ATTORNEYS FOR APPELLANT                             ATTORNEYS FOR APPELLEE
Valerie K. Boots                                    Gregory F. Zoeller
Ruth A. Johnson                                     Attorney General of Indiana
Indianapolis, Indiana
                                                    Michael G. Worden
                                                    Chandra K. Hein
                                                    Deputy Attorneys General
                                                    Indianapolis, Indiana




                                           In the
                       Indiana Supreme Court                                      Jul 02 2015, 12:32 pm



                                   No. 49S05-1412-CR-728

MARQ HALL,
                                                            Appellant (Defendant below),

                                               v.

STATE OF INDIANA,
                                                            Appellee (Plaintiff below)


              Appeal from the Marion Superior Court, No. 49G02-1210-FA-68981
                          The Honorable Marc T. Rothenberg, Judge


      On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1312-CR-614



                                          July 2, 2015

David, Justice.


       Following a jury trial, Marq Hall was convicted of class A felony child molesting. On
appeal, he claimed that the trial court erred in denying his motion to compel the victim’s mother
to answer a deposition question about an incident in the victim’s past and in excluding from
evidence a phone conversation with the victim’s mother in which they discussed the incident.
Finding that the trial court abused its discretion in both instances, the Court of Appeals reversed
Hall’s conviction and remanded for a new trial. However, our review of the evidence, construed
in a light most favorable to the conviction, leads us to conclude that the two errors, even if
considered violations of Hall’s Sixth Amendment right to confront witnesses against him, were
harmless beyond a reasonable doubt. We accordingly affirm Hall’s conviction.


                                 Facts and Procedural History


       In September of 2012, Marq Hall was living in an Indianapolis apartment with his girlfriend
A.D. and her twelve-year-old daughter M.T. Hall and A.D. had very recently decided to end their
relationship after a few months together. On September 19th, Hall and A.D. were in the process of
splitting up, but Hall was still residing in A.D.’s apartment. That afternoon, he was home alone
with M.T. Hall approached M.T. from behind and rubbed his penis on her buttocks, which were
covered by her gym shorts, for a couple of minutes. He then pulled down her shorts and underwear,
pinned her to a bed, and forced her to have sexual intercourse with him.


       When the ordeal was over, M.T. felt a wet spot on her leg. She promptly wiped the spot
with toilet paper.


       Minutes after the rape, Hall took a shower. While he was in the shower, M.T. put the same
clothes she had been wearing back on and fled the apartment. Feeling very emotional and unsure
of what to do next, M.T. headed to the apartment complex’s leasing office, where she asked
property manager Sonja Cumberlander if she could use the phone. Cumberlander observed that
the girl appeared “very excited” and nervous. (Tr. at 119.)


       After arriving at the office, M.T. immediately phoned a friend of her mother’s and reported
the rape and molestation. When A.D.’s friend told her that Hall had “[done] something to M.T.,”
(Tr. at 154), A.D. immediately left work and, as she drove to her apartment, called Hall. Hall
denied having done anything to M.T. but told A.D. that he had been “asleep in the bed and he
woke up and M.T. had her arm around him touching him.” (Tr. at 155.) When A.D. arrived at the


                                                2
apartment complex, Hall saw A.D. but drove right past her and out of the complex without
stopping. As M.T. observed Hall drive by the building, she exclaimed, “Oh my God, oh my God,
there he is.” (Tr. at 120.)


         A.D. entered the office and observed her daughter, who appeared “hysterical” and was
crying and unable to speak. (Tr. at 158.) She would later testify that “I’ve never seen her that
upset.” (Tr. at 159.) After M.T. told her that Hall had raped her, A.D. immediately took M.T. to
the hospital, where sexual assault nurse Caroline Fisher observed three fresh lacerations to the
girl’s vaginal area that were consistent with penetration. Though subsequent testing of samples
from the examination did not reveal Hall’s DNA on M.T.’s body or underwear, a trace amount of
Hall’s semen was found on the crotch of the shorts M.T. was wearing during the incident.


         The State charged Hall with class A felony child molesting 1 and class C felony child
molesting. 2 After charges were filed, Hall remained a fugitive for three months, at one point
fleeing the state, before surrendering to authorities.


         Once discovery began, Hall conducted a deposition of A.D. He asked A.D. to elaborate on
a previous statement she had made about M.T., specifically about “what happened before.” (App.
at 113.) This was seemingly a reference to an incident that occurred when M.T. was nine years
old and living in Kentucky with A.D. 3 One of A.D.’s friends had asked M.T. if she had ever been
touched, and M.T. responded that she had. The Kentucky equivalent of the Department of Child




1
    Indiana Code § 35-42-4-3(a)(1) (2008).
2
    Indiana Code § 35-42-4-3(b) (2008).
3
  Acting as an officer of the court, the prosecutor provided this information to the trial court at trial and
outside of the jury’s presence. He had obtained the information from conducting two pre-trial interviews.
But at the time of the deposition, the extent of Hall’s knowledge about this incident is unknown.



                                                     3
Services then interviewed the girl. During the interview, M.T. revealed that the touching had been
consensual with a boy her age. Nothing more came of the incident.


       In response to Hall’s deposition question, A.D. stated, “Well, that really don’t have
anything to do with this, so I won’t answer that question because that’s already been handled. No
charges were filed because nothing took place. That’s really all you need to know on that.” (App.
at 113.) Hall then asked, “What had happened?” and A.D. repeated that “I just told you that that’s
really none of your business. That’s something that happened prior with another child. There was
no charges filed or anything, so that has nothing to do with this.” (App. at 113.)


       Hall then certified the question and filed a motion to compel discovery in which he asked
the trial court to order A.D. to answer the question, as he believed “the information requested
relates to evidence that the alleged victim may have previously accused another and then recanted,
which by itself is highly relevant in a case involving an accusation of improper sexual conduct.”
(App. at 109–110.) A few months later he renewed his motion, which the trial court denied.


