FOR PUBLICATION
Jul 29 2014, 10:26 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN KNECHT GREGORY F. ZOELLER
Vonerheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RYAN E. BEAN, )
)
Appellant-Defendant, )
)
vs. ) No. 91A02-1310-CR-912
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WHITE SUPERIOR COURT
The Honorable Robert B. Mrzlack, Judge
Cause No. 91D01-1012-FA-157
July 29, 2014
OPINION – FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
After this Court reversed Ryan E. Bean’s Class A felony child-molesting
conviction, Bean was retried and convicted a second time. He received a thirty-year
sentence. On appeal, Bean argues that fundamental error occurred at his retrial. Bean’s
retrial, which turned on the uncorroborated testimony of the alleged child victim, was
tainted by vouching testimony and troubling prosecutorial misconduct, making a fair trial
impossible. We therefore reverse.
Facts and Procedural History
In 2001, Bean’s ex-wife, Stacey Bean, gave birth to their daughter, H.B. Stacey
and Bean separated in 2008. In 2010, Stacey moved in with her new boyfriend, Zachary
Roark.
In August 2010, Stacey and Zachary noticed H.B. masturbating in the presence of
other family members. After talking to H.B., Stacey called authorities. Darrel
Noonkester, a regional investigator with the Indiana Department of Child Services,
interviewed H.B. H.B. was also examined at Riley Hospital for Children in Indianapolis.
Bean was interviewed by authorities, including White County Sheriff Patrick
Shafer. After being advised of his Miranda rights, Bean unequivocally invoked his right
to counsel. The police did not honor his request. Although Bean repeatedly denied
molesting H.B., he later confessed after hours of questioning.
At his trial for molesting H.B., Bean filed a motion to suppress his confession to
police, but his motion was denied.1 Bean was ultimately convicted of Class A felony
1
The State also charged Bean with molesting M.S., his niece. The charges were severed, and
Bean was tried and convicted of one count of Class A felony child molesting for M.S. That conviction
2
child molesting. His conviction was reversed by this Court a year later, due to the
violation of his Miranda rights. Bean v. State, 973 N.E.2d 35, 45 (Ind. Ct. App. 2012)
(“Bean’s confession was obtained in violation of Miranda protocol and should not have
been admitted into evidence . . . .”), trans denied. Bean was retried in 2013.
Before the retrial began, defense counsel sought a motion in limine with respect to
vouching testimony, seeking to prohibit “Noonkester, particularly, from [] saying things
like ‘I believe her,’ or ‘she’s credible.’” Tr. p. 11. The trial court granted counsel’s
request. Id. at 13.
Stacey was the first witness to testify at Bean’s retrial. When asked why she
called authorities after speaking to H.B., Stacey replied that “we believed that . . . after
we talked to [H.B.], that her father, Ryan Bean, had molested her.” Id. at 46. Later,
when asked if she believed that Bean “had done something” to H.B., Stacey said yes. Id.
at 47. The State also called Dr. Roberta Hibbard, a pediatric doctor at Riley Hospital for
Children, to testify about her physical examination of H.B. Dr. Hibbard explained that
H.B.’s exam was normal, and neither proved nor disproved that H.B. had experienced
sexual contact. Id. at 60-61.
H.B., eleven years old at the time of Bean’s retrial, also testified. H.B. described
being molested by her father when she was five or six years old, saying that he tried
many times to put his penis in her vagina. Id. at 76-77, 81. H.B. also testified that she
watched pornography with Bean and Bean made her put her mouth on his penis, which
made her vomit. Id. at 79-80. Bean would also kiss H.B. and put his tongue in her
was reversed by this Court in Bean v. State, 973 N.E.2d 35, 45 (Ind. Ct. App. 2012), trans denied, due to
violations of Bean’s Miranda rights. In 2012, Bean pled guilty to Class C felony child molesting with
respect to M.S. and received a six-year executed sentence.
3
mouth. Id. at 81-82. According to H.B., Bean did these things when her mother Stacey
was not home, and Bean made H.B. promise not to tell anyone what happened. Id. at 78-
80-83.
