MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be                                    Jul 25 2018, 8:48 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Curtis T. Hill, Jr.
Bargersville, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Gibson,                                          July 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A04-1712-CR-2745
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         27D01-1607-F4-31



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018             Page 1 of 14
                                               Case Summary
[1]   Anthony Gibson appeals his conviction, following a jury trial, for level 4 felony

      child molesting. He asserts that the admission of certain evidence during trial

      resulted in fundamental error. He also argues that the trial court abused its

      discretion in the admission of other evidence and that the effect of the court’s

      cumulative errors deprived him of his right to a fair trial. Finding no

      fundamental error or abuse of discretion, and concluding that Gibson was not

      deprived of his right to a fair trial, we affirm.


                                  Facts and Procedural History
[2]   On June 19, 2016, thirteen-year-old K.R. went to her friend C.H.’s house to

      spend the night. Also at the home that evening were C.H.’s mother, Lindy, her

      stepfather, Gibson, and five of C.H.’s nine siblings.1 K.R. had been to C.H.’s

      home on other occasions and felt comfortable with C.H.’s family.


[3]   K.R. and C.H. fell asleep around midnight in the same bed. At approximately

      2:30 a.m., K.R. awoke and saw a tall shadowy figure that she recognized as

      Gibson standing in the doorway of the bedroom. He was wearing a white shirt.

      K.R. assumed that Gibson was probably just checking on the girls, so she closed

      her eyes to return to sleep. K.R. heard footsteps coming toward her, but she

      kept her eyes closed and pretended to be asleep. She could hear deep breathing

      right next to her, and then she felt a large hand move up her lower thigh, under


      1
        C.H. has one seven-year-old biological brother. Gibson has three biological children, and he and Lindy had
      recently adopted five children from foster care.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018            Page 2 of 14
      her shorts, and squeeze her buttocks a few times. K.R. was “shaking, trying not

      to cry” because she could not “believe it was happening to [her].” Tr. Vol. 2 at

      36. She rolled over to her other side, and Gibson removed his hand and left the

      room.


[4]   K.R. stayed under the covers crying and shaking for about ten minutes before

      she grabbed her cell phone and began texting her mother. K.R. asked her

      mother to come pick her up immediately, telling her mother that she had

      awakened to Gibson putting “his hand up [her] pants.” State’s Ex. 71 at 2.

      K.R.’s mother told K.R. that she and her fiancé, Dwayne Collins, would come

      pick K.R. up and stated, “I hope you are telling the truth.” Id. at 3. K.R.

      responded, “Please don’t make me say anything” and “I didn’t see that it was

      [Gibson] but I felt big hands.” Id. After her mother said that she was calling

      the police, K.R. texted, “[B]ut [I don’t know] who it was mom! I don’t want to

      get anyone in trouble I just want to go home.” Id. K.R.’s mother responded,

      “[I]t’s not ok and just promise me you are telling the truth.” Id. at 4. K.R. said,

      “I am.” Id.


[5]   After texting with her mom, K.R. eventually woke up C.H. and told her what

      had happened. K.R. told C.H. that she was leaving, and she asked C.H. to

      walk her downstairs. C.H. responded that it could not have been Gibson and

      put the idea in K.R.’s mind that somebody else “had to have came into the

      house.” Tr. Vol. 2 at 52. The two girls walked downstairs and observed

      Gibson, who appeared to be sleeping in a recliner. K.R. exited the home and

      walked down the driveway to get picked up. She was still texting with her

      Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 3 of 14
      mother, and when her mother informed her that Collins was on his way, K.R.

      stated, “Tell him to hurry please…[I] don’t think it was [Gibson]…I feel like

      someone came in the house…but [ I don’t know].” State’s Ex. 71 at 5.


[6]   Before Collins arrived to pick up K.R., Gibson exited the house and confronted

      K.R., asking her why she was leaving. Because K.R. did not want Gibson to

      know that she was awake when he touched her, K.R. said, “I just want go

      home…I just had a bad dream.” Tr. Vol. 2 at 41. When Collins arrived, he

      approached Gibson and told him that somebody had touched K.R.

      inappropriately and that he was going to find out who. Gibson did not really

      respond, but instead just nodded his head. Collins drove away with K.R.


[7]   Shortly thereafter, Gibson called 911 and reported that “maybe someone [was]

      in [his] house.” State’s Ex. 70. He told the dispatcher that he thought the

      person had just left because he saw a vehicle parked off a road behind his house

      and the vehicle was departing as he called 911. A police officer who was

      nearby and quickly responded to the scene did not see or pass any vehicles as he

      approached the residence, nor did he observe any vehicles as he continued to

      search the area. Because Gibson told one of the officers that he thought he saw

      a man get in the vehicle and drive away, another officer and his canine arrived

      at the scene and walked that area, but the canine gave no indications or leads

      for tracking a scent. Also, because Gibson reported that the vehicle was parked

      in a grassy area, an officer went to the area but saw no evidence of tire tracks or

      downed grass in the damp ground where Gibson stated the vehicle had been



      Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 4 of 14
       located. Photographs of Gibson taken that night reveal that he was wearing a

       white shirt.


