Archer v. State
| Decision Date | 30 September 2013 |
| Docket Number | No. 49A05–1209–CR–448.,49A05–1209–CR–448. |
| Parties | Jeffrey ARCHER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
David W. Lamont, Evansville, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jeffrey Archer appeals his convictions of Class A felony child molesting 1 and Class C felony child molesting.2 He presents multiple issues for our review, which we restate as:
1. Whether the trial court's statement regarding the victim's competency to testify was an impermissible vouching statement;
2. Whether the trial court allowed vouching testimony by multiple witnesses;
3. Whether the trial court erred when it denied Archer's request to present evidence of L.B.'s post-allegation demeanor;
4. Whether Archer was prejudiced by a jury instruction about the level of penetration required to prove he committed Class A felony child molesting;
5. Whether the State presented sufficient evidence Archer committed Class A felony child molesting and Class C felony child molesting; and
6. Whether Archer's trial counsel was ineffective.
We affirm.
Archer is the paternal step-grandfather of L.B., born June 2, 2003. L.B. lives with her maternal grandparents, Michael and Cindy Tollar, who have had full custody of L.B. since December 5, 2008. The Tollars allowed L.B. to visit with her paternal grandmother, Patricia, who is married to Archer, every other weekend from Friday night to Sunday after dinner. L.B. did not have her own bed at Archer's house, so she slept on an air mattress in the living room or in the bed between Patricia and Archer.
Sometime in early 2011, Cindy noticed L.B.'s demeanor would be different after she returned from visits with the Archers. On May 2, 2011, L.B. told her school's student services advisor that Archer had touched her multiple times on the bottom, vagina, back, and chest. L.B. also reported Archer touched her inside her underwear and once put his fingers in her genitalia. The advisor contacted the Department of Child Services.
After detectives and service providers interviewed L.B., the State charged Archer with one count of Class A felony child molesting and two counts of Class C felony child molesting. On July 16, 2012, a jury found Archer guilty as charged. The trial court entered a conviction of Class A felony child molesting and merged the two counts of Class C felony child molesting. The trial court sentenced Archer to twenty-five years for Class A felony child molesting and two years for Class C felony child molesting, to be served concurrently.
Indiana Evidence Rule 601 provides, in relevant part, “[e]very person is competent to be a witness except as otherwise provided in these rules or by the act of the Indiana General Assembly.” Prior to 1990, children under ten years old were presumed incompetent to testify, but children are not explicitly excluded as competent witnesses under the current version of Evid. R. 601. Aldridge v. State, 779 N.E.2d 607, 609 (Ind.Ct.App.2002), trans. denied. The determination of witness competency lies within the sound discretion of the trial court. Harrington v. State, 755 N.E.2d 1176, 1181 (Ind.Ct.App.2001). To determine whether a child is competent to testify, the trial court considers whether the child “(1) understands the difference between telling a lie and telling the truth, (2) knows she is under a compulsion to tell the truth, and (3) knows what a true statement actually is.” Id.
The trial court spoke with L.B. to determine her competency:
[L.B.] I get in trouble and I have a time out.
(Tr. at 93.) The court then stated: ( Id.)
Archer argues “[t]he trial court vouched for the testimony of L.B. by being ‘very satisfied’ L.B. was competent to testify, and knew the difference between the truth and a lie in front of the jury.” (Appellant's Br. at 22.) We first note Archer did not object to the court's statement. Failing to object to the admission of evidence at trial normally results in waiver and precludes appellate review unless its admission is fundamental error. Konopasek v. State, 946 N.E.2d 23, 27 (Ind.2011). Fundamental error is an error “so prejudicialto the rights of the defendant as to make a fair trial impossible.” Id. n. 1.
The trial court's statement did not vouch for L.B.'s credibility. Whether a witness is competent and whether a witness is credible are different questions, the former for the trial court and the latter for the jury. Kien v. State, 866 N.E.2d 377, 385 (Ind.Ct.App.2007), trans. denied. The trial court's statement addresses L.B.'s competency; it almost directly recites the factors set forth in Harrington for determining the competency of a child witness. The trial court's statement did not amount to fundamental error.
