                                                                               FILED
                                                                           Apr 26 2016, 8:30 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                        Gregory F. Zoeller
Fort Wayne, Indiana                                        Attorney General of Indiana
                                                           Karl M. Scharnberg
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher C. Norris,                                     April 26, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A03-1507-CR-841
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable John F. Surbeck
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           02D06-1410-F5-92



Riley, Judge.




Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016                           Page 1 of 25
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Christopher C. Norris (Norris), appeals his conviction for

      battery, a Level 5 felony, Ind. Code § 35-42-2-1.


[2]   We affirm.


                                                      ISSUES

[3]   Norris raises four issues on appeal, which we restate as:


          (1) Whether the trial court erred in determining that J.B. was unavailable to

              testify as a protected person pursuant to I.C. § 35-37-4-6(e)(2)(B)(i);

          (2) Whether the trial court abused its discretion by admitting the videotaped

              forensic interview of J.B. at trial, together with the testimony of three

              other witnesses;

          (3) Whether the trial court abused its discretion by admitting vouching

              testimony; and

          (4) Whether the trial court erroneously allowed the drumbeat repetition of

              J.B.’s allegations by various witnesses.


                            FACTS AND PROCEDURAL HISTORY

[4]   In August of 2014, Nicole Pappas (Pappas) and her son, four-year-old J.B.,

      started living with Norris in Norris’ residence. Norris had two biological sons

      from different relationships, thirteen-year-old C.N. and five-year-old B.H., with

      whom he had regular visitation. At some point during that month, B.H. saw

      Norris spanking J.B. “a lot.” (Transcript p. 168). B.H. asked his father “to stop

      Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016    Page 2 of 25
      spanking J.B. [but] he didn’t.” (Tr. p. 170). C.N. also saw Norris “spank J.B.

      really hard” and noticed that J.B.’s buttocks were “black and purple.” (Tr. pp.

      237, 235).


[5]   On August 23, 2014, Norris and Pappas took the three boys to a neighborhood

      park with a water playground for children. While at the park, someone took a

      photo of J.B. and posted it to Twitter. Eric Bennett (Bennett), J.B.’s father, saw

      the photo and believed that J.B.’s face looked swollen and that he might have a

      black eye. Bennett called the police. On August 25, 2014, Bennet went to

      Norris’ residence where police officers were already present. After Bennett

      demanded to see his son, J.B. was brought outside. Bennett, J.B., and an

      officer stepped aside, and Bennett spoke with J.B. When Bennett attempted to

      pick up J.B., J.B. cried out “ow.” (Tr. p. 96). J.B. showed his father the bruises

      on his lower back and buttocks; Bennett also noticed fingerprints on the inside

      of J.B.’s arm as if somebody had grabbed him.


[6]   The Department of Child Services (DCS) was summoned and family case

      manager Kim Gorman (FCM Gorman) arrived. FCM Gorman took

      photographs of J.B.’s injuries. J.B. told her that Norris had spanked him

      because he had kicked the dog in the face. When FCM Gorman spoke with

      Norris, Norris admitted to spanking J.B. because of the incident with the dog.

      J.B. was removed from the residence that day.


[7]   The following day, on August 26, 2014, J.B. was examined by Dr. Thomas

      Kintanar (Dr. Kintanar), a family physician. Dr. Kintanar observed clear


      Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 3 of 25
      “handprints on [J.B.’s] buttocks” from an “extremely traumatic event” and

      bruising around the belt line and torso. (Tr. p. 145, 150). Dr. Kintanar also

      documented bruises on the arms, caused by J.B. being “grabbed quite forcefully

      by the arm and drug up.” (Tr. p. 146). Dr. Kintanar found fingerprint marks

      and bruises from hands on J.B.’s back and noticed that J.B. had a black eye.


[8]   On October 24, 2014, the State filed an Information charging Norris with

      battery, a Level 5 felony. On January 8, 2015, the State filed its notice of intent

      to use statements of protected person, which the State amended on February

      27, 2015. On April 10, 2015, the trial court conducted a hearing on the State’s

      motion and on April 21, 2015, the trial court found, in pertinent part, that J.B.,

      the protected person,


              is unavailable as a witness based upon the testimony of a
              psychologist as well as an additional witness (Pat Smallwood)
              specially trained to communicate with children such as the
              protected person in this case ([J.B.]).


