Court of Appeals of Indiana | Opinion 65A04-1412-CR-592| September 9, 2015 Page 1 of 12

ATTORNEY FOR APPELLANT

William W. Gooden

Mt. Vernon, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Melvin C. Hamilton,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 9, 2015

Court of Appeals Cause No.

65A04-1412-CR-592

Appeal from the Posey Circuit 

Court

The Honorable James M. 

Redwine, Judge

Trial Court Cause No.

65C01-1403-FA-71

Barnes, Judge.

Case Summary

[1] Melvin Hamilton appeals his convictions for three counts of Class A felony 

child molesting. We reverse and remand.
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Issue

[2] The sole restated issue before us is whether the trial court properly allowed 

witnesses for the State to vouch for the credibility of the alleged victims.

Facts

[3] A.S. and D.P. are the foster children of Heather and Charles Reese. Hamilton 

is Charles’s stepfather. Hamilton frequently babysat the children at his home in 

Posey County. In 2014, A.S. was ten, and D.P. was five. A.S. and D.P. called 

Hamilton “Pappy.” Tr. p. 29. 

[4] On February 24, 2014, A.S. and D.P. spent the night at Hamilton’s house. 

During the night, D.P. awoke to Hamilton putting his finger in her “private.” 

Id. at 46. A.S. was in the same room at the time, and Hamilton also put his 

finger in her “private” while D.P. watched. Id. at 56. Hamilton had done 

similar things to A.S. on at least five prior occasions.

[5] On the following morning, D.P. spontaneously told Heather that Pappy had 

touched her; when asked where, D.P. pointed to her vagina. Both D.P. and 

A.S. subsequently were interviewed by Molly Elfreich, a trained forensic 

interviewer, and D.P. and A.S. described the molestations to her. A medical 

doctor also examined D.P. and A.S., who recounted the molestations to the 

doctor.
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[6] After the forensic interview and medical examination, Detective Jeremy 

Fortune of the Posey County Sheriff’s Department interviewed Hamilton. 

During the interview, the following exchanged occurred:

[Fortune]: [T]his is the thing, Chuck, for a five year old to say 

somebody stuck their finger in my vagina is pretty powerful.

[Hamilton]: Very much so.

[Fortune]: That’s pretty powerful.

[Hamiton]: Where, where is she coming up with that?

[Fortune]: And, and to say “Pappy did it” . . .

[Hamilton]: Exactly.

[Fortune]: . . . that’s even more powerful.

[Hamilton]: I agree.

Ex. 7 p. 29.

[7] The State charged Hamilton with three counts of Class A felony child molesting 

and one count of Class C felony child molesting. At his jury trial, during crossexamination of D.P., counsel for Hamilton asked, “Has anyone told you what 

to say today?” Tr. p. 51. D.P. said no one had. Similarly, counsel for 

Hamilton asked A.S. during cross-examination, “Has anyone told you what 
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you should say here today?” Id. at 59. A.S. stated only that she had been told 

to tell the truth.

[8] The State also called Elfreich to testify after D.P. and A.S. testified. Without 

objection, the State asked Elfreich to describe various factors that she would 

look for as indicators that a child had been coached; namely, whether the child 

has trouble recalling details or has to start a story over when detailed questions 

are asked. Also without objection, the State asked Elfreich whether she had 

observed those factors when interviewing D.P. and A.S., and she testified that 

she had not. Then, over Hamilton’s objection, the State asked Elfreich whether 

she had observed any indicators of coaching in either child, and she testified 

that she had not. Also, Hamilton objected to the jury hearing Detective 

Fortune say during his interview of Hamilton that D.P.’s statements describing 

her molestation had been “powerful.” Ex. 7 p. 29. The trial court overruled 

this objection.

[9] The jury found Hamilton guilty of three counts of Class A felony child 

molestation and not guilty of the Class C felony child molestation charge. The 

trial court sentenced Hamilton accordingly, and he now appeals.

