Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Mar 08 2012, 8:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID A. SMITH GREGORY F. ZOELLER
McIntyre & Smith Attorney General of Indiana
Bedford, Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RUSSELL A. PROSSER, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 59A01-1107-CR-346
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ORANGE CIRCUIT COURT
The Honorable Larry A. Blanton, Judge
Cause No. 59C01-0910-FA-88
March 8, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
STATEMENT OF THE CASE
Russell A. Prosser, Jr., appeals his conviction for Class C felony child molesting.
Prosser raises three issues for our review, but we address only the following dispositive
issue: whether the trial court abused its discretion when it permitted the State to elicit
testimony from the victim’s case manager that she had substantiated the victim’s claim of
molestation. This is the same issue that we recently addressed in Bradford v. State, 960
N.E.2d 871 (Ind. Ct. App. 2012). We hold that the admission of this testimony violated
Indiana Evidence Rule 704(b) and affected Prosser’s substantial rights.
We reverse and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
On October 5, 2009, the State charged Prosser with two counts of child molesting,
one as a Class A felony and one as a Class C felony. At his ensuing jury trial, the State
called the victim, the victim’s parents, and investigating officers to testify. In particular,
the State called Ginger Breeden, the case manager assigned to the victim’s case by the
Indiana Department of Child Services (“DCS”).1 Breeden testified that she had
interviewed the victim and the victim’s mother. She then stated, over the objection of
Prosser’s attorney, that the DCS had concluded that the victim’s claims against Prosser
had been “substantiat[ed].” Tr. p. 171. Breeden further stated that a substantiated claim
is one in which “a certain preponderance of evidence . . . support[s] that the allegations
are more likely than not to have had occurred[.]” Id. at 168. And, in his closing
1
The DCS became involved more than a year after the incident when the victim’s counselor
relayed to the DCS the victim’s comments that she had been molested. Although the victim told her
mother about the alleged incident the day after it had occurred, her mother did not inform any authorities.
It is not clear from the appellate record whether the State pursued charges against the victim’s mother
under Indiana Code sections 31-33-5-1 and 31-33-22-1(a).
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argument, the prosecuting attorney expressly referred to Breeden’s assertion that she had
substantiated the victim’s allegation. Id. at 369.
The jury found Prosser guilty of the Class C felony but not guilty of the Class A
felony. The jury also found him to be a habitual offender, and the trial court ordered him
to serve an aggregate term of twenty years executed.
Prosser now appeals.
DISCUSSION AND DECISION
Prosser contends that the trial court abused its discretion when it permitted
Breeden to testify, over his objection, that she had substantiated the victim’s claim
against him. Our standard of review of a trial court’s findings as to the admissibility of
evidence is an abuse of discretion. Roush v. State, 875 N.E.2d 801, 808 (Ind. Ct. App.
2007). A court has abused its discretion when its decision is against the logic and effect
of the facts and circumstances before the court or is contrary to law. Norris v. Pethe, 833
N.E.2d 1024, 1029 (Ind. Ct. App. 2005).
“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.” Ind. Evidence Rule 704(b). “Neither an expert nor a lay witness
may testify that another witness is telling the truth. The admission of such evidence
invades the province of the jury.” Jones v. State, 581 N.E.2d 1256, 1258 (Ind. Ct. App.
1991), abrogated on other grounds by Steward v. State, 652 N.E.2d 490 (Ind. 1995).
Although such “vouching testimony” is generally inadmissible,
[i]n the context of child molesting . . . our supreme court has recognized
that[,] where children are called upon to describe sexual conduct, a special
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problem exists in assessing credibility since children often use unusual
words to describe sexual organs and their function and since they may be
more susceptible to influence. Stewart [v. State], 555 N.E.2d [121,] 125
[(Ind. 1990)].
Rose v. State, 846 N.E.2d 363, 367 (Ind. Ct. App. 2006). Accordingly, testimony is
allowed which permits
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 is not prone to exaggerate or fantasize about sexual matters. Such
opinions . . . facilitate an original credibility assessment of the child by the
trier of fact . . . .