              The [c]ourt finds, based upon said testimony, that requiring the
              protected person to testify in the physical presence of [Norris]
              will cause the protected person to suffer serious emotional
              distress such that the protected person cannot reasonably
              communicate.


      (Appellant’s App. p. 16). Finding sufficient indications of reliability, the trial

      court admitted J.B.’s videotaped forensic interview and permitted the State to

      call up to three additional witnesses to testify as to statements made to them by

      J.B., the protected person. On May 12 through May 14, 2015, the trial court


      Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 4 of 25
       conducted a jury trial. At the close of the evidence, the jury returned a guilty

       verdict. On June 8, 2015, Norris was sentenced to five years executed, with

       two years suspended to probation.


[9]    Norris now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                                 I. Protected Person


[10]   Norris contends that the trial court erred in its determination that J.B. was

       unavailable to testify pursuant to the provisions of the protected person statute,

       enacted at I.C. § 35-37-4-6. The decision to admit or exclude evidence is within

       a trial court’s sound discretion and is afforded great deference on appeal. Taylor

       v. State, 841 N.E.2d 631, 634 (Ind. Ct. App. 2006), trans. denied. An abuse of

       discretion occurs where the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it or it misinterprets the law. Id.

       However, “[a]t the same time, the protected person statute impinges upon the

       ordinary evidentiary regime such that we believe a trial court’s responsibilities

       thereunder carry with them what we recently called in another context ‘a

       special level of judicial responsibility.’” Carpenter v. State, 786 N.E.2d 696, 703

       (Ind. 2003).


[11]   Indiana Code section 35-37-4-6 provides, in relevant part, that an otherwise

       inadmissible statement or videotape made by a protected person (here, a child

       under fourteen years of age) is admissible in criminal actions involving battery,

       as defined in I.C. § 34-42-2-1, if the following conditions are met:
       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 5 of 25
               (1) The court finds, in a hearing:


                    (A) conducted outside the presence of the jury; and


                    (B) attended by the protected person in person or by using a
                        closed circuit television testimony [];


               that the time, content, and circumstances of the statement or
               videotape provide sufficient indications of reliability.


               (2) The protected person:


                    (A) testifies at the trial; or


                    (B) is found by the court to be unavailable as a witness for (1)
                        of the following reasons:


                        (i)      From the testimony of a psychiatrist, physician, or
                                 psychologist, and other evidence, if any, the court
                                 finds that the protected person’s testifying in the
                                 physical presence of the defendant will cause the
                                 protected person to suffer serious emotional distress
                                 such that the protected person cannot reasonably
                                 communicate.


[12]   Norris does not make the traditional claim under the protected person statute

       that he did not have the opportunity to cross-examine J.B. See, e.g., Howard v.

       State, 853 N.E.2d 461, 470 (Ind. 2006) (stating that “prior testimony from a

       subsequently unavailable witness is admissible at a subsequent trial, provided

       the defendant had the opportunity to confront the witness when the testimony

       was originally given”). Rather, focusing on the unavailability prong of the

       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016        Page 6 of 25
       statute, 1 Norris first contends that the unavailability determination can only be

       drawn from the testimony of a “psychiatrist, physician, or psychologist” and

       “other evidence, if any[.]” See I.C. § 35-37-4-6(e)(2)(B)(i). Norris maintains

       that this “other evidence” within the meaning of the statute cannot be

       additional witness testimony, like here, but rather must consist of “a

       consideration of testimony from designated individuals who are either a

       psychiatrist, physician, or psychologist and then any other evidence that might

       be presented (like maybe medical reports or other documents).” (Appellant’s

       Br. p. 12).


[13]   “The statute provides that a psychiatrist, physician, or psychologist must

       present evidence regarding the potential for serious emotional harm to the

       protected person that testifying would cause.” Cox v. State, 937 N.E.2d 874,

       878-79 (Ind. Ct. App. 2010), trans. denied. Therefore, a “trial court’s

       observations of the child standing alone, are insufficient to meet the statutory

       standard of unavailability established by the [statute].” Id. at 879. During the

       protected person hearing, the State presented as its witness Dr. David Lombard

       (Dr. Lombard), a clinical psychologist to whom J.B. was referred in November




       1
         The State appears to characterize Norris’ argument as a “challenge to the court’s finding of reliability.”
       (Appellee’s Br. p. 13). Pursuant to the language of the statute, the reliability determination falls within the
       first prong of the statute, i.e., whether the out-of-court statements are sufficiently reliable to be admitted at
       trial. However, the testimony of a “psychiatrist, physician, or psychologist,” and “other evidence, if any”
       only comes into play if the witness is unavailable to testify at trial. See I.C. § 35-37-4-6(e)(2)(B).

