Hoglund v. State , No. 90S02–1105–CR–294.

Docket NºNo. 90S02–1105–CR–294.
Citation962 N.E.2d 1230
Case DateMarch 08, 2012
CourtSupreme Court of Indiana

962 N.E.2d 1230

Keith HOGLUND, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 90S02–1105–CR–294.

Supreme Court of Indiana.

March 8, 2012.


[962 N.E.2d 1231]

John Pinnow, Special Assistant to the State Public Defender, Greenwood, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 90A02–1005–CR–591
RUCKER, Justice.

In this appeal we examine the admissibility of vouching testimony in the context of child sex abuse allegations. We conclude that testimony amounting to the equivalent that a witness believes the child is telling the truth is inconsistent with our rules of evidence. Case authority to the contrary is expressly overruled.

[962 N.E.2d 1232]

Facts and Procedural History

Keith Hoglund and Teresa Mallott were married in June 1998. At the time, Mallott was the mother of a four-year-old son from a prior relationship. Two daughters were born to the marriage, A.H. in 1998 and a sister in 2001. In June 2002 the family moved from Fort Wayne to a home in Wells County. A.H. was four years old at the time. When A.H. was about five years old, she told Mallott about an incident in which Hoglund had taken a shower with her. An upset Mallott confronted Hoglund; he denied the allegation and Mallott at first believed him. In February 2006 a tearful eight-year-old A.H. again told Mallott about possible sexual abuse. This time Mallott reported the incident to a detective with the Wells County sheriff's department. The detective questioned A.H. who told him, among other things, that Hoglund “put stuff on his penis and ha[d] her lick it off.” Tr. at 147. Hoglund was arrested and on May 4, 2006, he was charged with two counts of child molesting as Class A felonies. At trial, then twelve-year-old A.H. testified that Hoglund first began molesting her when she was four years old. Hoglund would cause her to fellate him approximately two or three times per week. And this lasted until after A.H.'s seventh birthday. Hoglund would rub flavored substances onto his penis and occasionally ejaculate into A.H.'s mouth. Hoglund also showed A.H. a pornographic movie depicting oral sex, told her that her mother viewed her with disgust and cared more for her siblings than her, promised to give her money and toys, and told her that she would be “covered in black and blue” and that he would go to jail if she told anyone. Tr. at 78. After A.H. told Hoglund that she no longer wanted to fellate him, she asked him if he would ever force her younger sister to fellate him, and Hoglund responded, “I don't know, maybe.” Tr. at 30.

The State called as expert witnesses pediatrician Carol Butler, clinical psychologist Amanda Mayle, and mental health counselor Christine Shestak. Each witness had treated or counseled A.H. In varying degrees of specificity, each witness essentially testified that A.H. was “not prone to exaggerate or fantasize” concerning sexual matters.

The jury found Hoglund guilty on both counts of child molesting as Class A felonies. Apparently due to double jeopardy concerns the trial court sentenced Hoglund to a term of fifty years on Count I only.1 Hoglund appealed contending the testimony of the expert witnesses constituted impermissible vouching evidence. He also argued that based on his character and the nature of the offense a fifty-year sentence was inappropriate. In a divided opinion the Court of Appeals rejected both claims and affirmed the trial court's judgment. Hoglund v. State, 945 N.E.2d 166 (Ind.Ct.App.2011). Having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we examine the admissibility of vouching testimony. We summarily affirm that portion of the Court of Appeals opinion concerning Hoglund's inappropriateness claim. Additional facts are set forth below.

Background
A.

For over two decades our courts have adhered to relaxed evidentiary rules concerning

[962 N.E.2d 1233]

the testimony of children who are called upon as witnesses to describe sexual conduct.2 Beginning in Lawrence v. State, we 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.”464 N.E.2d 923, 925 (Ind.1984); accord Head v. State, 519 N.E.2d 151, 153 (Ind.1988) (finding it permissible under Lawrence to allow witness to testify that child victim was not prone to fabrication or to fantasizing, but reversible error for witness “to review each item of the child's testimony and to specifically vouch for the truthfulness of such testimony”).

As the Court of Appeals has observed, “the line between the impermissible vouching for the victim's credibility on the one hand and rendering permissible opinions with regard to a proclivity to not exaggerate or fantasize, on the other hand, is an extremely fine one.” Hook v. State, 705 N.E.2d 219, 223 n. 4 (Ind.Ct.App.1999) (finding expert's testimony that it was not uncommon for children to give inconsistent statements over time was not improper vouching testimony as expert only indirectly commented on child's credibility and did not state that witness was trustworthy, that victim was telling the truth, or that witness was reliable and credible), trans. denied. As a result of this delicate line-drawing Lawrence has been cited in support of allowing various statements that indirectly accredit or vouch for a child's testimony. For example in Wright v. State, the Court of Appeals upheld a social worker's testimony that she did not believe the victim was prone to fantasize or exaggerate in sexual matters, and “that she learned nothing about [the child witness] that would be inconsistent with the assertion that [the child] had been a victim of sexual abuse.” 581 N.E.2d 978, 980 (Ind.Ct.App.1991); see Jarrett v. State, 580 N.E.2d 245, 250 (Ind.Ct.App.1991) (declaring “properly admitted” testimony from pediatrician that “most children [of victim's] age [of five] do not fantasize about sexual relationships without some prior exposure, and that probably 95% of the children telling stories about sexual encounters at that age are telling the truth”). This Court has approved statements that a child witness had an accurate perception of reality, such as in Settle v. State, 526 N.E.2d 974, 976 (Ind.1988) (concluding that such testimony “did not undertake to pass upon whether the child had told the truth in her testimony”). And in Barger v. State, we approved of testimony that the

[962 N.E.2d 1234]

child witness had a reputation for truthfulness. 587 N.E.2d 1304, 1308 (Ind.1992).