       The day Hall’s jury trial began, the trial court granted the State’s motion in limine as to,
among other things, “[a]ny questions, testimony, evidence, argument, or comments regarding prior
sexual conduct of any State’s witnesses, including but not limited to [M.T.],” pursuant to Indiana
Evidence Rule 412. (App. at 149–50.) Also known as the Rape Shield Rule, Rule 412 prohibits,
subject to listed exceptions like a prior false accusation, the admission into evidence in a civil or
criminal proceeding involving alleged sexual misconduct evidence offered to prove a victim’s
prior sexual behavior or sexual predisposition.


       During trial and outside the presence of the jury, Hall made an offer of proof that he
intended to inquire into what he characterized as a prior false accusation by M.T.—the Kentucky
incident—as an exception to the Rape Shield Rule. Finding that M.T.’s report of consensual
touching “wasn’t a false allegation,” the trial court excluded the proffered evidence. (Tr. at 477,
484–85.) Thus, during the testimony of M.T. and A.D., the Kentucky incident was off limits as
inadmissible evidence, but the topic would soon return.


                                                  4
       On the second day of Hall’s trial, the State called A.D. to the stand. After having A.D.
recount the events of September 19th, the prosecutor asked her about a phone call with Hall that
occurred shortly after M.T.’s rape and molestation:


               Q: [W]hat did Marq say to you?

               A: He wanted to know information about M.T. that could clear his
               name.

               Q: How do you mean?

               A: He wanted to know about anything in M.T.’s past, medical
               records, anything that he could use to get out of his case.

(Tr. at 163–64.)


       Then on cross examination of A.D., the following exchange occurred between A.D. and
Hall’s counsel:


               Q: And when you were asked about a conversation you had with
               Mr. Hall when he wanted you to help clear his name, do you recall
               talking about that? Did you actually give him information?

               A: Did I physically give him anything? No.

               Q: No, did you—because you were having a conversation. Did you
               give him any information?

(Tr. at 196–97.) At this time, the prosecutor objected, contending among other things that A.D.’s
answer would violate the motion in limine. The trial court then instructed A.D. to answer either
yes or no, and Hall’s counsel repeated the question. A.D. responded:


               A: His request, no. I didn’t give him any information.

               ...

               Q: Is it your testimony here today that that conversation where he
               wanted to clear his name was one and done, he made a request and


                                                5
                 you gave him no information and that was the end of the
                 conversation?

                 A: He asked me questions.           He . . . basically said give me
                 information . . .

(Tr. at 199) (emphasis added).


         Once more, the prosecutor voiced his concern that A.D. would run afoul of the order in
limine. The trial court then dismissed the jury from the courtroom, and the parties further discussed
the risk that A.D. would, in answering the question, violate the order in limine when discussing
her conversation with Hall. Upon the trial court’s request, a recording of the phone call was
played. 4 The approximately four-minute-long recording contained the following relevant excerpt:


                 Hall: I’m sittin’ here talkin’ to my peoples and stuff, and I’m tryin’
                 to, like write everything down that you was sayin’ to get my little
                 portfolio strong. And I mean, so give me back all, all of the evidence
                 for, against [M.T.] to make her little statements uncredible. All that
                 s**t that you was tellin’ me about that happened in Kentucky, and
                 all the other little s**t. Talk to me, baby, so I can write this s**t
                 down.

                 A.D.: . . . [An attorney] was sayin’ that you know basically a rape
                 case is . . . word against word even if there’s no evidence. So what
                 you gotta do is like we had already talked about provin’ somebody
                 was [unintelligible] reliable. That’s what we need to focus on. So
                 gosh, I don’t even know where to start.

                 ...

                 Hall: Alright, so tell me about this stuff that happened in Kentucky?

                 A.D.: When she said some boys like touched her?




4
    It was marked as Defense Exhibit C but was not entered into evidence.



                                                     6
                 Hall: She said some boy did something to her.

                 A.D.: Yeah, and it came, found out that it was like a mutual thing.
                 They were experimentin’ on one another.

                 Hall: And she tried to get him locked up for like . . .

                 A.D.: He was just a little kid. He was her age.

                 Hall: Oh. He was her age.

                 A.D.: It wasn’t like [unintelligible] an adult or nothin’ like that. But
                 I mean still, it’s the same f****n’ situation.

                 Hall: Yeah, but she lied and said the little boy did somethin’ to her
                 and come to find out, that s**t wasn’t even true.

                 A.D.: Right.

(Appellant’s Ex. C.)


        After the tape was played, Hall urged the trial court to play the recording for the jury in
order for him to impeach A.D. on that fact that she had, contrary to her assertions, given him
information to attack M.T.’s credibility. But reasoning that “whatever good comes out of that
[recording] . . . is completely outweighed by 403 5 . . . and . . . because it goes tooth and nail against
every aspect of the motion in limine,” the trial court ruled inadmissible the portion of the recording
in which Hall and A.D. discuss the Kentucky incident. 6 (Tr. at 218.)




5
  Indiana Evidence Rule 403 states that “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.”
6
  The trial court also cited Indiana Evidence Rules 412 and 404(b) as a basis for its ruling. Rule 404(b)
provides in relevant part that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the character. .


                                                       7
       As the jury returned to the courtroom, the trial court called counsel to the bench and warned
the prosecutor to “keep in mind if you ask questions on redirect that expand on that, that does in a
sense open the door to things that have not been opened at this point in time which would allow
all that to be played.” (Tr. at 221–22.) Accordingly, the prosecution did not inquire further about
the phone call on re-direct. But on re-cross examination of Hall the following day, the prosecutor
asked him about the phone call:


               Q: You placed and recorded a phone call with A.D., is that right?

               A: Yes, I did.

               ...

               Q: [Y]ou told A.D. that you were attempting to get, quote, your
               little portfolio together, end quote, for your people, whoever they
               may be, I don’t know, to get your things ready for this, is that right?

               A: Yes.

               ...

               Q: And then immediately thereafter you—paraphrasing your view,
               correct me if I’m wrong, you asked A.D. to give you anything in
               which you could attack the twelve year old’s credibility with, is that
               right?

               A: She had already told me—

               Q: Hold on, Mr. Hall. I asked you a specific question, yes or no.

               A: I asked her to give me what she gave me.