       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016                               Page 7 of 25
2014 to assess the child’s cognitive abilities and his mental health condition.

Dr. Lombard opined that

           [a]t the time [J.B.] was displaying symptoms consistent with
           three conditions. Generalize[d] anxiety disorder, which is just
           anxiety throughout the day. . . . Another condition we call
           reactive attachment disorder. He has some significant [sic] the
           primary adult figures in his life around that time and lack of
           emotion connection in feeling safety in their care [sic]. And then
           the third condition was impaired parent/child relationship. He
           felt very distant from his mother, felt his mother had allowed
           [Norris] to harm him and didn’t intervene.


(PPH 2 Transcript p. 77). Based on this diagnosis, Dr. Lombard concluded as

follows with respect to J.B.’s ability to testify at trial:

           My concern was with a couple of issues. One was the
           environment in a normal courtroom, people watching him,
           staring at him as people are now, may overwhelm him, triggers
           anxiety. He was very worried about [Norris] being very angry at
           him. He was very worried about disappointing his mother and
           saying anything that may hurt her feelings. So my concern at the
           time was, you combine that with his generalized anxiety disorder
           and he already feels estranged from the adults and my concern
           was that could worsen those conditions.




2
    We will use the abbreviation ‘PPH’ to refer to the transcript of the protected person hearing.


Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016                             Page 8 of 25
       (PPH Tr. pp. 77-78). Thereupon Dr. Lombard unequivocally affirmed the

       State’s question whether he believed “to a medical degree of certainty” that this

       diagnosis would “render [J.B.] unable to communicate.” (PPH Tr. p. 78).


[14]   However, besides relying on Dr. Lombard’s testimony to reach its finding of

       unavailability, the trial court also referred to “other evidence.” See I.C. 35-37-4-

       6(e)(2)(B)(i). Specifically, the trial court referenced the testimony of “an

       additional witness (Pat Smallwood) specially trained to communicate with

       children such as the protected person in this case ([J.B.]).” (Appellant’s App. p.

       16). Norris contends that the trial court erred as this “other evidence” must

       take the form of “like maybe medical reports or other documents.” (Appellant’s

       Br. p. 12). We disagree.


[15]   The language of the statute itself prescribes that a trial court’s finding of

       unavailability can be based solely on the testimony of a psychiatrist, physician,

       or psychologist. The statute then continues that following this testimony, the

       finding can be supported by “other evidence, if any[.]” See I.C. § 35-37-4-6.

       Thus, while the ‘other evidence’ is not mandated, it could be used to provide

       further substantiation to declare the protected person unavailable. Here, the

       trial court referenced Pat Smallwood’s (Smallwood) testimony in support of its

       conclusion. As the statute does not further define ‘other evidence’ and

       testimony is considered evidence, we conclude that the trial court properly

       considered Smallwood’s testimony as an additional source of support to reach

       its conclusion of J.B.’s unavailability.



       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016    Page 9 of 25
[16]   Next, Norris in essence disputes the sufficiency of the trial court’s finding that

       testifying at trial would cause J.B. “serious emotional distress such that the

       protected person cannot reasonably communicate.” See I.C. § 35-37-4-6. To

       support the insufficiency of the evidence, Norris points to Dr. Lombard’s

       testimony which is couched in terms of ‘may’ and ‘might’ that is contradictory

       to the mandatory statutory findings which require a determination that serious

       emotional distress ‘will’ be caused to the level that the protected person cannot

       reasonably communicate.


[17]   The statute requires that the trial court, and not the medical professional, makes

       the determination whether trial testimony would cause the protected person

       serious emotional distress such that the protected person cannot reasonably

       communicate. Here, Dr. Lombard’s testimony presented a medical opinion,

       which articulated J.B.’s diagnosis and included Dr. Lombard’s multiple

       concerns that trial testimony in Norris’ presence “would worsen” J.B.’s

       conditions. (Tr. p. 78). As such, Dr. Lombard stated that, to a medical degree

       of certainty, this “may render J.B. unable to communicate.” (Tr. p. 78).

