MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be Oct 15 2015, 8:08 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ricardo Minney, October 15, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1503-CR-172
v.
Appeal from the Marion
Superior Court
State of Indiana,
The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
The Honorable Anne M.
Flannelly, Magistrate
Trial Court Cause No.
49G04-1406-FA-33132
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Ricardo Minney (Minney), appeals his conviction and
sentence for Counts I-II, child molesting, Class A felonies, Ind. Code § 35-42-4-
3(a)(1) (2013); and Count IV, child molesting, a Class C felony, I.C. § 35-42-4-
3(b) (2013).
[2] We affirm.
ISSUES
[3] Minney raises two issues on appeal, which we restate as:
(1) Whether the trial court committed a fundamental error by admitting certain
testimonies at trial; and
(2) Whether Minney’s sentence is inappropriate in light of the nature of the
offenses and his character.
FACTS AND PROCEDURAL HISTORY 1
[4] T.P. (Father) and J.H. (Mother) are the biological parents of J.P., born on April
25, 2007. In 2008, Father and Mother ended their relationship, and Mother
1
In accordance with the revised Administrative Rule 9(G), certain evidence was submitted to our court
which is declared confidential and must be excluded from public access. Because a number of facts derived
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became the custodial parent. Parenting time was set in accordance with the
Indiana Parenting Time Guidelines. Thereafter, Father married L.P. and they
had two children, a son and a daughter. J.P. would visit with Father and L.P.
every other weekend, a day in the course of the week, and during school
vacations. Sometime in 2010 or 2011, Mother began a romantic relationship
with Minney, and shortly thereafter, the two moved in together. J.P. was fond
of Minney and she referred to him as her “stepdad.” (Transcript p. 31). During
that time, Mother changed her work schedule where she worked from 1:00 a.m.
to 9:00 a.m. For the times she was at work, Mother would leave J.P. under her
parents’ care or under Minney’s supervision.
[5] On one occasion, while Mother was at work, J.P. was sitting on Minney’s lap
in the living room. Minney took off J.P.’s pants and underwear and then put
his lips on J.P.’s “private part,” which J.P. referred to as the “front” where
“little girls use to pee.” (Tr. p. 32). According to J.P., Minney moved his
tongue around her private area and J.P. felt like Minney was “sucking on it.”
(Tr. p. 33). Another time, Minney put J.P.’s mouth on his “private part.” (Tr.
p. 36). According to J.P., Minney’s private part was the area that “little boys
from the confidential records are “essential to the resolution of litigation[,]” we have included confidential
information in this decision only to the extent necessary to resolve this appeal. Admin. R. 9(G)(7)(a)(ii)(c).
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use to pee.” (Tr. p. 37). J.P. also described Minney’s penis as “brown and
cylinder shape” which was “[h]ard.” (Tr. p. 36). Both events occurred when
J.P. was six years old. On another occasion, Minney was lying on the couch,
with J.P. sitting close to his penis. According to J.P., Minney had his hands
around her hips.
[6] Sometime after the above incidents, J.P. disclosed to Mother that Minney had
touched her, but Mother failed to act on J.P.’s complaint. According to the
probable cause affidavit, the above incidents made J.P. act out in a sexualized
manner, such as kissing girls at school and asking them if they wanted to have
sex with her. Also, while at Father’s and L.P.’s house, J.P. touched her two-
year-old half-sister’s private parts. Troubled by J.P.’s aberrant behavior, on
March 31, 2014, L.P. questioned J.P. if anyone had “done something” to her.
(Tr. p. 42). Mentioning each name at a time, L.P provided Father’s, Mother’s,
Minney’s and her own. J.P. answered in the negative on all names, but she
wavered on Minney’s name. J.P. was afraid that she would get Minney into
trouble. After further convincing, J.P. divulged to L.P. that Minney had
touched her inappropriately. The disclosure left J.P. feeling worse, and she
remained in the bedroom for a while. L.P. reported to Father that Minney had
molested J.P.