[8]    After K.R. returned home, she immediately told her sister what had happened.

       She was subsequently interviewed by police, and on July 7, 2016, the State

       charged Gibson with level 4 felony child molesting. Following a jury trial,

       Gibson was found guilty as charged. The trial court imposed a six-year

       sentence with one year suspended to probation. This appeal ensued.


                                      Discussion and Decision

        Section 1 – The trial court did not commit fundamental error
                       in admitting certain evidence.
[9]    Gibson makes multiple claims of fundamental error. We begin by addressing

       his assertion that the trial court’s admission of repeated vouching testimony

       from K.R.’s mother, best friend, and sister resulted in fundamental error.

       Gibson concedes that his counsel failed to object to the testimony as vouching

       testimony, and the “[f]ailure to object to the admission of evidence at trial

       normally results in waiver and precludes appellate review unless its admission

       constitutes fundamental error.” Konopasek v. State, 946 N.E.2d 23, 27 (Ind.

       2011) (quotation and citation omitted). Thus, Gibson seeks to avoid waiver

       and obtain reversal of his conviction pursuant to the doctrine of fundamental

       error.


[10]   Generally speaking, the fundamental error doctrine is meant to permit appellate

       courts a means to correct the most egregious and blatant trial errors that

       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 5 of 14
       otherwise would have been procedurally barred, “not to provide a second bite

       at the apple for defense counsel who ignorantly, carelessly, or strategically fail

       to preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Indeed, our

       supreme court very recently explained,


               An error is fundamental, and thus reviewable on appeal, if it
               “made a fair trial impossible or constituted a clearly blatant
               violation of basic and elementary principles of due process
               presenting an undeniable and substantial potential for harm.”
               These errors create an exception to the general rule that a party’s
               failure to object at trial results in a waiver of the issue on appeal.
               This exception, however, is “extremely narrow” and
               encompasses only errors so blatant that the trial judge should
               have acted independently to correct the situation. At the same
               time, “if the judge could recognize a viable reason why an
               effective attorney might not object, the error is not blatant
               enough to constitute fundamental error.”


       Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (citations omitted).


[11]   Indiana Evidence Rule 704(b) precludes witnesses from testifying to opinions

       concerning the truth or falsity of allegations or whether a witness has testified

       truthfully. Gibson claims that three witnesses improperly vouched for K.R.’s

       credibility when they were permitted to tell the jury “that they believed” the

       truth of her allegation against Gibson. Appellant’s Br. at 12. Such testimony is

       considered 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.




       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 6 of 14
[12]   First, Gibson contends that impermissible vouching took place during K.R.’s

       mother’s testimony. Specifically, when asked about text messages between

       mother and daughter in which K.R. stated that Gibson had touched her, K.R.’s

       mother testified, “I believed her, especially when you see the physical

       symptoms she was having. You don’t have those physical symptoms unless

       something truly stressful or traumatic has happened to you.” Tr. Vol. 1 at 204.

       Contrary to Gibson’s assertion, this comment could be interpreted as limited to

       K.R.’s mother’s belief that an actual molestation occurred, rather than vouching

       for K.R.’s identification of Gibson as the perpetrator. Regardless, even if K.R.’s

       mother’s testimony was “potentially erroneous under the strict terms of Rule

       704,” we agree with the State that it did not amount to fundamental error.

       Appellee’s Br. at 13-14.


[13]   As noted above, if the trial judge “could recognize a viable reason why an

       effective attorney might not object, the error is not blatant enough to constitute

       fundamental error.” Durden, 99 N.E.3d at 652. Here, we think the trial judge

       could recognize a viable reason why Gibson’s attorney might not object to

       K.R.’s mother’s testimony. Specifically, the entirety of the text message

       exchange showed that K.R.’s mother clearly questioned the credibility of K.R.’s

       allegation at the time of the incident (questioning her honesty and twice

       imploring that she “better be” telling the truth). During vigorous cross-

       examination, Gibson’s counsel was able to emphasize the inconsistency in

       K.R.’s mother’s current testimony regarding K.R.’s credibility at the time of the

       incident versus the questions as to her credibility expressed in the text messages.


