                                                                            Dec 23 2015, 8:51 am

      OPINION ON REHEARING




                                                                ATTORNEYS FOR APPELLEE
                                                                Gregory F. Zoeller
                                                                Attorney General of Indiana

                                                                Angela N. Sanchez
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Melvin C. Hamilton,                                       December 23, 2015
      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                65A04-1412-CR-592
              v.                                                Appeal from the Posey Circuit
                                                                Court
      State of Indiana,                                         The Honorable James M.
      Appellee-Plaintiff.                                       Redwine, Judge
                                                                Trial Court Cause No.
                                                                65C01-1403-FA-71



      Barnes, Judge.


[1]   The State petitions for rehearing following our decision in Hamilton v. State, No.

      65A04-1412-CR-592 (Ind. Ct. App. Sept. 9, 2015). The State does not contend

      that we erred in concluding that certain vouching testimony was inadmissible at

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      trial. However, it vigorously argues that we erroneously held that the improper

      admission of that evidence amounted to reversible error. We disagree and

      reaffirm our original decision but issue this opinion on rehearing for further

      clarification.


[2]   First, the State contends we failed to adequately address whether Hamilton

      fully preserved his claim of error in the admission of the vouching testimony.

      As related in our original opinion, the State elicited testimony from a forensic

      interviewer that the victims, D.P. and A.S., had not exhibited certain

      characteristics of having been coached, namely whether they had trouble

      recalling details or had to start their stories over again after being asked detailed

      questions; Hamilton did not object to this testimony. He did, however, object

      to subsequent testimony stating that D.P. and A.S. did not exhibit any signs of

      coaching.


[3]   The State faults us for assessing Hamilton’s claim as one of indivisible ordinary

      reversible error instead of differentiating the unobjected-to testimony from the

      objected-to testimony. It is unclear what such differentiation would

      accomplish. The objected-to testimony was clearly improper, and Hamilton’s

      objection should have been sustained per Sampson v. State, 38 N.E.3d 985 (Ind.

      2015), and Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012). Hamilton adequately

      preserved his claim the State introduced improper vouching evidence against

      him.




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[4]   We recognize that Hoglund stated, “‘the erroneous admission of evidence which

      is cumulative of other evidence admitted without objection does not constitute

      reversible error.’” Hoglund, 962 N.E.2d at 1240 (quoting Wolfe v. State, 562

      N.E.2d 414, 421 (Ind. 1990)). Here, the interviewer’s final, objected-to

      statement that D.P. and A.S. did not exhibit any signs of coaching is not merely

      cumulative of the prior unobjected-to testimony regarding two specific

      indicators of coaching. It includes a much broader range of possible signs of

      coaching beyond the two specifically mentioned. As such, the final statement

      was independent from, and potentially more damaging and prejudicial than, the

      preceding testimony.


[5]   The State also argues our ultimate holding that admission of the vouching

      testimony constituted reversible error conflicts with Hoglund. Specifically, the

      Hoglund opinion held that the child victim’s testimony in that case “was

      substantial evidence of Hoglund’s guilt apart from the erroneously admitted

      vouching testimony” and also observed, “The testimony of a sole child witness

      is sufficient to sustain a conviction for molestation.” Id. at 1238.


[6]   We submit that our original holding regarding reversible error is consistent with

      longstanding caselaw, as well as the purpose of the rule against vouching

      testimony as recently buttressed by our supreme court in Sampson. Our

      supreme court has determined that “indirect” vouching testimony such as that

      introduced in Hamilton’s case is wrong because it amounts to improper

      “‘testimony that the child witness is telling the truth.’” Sampson, 38 N.E.3d at

      992 (quoting Hoglund, 962 N.E.2d at 1237). Such testimony “‘is at odds with

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      [Indiana] Evidence Rule 704(b).’” Id. at 989 (quoting Hoglund, 962 N.E.2d at

      1237). There is no exception to this rule for child sex abuse cases. Id. (quoting

      Hoglund, 962 N.E.2d at 1237).


[7]   As our supreme court has observed, “Evidence which would support the

      credibility of a person cannot be said to be harmless when the conviction rested

      primarily on the credibility of the witness.” Traver v. State, 568 N.E.2d 1009,

      1013 (Ind. 1991) (citing Mitchell v. State, 259 Ind. 418, 424–25, 287 N.E.2d 860,

      864 (1972)). Moreover, it has been repeatedly held that when reviewing a claim

      of preserved reversible error, “The question is not whether there is sufficient

      evidence to support the conviction absent the erroneously admitted evidence,

      but whether the evidence was likely to have had a prejudicial impact on the

      jury.” Camm v. State, 812 N.E.2d 1127, 1137 (Ind. Ct. App. 2004) (citing Currie

      v. State, 512 N.E.2d 882, 883-84 (Ind. Ct. App. 1987), trans. denied), trans. denied;

      see also Shepherd v. State, 902 N.E.2d 360 (Ind. Ct. App. 2009), trans. denied; Otto

      v. State, 398 N.E.2d 716, 717 (Ind. Ct. App. 1980). Indeed, our supreme court

      has adopted the United States Supreme Court’s following definition of non-

      constitutional reversible error:

              “If, when all is said and done, the conviction is sure that the error
              did not influence the jury, or had but very slight effect, the verdict
              and the judgment should stand . . . But if one cannot say, with
              fair assurance, after pondering all that happened without
              stripping the erroneous action from the whole, that the judgment
              was not substantially swayed by the error, it is impossible to
              conclude that substantial rights were not affected. The inquiry
              cannot be merely whether there was enough to support the result, apart
              from the phase affected by the error. It is rather, even so, whether the
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               error itself had substantial influence. If so, or if one is left in
               grave doubt, the conviction cannot stand.”


       Miller v. State, 575 N.E.2d 272, 275 (Ind. 1991) (quoting Kotteakos v. United

       States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946)) (emphasis added).


[8]    In light of this authority, we decline to hold that the erroneous introduction of

       vouching evidence in Hamilton’s case, over objection, was harmless simply

       because D.P. and A.S. testified about the alleged molestations. Such testimony

       clearly was sufficient to support Hamilton’s convictions, but that is not the sole

       consideration when determining whether there was reversible error. Our

       supreme court has deemed that vouching testimony such as that given here is

       inadmissible because it violates Evidence Rule 704 and improperly allows one

       witness to comment on another witness’s credibility, and that there is no special

       exception to this rule for child sex abuse cases. Unless there is to be a special

       exception to the general harmless error rule for child sex abuse cases, we adhere

       to what we said in our original opinion:

               [I]t is extremely difficult to imagine a scenario in which
               [vouching] testimony, where an objection to it was raised at trial,
               is harmless in a case such as this where a conviction depends
               entirely upon assessing the credibility of the alleged victim.
               Otherwise there would seem to be little point in having such a
               rule.


[9]    Hamilton, slip op. at 11.


[10]   With these observations, we reaffirm our original decision.


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




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