               Q: I—you asked her—




. . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”



                                                 8
               A: Tell me what you told me, that’s what I—

               Q: You asked her to give you whatever you needed to attack the
               twelve year old’s credibility, isn’t that right, yes or no, Mr. Hall?
               Remember the court’s order, yes or no.

               A: Yes.

(Tr. at 592–93.)


       On re-re-direct, Hall’s counsel began to ask, “Mr. Hall, in reference to the question the
State asked about that conversation with A.D., where you asked A.D. to give you back information
. . . .” (Tr. at 594.) But the prosecutor interrupted and objected to the question, and the trial court
sustained the objection, finding Hall’s question to be outside the scope of the State’s question.


       Hall also testified to his version of the events of September 19th. According to Hall, he
was asleep in bed when he awoke to M.T. touching his penis. He stated that he immediately
admonished the girl and phoned A.D. The call went straight to voicemail, he said, but he did not
leave a message because he was arguing with M.T., who was purportedly pleading with him to
allow her to call her mother. Hall also testified that he observed M.T. use his phone to place a call
to A.D. However, Hall neither subpoenaed A.D.’s phone records nor introduced his own into
evidence, so there is no record of the supposed calls to A.D. from his phone.


       During his testimony, Hall also admitted that he took a shower immediately after the
alleged incident. Additionally, he admitted that M.T. was in bed with him and acknowledged that
she was wearing the gym shorts upon which his DNA was found during the alleged incident. He
also stated that he tried to act as a father figure to M.T. After Hall’s testimony, the defense rested.


       The jury found Hall guilty as charged. At a sentencing hearing, the trial court merged
Hall’s class C felony child molesting conviction with his class A felony child molesting conviction
and sentenced him to an aggregate thirty-five-year sentence.




                                                  9
          On appeal, Hall argued that the trial court abused its discretion in denying his motion to
compel A.D. to answer the deposition question about the Kentucky incident and in excluding from
evidence the substance of the phone conversation with A.D., in violation of his Sixth Amendment
right to confront witnesses against him, as well as in excluding his proffered testimony of M.T.’s
alleged reputation for untruthfulness in her community. By split decision, the Court of Appeals
concluded that the trial court abused its discretion in excluding the phone call from evidence. Hall
v. State, 15 N.E.3d 1107, 1121 (Ind. Ct. App. 2014) (Vaidik, C.J., dissenting in part). The State
sought transfer, which we granted, thereby vacating the Court of Appeals opinion. 7 See Ind.
Appellate Rule 58(A).


                                         Standard of Review


          Generally, a trial court’s ruling on the admission of evidence is accorded “a great deal of
deference” on appeal. Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court
is best able to weigh the evidence and assess witness credibility, we review its rulings on
admissibility for abuse of discretion” and only reverse “if a ruling is ‘clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial rights.’” Carpenter
v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.
2013)).


          However, Hall goes beyond alleging evidentiary errors: he contends that the trial court’s
rulings deprived him of his ability to fully confront his accuser. Specifically, Hall asserts that the
trial court violated his Sixth Amendment right to cross-examination when it forbade him from
further inquiring into the Kentucky incident by denying his motion to compel discovery and by




7
  We do, however, summarily affirm the Court of Appeals’ determination that the trial court properly
excluded Hall’s proffered evidence of M.T.’s alleged reputation for untruthfulness in her community. See
Ind. Appellate Rule 58(A)(2).



                                                  10
excluding from evidence his phone conversation with A.D. “[W]here, as here, a constitutional
violation is alleged, the proper standard of appellate review is de novo.” Speers v. State, 999
N.E.2d 850, 852 (Ind. 2013).


                                I.       Motion to Compel Discovery


        First, Hall maintains that the trial court erred in denying his motion to compel A.D. to
answer the certified deposition question regarding what happened between M.T. and another child
when the family was living in Kentucky. According to Hall, the trial court’s ruling prevented him
from obtaining information about a “prior false accusation of sexual misconduct” by M.T. and thus
deprived him of the ability to fully confront his accuser under the Confrontation Clause. 8
(Appellant’s Br. at 28.)


        As mentioned above, Indiana Evidence Rule 412 prohibits, subject to listed exceptions, 9
the admission into evidence in a civil or criminal proceeding involving alleged sexual misconduct
evidence offered to prove a victim’s prior sexual behavior or sexual predisposition. However, in
State v. Walton we stated that “[t]o the extent a defendant offers evidence of prior false accusations




8
  A “bedrock procedural guarantee,” the Confrontation Clause of the Sixth Amendment provides in relevant
part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; Speers, 999 N.E.2d at 852 (quoting Crawford v.
Washington, 541 U.S. 36, 42 (2004)). “A ‘primary interest’ secured by the Confrontation Clause is the
right of cross-examination.” Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010) (quoting Davis v. Alaska,
415 U.S. 308, 315 (1974)).
9
  The exceptions set forth in Evidence Rule 412(b) include evidence of specific instances of a victim’s
sexual behavior, if offered to prove that someone other than the defendant was the source of physical
evidence; evidence of specific instances of a victim’s sexual behavior with the accused, if offered to prove
consent; and evidence “whose exclusion would violate the defendant’s constitutional rights.”



                                                    11
of rape 10 to impeach the credibility of the witness, we hold that its admission does not run afoul of
the Rape Shield Rule.” 715 N.E.2d 824, 827 (Ind. 1999). This is because Rule 412 is designed to
preclude evidence of a victim’s prior sexual conduct, not verbal conduct like a prior false allegation
of rape. Id. at 826. Moreover, in presenting verbal conduct, the defendant seeks to prove for
impeachment purposes that the complaining witness had previously made a false accusation of
rape—not to impermissibly probe the victim’s sexual history. Id.


        A majority of the Court of Appeals agreed with Hall and determined that A.D.’s statements
in the phone call with Hall “indicate[d] that M.T. had made a prior false allegation of sexual
misconduct which may, depending on the evidence obtained through further discovery, be
admissible under Walton.” Hall, 15 N.E.3d at 1121. Thus, in the majority’s view, by failing to
require A.D. to answer the deposition question about “what had happened” between M.T. and the
boy in Kentucky, the trial court prevented Hall from obtaining discovery on a relevant, non-
privileged matter that bore directly on M.T.’s credibility under Indiana Trial Rule 26(B)(1). Chief
Judge Vaidik agreed with her colleagues in the majority that the trial court should have granted
Hall’s motion to compel but found the error to be harmless.