       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 7 of 14
       Counsel was further able to highlight that K.R. told her mother multiple times

       that she did not know for sure who had touched her. K.R.’s mother admitted

       that she believed that K.R. was also telling the truth when she said she did not

       know who had touched her. In short, K.R.’s mother’s testimony highlighted

       multiple inconsistencies and gave defense counsel a valuable impeachment

       opportunity. Accordingly, the lack of objection could have been strategic, and

       any error in the admission of the testimony is not blatant enough to constitute

       fundamental error.


[14]   Gibson next argues that K.R.’s sister and best friend impermissibly vouched for

       K.R.’s credibility when the deputy prosecutor asked them for their opinions as

       to K.R.’s character for truthfulness. When asked about K.R.’s character for

       “truthfulness and honesty,” K.R.’s sister testified that “K.R. has never had a

       reason to lie, ever” and “out of the three of us [sisters], she’s the most honest.

       Always has been.” Tr. Vol. 3 at 42. Similarly, when asked whether K.R. was a

       “truthful person,” her best friend responded, “yes.” Id. at 91.


[15]   The State responds that the testimony was admissible pursuant to Indiana

       Evidence Rule 608(a) which provides that a witness’s credibility may be

       supported by testimony about the witness’s reputation for having a character for

       truthfulness or by testimony in the form of an opinion about that character.

       However, “evidence of truthful character is admissible only after the witness’s

       character for truthfulness has been attacked.” Ind. Evidence Rule 608(a). This

       is a close call. Unquestionably, it was the State and not Gibson that first

       introduced evidence that some of K.R.’s prior statements were untrue. Indeed,

       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 8 of 14
       it was the State’s theory that K.R. made untruthful statements at the time of the

       incident, but that she was being truthful at trial. So, the State first introduced

       the untruthful statements and then permitted K.R. to explain her prior

       uncertainties and why she had been untruthful. On cross-examination, Gibson

       responded, understandably so, by attacking K.R.’s credibility, emphasizing that

       lies are still lies, and implying that her current testimony could not be trusted.

       Under the circumstances, we conclude that while the credibility issue was first

       interjected by the State, the opinion testimony subsequently solicited by the

       State was intended to rehabilitate K.R.’s character for truthfulness which had

       been attacked by Gibson during cross-examination.


[16]   We acknowledge that, as a general matter, the State cannot open its own door

       to inadmissible evidence. See Willey v. State, 712 N.E.2d 434, 444 (Ind. 1999)

       (State cannot bootstrap otherwise inadmissible evidence by introducing it,

       “forcing a denial, and then claiming it was put in issue by the defendant.”).

       Nevertheless, both parties here relied heavily on K.R.’s prior inconsistent

       statements to bolster their own theories. In fact, Gibson’s counsel

       foreshadowed his attack on K.R.’s credibility as to her current allegation of

       Gibson being the perpetrator of the molestation when during opening statement

       he highlighted her anticipated inconsistent statements. K.R.’s credibility was

       squarely at issue, and thus we conclude that the challenged testimony was

       admissible pursuant to Evidence Rule 608(a).


[17]   Moreover, even assuming that the opinion testimony of K.R.’s sister and her

       best friend was inadmissible, we conclude that any error did not rise to the level

       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 9 of 14
       of fundamental error. After an extensive review of the trial transcript, we find

       no clearly blatant violation of basic and elementary principles of due process.

       The opinion testimony regarding K.R.’s truthful character was incredibly brief

       and isolated in light of the record as a whole. Consequently, Gibson’s

       substantial rights were not affected by the admission of this testimony, and he

       has not satisfied the lofty standard for fundamental error.


[18]   Gibson also maintains that fundamental error occurred when testimony was

       admitted regarding K.R.’s changed behavior since the molestation.

       Specifically, K.R.’s family members, friend, and K.R. herself testified that since

       the incident, she has become more reserved, does not want to be touched by

       anyone, and is scared to be alone. Gibson argues that such evidence was

       “irrelevant,” “highly inflammatory,” and aimed at invoking “an emotional

       reaction” from the jury. Appellant’s Br. at 17, 20. However, we remind

       Gibson that even if we were to assume that the evidence was irrelevant and

       prejudicial, the mere fact that error occurred and that it was prejudicial will not

       satisfy the fundamental error rule. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct.

       App. 2010), trans. denied. Rather, a finding of fundamental error “requires a

       defendant to show greater prejudice than ordinary reversible error.” Id. (citation

       omitted). Gibson has simply not done so.


            Section 2 – The trial court did not abuse its discretion in
                          admitting certain evidence.
[19]   We next address Gibson’s assertion that the trial court abused its discretion in

       admitting opinion testimony from 911 dispatcher Kelly Fields that the format of

       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 10 of 14
       Gibson’s call was “a little odd” and “unusual” as compared to other 911 calls.