Noonkester, a regional DCS investigator, testified next. Noonkester spoke at
length about the investigatory process, describing how he substantiates allegations of
child molestation:
After all of the pieces of the puzzle come together, then a conclusion is
drawn. I draw a conclusion [as] to my belief, did it happen, did it not
happen, whatever the allegation may be. After I’ve made that decision, it is
reviewed by my supervisor or my director in Carroll County. That director
either agrees or disagrees with my finding. Once the conclusion is set in
stone, it is agreed upon by myself and the director, its reviewed in Carroll
County by what is called a child[-]protection team. Once a child[-
]protection team comes together, [] the case and the investigation is
presented to that governing body. And a child[-]protection team is set up
and legislated by statute or Indiana law, who needs to be present or who
needs to be on this board. That team then will either agree or disagree with
the findings, and if they agree, generally the next steps of safety are put into
place, referral to a prosecutor. If they disagree, they may not suggest that
certain other evidentiary steps take place, at which time we follow their
direction.
Id. at 117 (emphasis added). Noonkester explained that after interviewing H.B., he “drew
the conclusion to substantiate the allegation, and it was upheld by our director and agreed
with by the child[-]protection team.” Id. at 125. He also stated that H.B. was referred to
Riley Hospital for Children and to another facility for counseling. Id.
Noonkester also described looking for signs that a child has been coached. The
prosecutor asked Noonkester if he “observ[ed] any signs of inaccuracy or coaching”
during his interview with H.B. Id. at 122. Defense counsel objected, citing Indiana
4
Evidence Rule 404(b).2 Id. at 122-23. The trial court overruled the objection, and
Noonkester said he did not. Id. at 123. The prosecutor then asked Noonkester if H.B.
“was based in reality or fantasy,” and Noonkester responded that she was “based in
reality.” Id. Noonkester also stated that he did not believe H.B. was fantasizing or
exaggerating. Id. at 124.
Sheriff Shafer—who interviewed Bean before his 2010 trial—was the final
witness to testify. Before he took the stand and outside the jury’s presence, defense
counsel sought a limiting instruction:
The court’s well aware that the interview [was] suppressed [by the] Court
of Appeals. I think it’s improper for the State to bring up any mention of
an interview. That’s the very object that caused this retrial [sic] that we’re
doing this case for the second time. It would be our contention that the
court should limit the testimony of any officer involved in this investigation
and probably should be instructed not to talk about an interview taking
place with [Bean]. We’re going to get into something that cannot be
brought up. I understand that if I were to cross-examine the officer and talk
about an interview, that I think that opens up the door to potentially letting
that evidence in. Likewise, the State should be precluded from mentioning
an interview due to the fact that it’s already been deemed illegal and
suppressed by the Court of Appeals . . . .
2
Indiana Evidence Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence 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.
(2) Permitted Uses; Notice in a Criminal Case. 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.
5
Id. at 104-05. The prosecutor disagreed, arguing that Sheriff Shafer should be able to
testify that he interviewed Bean because “the jury has a right to understand the process of
an investigatory process.” Id. at 105. The judge disagreed, probing further:
THE COURT: How is that relevant?
PROSECUTOR: The fact that he was interviewed?
THE COURT: Uh-huh.
PROSECUTOR: Why is it relevant that he was investigated to begin
with? That’s why we’re here.
THE COURT: I appreciate that. I think it’s relevant to indicate that
yes, the police were called, they did certain things, but
if they did something that was illegal, how is that
relevant to the jury?
PROSECUTOR: But they didn’t do anything that was illegal. To
interview [Bean] was not illegal.
THE COURT: He invoked his right against self-incrimination, and
they chose to continue questioning him beyond that.
PROSECUTOR: I’m not interested in that.
THE COURT: I appreciate that. Then are you interested in the fact
that he initially denied everything?
PROSECUTOR: I’m not interested in the contents of the interview at
all.