        Like all three judges on the Court of Appeals, we find that A.D.’s response to Hall’s
question about the Kentucky incident could have revealed potentially relevant information under
Indiana Trial Rule 26(B)(1) that could have provided Hall with knowledge of what he classifies as
M.T.’s alleged prior false accusation of sexual misconduct 11 in order to potentially establish its
admissibility at trial. Accordingly, the trial court should have granted Hall’s motion to compel




10
   Evidence of a prior false accusation of rape is admissible if either: (1) the victim admitted to making a
prior false allegation of sexual misconduct; or (2) the victim’s prior accusation was “demonstrably false.”
Walton, 715 N.E.2d at 826.
11
   It is not necessary for this Court to determine whether M.T.’s statement about the Kentucky incident
constituted a prior false allegation of sexual misconduct under Walton.



                                                    12
discovery in order to fully secure his Sixth Amendment right to confront witnesses against him.
But this does not end our inquiry, as “certain constitutional errors, no less than other errors, may
have been ‘harmless’ in terms of their effect on the fact-finding process at trial.” Koenig v. State,
933 N.E.2d 1271, 1273 (Ind. 2010). “[B]efore a federal constitutional error may be held harmless,
the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967). 12 In other words, “[v]iolations of the right of
cross-examination do not require reversal if the State can show beyond a reasonable doubt that the
error did not contribute to the verdict.” Koenig, 933 N.E.2d at 1273.


        Similar to a harmless error analysis, a court determining whether an error is harmless
beyond a reasonable doubt must do so on review of the whole record. Id.


                Whether such an error is harmless [beyond a reasonable doubt] in a
                particular case depends upon a host of factors, all readily accessible
                to reviewing courts. These factors include the importance of the
                witness’ testimony in the prosecution’s case, whether the testimony
                was cumulative, the presence or absence of evidence corroborating
                or contradicting the testimony of the witness on material points, the
                extent of cross-examination otherwise permitted, and, of course, the
                overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). 13 See also Koenig, 933 N.E.2d at 1273.
Importantly, when weighing these factors to determine whether a confrontation error was harmless




12
   “The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to
decide the factual question of the defendant’s guilt or innocence and promotes public respect for the
criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable
presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (citations omitted).
13
   In Van Arsdall, the United States Supreme Court determined that the trial court erred in failing to allow
the defendant to cross-examine a witness for the State about his agreement to speak with the prosecution
about the murder at hand in exchange for the dismissal of an unrelated pending criminal charge. Id. at 676,
679. Outisde the jury’s presence, the witness testified that he had not been offered any promises or
inducements in exchange for his testimony. Id. at 676–77. After laying out the five-factor test, the Court


                                                    13
beyond a reasonable doubt, a reviewing court must “assum[e] that the damaging potential of the
cross-examination were fully realized.” Van Arsdall, 475 U.S. at 684.


       Applying these factors to the circumstances at hand, it is apparent that the trial court’s
denial of Hall’s motion to compel discovery, even if in violation of the Sixth Amendment, was
harmless beyond a reasonable doubt. First, A.D.’s likely response to Hall’s discovery inquiry was
not highly important to the State’s case against Hall, which was built around her daughter M.T.’s
unwavering account that Hall molested and then raped her while A.D. was at work, as well as the
physical evidence—most notably the semen on the crotch area of the shorts M.T. was wearing at
the time of the incident and M.T.’s fresh genital lacerations—and evidence of Hall’s behavior that
corroborated her accusations. Rather, the purpose of A.D.’s testimony was to provide a timeline
for her daughter’s rape and to convey to the jury M.T.’s hysterical and distressed demeanor after
the fact. Had the trial court required A.D. to answer Hall’s question and speak about the Kentucky
incident, all the jury would have learned was that approximately three years earlier M.T. had
engaged in mutual touching with a boy her age and had been truthful about it. Thus, while her
testimony about the events of September 19th and her daughter’s demeanor was largely important
for the State, A.D.’s likely testimony about the Kentucky incident was not at all significant to the
State’s strong case against Hall. This factor weighs heavily in the State’s favor.


       Second, assuming that the motion in limine would not have prevented it, A.D.’s likely
testimony about the Kentucky incident would not have been cumulative to other evidence about
the mutual encounter three years prior. However, this can partially be attributed to Hall, who
apparently did not seek to discover or introduce other evidence of the Kentucky incident obtained
from a source other than A.D. Third, even assuming that the Kentucky incident was material, there
was similarly no evidence introduced by Hall to contradict A.D.’s likely testimony (again




remanded the case to the Delaware Supreme Court to determine whether the confrontation error was
harmless beyond a reasonable doubt. Id. at 684.



                                                14
assuming the encounter’s admissibility), nor was there corroborating evidence of her potential
testimony. Consequently, these two factors do not favor either the State or Hall.


       Fourth, Hall was able to extensively cross-examine A.D., although not to the extent he
wished regarding the Kentucky incident. Hall was able to fully question A.D. about her account
of the day in question and her impression of M.T. after the fact. And importantly, Hall was able
to extensively cross-examine his accuser M.T., except about the Kentucky incident, an encounter
we consider very factually distinct from the circumstances of this case. It is uncontroverted that
approximately three years earlier in a different state M.T. disclosed, when asked by her mother’s
friend if she had ever been touched, that a boy her age had touched her. An investigation by the
Kentucky equivalent of DCS determined that M.T. had been telling the truth, and that the touching
was mutual and experimentative between the nine year olds. Given the stark factual dissimilarities
between this encounter and the present circumstances, and the extent of the cross-examination of
A.D. and M.T. otherwise permitted, this factor largely favors the State.