Analysis

[10] Hamilton contends that the trial court erred in overruling his objections to 

purported vouching by Elfreich and Detective Fortune regarding the 

truthfulness of D.P.’s and A.S.’s testimony. “A trial court has broad discretion 

in ruling on the admissibility of evidence and we will disturb its rulings only 
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where it is shown that the court abused that discretion.” Hoglund v. State, 962 

N.E.2d 1230, 1237 (Ind. 2012). “An abuse of discretion occurs when the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances before it.” Id.

[11] In Hoglund, our supreme court addressed existing case law regarding vouching 

testimony in the context of child sex abuse cases. Specifically, in Lawrence v. 

State, 464 N.E.2d 923, 925 (Ind. 1984), the court had held that trial courts were 

allowed to permit “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.” The 

Hoglund court noted that Lawrence predated the adoption of the Indiana 

Evidence Rules. In particular, Indiana Evidence Rule 704(b), enacted in 1994, 

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.” Cases decided by this 

court after adoption of the Evidence Rules construed Lawrence “as representing 

an exception to Rule 704(b) noting that the Rule is relaxed in the child 

molestation context.” Hoglund, 962 N.E.2d at 1234 (citing, e.g., Rose v. State, 

846 N.E.2d 363, 367 (Ind. Ct. App. 2006)). 

[12] The Hoglund court overruled Lawrence. Specifically, the court held allowing 

testimony that a child is not prone to exaggerate or fantasize about sexual 

matters is “indirect vouching testimony [that] is little different than testimony 

that the child witness is telling the truth.” Id. at 1237. The court held that such 
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testimony is at odds with Evidence Rule 704(b) and that it was inappropriate to 

carve out an exception to the rule for sex abuse cases. Id.

[13] In Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012), trans. denied, this 

court addressed Hoglund’s holding in the context of testimony related to 

whether an alleged child sex abuse victim had been “coached.” Ultimately, we 

stated: 

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 . . . the witness invades 

the province of the jury and vouches for the child.

Kindred, 973 N.E.2d at 1258. Another panel of this court followed Kindred in 

Archer v. State, 996 N.E.2d 341 (Ind. Ct. App. 2013), trans. denied.

[14] Very recently, in Sampson v. State, No. 87S01-1410-CR-684 (July 30, 2015), our 

supreme court overruled Kindred and Archer.

1

 In Sampson, the State asked a 

forensic interviewer a number of questions related to coaching of alleged child 

sex abuse victims, including what the possible signs are of a child having been 

 

1 Although the Sampson opinion does not mention Bean v. State, 15 N.E.3d 12 (Ind. Ct. App. 2014), trans. 

denied, part of that case has been called into question by Sampson. Specifically, we stated in Bean that 

testimony from a forensic interviewer that he did not observe any signs of inaccuracy or coaching in the 

alleged molestation victim was not improper vouching. Bean, 15 N.E.3d at 20, n.5. After Sampson, this 

statement is inaccurate. We note that the trial court specifically relied upon this footnote in Bean in 

overruling Hamilton’s objection to Elfreich’s testimony.
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coached and whether the interviewer had observed any such signs in the alleged 

victim in the case. The defendant failed to object to any of the questions and 

was convicted of Class C felony child molesting.

[15] After reviewing case law from Indiana and other jurisdictions, the court held:

We conclude therefore that the subtle distinction between an 

expert’s testimony that a child has or has not been coached versus an 

expert’s testimony that the child did or did not exhibit any “signs or 

indicators” of coaching is insufficient to guard against the dangers 

that such testimony will constitute impermissible vouching as we 

expressed in Hoglund. Nevertheless, “once a child’s credibility is 

called into question proper expert testimony may be 

appropriate.” Steward [v. State], 652 N.E.2d [490,] 499 [(Ind. 