We generally review admission of evidence under an abuse of discretion standard. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. “[W]itnesses 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.” Evid. R. 704(b). Our Indiana Supreme Court has addressed the admissibility of testimony from adults regarding whether a child witness testified truthfully:
Although it is entirely proper for the expert witness to state her opinion as to the general competence of the child witness and the child witness's ability to understand the subject, it was entirely improper for that same witness to review each item of the child's testimony and to specifically vouch for the truthfulness of such testimony. Such testimony was an invasion of the province of the jury in determining what weight they would place upon the child's testimony.
Head v. State, 519 N.E.2d 151, 152 (Ind.1988). Archer argues the trial court allowed three witnesses to vouch for L.B.'s credibility as a witness. 3
Archer alleges Michael Tollar, L.B.'s maternal grandfather vouched for L.B.'s testimony when asked about L.B.'s behavior after her visits with Archer stopped:
[State]: Since the visits with the Archers had stopped, have you noticed the behavioral problems you described to the jury, have you noticed those continuing, or has there been a change[?]
[Defense Counsel objects, and objection overruled.]
[Tollar]: Uhm, it's a dramatic shift as far as I'm concerned. Uhm, the tiredness, the misbehavior, uh, none of that ever has come back. Uhm, you know, she's still a, you know, seven, eight, nine year old now. But, you know, that dynamic of returning and what was going on with her misbehaving for a day or two afterwards and being stressed, that's gone. She's very well adjusted, as far I can say now.
(Tr. at 179–80.) Archer does not explain how Tollar's testimony regarding L.B.'s changed demeanor amounts to vouching testimony. Therefore, we cannot say the trial court abused its discretion when it admitted Tollar's testimony.
Archer argues Diane Bowers, a forensic investigator who interviewed L.B., vouched for L.B.'s truthfulness:
[State]: Okay. How would you describe L.B.'s demeanor during your interview with her?
[Bowers]: Uhm, she was quiet, but she was very matter of fact when I asked her questions. Uhm, she's what I call a thinker, so she—when I'd ask questions, she'd think about [it] just a little bit. Uhm, she's very articulate.
[State]: Okay. And [over] the course of your experience interviewing all of these children, is there a specific way for you [to] expect children who are disclosing [sexual abuse] to act?
[Bowers]: No.
[Defense]: I'm going to pose an objection, Your Honor. This would be behavior evidence used as vouching.
[Court]: I don't think she's trying to vouch. I think [she's] asking a general question based on the 5500 interviews that she's conducted and so your objection is overruled [ ].
[State]: Is there a typical way you expect children to act during [their] interview with you?
[Bowers]: Not at all.
[State]: You see everything, the entire spectrum from stoic, if you will, to hysterical?
[Bowers]: To laughing, yes, all of it.
[State]: Do you ever—in any of your 5500 interviews, have any of those children ever not disclose a molest?
[Bowers]: Oh, sure.
[State]: Okay. Does that happen quite often?
[Bowers]: A lot, yes.
[State]: All right. Do you go into interviews with children hoping that they will disclose the sexual assault?
[Bowers]: No.
[State]: During the course of your training and experience, have you been educated on the idea of children and their ability to be coached?
[Bowers]: Yes.
[State]: And what is a child who [has] been coached, what does that mean?
[Bowers]: Uhm, well, there are some indicators that a child might have been coached, there's probably a lot [of] them [,] the one[s] that come to mind are uhm, —if I ask a child if something happened and all they can say is, uhm, Mikey touched my pee pee—
[Witness' cell phone rings, and conversation regarding cell phone occurs.]
[State]: What are the—you were saying if all the child can say is that Mikey touched my pee pee?
[Bowers]: Pee pee, and they can't give me anymore [sic] information about that. That might be an indicator. It might be an...
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