MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Aug 31 2020, 11:15 am

court except for the purpose of establishing                                      CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William J. Ray,                                          August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2869
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David M. Zent,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1812-F3-73



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020                     Page 1 of 15
                                                    Case Summary
[1]   William Ray appeals his convictions for Count I, rape, a Level 3 felony; Count

      II, kidnapping, a Level 5 felony; Count III, criminal confinement, a Level 5

      felony; Count IV, burglary, a Level 5 felony; Count V, sexual battery, a Level 6

      felony; and his status as an habitual offender. We affirm.


                                                             Issue
[2]   Ray raises one issue for our review, which we revise and restate as whether the

      trial court abused its discretion in the admission of certain evidence.


                                                             Facts
[3]   At approximately 8:15 a.m. on November 29, 2018, Leila Thomas dropped her

      fifteen-year-old daughter, 1 J.T., off at her school bus stop in Fort Wayne.

      Thomas left J.T. at the bus stop because Thomas had to leave for work. While

      waiting at the bus stop, J.T. made a Facetime call to her best friend, J.W.,

      which she typically did in the morning while at the bus stop. J.T. placed the

      phone in her pocket while she spoke with J.W. from her headphones.


[4]   Suddenly, Ray “grabbed [J.T.] from behind.” Tr. Vol. III p. 155. Initially, J.T.

      thought a friend grabbed her, so she asked the person to stop; however, J.T.

      quickly realized that the person was not a friend and started kicking to get away

      from Ray. J.T. nearly escaped before Ray hit J.T. on her right side, causing




      1
          It appears that J.T. was fifteen at the time of the offense; however, J.T. was sixteen at the time of trial.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020                          Page 2 of 15
      J.T. to fall down. Ray dragged J.T. to an alley and forced her into a shed. Ray

      pulled down J.T.’s pants and underwear, started kissing J.T. “all over [her]

      face.” Id. at 157. Ray then touched J.T.’s vagina with his fingers. Ray pulled

      down his pants and began to put on a condom.


[5]   J.W., who remained on the phone during the incident, heard J.T. screaming for

      help and to be released and, moments later, heard Ray tell J.T. to take her pants

      off. At some point, J.T.’s earphones became disconnected from her phone, and

      Ray heard J.W., which caused Ray to “panic[ ].” Id. at 157. J.W. disconnected

      the call with J.T. and called J.T.’s mother, Thomas. Thomas began driving

      back to the bus stop and called law enforcement. J.W. also called law

      enforcement.


[6]   Meanwhile, Ray covered J.T.’s head with a hat and led her away from the shed

      to a nearby house. Once inside the house, Ray attempted to shut off J.T.’s

      phone. J.T. told Ray not to hurt her, and Ray said he was going to take J.T.

      back to the bus stop.


[7]   Ray again placed the hat on J.T.’s head and began to take J.T. back to the bus

      stop. Thomas arrived on the scene and saw that Ray had J.T. in a “headlock.”

      Id. at 201. Ray released J.T. from the headlock and began running, and

      Thomas began to chase Ray with her vehicle while she waited for police arrive.

      Thomas followed Ray down an alley, where Ray was forced to stop running,

      and Thomas photographed Ray. Law enforcement arrived on the scene, and

      Ray was taken into custody.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 3 of 15
[8]    The State filed an information, which was later amended, and charged Ray

       with: Count I, rape, 2 a Level 3 felony; Count II, kidnapping, a Level 5 felony;

       Count III, criminal confinement, a Level 5 felony; Count IV, burglary, a Level

       5 felony; and Count V, sexual battery, a Level 6 felony. On July 31, 2019, the

       State filed a notice of intention to seek an habitual offender enhancement.


[9]    At Ray’s October 2019 jury trial, witnesses testified to the foregoing facts.

       Relevant to this appeal, the following witnesses also testified sequentially to the

       following events. First, J.T. testified that Ray touched J.T.’s vagina with his

       fingers. Second, Officer Manuel Aguilar, with the Fort Wayne Police

       Department, testified that when he arrived on the scene, Thomas reported

       “that’s the man who raped my baby.” Id. at 229. Officer Aguilar also testified

       that J.T. reported to him that Ray “put his finger in her vagina” and that Ray

       “had [his penis] out” but did not insert his penis into her vagina. Id. at 231.

