Bradford v. State

• Decision Date: 27 January 2012
• Docket Number: No. 59A01–1104–CR–215.,59A01–1104–CR–215.
• Parties: Bradley BRADFORD, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

960 N.E.2d 871

Bradley BRADFORD, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 59A01–1104–CR–215.

Court of Appeals of Indiana.

Jan. 27, 2012.

Craig Persinger, Marion, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Bradley Bradford appeals his conviction for child molesting as a class C felony.¹

We reverse and remand.

ISSUE

Whether the trial court abused its discretion by admitting into evidence testimony from a Department of Child Services (“DCS”) worker regarding the conclusion of her investigation into the allegation of sexual abuse.

FACTS ²

In late July of 2009, Bradford and some of his family members traveled from Marion, Indiana to Orange County, Indiana so they could go to Holiday World. Bradford—along with his then-wife, Terry Bradford; their child, S.B.; their nieces, seven-year-old A.T. and eight-year-old S.T.; and A.T. and S.T.'s half-brother, eleven-year-old M.B.—stayed the night in a hotel in French Lick the evening before going to Holiday World. While at the hotel, the group went swimming and eventually returned to their single hotel room.

There was testimony from A.T. and M.B. that Bradford, who was lying on the bed in his underwear, told A.T. to get on the bed with him or he would not take her to Holiday World. She told him that she first needed to change out of her wet swimsuit, and she then changed into her pajamas. A.T. testified that when she got on the bed, Bradford began “kissin' all over [her,]” including on her belly and arms, (tr. 44), and that he also touched and rubbed her “private area” or “vagina” with his fingers and touched it on the outside of her pajamas. (Tr. 53). M.B., who was lying on the sofa, testified that Bradford “kissed [A.T.] like all over and then was like rubbing her[,]” (tr. 65), and that Bradford kissed A.T. “on like the neck and then it kinda went like down the back and then on the arms and legs[,]” (tr. 65–66), and “very close” to her vaginal area. (Tr. 66). On cross-examination, when asked if he saw Bradford “touch [A.T.] in the private area[,]” M.B. responded, “Yes.” (Tr. 69).

Bradford's wife, Terry, who was lying on the bed immediately next to Bradford, testified that she never saw Bradford touch A.T. in an inappropriate sexual manner but that she did see Bradford giving A.T. “belly farts,” which she explained was the action of blowing on her belly and made a “noise type thing.” (Tr. 180). Bradford's videotaped statement to police, which was admitted into evidence and played for the jury, revealed that Bradford generally denied touching A.T. in an inappropriate manner or in the vaginal area. Bradford stated that before they went swimming, he picked up A.T., gave her a hug and kiss on the cheek, and blew on her stomach to make her laugh. He also stated that, on the second morning at the hotel after A.T. had slept on the floor the previous night, he had A.T. get into the bed, tucked her under the covers, and rubbed her shoulder and belly but he stated that he was already dressed and that he was not in the bed with her.

After the group returned home to Marion, M.B. told his grandmother and later his mother, Melissa Campbell, what he saw Bradford do to A.T. at the hotel. Campbell reported the allegations to the Marion Police Department, and the police reported the sexual abuse allegations to the Grant County DCS. Jessica Arrendale, the DCS case assessor assigned to the case, interviewed A.T., Campbell, M.B., S.T., and S.B. as part of a DCS investigation.

On October 13, 2009, the State charged Bradford with child molesting as a class C felony. During Bradford's March 2011 jury trial, DCS worker Arrendale testified that at the conclusion of her investigation, she submitted to her DCS supervisor a “311” final report in which she concluded that the sexual abuse allegation was “substantiated.” (Tr. 120). Bradford objected that Arrendale's testimony invaded the province of the jury, and the trial court overruled the objection. During the State's closing argument, the prosecutor referenced Arrendale's testimony and her conclusion that she had substantiated the sexual abuse allegation. The jury found Bradford guilty as charged, and the trial court sentenced Bradford to five years with two years suspended. Additional facts will be provided as necessary.

DECISION

Bradford argues that the trial court abused its discretion by allowing Arrendale's testimony into evidence because it invaded the province of the jury and violated Indiana Evidence Rule 704(b). The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs “where the decision is clearly against the logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).

Indiana Evidence Rule 704(b) provides that “[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.” “Such testimony is an invasion of the province of the jurors in determining what weight they should place upon a witness's testimony.” Rose v. State, 846 N.E.2d 363, 367 (Ind.Ct.App.2006).

In the context of child molesting cases, however, the Indiana Supreme Court has recognized “that there is a special problem in assessing the credibility of children who are called upon as witnesses to describe sexual conduct.” Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992). In Lawrence, our supreme court held:

Whenever an alleged child victim takes the witness stand in such cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting 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 will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of “I believe the child's story”, or “In my opinion the child is telling the truth.”

Lawrence, 464 N.E.2d at 925.³

During Bradford's jury trial, DCS worker Arrendale testified regarding the process and interview methods she used in her investigation and then the following exchange occurred between the prosecutor and Arrendale:

Q Alright, and then after your interview and you talked with [A.T.'s mother], did you do anything else in relation to your investigation of this allegation?

A Uh, just concluded my 311 and submitted that to my supervisor.

Q And what's a 311?

A A 311 is our final report when we receive a new report, a 311 report is basically our conclusion as to whether we found, uh, or whether we believe abuse or neglect occurred.

Q And what are your options as far as conclusions as far as abuse, alleged abuse?

[Defense counsel:] I'm going to object in, in that ... is the province of the jury to draw any conclusions as to whether any abuse occurred here. That invades the ... it's the ultimate issue and invades the province of the jury, Your Honor.

[Prosecutor:] Judge, she can tell what her conclusion was as far as her report was and her duty and role as a case manager for the Department of Child Services. That wouldn't invade the province of the jury. She can tell what her investigation (inaudible).

[Defense counsel:] Renew my objection.

THE COURT: It was Ms. Arrendale's investigation. She can, I think she's certainly allowed to give us her opinion and then, of course, that would be subject to cross. I'm going to allow the question.

A 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.

(Tr. 119–20).

Bradford asserts that Arrendale's testimony amounted to “a double violation of Evid. R. 704(b), because in addition to offering a personal and corporate opinion that the allegations at issue were true, she also vouched for the credibility of the State's key witness, A.T.” Bradford's Br. at 6. We will review each alleged violation of Rule 704(b) in turn.

1. Truthfulness of Testimony

Bradford argues that Arrendale's testimony was improperly admitted because it was “a direct opinion on the credibility of [A.T.].” Reply Br. at 4. The State contends that Arrendale's testimony was not a direct assertion as to A.T.'s credibility because Arrendale did not testify that she believed A.T.'s testimony and made no comment regarding her testimony. Instead, the State contends that Arrendale's testimony was “[a]t most” an indirect comment on the credibility of A.T. because “[a]ll that Ms. Arrendale testified to was that following her investigation, ... she determined that there was sufficient evidence to conclude that the allegations of sexual abuse were substantiated for purposes of further action by the [DCS].” State's Br. at 6.

“No witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.” Angleton v. State, 686 N.E.2d 803, 812 (Ind.1997), reh'g denied. O...