MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Oct 05 2018, 8:41 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Clark County Public Defender’s Office                    Attorney General
Jeffersonville, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rusty Allen Reesor,                                      October 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A01-1712-CR-2790
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Andrew Adams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         10C01-1605-F1-001



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018       Page 1 of 11
                                          Case Summary
[1]   Rusty Reesor appeals his conviction and sentence for attempted child

      molesting, arguing that the trial court admitted improper vouching testimony

      and wrongly relied on the victim’s age as an aggravator. We affirm.



                            Facts and Procedural History
[2]   In 2015, A.W. and her mother, Carolyn, moved to Jeffersonville. Sometime

      after the move, Carolyn began working nights at Amazon and needed someone

      to babysit A.W. In January 2016, when A.W. was nine years old, Carolyn

      temporarily hired Reesor, a neighbor, as her babysitter. The arrangement was

      for Reesor to babysit A.W. in Carolyn’s home and to make sure that A.W.

      completed her homework, showered, and was in bed by nine at night. For two

      months, Reesor was A.W.’s sole caretaker from the time she got home from

      school through the early morning.


[3]   Sometime in the ten days before her spring break started in March 2016, A.W.

      was watching television with Reesor and asked to sit on his lap because her

      back was hurting. While A.W. was sitting on Reesor’s lap, he pulled down her

      leggings and removed his penis from his pants. Then Reesor “started putting

      his wiener in [A.W.’s] . . . butthole . . . then he slowly took it out and it hurt.”

      Tr. Vol. II. p. 33. After A.W. complained that he was hurting her, Reesor

      stopped. On several other occasions during his final ten days as her babysitter,




      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 2 of 11
      Reesor used his hands and penis to “play in [A.W.’s vagina] . . . .” Id. at 34,

      44.


[4]   When her spring break began, A.W. began staying at another neighbor’s

      apartment and told this neighbor what Reesor had done to her. The neighbor

      called Carolyn, who contacted police. Detective Isaac Parker of the

      Jeffersonville Police Department was assigned to investigate. In April 2016,

      social workers conducted a forensic interview of A.W. at the Family &

      Children’s Place in Jeffersonville. Detective Parker attended the interview and

      watched from a neighboring room. According to Detective Parker, during the

      interview A.W. alleged that Reesor had “fondled her vagina with both hands

      and his penis” and that during one specific incident, his penis was “touching

      her butto[cks] and she felt pain.” Id. at 75. Detective Parker then interviewed

      Reesor. Reesor told Detective Parker that A.W. “had reached into his pants

      and removed his penis and that she had placed his penis down her shorts to

      touch her butto[cks].” Id. at 83. Reesor recalled a time when “his bare penis

      touched her butto[cks] . . . in this instance . . . she did complain of pain.” Id.

      Reesor also said that he had touched A.W.’s vagina with his hands and penis.

      Reesor told Detective Parker that he had sexual contact with A.W. on ten

      consecutive days during the last month that he babysat her and that the reason

      he did not stop was “because he hadn’t had a girlfriend in a while.” Id. at 89.


[5]   The State ultimately charged Reesor with one count of Level 1 felony attempted

      child molesting (“putting his penis to the anus of A.W. and applying pressure”)

      and two counts of Level 4 felony child molesting (touching his penis to A.W.’s

      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 3 of 11
      vagina and fondling A.W.’s vagina with his hands). Appellant’s App. Vol. II.

      p. 44.


[6]   At the bench trial in August 2017, ten-year-old A.W. testified that Reesor had

      touched her vagina and “butt” with his hands and penis and on one occasion

      Reesor “started putting his wiener in [her] butt slowly.” Tr. Vol. II pp. 32-33.

      A.W. clarified that Reesor touched the “butthole” part of her butt and that “he

      slowly took it out and it hurt . . . it kind of did went [sic] inside, but a little bit

      halfway.” Id. at 33. Detective Parker also testified and recounted the

      allegations made by A.W. during her forensic interview (without a hearsay

      objection by Reesor). Then the State played the audio recording of his

      interview with Reesor and asked Detective Parker to compare the two

      interviews:


               Q       Okay. Were there any allegations made by the child in the
                       interview with [the social worker] that were [corroborated]
                       by the admissions of the Defendant?


               A       Yes.


               Q       Okay. And which ones were those?


                       [Defense Counsel]: Objection, calls for a legal conclusion
                                          and legal opinion.


                       The Court:               Response?