THE COURT: I know, but you’re giving the impression that
something was said either way, which penalizes a
defendant for claiming his right—or invoking his right
against self-incrimination.
PROSECUTOR: And I appreciate that and I understand all that, but
there is a process that police go through in child
molestation cases.
THE COURT: Sure.
6
PROSECUTOR: And the interview process is one of them. If I ask the
officer, what steps do you take in substantiating an
allegation of molestation, they will say, we do this, we
do this, we attempt to interview the defendant. Did
you interview the defendant in this case? Yes, we did.
Was he then placed under arrest? Yes, he was. That’s
the process.
THE COURT: And if the defendant had invoked his right to remain
silent at the beginning of that interview, you would not
be allowed to make that—you would not even be
allowed to question the officers about that.
PROSECUTOR: Why?
THE COURT: Huh?
PROSECUTOR: Why?
THE COURT: Because Indiana Rule—Evidence Rule 501(c)
provides, “Comment or inference not permitted, the
claim of privilege whether in the present preceding or
upon a prior occasion is not a proper subject or
comment by judge or counsel. No inference may be
drawn therefrom. Claiming privilege without
knowledge of a jury, in jury cases, proceedings shall
be conducted to the extent practicable so as to facilitate
the making of claims of privilege without the
knowledge of the jury.”
PROSECUTOR: No. I have no intention of saying that he claimed –
THE COURT: It’s creating an inference, though, that one way or
another [Bean’s] being penalized because we’re not
telling the jury everything. It’s fundamentally unfair.
Id. at 105-08.
The trial court expressly prohibited any “reference that the investigation included
attempting to interview the defendant, interviewing the defendant, or the results of any
investigation occurring during the course of the investigation,” saying it was “not
7
relevant and would be in violation of [Bean’s] Fifth Amendment right to not incriminate
himself.” Id. at 110. Despite this, the prosecutor inquired about Sheriff Shafer’s pretrial
investigation methods:
PROSECUTOR: So, what do you do?
SHERIFF: Well, you have an interview that’s done with the
victim, and based on that information that’s gathered
during that interview, normally other individuals come
into play. You go and interview those individuals, and
eventually it leads you to a person of interest that’s
involved in it, and then you look them up and
interview them.
PROSECUTOR: Did there come a time while you were a detective of
the White County Sheriff’s Department that you
became involved with allegations of molestation
involving [Bean and] [H.B.]?
SHERIFF: Yes.
* * * * *
PROSECUTOR: And did you follow the investigatory process that you
just described?
SHERIFF: I did.
PROSECUTOR: And was [Bean] eventually arrested?
SHERIFF: Yes.
Id. at 130-31.
The final day of Bean’s retrial was September 11, 2013. The prosecutor began his
closing argument by noting the date: “Today is a day of mourning for our nation. I hope
we all put that in our hearts. Child molestation, ugly subject, ugly thing. Disgusting. No
one wants to think about it. But that’s what we have to do, and you’re going to have to
8
do [it].” Id. at 137. As he continued, he stated that “seventy percent of females have
been abused. Most go unreported. This happened. Unfortunately.” Id. at 140. Finally,
in closing, the prosecutor told the jurors that “we know what happened” because “Sheriff
Shafer, Darrel Noonkester, and the child[-]protective agency substantiated, and you know
that Mom and [Mom’s boyfriend] believe what [H.B.] told them back in 2010.” Id. at
141.
The jury convicted Bean of Class A felony child molesting.3 The court sentenced
Bean to thirty years in the Department of Correction.
Bean now appeals.
Discussion and Decision
On appeal, Bean contends that two witnesses were permitted to improperly vouch
for H.B.’s credibility and the prosecutor committed misconduct. He argues that the
cumulative effect of vouching testimony and prosecutorial misconduct amounts to
fundamental error.
I. Standard of Review
Bean acknowledges that he did not preserve his claims of error by raising proper
objections at trial; thus, he must establish that fundamental error occurred.4
3
At the beginning of Bean’s retrial, the State added a new charge, Class B felony incest, and the
jury convicted Bean of this as well. Due to double-jeopardy concerns, the trial court merged the Class B
felony incest conviction into Bean’s Class A felony child-molesting conviction. The abstract of judgment
did not enter judgment on the incest count. Appellant’s App. p. 144.
