                                                      Apr 29 2014, 10:53 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

PAULA M. SAUER                               GREGORY F. ZOELLER
Danville, Indiana                            Attorney General of Indiana

                                             JODI KATHRYN STEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JEREMIAH D. WILKES,                          )
                                             )
     Appellant-Defendant,                    )
                                             )
             vs.                             )      No. 32A01-1303-CR-120
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                   APPEAL FROM THE HENDRICKS CIRCUIT COURT
                         The Honorable Jeffrey V. Boles, Judge
                            Cause No. 32C01-1107-FB-38


                                   April 29, 2014

                            OPINION - FOR PUBLICATION

MAY, Judge
          Jeremiah D. Wilkes appeals his two convictions of Class B felony sexual misconduct

with a minor.1 He alleges the court’s admission of hearsay and vouching testimony denied

him his right to a fair trial. We affirm.

                             FACTS AND PROCEDURAL HISTORY

          In the summer of 2010, thirty-year-old Wilkes cared for five children while the

mothers of those children went out for the evening. After the four younger children went to

sleep, fourteen-year-old W.V. played a game on his mother’s computer, while Wilkes sat

nearby using his own laptop. Wilkes asked W.V. to show his penis to Wilkes. W.V. said he

would consider Wilkes’ request, and W.V. returned to playing his video game. Thirty

minutes later, Wilkes asked W.V. if he had decided, and W.V. said, “I guess.” (Tr. at 305.)

Wilkes pulled down W.V.’s pants and placed his mouth on W.V.’s penis. Wilkes asked

W.V. if he had ever had a “blow job,” (id. at 306), and proceeded to fellate W.V. Wilkes

then sat on the couch and asked W.V. to put his mouth on Wilkes’ penis. W.V. placed his

mouth on Wilkes’ penis, but “it tasted really bad.” (Id. at 308.) Wilkes had W.V. use his

hand to bring Wilkes to orgasm.

          A few months later, in a conversation about whether a friend was bisexual, W.V. told

the friend that he had been either raped or sexually abused by a man. Then, nearly a year

after the incident, W.V. told his mother and an investigation began.

          The State charged Wilkes with two counts of Class B felony sexual misconduct with a

minor, and a jury found Wilkes guilty. The court imposed two concurrent eight-year


1
    Ind. Code § 35-42-4-9.
                                               2
sentences, both to be served as three years executed and five years of probation.

                                 DISCUSSION AND DECISION

        Wilkes alleges he was denied the right to a fair trial by the erroneous admission of

hearsay and vouching testimony. We typically review allegations of error in the admission of

evidence for an abuse of discretion. Kindred v. State, 973 N.E.2d 1245, 1252 (Ind. Ct. App.

2012). However, as Wilkes concedes, he did not object at trial to most of the evidence about

which he now complains on appeal. Thus, he waived those allegations of error, see id., and

we may not reverse his convictions unless he demonstrates fundamental error. Id. Error is

fundamental error when it is a “blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental due process.”

Id. (quoting Kimbrough v. State, 911 N.E.2d 621, 634 (Ind. Ct. App. 2009)).

         a.     Hearsay Testimony

        Wilkes first alleges fundamental error from the presentation of hearsay testimony.

Hearsay is a statement that: (1) is not made by the declarant while testifying at the trial or

hearing; and (2) is offered in evidence to prove the truth of the matter asserted. Ind.

Evidence Rule 801. G.H., one of W.V.’s classmates, testified that W.V. mentioned “he was

raped or sexually abused by somebody.”2 (Tr. at 373.) A forensic interviewer testified W.V.

disclosed a “sexual abuse incident,” (id. at 389), “an encounter between him and an adult


2
  Wilkes also complains that the State referred to G.H.’s testimony in its opening argument. However,
arguments of counsel are not evidence, Bandini v. Bandini, 935 N.E.2d 253, 265 (Ind. Ct. App. 2010), and the
court so instructed Wilkes’ jury. Counsel’s general statements about G.H.’s expected testimony did not repeat
any allegation or suggest G.H. would identify Wilkes. Accordingly, we cannot say counsel’s reference to
G.H.’s testimony prejudiced Wilkes.

                                                     3
male by the name of Jeremiah,” (id. at 393), in which “they both performed blow jobs on one

another.” (Id. at 394.) W.V.’s pediatrician testified “I understood that he had been, uh,

forced to have both penal [sic] oral contact with the penis inserted in his mouth and then also

to have put his mouth on somebody’s penis.” (Id. at 407.) Finally, a physician report stated:

“Per the god-father, [W.V.] recently disclosed to his mother that Jeremiah Wilkes, an adult

male friend of [W.V.’s] mother, had ‘used blackmail’ to force him to give and receive oral-

penile contact.” ((State’s Ex. 10 at 1.)