       Ray did not object when Officer Aguilar made these statements.


[10]   Next, Drew Kellogg, the paramedic who arrived on the scene, testified that

       J.T.’s chief complaint was that she was “sexually assaulted.” Tr. Vol. IV p. 57.

       Ray objected to Kellogg’s testimony, arguing that it was repetitive and

       constituted vouching for J.T. The trial court directed the State to refrain from

       asking Kellogg questions about J.T.’s complaints. Kellogg then testified that




       2
           The State filed an amended information on Count I on January 31, 2019, due to a scrivener’s error.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020                   Page 4 of 15
       J.T. “did not go into any detail” and that J.T. “had no visible injuries.” Id. at

       59.


[11]   Lorrie Freiburger, a forensic interviewer with the Dr. Bill Lewis Center for

       Children, testified that she interviewed J.T. on November 29, 2018. On direct

       examination, the deputy prosecutor and Freiburger engaged in the following

       colloquy:


               Q. [Freiburger], with respect to J.T. we’re not gonna go into any
               of the content of the interview, that would be hearsay. We had
               an opportunity to meet her yesterday. What was her demeanor
               like, though, when you spoke to her? How did she present?


               A. Oh, she was [ ] she communicated very well. I mean, she was
               able to articulate a lot of details about what happened, she was
               very - had been very aware of her surroundings and were [sic]
               able to retain those and then give those back to me. She was not
               afraid to correct me if I repeated something back that —


       Id. at 99. Ray objected and argued that Freiburger’s testimony was “getting

       past demeanor and we’re talking about ability to recall things. We’re getting

       close to vouching of this witness.” Id. The trial court agreed and reminded

       Freiburger that the question referred to J.T.’s demeanor. Freiburger responded:

       “Oh, very confident, very – was able to communicate well, and was – I want to

       say helpful in an interview. I mean.” Id. Ray moved to strike Freiburger’s

       latter comment, which the trial court granted and struck from the record.

       Finally, the State elicited testimony from Freiburger regarding the difference




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 5 of 15
       between an interview room and the courtroom as a child-friendly environment.

       Ray did not cross-examine Freiburger.


[12]   J.T.’s medical examination report, which included a statement made by J.T. to

       Leslie Cook, a forensic nurse examiner at the Fort Wayne Sexual Assault

       Treatment Center, was also admitted at trial. The report restated J.T.’s versions

       of events, as reported to Cook, as follows: “[Ray was] rubbing on [J.T.] –

       [J.T.’s] vagina with his fingers, trying to stick his fingers inside [J.T.] He d[id],

       both inside [and] outside.” State’s Ex. Vol. p. 168. Ray objected and argued

       that, while J.T.’s statement contained in Cook’s report would ordinarily be

       admissible for medical purposes, the statement would be a drumbeat repetition

       of the earlier testimony by J.T., Officer Aguilar, and Kellogg. The trial court

       overruled Ray’s objection.


[13]   The jury found Ray guilty of all five counts and found Ray to be an habitual

       offender. The trial court sentenced Ray to an aggregate sentence of fifty-two

       years at the Indiana Department of Correction. Ray now appeals his

       conviction.


                                                   Analysis
[14]   Ray argues that the trial court abused its discretion in the admission of certain

       evidence. “The general admission of evidence at trial is a matter we leave to

       the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60 (Ind.

       2013). “We review these determinations for abuse of that discretion and



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 6 of 15
       reverse only when admission is clearly against the logic and effect of the facts

       and circumstances and the error affects a party’s substantial rights.” Id. at 260.


                          A. Did the evidence constitute a drumbeat repetition?

[15]   Ray argues that J.T.’s testimony, followed by subsequent witnesses who

       testified to J.T.’s out of court statements recounting the allegations, constituted

       a drumbeat repetition in evidence, which was prejudicial to Ray. In Kress v.

