MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            FILED
Memorandum Decision shall not be regarded as                      Dec 27 2016, 8:33 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                   CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
collateral estoppel, or the law of the case.                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ellica Ann Houser,                                       December 27, 2016

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         79A02-1603-CR-556
        v.                                               Appeal from the Tippecanoe Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas H. Busch,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 79C01-1502-FD-1




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016    Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Ellica Houser (Houser), appeals her conviction for

      neglect of a dependent, a Class D felony, Ind. Code § 35-46-1-4(a)(3) (2012).


[2]   We affirm.


                                                     ISSUE

[3]   Houser raises two issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court abused its discretion in admitting

      certain evidence.


                           FACTS AND PROCEDURAL HISTORY

[4]   Between December 2010 and December 2012, K.N. 1 lived with her mother,

      Houser, and her step-father, Michael Houser (Michael), at 4015 Jackson

      Highway, West Lafayette, Indiana. Between 2011 and 2012, K.N. was in the

      sixth and seventh grades. K.N.’s best friend was A.E., whom she had met in

      the sixth grade. The two girls were closely bonded and they spent most of their




      1
       The charging Information and Affidavit of Probable Cause refers to K.N. as K.C. The record shows that
      K.N. was subsequently adopted and she changed her last name.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016     Page 2 of 13
      free time together. Often times, A.E. stayed at K.N.’s house overnight on the

      weekends.


[5]   While living at Jackson Highway, every now and then, Michael would walk

      into the bathroom while K.N. was taking a shower “and he would ask if he

      could watch.” (Tr. p. 260). After a while, Michael progressed from observing

      K.N.’s showers, and he would fondle K.N.’s breasts and vagina while he

      masturbated. Michael would stop touching K.N.’s breast and vagina after he

      ejaculated. According to K.N., Michael’s abuse in the bathroom happened

      “every other day.” (Tr. p. 266).


[6]   On one occasion, Michael went into K.N.’s bedroom and touched K.N.’s breast

      and vagina with his hands. Thereafter, Michael inserted his penis into K.N.’s

      vagina but he did not “insert it all the way.” (Tr. p. 268). Sometime between

      January or February 2012, K.N. was at home sleeping on the couch. Michael

      badgered K.N. to allow him to touch her and after several requests, K.N.

      agreed. At first, Michael touched K.N.’s breast and vagina with his hands.

      Next, Michael pulled K.N.’s shorts down, got on top of her, and inserted his

      penis into her vagina. According to K.N., Houser was always at home when

      Michael molested her; however, she specified that Houser was never in the

      same room during the abuse. When K.N. reported to Houser about Michael’s

      abuse, Houser advised her “not to think a lot about it.” (Tr. p. 281).


[7]   Sometime in February 2012, Houser and K.N. got into an argument over a

      “tootsie roll that [Michael] had given” K.N. (Tr. p. 280). Houser ordered


      Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 3 of 13
      K.N.to go to her bedroom but K.N. refused. Houser verbally abused K.N.

      stating that the only reason K.N. left her bedroom was “to fuck” Michael. (Tr.

      p. 280). Soon thereafter, the argument between Houser and K.N. escalated into

      a physical altercation. In the days that followed, K.N. reported Michael’s

      yearlong abuse to her boyfriend, and a school counselor. The school counselor

      instructed K.N. to write down the allegations, and she thereafter alerted the

      Tippecanoe County Sheriff’s Department and the Department of Child

      Services. Shortly after K.N.’s claims of sexual molestation surfaced, A.E.

      disclosed to her mother that Michael had raped her in 2011 when she had been

      left alone with him at K.N.’s house in West Lafayette. Subsequently, K.N. and

      A.E. were interviewed on several occasions at the Hartford House by Dawn

      Gross (Gross), a child forensic interviewer. In addition, Detective Jacob

      Amberger (Detective Amberger) interviewed Houser regarding K.N.’s

      allegations.


[8]   On February 28, 2015, the State filed an Information, charging Houser with

      neglect of a dependent, a Class D felony, I.C. § 35-46-1-4(a)(3) (2012). On

      August 25, 2015, Houser, by counsel, filed a motion in limine requesting the

      exclusion of specific prior bad acts including, but not limited to “any

      photographs taken on a boat in White County.” (Appellant’s App. Vol. II, p.

