FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID W. LAMONT GREGORY F. ZOELLER

Evansville, Indiana Attorney General of Indiana

J. T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JEFFREY ARCHER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1209-CR-448

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice, Jr., Judge

Cause No. 49G02-1109-FA-68637

September 30, 2013

OPINION - FOR PUBLICATION

MAY, Judge
2

Jeffrey Archer appeals his convictions of Class A felony child molesting1 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.

FACTS AND PROCEDURAL HISTORY

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 

 

1

Ind. Code § 35-42-4-3(a).

2

Ind. Code § 35-42-4-3(b).
3

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.

DISCUSSION AND DECISION

1. Statement of Competency as Impermissible Vouching Statement

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 
4

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:

Court: [D]o you understand the difference between telling the truth and 

telling a lie?

[L.B.]: Yes.

Court: Okay. If I told you that I was sitting up here and this robe in 

[sic] color, would that be the truth or would it be a lie?

[L.B.]: Lie.

Court: Okay. And sometimes if you get caught telling a lie, what 

happens to you?

[L.B.] I get in trouble and I have a time out.

(Tr. at 93.) The court then stated: “Okay. Very good. I’m very satisfied that this witness 

understands the oath and that she is competent, understands the difference between the truth 

and a lie and understands the consequences of telling a lie.” (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 isfundamental error. Konopasek 

v. State, 946 N.E.2d 23, 27 (Ind. 2011). Fundamental error is an error “so prejudicial to 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 
5

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 

recitesthe factors set forth in Harrington for determining the competency of a child witness. 

The trial court’s statement did not amount to fundamental error.

2. Allegations of Vouching Testimony

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

 

3 Archer also argues the trial court abused its discretion in admitting the testimony of Lauren McClellan, a DCS 

investigator, regarding a letter from McClellan to Archer. He asserts “[t]his testimony was solicited to show 

the jury that Ms. Archer knew of the allegations prior to Detective McAllister trying to talk with her.” 

(Appellant’s Br. at 22.) As Archer offers no legal authority to suggest the admission of McClellan’s testimony 

regarding the letter was improper, the argument is waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring each 

argument be supported by legal authority). 
6

A. Michael Tollar

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.

B. Diane Bowers

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.
7

[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 indicator if 

[their] language skills don’t match what they’re telling me. So if

they’re using words that are more adult, or like words that a 

normal child that age might use. Uhm, also if it sounds scripted 

x [sic] like they’re reading a movie part or something and uhm, 

that’s it, but they can’t give me details – I love details – and if 

they can’t give me details, that might be an indicator. Uhm, of 

course, you have to take into consideration another – is motive,

but that’s not something that I really see. So there – there are 

just different kinds of indications.

[State]: Okay. And based on your training and experience and 5500 
8

interviews, uhm, did you observe any of those indicators when 

you interviewed L.B.?

[Bowers]: No.

(Tr. at 298-301.)

In Kindred v. State, 973 N.E.2d 1245, 1257 (Ind. Ct. App. 2012), we discussed the 

general prohibition against vouching for the credibility of a child witness in a molestation 

case:

We read Hoglund [v. State, 962 N.E.2d 1230, 1235 (Ind. 2012)] to suggest that 

testimony about whether a child has been coached amounts to the same 

improper commentary on the child’s truthfulness as testimony about whether a 

child is prone to exaggerate or fantasize about sexual matters. We hold that 

general 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. By contrast, where a witness opines as to whether the child victim 

was coached – offering an ultimate opinion, as [the witness] did here – the 

witness invades the province of the jury and vouches for the child.

Id. (emphasis added).

Bowers described the indicators she looks for to determine whether a child has been 

coached to report untrue allegations of molestation. The State did not ask Bowers whether 

she thought L.B. had been coached; instead, the State asked Bowers if she observed any of 

those indicators in L.B. Therefore, based on Kindred, we cannot say the trial court abused its 

discretion by admitting Bowers’ testimony. 

C. Detective Eli McAllister

Archer also argues Detective McAllister, who investigated the case and interviewed 

L.B. about the alleged incidents of molestation, vouched for L.B.’s truthfulness:

[State]: You had told the jury that when you reviewed the Johnson 
9

County interview, you said that you were clear that L.B. was 

ta[l]king about penetration, but that you wanted Diane Bowers 

to clarify more specifically what happened?

[McAllister]: Uhm, I wasn’t clear on what she...

[Court holds sidebar conference regarding Defense objection.]

[State]: Now, detective, I think you were getting ready to explain what 

[it] was you wanted to clarify with regard to digital penetration?

