                                                           FILED
                                                         Feb 22 2012, 9:14 am
FOR PUBLICATION
                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

AARON WESTLAKE                                GREGORY F. ZOELLER
Thomas Law Firm, P.C.                         Attorney General of Indiana
Auburn, Indiana
                                              NICOLE M. SCHUSTER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

ERNESTO GUTIERREZ,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 44A03-1106-CR-257
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE LAGRANGE SUPERIOR COURT
                         The Honorable George E. Brown, Judge
                             Cause No. 44D01-0912-FA-15



                                  February 22, 2012

                             OPINION—FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Ernesto Gutierrez appeals his convictions for two counts of

Child Molesting,1 a class A felony. Specifically, Gutierrez contends that his convictions

must be reversed because the trial court improperly admitted vouching testimony from

two of the State’s witnesses as to whether the victim was telling the truth. Gutierrez also

claims that the deputy prosecutor engaged in misconduct by eliciting the improper

vouching testimony and commenting about that testimony during closing argument.

Concluding that the trial court erred in admitting improper vouching testimony that

invaded the province of the jury and prejudiced Gutierrez’s substantial rights, we reverse

and remand for a new trial.

                                           FACTS

          M.L. was born on November 10, 1998, and lived with her two sisters, her

mother—Elizabeth—and Gutierrez, her stepfather. Sometime between the middle of

June 2009, and the end of August 2009, Gutierrez would touch M.L. in her bedroom, or

in the room that Gutierrez and Elizabeth shared. M.L. stated that Gutierrez would touch

her with his hands, his mouth, and place his penis on her genitals and breasts while

M.L.’s sisters were sleeping.      M.L. also reported that Gutierrez had sexual intercourse

with her on at least three occasions.

          Despite the abuse, M.L. wrote President Obama asking for help in bringing

Gutierrez back to the United States after he had left for Mexico because Elizabeth and her

sisters were suffering financially in his absence.
1
    Ind. Code § 35-42-4-3(a)(1).

                                              2
         Although M.L. eventually told Elizabeth about some of Gutierrez’s conduct, she

only told her about the times that Gutierrez had kissed her neck and breast. Thereafter,

Elizabeth reported these incidents to representatives of the Department of Child Services

(DCS). M.L. was subsequently interviewed and a sexual assault nurse, Michelle Ditton,

examined M.L. At some point, M.L. told Nurse Ditton that Gutierrez had fondled her

and penetrated her vagina with his penis. Nurse Ditton determined that the results of

M.L.’s physical examination were “normal,” as is the case in ninety to ninety-five

percent of child molest victims. Tr. p. 134.

         M.L. was deposed on May 19, 2010, in connection with the incidents. M.L.

testified that Gutierrez had touched her breasts and her “middle part” and performed oral

sex on her. Appellant’s App. p. 56-61. However, M.L. did not testify that Gutierrez had

touched her with his penis or placed it inside of her.          M.L. also testified that there was

one incident where she thought that Gutierrez was going to touch her, but he did not.

M.L. then acknowledged that there were no additional incidents during the summer of

2009.2

         During a jury trial that commenced on March 24, 2011, the State called M.L. as its

first witness. On direct examination, M.L. testified that Gutierrez touched her “private

part” and her breasts, performed oral sex on her, and put his penis inside of her while she

was sleeping next to her sisters in her parents’ room. Tr. p. 85-87.             M.L. also testified


2
 M.L. did, however, testify as to some uncharged incidents that allegedly occurred at least a year-and-
one-half prior to the summer of 2009.

                                                  3
about an incident similar to the one that she testified about in her deposition where

Gutierrez allegedly came into her room but never touched her. As in the deposition, M.L.

testified that there were no other incidents that occurred between her and Gutierrez

during the summer of 2009. However, M.L. also testified about several uncharged

incidents that had allegedly occurred almost two years before the summer of 2009.