1995)]. “[B]ehavioral characteristics of child abuse victims, even 

where inadmissible to prove abuse, are far less controversial 

when offered to rebut a claim by the defense that a child 

complainant’s behavior . . . is inconsistent with her claim of 

abuse.” Id. at 496. We thus align ourselves with those 

jurisdictions that permit testimony about the signs of coaching 

and whether a child exhibited such signs or has or has not been 

coached, provided the defendant has opened the door to such 

testimony.

Sampson, slip op. at 9.2 

[16] The Sampson opinion also contains the following observation as to what 

constitutes “opening the door” to otherwise inadmissible vouching evidence: 

“Opening the door refers to the principle that where one party introduces 

 

2 The time period for filing a petition for rehearing in Sampson has not yet passed.
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evidence of a particular fact, the opposing party is entitled to introduce evidence 

in explanation or rebuttal thereof, even though the rebuttal evidence otherwise 

would have been inadmissible.” Id. at p. 9 n.4. “‘The door may be opened 

when the trier of fact has been left with a false or misleading impression of the 

facts.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009)). Although 

this court has generally stated that, “when a defendant interjects an issue in a 

trial, he opens the door to otherwise inadmissible evidence,” we also have 

emphasized, “evidence relied upon to open the door must leave the trier of fact 

with a false or misleading impression of the facts related.” Beauchamp v. State, 

788 N.E.2d 881, 896 (Ind. Ct. App. 2003). 

[17] In Steward, relied upon by the Sampson opinion, the court held that expert 

testimony regarding “child sexual abuse syndrome” is inadmissible unless a 

defendant has first called a child’s credibility into question. Steward, 652 

N.E.2d at 499. Specifically, the court noted that “if the defense discusses or 

presents evidence of” behavior that is seemingly inconsistent with having been 

abused, “or if during trial testimony the child recants a prior allegation of 

abuse,” then expert testimony regarding “child sexual abuse syndrome” may be 

admissible. Id.

[18] Ultimately, the Sampson court held that, although any testimony opining 

whether a child has been coached is inadmissible, such testimony did not 

constitute fundamental error in the case before it. Sampson, slip op. at 10. 

Specifically, the court noted that defense counsel had thoroughly crossexamined the alleged victim, whose testimony never wavered from that given 
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during direct examination. Id. The defendant’s testimony also coincided with 

the alleged victim’s in many ways, except for the having denied molesting the 

victim. Id. And, the defendant had thoroughly cross-examined the forensic 

interviewer regarding the basis on which she had reached her conclusion that

the alleged victim had not been coached. Id.

[19] Here, Hamilton did not object to testimony by Elfreich regarding whether either 

D.P. or A.S. had trouble recalling details or had to start their narrative over 

when being asked detailed questions, which according to Elfreich would have 

been indicators of coaching. However, Hamilton did object to Elfreich being 

asked, “did you observe any indicators of coaching” in either D.P. or A.S., to 

which she responded “No, I did not.” Tr. p. 81. Hamilton’s failure to object to 

the first questions but objecting to the last question was consistent with this 

court’s holdings in Kindred and Archer. Also, Hamilton’s objection to Elfreich’s 

ultimate opinion on coaching preserved the issue for review, unlike in Sampson. 

It is clear under Sampson that all of Elfreich’s testimony regarding indicators of 

coaching was inadmissible. It is the type of vouching testimony deemed to 

improperly invade the province of the jury to assess witness credibility. See

Head v. State, 519 N.E.2d 151, 153 (Ind. 1988) (reversing molestation 

convictions for improper vouching evidence described as “an invasion of the 

province of the jury in determining what weight they would place upon the 

child’s testimony.”).

[20] In overruling Hamilton’s objection, the trial court ruled in part that Hamilton 

had “opened the door” to Elfreich’s coaching testimony because he had asked 
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both D.P. and A.S. during cross-examination whether anyone had told them 

what to say in court. However, both D.P. and A.S. denied having been told 

what to say by anyone. On appeal, the State does not argue that Hamilton 

opened the door to Elfreich’s testimony, and it is correct not to do so. Merely 

asking the witnesses whether they had been told what to say is not equivalent to 

presenting evidence that they had been told what to say, or creating a false 

impression in the jury that they had been. The witnesses unequivocally 

answered no to the questions—there was no evidence or suggestion in any 

testimony that the girls had been coached. As such, Hamilton did not open the 

door to Elfreich’s testimony.