       Mindful of the statute’s goal—to reduce a child’s emotional trauma caused by

       numerous court appearances—the trial court properly relied on Dr. Lombard’s

       statements to declare J.B. unavailable. See Miller v. State, 517 N.E.2d 64, 73

       (Ind. 1987). Accordingly, we conclude that the trial court properly determined

       J.B. to be a protected person who was unavailable as a witness.


                          II. Videotaped Statement and Other Hearsay Testimony



       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 10 of 25
[18]   Norris contends that the trial court abused its discretion in admitting the

       videotaped statement of J.B. at trial, as well as the hearsay testimony by three

       other witnesses.


                                           A. Videotaped Statement


[19]   With respect to the videotaped statement, Norris now focuses on the reliability

       prong of the protected person statute. Pursuant to I.C. § 35-37-4-6(e)(1), the

       court may admit the videotaped out-of-court statements made by a protected

       person, if the time, content, and circumstances of the statement or videotape

       provide sufficient indications of reliability. “Considerations in making the

       reliability determination under [I.C. § 35-37-4-6] include the time and

       circumstances of the statement, whether there was significant opportunity for

       coaching, the nature of the questioning, whether there was a motive to

       fabricate, use of age appropriate terminology, and spontaneity and repetition.”

       M.T. v. State, 787 N.E.2d 509, 512 (Ind. Ct. App. 2000). Doubt may be cast on

       the reliability of the statement or videotape if it is preceded by lengthy or

       stressful interviews or examinations. Id.


[20]   Following the protected person hearing, the trial court found J.B.’s videotaped

       statements made to Smallwood at the Child Advocacy Center on September 23,

       2014, to be admissible at trial. In its Order granting the admission of the

       videotaped statement, the trial court noted, in pertinent part, as follows:

               4. The alleged victim in this case was the subject of a video-taped
               statement concerning an act which is a material element of the
               offense charged in this cause.
       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 11 of 25
               5. A hearing was held outside the presence of the jury at a time
               substantially removed from the date scheduled for jury trial.


               6. The hearing was attended by the protected person through the
               use of closed circuit television in which the [c]ourt and [Norris]
               were present in one (1) room while the protected person and
               respective counsel for the State and Defense were in another
               room.


               7. At said hearing the protected person testified on direct
               examination of the State of Indiana and was further cross-
               examined by Defense counsel.


               8. The time, content, and circumstances of the statement or
               videotape provides sufficient indications of reliability.


       (Appellant’s App. pp. 15-16).


[21]   Smallwood, a forensic interviewer, testified during the protected person

       hearing. Although J.B. had been removed from his home on August 25, 2014,

       he was not interviewed by Smallwood until twenty-nine days later, on

       September 23, 2014. During the hearing, Smallwood described J.B. as a

       “young four [year old]. In other words, he’s not particularly sophisticated.”

       (PPH Tr. p. 86). She noted that, even though J.B. was young, he was not

       susceptible to coaching because “this child, in addition to saying that something

       happened also demonstrated physically on himself and gave other details about

       how the incident happened that were in consistent language for a four year old,

       they were developmentally appropriate and not the kind of things that

       somebody else would say to him.” (PPH Tr. p. 87). She added that J.B.

       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 12 of 25
       corrected her on at least two occasions when she stated inaccuracies during the

       interview. Smallwood explained that those corrections increased her “belief in

       their reliability” because the child does not allow you “to put words in their

       mouth.” (PPH Tr. p. 88). J.B. was able to distinguish between innocent

       scenarios or injuries versus the injuries inflicted by Norris. He demonstrated

       “in the interview the difference between, he slaps on the chair on how his

       mother spanks and then how [Norris] spanks him.” (PPH Tr. p. 89).


[22]   Although there were twenty-nine days between the day J.B. was removed from

       the home and the forensic interview, J.B.’s statements are cloaked with

       sufficient indicia of reliability. During the interview, J.B. was spontaneous in

       his responses and demonstrative of how he incurred the bruises. At times, he

       even corrected Smallwood’s inaccuracies. Accordingly, the trial court did not

       abuse its discretion in admitting J.B.’s videotaped statements.


