Court of Appeals of Indiana | Memorandum Decision 27A04

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### 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

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A TTORNEY FOR A PPELLANT Stacy R. Uliana Bargersville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. B anks Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIA NA
Anthony Gibson , Appel lant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff July 25, 2018 Court of Appeals Ca se No. 27A04

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- 2745 Appeal from the Grant Superior Court The Honorable Jeffrey D. Todd, Judge Trial Co urt Cause No. 27D01

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Crone , Judge .Court of Appeals of Indiana | Memorandum Decision 27A04

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### Case Summary
[1] Anthony Gibson appeals his conviction, following a jury trial, for level 4 felony child molesting. He asserts that the admission of certain evidence during trial resulted in fundamental error . He also argues that the trial court abused its discr etion in the admission of other evidence and that the effect of the court’s

cu mulative errors deprived him of his right to a fair trial. Fi nding no fundamental error or abuse of discretion , and concluding that Gibson was not deprived of his right to a fai r trial, we affirm.



### Facts and Procedural History
[2] On June 19, 2016, thirteen

- year - old K .R. went to her friend C.H.’s house to spend the night. A lso a t the home that evening were C.H.’s mother, Lindy, her step father, Gibson, and five of C.H.’s nine siblings

. 1 K.R. had been to C.H.’s home on other occasions and felt comfortable with C.H.’s family.

[3] K.R. and C.H. fell asleep around midnight in the same bed. At approximately 2:30 a.m., K.R. awoke and saw a tall shadowy figure that she recognized as Gibson stan ding in the doorway of the bedroom. He was wearing a white shirt. K.R. assumed that Gibson was probably just checking on the girls , so she closed her eyes to return to sleep. K.R. heard footsteps coming toward her, but she kept her eyes closed and prete nded to be asleep. She could hear deep breathing right next to her, and then she felt a large hand move up her lower thigh, under

1 C.H. has one seven - year - old biological brother. Gibson has three biological children, and he and Lindy had recent ly adopted five children from foster care.Court of Appeals of Indiana | Memorandum Decision 27A04

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her shorts, and squeeze her buttocks a few times. K.R. was “shaking, trying not to cry” because she could not “believe it wa s happening to [her].” Tr. Vol. 2 at 36. She rolled over to her other side , and Gibson removed his hand and left the

room.

[4] K.R. stayed under the covers crying and shaking for about ten minutes before she grabbed her cell phone and began texting her mot her. K.R. asked her mother to come pick her up immediately, telling her mother that she had awakened to Gibson putting “his hand up [her] pants.” State’s Ex. 71 at 2. K.R.’s mother told K.R. that she and her fiancé, Dwayne Collins, would come pick K.R. up and stated, “I hope you are telling the truth.” Id

. at 3. K.R. responded, “Please don’t make me say anything ” and “I didn’t see that it was [Gibson] but I felt big hands.” Id . After her mother said that she was cal ling the police, K.R. texted, “[B] u t [I don’t know] who it was mom! I don’t want to get anyone in trouble I just want to go home.” Id

. K.R.’s mother responded, “[I]t’s not ok and just promise me you are telling the truth.” Id

. at 4. K.R. said, “I am.” Id

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[5] After texting with her mom, K.R. eventually woke up C.H. and told her what had happened. K.R. told C.H. that she was leaving , and she asked C.H. to walk h er downstairs. C.H. responded that it could not have been Gibson and put the idea in K.R.’s mind that somebody else “had to have came into the house.” Tr. Vol. 2 at 52. The two girls walked downstairs and observed Gibson, who appeared to be sleeping in a recliner. K.R. exited the home and walked down the driveway to get picked up. She was still texting with herCourt of Appeals of Indiana | Memorandum Decision 27A04

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mother, and w hen her mother informed her that Collins was on his way, K.R. stated, “Tell him to hurry please...[I] don’t think it was [Gibson]...I feel like someone came in the house...but [ I don’t know].” State’s Ex. 71 at 5.

[6] Before Collins arrived to pick up K.R., Gibson ex ited the house and confronted K.R., asking her why she was leaving. Because K.R. did not want Gibson to know that she was awake when he touched her, K.R. said, “I just want go home...I just had a bad dream.” Tr. Vol. 2 at 41. When Collins arrived, he appr oached Gibson and told him that somebody had touched K.R. inappropriately and that he was going to find out who. Gibson did not really respond, but instead just nodded his head. Collins drove away with K.R.