4
Bean frames two issues as exempt from fundamental-error review. See Appellant’s Br. p. 10-
12. When the prosecutor asked Noonkester if he “observ[ed] any signs of inaccuracy or coaching” during
his interview with H.B, Noonkester said he did not. Tr. p. 122. Defense counsel then objected based on
Indiana Evidence Rule 404(b). Id. On appeal, Bean states that counsel “misspoke and intended to object
under [Indiana Evidence Rule] 704(b).” Appellant’s Br. p. 12. Later, when Noonkester was asked if he
believed H.B. was fantasizing or exaggerating, counsel objected because the question “called for an
9
“Fundamental error is an extremely narrow exception to the waiver rule where the
defendant faces the heavy burden of showing that the alleged errors are so prejudicial to
the defendant’s rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663,
668 (Ind. 2014) (quotation and citations omitted).
I. Vouching Testimony
Bean first argues that Stacey and DCS investigator Noonkester impermissibly
vouched for H.B.’s credibility.
Vouching testimony is specifically prohibited under Indiana 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.” This testimony is considered an “invasion of
the province of the jurors in determining what weight they should place upon a witness’s
testimony.” Kindred v. State, 973 N.E.2d 1245, 1257 (Ind. Ct. App. 2012) (citation
omitted), trans. denied.
A. Stacey Bean
During her testimony, when asked why she called authorities after speaking to
H.B., Stacey replied that “we believed that . . . after we talked to [H.B.], that her father,
Ryan Bean, had molested her.” Later, when asked if she believed that Bean “had done
something” to H.B., Stacey said yes. In making these statements, Stacey impermissibly
vouched for H.B.’s credibility and invaded the province of the jury. See Hoglund v.
opinion.” Tr. p. 124. A party may not object on one ground at trial and raise
a different ground on appeal. White v. State, 772 N.E.2d 408, 411 (Ind. 2002) (citation omitted). Because
Bean did not lodge specific 704(b) vouching objections at trial, his claims on that basis are waived for
review unless he can establish fundamental error.
10
State, 962 N.E.2d 1230, 1238 (Ind. 2012) (a witness may not vouch for a child by stating
“I believe the child’s story,” or “In my opinion the child is telling the truth[.]”), reh’g
denied; see also Guiterrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012)
(testimony of sexual-assault nurse that she believed alleged child victim was telling the
truth regarding alleged assault was improper vouching testimony).
B. Darrel Noonkester
Bean also challenges DCS investigator Noonkester’s testimony. Bean argues that
Noonkester’s testimony about the investigation and his statements about H.B.’s
credibility constituted improper vouching.
Noonkester testified at length regarding the investigatory process, and in doing so,
he described how he substantiates allegations of child molestation:
After all of the pieces of the puzzle come together, then a conclusion is
drawn. I draw a conclusion [as] to my belief, did it happen, did it not
happen, whatever the allegation may be. After I’ve made that decision, it is
reviewed by my supervisor or my director in Carroll County. That director
either agrees or disagrees with my finding. Once the conclusion is set in
stone, it is agreed upon by myself and the director, its reviewed in Carroll
County by what is called a child[-]protection team. Once a child[-
]protection team comes together, [] the case and the investigation is
presented to that governing body. And a child[-]protection team is set up
and legislated by statute or Indiana law, who needs to be present or who
needs to be on this board. That team then will either agree or disagree with
the findings, and if they agree, generally the next steps of safety are put into
place, referral to a prosecutor. If they disagree, they may not suggest that
certain other evidentiary steps take place, at which time we follow their
direction.
Tr. p. 117 (emphasis added). Noonkester explained that after interviewing H.B., he
“drew the conclusion to substantiate the allegation, and it was upheld by our director and
11
agreed with by the child[-]protection team.” He also stated that H.B. was referred to
Riley Hospital for Children for an examination and to another facility for counseling.
