MEMORANDUM DECISION FILED
Apr 27 2017, 11:16 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Jennifer A. Joas Curtis T. Hill, Jr.
Joas & Stotts Attorney General of Indiana
Madison, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul W. Barnes, Sr., April 27, 2017
Appellant-Defendant, Court of Appeals Case No.
39A01-1610-CR-2313
v. Appeal from the Jefferson Circuit
Court
State of Indiana, The Honorable Darrell M. Auxier,
Appellee-Plaintiff Judge
Trial Court Cause No.
39C01-1506-F1-591
Crone, Judge.
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Case Summary
[1] Paul W. Barnes, Sr., appeals his convictions for two counts of level 1 felony
child molesting. He argues that the trial court abused its discretion in finding
that he opened the door to the admission of testimony vouching for the victim.
We conclude that Barnes did not open the door to the vouching testimony, but
that the error in admitting the testimony was harmless. Therefore, we affirm.
Facts and Procedural History
[2] Barnes is B.B.’s paternal grandfather. In February 2015, ten-year-old B.B. lived
with her younger brother and her mother. B.B.’s older brother lived with
Barnes. On Friday, February 20, B.B. and her younger brother went to spend
the weekend with Barnes. B.B.’s older brother left to spend the weekend with
his aunt.
[3] On Saturday, February 21, B.B. and her younger brother were playing video
games in the game room. Barnes called B.B. to his bedroom and closed the
door. He removed B.B.’s clothing and then took off his pants and underwear.
Barnes pushed up against B.B. and rubbed his penis inside and outside her
vagina. Barnes then placed her legs on his shoulders and told B.B. to “[f**ck]
me.” Tr. Vol. 2 at 68. Barnes also said, “[D]o you like this? … I bet you do.”
Id. B.B. “didn’t like it” and it “hurt.” Id. at 70, 73. B.B. told Barnes that she
wanted her mom. At one point, B.B.’s younger brother knocked on Barnes’s
bedroom door to see if B.B. could come back out and play video games. Barnes
told him that B.B. would come out in a little bit. After Barnes was finished, he
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used a towel or a shirt to wipe a “sticky” substance from B.B.’s thighs. Id. at
72. He also wiped off his “private area.” Id. B.B. got dressed and left the
room. She did not tell her younger brother what happened because “he was too
young.” Id. at 73.
[4] The next day, Barnes told B.B. to shower. After her shower and before she got
dressed, he told her to lie down on his bed. He pulled down his pants and
underwear and told her that he wanted to “do it one more time.” Id. at 78. He
repeated his actions of the day before, rubbing his penis outside and inside of
her vagina, which hurt her. Id. at 77. When he was finished, he wiped the
same kind of sticky substance off B.B.’s thighs that he had the day before. He
also had sticky stuff on “his private area” that he wiped off. Id. at 79.
Afterward, he sprinkled baby powder between her legs.
[5] That evening, Barnes took B.B. and her younger brother home. B.B. went
upstairs while Barnes talked to her mother. She waited to tell her mother what
happened because she “was scared that [Barnes] would do something.” Id. at
80. After he left, she wrote down on a piece of paper what happened and gave
it to her mother. She wrote it down because she did not “like saying that kind
of stuff.” Id. at 81. B.B.’s mother started crying. She wanted to make sure that
B.B. was not bleeding, so she told B.B. to pull down her underwear and
immediately saw baby powder caked around B.B.’s vagina.
[6] B.B.’s mother called the police. A police officer came to their residence and
made a report. B.B.’s mother took her to the hospital emergency room. B.B.
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was also taken to a children’s hospital for a sexual assault examination, and no
physical injuries were discovered. A sexual assault evidence collection kit was
also performed on B.B. The following day, Stephanie Back, a forensic
interviewer with the Child Advocacy Center, interviewed B.B.
[7] In June 2015, the State charged Barnes with two counts of level 1 felony child
molesting. A jury trial was held in August 2016. The State began its case-in-
chief with B.B.’s mother’s testimony. B.B. then testified regarding what Barnes
did to her on February 21 and 22, 2015. Barnes’s defense counsel did not cross-
examine her. The jury also heard testimony from B.B.’s brothers, the police
officer who responded to the initial report of child molestation, two detectives,
and the child abuse pediatrician who was on call at the children’s hospital when
B.B. was admitted.
