Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Ryan M. Gardner

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin J. Shoptaw

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

William J. Ray,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 31, 2020

Court of Appeals Case No.

19A-CR-2869

Appeal from the Allen Superior 

Court

The Honorable David M. Zent, 

Judge

Trial Court Cause No.

02D06-1812-F3-73

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2869 | August 31, 2020 Page 2 of 15

Case Summary

[1] William Ray appeals his convictions for Count I, rape, a Level 3 felony; Count 

II, kidnapping, a Level 5 felony; Count III, criminal confinement, a Level 5 

felony; Count IV, burglary, a Level 5 felony; Count V, sexual battery, a Level 6 

felony; and his status as an habitual offender. We affirm. 

Issue

[2] Ray raises one issue for our review, which we revise and restate as whether the 

trial court abused its discretion in the admission of certain evidence. 

Facts

[3] At approximately 8:15 a.m. on November 29, 2018, Leila Thomas dropped her 

fifteen-year-old daughter,1 J.T., off at her school bus stop in Fort Wayne. 

Thomas left J.T. at the bus stop because Thomas had to leave for work. While 

waiting at the bus stop, J.T. made a Facetime call to her best friend, J.W., 

which she typically did in the morning while at the bus stop. J.T. placed the 

phone in her pocket while she spoke with J.W. from her headphones. 

[4] Suddenly, Ray “grabbed [J.T.] from behind.” Tr. Vol. III p. 155. Initially, J.T. 

thought a friend grabbed her, so she asked the person to stop; however, J.T. 

quickly realized that the person was not a friend and started kicking to get away

from Ray. J.T. nearly escaped before Ray hit J.T. on her right side, causing 

1 It appears that J.T. was fifteen at the time of the offense; however, J.T. was sixteen at the time of trial. 
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J.T. to fall down. Ray dragged J.T. to an alley and forced her into a shed. Ray 

pulled down J.T.’s pants and underwear, started kissing J.T. “all over [her] 

face.” Id. at 157. Ray then touched J.T.’s vagina with his fingers. Ray pulled

down his pants and began to put on a condom. 

[5] J.W., who remained on the phone during the incident, heard J.T. screaming for 

help and to be released and, moments later, heard Ray tell J.T. to take her pants 

off. At some point, J.T.’s earphones became disconnected from her phone, and 

Ray heard J.W., which caused Ray to “panic[ ].” Id. at 157. J.W. disconnected 

the call with J.T. and called J.T.’s mother, Thomas. Thomas began driving 

back to the bus stop and called law enforcement. J.W. also called law 

enforcement. 

[6] Meanwhile, Ray covered J.T.’s head with a hat and led her away from the shed 

to a nearby house. Once inside the house, Ray attempted to shut off J.T.’s 

phone. J.T. told Ray not to hurt her, and Ray said he was going to take J.T. 

back to the bus stop. 

[7] Ray again placed the hat on J.T.’s head and began to take J.T. back to the bus 

stop. Thomas arrived on the scene and saw that Ray had J.T. in a “headlock.”

Id. at 201. Ray released J.T. from the headlock and began running, and 

Thomas began to chase Ray with her vehicle while she waited for police arrive. 

Thomas followed Ray down an alley, where Ray was forced to stop running, 

and Thomas photographed Ray. Law enforcement arrived on the scene, and 

Ray was taken into custody. 
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[8] The State filed an information, which was later amended, and charged Ray 

with: Count I, rape,2 a Level 3 felony; Count II, kidnapping, a Level 5 felony; 

Count III, criminal confinement, a Level 5 felony; Count IV, burglary, a Level 

5 felony; and Count V, sexual battery, a Level 6 felony. On July 31, 2019, the 

State filed a notice of intention to seek an habitual offender enhancement.

[9] At Ray’s October 2019 jury trial, witnesses testified to the foregoing facts. 