This Court has held that testimony that a claim has been substantiated constitutes
an opinion regarding the truth of the allegations, thereby violating Indiana Evidence Rule
704(b). See Bradford v. State, 960 N.E.2d 871, 876-77 (Ind. Ct. App. 2012). In
Bradford, a DCS caseworker testified, over the defendant’s objection, as follows:
Uh, when we receive a new report, we have to determine whether to
substantiate abuse, which means that we believe that abuse and neglect
occurred, or we can unsubstantiate it, which means we don’t feel that
there’s enough evidence to say that abuse or neglect occurred. Regarding
this report with [the child victim], I substantiated sexual abuse, meaning
our office feels that there was enough evidence to conclude that sexual
abuse occurred.
Id. at 874. On appeal, we concluded that the caseworker’s testimony improperly
addressed the truthfulness of the allegations and invaded the province of the jury in
violation of Indiana Evidence Rule 704(b). We reached the opposite conclusion in
Heinzman v. State, 970 N.E.2d 214 (Ind. Ct. App. 2012), trans. granted, vacated in part,
and summarily aff’d in part, where a witness gave quite different testimony about
substantiation:
Q: Would it be a proper statement to say that when you substantiate a
case you find a reason to believe the allegations may have some
factual foundation?
A: Yes, that would be correct.
Q: So there’s no way for you to tell or to say whether or not at that
point in time that they are absolutely beyond doubt true, but they
have a foundation upon which to proceed with further investigation?
A: That’s correct.
12
Q: Okay. And if you had unsubstantiated it, then there would have been
no basis for further investigation as far as your department was
concerned; is that correct?
A: That’s correct.
(formatting altered). We distinguished this testimony from that in Bradford, explaining
that in Bradford, while the caseworker’s testimony did not directly vouch for the
truthfulness of the victim’s testimony, it constituted an opinion regarding the truth of the
allegations, because she testified that she had interviewed the victim and others and
concluded that the victim had been sexually abused. But in Heinzman, the witness
explained that “substantiated” simply meant that the allegations had a foundation upon
which to proceed with further investigation, whereas an unsubstantiated report meant that
there was no basis for further investigation. Id. at 222.
Noonkester’s testimony more resembles that in Bradford than in Heinzman.
Noonkester testified that after conducting his investigation, he “draw[s] a conclusion [as]
to my belief, did it happen, did it not happen, whatever the allegation may be,” and he
later stated that his decision to substantiate the allegations against Bean was upheld by his
supervisor and a child-protection team. Noonkester’s explanation of substantiation was
simple: “did it happen, did it not happen[.]” So when he testified that he substantiated the
allegations against Bean, it sent a clear message to the jury—Noonkester believed H.B.’s
allegations against Bean. In making these statements, Noonkester impermissibly
vouched for H.B.’s credibility.
Finally, in response to a question of whether H.B. “was based in reality or
fantasy,” Noonkester responded that she was “based in reality.” Noonkester also stated
13
that he did not believe H.B. was fantasizing or exaggerating. Testimony concerning
exaggeration or fantasy is the equivalent of testimony about truthfulness. See Hoglund,
962 N.E.2d at 1236 (“[W]e conclude that testimony concerning whether an alleged child
victim ‘is not prone to exaggerate or fantasize about sexual matters’ . . . is an indirect but
nonetheless functional equivalent of saying the child is ‘telling the truth.’”). By
testifying that H.B. was based in reality, not fantasy, and that he did not believe that H.B.
was fantasizing or exaggerating, Noonkester essentially testified that H.B. was telling the
truth, and again impermissibly vouched for H.B.’s credibility.5
II. Prosecutorial Misconduct
Bean also argues that the prosecutor committed misconduct by eliciting certain
testimony from Sheriff Shafer and in certain statements made during closing argument.