[8] Following an extended discussion outside the jury’s presence, the State
requested that Back be permitted to testify regarding the signs of coaching in
children and whether she had observed signs of coaching when she interviewed
B.B. Barnes objected, but the trial court concluded that Barnes had opened the
door to such testimony and permitted Back to testify. Id. at 213. The
emergency room doctor who examined B.B. testified, followed by Back. Back
testified that she was trained to look for signs of coaching in children and that
those signs included whether the child makes eye contact, makes emotional
statements, or corrects the interviewer when the interviewer is speaking. She
explained that she also considers whether the child has provided consistent
statements to investigators or has a motive to fabricate. Tr. Vol. 3 at 22. She
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then testified that she saw no signs of coaching when she interviewed B.B. Id.
at 23.
[9] After Back testified, the State introduced evidence from the sexual assault kit.
Two of the external genital swabs tested positive for the presence of sperm cells.
Id. at 43. The DNA from the sperm cells was consistent with Barnes’s DNA,
and that DNA profile was estimated to occur once in eight trillion unrelated
individuals. Id. at 44, 64-65. The DNA sample from the external genital swabs
was of such high quality that it was unlikely that the sperm cells had been
deposited on something else and then transferred to B.B. Id. at 45-46, 64. A
major DNA profile and a minor DNA profile were also recovered from non-
sperm cells. The DNA from the minor profile was consistent with Barnes’s and
was estimated to occur once in 3400 unrelated individuals. Id. at 47.
[10] Barnes testified that he did not have sexual intercourse with B.B. or place his
penis on the outside of her vagina and never touched her in an inappropriate
manner. Id. at 68-69. He also testified that he was never in the bedroom
behind closed doors with her. Id. at 113. In addition, he explained how his
semen could have been found on B.B. He testified that he uses kerosene to heat
his residence, but B.B.’s mother does not like the smell. So, he keeps clothing
for each of the children in a dresser in the children’s bedroom. When the
children come to his house, they change into the clothes Barnes keeps for them.
Barnes then washes the clothes they were wearing when they arrived, so that
they can wear clean clothes when they return home. He testified that on the
evenings of February 20 and 21, B.B. and her younger brother either played
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Xbox or watched television the entire time. On February 22, Barnes watched a
NASCAR race on television. He told each child to take a shower. His
bedroom was close to the bathroom, so he laid their clean clothes on his bed.
Then, he masturbated in his bedroom beside the children’s clothes. Id. at 84.
When he was done, he “reached down and grabbed something to wipe off on,
and it ended up being [B.B.’s] underwear.” Id. at 85. Barnes testified that he
“was going to take them and throw them in the washing machine, but I was so
pre-occupied with the race [that he] hurried back up the hall to go watch the
race, and I forgot about them.” Id. at 85.
[11] The jury found Barnes guilty as charged. The trial court sentenced Barnes to
concurrent executed terms of forty years each. This appeal ensued. Additional
facts will be provided as necessary.
Discussion and Decision
[12] Barnes challenges the trial court’s admission of Back’s testimony that B.B
showed no signs of coaching during her interview. “A trial court has broad
discretion in ruling on the admissibility of evidence” and we will reverse its
ruling only upon an abuse of that discretion. Hoglund v. State, 962 N.E.2d 1230,
1237 (Ind. 2012). “An abuse of discretion occurs when the trial court’s decision
is clearly against the logic and effect of the facts and circumstances before it.”
Id.
[13] Indiana Evidence Rule 704(b) provides, “Witnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or falsity of
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allegations; whether a witness has testified truthfully; or legal conclusions.” In
general, expert testimony that a child did not exhibit any signs of coaching
constitutes improper vouching for the alleged victim’s credibility in violation of
Evidence Rule 704(b). Sampson v. State, 38 N.E.3d 985, 989-92 (Ind. 2015);
Hoglund, 962 N.E.2d at 1237. However, expert testimony about the signs of
coaching and whether a child exhibited such signs is permissible “provided the
defendant has opened the door to such testimony.” Sampson, 38 N.E.2d at 992.