By contrast our courts generally have found error in the admission of accrediting testimony only when it is presented in a more obvious and blatant fashion. See, e.g., Jones v. State, 581 N.E.2d 1256, 1258 (Ind.Ct.App.1991) (“Here, a witness asserted her belief as to the truth of [the child's] allegations, invading the province of the jury....”); Ulrich v. State, 550 N.E.2d 114, 115 (Ind.Ct.App.1990) (“By stating that the [child] was reliable and credible, the expert witness invaded the province of the jury.”); Douglas v. State, 484 N.E.2d 610, 612 (Ind.Ct.App.1985) (finding error in testimony that expert witness believed the child was telling the truth).

The foregoing cases are consistent with our Lawrence decision. But Lawrence was decided ten years before this Court adopted the Indiana Rules of Evidence. And as we have observed, “long-standing rules of evidence have been subsumed or eliminated by the adoption of our new rules of evidence.” Joyner v. State, 678 N.E.2d 386, 389 n. 2 (Ind.1997). See Swanson v. State, 666 N.E.2d 397, 398 (Ind.1996) (“[W]e believe that the admissibility of evidence is better tested by reference to the concepts found in those rules.”). Relevant to our discussion is Rule 704(b), which provides: “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.” 3

In a few cases, the Court of Appeals has interpreted Lawrence as representing an exception to Rule 704(b) noting that the Rule is relaxed in the child molestation context. See, e.g., Rose v. State, 846 N.E.2d 363, 367 (Ind.Ct.App.2006); Krumm v. State, 793 N.E.2d 1170, 1178–79 (Ind.Ct.App.2003); Fleener v. State, 648 N.E.2d 652, 657 (Ind.Ct.App.1995), summarily aff'd in pertinent part by 656 N.E.2d 1140, 1142 (Ind.1995). But see Hook, 705 N.E.2d at 221–22 (applying Lawrence without mentioning Rule 704(b)).

B.

This Court has not addressed the interplay between Lawrence and the Indiana Rules of Evidence. Today, we revisit Lawrence to determine whether testimony that a child witness “is not prone to exaggerate or fantasize about sexual matters,” 464 N.E.2d at 925, is consistent with Rule 704(b), and if not, whether in any event Lawrence should apply as an exception to the Rule. Stated somewhat differently, we must resolve whether testimony concerning “exaggeration” or “fantasy” is the equivalent of testimony about “truthfulness,” and if so, whether such...

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153 practice notes
  • Cannon v. State, Court of Appeals Case No. 34A05–1707–CR–1544
    • United States
    • Indiana Court of Appeals of Indiana
    • April 11, 2018
    ...errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party." Hoglund v. State , 962 N.E.2d 1230, 1238 (Ind. 2012). In determining the effect of the evidence on a defendant's substantial rights, we look to the probable impact on the fact fi......
  • Halliburton v. State, No. 20S00–1206–LW–560.
    • United States
    • Indiana Supreme Court of Indiana
    • December 19, 2013
    ...“[n]o witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.2012) (alteration in original) (quoting Barger v. State, 587 N.E.2d 1304, 1308 (Ind.1992) (quotation omitted)); Shepherd v. State,......
  • Palilonis v. State, No. 42A05–1104–CR–197.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 20, 2012
    ...on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992). However, our Supreme Court very recently decided Hoglund v. State, 962 N.E.2d 1230 (Ind.2012), in which it expressly eliminated this vouching testimony exception in the context of child-molesting cases. Vouching testimony is m......
  • Guthrie v. State, No. 45A05–1311–PC–551.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 18, 2014
    ...464 N.E.2d 923 (Ind.1984), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992) and overruled by Hoglund v. State, 962 N.E.2d 1230 (Ind.2012), our Supreme Court addressed whether the testimony of a clinical social worker invaded the province of the jury and amounted to ......
  • Request a trial to view additional results
152 cases
  • Cannon v. State, Court of Appeals Case No. 34A05–1707–CR–1544
    • United States
    • Indiana Court of Appeals of Indiana
    • April 11, 2018
    ...errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party." Hoglund v. State , 962 N.E.2d 1230, 1238 (Ind. 2012). In determining the effect of the evidence on a defendant's substantial rights, we look to the probable impact on the fact fi......
  • Halliburton v. State, No. 20S00–1206–LW–560.
    • United States
    • Indiana Supreme Court of Indiana
    • December 19, 2013
    ...“[n]o witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.2012) (alteration in original) (quoting Barger v. State, 587 N.E.2d 1304, 1308 (Ind.1992) (quotation omitted)); Shepherd v. State,......
  • Palilonis v. State, No. 42A05–1104–CR–197.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 20, 2012
    ...on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992). However, our Supreme Court very recently decided Hoglund v. State, 962 N.E.2d 1230 (Ind.2012), in which it expressly eliminated this vouching testimony exception in the context of child-molesting cases. Vouching testimony is m......
  • Guthrie v. State, No. 45A05–1311–PC–551.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 18, 2014
    ...464 N.E.2d 923 (Ind.1984), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992) and overruled by Hoglund v. State, 962 N.E.2d 1230 (Ind.2012), our Supreme Court addressed whether the testimony of a clinical social worker invaded the province of the jury and amounted to ......
  • Request a trial to view additional results

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