[McAllister]: Yes. Uhm, what I listened to, it clearly sounded as though she 

was describing being sexually penetrated. However the proper 

follow-up questions to allow her the opportunity to fully explain 

exactly how it happened and how it took place and maybe some 

of those details surrounding it. That follow-up question wasn’t 

asked by Lauren McClellan on the interview – or on the 

recording that I watched. I wanted to have a second interview 

simply to ask the follow-up questions to what she described and 

what sounded like to me as [sic] sexual penetration. To sort of 

clarify that point and not go forward with a criminal case 

without being sure of [what] we were dealing with.

(Tr. at 346-49.) Detective McAllister’s statements regarding L.B.’s interview with Bowers 

did not vouch for L.B.’s truthfulness. He expressed no opinion “concerning intent, guilt, or 

innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified 

truthfully; or legal conclusion.” Evid. R. 704(b). Instead, Detective McAllister testified 

there were parts of L.B.’s interview with Bowers on which he wished to follow-up. The trial 

court did not abuse its discretion when it admitted Detective McAllister’s testimony over 

Archer’s objection.

3. Denial of Request to Admit Evidence of L.B.’s Post-Allegation Behavior

Archer sought to admit counseling records regarding L.B.’s post-allegation behavior, 

including an incident which happened at her school and the therapist concluded was a result 

of something L.B. experienced when visiting her mother sometime after the incidents with 
10

Archer occurred. The trial court denied the request because the evidence was hearsay, 

irrelevant, and “[t]he probative value is far outweighed – far outweighed by the prejudicial 

effect because the mother’s background had nothing to do with, in this Court’s opinion, with 

these allegations.” (Tr. at 288.) Archer concedes the evidence from the counseling records

might not have been admissible initially, due to its prejudicial nature, but the State opened

the door to such evidence when it questioned Cindy Tollar about L.B.’s post-allegation 

demeanor. We disagree.

Whether the State opened the door to this evidence is irrelevant, because the evidence 

was inadmissible. Archer indicated he did not intend to have the social worker who created 

the records testify, and the records presumably contained statements by L.B. See Evid. R. 

801 (hearsay is a statement, “other than one made by the declarant while testifying at trial or 

hearing, offered in evidence to prove the truth of the matter asserted.”); see also Evid. R. 802 

(“Hearsay is not admissible except as provided by law or by these rules.”); and see Evid. R. 

805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part of 

the combined statements conforms with an exception to the hearsay rule provided in these 

rules.”). As Archer has not demonstrated the records were not hearsay or that an exception 

applies, the trial court did not abuse its discretion when it denied Archer’s request to admit 

L.B.’s counseling records.

4. Final Instruction 6

Instructing the jury is a matter assigned to the sound discretion of the trial court, and 

we review such decisions only for abuse of discretion. Hubbard v. State, 742 N.E.2d 919, 
11

921 (Ind. 2001), cert. denied 534 U.S. 869 (2001). An improper instruction will merit 

reversal only if it so affects the entire charge that the jury is misled as to the law in the case. 

Id. In reviewing a challenge to a jury instruction, we consider whether the instruction 

correctly states the law, whether there was evidence in the record to support giving the 

instruction, and whether the substance of the tendered instruction is covered by other 

instructions. Id. “[A]n instruction directed to the testimony of one witness erroneously 

invades the province of the jury when the instruction intimates an opinion on the credibility 

of a witness or the weight to be given to his testimony.” Pope v. State, 737 N.E.2d 374, 378 

(Ind. 2000).

Archer takes issue with Final Instruction 6, which reads: “Proof of the slightest 

penetration is sufficient to sustain a conviction for child molesting based upon penetration of 

the female sex organ or anus by the male sex organ or an object.” (App. at 161.) Archer 

argues the instruction “unfairly highlights the testimony of L.B. . . . presents the appellate 

standard of review which [sic] is not relevant to the jury’s function as a fact-finder. . . .[and] 

the jury was possibly confused or lead [sic] to a verdict of conviction [sic] by the term 

‘slightest.’” (Appellant’s Br. at 24.)

As Archer did not object to the instruction at trial, he has waived the issue for our 

review. See Stafford v. State, 736 N.E.2d 326, 332 (Ind. Ct. App. 2000) (when defendant 

does not make timely objection to jury instructions, the issue is waived for appellate review). 

To avoid waiver, the defendant must demonstrate fundamental error. Id. For an error to be

fundamental, it must be a “substantial, blatant violation of basic principles of due process that 
12

renders the trial unfair to the defendant.” Id. To justify reversal based on an erroneous jury 

instruction, “the error must be of such a nature that the whole charge of which it forms a part 

misleads the jury as to the law of the case.” Id. 

Such is not the case here. Jury Instruction 6 is a correct statement of law. See

Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996) (“Proof of the slightest penetration is 

sufficient to sustain convictions for child molesting.”). L.B. testified penetration occurred, 

and Archer does not argue the information in Jury Instruction 6 is duplicative of another 

instruction. Final Instruction 6 was not error.

