Court of Appeals of Indiana | Opinion 49A02-1601-CR-162 | March 13, 2017 Page 1 of 24

ATTORNEYS FOR APPELLANT

Ruth Johnson

Matthew D. Anglemeyer

Marion County Public Defender Agency

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Argumedo Alvarez-Madrigal,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 13, 2017

Court of Appeals Case No.

49A02-1601-CR-162

Appeal from the 

Marion Superior Court

The Honorable 

Grant W. Hawkins, Judge

Trial Court Cause No.

49G05-1407-FA-33963

Kirsch, Judge.
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[1] Following a jury trial, Argumedo Alvarez-Madrigal (“Alvarez-Madrigal”) was 

convicted of four counts of Class A felony child molesting1 and two counts of 

Class C felony child molesting.2 He appeals, contending that a statement by a 

State’s witness constituted impermissible vouching evidence and that it was 

reversible error to admit it. 

[2] We affirm.

Facts and Procedural History

[3] When she was ten years old and in the fourth grade, A.M. met and became 

close friends with fellow fourth-grader S.A.O., whose father is AlvarezMadrigal. During the summer before the girls entered fifth grade, A.M. spent a 

lot of time at S.A.O.’s house. S.A.O.’s mother worked nights, and AlvarezMadrigal watched the children while she slept during the day.

[4] The facts most favorable to the verdict are that, in May 2014, when A.M. was 

eleven years old, Alvarez-Madrigal began to touch A.M. inappropriately. On 

May 8 or 9, when A.M. was spending the night at S.A.O.’s house, S.A.O. left

the room to use the restroom, and Alvarez-Madrigal put his hand under A.M.’s 

bra and then felt around her vagina, over her pajamas. From that date to June 

6, A.M. went to S.A.O.’s house almost every day, and Alvarez-Madrigal

 

1

See Ind. Code § 35-42-4-3(a)(1). We note that, effective July1, 2014, a new version of this statute was 

enacted. However, we will apply the statute in effect at the time he committed his crimes in June 2014.

2

See Ind. Code § 35-42-4-3(b).
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touched A.M. “[e]very time I would go over there.” Tr. at 43. A.M. testified 

that S.A.O. and her mother “saw what was going on” on various occasions. Id. 

at 93. A.M. was worried that if she told anyone, it would ruin her friendship 

with S.A.O.

[5] On June 6, 2014, when A.M. entered S.A.O.’s house and began to walk up the 

stairs to S.A.O.’s bedroom, Alvarez-Madrigal put his hand “on [A.M.’s] butt”

under her underwear. Id. at 47. He kept his hand there as A.M. walked up the 

flight of stairs. When they reached the top of the stairs, S.A.O. came out of her 

bedroom, “looked surprised,” and started yelling at Alvarez-Madrigal. Id. at 

48. A.M. testified that S.A.O.’s mother also came out of her bedroom and 

asked what was going on, but the girls went into S.A.O.’s bedroom without 

saying anything to S.A.O.’s mother. On June 10, while other household 

members were elsewhere in the house, Alvarez-Madrigal kissed A.M. on the 

neck and touched her under her underwear, on her vagina. 

[6] On June 14, 2014, Alvarez-Madrigal drove A.M. and S.A.O. to a swimming 

pool and then back to S.A.O.’s house. S.A.O.’s mother was at home sleeping. 

A.M. went to the upstairs bathroom to change out of her swimming suit, and 

while she was still in the bathroom, she heard S.A.O. open the door and go 

outside the house. A.M. put on a swim cover, which was like a dress, over her 

underwear and bra. She left the bathroom and went downstairs, and AlvarezMadrigal appeared, picked her up under the arms, put her back to the wall, and 

when she started to scream, he put his hand over her mouth. Despite A.M.’s 

protests, Alvarez-Madrigal took off her swim cover and her bra. When A.M.
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would not spread her legs, he hit her in the thigh, which left a mark. AlvarezMadrigal pulled down her underwear, threw her onto a couch, and had vaginal 

and anal intercourse with her. When she initially would not open her mouth to 

perform oral sex, he slapped her on the face, leaving a red mark,

3 and then he 

stuck his penis in her mouth and moved it back and forth. 