       Assuming arguendo those statements were inadmissible hearsay, we cannot find

fundamental error in their admission. W.V. was the first witness to testify, and he gave

detailed testimony regarding the evening in question and was cross-examined by defense

counsel. The brief statements from those other four sources did not provide any new

evidence; rather, as Wilkes concedes, each of them provided testimony “consistent with

W.V.’s . . . testimony.” (Br. of Appellant at 6, 7, 8, & 9.) Admission of hearsay is not

grounds for reversal where it is merely cumulative of other evidence admitted. Mathis v.

State, 859 N.E.2d 1275, 1280 (Ind. Ct. App. 2007). Because the statements were cumulative

of W.V.’s testimony, no fundamental error occurred from the admission of those statements.

See Nunley v. State, 916 N.E.2d 712, 720 (Ind. Ct. App. 2009) (holding hearsay testimony d

did not create reversible error where victim testified first, victim was subject to cross

examination, and other witnesses provided only brief testimony consistent with testimony

victim had already provided), trans. denied.



                                               4
        b.      Vouching Testimony

        Wilkes also asserts error in the admission of alleged “vouching” testimony from

Detective Terry Judy. Indiana Evidence Rule 704(b) provides: “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.” Under Rule

704(b), adults may not opine whether a particular child was “prone to exaggerate or fantasize

about sexual matters [because] indirect vouching testimony is little different than testimony

that the child witness is telling the truth.” Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.

2012), reh’g denied.3

        Detective Judy testified that W.V.’s reports were “consistent.” (Tr. at 352.) Detective

Judy indicated he told Wilkes he did not “see a reason why [W.V.] would come out and lie

about this stuff . . .,” (id. at 355), and Wilkes also did not know “why [W.V. would] make

something like this up.” (Id.) Finally, Detective Judy testified that he discussed with Wilkes

whether there was any chance W.V.’s mother would have encouraged W.V. to make these

allegations, but that he never asked W.V.’s mother about whether she had anything to do with

the allegations because “I didn’t figure it was relevant and I didn’t believe that that was the

case [because] this wasn’t in [a] custody battle and uh I didn’t believe that that was the

reason that [W.V.] would have said this.” (Id. at 360-61.)


3
  Although Wilkes cited the controlling Supreme Court precedent, Hoglund, 962 N.E.2d 1230, (Br. of
Appellant at 9), the State did not acknowledge Hoglund. It instead cited earlier decisions and asserted: “Our
supreme court [ ] has made a distinction between direct and indirect vouching testimony, prohibiting the
former but allowing the latter.” (Br. of Appellee at 13 (quoting Bradford v. State, 960 N.E.2d 871, 875 (Ind.
Ct. App. 2012).) As the decisions on which the State relies are inconsistent with Hoglund, we decline to
follow them.
                                                     5
       These statements by Detective Judy amount to the type of indirect vouching that our

Supreme Court held inadmissible in Hogland. See Kindred v. State, 973 N.E.2d 1245, 1258

(Ind. Ct. App. 2012) (holding opinions regarding whether the child victim was “coached,”

“truthful,” “believable,” and “wouldn’t lie” constituted vouching prohibited by Hogland),

trans. denied. However, the error in admitting the testimony was harmless.

       “[E]rrors in the admission of evidence are to be disregarded unless they affect the

substantial rights of a party.” Hogland, 962 N.E.2d at 1238. Accordingly, error is harmless

“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.” Id. In light of the other evidence in the record, the admission of this vouching

testimony was harmless. See, e.g., id. at 1240 (holding no fundamental error in admission of

vouching testimony from multiple witnesses).

       c.     Cumulative Error

       Finally, Wilkes asserts the combination of those errors, taken cumulatively,

constituted fundamental error. We disagree.

       In support of his argument, Wilkes notes W.V. testified Wilkes was uncircumcised,

while Wilkes and the medical professionals testified that Wilkes is circumcised. However,

we decline to find fundamental error in the admission of the cumulative hearsay and the

indirect vouching testimony discussed above simply because a teenager victim assigned the

wrong medical to label his molester’s penis. W.V. drew a picture that accurately depicts

Wilkes’ penis – including the relative size of the “flap of skin,” (id. at 392), that W.V.

                                              6
thought was foreskin. (Compare State’s Ex. 5 (W.V.’s drawing) with State’s Ex. 6

(photograph).) Because W.V.’s picture and explanation clarified why he inaccurately

labelled Wilkes’ penis as uncircumcised, we decline to find any additional prejudice in the

admission of the evidence discussed above. See, e.g., Hoglund, 962 N.E.2d at 1240 (holding

no reversible error from admission of evidence where victim’s testimony provided

‘substantial evidence of [defendant’s] guilt”).

                                     CONCLUSION

       No fundamental error occurred from the admission of hearsay testimony that was

merely cumulative of the victim’s own testimony, and the vouching testimony was harmless

in light of the weight of the evidence in the record. Even when considering all that evidence

cumulatively, we hold no fundamental error occurred. Accordingly, we affirm Wilkes’

convictions.

       Affirmed.

BAILEY, J., and BRADFORD, J., concur.




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