5. Sufficiency of Evidence

When reviewing sufficiency of evidence to support a conviction, we consider only 

the probative evidence and reasonable inferences supporting the decision. Drane v. State, 

867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess witness 

credibility and weigh the evidence to determine whether it is sufficient to support a 

conviction. Id. To preserve this structure, when we are confronted with conflicting 

evidence, we consider it most favorably to the ruling. Id. We affirm a conviction unless no 

reasonable fact-finder could find the elements of the crime proven beyond a reasonable 

doubt. Id. It is therefore not necessary that the evidence overcome every reasonable 

hypothesis of innocence; rather, the evidence is sufficient if an inference reasonably may be 

drawn from it to support the decision. Id. at 147. 

a. Class A Felony Child Molesting

To prove Archer committed Class A felony child molesting, the State had to present 
13

evidence Archer “perform[ed] or submit[ed] to sexual intercourse or deviate sexual conduct” 

with a child under the age of fourteen, when Archer was over twenty-one years old. Ind. 

Code 35-42-4-3(a)(1). Archer argues L.B.’s testimony was incredibly dubious and there was 

no circumstantial evidence to support it. We disagree.

Under the “incredible dubiosity rule” we may “impinge on the jury’s responsibility to 

judge the credibility of the witness only when it has confronted ‘inherently improbable 

testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.’”

Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind. 1981). We will reverse a conviction if the 

sole witness presents inherently improbable testimony and there is no circumstantial evidence 

of the defendant’s guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind. 1999).

Archer argues inconsistencies between L.B.’s testimony at trial and during a 

deposition make her testimony incredibly dubious. A conviction of child molesting may rest 

on the uncorroborated testimony of the victim. Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 

1992), reh’g denied. L.B. testified Archer touched her genitalia inside of her underwear, he 

put up to three fingers inside of her vagina and she knew he put his fingers inside of her 

vagina because it hurt. Archer does not point to any of L.B.’s testimony that is “inherently 

improbable.” Archer has not demonstrated L.B.’s testimony was incredibly dubious, and we 

decline Archer’s invitation to reweigh the evidence or judge L.B.’s credibility. See Drane, 

867 N.E.2d at 146.

b. Class C Felony Child Molesting

To convict Archer of Class C felony child molesting, the State had to prove Archer, 
14

with a child under age fourteen, “perform[ed] or submit[ted] to any fondling or touching, of 

either the child or the older person, with intent to arouse or to satisfy the sexual desires of 

either the child or the older person.” Ind. Code § 35-42-4-3(b). Archer argues the State’s 

evidence was insufficient because “[t]here was no direct or circumstantial evidence to infer 

that the alleged touches were to satisfy or arouse the sexual desires of Archer.” (Appellant’s 

Br. at 21.) We disagree.

Evidence of mere touching is not sufficient to prove Class C felony child molesting. 

Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011), trans. denied. The State must prove 

the “act of touching was accompanied by the specific intent to arouse or satisfy sexual 

desires.” Id. That intent “may be established by circumstantial evidence and may be inferred 

from the actor’s conduct and the natural and usual sequence to which such conduct usually 

points.” Id. 

L.B. testified Archer touched her chest and stomach on top of and underneath her shirt 

multiple times and the touching occurred while L.B. was in bed with Archer and L.B.’s 

grandmother. Further, L.B. testified Archer touched her vagina, and once put his fingers 

inside her vagina. It is reasonable to infer from that evidence Archer intended to arouse or 

satisfy his sexual desires. See Altes v. State, 822 N.E.2d 1116, 1122 (Ind. Ct. App. 2005) 

(evidence sufficient to prove Class C felony child molesting when Altes touched areas not 

associated with sex organs under the victim’s clothing), trans. denied.

6. Ineffective Assistance of Counsel

We begin our review of a claim of ineffective assistance of counsel with a strong 
15

presumption “that counsel rendered adequate assistance and made all significant decisions in 

the exercise of reasonable professional judgment.” Ward v. State, 969 N.E.2d 46, 51 (Ind. 

2012) (citation omitted). Counsel has wide latitude in selecting trial strategy and tactics, 

which will be subjected to deferential review. Id. “[A] defendant must offer strong and 

convincing evidence to overcome this presumption.” Saylor v. State, 765 N.E.2d 535, 549 

(Ind. 2002). 

An ineffective assistance challenge requires a defendant to establish both deficient 

performance and resulting prejudice. Pontius v. State, 930 N.E.2d 1212, 1219 (Ind. Ct. App. 