                                        B. Other Hearsay Statements


[23]   In its Order following the protected person hearing, the trial court not only

       found J.B.’s videotaped statement admissible at trial, but also permitted the

       State “to call up to three (3) additional witnesses, in addition to the videotape, .

       . . who may testify as to statements made to them by [J.B.] regarding the

       allegations contained in this cause against [Norris].” (Appellant’s App. p. 16).

       At the trial, the State called FCM Gorman, Angela Arambula (Arambula), and

       Laura Swanson (Swanson) as its three additional witnesses.


                                                 1. FCM Gorman

       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 13 of 25
[24]   Unlike for the other two witnesses, Norris does not make any specific

       arguments or objections as to the trial court’s abuse in admitting J.B.’s

       statements through FCM Gorman’s testimony. In fact, Norris seemingly

       concedes that J.B.’s statement to FCM Gorman was properly admitted as it was

       “[t]he only statement that is close in time to the discovery of the injuries to

       J.B.” (Appellant’s Br. p. 23). Therefore, as Norris fails to articulate a cogent

       argument, he waived the issue for our review. See Ind. Appellate Rule

       46(A)(8)(a).


                                                    2. Arambula


[25]   Arambula is J.B.’s foster parent. While she did not testify at the protected

       person hearing, she did testify at trial. Norris now “contends that it was error

       to allow the testimony of Arambula as to statements made by J.B. since

       Arambula did not testify at the [p]rotected [p]erson [h]earing.” (Appellant’s Br.

       p. 18).


[26]   At trial, after voir dire and prior to the presentation of witnesses, Norris

       requested the record to reflect a continuing objection to the admission of

       protected person evidence because Norris was afraid to offend the jury by his

       timely objections. The State asked clarification of the extent of the continuing

       objection and the trial court declared that Norris’ “protective person objection

       will be incorporated in the record today as if made contemporaneously[.]” (Tr.

       p. 41). Norris’ protective person objection focused on the reliability of J.B.’s

       out of court statements made to certain witnesses. Accordingly, as Norris now


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016    Page 14 of 25
       formulates an objection different from the one covered by the continuing

       objection, this argument is waived for our review. See, e.g., Gill v. State, 730

       N.E.2d 709, 711 (Ind. 2000).


[27]   In addition, Norris also contends that “the statement by J.B. to Arambula

       suffers from the same defect as the video-taped statements introduced through

       Smallwood and the statements introduced through the testimony of [FCM]

       Gorman and Swanson,” i.e, they do not meet the criteria of reliability.

       (Appellant’s Br. p. 19). However, besides making this generalized statement,

       Norris fails to inform us which statements he disputes or their location in the

       transcript. Because Norris fails to make a cogent argument supported by

       citations to the record, he has waived his claims for our review. See App. R.

       46(A)(8)(a).


                                                    3. Swanson


[28]   Swanson is a therapist who provided counseling to J.B. in December 2014 to

       address “a trauma history and anxiety behavior problems that he was exhibiting

       at home.” (PPH Tr. p. 46). Although Swanson testified at the protected person

       hearing, the State did not list her as a witness on its second amended notice of

       intent to use statements of protected person. Nevertheless, Swanson testified at

       trial. Norris now contends that the trial court abused its discretion to allow

       Swanson’s testimony about J.B.’s statements because she was not listed on the

       State’s second amended notice of intent. As with Arambula, Norris’ continuing

       objection at trial failed to include the basis Norris now objects to the testimony


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 15 of 25
       on appeal. As the objection at trial was distinct from the argument before us,

       Norris waived the issue for our review. See, e.g., Gill, 730 N.E.2d at 711.


[29]   Next, Norris also disputes the admissibility of J.B.’s statements to Swanson

       based on reliability grounds. In protected person situations, the victim is often

       an incompetent witness and trial courts “must use special care when making

       findings of sufficient indications of reliability under the statute because these

       findings act as the sole basis for finding the trustworthiness that permits

       introduction of otherwise inadmissible hearsay.” Pierce v. State, 677 N.E.2d 39,

       44 (Ind. 1997).


[30]   At trial, Swanson testified that during a counseling session in December 2014,

       J.B. reported to her that “he had been hit, that his hair had been pulled, he had

       been yelled at, and had been punished with hot sauce in his mouth.” (Tr. p.

