                                                                        FILED
                                                                   May 20 2020, 9:04 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
John A. Kindley                                           Matthew B. MacKenzie
South Bend, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brice Holden,                                             May 20, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1795
        v.                                                Appeal from the Clay Circuit
                                                          Court
State of Indiana,                                         The Honorable Joseph D. Trout,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          11C01-1902-F4-132



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020                            Page 1 of 14
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Brice Holden (Holden), appeals his conviction for child

      molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b).


[2]   We affirm.


                                                    ISSUES
[3]   Holden presents the court with three issues, which we restate as:


              (1) Whether the State proved beyond a reasonable doubt that he
                 committed Level 4 felony child molesting;


              (2) Whether the trial court committed fundamental error when it
                 admitted the stipulated results of his polygraph examination
                 into evidence; and


              (3) Whether the trial court abused its discretion when it admitted
                 certain testimony over Holden’s hearsay objection.


                       FACTS AND PROCEDURAL HISTORY
[4]   During the late fall of 2017, A.W. moved into her parents’ home in the 1000

      block of East Hendrix Street in Brazil, Indiana, with her three children, the

      oldest of whom was four-year-old M.L. A.W.’s sister, C.C., C.C.’s two

      children, and C.C.’s boyfriend, Holden, who went by the name “Scoop Dog”,

      also lived in the small home. A.W. and M.L. slept together in one of the

      home’s two bedrooms.

      Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020         Page 2 of 14
[5]   In November 2017, Holden entered A.W. and M.L.’s bedroom while they were

      sleeping and touched M.L.’s vaginal area with his hand. Holden scratched

      M.L.’s vaginal area, causing her to bleed. Holden ran out of the room when

      A.W. began to awaken. Later in the day, M.L. noticed that she was bleeding,

      showed A.W. the scratch and the blood, and told A.W. that it had been caused

      by Holden scratching her. A.W. did not alert the authorities about M.L.’s

      report.


[6]   On February 2, 2018, A.W.’s children, including M.L., were removed from her

      care and placed together in a foster home. Approximately two weeks after

      being placed with her foster family, M.L. disclosed to her foster mother that

      “Scoop Dog” had scratched her “cooty bun,” which was the word she used for

      her vagina. (Transcript Vol. II, p. 238). M.L.’s foster mother alerted M.L.’s

      Court Appointed Special Advocate who, in turn, alerted the Department of

      Child Services. On March 1, 2018, M.L. was forensically interviewed at Susie’s

      Place in Terre Haute. In the videotaped interview, M.L. repeated what she had

      told her mother and foster mother. M.L. indicated on anatomical drawings that

      Holden had touched her vaginal area with his thumb, and she provided a

      detailed physical description of Holden.


[7]   On November 30, 2018, Holden was interviewed by Detective Craig Bass of the

      Brazil Police Department. Holden agreed to undergo a polygraph examination.

      On January 7, 2019, before the administration of the polygraph examination,

      Holden and the prosecutor executed an Agreed Stipulation for Polygraph



      Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020        Page 3 of 14
Examination (Agreed Stipulation) that contained the following relevant

provisions:


        1) The parties have agreed that [Holden] shall submit to a Stress
           Evaluation or Polygraph Test to be performed by certified
           polygraph examiner, John Campbell, of the Indiana State
           Police, and that the result of said test and any statement made
           by [Holden] before, during, and after the administration of
           said test shall be admissible as evidence, without objection, at
           any trial or hearing.


        ****


        5) The results and/or opinions resulting from the examination(s)
        are to be released orally and in writing by the examiner to
        [Holden] and the prosecuting attorney as soon as possible after
        the administration of the final polygraph test. This written report
        will be introduced into evidence, without objection by either
        party, at the time of the examiner’s testimony at any trial
        hearing. []


        6) [] The party offering [the examiner] as a witness will be
        allowed to fully develop his/her expertise or offer into evidence
        his/her opinions as to [Holden’s] truthfulness or deception to the
        relevant test questions as they appear in the examiner’s written
        report at any trial or hearing. []


        ****


        12) That [Holden] acknowledges that he does have the right to
        consult with counsel prior to taking a polygraph examination,
        and that if he chooses to proceed without the benefit of counsel,
        that he is fully bound by the terms of his stipulation.


Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020            Page 4 of 14
      (Exh. 7, Exh. Vol., pp. 10-11). Holden placed his initials next to the

      acknowledgment that he had the right to consult with counsel prior to taking

      the polygraph. During the pre-examination interview, Holden denied touching

      M.L. for any reason, including accidentally or unintentionally. The polygraph

      examiner, John Campbell (Campbell), asked Holden, “Did you touch [M.L.’s]

      vaginal area?” and “Have you ever touched [M.L.’s] vaginal area?” (Exh. 8,

      Exh. Vol., p. 14). Holden responded “No” to each question. (Exh. 8, Exh.

      Vol., p. 14). Campbell determined that Holden was being deceptive when he

      responded to those questions.


[8]   On February 8, 2019, the State filed an Information, charging Holden with

      Level 4 felony child molesting and Level 6 felony sexual battery. On March 21,

      2019, the State filed a separate Information, alleging that Holden is an habitual

      offender. On April 4, 2019, the State filed a motion seeking a hearing on the

      admissibility of M.L.’s forensic interview under Indiana’s Protected Persons

      Statute, alleging that forcing M.L. to testify at trial would damage her

      psychologically and emotionally, preventing her from communicating

      effectively, and that testifying at trial would disrupt any progress M.L. had

      made in healing. On April 18, 2019, the trial court held a hearing on the

      admissibility of M.L.’s forensic interview. M.L. testified at the hearing and was

      subject to cross-examination. On May 3, 2019, the trial court issued an order

      ruling that M.L.’s videotaped forensic interview was admissible, finding that

      M.L. was unavailable for purposes of testifying at trial and her forensic

      interview contained sufficient indicia of reliability to be admissible.


      Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020            Page 5 of 14
[9]    On June 6, 2019, the trial court granted the State’s motion to dismiss the sexual

       battery charge. On June 10, 2019, the trial court convened Holden’s two-day,

       bifurcated jury trial. Holden’s polygraph report was admitted at trial without

       objection. Campbell testified, and on cross-examination, acknowledged that

       polygraph examinations were “not an exact science.” (Tr. Vol. III, p. 27).

       During re-direct examination, Holden raised a hearsay objection to Campbell’s

       testimony regarding what quality controls were done on his polygraph

       examinations. The trial court overruled Holden’s objection after determining

       that Campbell would not quote or allude to another person’s statements. The

       jury found Holden guilty of Level 4 felony child molesting. Holden then

       waived his jury trial right on the habitual offender enhancement allegation, and

       the trial court subsequently found that he had the requisite two prior, unrelated

       felony convictions.


[10]   On July 5, 2019, the trial court held Holden’s sentencing hearing. The trial

       court imposed a twelve-year sentence for the Level 4 felony child molesting

       conviction. The trial court enhanced Holden’s sentence by twelve years for

       being an habitual offender.


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


                                DISCUSSION AND DECISION
                                          I. Sufficiency of the Evidence

[12]   Holden challenges the sufficiency of the evidence supporting his conviction. It

       is well-established that when we review the sufficiency of the evidence to

       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020         Page 6 of 14
       support a conviction, we consider only the probative evidence and reasonable

       inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). It is not our role as an appellate court to assess witness credibility or to

       weigh the evidence. Id. We will affirm the conviction unless no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt. Id. A person commits Level 4 felony child molesting when that person,

       with a child under fourteen years old, “performs or submits to any fondling or

       touching, of either the child or the older person, with intent to arouse or to

       satisfy the sexual desires of either the child or the older person[.]” I.C. § 35-42-

       4-3(b). An intent to arouse or to satisfy sexual desires may be inferred from

       evidence that the defendant intentionally touched the child’s genitals. Winters v.

       State, 727 N.E.2d 758, 761 (Ind. Ct. App. 2000), trans. denied. In addition,

       “[t]he testimony of a sole child witness is sufficient to sustain a conviction for

       molestation.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).


[13]   Here, M.L.’s forensic interview was admitted into evidence. In her interview,

       M.L. reported that while she was sleeping with A.W., Holden had touched

       M.L.’s vaginal area with his thumb and scratched her. This testimony was

       sufficient to support Holden’s conviction. See id.; see also Archer v. State, 996

       N.E.2d 341, 352 (Ind. Ct. App. 2013) (finding sufficient evidence of Level 4

       felony child molesting by fondling where Archer entered the child’s bed while

       she slept with her grandmother and touched child’s vagina), abrogated on other

       grounds, 38 N.E.3d 985 (Ind. 2015). In addition, the jury’s verdict was

       buttressed by A.W.’s testimony that she observed dried blood in M.L.’s

       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020            Page 7 of 14
       underwear and a scratch on M.L.’s vaginal area and by evidence that Holden

       denied that there was a alternative, innocent explanation for any physical

       contact that had occurred between him and M.L. See Lockhart v. State, 671

       N.E.2d 893, 903 (Ind. Ct. App. 1996) (upholding Lockhart’s conviction for

       child molesting by fondling where he touched and rubbed child’s penis and had

       no non-incriminating explanations for the contact).