      103). On September 15, 2015, the trial court held an evidentiary hearing to

      hear all pending motions, including Houser’s motion in limine. At the close of

      the evidence, the trial court took the matter under advisement. On December

      16, 2015, the trial court denied Houser’s motion, stating, in part, that “with


      Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 4 of 13
      respect to the swim suit incident, the motion in limine is denied . . . . the

      evidence is relevant to show knowledge.” (Appellant’s App. Vol. II, p. 83).


[9]   Houser and Michael were tried jointly during a three-day jury trial beginning on

      January 11, 2016. During trial, the State questioned K.N. regarding an incident

      in White County where Michael had untied her bikini top as well as A.E.’s.

      Prior to K.N.’s response, Houser’s counsel requested a side bar outside the

      jury’s presence, and after the conference, the trial court issued the following

      limiting instructions to the jury:

              Okay the defendants are charged with crimes committed in
              Tippecanoe County and you are now hearing some evidence about an
              incident that . . . allegedly occurred in White County. The . . . only
              purpose for which you may consider this evidence is to show the
              knowledge of [] Houser as to the charges against her, . . . and the
              intent or lack of mistake as to Michael[’s] . . . charges against him.
              You’re not to consider . . . the evidence of the White County incident
              for any other purpose.


      (Tr. p. 275). K.N. proceeded to testify that in the summer of 2011, Houser,

      Michael, A.E., and herself all went to a lake in White County. K.N. stated that

      while on the boat, Michael unlaced her bikini top as well as A.E.’s and then she

      and A.E. jumped into the water. K.N. indicated that Houser observed

      Michael’s acts since she was in the water floating “on the tube.” (Tr. p. 278).

      K.N. stated that Michael ejaculated when she and A.E. jumped into the water.

      K.N. further stated that at a different time that same summer, while on the

      same boat, Michael took naked photographs of her and Houser both with their

      legs up in the air. Also, over Houser’s objection, Gross, the child forensic


      Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 5 of 13
       interviewer, testified on the dynamics of child sexual abuse including the

       disclosure process, reasons for delayed disclosures, and recantation of

       allegations. 2 Specifically, Gross specified that every child is unique and reacts

       differently to sexual abuse. Gross added that recantation did not mean that the

       abuse did not occur, and she further explained that most children that were

       sexually abused repudiated their assertions so as to avoid offending or upsetting

       their caregiver or parent. At the close of the evidence, the jury found Houser

       guilty as charged. On March 4, 2016, the trial court held Houser’s sentencing

       hearing and subsequently sentenced her to an executed one and one-half years

       in the Indiana Department of Correction.


[10]   Houser now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                               I. Standard of Review


[11]   A trial court has broad discretion in ruling on the admissibility of evidence, and,

       on review, we will disturb its ruling only on a showing of abuse of discretion.

       Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When




       2
        The record shows that in June 2008, while living in Kentucky, K.N. alleged that her uncle had sexually
       molested her. However, during a forensic interview at the child advocacy center in Hopkinsville, Kentucky,
       K.N. recanted that allegation.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016        Page 6 of 13
       reviewing a decision under an abuse of discretion standard, we will affirm if

       there is any evidence supporting the decision. Id. A claim of error in the

       admission or exclusion of evidence will not prevail on appeal unless a

       substantial right of the party is affected. Ind. Evidence Rule 103(a). In

       determining whether error in the introduction of evidence affected a defendant’s

       substantial rights, we assess the probable impact of the evidence on the jury.

       Sparkman, 722 N.E.2d at 1262.


[12]   In her appellate brief, Houser argues that (1) the evidence in relation to the

       incidents that arose in White County were inadmissible pursuant to Indiana

       Evidence Rule 404(b); and (2) the trial court abused its discretion in admitting

       Gross’ testimony since it amounted to indirect vouching for K.N.’s and A.E.’s

       testimonies.