       273). While we agree that a significant amount of time had lapsed between the

       incident that removed J.B. from the house in August 2014 and his counseling

       session in December 2014, remoteness of time is merely one of the

       considerations to evaluate the statements’ reliability under the protected person

       statute. See M.T., 787 N.E.2d at 512.


[31]   Swanson clarified that during her counseling sessions she only uses open ended

       questions. J.B. “actually spoke without any prompting, wanting to talk [] about

       the abuse that he endured.” (Tr. p. 273). Swanson noted that J.B. never

       wavered in this response and his statements have remained consistent.

       Furthermore, J.B.’s statements to Swanson corresponded to the statements


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 16 of 25
       given by him to FCM Gorman on the day he was removed from the residence.

       As we noted earlier, Norris does not contest the reliability of J.B.’s statements

       to FCM Gorman. While the remoteness in time between the day of the

       removal and the counseling sessions could provide an opportunity for coaching,

       the similarity and consistency of J.B.’s statements provide a sufficient indication

       of reliability. Accordingly, J.B.’s statements to Swanson were reliable and

       properly admitted at trial.


                                             III. Vouching Testimony


[32]   Norris next contends that the trial court abused its discretion in admitting

       testimony by Smallwood which improperly vouched for the reliability of J.B.’s

       statements.


[33]   Following the adoption of the Indiana Rules of Evidence, our supreme court

       held that certain expert testimony that was “an indirect but nonetheless

       functional equivalent of saying the child is ‘telling the truth’” violated Ind.

       Evid. Rule 704(b). Hoglund v. State, 962 N.E.2d 1230, 1236 (Ind. 2012). After

       Hoglund, subsequent decisions from this court held that expert testimony about

       whether a child victim was coached violated Rule 704(b); however, general

       testimony about the signs and indicators of coaching and the presence and

       absence of those signs in the child victim nevertheless preserved the ultimate

       credibility issue for the jury. See Kindred v. State, 973 N.E.2d 1245, 1258 (Ind.

       Ct. App. 2012), trans. denied; Archer v. State, 996 N.E.2d 341, 349 (Ind. Ct. App.

       2013), trans. denied.


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 17 of 25
[34]   Recently, our supreme court expressly overruled Kindred and Archer, holding

       that the “subtle distinction” between whether a child has or has not been

       coached and whether a child did or did not exhibit signs of coaching was

       “insufficient to guard against the dangers that such testimony will constitute

       impermissible vouching as we expressed in Hoglund.” Samson v. State, 38

       N.E.3d 985, 991-92 (Ind. 2015).

               More precisely, when a jury is presented with expert testimony
               concerning certain coaching behaviors, the invited inference that
               the child has or has not been coached because the child fits the
               behavioral profile is likely to be just as potentially misleading as
               expert testimony applying the coaching behaviors to the facts of
               the case and declaring outright that a given child has or has not
               been coached. The danger of the jury misapplying this evidence
               thus remains the same whether an expert expresses an explicit
               opinion that coaching has or has not occurred or merely allows
               the jury to draw the final conclusion.


       Id. at 991. Nonetheless, the Sampson court also held that “testimony about the

       signs of coaching and whether a child exhibited such signs or has or has not

       been coached” is permitted “provided the defendant has opened the door to

       such testimony.” Id. at 992.


       At trial, Smallwood testified as follows:

               [State]: Has anyone told [J.B.] while he was playing or to your
               knowledge, anybody told him what to say prior to coming into
               the room?


               [Smallwood]: Not that I’m aware of.


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 18 of 25
         [State]: Earlier we talked about indicia of reliability, 3 and you
         mentioned some things about demonstrating and language, did
         you find that there were indicia of reliabilities in –


         [Norris]: Your Honor. Your honor before we go any further with
         her response, can we approach again.


         [Trial Court]: Sure.


         [Sidebar conference was conducted.]


         [Norris]: I feel like we’re treading closer, vouching.


         ****


         [Norris]: She’d said before – you said before what are things are
         indicia of reliability.


         [Trial Court]: In whether she saw them, but not whether she
         believes the child’s testimony.


         ****


         [Sidebar conference was concluded.]


         [State]: Did you find indicia of reliability in [J.B.’s] answers?