[21] Unlike in Sampson, Hamilton preserved his claim of error with respect to 

Elfreich’s testimony, and so we review it for ordinary reversible error, not 

fundamental error. We will reverse a conviction for preserved error in the 

admission of evidence if the error is inconsistent with substantial justice or 

affects the substantial rights of a party. Bradford v. State, 960 N.E.2d 871, 877 

(Ind. Ct. App. 2012) (citing Ind. Trial Rule 61). In analyzing the prejudicial 

effect on a defendant’s substantial rights from the erroneous admission of 

evidence, we look to the probable impact of the evidence on the factfinder. Id. 

The improper admission of evidence is deemed harmless if there is substantial 

independent evidence of guilt supporting a conviction such that we can say 

there is no substantial likelihood that the questioned evidence contributed to the 

conviction. Id. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)). 

“‘Reversal may be compelled if the record as a whole discloses that the 
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erroneously admitted evidence was likely to have had a prejudicial impact on 

the fact-finder, thereby contributing to the judgment.’” Id. (quoting Ground v. 

State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998)). If we determine that an 

evidentiary error had substantial influence on a verdict, or if we are left in grave 

doubt as to whether it did so, we must reverse the conviction. Id. 

[22] We cannot say that the erroneous admission of Elfreich’s vouching testimony 

was harmless. There was no corroborating evidence of Hamilton’s guilt apart 

from the testimony of D.P. and A.S. The only value of Elfreich’s testimony 

was to improperly bolster the credibility of D.P. and A.S. If there is to be a rule 

barring vouching testimony such as Elfreich’s, then it is extremely difficult to 

imagine a scenario in which such testimony, where an objection to it was raised 

at trial, is harmless in a case such as this where a conviction depends entirely 

upon assessing the credibility of the alleged victim. Otherwise there would 

seem to be little point in having such a rule. We conclude that the erroneous 

admission of Elfreich’s testimony likely had a substantial influence on the jury’s 

guilty verdicts. Therefore, we are compelled to reverse Hamilton’s convictions 

and to remand for a new trial.

[23] For purposes of remand, we also address Hamilton’s contention that Detective 

Fortune improperly vouched for D.P. when, during his interview of Hamilton, 

he stated several times that her statements were “powerful.” Ex. 7 p. 29. We 

acknowledge that statements made by police officers during interrogations 

potentially can be problematic under Evidence Rule 704(b). See Lampkins v. 

State, 778 N.E.2d 1248, 1251 (Ind. 2002). Still, we cannot say that these 
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comments amounted to improper vouching in the context in which they were 

made. In the framework of hearsay claims, statements by an officer designed to 

elicit a response from the defendant, as opposed to statements of fact, generally 

are admissible without the necessity of an admonishment or limiting 

instruction. Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999). Here, similarly, 

Detective Fortune’s saying that D.P. had made “powerful” statements were 

related to attempting to elicit a response from Hamilton. Hamilton did respond 

by agreeing that the statements were “powerful” but denied molesting D.P. or 

A.S. Viewing Detective Fortune’s statements from the perspective of them 

being part of a police interview, we do not believe they carry the same vouching 

force as trial testimony to that effect. Hamilton also fails to cite any authority 

in a similar case addressing statements similar to Detective Fortune’s. We 

conclude there was no error in the admission of those statements.

Conclusion

[24] The trial court committed reversible error in admitting Elfreich’s testimony 

regarding whether D.P. or A.S. had been coached. However, Detective 

Fortune’s statements during his interview with Hamilton did not constitute 

improper vouching. We reverse Hamilton’s convictions and remand for retrial 

consistent with this opinion.

[25] Reversed and remanded.

Kirsch, J., and Najam, J., concur.