[7] Shortly thereafter, Gibson called 911 and repor ted that “maybe someone [was] in [his] house.” State’s Ex. 70. He told the dispatcher that he thought the person had just left because he saw a vehicle parked off a road behi nd his house and the vehicle was departing as he called 911. A police officer w ho was nearby and quickly responded to the scene did not see or pass any vehicles as he approached the residence , nor did he observe any vehicles as he continued to search the area

. Because Gibson told one of the officers that he thought he saw a man get in the vehicle and drive away, another officer and his canine arrived at the scene and walked that area , but the canine gave no indications or leads for tracking a scent

. Also, because Gibson reported that the vehicle was parked in a grassy area, an offic er went to the area but saw no evidence of tire tracks or downed grass in the damp ground where Gibson stated the vehicle had beenCourt of Appeals of Indiana | Memorandum Decision 27A04

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located. Photographs of Gibson taken that night reveal that he was wearing a white shirt.

[8] After K.R. returned home, she imme diately told her sister what had happened. She was subsequently interviewed by police, and o n July 7, 2016, the State charged Gibson with level 4 felony child molesting. Following a jury trial, Gibson was found guilty as charged. The trial court imposed a six

- year sentence with one year suspended to probation. This appeal ensued.



### Discussion and Decision Section 1

– The trial court did not commit fundamental error

in admitting certain evidence . [9] Gibson makes multiple claims of fundamental error. We begin by addressing his assertion that the trial court’s admission of repeat ed vouching testimony from K.R.’s mother, best friend, and sist er result ed in fundamental error. Gibson concedes that his counsel failed to object to the testimony as vouching testimony , and the “[f]ailure to object to the admission of evidence at trial normally results in waiver and precludes appellate review unless its admission constitutes fundamental error.” Konopasek v. State , 946 N.E.2d 23, 27 (Ind. 2011) (qu otation and citation om itted). Thus, Gibson seeks to avoid waiver and obtain reversal of his conviction pursuant to the doctrine of fundamental

error
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[10] Generally speaking, the f undamental error doctrine is meant to permit appellate courts a means to correct the most egregious a nd blatant trial errors thatCourt of Appeals of Indiana | Memorandum Decision 27A04

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otherwise would have been procedurally barred, “ not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State , 9 N.E.3d 663, 668 (Ind. 2014 ). Indeed, our supreme court very recently explained, An error is fundamental, and thus reviewable on appeal, if it “made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an un deniable and substantial potential for h arm.” These errors create an exception to the general rule that a party’s failure to object at trial results in a waiver of the i ssue on appeal

. This exception, however, is “extremely narrow” and encompasses only err ors so blatant that the trial judge should have acted independentl y to correct the situation. At the same time, “if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundame nt al error.”

Durden v. State , 99 N.E.3d 645, 652 (Ind. 2018) ( citations omitted).

[11] Indi ana Evidence Rule 7 04(b) precludes witnesses from tes tify ing to opinions concerning the t ruth or falsity of allegations or whether a wi tness has testified truthfully. Gibson claims that three witnesses improperly vouched for K.R.’s credibility when they were permitted to tell the jury “ that they believed ” the truth of her allegation against Gibson. Appellant’s Br. at 12. Such testimony is considered an invasion of the province of the jurors in determining what weight they should pla ce upon a witness’s testimony. Bean v. State , 15 N.E.3d 12, 18 (Ind. Ct. App. 2014) , trans. denied

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[12] First, Gibson contends that impermissible vouching took place during K.R.’s mother’s testi mony. Specifically, when asked about text messages between mother and daughter in which K.R. stated that Gibson had touched her, K.R.’s mother testified , “I beli eved her, especially when you see the physical symptoms she was having. You don’t have those p hysical symptoms unless something truly stressful or traumatic has happened to you. ” Tr. Vol. 1 at 204. Contrary to Gibson’s assertion, this comment could be interpreted as limited to K.R.’s mother’s belief that an actual molestation occurred, rather than vouching for K.R.’s identification of Gibson as the perpetrator. Regardless, even if K.R.’s mother’s testimony was “potentially erroneous und er the strict terms of Rule 704 , ” we agree with the State that it did not amount to fundamental error

. Appellee ’ s Br. at 13

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[13] As noted above, i f the trial judge “could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.” Durden , 99 N.E.3d at 652

. Here, we think the trial judge coul d recognize a viable reason why Gibson’s attorney might not object to K.R.’s mother’s testimony. Specifically, the entirety of the text message exchange showed th at K.R.’s mother clearly questioned the credibility of K.R.’s allegation at the time of the i ncident (questi oni ng her honesty and twice imploring that she “better be” telling the truth) . During vigorous cross

examination, Gibson’s counsel was able to emphasize the inconsistency in K.R.’s mother’s current testimony regarding K.R.’s credibility at the time of the incident versus the questions as to her credibility expressed in the text messages

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Counsel was further able to highlight that K.R. told her mother multiple times that she did not know for sure who had touch ed her. K.R.’s m other admitted that she believed that K.R. was also telling the truth when she said she did not know who had touched her . In short, K.R.’s mother’ s testimony highlighted multiple inconsistencies and gave defense counsel a valuable impeachment opportunity. Accordingly, the lack of objection could have been strategic, and any error in the admission of the testimony is not blatant enough to constitute fundamental error.