3
  Although the State never asked Smallwood outright whether J.B. had been coached prior to the forensic
interview, Smallwood clarified that the “indicia of reliability” are designed to ensure “or try to be sure as best
we can that the child is telling us their experience and not what someone has told them.” (Tr. p. 215).

Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016                            Page 19 of 25
               [Smallwood]: Yes.


               [State]: And what were those?


               [Smallwood]: Well, he’s very demonstrative. He shows on his
               own body the things that happened. He talks about the feeling
               that went with it, that it hurt. He gives information about the
               actual spanking or how he gets spanked. For example, he says,
               turn around and pull your pants down, and gets spanked with his
               pants down. So those are the kinds of things that, that’s
               somebody elses [sic] word. Turn around and pull your pants
               down to me is an indication that something actually happened as
               far as the spanking. He’s very concrete throughout about the
               words that he uses. I make some mistakes and he corrects me
               when I make the mistakes. For example when I thought he was
               talking about his eye getting hit, it’s not his eye that gets hit. It’s
               by his eye, but it’s not his eye. So when I say your eye, he said
               no, it’s not my eye. He corrects me more than once. When I try
               to say something about his mother's house, and he said my
               mother doesn’t have a house, she lives at [Norris’] house. So
               he’s kind of concrete and not afraid to speak up and say.


       (Tr. pp. 221-23).


[35]   In this case, the State first questioned Smallwood, in general terms, about

       indicia of reliability when interviewing young children. Later during

       Smallwood’s testimony, the State linked her general testimony to the specific

       question about identifying these general indicia in J.B.’s answers during the

       forensic interview. Although the State was careful to limit Smallwood’s

       comments to her observations of these indicia without outright asking her

       whether she believed J.B. had been influenced prior to the interview, this was


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016     Page 20 of 25
       neither in response to defense questioning, nor to rebut an express claim that

       J.B. had been coached. Accordingly, by questioning whether J.B. fit “the

       behavioral profile,” Smallwood’s testimony entered the realm of “the invited

       inference” specifically prohibited by our supreme court in Sampson. See id. at

       991. Accordingly, the trial court abused its discretion when it admitted

       Smallwood’s impermissible vouching testimony.


[36]   Nevertheless, we conclude that the trial court’s erroneous admission of the

       vouching testimony amounted to harmless error. “Errors in the admission or

       exclusion of evidence are to be disregarded as harmless error unless they affect

       the substantial rights of a party.” Hubbell v. State, 754 N.E.2d 884, 890 (Ind.

       2001) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)). The record

       bears substantial evidence of Norris beating J.B. Both Norris’ biological sons

       testified that they saw Norris beat J.B. and C.N. spoke about the bruises left on

       J.B.’s body. FCM Gorman testified about J.B.’s statement to her that Norris

       had spanked him. Dr. Kintanar testified as to his observations of clear

       “handprints on [J.B.’s] buttocks” from an “extremely traumatic event” and

       bruising around the belt line and torso. (Tr. p. 150). Therefore, we cannot

       conclude that the single instance of improperly admitted testimony affected

       Norris’ substantial rights and thus was harmless. See Hoglund, 962 N.E.2d at

       1238 (improper admission of evidence is harmless error if the conviction is

       supported by substantial independent evidence of guilt satisfying the reviewing

       court there is no substantial likelihood the challenged evidence contributed to

       the conviction).


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 21 of 25
                                    IV. Drumbeat Repetition of Testimony


[37]   Lastly, Norris contends that the trial court’s admission of J.B.’s videotaped

       statement during the forensic interview, as well as allowing three additional

       witnesses to repeat J.B.’s out-of-court allegations amounted to a drumbeat

       repetition that denied him a fair trial. Specifically, he asserts that the combined

       testimonies of FCM Gorman, Arambula, and Swanson in addition to J.B.’s

       videotaped statements amounted to impermissible bolstering of J.B.’s credibility

       and unduly prejudiced the jury.


[38]   As we noted before, the decision to admit or exclude evidence is within the trial

       court’s sound discretion and is afforded great deference on appeal. Carpenter,

       786 N.E.2d at 702. 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. The number of

       witnesses who may be called to prove a single issue of fact is within the trial

       court’s sound discretion. Dobbs v. State, 143 N.E.2d 99, 100 (Ind. 1957), reh’g

       denied.