[14]   Holden argues that insufficient evidence supported his conviction because the

       four months that passed between the offense and M.L.’s interview made her

       statements unreliable, there were unspecified “inconsistencies and

       implausibilities” in M.L.’s statement, no physical evidence corroborated the

       offense, and there was unspecified conflicting testimony by adults at trial.

       (Appellant’s Br. p. 6). Even if we were able to fully discern these arguments, we

       would find them unavailing in that crediting them would entail reassessing the

       credibility of the witnesses and reweighing the evidence, all of which is contrary

       to our standard of review. See Drane, 867 N.E.2d at 146. Accordingly, we

       conclude that the State proved beyond a reasonable doubt that Holden

       committed the offense of Level 4 felony child molesting.


                                    II. Admission of the Polygraph Report

[15]   Holden also challenges the admission into evidence of the polygraph report

       indicating that he had given deceptive responses. As a general rule, we review a

       trial court’s evidentiary ruling for an abuse of discretion affecting a defendant’s

       substantial rights. Zanders v. State, 118 N.E.3d 736, 741 (Ind. 2019).

       Acknowledging that he failed to object to the admission of the report at trial,

       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020          Page 8 of 14
       Holden requests that we review the trial court’s evidentiary ruling for

       fundamental error. An error is fundamental only 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. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). 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. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002).

       This exception, however, is “extremely narrow” and encompasses only errors

       so blatant that the trial judge should have acted sua sponte to correct the

       situation. Id.


[16]   This court has observed that “Indiana courts look with disfavor on the

       admission of polygraph examinations into evidence in criminal proceedings.”

       State v. Wroe, 16 N.E.3d 462, 466 (Ind. Ct. App. 2014), trans. denied.

       Nevertheless, our supreme court has held that the results of polygraph

       examinations are admissible when four prerequisites are met:


               (1) the prosecutor, defendant, and defense counsel must all sign a
               written stipulation providing for the defendant’s submission to
               the examination and for the subsequent admission at trial of the
               results;


               (2) the admissibility of the test results must be within the trial
               court’s discretion as it relates to the examiner's qualifications and
               the test conditions;




       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020              Page 9 of 14
               (3) the opposing party must have the right to cross-examine the
               polygraph examiner if his graphs and opinion are offered in
               evidence; and


               (4) the jury must be instructed that, at most, the examiner’s
               testimony tends only to show whether the defendant was being
               truthful at the time of the examination, and that it is for the jury
               to determine the weight and effect to be given such testimony.


       Id. (citing Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996)).


[17]   Holden does not argue explicitly that any of these four prerequisites were unmet

       in his case. Rather, Holden attempts to distinguish his case from Wroe, in

       which this court reversed a trial court’s suppression of the results of a polygraph

       examination. Id. at 470. Wroe became a suspect in a child molesting

       investigation and offered to submit to a polygraph examination. Id. at 464.

       Before Wroe took the examination, he and the prosecutor entered into a

       stipulated agreement pursuant to which the results of the polygraph would be

       “admitted at any trial or hearing as evidence either on behalf of [Wroe] or the

       State of Indiana. The opposing party hereby expressly waives any and all

       objections to such testimony . . .” Id. at 465. The prosecutor also agreed to

       cease investigating Wroe if he passed the polygraph. Id. Contrasting his case

       with Wroe, Holden contends that the admission of the polygraph report here

       constituted fundamental error because the prosecutor did not agree to forgo

       investigating him if he passed the polygraph, and, thus, there was no “valid

       consideration, necessary for the formation of a valid contract” in the Agreed

       Stipulation. (Appellant’s Br. p. 7).

       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020           Page 10 of 14
[18]   We disagree that Wroe established a threshold for the adequacy of the

       consideration necessary to support a valid stipulated agreement. A stipulated

       agreement on a polygraph examination is considered a contract and is subject

       to the principles of contract law and interpretation. Willey v. State, 712 N.E.2d

       434, 440 (Ind. 1996). Consideration is an element of a valid contract consisting

       of a “benefit accruing to the promisor or a detriment to the promisee.” Buskirk

       v. Buskirk, 86 N.E.3d 217, 222-23 (Ind. Ct. App. 2017). Here, as part of the

       Agreed Stipulation, the parties contemplated that the results of the polygraph

       examination would be admissible at trial by either party, with the non-offering

       party foregoing its right to object to its admission. Had Holden passed the

       polygraph, he would have been able to offer the results into evidence at trial

       without any objection by the State. Holden does not address this provision of

       the Agreed Stipulation which was sufficient consideration for the formation of a

       valid contract between him and the State, regardless of the lack of any

       additional promise on the part of the prosecutor to forego further investigation

       if Holden had passed the polygraph.