Having failed to preserve his prosecutorial-misconduct claims for appeal,6 Bean must
establish both the grounds for prosecutorial misconduct and the grounds for fundamental
error to succeed on his claim. See Ryan, 9 N.E.3d at 667-68. When determining whether
prosecutorial misconduct has occurred, we first determine whether misconduct has in fact
occurred, and if so, “whether the misconduct, under all of the circumstances, placed the
5
Bean also challenges Noonkester’s testimony about coaching. In Kindred, we held that a
witness may provide general testimony about the signs of coaching in a child victim and may also testify
about whether any such signs were observed in the alleged victim. 973 N.E.2d at 1258. In this case, the
prosecutor asked Noonkester if he “observ[ed] any signs of inaccuracy or coaching” when he interviewed
H.B., and Noonkester said he did not. In giving this response, Noonkester did not directly comment upon
H.B.’s credibility. Rather, the information he provided allowed the jury to assess H.B.’s credibility and
did not take the direct form of “I believe the child’s story,” or “In my opinion the child is telling the
truth.” See Hoglund, 962 N.E.2d at 1238. This particular testimony did not constitute improper
vouching.
6
Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a
defendant must not only raise a contemporaneous objection, but he must also request an admonishment
and, if the admonishment is not given or is insufficient to cure the error, then he must request a mistrial.
Lainhart v. State, 916 N.E.2d 924, 931 (Ind. Ct. App. 2009). Bean did none of these things.
14
defendant in a position of grave peril to which he or she would not have been subjected
otherwise.” Id. (citations omitted).
Before Sheriff Shafer—who interviewed Bean before his first trial—took the
stand, the trial court expressly prohibited any “reference that the investigation included
attempting to interview the defendant, interviewing the defendant, or the results of any
investigation occurring during the course of the investigation,” saying it was “not
relevant and would be in violation of [Bean’s] Fifth Amendment right to not incriminate
himself.” Nonetheless, the State elicited testimony from Sheriff Shafer regarding Bean’s
pretrial interview by inquiring about his investigatory procedure:
PROSECUTOR: So, what do you do?
SHERIFF: Well, you have an interview that’s done with the
victim, and based on that information that’s gathered
during that interview, normally other individuals come
into play. You go and interview those individuals, and
eventually it leads you to a person of interest that’s
involved in it, and then you look them up and
interview them.
PROSECUTOR: Did there come a time while you were a detective of
the White County Sheriff’s Department that you
became involved with allegations of molestation
involving the Defendant [and] [H.B.]?
SHERIFF: Yes.
* * * * *
PROSECUTOR: And did you follow the investigatory process that you
just described?
SHERIFF: I did.
PROSECUTOR: And was [Bean] eventually arrested?
15
SHERIFF: Yes.
Tr. p. 130-31. Bean argues that the prosecutor committed misconduct by eliciting this
testimony. The State argues that this testimony—and other testimony from the sheriff—
was relevant and proper as course-of-investigation evidence.
This Court, our Supreme Court, and federal courts have been skeptical of attempts
by the State to introduce course-of-investigation evidence. See Kindred, 973 N.E.2d at
1253-54. While the need for this evidence is slight, the potential for misuse is great.
Id. at 1253 (citing 2 McCormick on Evidence § 249 (4th ed. 1992)). “Statements offered
to show background or the course of the investigation can easily violate a core
constitutional right, are easily misused, and are usually no more than minimally
relevant.” Id. at 1255 (quotation omitted). Course-of-investigation evidence is generally
irrelevant in that it does not make it more or less probable that the defendant committed
the act alleged. Id.
The fact that Sheriff Shafer normally interviews persons of interest and
interviewed Bean in this investigation does not make it more or less probable that Bean
molested H.B. And notably, the development and quality of the sheriff’s investigation
were not in issue. But most importantly, Sheriff Shafer’s testimony invited the jurors to
speculate about what occurred during his interview with Bean—it implied either that he
interviewed Bean and that Bean was silent or that Bean spoke during the interview but
for some unknown reason, jurors were not permitted to hear what he said. Both
implications were improper—a prosecutor may not make a statement that a jury may
reasonably interpret as an invitation to draw an adverse inference from a defendant’s
16
silence, Huls v. State, 971 N.E.2d 739, 744 (Ind. Ct. App. 2012) (citation omitted), trans.
denied, and this Court had already held that Bean’s Fifth Amendment rights were
violated during his pretrial interview, making the substance of the interview inadmissible.