                                            II. Admission of Evidence

[13]   Houser argues that the trial court abused its discretion in admitting two prior

       bad acts: (1) Houser was present when Michael untied K.N.’s and A.E.’s bikini

       tops while they were on a boat in White County; and (2) the naked photographs

       that Michael took of her and K.N. Houser claims that the admission of these

       prior bad acts was in violation of Evidence Rule 404(b), as they could only have

       been admitted to show her propensity to commit the crime of neglect of a

       dependent. The State counters Houser’s argument and states that the prior bad

       acts committed in White County were properly admitted as the evidence was

       relevant to show Houser’s knowledge with respect to Michael’s abuse of K.N.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 7 of 13
[14]   Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs,

       or acts of a defendant is not admissible to prove the character of the defendant

       in order to show action in conformity therewith. “It may, however, be

       admissible for other purposes, such as proof of motive, intent, preparation,

       plan, knowledge, identity, or absence of mistake or accident.” Evid. R. 404(b).

       (emphasis added). In assessing the admissibility of Evidence Rule 404(b)

       evidence, the trial court must (1) determine whether the evidence of other

       crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act; and (2) balance the probative value of the

       evidence against its prejudicial effect. Goldsberry v. State, 821 N.E.2d 447, 455

       (Ind. Ct. App. 2005). The well-established rationale behind Evidence Rule

       404(b) is that the jury is precluded from making the forbidden inference that the

       defendant had a criminal propensity and therefore engaged in the charged

       conduct. Id. The list of “other purposes” in the Rule is not exhaustive;

       extrinsic act evidence may be admitted for any purpose not specified in Rule

       404(b) unless precluded by the first sentence of Rule 404(b) or any other Rule.

       Id.


[15]   The second step of a 404(b) analysis is to balance the probative value of the

       evidence against its prejudicial effect. Id. “Although relevant, evidence may be

       excluded if its probative value is substantially outweighed by the danger of

       unfair prejudice, confusion of the issues, or misleading the jury, or by

       considerations of undue delay, or needless presentation of cumulative

       evidence.” Evid. R. 403. “The trial court has wide latitude, however, in


       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 8 of 13
       weighing the probative value of the evidence against the possible prejudice of its

       admission.” Evans v. State, 727 N.E.2d 1072, 1079 (Ind. 2000).


[16]   We note that Evidence Rule 404(b)(2) specifies knowledge as one of the

       purposes for which evidence of other crimes, wrongs, or acts may be admitted.

       Such evidence is most commonly used to rebut the possibility that the

       defendant was unaware that a criminal act was being committed. 12 Robert L.

       Miller, Jr., Indiana Practice: Indiana Evidence, § 404.203 (3d ed. 2007). Further,

       in Whitehair v. State, 654 N.E.2d 296, 302 (Ind. Ct. App. 1995), we concluded

       that, with respect to a defendant’s knowledge of the wrongfulness of his actions,

       evidence of a defendant’s prior bad acts is only admissible when the defendant

       puts his knowledge at issue. Turning to the present case, in her opening

       statement, Houser, through counsel, explained that she was unaware of the

       ongoing abuse happening in her home. During trial, Houser cross-examined

       K.N. to show that K.N. did not explicitly report Michael’s abuse to her, and she

       further presented evidence that she was not in the same room when Michael

       abused K.N. In short, Houser fostered the impression that she knew nothing

       about K.N.’s abuse in her home.


[17]   Despite Houser’s claim that the acts committed in White County were solely

       introduced to prove the forbidden inference of her propensity to commit the

       charged crime, we find that the evidence was introduced to challenge Houser’s

       impression that she was unaware that K.N. had been subjected to sexual abuse

       by Michael in her West Lafayette home. Houser turned a blind eye to

       Michael’s abuse and failed to take any necessary action to prevent or limit

       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 9 of 13
       Michael from having any contact with K.N. In addition, as noted, the trial

       court issued a limiting instruction to the jury to only consider the White County

       events as evidence of Houser’s knowledge with respect to the charges proffered

       against her. When a limiting instruction is given that certain evidence may be

       considered for only a particular purpose, the law will presume that the jury will

       follow the trial court’s admonitions. Ware v. State, 816 N.E.2d 1167, 1176

       (citing Hernandez v. State, 785 N.E.2d 294, 303 (Ind. Ct. App. 2003), trans.

       denied)).