       State, 133 N.E.3d 742, 746-47 (Ind. Ct. App. 2019), trans. denied, a panel of our

       court summarized the law and concerns regarding drumbeat repetition of

       evidence as follows:


               In a criminal case, the core issue at trial is, of course, what the
               defendant did (or did not do), not why someone else did (or did
               not do) something. For this reason, the Indiana Supreme Court
               has urged courts to take caution when a prosecutor offers an
               otherwise[]inadmissible assertion for the purpose of providing
               context for the jury. Indeed, when an out-of-court assertion is
               offered for some ancillary purpose, we must pay careful attention
               to that proffered purpose. This is because Indiana Evidence Rule
               403 contemplates exclusion where the probative value of the
               evidence is “substantially outweighed by a danger of . . . unfair
               prejudice, confusing the issues, misleading the jury, undue delay,
               or needlessly presenting cumulative evidence.” Evid. R. 403. . . .
               In short, Indiana law does not permit minimally probative end
               runs around the rule against hearsay. Thus, “[i]f the fact sought
               to be proved under the [proffered] non-hearsay purpose is not
               relevant, or it is relevant but its danger of unfair prejudice
               substantially outweighs its probative value, the hearsay objection
               should be sustained.” Craig v. State, 630 N.E.2d 207, 211 (Ind.
               1994).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 7 of 15
                One danger of prejudice arises in the “drumbeat repetition” of an
                out-of-court assertion. See, e.g., Modesitt v. State, 578 N.E.2d 649,
                651-52 (Ind. 1991). Indeed, in light of a proffered non-hearsay
                purpose, exclusion might not be warranted where there is a mere
                isolated reference to an assertion. See Evid. R. 403. However, as
                additional testimony about the assertion “beats the drum,” there
                is increasing danger the jury will use the testimony for an
                improper purpose. For example, the jury might use the
                testimony as proof of the matter asserted. . . . Or, the jury could
                treat the repetitive testimony as a form of vouching for the
                credibility of the declarant. . . . As to the latter risk, this type of
                problematic vouching is not the blatant type prohibited by
                Evidence Rule 704(b)—where a witness directly opines about
                “the truth or falsity of allegations” or “whether a witness has
                testified truthfully.” Evid. R. 704(b). Rather, the risk is
                insidious. That is, the repeated references might eventually
                inundate the jury, leading them toward an inference that
                witnesses are vouching for the credibility of the declarant. See,
                e.g., Stone v. State, 536 N.E.2d 534, 540 (Ind. Ct. App. 1989)
                (identifying impermissible vouching where the victim’s credibility
                “became increasingly unimpeachable as each adult added his or
                her personal eloquence, maturity, emotion, and professionalism
                to [the] out-of-court statements”), trans. denied.


       Kress, 133 N.E.3d at 746-47 (some citations and quotations omitted).


[16]   In support of his argument that the trial court abused its discretion in admitting

       drumbeat repetition evidence, Ray points to the following: 3 (1) J.T.’s testimony




       3
         Ray, in his brief, also discusses Freiburger’s testimony when recounting the evidence that he argues
       constituted a drumbeat repetition. Ray’s argument, however, appears to be more that Freiburger was
       vouching for J.T. as a reliable witness in light of his reference to Indiana Trial Rule 704(b). We, therefore,
       will consider that argument below instead of considering Freiburger’s testimony as part of the drumbeat
       repetition of J.T.’s allegations.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020                     Page 8 of 15
       that Ray touched her vagina with his finger; (2) Officer Aguilar’s testimony

       regarding J.T.’s statements, without objection from Ray; (3) Kellogg’s

       testimony that J.T.’s chief complaint was that she was sexually assaulted; and

       (4) the admitted medical report from the Fort Wayne Sexual Assault Treatment

       Center, which contained J.T.’s statements regarding Ray’s actions.


[17]   In Kress, the defendant was charged with child molesting, and the eight-year-old

       child victim was the first witness to testify and to detail the defendant’s actions.

       Kress, 133 N.E.3d at 745. Subsequent witnesses, including the child’s mother,

       grandfather, and the investigating detective, all made reference to out-of-court

       statements by the child victim relaying the incidents of sexual abuse. The child

       victim’s mother testified that she told police “what [the child victim] said”; the

       child victim’s grandfather testified that, once the child disclosed the allegations

       to him, he asked the child to repeat the allegations to the child’s mother and

       that the child’s mother “needed to report this”; and the detective testified that

       he investigated an allegation of “child abuse” and conducted interviews

       accordingly. Id. at 746.