       Tr. Vol. 2 at 149. Gibson’s counsel objected to the testimony on relevance

       grounds. The State responded that Fields could give her opinion based on her

       perception and her experience in taking emergency calls. The trial court

       overruled Gibson’s objection and allowed the testimony. On appeal, in

       addition to questioning the admissibility of Fields’s opinion pursuant to

       Evidence Rule 401, Gibson claims that any probative value to the evidence was

       substantially outweighed by the danger of unfair prejudice pursuant to Evidence

       Rule 403.


[20]   Our supreme court recently explained:


               Trial judges are called trial judges for a reason. The reason is that
               they conduct trials. Admitting or excluding evidence is what they
               do. That’s why trial judges have discretion in making evidentiary
               decisions. This discretion means that, in many cases, trial judges
               have options. They can admit or exclude evidence, and we won’t
               meddle with that decision on appeal. There are good reasons for
               this. Our instincts are less practiced than those of the trial bench
               and our sense for the rhythms of a trial less sure. And trial courts
               are far better at weighing evidence and assessing witness
               credibility. In sum, our vantage point—in a far corner of the
               upper deck—does not provide as clear a view.


       Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017) (citations and quotation marks

       omitted). Because determinations of relevance and unfair prejudice can often

       be resolved either way, trial courts have wide discretion in both determinations.

       Id.



       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 11 of 14
[21]   “Evidence is relevant when it has ‘any tendency’ to prove or disprove a

       consequential fact. See Ind. Evidence Rule 401. This ‘liberal standard for

       relevancy’ sets a low bar, and the trial court enjoys ‘wide discretion’ in deciding

       whether that bar is cleared.” Id. (citation omitted). Similarly, opinion

       testimony of a skilled witness, an individual whose knowledge is insufficient to

       be termed an expert yet is beyond that of an ordinary juror, “generally needs

       only rise to a relatively low bar in order to be admissible.” Hawkins v. State, 884

       N.E.2d 939, 943-945 (Ind. Ct. App. 2008), trans. denied. Pursuant to Indiana

       Evidence Rule 701, such a witness may provide an opinion or inference that is

       rationally based on the perception of the witness and helpful to a clear

       understanding of the witness’s testimony or the determination of a fact in issue.


[22]   Here, Fields’s vast experience of taking emergency calls supported her

       testimony as a skilled witness,2 and her opinion that the format of Gibson’s call

       was unusual was rationally based on her perception and helpful to a clear

       understanding of her testimony regarding the content of the call and her

       subsequent response to the call. Any dispute as to the inferences to be drawn

       from her opinion went to the weight of her testimony rather than to its

       admissibility, and could be addressed on cross-examination.3 Hawkins v. State,

       626 N.E.2d 436, 441 (Ind. 1993); Lyons v. State, 976 N.E.2d 137, 142 (Ind. Ct.




       2
        Gibson does not challenge that Fields was qualified as a skilled witness based on her more than fifteen years
       of experience as a 911 dispatcher.
       3
        Gibson directs us to Cline v. State, 726 N.E.2d 1249, 1255 (Ind. 2000), in support of his argument that
       Fields’s testimony was irrelevant, and therefore inadmissible. Cline is factually inapposite to the instant case.

       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018                Page 12 of 14
       App. 2012). Indeed, Gibson’s counsel vigorously cross-examined Fields

       regarding her opinion, offering the jury numerous reasonable explanations for

       Gibson’s behavior during the call. As for prejudice, while we agree with

       Gibson that Fields’s opinion testimony was prejudicial to him in the sense that

       it may have been damaging to his case, we conclude that it was not unfairly so.

       Her testimony was brief, and she gave the jury absolutely no indication as to

       what, if anything, they should infer from her opinion that Gibson’s call was

       unusual. The trial court did not abuse its discretion in admitting the testimony.


        Section 3 – Cumulative error did not deprive Gibson of a fair
                                   trial.
[23]   Last, Gibson asserts that the combination of all the trial court’s evidentiary

       errors, considered cumulatively, deprived him of a fair trial. Our supreme court

       has acknowledged “for the sake of argument, that under some circumstances

       the cumulative effect of trial errors may warrant reversal even if each might be

       deemed harmless in isolation[.]” Hubbell v. State, 754 N.E.2d 884, 895 (Ind.

       2001). However, as we concluded above, neither fundamental error nor an

       abuse of discretion occurred that would support a cumulative error claim.

       Moreover, a defendant is “entitled to a fair trial, not a perfect trial.” Inman v.

       State, 4 N.E.3d 190, 203 (Ind. 2014) (citation omitted). We perceive no

       significant breakdown in the adversarial process that deprived Gibson of his

       right to a fair trial. Accordingly, we affirm his conviction.




       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 13 of 14
[24]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A04-1712-CR-2745 | July 25, 2018   Page 14 of 14