Relevant to this appeal, the following witnesses also testified sequentially to the 

following events. First, J.T. testified that Ray touched J.T.’s vagina with his 

fingers. Second, Officer Manuel Aguilar, with the Fort Wayne Police 

Department, testified that when he arrived on the scene, Thomas reported 

“that’s the man who raped my baby.” Id. at 229. Officer Aguilar also testified 

that J.T. reported to him that Ray “put his finger in her vagina” and that Ray 

“had [his penis] out” but did not insert his penis into her vagina. Id. at 231.

Ray did not object when Officer Aguilar made these statements. 

[10] Next, Drew Kellogg, the paramedic who arrived on the scene, testified that 

J.T.’s chief complaint was that she was “sexually assaulted.” Tr. Vol. IV p. 57.

Ray objected to Kellogg’s testimony, arguing that it was repetitive and 

constituted vouching for J.T. The trial court directed the State to refrain from 

asking Kellogg questions about J.T.’s complaints. Kellogg then testified that 

2 The State filed an amended information on Count I on January 31, 2019, due to a scrivener’s error.
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J.T. “did not go into any detail” and that J.T. “had no visible injuries.” Id. at 

59. 

[11] Lorrie Freiburger, a forensic interviewer with the Dr. Bill Lewis Center for 

Children, testified that she interviewed J.T. on November 29, 2018. On direct 

examination, the deputy prosecutor and Freiburger engaged in the following 

colloquy: 

Q. [Freiburger], with respect to J.T. we’re not gonna go into any 

of the content of the interview, that would be hearsay. We had 

an opportunity to meet her yesterday. What was her demeanor 

like, though, when you spoke to her? How did she present?

A. Oh, she was [ ] she communicated very well. I mean, she was 

able to articulate a lot of details about what happened, she was 

very - had been very aware of her surroundings and were [sic]

able to retain those and then give those back to me. She was not 

afraid to correct me if I repeated something back that —

Id. at 99. Ray objected and argued that Freiburger’s testimony was “getting 

past demeanor and we’re talking about ability to recall things. We’re getting 

close to vouching of this witness.” Id. The trial court agreed and reminded 

Freiburger that the question referred to J.T.’s demeanor. Freiburger responded: 

“Oh, very confident, very – was able to communicate well, and was – I want to 

say helpful in an interview. I mean.” Id. Ray moved to strike Freiburger’s 

latter comment, which the trial court granted and struck from the record. 

Finally, the State elicited testimony from Freiburger regarding the difference 
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between an interview room and the courtroom as a child-friendly environment. 

Ray did not cross-examine Freiburger. 

[12] J.T.’s medical examination report, which included a statement made by J.T. to

Leslie Cook, a forensic nurse examiner at the Fort Wayne Sexual Assault 

Treatment Center, was also admitted at trial. The report restated J.T.’s versions 

of events, as reported to Cook, as follows: “[Ray was] rubbing on [J.T.] –

[J.T.’s] vagina with his fingers, trying to stick his fingers inside [J.T.] He d[id], 

both inside [and] outside.” State’s Ex. Vol. p. 168. Ray objected and argued

that, while J.T.’s statement contained in Cook’s report would ordinarily be 

admissible for medical purposes, the statement would be a drumbeat repetition 

of the earlier testimony by J.T., Officer Aguilar, and Kellogg. The trial court 

overruled Ray’s objection. 

[13] The jury found Ray guilty of all five counts and found Ray to be an habitual 

offender. The trial court sentenced Ray to an aggregate sentence of fifty-two

years at the Indiana Department of Correction. Ray now appeals his 

conviction. 

Analysis

[14] Ray argues that the trial court abused its discretion in the admission of certain 

evidence. “The general admission of evidence at trial is a matter we leave to 

the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 

2013). “We review these determinations for abuse of that discretion and 
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reverse only when admission is clearly against the logic and effect of the facts 

and circumstances and the error affects a party’s substantial rights.” Id. at 260.

A. Did the evidence constitute a drumbeat repetition?

[15] Ray argues that J.T.’s testimony, followed by subsequent witnesses who 

testified to J.T.’s out of court statements recounting the allegations, constituted

a drumbeat repetition in evidence, which was prejudicial to Ray. In Kress v. 