[7] Acting on the allegations, Father summoned Mother and Mother’s extended
family for an emergency family meeting. The purpose of the meeting was to
inquire about J.P.’s assertions, or if anyone had “seen any red flags or heard
anything” that would allow Father to believe J.P.’s claims. (Tr. p. 61). The
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meeting did not yield any results, but it was agreed that they would all keep an
eye on J.P. After the meeting, Father went home where he picked up J.P. and
took her to the hospital for an evaluation. The hospital contacted Department
of Child Services (DCS). DCS Family Case Manager Michelle Tackette (FCM
Tackette) arrived at the hospital and took a report. The report was then sent to
DCS Forensic Interviewer, Laura Fuhrmann (Fuhrmann), who interviewed
J.P. on April 3, 2014. During the fifteen-minute video recorded interview, J.P.
disclosed to Fuhrmann that Minney had molested her. FCM Tackette was
watching the interview in another room across the hallway. After the
interview, DCS contacted Detective Nicolle Lynn (Detective Lynn) of the
Indianapolis Metropolitan Police Department and provided her with J.P.’s
report.
[8] On June 25, 2014, the State filed an Information, charging Minney with Count
I, II, and III, child molesting, Class A felonies; and Count IV, child molesting,
a Class C felony. A jury trial was held on February 19, 2015. The State sought
to introduce Father’s, Mother’s, L.P.’s, and J.P.’s testimony, as well as
Fuhrmann’s interview of J.P. and Detective Lynn’s testimony.
[9] During the trial, Fuhrmann stated that she is trained to interview children who
have allegedly been sexually abused. Fuhrmann stated she used “Finding
Words/Child First Protocol” methodologies to conduct the interview. (Tr. p.
118). She explained that the methods involve building a rapport with the child;
making the child feel comfortable; talking about the child’s family; and going
over an anatomical diagram with body parts where the child points out what
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parts are acceptable to touch and those that are not. Fuhrmann’s observation of
J.P. during the interview was that she “was very calm and able to communicate
about what had happened. She felt comfortable in the room and was able to
talk with me.” (Tr. p. 122). Also, Fuhrmann stated that J.P.’s assertions of the
molestation were “pretty consistent.” (Tr. p. 124). Detective Lynn testified
that her investigation involved viewing J.P.’s video recorded interview and also
questioning FCM Tackette, Mother, Father, and J.P.’s extended family.
Detective Lynn stated that formal charges do not always arise from an
investigation; however, in this case, they did.
[10] At the close of the evidence, Minney moved for a directed verdict on Count III,
arguing that there were only two potential acts of sexual deviate conduct which
were covered in Counts I and II. After hearing arguments from both sides, the
trial court granted Minney’s motion and dismissed Count III. Subsequently,
the jury found Minney guilty of Counts I, II, and IV. On March 2, 2015, the
trial court held Minney’s sentencing hearing where it merged Count IV into
Count I, and then sentenced Minney to an executed sentence of thirty years
each for both Class A felonies of child molesting in the Department of
Correction (DOC). Minney’s sentences were to run concurrently.
[11] Minney now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Admission of Evidence
[12] Minney first argues that it was fundamental error for the trial court to admit
Fuhrmann’s and Detective Lynn’s testimonies into evidence. We initially
observe that the decision to admit or exclude evidence is within a trial court’s
sound discretion and is afforded great deference on appeal. Carpenter v. State,
786 N.E.2d 696, 702 (Ind. 2003). An abuse of discretion occurs when the trial
court’s decision is clearly erroneous and against the logic and effect of the facts
and circumstances before it or it misinterprets the law. Id. at 703. When
reviewing the admissibility of evidence, we consider only the evidence in favor
of the trial court’s ruling and any unrefuted evidence in the defendant's favor.
Redding v. State, 844 N.E.2d 1067, 1069 (Ind. Ct. App. 2006).
[13] Because Minney did not object to the admission of this evidence at trial, he has
waived appellate review of this issue. See Manuel v. State, 793 N.E.2d 1215,
1218 (Ind. Ct. App. 2003), trans. denied. However, as noted above, Minney
attempts to preserve the issue, claiming that the trial court committed
fundamental error in admitting Fuhrmann’s and Detective Lynn’s testimonies
into evidence.
[14] The fundamental error exception is very narrow, and it arises only when there
are “clearly blatant violations of basic and elementary principles, and the harm
or potential for harm could not be denied.” Warriner v. State, 435 N.E.2d 562,
563 (Ind. 1982). To be fundamental error, the resulting error must deny the
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defendant fundamental due process. Id. In determining whether the error in
the introduction of evidence affected an appellant’s substantial rights, we assess
the probable impact of the evidence on the jury. Manual, 793 N.E.2d at 1219.