[14] Gibson next argues that K.R.’s sister and best friend impermissibly vouched for K.R.’s credibility whe n the deputy prosecutor asked them for their opinions as to K.R.’s character for truthfulness. When asked about K.R.’s character for “truthfulness and honesty,” K.R.’s sister testified that “K.R. has never had a reason to lie, ever” and “out of the three of us [sisters], she’s the most honest. Always has been.” Tr. Vol. 3 at 42. Similarly, when asked whether K.R. was a “truthful person , ” her best friend responded, “yes.” Id . at 91.

[15] The State responds that the testimony was admissi ble pursuant to India na Evidence Rule 608(a ) which provides that a witness’ s credibility may be supported by testimony about the witness’ s reputation for having a character for truthfulness or by testimony in the form of an opinion about that character. However, “evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.” Ind. Evidence Rule 608(a). This is a close call. Unquestionably, it was the State and not Gibson that first introduced evidence that some of K.R.’s prior statements were untrue. Indeed,Court of Appeals of Indiana | Memorandum Decision 27A04

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it was the State’s theory that K.R. made untruthful statements at the time of the incident, but that she wa s being truthful at trial . So , the State first introduced the untruthful statements and then permitted K.R. t o explain her prior uncertainties and why she had been untruthful

. On cross

- examination, Gibson responded, understandably so, by attacking K.R.’s credibility , emphasizing that lies are still lies , and implying that her current testimony could not be trust ed

. Under the circumstances , we conclude that while the credibility issue was first interjected by the State, the opinion testimony subsequently solicited by the State was intended to rehabilitate K.R. ’s character for truthfu lness which had been attacked b y Gibson during cross

- examination.

[16] We acknowledge that, as a general matter, the State cannot open its own door to inadmissible evidence. See Willey v. State , 712 N.E.2d 434, 444 (Ind. 1999) (State cannot bootstrap otherwise inadmissible evidence by int roducing it, “forcing a denial, and then claiming it was put in issue by the defendant.”). Nevertheless, both parties here relied heavily on K.R.’s prior inconsistent
statements to bolster their own theories. In fact, Gibson’s counsel foreshadowed his at tack on K.R.’s credibility as to her current allegation of Gibson being the perpetrator of the molestation when during opening statement he highlighted her anticipated inconsistent statements . K.R.’s credibility was squarely at issue , and thus we conclude that the challenged testimony was admissible pursuant to Evidence Rule 608(a).

[17] Moreover, e ven assuming that the opinion testimony of K.R.’s sister and her best friend was inadmissible, we conclude that any error did not rise to the levelCourt of Appeals of Indiana | Memorandum Decision 27A04

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of fundamental error. After an extensive review of the tria l transcript, we find no clearly blatant violation of basic and elementary principles of due process

. The opinion testimony regarding K.R.’s truthful character was incredibly brief and isolated in light of the recor d as a whole. Consequently, Gibson’s substantial rights were not affected by the admission of this testimony , and he has not satisfied the lofty standard for fundamental error.

[18] Gibson also maintains that fundamental error occurred when testimony was admitted regarding K.R.’s changed behavior since the molestation. Specifically , K.R.’s family members, friend, and K.R. herself testified that since the incident, s he has become more reserved, does not want to be touched by anyone , and is scared to be al one. Gibson argues that such evidence was “irrel evant,” “highly inflammatory, ” and aimed at invoking “an emotional reaction” from the jury. Appellant’s Br. at 17 , 20

. However, we remind Gibson that even if we were to assume that the evidence was irrele vant and prejudicial, t he mere fact that error occurred and that it was prejudicial will not satisfy the fundamental error rule. Wilson v. State , 931 N.E.2d 914, 919 (Ind. Ct. App. 2010) , trans. denied . Rather, a finding of fundamental error “requires a d efendant to show greater prejudice than ordinary reversible error.” Id. (citation omitted). Gibson has simply not done so

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### Section 2

– The trial court did not abuse its discretion in

admitting certain evidence . [19] We next address Gibson’s assertion that th e trial court abused its discretion in admit ting opinion testimony from 911 dispatcher Kelly Fields that the format ofCourt of Appeals of Indiana | Memorandum Decision 27A04

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Gibson’s call was “ a little odd” and “unusual” as compared to other 911 calls. Tr. Vol. 2 at 149. Gibson’s counsel objected to the test imo ny on relevance grounds. T he State responded th at Fields could give her opinion based on her perception and her experience in taking emergency calls

. The trial court overruled Gibson’s objection and allowed the testimony . On appeal, in addition to qu estioning the admissibility of Fields ’ s opinion pursuant to Evidence Rule 401, Gibson claims that any probative value to the evidence was substantially outweighed by the danger of unfair prejudice pursuant to Evidence Rule 403.