State, 133 N.E.3d 742, 746-47 (Ind. Ct. App. 2019), trans. denied, a panel of our 

court summarized the law and concerns regarding drumbeat repetition of 

evidence as follows: 

In a criminal case, the core issue at trial is, of course, what the 

defendant did (or did not do), not why someone else did (or did 

not do) something. For this reason, the Indiana Supreme Court 

has urged courts to take caution when a prosecutor offers an 

otherwise[]inadmissible assertion for the purpose of providing 

context for the jury. Indeed, when an out-of-court assertion is 

offered for some ancillary purpose, we must pay careful attention 

to that proffered purpose. This is because Indiana Evidence Rule 

403 contemplates exclusion where the probative value of the 

evidence is “substantially outweighed by a danger of . . . unfair 

prejudice, confusing the issues, misleading the jury, undue delay, 

or needlessly presenting cumulative evidence.” Evid. R. 403. . . . 

In short, Indiana law does not permit minimally probative end 

runs around the rule against hearsay. Thus, “[i]f the fact sought 

to be proved under the [proffered] non-hearsay purpose is not 

relevant, or it is relevant but its danger of unfair prejudice 

substantially outweighs its probative value, the hearsay objection 

should be sustained.” Craig v. State, 630 N.E.2d 207, 211 (Ind. 

1994).
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One danger of prejudice arises in the “drumbeat repetition” of an 

out-of-court assertion. See, e.g., Modesitt v. State, 578 N.E.2d 649, 

651-52 (Ind. 1991). Indeed, in light of a proffered non-hearsay 

purpose, exclusion might not be warranted where there is a mere 

isolated reference to an assertion. See Evid. R. 403. However, as 

additional testimony about the assertion “beats the drum,” there 

is increasing danger the jury will use the testimony for an 

improper purpose. For example, the jury might use the 

testimony as proof of the matter asserted. . . . Or, the jury could 

treat the repetitive testimony as a form of vouching for the 

credibility of the declarant. . . . As to the latter risk, this type of 

problematic vouching is not the blatant type prohibited by 

Evidence Rule 704(b)—where a witness directly opines about 

“the truth or falsity of allegations” or “whether a witness has 

testified truthfully.” Evid. R. 704(b). Rather, the risk is 

insidious. That is, the repeated references might eventually 

inundate the jury, leading them toward an inference that 

witnesses are vouching for the credibility of the declarant. See, 

e.g., Stone v. State, 536 N.E.2d 534, 540 (Ind. Ct. App. 1989)

(identifying impermissible vouching where the victim’s credibility 

“became increasingly unimpeachable as each adult added his or 

her personal eloquence, maturity, emotion, and professionalism 

to [the] out-of-court statements”), trans. denied.

Kress, 133 N.E.3d at 746-47 (some citations and quotations omitted). 

[16] In support of his argument that the trial court abused its discretion in admitting 

drumbeat repetition evidence, Ray points to the following:

3 (1) J.T.’s testimony 

3 Ray, in his brief, also discusses Freiburger’s testimony when recounting the evidence that he argues 

constituted a drumbeat repetition. Ray’s argument, however, appears to be more that Freiburger was 

vouching for J.T. as a reliable witness in light of his reference to Indiana Trial Rule 704(b). We, therefore, 

will consider that argument below instead of considering Freiburger’s testimony as part of the drumbeat 

repetition of J.T.’s allegations. 
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that Ray touched her vagina with his finger; (2) Officer Aguilar’s testimony

regarding J.T.’s statements, without objection from Ray; (3) Kellogg’s 

testimony that J.T.’s chief complaint was that she was sexually assaulted; and 

(4) the admitted medical report from the Fort Wayne Sexual Assault Treatment 

Center, which contained J.T.’s statements regarding Ray’s actions. 

[17] In Kress, the defendant was charged with child molesting, and the eight-year-old 

child victim was the first witness to testify and to detail the defendant’s actions. 

Kress, 133 N.E.3d at 745. Subsequent witnesses, including the child’s mother, 

grandfather, and the investigating detective, all made reference to out-of-court 

statements by the child victim relaying the incidents of sexual abuse. The child 

victim’s mother testified that she told police “what [the child victim] said”; the 

child victim’s grandfather testified that, once the child disclosed the allegations 

to him, he asked the child to repeat the allegations to the child’s mother and 

that the child’s mother “needed to report this”; and the detective testified that 

he investigated an allegation of “child abuse” and conducted interviews 

accordingly. Id. at 746. 