[7] When S.A.O. began to enter the house, Alvarez-Madrigal collected A.M.’s 

clothes and threw them at her and told her to go to the bathroom. A.M. saw 

S.A.O. peeking around the corner. A.M. hurried to the bathroom, but heard 

Alvarez-Madrigal talking to S.A.O. in the kitchen and begging S.A.O., “Please 

don’t tell your mother. I’ll do anything for you.” Tr. at 69. When A.M. left 

the bathroom, Alvarez-Madrigal “banged [her] against the wall” and told A.M. 

that he would kill her if she told anyone. Id. at 70. A.M. left the house and 

spoke to S.A.O. outside, telling her some, but not all, of the things AlvarezMadrigal had done to her, and A.M. asked S.A.O. to tell her father to stop 

touching A.M. S.A.O. told A.M. that she would “have a talk with him.” Id. at 

72. A few weeks after the June 14 incident, A.M. told a friend, P.J., about what 

S.A.O.’s father had done to her, and P.J. told a mentor. On June 29, 2014, a 

report was made to Indiana Department of Child Services (“DCS”). 

[8] When DCS made an unannounced visit to A.M.’s home on or about June 29, 

A.M. told her mother what Alvarez-Madrigal had done to her. A.M. also told 

 

3 A.M.’s parents later asked her about the redness near her mouth, but A.M. told them “that [she] just hit it 

on something.” Tr. at 97.
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DCS assessment case manager Nola Hunt (“Hunt”) and the accompanying 

Indianapolis Metropolitan Police Department (“IMPD”) officer about AlvarezMadrigal’s conduct. Hunt paged IMPD Detective Mark Barnett (“Detective 

Barnett”), the “on-call” child abuse detective. Detective Barnett decided “an 

immediate response” was warranted “based primarily on the proximity of the 

alleged victim and suspect . . ., living on the same street.” Id. at 187-88. Hunt 

then transported A.M. and A.M.’s parents to DCS offices, where A.M. 

participated in a forensic interview at the Child Advocacy Center with IMPD 

Detective Nicolle Flynn (“Detective Flynn”). During the interview, A.M. 

disclosed information of a sexual nature describing what had happened to her

about two weeks prior. Hunt and Detective Barnett observed the interview 

from another room, and based on what he observed, Detective Barnett

prepared, and later executed, a search warrant for Alvarez-Madrigal’s 

residence. Detective Barnett interviewed Alvarez-Madrigal and his wife, and, 

at some point, S.A.O. and P.J. were also interviewed by DCS. A.M. was 

examined on July 2, 2014, and again on July 9, 2014, at the Riley Hospital 

Pediatric Center for Hope.

[9] On July 3, 2014, the State charged Alvarez-Madrigal with five counts of Class 

A felony child molesting and two counts of Class C felony child molesting. At 

the two-day August 2015 jury trial, the State presented the testimony of A.M., 

P.J., S.A.O., and S.A.O.’s mother. The State also presented the testimony of 

Hunt, Detective Flynn, and Detective Barnett. The last witness to testify was 
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Shannon Thompson, M.D. (“Dr. Thompson”), a pediatrician at Riley 

Children’s Hospital (“Riley”) on the child abuse protection team.

[10] Dr. Thompson examined A.M. at the second examination, on July 9, 2014. 

Dr. Thompson stated that the reason A.M. returned to Riley was because she 

was having “continued genital pain and itching.” Id. at 293. Dr. Thompson 

testified that although neither examination at Riley revealed physical injuries, 

the lack of physical findings was “very common” in sexual abuse cases. Id. at 

296. She explained that there are various reasons for that, including that no 

injury occurred in the first place or that “disclosure often occurs days to months 

later,” and the genital tissue heals quickly. Id. at 297. She testified that, 

therefore, it is “very common” for a child to have a normal exam. Id. at 298. 

The State continued direct examination of Dr. Thompson regarding the 

frequency with which she observes physical injuries:

STATE: In terms of the cases you have seen, do you know what 

percentage of children you see with injuries? 

THOMPSON: So overall about 4 to 5 percent of children who 

have been victims of sexual abuse will have some kind of obvious 

physical evidence of penetration or sexual abuse. In my 

experience I’ve probably seen one. 

STATE: One in 10 years of being a child abuse pediatrician? 

THOMPSON: 7 1/2 years. 
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STATE: My math is not great. Okay. And does that mean that 

all the rest of those children are making up allegations? 