[20] Our supreme court recently explained:

Trial judges are called trial judges for a reason. The reason is that they conduct trials. Admitting or excluding evidence is what they do. That’ s why trial judges have discretion in making evidentiary decisions. This discretion means that, in many cases, trial judges have options. They can admit or exclude evidence, and we won’ t meddle with that decision on appeal. There are good reasons for this. Our instincts are less practiced than those of the trial bench and our sense for the rhythms of a trial less sure. And trial courts are far better at weighing evidence and assessing witness credibility. In sum, our vantage point

— in a far corner of the upper deck

— does not provide as clear a view.

Snow v. State , 77 N.E.3d 173, 177 (Ind. 2017) (citation s and quotation marks omitted). B ecause determinations of relevance and unfair prejudice can often be resolved either way, trial courts have wide discretion in both determinations. Id

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[21] “Evidence is relevant when it has ‘any tendency’ to prove or disprove a consequential fact. See Ind. Evidence Rule 401. This ‘liberal standard for relevancy’ sets a low bar, and the trial court enjoys ‘wide discretion’ in deciding whether that bar is cleared.” Id . (citation omitted). Similarly, opinion
t estimony of a skill ed witness , an individual whose knowledge is insufficient to be termed an expert yet is beyond that of an ordinary juror, “generally needs only rise to a relatively low bar in order to be admissible. ” Hawkins v. State , 884 N.E.2d 939, 943

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. Pursuant to Indiana Evidence Rule 701, such a witness may provide an opinion or inference that is rationally based on the perception of the witness and helpful to a clear understandi ng of the witness’ s testimony or the determinatio n of a fact in issue.

[22] Here, Fields ’s v ast experience of taking emergency calls supported he r testimony as a skilled witness , 2 and h er opinion that the format of Gibson’s call was unusual was rationally based on her perception and helpful to a clear unders tanding of her testimony regarding the content of the call and her subsequent response to the call . Any dispute as to the inferences to be drawn from her opinion went to the weight of her testimony rather than to its admissibility, and could be addressed on cross - examination. 3 Hawkins v. State , 626 N.E.2d 436, 441 (Ind. 1993); Lyons v. State , 976 N.E.2d 137, 142 (Ind. Ct.

2 Gibson does not challenge that Fields was qualified as a skilled witness based on her more than fifteen years of experience as a 911 dispatcher.
3 Gibson directs us to Cline v. State , 726 N.E.2d 1249, 1255 (Ind. 2000) , in support of his argument that Fields’s testimony was irrelevant, and therefore inadmissible. Cline is factually inapposite to the instant case.Court of Appeals of Indiana | Memorandum Decision 27A04

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App. 2012). Indeed, Gibson’s counsel vigorously cross

- examin ed Fields regarding her opinion, offering the jury numerous reasonable expl ana tions for Gibson’s behavior during the call

. As for prejudice, while we agree with Gibson that Fields’s opinion testimony was prejudicial to him in the sense that it may have been damaging to his case, we conclude that it was not unfairly so. Her test imony was brief , and she gave the jury absolutely no indication as to what, if anything, they should infer from her opinion that Gibson’s call was unusual. The trial court did not abuse its discretion in admitting the testimony.


### Section 3

– Cumulativ e error did not deprive Gibson of a fair trial.
[23] Last , Gibson asserts that the combination of all the trial court’s evidentiary errors, considered cumulatively, deprived him of a fair trial. Our supreme court has acknowledged “for the sake of argument, tha t under some circumstances the cumulative effect of trial errors may warrant reversal even if each might be deemed harmless in isolation[.]” Hubbell v. State , 754 N.E.2d 884, 895 (Ind. 2001). However, as we concluded above, neither fundamental error nor a n abuse of discretion occurre d that would support a cumulative error claim

. Moreover, a defendant is “entitled to a fair trial, not a perfect trial.” Inman v. State , 4 N.E.3d 190, 203 (Ind. 2014) (citation omitted). W e perceive no significant breakdown i n the adversarial process that deprived Gibson of his right to a fair trial

. Accordingly, w e affirm his conviction.Court of Appeals of Indiana | Memorandum Decision 27A04

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[24] Affirmed. Bailey, J., and Brown, J., concur.