2010), trans. denied. Performance is deficient when trial counsel’s representation falls below 

an objective standard of reasonableness causing errors sufficiently serious to amount to a 

denial of the Sixth Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 

(Ind. 2003). Prejudice is established when “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would be different.” Id. If 

defendant does not establish prejudice, we need not evaluate trial counsel’s performance. 

Pontius, 930 N.E.2d at 1219.

Archer argues trial counsel was ineffective because (1) defense counsel did not object 

to alleged attacks against defense counsel; (2) counsel did not object to allegations of namecalling by Archer and his wife; (3) counsel did not submit any proposed final instructions; 

and (4) counsel did not “require the trial court to read or submit the preliminary instructions 

on the elements of the charges against Archer.” (Appellant’s Br. at 26.) 
16

a. Failure to Object to Alleged Attacks On Defense Counsel

To demonstrate ineffective assistance of counsel for failure to object, a defendant 

must “prove that his objections would have been sustained, that the failure to object was 

unreasonable, and that he was prejudiced.” Potter v. State, 684 N.E.2d 1127, 1134 (Ind. 

1997). Archer claims his defense counsel should have objected to the State’s comment 

regarding defense counsel’s diagram, which included a person with six instead of five toes,

and its criticism of defense counsel’s questions during L.B.’s deposition. Archer does not 

indicate what objections could have been made. He argues the alleged attacks were “nothing 

more than tactics to garnish sympathy for L.B., and to unfairly prejudice Archer,” 

(Appellant’s Br. at 26), but he does not explain how these comments prejudiced him. 

Because he has not demonstrated prejudice he has not demonstrated defense counsel was 

ineffective when he did not object to comments disparaging defense counsel.

b. Failure to Object to Allegations of Name-Calling

Archer claims his defense counsel should have objected when the State asked Archer 

if he ever called Cindy Tollar a “bitch.” (Tr. at 372.) Defense counsel did object, and the 

objection was overruled. We cannot find counsel was ineffective for failing to object when 

counsel objected to the statement in question.

Archer also claims counsel should have objected when the State asked Archer and his 

wife, whether Archer’s wife called L.B. a “little heifer.” (Id. at 376.) Archer does not 

indicate what objection defense counsel should have made, and the State introduced evidence 

of the statement through refreshed recollection of a telephone call between Archer and his 
17

wife wherein his wife called L.B. a “little heifer.” (Id. at 524.) However, Archer has not 

demonstrated how this testimony resulted in prejudice against him, and thus he has not 

demonstrated trial counsel was ineffective for failing to object to this particular line of 

questioning.

c. Failure to Submit Presumption of Innocence Instruction 

An instruction that “advises the jury that the presumption of innocence prevails until 

the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the 

theory of the defendant’s innocence if they could do so, must be given if requested.” Robey 

v. State, 454 N.E.2d 1221, 1222 (Ind. 1983). Archer argues his defense counsel was 

ineffective because he did not tender an instruction regarding the presumption Archer was

innocent. However, the jury was so instructed. Final Instruction 7 reads: “Under the law of 

this State, a person charged with a crime is presumed to be innocent. To overcome the 

presumption of innocence, the State must prove the defendant guilty of each element of the 

crime charged, beyond a reasonable doubt.” (App. at 162.) Archer has not demonstrated his 

counsel was ineffective for failing to tender an instruction to the same effect.

d. Final Instructions Regarding Elements of the Crimes

Archer contends his defense counsel should have required the trial court “to read or 

submit the preliminary instructions on the elements of the charges against Archer.” 

(Appellant’s Br. at 26.) The trial court provided the jury with a copy of the preliminary 

instructions. Those instructions included the elements of the crimes with which Archer was 

charged. The trial court twice told the jury to consider both the preliminary and final 
18

instructions when coming to a verdict. Archer has not demonstrated the absence of an oral 

iteration of the elements of the crimes prejudiced him and, therefore, he has not demonstrated 

his counsel was ineffective for not requesting such an iteration.4

CONCLUSION

The trial court did not make an impermissible vouching statement when it indicated 

L.B. was competent to testify. Nor were statements made by Michael Tollar, Diane Bowers, 

and Detective MacAllister impermissible vouching statements. The trial court did not abuse 

its discretion when it declined to admit L.B.’s post-allegation counseling records because the 

records were hearsay within hearsay. Final Instruction 6 did not prejudice Archer, and the 

State presented sufficient evidence he committed Class A felony child molesting and Class C 

felony child molesting. Finally, Archer has not demonstrated his defense counsel was 

ineffective. Accordingly, we affirm.

Affirmed.

BAKER, J., and MATHIAS, J., concur.

 

4 Archer argues even if the errors he alleges are not individually sufficient to reverse his convictions, the

cumulative effect of the errors denied him a fair trial. As we find no error, we need not address that argument.