Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         FILED
any court except for the purpose of                        Mar 08 2012, 8:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID A. SMITH                                   GREGORY F. ZOELLER
McIntyre & Smith                                 Attorney General of Indiana
Bedford, Indiana
                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RUSSELL A. PROSSER, JR.,                         )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 59A01-1107-CR-346
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ORANGE CIRCUIT COURT
                         The Honorable Larry A. Blanton, Judge
                             Cause No. 59C01-0910-FA-88



                                        March 8, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


VAIDIK, Judge
                                 STATEMENT OF THE CASE

        Russell A. Prosser, Jr., appeals his conviction for Class C felony child molesting.

Prosser raises three issues for our review, but we address only the following dispositive

issue: whether the trial court abused its discretion when it permitted the State to elicit

testimony from the victim’s case manager that she had substantiated the victim’s claim of

molestation. This is the same issue that we recently addressed in Bradford v. State, 960

N.E.2d 871 (Ind. Ct. App. 2012). We hold that the admission of this testimony violated

Indiana Evidence Rule 704(b) and affected Prosser’s substantial rights.

        We reverse and remand for a new trial.

                          FACTS AND PROCEDURAL HISTORY

        On October 5, 2009, the State charged Prosser with two counts of child molesting,

one as a Class A felony and one as a Class C felony. At his ensuing jury trial, the State

called the victim, the victim’s parents, and investigating officers to testify. In particular,

the State called Ginger Breeden, the case manager assigned to the victim’s case by the

Indiana Department of Child Services (“DCS”).1                     Breeden testified that she had

interviewed the victim and the victim’s mother. She then stated, over the objection of

Prosser’s attorney, that the DCS had concluded that the victim’s claims against Prosser

had been “substantiat[ed].” Tr. p. 171. Breeden further stated that a substantiated claim

is one in which “a certain preponderance of evidence . . . support[s] that the allegations

are more likely than not to have had occurred[.]” Id. at 168. And, in his closing

        1
           The DCS became involved more than a year after the incident when the victim’s counselor
relayed to the DCS the victim’s comments that she had been molested. Although the victim told her
mother about the alleged incident the day after it had occurred, her mother did not inform any authorities.
It is not clear from the appellate record whether the State pursued charges against the victim’s mother
under Indiana Code sections 31-33-5-1 and 31-33-22-1(a).
                                                    2
argument, the prosecuting attorney expressly referred to Breeden’s assertion that she had

substantiated the victim’s allegation. Id. at 369.

       The jury found Prosser guilty of the Class C felony but not guilty of the Class A

felony. The jury also found him to be a habitual offender, and the trial court ordered him

to serve an aggregate term of twenty years executed.

       Prosser now appeals.

                             DISCUSSION AND DECISION

       Prosser contends that the trial court abused its discretion when it permitted

Breeden to testify, over his objection, that she had substantiated the victim’s claim

against him. Our standard of review of a trial court’s findings as to the admissibility of

evidence is an abuse of discretion. Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App.

2007). A court has abused its discretion when its decision is against the logic and effect

of the facts and circumstances before the court or is contrary to law. Norris v. Pethe, 833

N.E.2d 1024, 1029 (Ind. Ct. App. 2005).

       “Witnesses 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.” Ind. Evidence Rule 704(b). “Neither an expert nor a lay witness

may testify that another witness is telling the truth. The admission of such evidence

invades the province of the jury.” Jones v. State, 581 N.E.2d 1256, 1258 (Ind. Ct. App.

1991), abrogated on other grounds by Steward v. State, 652 N.E.2d 490 (Ind. 1995).

       Although such “vouching testimony” is generally inadmissible,

       [i]n the context of child molesting . . . our supreme court has recognized
       that[,] where children are called upon to describe sexual conduct, a special
                                              3
       problem exists in assessing credibility since children often use unusual
       words to describe sexual organs and their function and since they may be
       more susceptible to influence. Stewart [v. State], 555 N.E.2d [121,] 125
       [(Ind. 1990)].

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

allowed which permits

       some accrediting of the child witness in the form of opinions from parents,
       teachers, and others having adequate experience with the child, that the
       child is not prone to exaggerate or fantasize about sexual matters. Such
       opinions . . . facilitate an original credibility assessment of the child by the
       trier of fact . . . .