“Opening the door refers to the principle that where one party introduces
evidence of a particular fact, the opposing party is entitled to introduce evidence
in explanation or rebuttal thereof, even though the rebuttal evidence otherwise
would have been inadmissible.” Id. at n.4; see also Clark v. State, 915 N.E.2d
126, 130 (Ind. 2009) (“The door may be opened when the trier of fact has been
left with a false or misleading impression of the facts.”). Thus, “‘once a child’s
credibility is called into question proper expert testimony may be appropriate.’”
Sampson, 38 N.E.3d at 992 (quoting Steward v. State, 652 N.E.2d 490, 499 (Ind.
1995)). Here, Barnes contends that the trial court erred in finding that he
opened the door to Back’s testimony.
[14] Back was not included on the State’s final witness list but Barbara Vernon was.
Vernon had not interviewed B.B., but she was expected to testify during the
State’s case-in-chief “concerning characteristics, mannerisms, and behaviors
common among child abuse victims” and “in rebuttal concerning the presence
or absence of signs of coaching.” Tr. Vol. 2 at 201. At trial, Barnes made an
oral motion in limine regarding Vernon’s testimony. A lengthy debate followed
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outside the jury’s presence. Defense counsel argued that Vernon’s testimony
constituted improper vouching for B.B. in violation of Evidence Rule 704(b)
and “the evidence in the trial so far ha[d] not been an attack on [her]
credibility.” Id. at 205. The prosecutor responded that defense counsel was
going to stand before the jury during closing argument and
talk about [B.B.’s] testimony and talk about her behaviors and
talk about the number of times she was … interviewed by
different people, and [she is] a confused little child who is simply
parodying or mimicking information that she has heard either
from her mother or from the doctor or from whomever, … and
we are entitled to … address those potential issues.
Id. at 208.
[15] As the discussion continued, defense counsel stated,
[T]he theory of the case is that … B.B. was subjected to multiple
sets of questioning at the hands of inexpert interviewers and that
that is a … source or explanation for her testimony. … If the
court determines that that is an attack on her credibility, then I
cannot in all good conscience say that I’m not going to be
attacking her credibility.
Id. at 211.
[16] The prosecutor argued that the defense’s theory of the case constituted implicit
coaching, which opened the door to testimony regarding whether B.B. was
coached. Although the trial court ruled that Vernon would be permitted to
testify, the prosecutor stated that he wished to call Back to testify specifically
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about her interview with B.B. The trial court agreed that “that door is going to
be opened” and ruled that “the State can present evidence about the signs of
coaching and whether or not [B.B] exhibited such signs.” Id. at 213. Defense
counsel objected to Back’s testimony, arguing that his theory that the
circumstances of B.B.’s questioning gave rise to her account was not the same
as coaching. He also argued that the issue had not been presented for litigation
at that point, as “[n]either side had elicited any evidence of coaching.” Id. at
214, 218. Ultimately, the trial court ruled that Back would be permitted to
testify. Id. at 219.
[17] Barnes contends that he did not open the door to Back’s coaching testimony
because at that point in the trial he had not questioned any witnesses in a
manner that suggested B.B. had been coached or that had called her credibility
into question. The State counters that Back’s testimony was permissible to
“rebut Barnes’ claim that B.B. was coached by adults asking her leading
questions and giving their own account of the molestation in her presence.”