The prosecutor committed misconduct in eliciting this testimony.
Bean also argues that the prosecutor committed misconduct in closing argument.7
During closing argument, the prosecutor told jurors that “we know what happened”
because “Sheriff Shafer, Darrel Noonkester, and the child[-]protective agency
substantiated, and you know that Mom and [Mom’s boyfriend] believe what [H.B.] told
them back in 2010.” The record shows—and the State admits on appeal—that Sheriff
Shafer was never involved in any decision to substantiate the allegations against Bean,
which made this statement inaccurate and misleading. And as we have already
concluded, the referenced testimony from Noonkester and Stacey amounted to improper
vouching. By reinforcing this vouching testimony in closing argument, the prosecutor
essentially told the jury that other people believed H.B., so they should too. See Gaby v.
State, 949 N.E.2d 870, 881 (Ind. Ct. App. 2011) (prosecutor improperly vouched for
victim when telling the jury that the prosecutor and the police believed the victim,
7
We reject two of Bean’s claims of error in this context. During closing argument, the
prosecutor reminded the jurors that it was September 11. This was not misconduct—the prosecutor did
not suggest that Bean was a terrorist, nor did he make a connection or comparison between Bean’s crimes
and terrorism. See Baer v. State, 942 N.E.2d 80, 110 n.8 (Ind. 2011) (no misconduct where “the
prosecutor did not directly compare Baer to the perpetrators of the September 11 terrorist attacks . . . .”),
reh’g denied. The prosecutor also stated that seventy percent of women have been abused but fail to
report that abuse. The prosecutor also suggested that failure to report occurred in this case. While not
supported by any evidence—the State admits as much—when considered in the context of the argument
as a whole, which we must do, we cannot say it placed Bean in a position of grave peril. The statement
was part of the larger argument the prosecutor was trying to make about delays or omissions in reporting,
and this theory was reinforced by various witnesses throughout Bean’s trial.
17
therefore the jury should too). This was improper, particularly in light of the fact that
H.B.’s credibility was the central issue in this case.
III. Cumulative Error
Bean contends that the above instances of vouching testimony and prosecutorial
misconduct, when viewed cumulatively, resulted in fundamental error. We agree.
We are mindful of our Supreme Court’s recent caution that the fundamental-
error doctrine is meant to correct only the most egregious trial errors. See Ryan, 9 N.E.3d
at 668. But Ryan involved only one instance of prosecutorial misconduct, and the
evidence against the defendant was overwhelming. Here, we have two instances of
prosecutorial misconduct—one of which is particularly troubling—and significant
vouching testimony. By eliciting testimony about Bean’s pretrial interview, the
prosecutor did not merely stumble into error; despite being warned, he defied the trial
court’s instructions. In addition, two key witnesses—the alleged victim’s mother and the
DCS investigator—vouched for the alleged victim’s credibility and invaded the province
of the jury. The prosecutor reinforced this vouching testimony in closing argument,
telling the jurors that numerous other people believed the alleged victim and suggesting
that they should as well. Notably, unlike Ryan, Bean’s retrial hinged on the
uncorroborated testimony of the alleged victim. For these reasons, Bean was denied a
fair trial.8
8
Bean may be retried. When determining whether retrial is permissible, we consider all of the
evidence admitted at trial, including the erroneously admitted evidence. Kindred, 973 N.E.2d at 1259
(citation omitted). “If, viewed as a whole, that evidence would have been sufficient to sustain the
judgment, retrial would not offend double jeopardy principles.” Id. The uncorroborated testimony of a
child victim is sufficient to support a conviction for child molesting. Id. Because H.B.’s testimony would
be sufficient to justify a conviction, jeopardy has not attached.
18
Reversed.
NAJAM, J., and BROWN, J. concur.
19