Id. (quotation omitted). “Thus, adult witnesses are allowed to state an opinion as to the

child’s general competence and ability to understand the subject, but are prohibited from

making direct assertions as to their belief in the child’s testimony.” Id.

       In Jones, we reversed the defendant’s conviction where the State’s witness

testified that, in her “professional opinion,” the victim had been sexually molested. 581

N.E.2d at 1258. We also reversed the defendant’s conviction in Rose, a post-conviction

appeal, where the State’s witness “referred to [the victim’s] credibility and how

convincing her allegations were.” 846 N.E.2d at 367. Specifically, we held that “this

testimony was highly improper because [it] invaded the province of the jury.” Id. at 368.

       More recently, in Bradford, we reversed the defendant’s child molesting

conviction where the case manager had testified in relevant part as follows:

       Uh, when we receive a new report, we have to determine whether to
       substantiate abuse, which means that we believe that abuse and neglect
       occurred, or we can unsubstantiate it, which means we don’t feel that
       there’s enough evidence to say that abuse or neglect occurred. Regarding
       this report with [A.T.], I substantiated sexual abuse, meaning our office
       feels that there was enough evidence to conclude that sexual abuse
       occurred.
                                              4
960 N.E.2d at 875. We held that while the case manager’s testimony was not improper

vouching testimony, it “constituted an opinion regarding the truth of the allegations,

thereby violating Indiana Evidence Rule 704(b).” Id. at 876. And we concluded that the

trial court’s error in permitting that testimony was not harmless. Id. at 878; see also

Gutierrez v. State, 2012 WL 560048 (Ind. Ct. App. Feb. 22, 2012) (concluding that the

trial court’s admission of the case manager’s testimony that she “absolutely” believed the

victim violated Evidence Rule 704(b) and amounted to fundamental error).

          Likewise, here, Breeden testified that in the course of her job as case manager, she

conducted an investigation into the alleged victim’s claim against Prosser and prepared a

report.      In that report, Breeden concluded that the alleged victim’s claim was

substantiated, which meant that Breeden had found “a certain preponderance of evidence

to support that the allegations [were] more likely than not to have had occurred[.]” Tr. p.

168.      Indeed, Black’s Law Dictionary defines “substantiate” as “[t]o establish the

existence or truth of (a fact, etc.), esp[ecially] by competent evidence; to verify.” Black’s

Law Dictionary 1443 (7th ed. 1999). Thus, Breeden’s testimony that, in her opinion, the

truth of the allegations had been “established,” invaded the jury’s obligation to make that

determination, i.e., Breeden’s testimony constituted an opinion regarding the truth of the

alleged victim’s allegations. Further, in his closing argument, the prosecutor referred to

the fact that Breeden had conducted an investigation and concluded that the victim’s

claim was substantiated. Our reasoning and conclusion in Bradford apply here, and we

hold that Breeden’s testimony that she had substantiated the victim’s allegations



                                               5
constituted an opinion regarding the truth of the allegations in violation of Evidence Rule

704(b).

       The State advances numerous theories on appeal to support its contention that

Breeden’s testimony did not violate Evidence Rule 704(b). First, the State asserts that

“[c]omments [that] indirectly suggest a favorable view of a child’s credibility are

admissible.”   Appellee’s Br. p. 6.     While that general proposition may be correct,

Breeden’s testimony does not “indirectly suggest a favorable view” of the victim’s

testimony. Rather, she explained that a report of abuse is substantiated if she concludes

that the evidence “support[s] that the allegations are more likely than not to have had

occurred[.]”   Tr. p. 168.    And Breeden testified that after she had completed her

investigation, she concluded that the alleged victim’s report was substantiated. As such,

this was a direct comment on the child’s credibility.

       The State next avers that “testimony regarding the course of an investigation is not

inadmissible simply because it touches on an ultimate conclusion . . . .” Appellee’s Br. p.

7. Again, the State ignores the specificity and scope of Breeden’s testimony. Her

testimony that the victim’s claim was substantiated was more than a comment on the

course of an investigation and did not merely “touch[] on an ultimate conclusion”; rather,

it stated a conclusion.