[15] Specifically, Minney argues that Fuhrmann’s and Detective Lynn’s testimonies
added no new factual evidence but were only offered to “vouch” and “bolster”
J.P.’s testimony. (Appellant’s Br. p. 6). Put differently, Minney argues that
their testimonies were the functional equivalent of telling the jury that J.P. was
telling the truth.
[16] Vouching testimony is generally 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.” Such testimony is an
invasion of the province of the jurors 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; Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App.
2012). It is essential that the trier of fact determine the credibility of the
witnesses and the weight of the evidence. Gutierrez, 961 N.E.2d at 1034.
[17] Minney cites to Hoglund v. State, 962 N.E.2d 1230, 1232 (Ind. 2012). In that
case, our supreme court observed that “[f]or over two decades our courts have
adhered to relaxed evidentiary rules concerning the testimony of children who
are called upon as witnesses to describe sexual conduct.” Id. In so doing,
Indiana had been part of a minority of jurisdictions that allow “some form of
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vouching of child witness testimony in child molestation cases.” Id. at 1235.
Disagreeing with the previous line of cases, the Hoglund court enunciated a new
rule:
[W]e expressly overrule that portion of Lawrence allowing for “some
accrediting of the child witness in the form of opinions from parents,
teachers, and others having adequate experience with the child, that
the child was not prone to exaggerate or fantasize about sexual
matters.” [Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984)]. This
indirect vouching testimony is little different than testimony that the
child witness is telling the truth.
Id. at 1237. More broadly, the court disallowed testimony by any witness,
whether lay or expert, that another witness—including a child witness—is or is
not telling the truth. Id.
[18] In the instant case, during direct examination, the State questioned Fuhrmann
as follows:
Q. [] How long did your interview with J.P. take?
A. It was approximately 15 minutes.
Q. Okay. During that interview, did she make a disclosure to you
with regard to sexual abuse involving [] Minney?
A. Yes.
Q. Okay. Did she at all sway back and forth in what she was telling
you during that interview?
A. No.
Q. Okay. Would you say she was pretty consistent in that time that
you talked to her?
A. Yes.
Q. Okay. And the technique that you previously described the
rapport building, open-ended questions, and is that the technique that
you used with her?
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A. Yes.
Q. Okay. And who observed this interview?
A. The caseworker, Michelle Tackett.
Q. Okay. What’s the purpose of that? Why have somebody observe?
A. My role in the interview is just to ask the questions and to gain the
information. I have no other role in the case other than just to do that.
Whereas, the caseworker, it’s her job then to assess and make any
determination of what the next steps will be. Also, when you have
someone observing the interview, if there is something that I may have
left out or something that I was unable to notice, she’s able to notice
that because two eyes are better than one.
Q. Got it. So you were just kind of collecting any information the
child will give you?
A. Yes.
(Tr. pp. 124-25).
Viewing Fuhrmann’s responses from the above excerpt, we do not believe that
they carry a vouching force. Fuhrmann’s role was to collect the information,
and make no assessment regarding the case. The closest Fuhrmann came in her
testimony to providing what Minney mischaracterizes as indirect vouching
would be Fuhrmann’s testimony that J.P.’s narration of Minney molesting her
was pretty consistent. Even if we were to assume that this was improper
vouching, we cannot agree that its admission resulted in fundamental error. At
issue in this case was the credibility of J.P., who was thoroughly questioned on
cross-examination and whose testimony did not waver from that given during
direct-examination. The testimony of a sole child witness is sufficient to sustain
a conviction of child molesting. Stewart v. State, 768 N.E.2d 433, 436 (Ind.
2002). In this regard, we conclude that Fuhrmann’s response that J.P.’s
testimony was consistent was not so prejudicial to Minney as to make a fair
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trial impossible. Minney has not established error in the admission of
Fuhrmann’s testimony regarding “vouching,” let alone fundamental error.
[19] With regards to Minney’s claim that Detective Lynn also vouched for J.P.’s
testimony, we note that during the State’s case-in-chief, the following exchange
took place between the State and Detective Lynn:
Q. You did watch the tape, right?
A. Yes, I did.
Q. And did you speak to anyone after that?
A. Yes.
Q. Who did you [] speak to[?] [F]amily members of J.P.?
A. Yes, I talked to the [DCS] worker. I also talked to [] [M]other,
[F]ather, her stepmother, maternal grandmother, paternal
grandmother, and her aunt.