[18] Importantly, however, 

[The child victim] was the first witness to testify and was 

subjected to cross-examination. She gave specific, descriptive 

testimony about the touching. The subsequent witnesses gave 

only general testimony about the existence of allegations. No 

subsequent witness delved into [the child victim]’s version of 

events. Thus, unlike in other cases, here, the jury heard [the 

child victim]’s story just once. 
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Id. at 747-48. Our Court ultimately held that there was “no substantial 

likelihood that the challenged testimony contributed to the jury’s decision to 

convict Kress.” Id. at 748. 

[19] Here, we do not find that the subsequent witnesses testimony constituted a 

drumbeat repetition of J.T.’s versions of events. Importantly, J.T. was the first 

witness to testify and gave “specific, descriptive testimony” about the day’s 

events. Kress, 133 N.E.3d at 747; see cf. Modesitt v. State, 578 N.E.2d 649, 652 

(Ind. 1991) (holding that “[b]ecause the trial court . . . allowed, over objection, 

the drumbeat repetition of the declarant’s statements prior to the declarant’s 

testifying and being subject to cross examination,” the defendant’s convictions 

should be reversed). J.T. was cross-examined regarding the veracity of her 

version of events before the other witnesses testified. 

[20] Moreover, although Officer Aguilar gave some detail regarding J.T.’s 

allegations, Ray did not object during Officer Aguilar’s testimony. Ray did 

object to Kellogg’s statement that J.T. alleged she was “sexually assaulted”; 

however, Kellogg provided no other details regarding J.T.’s allegations and this 

statement alone can hardly be considered recounting J.T.’s allegations. Tr. Vol. 

IV p. 59. Finally, Ray objected to the admission of J.T.’s medical exam report

because the report contained a narrative of J.T.’s allegations. Ray concedes in 

his brief that the medical records were admissible under the medical exception 

to the hearsay rule pursuant to Indiana Rule of Evidence 803(4); however, Ray 

argues that J.T.’s statement within the medical report was repetitive and 

cumulative. The narrative in the medical report, however, did not elaborate on 
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J.T.’s allegations more than necessary, but instead merely stated them for 

medical purposes. 

[21] Based on the foregoing, we cannot find that the trial court abused its discretion 

in admitting the evidence from J.T., Officer Aguilar, Kellogg, and J.T.’s 

medical report from the Fort Wayne Sexual Assault Treatment Center. 

B. Did the evidence constitute vouching?

[22] Next, Ray argues that Freiburger’s testimony constituted impermissible 

vouching testimony. 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 vouching testimony is considered an invasion of 

the province of the jurors in determining what weight they should place upon a 

witness’s testimony.” Alvarez-Madrigal v. State, 71 N.E.3d 887, 892 (Ind. Ct. 

App. 2017) (citations omitted), trans. denied. “It is essential that the trier of fact 

determine the credibility of the witnesses and the weight of the evidence.” 

Carter v. State, 31 N.E.3d 17, 29 (Ind. Ct. App. 2015) (citations omitted), trans. denied. 

[23] Freiburger’s specific comments described J.T. as articulate, confident, aware of 

her surroundings, able to retain information, and able to share that information 

with Freiburger. Freiburger also described J.T. as “helpful in an interview,” 

which the trial court struck from the record. Tr. Vol. IV p. 99. 

[24] In Carter, the child victim disclosed Carter’s molestation, recanted the 

allegations, then again disclosed Carter’s molestation. After an investigation of 
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the child victim’s allegations and recantation, the defendant was charged with 

three counts of child molesting, Class A felonies; and two counts of child 

molesting, Class C felonies. Carter, 31 N.E.3d at 23. During the State’s case-inchief at Carter’s trial, a forensic interviewer provided testimony “concerning the 

dynamics of child abuse, the disclosure process, and when and why a child may 

recant his disclosure of the abuse.” Id. at 29. 