       The State’s third theory is that Breeden’s testimony was “relevant to explain the

timing of the State’s investigation and the reasonableness of that investigation.” Id. at 8.

We simply do not see how Breeden’s opinion on the veracity of the victim’s testimony




                                             6
explains either the timing or reasonableness of the investigation. This argument is not

supported by cogent reasoning.

       Fourth, the State asserts that Breeden’s testimony “was also necessary to explain

the circumstances of Prosser’s [inconclusive] polygraph examination.” Id. We infer

from this argument that Prosser’s credibility was a significant issue. But that is exactly

why Breeden’s opinion of the victim’s credibility was inadmissible in the first instance.

       Fifth, the State claims that “Breeden’s testimony did not assert a direct opinion

that [the victim] was telling the truth” because Breeden referred to the victim as “the

alleged victim” and because of other limitations on the investigation to which Breeden

testified. Id. The State’s argument here does not avoid or overcome the fact that Breeden

testified that she had substantiated the victim’s claims “by a preponderance of the

evidence.” Tr. p. 168, 171. This testimony was equivalent to a statement that the alleged

victim was telling the truth.

       Sixth, the State contends that Prosser waived his appeal by not objecting during

the prosecutor’s closing argument and that Prosser has likewise waived any review under

the doctrine of fundamental error. We note, however, that Prosser timely objected to the

admission of the testimony, and we are satisfied that his objection preserved the error for

our review.     And “it has been clearly established that this Court can recognize

fundamental error even though it was not raised at the trial . . . if the error is blatant and

appears on the face of the record.” Haggard v. State, 445 N.E.2d 969, 971 (Ind. 1983).

Hence, there is no waiver of the Evidence Rule 704(b) issue on this record.




                                              7
       Finally, the State contends that any error in the admission of Breeden’s comments

was harmless because “the jury acquitted Prosser of one of the charges.” Appellee’s Br.

p. 8. When a trial court abuses its discretion in the admission of evidence, we will

reverse only if the error is inconsistent with substantial justice or affects the substantial

rights of a party. See Ind. Trial Rule 61; Bradford, 960 N.E.2d at 877. In viewing the

effect on a defendant’s substantial rights, we look to the probable impact on the

factfinder. Bradford, 960 N.E.2d at 877. “‘The improper admission of evidence is

harmless error when the conviction is supported by substantial independent evidence of

guilt as to satisfy the reviewing court that there is no substantial likelihood that the

questioned evidence contributed to the conviction.’” Id. (quoting Lafayette v. State, 917

N.E.2d 660, 666 (Ind. 2009)). “‘Reversal may be compelled if the record as a whole

discloses that the erroneously admitted evidence was likely to have had a prejudicial

impact on the fact-finder, thereby contributing to the judgment.’” Id. (quoting Ground v.

State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998)). “‘To determine whether the erroneous

admission of irrelevant and prejudicial evidence . . . is harmless, we judge whether the

jury’s verdict was substantially swayed. If the error had substantial influence, or if one is

left in grave doubt, the conviction cannot stand.’” Id. (quoting Lafayette, 917 N.E.2d at

666-67).

       We decline to hold that the mixed verdict in this case is evidence of harmless

error. As for Prosser’s conviction, the State’s case turned on the credibility the jury

assigned to the victim. There was neither direct nor corroborating evidence in this case,

so it was Prosser’s word against the victim’s. Breeden’s testimony, emphasized by the


                                             8
prosecutor during his closing argument, invaded the jury’s right to reach its own

conclusion on whom to believe.2 In sum, our review of the record as a whole discloses

that the erroneously admitted evidence was likely to have had a prejudicial impact on the

factfinder, thereby contributing to the judgment. See id. Accordingly, the error was not

harmless. We therefore reverse Prosser’s conviction and remand for a new trial on the

Class C felony.

        Reversed and remanded.

ROBB, C.J., and BROWN, J., concur.




        2
         For thoroughness, we note that the State does not suggest that any of the exceptions to Evidence
Rule 704 applicable to child molesting cases applies here. See Rose, 846 N.E.2d at 367.
                                                   9