Id. (quotation omitted). “Thus, adult witnesses are allowed to state an opinion as to the
child’s general competence and ability to understand the subject, but are prohibited from
making direct assertions as to their belief in the child’s testimony.” Id.
In Jones, we reversed the defendant’s conviction where the State’s witness
testified that, in her “professional opinion,” the victim had been sexually molested. 581
N.E.2d at 1258. We also reversed the defendant’s conviction in Rose, a post-conviction
appeal, where the State’s witness “referred to [the victim’s] credibility and how
convincing her allegations were.” 846 N.E.2d at 367. Specifically, we held that “this
testimony was highly improper because [it] invaded the province of the jury.” Id. at 368.
More recently, in Bradford, we reversed the defendant’s child molesting
conviction where the case manager had testified in relevant part 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 [A.T.], I substantiated sexual abuse, meaning our office
feels that there was enough evidence to conclude that sexual abuse
occurred.
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960 N.E.2d at 875. We held that while the case manager’s testimony was not improper
vouching testimony, it “constituted an opinion regarding the truth of the allegations,
thereby violating Indiana Evidence Rule 704(b).” Id. at 876. And we concluded that the
trial court’s error in permitting that testimony was not harmless. Id. at 878; see also
Gutierrez v. State, 2012 WL 560048 (Ind. Ct. App. Feb. 22, 2012) (concluding that the
trial court’s admission of the case manager’s testimony that she “absolutely” believed the
victim violated Evidence Rule 704(b) and amounted to fundamental error).
Likewise, here, Breeden testified that in the course of her job as case manager, she
conducted an investigation into the alleged victim’s claim against Prosser and prepared a
report. In that report, Breeden concluded that the alleged victim’s claim was
substantiated, which meant that Breeden had found “a certain preponderance of evidence
to support that the allegations [were] more likely than not to have had occurred[.]” Tr. p.
168. Indeed, Black’s Law Dictionary defines “substantiate” as “[t]o establish the
existence or truth of (a fact, etc.), esp[ecially] by competent evidence; to verify.” Black’s
Law Dictionary 1443 (7th ed. 1999). Thus, Breeden’s testimony that, in her opinion, the
truth of the allegations had been “established,” invaded the jury’s obligation to make that
determination, i.e., Breeden’s testimony constituted an opinion regarding the truth of the
alleged victim’s allegations. Further, in his closing argument, the prosecutor referred to
the fact that Breeden had conducted an investigation and concluded that the victim’s
claim was substantiated. Our reasoning and conclusion in Bradford apply here, and we
hold that Breeden’s testimony that she had substantiated the victim’s allegations
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constituted an opinion regarding the truth of the allegations in violation of Evidence Rule
704(b).
The State advances numerous theories on appeal to support its contention that
Breeden’s testimony did not violate Evidence Rule 704(b). First, the State asserts that
“[c]omments [that] indirectly suggest a favorable view of a child’s credibility are
admissible.” Appellee’s Br. p. 6. While that general proposition may be correct,
Breeden’s testimony does not “indirectly suggest a favorable view” of the victim’s
testimony. Rather, she explained that a report of abuse is substantiated if she concludes
that the evidence “support[s] that the allegations are more likely than not to have had
occurred[.]” Tr. p. 168. And Breeden testified that after she had completed her
investigation, she concluded that the alleged victim’s report was substantiated. As such,
this was a direct comment on the child’s credibility.
The State next avers that “testimony regarding the course of an investigation is not
inadmissible simply because it touches on an ultimate conclusion . . . .” Appellee’s Br. p.
7. Again, the State ignores the specificity and scope of Breeden’s testimony. Her
testimony that the victim’s claim was substantiated was more than a comment on the
course of an investigation and did not merely “touch[] on an ultimate conclusion”; rather,
it stated a conclusion.
The State’s third theory is that Breeden’s testimony was “relevant to explain the
timing of the State’s investigation and the reasonableness of that investigation.” Id. at 8.