Q. And eventually you screened the case, right?
A. That’s correct.
Q. And what is screening a case?
A. Screening a case basically means that I gather all the information
that I have about a case. So all of my interviews, any additional
evidence that I might have, and kind of put into a bundle [] and give it
to the prosecutor.
Q. And did you meet with the prosecutor to go over this case?
A. Yes, I did.
Q. Do [] formal charges result from every investigation []?
A. Absolutely not.
Q. And so formal charges were filed in this case, right?
A. Yes.
(Tr. pp. 140-41).
[20] Minney argues that Detective Lynn’s “statement that charges do not result from
every investigation but did from this one[,] implicitly informed the jury that the
evidence in this case, which consisted solely of the testimony of J.P., was
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worthy to [believe].” (Appellant’s Br. p. 8). Again we disagree. The jury
already knew that charges had been filed against Minney, otherwise there
would be no trial. Moreover, given the context of Detective Lynn’s
questioning, she did not specifically comment on any of the things precluded by
Rule 704(b). Detective Lynn’s response was an answer to a general question in
her role as an investigator; therefore, it cannot be said to be vouching. For the
foregoing reasons, Minney’s argument that Detective Lynn’s testimony
amounted to vouching also fails.
II. Inappropriate Sentence
[21] In his last argument, Minney claims that his concurrent thirty-year sentences for
the two Counts of child molesting is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) provides that we “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, [we find] that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” The burden is on the
defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
“Ultimately the length of the aggregate sentence and how it is to be served are
the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Whether we regard a sentence as appropriate at the end of the day turns on our
sense of the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other considerations that come to light in a
given case. Id.
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[22] The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,
1019 (Ind. 2012). For his Class A felonies, Minney faced a sentencing range of
twenty to fifty years, with the advisory sentence being thirty years. Ind. Code §
35-50-2-4. Here, the trial court imposed concurrent sentences of thirty years for
each Count.
[23] Turning to the nature of the offense, Minney argues that there was “no physical
harm to [J.P.,] and there was no allegation or suggestions that threats were
made.” (Appellant’s Br. p. 16). We find it offensive that Minney attempts to
diminish the seriousness of his offenses by claiming that J.P. suffered no serious
physical harm. Minney was Mother’s live-in boyfriend, and J.P. felt kinship
toward Minney as she regarded him as stepfather. While Mother was away at
work, Minney used J.P. to satisfy his sexual needs at least three times.
Additionally, the significant harm to J.P. as a result of these crimes makes
Minney’s offenses even more egregious. J.P. became increasingly sexual, in
that, she started kissing girls at school, and she also fondled her little sister’s
private parts. It is obvious that J.P. will suffer emotional scars that come with
losing her innocence at the hands of someone masquerading as her protector.
For these reasons, we cannot say that Minney’s sentence is inappropriate in
light of the nature of the offenses.
[24] With respect to Minney’s character, he notes to us that he has one prior juvenile
arrest. Minney further suggests that we take into account that he has no adult
criminal history, he had graduated from college, he was gainfully employed,
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and had otherwise lived a legally and morally commendable lifestyle. The fact
that he molested J.P. belies his claim to have been living a largely law-abiding
and moral life. Also, we find that even though Minney’s criminal history is
minor and that he was a productive member of society, he violated his position
of trust with J.P., and that speaks volumes of his unsavory character. See McCoy
v. State, 856 N.E.2d 1259, 1264 (Ind. Ct. App. 2006) (being in a position of trust
aggravates the charge of child molesting and concerns the character of the
offender). Here, Minney has failed to meet his burden in persuading us that his
sentence is inappropriate in light of his character.
[25] After due consideration of the evidence before us, including the fact that a
concurrent sentence was ordered in the instant case, we cannot say that
Minney’s thirty-year executed sentence is inappropriate in light of the nature of
the offenses and his character.
CONCLUSION
[26] Based on the foregoing, we conclude that (1) the trial court did not commit a
fundamental error by admitting Fuhrmann’s and Detective Lynn’s testimonies;
(2) Minney’s sentence is not inappropriate in light of the nature of the offenses
and his character.
[27] Affirmed.
[28] Brown, J. and Altice, J. concur
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