling Hamilton’s objection, the trial court ruled in part that Hamilton

       had “opened the door” to Elfreich’s coaching testimony because he had asked

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       both D.P. and A.S. during cross-examination whether anyone had told them

       what to say in court. However, both D.P. and A.S. denied having been told

       what to say by anyone. On appeal, the State does not argue that Hamilton

       opened the door to Elfreich’s testimony, and it is correct not to do so. 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. The witnesses unequivocally

       answered no to the questions—there was no evidence or suggestion in any

       testimony that the girls had been coached. As such, Hamilton did not open the

       door to Elfreich’s testimony.


[21]   Unlike in Sampson, Hamilton preserved his claim of error with respect to

       Elfreich’s testimony, and so we review it for ordinary reversible error, not

       fundamental 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. Bradford v. State, 960 N.E.2d 871, 877

       (Ind. Ct. App. 2012) (citing Ind. Trial Rule 61). In analyzing the prejudicial

       effect on a defendant’s substantial rights from the erroneous admission of

       evidence, we look to the probable impact of the evidence on the factfinder. Id.

       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. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).

       “‘Reversal may be compelled if the record as a whole discloses that the


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       erroneously admitted evidence was likely to have had a prejudicial impact on

       the fact-finder, thereby contributing to the judgment.’” Id. (quoting Ground v.

       State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998)). If we determine that an

       evidentiary error had substantial influence on a verdict, or if we are left in grave

       doubt as to whether it did so, we must reverse the conviction. Id.


[22]   We cannot say that the erroneous admission of Elfreich’s vouching testimony

       was harmless. There was no corroborating evidence of Hamilton’s guilt apart

       from the testimony of D.P. and A.S. The only value of Elfreich’s testimony

       was to improperly bolster the credibility of D.P. and A.S. If there is to be a rule

       barring vouching testimony such as Elfreich’s, 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. We conclude that the erroneous

       admission of Elfreich’s testimony likely had a substantial influence on the jury’s

       guilty verdicts. Therefore, we are compelled to reverse Hamilton’s convictions

       and to remand for a new trial.


[23]   For purposes of remand, we also address Hamilton’s contention that Detective

       Fortune improperly vouched for D.P. when, during his interview of Hamilton,

       he stated several times that her statements were “powerful.” Ex. 7 p. 29. We

       acknowledge that statements made by police officers during interrogations

       potentially can be problematic under Evidence Rule 704(b). See Lampkins v.

       State, 778 N.E.2d 1248, 1251 (Ind. 2002). Still, we cannot say that these

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       comments amounted to improper vouching in the context in which they were

       made. In the framework of hearsay claims, statements by an officer designed to

       elicit a response from the defendant, as opposed to statements of fact, generally

       are admissible without the necessity of an admonishment or limiting

       instruction. Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999). Here, similarly,

       Detective Fortune’s saying that D.P. had made “powerful” statements were

       related to attempting to elicit a response from Hamilton. Hamilton did respond

       by agreeing that the statements were “powerful” but denied molesting D.P. or

       A.S. Viewing Detective Fortune’s statements from the perspective of them

       being part of a police interview, we do not believe they carry the same vouching

       force as trial testimony to that effect. Hamilton also fails to cite any authority

       in a similar case addressing statements similar to Detective Fortune’s. We

       conclude there was no error in the admission of those statements.


                                                  Conclusion
[24]   The trial court committed reversible error in admitting Elfreich’s testimony

       regarding whether D.P. or A.S. had been coached. However, Detective

       Fortune’s statements during his interview with Hamilton did not constitute

       improper vouching. We reverse Hamilton’s convictions and remand for retrial

       consistent with this opinion.


[25]   Reversed and remanded.


       Kirsch, J., and Najam, J., concur.


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