We simply do not see how Breeden’s opinion on the veracity of the victim’s testimony
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explains either the timing or reasonableness of the investigation. This argument is not
supported by cogent reasoning.
Fourth, the State asserts that Breeden’s testimony “was also necessary to explain
the circumstances of Prosser’s [inconclusive] polygraph examination.” Id. We infer
from this argument that Prosser’s credibility was a significant issue. But that is exactly
why Breeden’s opinion of the victim’s credibility was inadmissible in the first instance.
Fifth, the State claims that “Breeden’s testimony did not assert a direct opinion
that [the victim] was telling the truth” because Breeden referred to the victim as “the
alleged victim” and because of other limitations on the investigation to which Breeden
testified. Id. The State’s argument here does not avoid or overcome the fact that Breeden
testified that she had substantiated the victim’s claims “by a preponderance of the
evidence.” Tr. p. 168, 171. This testimony was equivalent to a statement that the alleged
victim was telling the truth.
Sixth, the State contends that Prosser waived his appeal by not objecting during
the prosecutor’s closing argument and that Prosser has likewise waived any review under
the doctrine of fundamental error. We note, however, that Prosser timely objected to the
admission of the testimony, and we are satisfied that his objection preserved the error for
our review. And “it has been clearly established that this Court can recognize
fundamental error even though it was not raised at the trial . . . if the error is blatant and
appears on the face of the record.” Haggard v. State, 445 N.E.2d 969, 971 (Ind. 1983).
Hence, there is no waiver of the Evidence Rule 704(b) issue on this record.
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Finally, the State contends that any error in the admission of Breeden’s comments
was harmless because “the jury acquitted Prosser of one of the charges.” Appellee’s Br.
p. 8. When a trial court abuses its discretion in the admission of evidence, we will
reverse only if the error is inconsistent with substantial justice or affects the substantial
rights of a party. See Ind. Trial Rule 61; Bradford, 960 N.E.2d at 877. In viewing the
effect on a defendant’s substantial rights, we look to the probable impact on the
factfinder. Bradford, 960 N.E.2d at 877. “‘The improper admission of evidence is
harmless error when the conviction is supported by substantial independent evidence of
guilt as to satisfy the reviewing court that there is no substantial likelihood that the
questioned evidence contributed to the conviction.’” Id. (quoting Lafayette v. State, 917
N.E.2d 660, 666 (Ind. 2009)). “‘Reversal may be compelled if the record as a whole
discloses that the erroneously admitted evidence was likely to have had a prejudicial
impact on the fact-finder, thereby contributing to the judgment.’” Id. (quoting Ground v.
State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998)). “‘To determine whether the erroneous
admission of irrelevant and prejudicial evidence . . . is harmless, we judge whether the
jury’s verdict was substantially swayed. If the error had substantial influence, or if one is
left in grave doubt, the conviction cannot stand.’” Id. (quoting Lafayette, 917 N.E.2d at
666-67).
We decline to hold that the mixed verdict in this case is evidence of harmless
error. As for Prosser’s conviction, the State’s case turned on the credibility the jury
assigned to the victim. There was neither direct nor corroborating evidence in this case,
so it was Prosser’s word against the victim’s. Breeden’s testimony, emphasized by the
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prosecutor during his closing argument, invaded the jury’s right to reach its own
conclusion on whom to believe.2 In sum, our review of the record as a whole discloses
that the erroneously admitted evidence was likely to have had a prejudicial impact on the
factfinder, thereby contributing to the judgment. See id. Accordingly, the error was not
harmless. We therefore reverse Prosser’s conviction and remand for a new trial on the
Class C felony.
Reversed and remanded.
ROBB, C.J., and BROWN, J., concur.
2
For thoroughness, we note that the State does not suggest that any of the exceptions to Evidence
Rule 704 applicable to child molesting cases applies here. See Rose, 846 N.E.2d at 367.
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Russell A. Prosser, Jr. v. State of Indiana
Combined Opinion