       Fifth is the overall strength of the prosecution’s case against Hall. We turn now to the
uncontroverted facts at hand:


           •   Hall and A.D. (M.T.’s mother) decided, just days before the incident, to end their
               relationship;
           •   Hall continued to reside at A.D.’s apartment despite their break up;
           •   Hall was home alone with M.T. on the afternoon of the incident;
           •   M.T. testified that Hall molested and raped her;
           •   M.T. has not wavered in her account of her molestation and rape;
           •   Hall admitted to immediately taking a shower after the alleged incident;
           •   Both Hall and M.T. recalled M.T. putting on the same gym shorts after the alleged
               incident that she was wearing before;
           •   Hall’s semen was present on the crotch area of the gym shorts M.T. was wearing at
               the time of the incident;



                                                15
           •   M.T. fled the apartment after the molestation and rape;
           •   M.T. arrived at the apartment complex’s leasing office in search of a phone;
           •   Leasing office employee Sonja Cumberlander observed that M.T. appeared “very
               excited” and nervous when she asked to use the phone in the leasing office (Tr. at
               119);
           •   M.T. immediately reported the molestation and rape to a trusted adult;
           •   After M.T. reported the molestation and rape and A.D. had been contacted, A.D.
               phoned Hall. Not knowing the purpose of her call, Hall gave an unprompted
               statement to A.D., when she asked Hall what had happened to M.T., that he awoke
               in bed to find M.T. touching his penis;
           •   By his own admission, Hall stated that M.T. was in his bed;
           •   Hall drove right past A.D. without stopping when A.D. returned home to find out
               what had happened between Hall and M.T.;
           •   M.T. cried out “Oh my God, oh my God, there he is” when Hall drove by the
               building (Tr. at 120);
           •   A.D. found her daughter “hysterical,” crying, and unable to speak when she met
               her at the apartment complex’s office (Tr. at 158);
           •   A.D. testified that she had never seen her daughter as upset as she was in the office
               after the incident;
           •   M.T. told her mother that Hall had just raped her;
           •   Nurse Fisher testified that M.T.’s same-day vaginal examination revealed three
               fresh lacerations consistent with her description of the rape;
           •   There is no record of the phone calls that Hall claims M.T. and he made after he
               supposedly awoke in bed to find her touching his penis;
           •   Hall attempted to learn information from A.D. to smear M.T.’s credibility; and
           •   Hall spent three months hiding from authorities after charges were filed.


Taken together, and viewed in a light most favorable to the verdict, the evidence against Hall is
remarkably strong, would almost certainly survive a sufficiency challenge, and demonstrates that,



                                                16
even though the trial court erred in failing to compel A.D. to answer Hall’s deposition question
about the Kentucky incident, the jury had before it substantial evidence upon which it could
reasonably infer Hall’s guilt.


       In fairness to Hall, we acknowledge that the jury did not have the opportunity to assess for
themselves whether they believed, as we do, that the Kentucky incident was quite factually distinct
from the present circumstances, and that M.T. did not make a false allegation of sexual misconduct
when she disclosed that she had been touched. Assuming the incident’s admissibility under
Indiana Evidence Rule 412, and for the sake of our review that M.T.’s statement was ambiguous
as to her consent to the touching, at most all Hall would have received was impeachment evidence
that the jury would have considered alongside the nearly overwhelming evidence of his guilt listed
above—including the significant physical, temporal, and behavioral evidence that corroborates
M.T.’s unwavering account of her molestation and rape.


       But once more, we reiterate that it is uncontroverted that three years prior to the rape,
A.D.’s friend asked M.T. if she had ever been touched, M.T. responded truthfully that she had at
an earlier time, and an investigation revealed that the touching had been mutual with another nine
year old. Though the trial court should have granted Hall’s motion to compel in order for A.D. to
provide Hall with this potentially admissible information, we can confidently say that on review
of all the evidence, the State’s case against Hall is overall very strong, and would not have been
weakened had the Kentucky incident been admitted into evidence. Accordingly, this final factor
greatly favors the State.


       Considering that three out of the five Van Arsdall factors substantially favor the State, and
none favor Hall, and considering that A.D.’s potential response to his question would have neither
helped nor hurt Hall, we find the trial court’s failure to compel her response harmless beyond a
reasonable doubt. In other words, because the State met its burden of showing beyond a reasonable
doubt that A.D.’s potential response did not contribute to the verdict, this violation of Hall’s right
of cross-examination does not require reversal. See Koenig, 933 N.E.2d at 1274 (holding trial
court’s admission of laboratory report without opportunity to confront its creator was harmless


                                                 17
beyond a reasonable doubt given defendant’s self-implicating statements to police); McCorker v.
State, 797 N.E.2d 257, 267 (Ind. 2003) (holding any error resulting from defendant not being
allowed to cross-examine State’s witness for bias harmless beyond a reasonable doubt in light of
cross-examination defendant conducted and substantial cumulative evidence); and Standifer v.
State, 718 N.E.2d 1107, 1111 (Ind. 1999) (holding defendant’s denial of opportunity to fully cross-
examine State’s witnesses for bias harmless beyond a reasonable doubt given “ample evidence”
introduced to support convictions).


                                         II.     Phone Call


       Similarly, Hall contends that the trial court violated his Sixth Amendment right to
confrontation by excluding his phone call with A.D. from evidence. Though the motion in limine
precluded him from questioning A.D. about M.T.’s prior sexual conduct or her specific acts of
dishonesty, 14 Hall argues that the State “opened the door” to the admission of such evidence during
its direct examination of A.D. and its cross examination of Hall when the prosecutor asked
questions about the phone call and inquired into the information Hall wanted from A.D.


       As Hall points out, Indiana courts have long recognized that otherwise inadmissible
evidence may become admissible if a party “opens the door” to questioning on that evidence in
order to correct a “deceptively incomplete disclosure.” Gilliam v. State, 270 Ind. 71, 76–77, 383
N.E.2d 297, 301 (1978). In these instances, the evidence relied upon to “open the door” “must
leave the trier of fact with a false or misleading impression of the facts related.” Id.


       Like Hall and a majority of the Court of Appeals, we find that the State’s questioning of
A.D. on direct examination and Hall on cross examination about the contents of their phone




14
    Specifically, the motion in limine forbade “[a]ny questions, testimony, evidence, or comments
concerning any specific acts of dishonesty by any State’s witness.” (App. at 149.)