                       [State]:                 I disagree, Your Honor. This is based
                                                on his recollection of what was said
      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 4 of 11
                                          and what was [corroborating]. These
                                          are facts of the case based on what he
                                          heard.


                 The Court:               Do you have, I think you can ask him
                                          in a different way that’s not giving a
                                          legal opinion.


        Q        Well, was there anything that matched up between what
                 the child said and confirmed by the admissions of the
                 Defendant?


        A        Yes.


        Q        And what points were those?


        A        The fondling of the vagina with the hands, the penis, the
                 anus, of course, the fondling of the butto[cks] by the, or
                 with the penis. In my opinion, the attempted penetration
                 as well.


                 [Defense Counsel]: Objection, Judge, and I have an
                                    objection to that, Judge, “in my
                                    opinion.”


        A        Okay. I can scratch my opinion. I’m sorry.


                 The Court:               Okay.


        A        Okay. The attempted anal penetration. The, she had
                 stated, I’ll rephrase that, during the interview, I learned
                 that there was something to do with the eleventh (11th)
                 day, I recall hearing, or receiving information about the

Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 5 of 11
                       eleventh (11[th]) day. And during the interview with Mr.
                       Reesor, he did [corroborate] that there were ten (10)
                       consecutive days, the eleventh (11[th]) day, it would have
                       stopped. Of course, you have the other information as
                       well about the babysitting, things along those lines. There
                       was a lot of truth or dare, a lot of her statement, I was able
                       to [corroborate].


      Id. at 87-88. During closing arguments, Reesor’s attorney conceded that the

      State’s case was strong for Counts II and III because of “[Reesor’s] admissions”

      to those counts. Id. at 122. The court found Reesor guilty as charged. In

      finding Reesor guilty of Count I, the court explained that A.W. testified that

      Reesor’s penis was “‘kind of in there,’ ‘halfway,’ ‘went inside,’ and ‘it hurt.’”

      Id. at 129.


[7]   At Reesor’s sentencing hearing, the trial court identified three aggravators: (1)

      Reesor had a history of criminal or delinquent behavior, including a prior

      felony conviction for residential entry and possession of a controlled substance;

      (2) A.W. was less than twelve years old; and (3) as A.W.’s babysitter, Reesor

      was placed in a position of having care, custody, or control at the time he

      committed the offenses. The trial court also identified as mitigators Reesor’s

      cooperation in the case and that it had been almost ten years since his last

      criminal conviction. The trial court sentenced Reesor to thirty years with ten

      years suspended to probation on Count I and to six years each on Counts II and

      III, all to be served concurrently.


[8]   Reesor now appeals his conviction and sentence for Count I only.


      Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 6 of 11
                                  Discussion and Decision
[9]    Reesor raises two issues on appeal. First, he argues that the trial court allowed

       improper vouching testimony. Second, he asserts that the trial court erred in

       finding A.W.’s age to be an aggravator.


                                      I. Vouching Testimony
[10]   Reesor contends that the trial court admitted improper vouching testimony in

       violation of Indiana Evidence Rule 704(b). Specifically, he claims that

       Detective Parker “vouched for the credibility of A.W. by testifying that her

       testimony had been corroborated.” Appellant’s Br. p. 6. A trial court has broad

       discretion in ruling on the admissibility of evidence, and we will disturb its

       rulings only where it is shown that the court abused that discretion. Hoglund v.

       State, 962 N.E.2d 1230, 1237 (Ind. 2012). An abuse of discretion occurs when a

       trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Id.


[11]   Vouching testimony is generally prohibited under Evidence Rule 704(b), which

       states: “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.” Such testimony is

       considered an invasion of the province of the factfinder in determining what

       weight they should place upon a witness’s testimony. Bean v. State, 15 N.E.3d

       12, 18 (Ind. Ct. App. 2014), trans. denied. The Indiana Supreme Court has held

       that testimony that a child witness is not prone to exaggerate or fantasize about

       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 7 of 11
       sexual matters is the equivalent of saying the child is telling the truth and

       therefore prohibited by Evidence Rule 704(b). Hoglund, 962 N.E.2d at 1236-37.

       More recently, in Sampson v. State, our Supreme Court continued to define what

       constitutes vouching testimony and held that testimony about whether a child

       has been coached or has exhibited signs of coaching is inadmissible, unless the

       defendant has called the child’s credibility into question. 38 N.E.3d 985, 991-92

       (Ind. 2015).