Appellee’s Br. at 8. We must agree with Barnes. Before the motion in limine
was made, the jury had heard the testimony of B.B.’s mother, B.B., her
brothers, the police officer who responded to the initial report of child
molestation, two detectives, and the child abuse pediatrician who was on call at
the children’s hospital when B.B. was admitted. However, the State does not
cite to any portion of the transcript preceding the motion of limine that shows
evidence of coaching or that B.B.’s credibility was called into question. The
State relies solely on the content of defense counsel’s closing argument. The
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potential substance of closing argument does not open the door to otherwise
impermissible evidence.1 When Back testified, no evidence regarding whether
B.B. had been told what to say or calling her credibility into question had been
introduced. Simply put, there was no evidence to rebut. See Norris v. State, 53
N.E.3d 512, 524 (Ind. Ct. App. 2016) (concluding that trial court abused its
discretion in admitting testimony that victim demonstrated indicia of reliability
during interview where testimony was “neither in response to defense
questioning, nor to rebut an express claim that victim had been coached.”);
Hamilton v. State, 43 N.E.3d 628, 633 (Ind. Ct. App. 2015) (concluding that
defendant had not opened door to coaching testimony where defense counsel
had asked two alleged victims whether anyone had told them what to say in
court and both victims said no and no other evidence of alleged coaching was
presented), aff’d on reh’g, 49 N.E.3d 554 (2015), trans. denied (2016).
Accordingly, the trial court abused its discretion in permitting Back to testify
that she did not observe any signs of coaching.
[18] However, “‘[e]rrors in the admission or exclusion of evidence are to be
disregarded as harmless error unless they affect the substantial rights of a
party.’” Norris, 53 N.E.3d at 524-25 (quoting Hubbell v. State, 754 N.E.2d 884,
890 (Ind. 2001)). “The improper admission is harmless error if the conviction is
supported by substantial independent evidence of guilt satisfying the reviewing
1
As such, we need not decide whether the concept of coaching an alleged child victim is broad enough to
encompass the possibility of unintentionally suggestive circumstances surrounding the reporting and
questioning of the victim.
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court there is no substantial likelihood the challenged evidence contributed to
the conviction.” Hoglund, 962 N.E.2d at 1238.
[19] Barnes asserts that his convictions rest primarily on B.B.’s credibility and that
“[e]vidence supporting the credibility of a witness cannot be said to be harmless
when the conviction rested primarily on the credibility of the witness.”
Appellant’s Br. at 13 (citing Hamilton, 49 N.E.3d at 556). Here, however, there
was more than B.B.’s testimony to support Barnes’s convictions. Significantly,
two of the external genital swabs from B.B.’s sexual assault kit contained
Barnes’s sperm cells.2 He contends that he presented a plausible alternative
explanation for the presence of his semen; namely, that he used B.B.’s
underwear to wipe himself after masturbating on February 22. However, the
State presented expert testimony that given the quality of the DNA sample, it
was unlikely that his sperm was transferred onto B.B. from a different material.
Tr. Vol. 3 at 45-46, 64. In addition, B.B. testified consistently regarding the
molestations. Tr. Vol. 2 at 62-80. Certain details of B.B.’s account were
corroborated by her younger brother and were contrary to Barnes’s claims. For
example, her younger brother testified that when he and B.B. were playing
Xbox on February 21, Barnes called B.B. to come to his bedroom. Id. at 62,
105. He also testified that while Barnes and B.B. were in the bedroom, the door
was completely closed and he knocked on the door and asked if B.B. could
2
The State asserts that seminal material was found on several swabs “from the inside” and outside of B.B.’s
vagina. Appellee’s Br. at 12. While preliminary testing of the vaginal swabs indicated that seminal material
“might” be present, subsequent testing on all four of the vaginal swabs was negative for sperm cells. Tr. Vol.
3 at 42.
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play. Id. at 71, 106. Further, Barnes’s testimony contradicted what he told
investigators after B.B. reported the molestations. Barnes testified that on
Sunday, he was watching the race and did not see B.B. come out of the shower,
but he told police that the children “come out of the bathroom to the bedroom.
We go in there. I make sure they’re good and dry and they get their clothes
on.” Tr. Vol. 3 at 105-06. We conclude that there was substantial independent
evidence of guilt supporting Barnes’s convictions such that Back’s testimony did
not likely have a substantial influence on the verdict. See Hoglund, 962 N.E.2d
at 1238 (concluding that admission of vouching testimony was harmless where
victim “testified at length concerning what happened to her” and “her
testimony remained consistent and unshaken under aggressive cross-
examination.”).
[20] Affirmed.
Baker, J., and Barnes, J., concur.
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