       M.L.’s testimony was contradictory on cross examination. For instance, when

M.L. testified about her earlier testimony, she acknowledged there was only one occasion

that Gutierrez touched her during the summer of 2009. However, M.L. testified that she

had told one of the police officers that Gutierrez actually had touched her on two

occasions during that period.

       Upon further questioning, M.L. testified that she informed Ditton that there were

more than two, but less than ten times, that Gutierrez vaginally penetrated her during the

summer of 2009. However, M.L. then maintained that there were actually more than ten

instances of vaginal penetration during that time period.       M.L. again changed her

testimony and testified that there were only about three times during the summer of 2009

that Gutierrez had vaginally penetrated her.

       The State next called Ditton, who testified that M.L. had a completely “normal

exam” and she had no knowledge to confirm that any molestation occurred besides what

M.L. had told her. Tr. p. 134, 140. At one point, Ditton was permitted to testify, over

counsel’s objection, that she believed that M.L. was telling the truth. More particularly,

when Ditton was asked about whether she believed M.L., counsel objected on the

                                               4
grounds that such testimony would damage “the province of the jury as to whether she’s

telling the truth or not.” Id. at 138-39. The trial court overruled the objection, and

responded, “I agree, but I think it’s up to the jury to give that opinion whatever weight it

deems appropriate, so I’ll overrule that objection.” Id. Ditton then responded as follows:

        I believe based on the time frame since the last occurrence, based on the
        fact that she told me she never had any bleeding, based on the fact that it
        felt good that it probably was—when the penis was on the clitoris, based on
        the fact of how easily, even if there was minor injury to that tissue, based
        on the fact, again, probably the most important that that tissue is very
        estrogenized thick, could easily accommodate a speculum, a penis, a baby’s
        head, I didn’t expect to find any injury before I even looked at her.

Id.

        The State also called Penny Hasselman, a case manager with the LaGrange DCS,

to testify about whether she believed that M.L. was telling the truth about the

molestations. More specifically, the deputy prosecutor asked Hasselman: “With your

time being spent with [M.L.], and hearing what happened in the deposition, did you

believe what she was saying?” Tr. p. 172. Hasselman responded, “absolutely.” Id. The

deputy prosecutor then asked if Hasselman could explain why she believed M.L., and

Gutierez’s counsel objected on the grounds of relevance. Id.                  The deputy prosecutor

then remarked that “I think [the jury] should hear why she believes from her past

experience.” Id. at 173. The trial court then sustained defense counsel’s objection to this

comment on the grounds of relevance.3


3
  Gutierrez’s counsel was obviously uncomfortable with this line of questioning. And it is likely that the
objection was framed on the grounds of relevance because the earlier objection to similar testimony on
the grounds that it invaded the province of the jury was overruled.
                                                    5
      During closing argument, the deputy prosecutor offered an additional opinion

concerning the believability of both M.L. and Gutierrez, stating that “Apparently, the

priest believed [M.L.] because he reported it. We know the police officers believe her.

We know the welfare lady believes her. She said so. The sexual assault lady believed

what she had to say. Lot[s] of people are in her corner.” Tr. p. 233. The Prosecutor also

remarked that he believed that Gutierrez had lied and “lied a lot.”        Id. at 234-35.

Gutierrez was found guilty on both counts and he now appeals.

                            DISCUSSION AND DECISION

                                 I. Standard of Review

      The trial court has broad discretion in ruling on the admission or exclusion of

evidence. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009). The trial

court’s ruling on review of admissibility of evidence will be disturbed on review only

upon a showing of an abuse of discretion. Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct.

App. 2010). An abuse of discretion occurs when the trial court’s ruling is clearly against

the logic, facts, and circumstances presented. Oatts v. State, 899 N.E.2d 714, 719 (Ind.

Ct. App. 2009).