                                                 18
conversation opened the door to the admission into evidence of that conversation, despite the
motion in limine and Rule 412, in order to demonstrate the basis for Hall’s inquiry and to correct
A.D.’s false assertions that she did not provide Hall with any information to attack her daughter’s
credibility. To begin, the State questioned A.D. about a phone conversation that it knew contained
information about M.T.’s prior sexual conduct and a potential act of dishonesty. Knowing that the
motion in limine barred A.D. from discussing the Kentucky incident, the State asked her the reason
for Hall’s phone call. When A.D. responded truthfully that “[h]e wanted to know information
about M.T. that could clear his name,” (Tr. at 164), it appeared to the jury that Hall, with no basis,
had attempted to gather information to smear his alleged victim’s credibility.


       Hall’s question was reasonable, however, as he wanted to know more about “this stuff that
happened in Kentucky.” (Appellant’s Ex. C.) To Hall, the Kentucky incident could have been a
prior accusation of sexual misconduct by M.T., and thus a valuable piece of information as he
prepared his defense. But as the jury heard it, Hall, having just been accused of child molestation,
was baselessly fishing for ways to destroy his twelve-year-old alleged victim’s credibility.


       Moreover, the jury’s false impression of the conversation was compounded when A.D.
repeatedly lied during cross examination and stated “I didn’t give him any information.” (Tr. at
199.) At this point, Hall urged the trial court to play the recording of the phone conversation for
the jury. And though the trial court excluded the phone call from evidence, it did warn the State
that asking further questions about the phone call would open the door to the conversation’s
admissibility.


       But the State failed to heed the trial court’s warning. The following day, the prosecutor
asked Hall about the phone call; he phrased his question as “you asked A.D. to give you anything
in which you could attack the twelve year old’s credibility with, is that right?” (Tr. at 593.) Hall
attempted to explain that “[s]he had already told me,” (Tr. at 593), but the prosecutor interrupted,
repeated the question, and succeeded in getting a reluctant “[y]es” from Hall. (Tr. at 593.) Once
more, this created a misleading impression of the facts that under Gilliam opened the door to the
phone conversation’s admissibility. 270 Ind. at 76–77, 383 N.E.2d at 301. Hall’s counsel then


                                                 19
tried to ask his client about the phone call, but to no avail: the trial court sustained the prosecutor’s
immediate objection.


        By excluding the contents of the phone call after the State opened the door to its
admissibility, the trial court denied Hall the opportunity to demonstrate to the jury that A.D. had
given him relevant information about M.T.’s credibility during their conversation—and before it.
Designed to elicit testimony from A.D. that Hall had baselessly inquired about M.T.’s credibility,
the State’s line of questioning succeeded in doing just that but also served to mislead the jury, who
had no way of knowing that Hall was in fact seeking more information about a potential prior false
accusation of sexual misconduct. 15


        Thus, the trial court erred in excluding the phone conversation, which would have corrected
A.D.’s “deceptively incomplete disclosure.” Id. As the Court of Appeals stated, “the State used
the phone call as a sword to attack Hall’s credibility, while it simultaneously used the motion in
limine as a shield to immunize A.D. from cross-examination, to bolster A.D.’s false testimony . .
. and to keep Hall from answering questions to rebut the State’s attack.” Hall, 15 N.E.3d at 1114.


        Nonetheless, we review this error for harmlessness beyond a reasonable doubt. Applying
the first of the Van Arsdall factors to the trial court’s exclusion of the phone conversation between
Hall and A.D., we find that the phone call was not highly important to the State’s case. Contrary
to Hall’s assertion that he had a right under the Sixth Amendment to challenge M.T.’s credibility
by presenting evidence that she had made a prior false accusation of sexual abuse in Kentucky, at
most the phone call would have informed the jury that M.T. was mutually “experimentin’” with a
boy her age. (Appellant’s Ex. C.) Setting aside the next logical question of whether this
information was even admissible under Indiana Evidence Rule 412, consensual touching between




15
   To make matters worse, Hall was prohibited from asking A.D. about this information during discovery
as a result of the trial court’s denial of his motion to compel discovery.



                                                   20
two nine-year-old children, disclosed truthfully some time after the fact, is far different from a
false allegation of molestation and rape made immediately after the alleged incident, though Hall
would have us believe differently. And as set forth above, the State’s case centered upon M.T.’s
unwavering testimony that Hall molested and raped her and the physical, temporal, and behavioral
evidence that corroborated her accusations. Therefore, it cannot be said that the contents of the
phone call were highly important in order for the State to establish beyond a reasonable doubt that
Hall raped twelve-year-old M.T. Consequently, this factor considerably favors the State.


       Next, we look to whether the phone call would have been cumulative evidence. Although
it would not have been, this factor only marginally favors Hall, as the reference to the Kentucky
incident was simply not relevant to the ultimate factual question before the jury. Similarly, the
third Van Arsdall factor favors neither Hall nor the State, for although no other evidence was
introduced that would have placed the contents of the phone call before the jury, the phone call
did not go to a “material” point at issue—only whether M.T. had engaged in consensual touching
with a boy her own age three years ago in another state.


       However, the fourth factor clearly favors the State, as Hall was otherwise permitted to
extensively cross-examine both A.D. and M.T. about what happened before, during, and after the
rape. He may not have gotten his wish to have the phone conversation admitted into evidence, and
may have been denied the opportunity to fully cross-examine A.D. about the contents of their
conversation, but Hall was otherwise decidedly allowed and able to question A.D., M.T., and other
relevant parties about the accuracy and truthfulness of their accounts.


       Fifth and finally, we look to the overall strength of the State’s case against Hall. As set
forth above, there is substantial independent evidence of probative value upon which the jury could
have based its decision that collectively establishes Hall’s guilt beyond a reasonable doubt. Chief
among these pieces of evidence is M.T.’s unwavering testimony that Hall molested and then raped
her while her mother was at work. And contrary to Hall’s assertion that “everything comes down
to credibility,” (Oral Argument at 15:25), a scenario where the errors made here may have been
significantly more problematic, the presence of Hall’s semen on the crotch area of the shorts M.T.