[18]   Importantly, however,


               [The child victim] was the first witness to testify and was
               subjected to cross-examination. She gave specific, descriptive
               testimony about the touching. The subsequent witnesses gave
               only general testimony about the existence of allegations. No
               subsequent witness delved into [the child victim]’s version of
               events. Thus, unlike in other cases, here, the jury heard [the
               child victim]’s story just once.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 9 of 15
       Id. at 747-48. Our Court ultimately held that there was “no substantial

       likelihood that the challenged testimony contributed to the jury’s decision to

       convict Kress.” Id. at 748.


[19]   Here, we do not find that the subsequent witnesses testimony constituted a

       drumbeat repetition of J.T.’s versions of events. Importantly, J.T. was the first

       witness to testify and gave “specific, descriptive testimony” about the day’s

       events. Kress, 133 N.E.3d at 747; see cf. Modesitt v. State, 578 N.E.2d 649, 652

       (Ind. 1991) (holding that “[b]ecause the trial court . . . allowed, over objection,

       the drumbeat repetition of the declarant’s statements prior to the declarant’s

       testifying and being subject to cross examination,” the defendant’s convictions

       should be reversed). J.T. was cross-examined regarding the veracity of her

       version of events before the other witnesses testified.


[20]   Moreover, although Officer Aguilar gave some detail regarding J.T.’s

       allegations, Ray did not object during Officer Aguilar’s testimony. Ray did

       object to Kellogg’s statement that J.T. alleged she was “sexually assaulted”;

       however, Kellogg provided no other details regarding J.T.’s allegations and this

       statement alone can hardly be considered recounting J.T.’s allegations. Tr. Vol.

       IV p. 59. Finally, Ray objected to the admission of J.T.’s medical exam report

       because the report contained a narrative of J.T.’s allegations. Ray concedes in

       his brief that the medical records were admissible under the medical exception

       to the hearsay rule pursuant to Indiana Rule of Evidence 803(4); however, Ray

       argues that J.T.’s statement within the medical report was repetitive and

       cumulative. The narrative in the medical report, however, did not elaborate on

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 10 of 15
       J.T.’s allegations more than necessary, but instead merely stated them for

       medical purposes.


[21]   Based on the foregoing, we cannot find that the trial court abused its discretion

       in admitting the evidence from J.T., Officer Aguilar, Kellogg, and J.T.’s

       medical report from the Fort Wayne Sexual Assault Treatment Center.


                                  B. Did the evidence constitute vouching?

[22]   Next, Ray argues that Freiburger’s testimony constituted impermissible

       vouching testimony. Indiana Evidence Rule 704(b) provides that “[w]itnesses

       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.” “Such vouching testimony is considered an invasion of

       the province of the jurors in determining what weight they should place upon a

       witness’s testimony.” Alvarez-Madrigal v. State, 71 N.E.3d 887, 892 (Ind. Ct.

       App. 2017) (citations omitted), trans. denied. “It is essential that the trier of fact

       determine the credibility of the witnesses and the weight of the evidence.”

       Carter v. State, 31 N.E.3d 17, 29 (Ind. Ct. App. 2015) (citations omitted), trans. denied.


[23]   Freiburger’s specific comments described J.T. as articulate, confident, aware of

       her surroundings, able to retain information, and able to share that information

       with Freiburger. Freiburger also described J.T. as “helpful in an interview,”

       which the trial court struck from the record. Tr. Vol. IV p. 99.


[24]   In Carter, the child victim disclosed Carter’s molestation, recanted the

       allegations, then again disclosed Carter’s molestation. After an investigation of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 11 of 15
       the child victim’s allegations and recantation, the defendant was charged with

       three counts of child molesting, Class A felonies; and two counts of child

       molesting, Class C felonies. Carter, 31 N.E.3d at 23. During the State’s case-in-

       chief at Carter’s trial, a forensic interviewer provided testimony “concerning the

       dynamics of child abuse, the disclosure process, and when and why a child may

       recant his disclosure of the abuse.” Id. at 29.