[19]   Holden also attempts to distinguish Wroe given that we declined to invalidate a

       polygraph stipulation simply because Wroe had not been represented by

       counsel when he signed it. Wroe, 16 N.E.3d at 468. Assuming, without

       deciding, that Wroe’s right to counsel under the Indiana constitution had

       attached, this court observed that Wroe had validly waived that right where,

       among other things, the stipulation contained an acknowledgement that Wroe

       understood that he had the right to an attorney, and, if he could not afford an


       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020          Page 11 of 14
       attorney, the trial court would appoint one for him and where Wroe did not

       argue on appeal that his waiver of counsel was unknowing or involuntary. Id.

       at 467-68. Holden contends in a one-sentence argument that “unlike the

       agreement at issue in Wroe, the [Agreed Stipulation] signed by Holden did not

       advise him that if he could not afford an attorney one would be appointed for

       him.” (Appellant’s Br. p. 7). However, the Agreed Stipulation contained an

       acknowledgment by Holden that he had a right to consult with counsel prior to

       signing the stipulation, and like Wroe, Holden does not argue on appeal that his

       waiver of counsel was unknowing or involuntary. Accordingly, we do not find

       that the admission of the polygraph report deprived Holden of a fair trial such

       that reversal is merited. See Durden, 99 N.E.3d at 652.


                                                    III. Hearsay

[20]   Holden argues that the trial court abused its discretion when it allowed

       Campbell to testify to what he claims was hearsay over his objection. After

       Campbell had acknowledged on cross-examination by Holden that polygraph

       examinations are not an exact science, the prosecutor asked Campbell on re-

       direct examination, “Now the defense counsel also elicited testimony that it’s

       not an exact science. Does the Indiana State Police have a process to, I guess

       check your work or check your scores? And what is that process, if so.” (Tr.

       Vol. III, p. 30). After the trial court overruled Holden’s hearsay objection, the

       following exchange took place:


               Campbell: We—we do one hundred percent (100%) quality
               control. And what that means is there’s peer review. If I

       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020        Page 12 of 14
               generate a report, if I administer a polygraph, another examiner
               will review it to evaluate my scores, check my report, and I’ll do
               the same for the other examiners. So that quality control is one
               hundred percent a part of what we do.


               Prosecutor: And then you had previously said you’re using a
               computer. Does your computer score as well? Or is it just you
               looking at the responses and scoring on your own?


               Campbell: I’ll do a hand score and then I’ll use a computer
               algorithm and the (indiscernable) instrument software and it will
               help to reinforce my decision.


       (Tr. Vol. III, pp. 31-32). Holden complains that this testimony was

       inadmissible hearsay because it “referred to the review and supposed approval

       of persons not testifying in court[.]” (Appellant’s Br. p. 8).


[21]   Holden’s argument mischaracterizes the testimony at issue. Hearsay is an out-

       of-court statement offered to prove the truth of the matter asserted in the

       statement itself. Ind. Evidence Rule 801(c). Contrary to Holden’s assertions,

       the cited testimony does not contain any out-of-court statements. Rather,

       Campbell described the process he uses to score polygraph examinations and

       the quality control his examinations undergo. Campbell did not relate any

       statement by a reviewer of Holden’s polygraph results, nor did he relate the

       results of any computer algorithm he had run on Holden’s polygraph results.

       In light of the absence of any hearsay in the challenged testimony, Holden has

       failed to establish an abuse of discretion on the part of the trial court in




       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020           Page 13 of 14
       admitting this evidence that affected his substantial rights. See Zanders, 118

       N.E.3d at 741.


                                              CONCLUSION
[22]   Based on the foregoing, we conclude that the State proved beyond a reasonable

       doubt that Holden committed Level 4 felony child molesting, the trial court did

       not commit fundamental error in admitting the polygraph examination report,

       and the trial court did not abuse its discretion in admitting Campbell’s non-

       hearsay testimony.


[23]   Affirmed.


[24]   Mathias, J. and Tavitas, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-1795 | May 20, 2020         Page 14 of 14