                                                21
was wearing during the incident and fresh lacerations on M.T.’s genitals substantiate M.T.’s
testimony, as does the other extensive evidence discussed above. Additionally, Hall admitted that
M.T. was in his bed, and that he showered after his encounter with M.T. He also offered an
unprompted statement to A.D., before she knew what had happened between Hall and her
daughter, that he awoke in bed to find M.T. touching his penis. Another significant fact is that
Hall hid from authorites for three months after the State filed charges against him. And all when
M.T. had no motive to fabricate a story: Hall and her mother had already broken up, so Hall was
imminently going to be out of her life, just as soon as he moved out of her apartment. Hall calls
our attention to what he describes as conflicting evidence, but this is merely an invitation for us to
reweigh the evidence in his favor, which we will not do.


         Taking all of the evidence together, and viewing that evidence in a light most favorable
to the verdict, it is clear that the State had a strong and convincing case against Hall. Thus, the
fifth factor significantly favors the State.


        Once more, three out of the five Van Arsdall factors handily favor the State, and once more,
the information Hall sought to place before the jury would not have helped his defense. 16 As such,
the trial court’s exclusion of the phone call from evidence, even if considered to violate Hall’s
Sixth Amendment right to cross-examination, was nevertheless harmless beyond a reasonable
doubt. Put differently, although Hall was not able to play the phone conversation for the jury or
question A.D. about the call, the State presented ample evidence of Hall’s guilt and demonstrated




16
    In reality, playing the phone conversation was arguably more likely to harm than help Hall’s case.
Though, as discussed above, the jury would have understood that Hall had a reason for inquiring into M.T.’s
past, the jury would have also learned that “this stuff that happened in Kentucky” was simply not relevant
to the ultimate factual question before them and would have heard Hall ask his twelve-year-old victim’s
mother for information with which he could destroy her daughter’s credibility. (Appellant’s Ex. C.)



                                                    22
beyond a reasonable doubt that the confrontation error did not contribute to the verdict against
him. See Koenig, 933 N.E.2d at 1273–74.


        In summary, given the extensive evidence of Hall’s guilt presented by the State, the likely
minimal impact of the information he wanted before the jury, and the cross-examination of
witnesses Hall was otherwise able to conduct, the jury’s verdict would not have been any different
had the jury heard and considered Hall and A.D.’s conversation and the Kentucky incident.
Consequently, we can confidently say that, on the whole record, the trial court’s twin errors were
harmless beyond a reasonable doubt, and Hall’s otherwise valid conviction should not be set aside.


                                           Conclusion


       Because the trial court’s alleged errors in denying Hall’s motion to compel discovery and
in excluding from evidence the phone conversation between Hall and A.D., even if considered
violations of Hall’s Sixth Amendment right to confrontation, were harmless beyond a reasonable
doubt, we affirm Hall’s conviction for class A felony child molesting.




Dickson and Massa, J.J., concur.
Rucker, J., dissents with separate opinion in which Rush, C.J., joins.




                                                23
Rucker, J., dissenting.


       No matter how finely the evidence is parsed in this case, the inescapable fact is that Hall was
denied his Sixth Amendment right of cross-examination. At stake here is whether that denial—a
clear constitutional error—was harmless. In Chapman v. California the Supreme Court declared
“before a federal constitutional error can be held harmless, the [reviewing] court must be able to
declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. 18, 24 (1967). Because I
can make no such declaration, I respectfully dissent.


       The majority is quite correct that “the trial court should have granted Hall’s motion to compel
discovery[,]” slip op. at 13; and that “the trial court erred in excluding the phone conversation, which
would have corrected A.D.’s deceptively incomplete disclosure.” Id. at 21 (quotation omitted). But I
disagree with my colleagues’ apparent view that in conducting a Chapman harmless-error analysis
our focus is whether “an error is harmless beyond a reasonable doubt . . . on review of the whole
record.” Id. at 13. Instead the question is whether “the State can show beyond a reasonable doubt
that the error did not contribute to the verdict.” Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010)
(emphasis added). More simply put, on review of the record this Court must “decide whether the
not-fully-impeached evidence might have affected the reliability of the factfinding process at trial.”
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). “The opportunity for cross-examination,
protected by the Confrontation Clause, is critical for ensuring the integrity of the factfinding
process.” Kentucky v. Stincer, 482 U.S. 730, 736 (1987).


       “While some constitutional claims by their nature require a showing of prejudice with respect
to the trial as a whole, the focus of the Confrontation Clause is on individual witnesses.
Accordingly, the focus of the prejudice inquiry in determining whether the confrontation right has
been violated must be on the particular witness, not on the outcome of the entire trial.” Van Arsdall,
475 U.S. at 680 (internal citation omitted). A Chapman harmless-error analysis applies once the
reviewing court has found an infringement upon the defendant’s constitutional rights. Id. at 684
(“hold[ing] that the constitutionally improper denial of a defendant’s opportunity to impeach a
witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error
analysis”). And in the case before us the infringement is that “the defendant was denied the right ‘to
expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the
reliability of the witness.’” Pennsylvania v. Ritchie, 480 U.S. 39, 54 (1987) (quoting Davis v.
Alaska, 415 U.S. 308, 318 (1974)).


