Morales v. State
| Decision Date | 26 February 2013 |
| Docket Number | No. 49A02–1207–CR–607.,49A02–1207–CR–607. |
| Citation | 984 N.E.2d 720 |
| Parties | Jose MORALES, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable Lisa Borges, Judge; Cause No. 49G04–1009–FA–62314.
Lisa M. Johnson, Brownsburg, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Following a jury trial, Jose Morales (“Morales”) was found guilty of two counts of Class A felony child molesting and was sentenced to an executed, aggregate sentence of fifty years. Morales appeals and raises two issues, which we restate as:
I. Whether the trial court abused its discretion by admitting Detective Cook's testimony regarding the general nature of child abuse reports and recantations and testimony regarding the charging information;
II. Whether the trial court abused its discretion by limiting Morales's cross-examination of a State's witness.
We affirm.
In January 2003, Jose Morales (“Morales”) and Maria Guadalupe–Ambrosio (“Guadalupe–Ambrosio”) married. Guadalupe–Ambrosio had a son (“E.A.”), who was born in 2001, from a previous relationship, and Morales and Guadalupe–Ambrosio had two more children (“J.M.” and “A.M.”) together.
On two separate occasions between 2009 and 2011, while Guadalupe–Ambrosio was at church, Morales threw E.A. down to the living room floor in their apartment and penetrated E.A.'s anus with his penis. Tr. p. 50. E.A. had to use toilet paper to clean “white stuff” off his bottom, and Morales told him that if he ever told his mother, he “would never have a dad and never have a home to live and food.” Tr. p. 50, 59.
About a week after the second incident, in August of 2011, E.A. told his mother, Guadalupe–Ambrosio, what had occurred. Guadalupe–Ambrosio took E.A. to the hospital, and sexual assault nurse Stephanie Glover (“Glover”) examined E.A. The examination was normal; however, Glover testified that 70–90% of sexual abuse victims have normal examinations after anal penetrations.
On September 6, 2011, the State charged Morales with two counts of Class A felony child molesting and one count of Class D felony battery. On November 30, 2011, the State amended the charging information and added six additional counts of Class A felony child molesting of J.M. and one count of Class D felony battery of J.M. A jury trial was conducted on June 25–26, 2012. At trial, the State dismissed the amended counts against J.M. that were added on November 30, 2011.
Indianapolis Metro Police Department Detective Genae Cook (“Detective Cook”) testified in regard to the nature of children's reports of sexual abuse and the reasons why some abuse victims recant or fail to disclose abuse. Detective Cook also testified that she had interviewed Morales. On cross examination, Morales sought to elicit testimony from Detective Cook regarding Morales's denial of the allegations during this interview, but the State objected that this was hearsay. Morales argued that the testimony was admissible because the State opened the door to the testimony. The judge sustained the objection and ordered the jury to disregard the testimony.
The jury found Morales guilty of two counts of Class A felony child molesting but not guilty of Class D felony battery. The trial court sentenced Morales to consecutive, executed sentences of twenty years on one count and thirty years on the other.
Morales now appeals.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010) (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)), trans. denied. An abuse of discretion occurs if the trial court's decision is “clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.” Boatner v. State, 934 N .E.2d 184, 186 (Ind.Ct.App.2010). However, “[w]here the alleged error also involves claims of legal error, we judge questions of law de novo.” Purvis v. State, 829 N.E.2d 572, 578 (Ind.Ct.App.2005).
Morales argues that the trial court abused its discretion by admitting Detective Cook's testimony regarding the general nature of children's reports of sexual abuse and reasons some children recant and her testimony regarding the charging information, claiming it to be inadmissible vouching testimony. Vouching testimony is generally prohibited by Indiana Evidence Rule 704(b) which provides that: “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) (quoting Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind.Ct.App.2012)), trans. denied. “Until recently, an exception was made to Evidence Rule 704(b) for vouching testimony in child-molesting cases[,]” but, in Hoglund v. State, 962 N.E.2d 1230 (Ind.2012), our supreme court eliminated the “vouching testimony exception in the context of child-molesting cases.” Palilonis v. State, 970 N.E.2d 713, 729 (Ind.Ct.App.2012), trans. denied.
Following the Hoglund decision this court, in Kindred, contrasted general testimony about the signs of coaching from specific testimony about the child victim in a given case: “[G]eneral testimony about the signs of coaching, as well as the presence or absence of those signs in the child victim at issue, preserves the ultimate credibility determination for the jury and therefore does not constitute vouching[;]” whereas, when “a witness opines as to whether the child victim was coached” this vouches for the child and invades the province of the jury. 973 N.E .2d at 1258. Thus, we read Kindred to suggest that if the witness's testimony does not opine about the specific child in the case, it leaves the ultimate credibility determination for the jury and, therefore, is not vouching testimony prohibited by Rule 704(b). This interpretation is also supported by our court's opinion in Otte v. State, where we held that a domestic violence expert's non-specific statements that victims of domestic violence routinely recant their stories was not impermissible vouching testimony under Indiana Evidence Rule 704(b), even though the testimony “operated to explain away [the victim's] recantation[.]” 967 N.E.2d 540, 544 (Ind.Ct.App.2012), trans. denied.
Morales argues that Detective Cook's testimony regarding the general nature of children's reports of sexual abuse and the reasons why some abuse victims recant or fail to disclose abuse was impermissible vouching testimony, because it implied that Detective Cook believed E.A. was credible. However, Morales admits that Detective Cook “did not explicitly give[ ] an opinion about E.A.'s credibility[.]” Appellant's Br. at 14; see also Appellant's Reply Br. at 2. Rather, Detective Cook testified, in general terms, how children report sexual abuse and why children may recant. Tr. p. 165–66.
The record is clear that Detective Cook's testimony was based on her specialized training in interviewing child abuse victims and her experience investigating 550 cases as a detective in the child abuse unit. Tr. p. 160–61. Though Morales has characterized this testimony as vouching testimony, we disagree. Detective Cook's testimony did not focus on E.A., and she did not testify that she believed E.A. was truthful or credible. By eliciting only general, non-specific statements from Detective Cook, the State properly left the determination of E.A.'s credibility to the province of the jury.1
Morales also argues that Detective Cook's testimony regarding the charging criteria was vouching testimony. However, Morales's only objection to the admission of this evidence at trial was a hearsay objection, and the trial court sustained the objection on that ground and directed the State to rephrase the question. See Tr. p. 172–73. Morales made no other objection to the questions regarding the charging criteria and made no objection at all to the evidence on the basis it was vouching testimony. See Appellant's Br. at 23 (). Thus, this error was waived. See Brown v. State, 587 N.E.2d 693, 703 (Ind. Ct. A 1992) ().
Waiver not withstanding, Detective Cook's testimony regarding charging criteria was not vouching testimony. Detective Cook gave only brief testimony regarding the charging criteria. She testified that she made the decision to arrest Morales, was part of the filing process, and determined the date for the counts based off when E.A. started school that year. Tr. p. 172–73. She did not testify to any opinion concerning the veracity of E.A.'s allegations. See id .
For all of these reasons, we conclude Detective Cook's testimony was not vouching testimony prohibited by Indiana Evidence Rule 704(b) and conclude the trial court did not abuse its discretion by admitting the testimony into evidence.2
Morales also contends that the trial court abused its discretion by excluding portions of Detective Cook's testimony regarding statements Morales had previously made to her. At trial, the State elicited testimony from Detective Cook...
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