[12]   Here, the State asked Detective Parker on direct examination, “Were there any

       allegations made by the child in the interview with [the social worker] that were

       [corroborated] by the admissions of the Defendant?” Tr. Vol. II. p. 87.

       Detective Parker responded “yes,” and Reesor’s attorney objected, stating that

       the answer “calls for a legal conclusion.” Id. The trial court asked the State to

       rephrase the question, and the State asked Detective Parker, “Well, was there

       anything that matched up between what the child said and confirmed by the

       admissions of the Defendant?” Id. Detective Parker said “yes.” Id. Reesor’s

       attorney did not object to the State’s rephrasing of the question. Detective

       Parker then listed which details matched up: “[t]he fondling of the vagina with

       the hands, the penis, the anus . . . the fondling of the butto[cks] . . . with the

       penis . . . the attempted anal penetration . . . something to do with the eleventh

       day . . . [and] information . . . about the babysitting . . . .” Id. at 87-88.


[13]   First, by failing to object to the rephrased question, Reesor has arguably waived

       review of this issue. But even if the issue was not waived, we find no error

       because Detective Parker’s testimony was not vouching. Instead, vouching

       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 8 of 11
       occurs when one witness testifies directly or indirectly as to whether another

       witness testified truthfully. See generally Hoglund, 962 N.E.2d at 1236-37.

       Detective Parker did not testify that he believed A.W. or Reesor, nor did he

       express an opinion as to the truth of their statements. Instead, Detective Parker

       merely explained that he was present at both A.W.’s forensic interview and

       Reesor’s interview and heard facts from each of them that matched. Detective

       Parker did not say that the molestation happened; rather, as many detectives

       do, he observed two statements and deduced facts from the two statements that

       matched. Contrary to Reesor’s argument on appeal, this is not “the functional

       equivalent of saying [A.W.] is telling the truth.” Appellant’s Reply Br. p. 5.

       Detective Parker did not vouch for A.W. Accordingly, we find no error.1


                                                II. Sentencing
[14]   Reesor also argues that the trial court erroneously used an element of the crime

       of Level 1 felony attempted child molesting—A.W.’s age—as an aggravator

       when it sentenced him to the advisory term of thirty years for Count I. See Ind.

       Code § 35-50-2-4(c). Sentencing decisions are within the sound discretion of

       the trial court and are reviewed on appeal only for abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). We will only remand for resentencing if we cannot say with




       1
        In light of this conclusion, we do not need to address the State’s argument that Reesor “opened the door” to
       vouching testimony by attacking A.W.’s credibility.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018           Page 9 of 11
       confidence that the trial court would have imposed the same sentence. Id. at

       491.


[15]   While the victim being under twelve years of age can be an aggravator, see Ind.

       Code § 35-38-1-7.1(a)(3), when the age of a victim constitutes a material

       element of the crime, the trial court cannot treat it as an aggravating

       circumstance unless it sets forth particularized circumstances justifying such

       treatment, McCoy v. State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018). Here, because

       the trial court did not set forth any such particularized circumstances, we must

       conclude that the trial court erred in identifying A.W.’s age as an aggravator.


[16]   Nonetheless, we are confident that the trial court would have imposed the same

       sentence even without that aggravator. First, the trial court found two

       additional aggravators, neither of which Reesor challenges on appeal.

       Specifically, the trial court found that Reesor had a criminal history and that as

       A.W.’s babysitter, Reesor was in a position of care, custody, or control and

       alone with A.W. for long hours at night. Second, Reesor’s sentence for Count I

       is already on the low end for a Level 1 felony. The advisory sentence for a

       Level 1 felony is thirty years, and the minimum sentence is twenty years. Ind.

       Code § 35-50-2-4. Moreover, for a Level 1 felony the trial court can suspend

       only the portion of a sentence that is above the minimum. See Ind. Code § 35-

       50-2-2.2(e). In other words, Reesor must serve twenty years for being convicted

       of a Level 1 felony, and that is what the trial court ordered: thirty years with

       twenty years to serve and ten years suspended to probation. Therefore, the only

       remedy if we were to reverse would be modifying the length of the suspended

       Court of Appeals of Indiana | Memorandum Decision 10A01-1712-CR-2790 | October 5, 2018   Page 10 of 11
       portion of Reesor’s sentence. Reesor gives us no reason to think the trial court

       would do so, especially in light of his prior felony conviction. Accordingly, we

       decline to remand for resentencing, and we affirm Reesor’s sentence for

       Count I.


[17]   Affirmed.


       Riley, J., and Kirsch, J., concur.




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