        The Supreme Court has explained that a Chapman harmless-error analysis turns on a number
of non-exclusive factors including “the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475
U.S. at 684 (citations omitted). Applying those factors here reveals the following. First, the
testimony the State elicited from A.D. was only minimally important to the prosecution’s case-in-
chief; but the excluded testimony that Hall sought was highly probative of the witness’ credibility
and was far from cumulative of other testimony in the record. Next, the trial court’s motion in limine
prevented Hall from demonstrating “the presence . . . of evidence . . . contradicting the testimony of
the witness on material points[.]” Id. Namely, whether M.T. had made a prior false allegation of
sexual abuse.1 Hall’s defense was premised upon a complete denial of M.T.’s allegations, making
quite relevant any inquiry concerning a prior false allegation of sexual assault. And although defense
counsel was permitted to cross-examine the witness on other matters, this limitation prevented Hall
from presenting evidence relevant to his defense that the allegations were untrue. See Ritchie, 480
U.S. at 63 (Blackmun, J., concurring in part and concurring in the judgment) (citing Davis as an
example and explaining that in certain cases “simple questioning will not be able to undermine a
witness’ credibility and in fact may do actual injury to a defendant’s position”). This is particularly


1
  The majority makes a point of highlighting the factual differences between the case at hand and those of the
Kentucky incident and thus downplays the import of the testimony that Hall sought to introduce. According to
the majority, the testimony in question is that “an investigation revealed that the touching had been mutual with
another nine year old.” See slip op. at 17; accord Id. at 15. To be sure, in order to have made a prior false
claim of sexual abuse, the allegation must have been proven to be a falsity. The fact that the investigation from
a state agency revealed a consensual touching between two children rather than an assault committed against
M.T. does not make her prior claim of sexual assault any less significant to the jury’s determination of her
credibility.

                                                       2
important here in light of the fact that the corroborating evidence in favor of the State was
circumstantial and open to interpretation. See, e.g., Tr. at 328-30 (State witness explaining that the
only seminal fluid recovered was found on M.T.’s shorts and contained only trace amounts of sperm,
which could have been deposited by coming into contact with another surface on which the seminal
fluid was present); Tr. at 375 (State witness testifying that there was “[no] way to tell whether DNA
that was found was deposited there through direct or indirect transfer”); Tr. at 288-90, 297-98
(sexual assault nurse examiner testifying that she identified three lacerations in M.T.’s vagina but
could neither conclusively determine at what point in time nor the manner in which the injuries were
inflicted).


        Further, contrary to the majority’s view it appears to me that the State’s case was not at all
very strong. As Judge Najam pointed out writing for the Court of Appeals’ majority, “Hall’s defense
depended entirely on the jury crediting his version of events over M.T.’s[.]” Hall v. State, 15 N.E.3d
1107, 1115 (Ind. Ct. App. 2014), vacated. And as the trial court expressed when considering the
parties’ pre-trial motions, “[t]he credibility of [sic] complaining witness is paramount.” Tr. at 14;
accord McCarthy v. State, 749 N.E.2d 528, 535 (Ind. 2001) (“As with most cases involving claims of
child molestation, here the credibility of witnesses was a key issue at trial.”). As the majority
correctly observes, the State’s line of questioning “served to mislead the jury, who had no way of
knowing that Hall was in fact seeking more information about a potential prior false accusation of
sexual misconduct.” Slip op. at 20-21 (footnote omitted). As the Supreme Court has noted, “the
jurors were entitled to have the benefit of the defense theory before them so that they could make an
informed judgment as to the weight to place on [the] testimony . . . .” Davis, 415 U.S. at 317
(finding reversible error of trial court’s ruling to deny defendant the right to cross-examine witness
regarding his prior juvenile conviction in an effort to show bias).


        Cross-examination as protected by the Sixth Amendment includes the right to cast doubt on
the witness’ testimony through impeachment with such statements. Olden v. Kentucky, 488 U.S.
227, 231 (1988) (per curiam). By denying Hall the right to impeach A.D.’s testimony with her prior
inconsistent statements, the trial court allowed the jury to be left with an incomplete picture from
which it was asked to assess the credibility of the witnesses. This denial certainly deprived Hall of
                                                  3
impeachment evidence regarding the complaining witness. But an even greater harm is that the
violation also prevented Hall from impeaching A.D.—the testifying witness. As the majority
correctly observes, A.D.’s testimony about M.T.’s demeanor and the timeline of events was
introduced at trial to corroborate M.T.’s version of events that afternoon and substantiate the
allegations of molestation. See slip op. at 16-17. By allowing A.D.’s testimony that she “didn’t give
him any information” to go unchallenged, Tr. at 199, “[t]he witness was in effect asserting, under
protection of the trial court’s ruling, a right to give a questionably truthful answer to a cross-
examiner pursuing a relevant line of inquiry[.]” Davis, 415 U.S. at 314. Had Hall been permitted to
impeach A.D. with her prior inconsistent statements, as he should have been, he would have revealed
to the jury A.D.’s “deceptively incomplete disclosure.” Slip op. at 19 (quoting Gilliam v. State, 383
N.E.2d 297, 301 (Ind. 1978)). Not only would this have enabled Hall to defuse the harm of that
evidence, but this line of questioning also would undermine A.D.’s credibility and call her entire
testimony into doubt. In sum the exclusion of further inquiry into the phone call denied Hall his
constitutional right to cross-examine A.D., thus preventing him from introducing relevant testimony
while simultaneously permitting the State to present a distorted presentation of that same evidence to
the jury.


        In order to declare the error committed in Hall’s case harmless beyond a reasonable doubt,
the Court must be unequivocally convinced this error did not contribute to a guilty verdict. It seems
to me incongruous for the majority to say on the one hand “the State’s line of questioning succeeded
in” “elicit[ing] testimony from A.D. that Hall had baselessly inquired about M.T.’s credibility,” and
“also served to mislead the jury, who had no way of knowing that Hall was in fact seeking more
information about a potential prior false accusation of sexual misconduct.” Slip op. at 20-21
(footnote omitted). But then declare on the other hand “it is apparent that the trial court’s denial of
Hall’s motion to compel discovery [and exclusion of the phone conversation], even if in violation of
the Sixth Amendment, was harmless beyond a reasonable doubt.” Id. at 14. To the contrary, the
record makes clear Hall was erroneously denied his constitutional right to cross-examination. And
the State has failed in its burden to demonstrate the “error did not contribute to the verdict.” Koenig,
933 N.E.2d at 1273. Accordingly I cannot conclude the error was harmless beyond a reasonable
doubt. See Reed v. State, 748 N.E.2d 381 389-90 (Ind. 2001) (concluding that violation of
                                                   4
defendant’s Sixth Amendment right constituted reversible error where trial court denied defendant’s
motion to compel deposition testimony and refused to admit videotape of the same subject matter to
impeach witness during trial). I would therefore reverse Hall’s conviction and remand this cause for
a new trial.

Rush, C.J., concurs.




                                                 5