[39]   Norris acknowledges that “there was no objection on the basis that this was

       drumbeat repetition[.]” (Appellant’s Br. p. 28). “As a general rule, failure to

       object at trial results in waiver of an issue for purposes of appeal.” Washington

       v. State, 840 N.E.2d 873, 886 (Ind. Ct. App. 2006), trans. denied. Thus, Norris’

       argument is waived. However, the error can be preserved if the trial court

       committed fundamental error in admitting the testimony and videotape into


       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 22 of 25
       evidence. The fundamental error doctrine 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). Fundamental error occurs only when the error is

       so prejudicial that a fair trial is rendered impossible. Benefield v. State, 945

       N.E.2d 791, 801 (Ind. Ct. App. 2011).


[40]   To support his argument of drumbeat repetition, Norris relies on Modesitt v.

       State, 578 N.E.2d 649, 650 (Ind. 1991), in which a child’s mother, a welfare

       caseworker, and a psychologist all testified at length and in detail as to what the

       child told them regarding what Modesitt had done to her. Their testimony

       occurred prior to the victim testifying and was admitted over objection. Id.

       Our supreme court determined that permitting the three witnesses to repeat the

       accusations of the victim prior to the victim testifying unduly prejudiced the

       jury. Id. at 654.


[41]   However, since Modesitt, both this court and our supreme court have held that,

       in some fact situations, the erroneous admission of evidence in violation of

       Modesitt is harmless. See Craig v. State, 630 N.E.2d 207, 211-12 (Ind. 1994)

       (holding that the improper admission of hearsay testimony of two witnesses

       that “confirmed but did not elaborate upon” the victim’s testimony would have

       had only minor impact on the jury because there was little to undermine the

       victim’s credibility); McGrew v. State, 673 N.E.2d 787, 796 (Ind. Ct. App. 1996)

       (holding that the improper admission of hearsay testimony from two witnesses

       whose testimony was “brief and consistent with” the victim’s testimony did not

       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016    Page 23 of 25
       “constitute drumbeat repetition of the victim’s statements”) reh’g denied,

       summarily aff’d 682 N.E.2d 1289, 1292 (Ind. 1997); Caley v. State, 650 N.E.2d

       54, 57 (Ind. Ct. App. 1995) (holding that admission of a prior consistent

       statement given to the police by the victim was erroneous under Modesitt but did

       not constitute reversible error because the statement “neither explained nor

       elaborated upon the testimony already adduced at trial”), reh’g denied, trans.

       denied.


[42]   Here, FCM Gorman and Arambula testified prior to J.B.’s videotaped

       statement being shown to the jury. FCM Gorman clarified to the jury how the

       case ensued, the injuries she observed on J.B., and how it is “part of [her]

       investigation to talk with the child . . . about what happened.” (Tr. p. 116).

       Arambula briefly testified about J.B.’s drawing, depicting his injuries. She was

       not cross-examined on these statements, only on the date she received J.B. into

       her care. Neither witness embellished J.B.’s allegations with “her personal

       eloquence, maturity, emotion, and professionalism.” Stone v. State, 536 N.E.2d

       534, 540 (Ind. Ct. App. 1989), trans. denied. Accordingly, the challenged

       testimony of the two witnesses merely provided an overview of the situation

       and a summary of J.B.’s accusations, without elaborating on J.B.’s evidence.

       As in McGrew, their testimony on J.B.’s allegations was brief and consistent

       with J.B.’s later testimony. See McGrew, 673 N.E.2d at 796. Accordingly, we

       find that the admission of the witnesses’ testimony did not deprive Norris of a

       fair trial and therefore did not constitute fundamental error.


                                                CONCLUSION
       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 24 of 25
[43]   Based on the foregoing, we conclude that J.B. was unavailable to testify as a

       protected person pursuant to I.C. § 35-37-4-6(e)(2)(B)(i); the trial court properly

       admitted the videotaped interview of J.B. at trial, together with the testimony of

       three other witnesses; the trial court committed harmless error by admitting

       vouching testimony; and there was no drumbeat repetition of J.B.’s allegations

       by different witnesses.


[44]   Affirmed.


[45]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Opinion 02A03-1507-CR-841 | April 26, 2016   Page 25 of 25