      However, we also note that even if the trial court erroneously admits evidence, we

will not reverse if the admission was harmless error. Micheau v. State, 893 N.E.2d 1053,

1059 (Ind. Ct. App. 2008). And a claim of error in the admission or exclusion of

evidence will not prevail on appeal unless a substantial right of the party is affected.

Schmid v. State, 804 N.E.12d 174, 181 (Ind. Ct. App. 2004). In determining whether

                                            6
error in the introduction of evidence affected an appellant’s substantial rights, we will

assess the probable impact of the evidence on the jury. McClain v. State, 675 N.E.2d

329, 331 (Ind. 1996).

                                   II. Gutierrez’s Claims

       In addressing Gutierrez’s claims regarding the admission of Ditton and

Hassleman’s allegedly improper vouching testimony, we initially observe that Indiana

Evidence Rule 704(b) provides that “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.” Even before the adoption of the

Indiana Rules of Evidence, our Supreme Court had prohibited such testimony to bolster a

child’s testimony in a child molesting case. Head v. State, 519 N.E.2d 151, 153 (Ind.

1988). Such testimony is an invasion of the province of the jurors in determining what

weight they should place upon a witness’s testimony. Id.       In other words, it is essential

that the trier of fact determine the credibility of the witnesses and the weight of the

evidence. Thompson v. State, 529 N.E.2d 877, 878 (Ind. Ct. App. 1988 ).

       In this case, contrary to the State’s assertion, it is our view that Ditton’s testimony

ran afoul of Indiana Evidence Rule 704(b)’s prohibitions. When the deputy prosecutor

asked Ditton whether she formed an opinion as to whether she believed M.L., the clear

inference from Ditton’s response was to vouch for M.L. Thus, we must conclude that the

trial court erred in admitting that testimony into evidence. See Rose v. State, 846 N.E.2d



                                              7
363, 369 (Ind. Ct. App. 2006) (observing that a physician’s testimony that he believed a

child molesting victim’s allegations invaded the province of the jury).

         As for Hasselman’s testimony, Gutierrez concedes that defense counsel failed to

object in a timely fashion and on proper grounds. Thus, the issue is generally waived.

See Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003) (observing that the failure to

contemporaneously object to the admission of evidence at trial results in waiver of the

error on appeal). However, in an effort to avoid waiver, Gutierrez maintains that

Hasselman’s improper opinion testimony must be reviewed under the fundamental error

standard. That is, if the error in the admission of evidence is such that it “makes a fair

trial impossible or constitutes clearly blatant violations of basic and elementary principles

of due process presenting an undeniable and substantial potential for harm,” relief may be

granted because the error is so fundamental. Clark v. State, 915 N.E.2d 126, 131 (Ind.

2009).

         When examining the exchange between the deputy prosecutor and Hasselman, it is

readily apparent that the provisions of Indiana Evidence Rule 704(b) were violated,

which resulted in an invasion of the province of the jury to judge the credibility of the

witnesses.    As noted above, Hasselman testified that she “absolutely” believed M.L.’s

testimony. Tr. p. 172. And the deputy prosecutor contemporaneously inserted his own

opinion that he believed M.L.       Therefore, the admission of Hasselman’s testimony

amounted to fundamental error.



                                             8
          Notwithstanding the prohibitions regarding the admission of vouching testimony,

the trial court allowed such testimony to be shared with the jury. And, to compound

matters, the deputy prosecutor improperly told the jury that he believed M.L.’s testimony.

Thus, we are compelled to reverse Gutierrez’s convictions and order a new trial free of

prohibited matters.

          The judgment of the trial court is reversed and this cause is remanded for a new

trial.4

DARDEN, J., and BAILEY, J., concur.




4
  In light of our decision to reverse Gutierrez’s convictions for the reasons set forth above, we need not
address his separate contention that the deputy prosecutor engaged in misconduct by his comments during
closing argument and “continuously offering improper opinion testimony” at trial. Appellant’s Br. p. 14.
                                                    9