[25]   A panel of this court found that the forensic interviewer’s testimony did not run

       afoul of Indiana Evidence Rule 704(b) because the forensic interviewer, who

       interviewed the child victim, “never mentioned [the child victim] in her

       testimony or made any statement of opinion regarding the truth of falsity of [the

       child victim]’s allegations of molestation” at the jury trial. Carter, 31 N.E.3d at

       29. Moreover, the Carter witness “did not purport to have any opinion

       regarding the case at bar[;] nor did she refer to any specific facts at issue. Her

       testimony was broad, generalized, and included reference to results of research

       studies.” Id.


[26]   Here, in contrast to the witness in Carter, Freiburger’s comments were specific

       to J.T., painted J.T. as aware of her surroundings, able to retain information

       well, confident, and articulate. Freiburger also testified that J.T. was able to

       correct Freiburger in recounting J.T.’s allegations, which is important for

       determining J.T.’s reliability.


[27]   This testimony regarding J.T.’s characteristics constituted impermissible

       vouching testimony because it took away the jury’s responsibility to determine


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 12 of 15
       whether J.T.’s testimony was credible. Freiburger implied, in specifically

       describing J.T.’s qualities, that J.T. should be believed. Accordingly, the trial

       court abused its discretion in allowing Freiburger’s impermissible vouching

       testimony.


                      C. Was admission of the vouching evidence harmless error?

[28]   The State argues that, even if admission of this vouching evidence was

       erroneous, any error was harmless. Errors in the admission or exclusion of

       evidence are to be disregarded as harmless error unless they affect the

       substantial rights of the party. Mendoza-Vargas v. State, 974 N.E.2d 590, 597

       (Ind. Ct. App. 2012). To determine whether an error in the introduction of

       evidence affected the appellant’s substantial rights, we assess the probable

       impact of that evidence upon the jury.


[29]   Substantial evidence, other than the vouching testimony, was submitted to the

       jury to support Ray’s conviction and to support J.T.’s testimony, including:

       J.W.’s testimony of what she heard while Facetiming with J.T.; Thomas’

       testimony that she saw Ray holding J.T. in a headlock and that Ray ran away

       when he saw Thomas; the photographs that Thomas took of Ray; male DNA

       evidence that was detected in an internal genital swab of J.T.; 4 Ray’s DNA that

       was found as part of a mixture of DNA from three individuals on the front




       4
        J.T.’s female DNA “overwhelmed” the male DNA present; therefore, the male DNA was insufficient to
       determine a matching profile. Tr. Vol. IV p. 228.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020          Page 13 of 15
       waistband of J.T.’s underwear; 5 that a condom wrapper was found inside the

       shed J.T. described; and that Ray had grass on his bottom, underneath his

       clothes, which was consistent with J.T.’s account of Ray taking his pants off in

       the shed.


[30]   Accordingly, Freiburger’s vouching testimony likely did not impact the jury

       because there was substantial evidence to support J.T.’s testimony and Ray’s

       conviction. See Wilkes v. State, 7 N.E.3d 402, 406 (Ind. Ct. App. 2014) (finding

       that, “[i]n light of the other evidence in the record, the admission of [the]

       vouching testimony was harmless”); see also Norris v. State, 53 N.E.3d 512, 524

       (Ind. Ct. App. 2017) (concluding “that the trial court’s erroneous admission of

       the vouching testimony amounted to harmless error” in light of “substantial

       evidence” in the record). We find that any error in the admission of the

       evidence Ray challenges was harmless.


                                                     Conclusion
[31]   The trial court did not abuse its discretion in admitting drumbeat repetition

       evidence. Although the trial court did abuse its discretion in allowing vouching

       testimony, any error in the admission of evidence was harmless. We affirm.


[32]   Affirmed.




       5
         At trial, the State presented evidence that “[t]he DNA profile [from the waistband of J.T.’s underwear] is at
       least one trillion times more likely if it originated from J.T., [Ray], and an unknown individual rather than if
       it originated from J.T., and two (2) unknown unrelated individuals.” Tr. Vol. IV p. 233.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020                    Page 14 of 15
Kirsch, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020   Page 15 of 15