[18]   Regarding the balancing required under Evidence Rule 403, we find that the

       trial court was well within its discretion in concluding that the probative value

       of K.N.’s testimony regarding the White County events was not substantially

       outweighed by the danger of unfair prejudice. In the instant case, the State

       presented substantial independent evidence of Houser’s guilt such that we are

       satisfied that there is no substantial likelihood that K.N.’s testimony regarding

       the uncharged incidents that occurred in White County involving Houser

       contributed to her conviction. At trial, K.N. offered her compelling testimony

       recounting Michael’s abuse on her in the bathroom, bedroom, and living room.

       According to K.N., Houser was never in the same room when the abuse

       occurred; however, K.N. indicated that Houser was aware of Michael’s abuse.

       Specifically, K.N. testified that when she reported Michael’s abuse, Houser

       “would say that it’s okay or not to think a lot about it.” (Tr. p. 281). K.N. also

       testified of an incident occurring sometime in February 2012 when she got into

       an argument with Houser over a tootsie roll that Michael had offered her. K.N.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 10 of 13
       indicated that when she failed to obey Houser’s orders to return to her

       bedroom, Houser implied that the only reason she left her bedroom was “to

       fuck” Michael. (Tr. p. 280). In addition, the record shows that when Houser

       was initially interviewed by Detective Amberger of the Tippecanoe County

       Sheriff’s Department concerning K.N.’s sexual abuse claims, Detective

       Amberger noted that Houser’s “demeanor was kind of . . . victim blaming” and

       she accused K.N. of “flirting” with Michael. (Tr. pp. 406, 407). In light of the

       substantial independent evidence establishing Houser’s guilt, we conclude that

       that the trial court was within its discretion in concluding that the probative

       value of K.N.’s testimony was not substantially outweighed by the danger of

       unfair prejudice.


                                            III. Vouching Testimony

[19]   Finally, Houser challenges the trial court’s admission of Gross’ testimony

       arguing that it improperly vouched for K.N.’s and A.E.’s testimonies. 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.”

       And, “[n]o witness, whether lay or expert, is competent to testify that another

       witness is or is not telling the truth.” Angleton v. State, 686 N.E.2d 803, 812

       (Ind. 1997). “Such testimony is an invasion of the province of the jurors in

       determining what weight they should place upon a witness’s testimony.” Rose

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



       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 11 of 13
[20]   During its case-in-chief, and after K.N. and A.E. had testified, the State

       presented the testimony of Gross, over Houser’s objection. Gross, a forensic

       interviewer, provided expert testimony concerning the dynamics of child abuse,

       the disclosure process, and why a child may recant his or her disclosure of the

       abuse. Gross testified to a number of factors that contribute to a child’s delay in

       disclosing abuse, including fear of shame, fear of being threatened, and worry of

       how they would be perceived. Gross added that negation of sexual abuse

       claims did not essentially mean that the abuse did not happen.


[21]   We disagree with Houser that Gross’ testimony ran afoul of Indiana Evidence

       Rule 704(b). In Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012), trans.

       denied, our court permitted expert testimony explaining the behaviors and

       dynamics associated with domestic violence, including that associated with

       why a victim may recant. The Otte court noted that “the reactions and

       behaviors of domestic violence victims are not commonly understood by

       laypersons,” and “testimony regarding a victim’s propensity to recant . . .

       simply provides the jury with information outside its experience, permitting it

       to assess credibility based upon a more complete understanding of all potential

       factors at issue.” Id. Although Gross interviewed K.N. and A.E., she never

       repeated K.N.’s and A.E.’s statements at trial. Also, Gross did not offer any

       opinion regarding the truth or falsity of K.N.’s and A.E.’s claims of

       molestation. It is evident from the record that Gross’ testimony was based on

       her specialized training in interviewing child abuse victims and her experience

       investigating such cases. By eliciting only general, non-specific statements from


       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 12 of 13
       Gross, the State properly left the determination of K.N.’s and A.E.’s credibility

       to the province of the jury. For all of the above reasons, we conclude that

       Gross’ testimony was not vouching testimony prohibited by Indiana Evidence

       Rule 704(b) and conclude that the trial court did not abuse its discretion by

       admitting the testimony into evidence.


                                              CONCLUSION

[22]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by admitting evidence in relation to the events that arose in White

       County; nor did it abuse its discretion by admitting Gross’ testimony regarding

       the general nature of child abuse reports and recantations.


[23]   Affirmed.


[24]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016   Page 13 of 13