[25] A panel of this court found that the forensic interviewer’s testimony did not run 

afoul of Indiana Evidence Rule 704(b) because the forensic interviewer, who 

interviewed the child victim, “never mentioned [the child victim] in her 

testimony or made any statement of opinion regarding the truth of falsity of [the 

child victim]’s allegations of molestation” at the jury trial. Carter, 31 N.E.3d at 

29. Moreover, the Carter witness “did not purport to have any opinion 

regarding the case at bar[;] nor did she refer to any specific facts at issue. Her 

testimony was broad, generalized, and included reference to results of research 

studies.” Id. 

[26] Here, in contrast to the witness in Carter, Freiburger’s comments were specific 

to J.T., painted J.T. as aware of her surroundings, able to retain information 

well, confident, and articulate. Freiburger also testified that J.T. was able to 

correct Freiburger in recounting J.T.’s allegations, which is important for 

determining J.T.’s reliability. 

[27] This testimony regarding J.T.’s characteristics constituted impermissible 

vouching testimony because it took away the jury’s responsibility to determine
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whether J.T.’s testimony was credible. Freiburger implied, in specifically 

describing J.T.’s qualities, that J.T. should be believed. Accordingly, the trial 

court abused its discretion in allowing Freiburger’s impermissible vouching 

testimony. 

C. Was admission of the vouching evidence harmless error?

[28] The State argues that, even if admission of this vouching evidence was 

erroneous, any error was harmless. Errors in the admission or exclusion of 

evidence are to be disregarded as harmless error unless they affect the 

substantial rights of the party. Mendoza-Vargas v. State, 974 N.E.2d 590, 597 

(Ind. Ct. App. 2012). To determine whether an error in the introduction of 

evidence affected the appellant’s substantial rights, we assess the probable 

impact of that evidence upon the jury. 

[29] Substantial evidence, other than the vouching testimony, was submitted to the 

jury to support Ray’s conviction and to support J.T.’s testimony, including: 

J.W.’s testimony of what she heard while Facetiming with J.T.; Thomas’ 

testimony that she saw Ray holding J.T. in a headlock and that Ray ran away 

when he saw Thomas; the photographs that Thomas took of Ray; male DNA 

evidence that was detected in an internal genital swab of J.T.;

4 Ray’s DNA that 

was found as part of a mixture of DNA from three individuals on the front 

4 J.T.’s female DNA “overwhelmed” the male DNA present; therefore, the male DNA was insufficient to 

determine a matching profile. Tr. Vol. IV p. 228. 
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waistband of J.T.’s underwear;5 that a condom wrapper was found inside the

shed J.T. described; and that Ray had grass on his bottom, underneath his 

clothes, which was consistent with J.T.’s account of Ray taking his pants off in 

the shed. 

[30] Accordingly, Freiburger’s vouching testimony likely did not impact the jury 

because there was substantial evidence to support J.T.’s testimony and Ray’s 

conviction. See Wilkes v. State, 7 N.E.3d 402, 406 (Ind. Ct. App. 2014) (finding 

that, “[i]n light of the other evidence in the record, the admission of [the] 

vouching testimony was harmless”); see also Norris v. State, 53 N.E.3d 512, 524 

(Ind. Ct. App. 2017) (concluding “that the trial court’s erroneous admission of

the vouching testimony amounted to harmless error” in light of “substantial 

evidence” in the record). We find that any error in the admission of the 

evidence Ray challenges was harmless. 

Conclusion

[31] The trial court did not abuse its discretion in admitting drumbeat repetition 

evidence. Although the trial court did abuse its discretion in allowing vouching 

testimony, any error in the admission of evidence was harmless. We affirm. 

[32] Affirmed. 

5 At trial, the State presented evidence that “[t]he DNA profile [from the waistband of J.T.’s underwear] is at 

least one trillion times more likely if it originated from J.T., [Ray], and an unknown individual rather than if 

it originated from J.T., and two (2) unknown unrelated individuals.” Tr. Vol. IV p. 233. 
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Kirsch, J., and Pyle, J., concur.