THOMPSON: No, it doesn’t mean that. It just means it’s the 

nature of the abuse. Like I said, often the disclosure is late, 

injuries are subtle or even very obvious it healed by the time we 

get to see them. And in fact some statistics will quote that less than 

two to three children out of a thousand are making up claims. 

Id. at 298-99 (emphasis added). 

[11] Alvarez-Madrigal then objected, stating, “This clearly calls for speculation. It’s 

not relevant to the facts in this case.” Id. at 299. The State responded, “She’s a 

child abuse expert. She has talked about her evaluation of psychological and 

emotional mental health. It’s part of her job to know statistics.” Id. The trial 

court did not expressly rule on the objection, but stated, “Then ask her this, ask 

every question in terms of reasonable medical certainty.” Id. The State 

proceeded to ask Dr. Thompson, “[W]ith regard to this case to a degree of 

reasonable medical certainty, what’s your opinion as to A.M.’s exam?” Id. Dr. 

Thompson responded that A.M. did not have any overt symptoms or physical 

findings that would be consistent with sexual abuse, but that lack of physical 

findings would not be determinative, and that the history that A.M. provided 

was consistent with sexual abuse. Id. at 299-300. 

[12] Upon cross examination, Dr. Thompson acknowledged that, although there 

was no physical injury or infection observed, A.M. was reporting complaints of 

physical pain. Dr. Thompson explained that A.M.’s complaints were 
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considered “somatic complaints,” which are “fairly common” in sexual abuse 

victims. Id. at 303, 305. When asked if the terms “somatic” or 

“psychosomatic” would be used when a patient is misleading a doctor about 

pain, Dr. Thompson replied, “No, I would not use that term.” Id. at 305. She 

continued, “[I]t’s actual physical pain that is manifested because of emotional 

trauma,” which could be, by way of example, pelvic pain, headaches, or 

abdominal pain. Id. She testified that the “pain that the person is experiencing 

is real.” Id. 

[13] At the conclusion of the evidence, Alvarez-Madrigal moved for a directed 

verdict, which the trial court granted as to one count of Class A felony child 

molesting. The jury found Alvarez-Madrigal guilty of the remaining four 

counts of Class A felony child molesting and guilty of two counts of Class C

felony child molesting. On October 1, 2015, the trial court sentenced AlvarezMadrigal to an aggregate sixty-one-year sentence. Alvarez-Madrigal petitioned 

for and was granted permission to file this belated appeal.

Discussion and Decision

[14] Alvarez-Madrigal asserts that Dr. Thompson’s testimony that “And in fact 

some statistics will quote that less than two to three children out of a thousand 

are making up claims” was vouching testimony prohibited by Indiana Evidence 

Rule 704(b) and that the trial court erred by admitting it into evidence. A trial 

court has broad discretion in ruling on the admissibility of evidence, and we 

will disturb its rulings only where it is shown that the court abused that 
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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. 

[15] 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. Carter v. State, 31 N.E.3d 17, 29 (Ind. Ct. App. 2015), 

trans. denied.

[16] We disagree with Alvarez-Madrigal’s claim that Dr. Thompson’s testimony 

violated the prohibition against vouching. This court’s recent decision in Carter

provides us with some guidance. There, at defendant’s trial on five counts of 

child molesting, the forensic examiner, Patricia Smallwood (“Smallwood”), 

testified, over Carter’s objections, to matters including how children deal with 

sexual abuse, the disclosure process, and how and why children recant or 

retract their disclosures of abuse. Id. at 24. She stated that boys are more likely 

to retract, and that when a child retracts, it does not mean that the abuse did not 

happen. Id. She testified that frequently, by the time of disclosure, the child 

has been abused so many times that individual instances run together, and 

children have difficulty relating specific events or details. Id. On appeal, Carter 

asserted, among other things, that Smallwood’s testimony constituted 

impermissible vouching. 
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[17] The Carter court rejected the defendant’s claim, explaining: 

[S]he never mentioned [the child victim] in her testimony or 

made any statement or opinion regarding the truth or falsity of 

[the child]’s allegations of molestation. Smallwood 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. 

31 N.E.3d at 29. Similarly, in Baumholser v. State, 62 N.E.3d 411 (Ind. Ct. App. 

2016), trans. denied, the defendant challenged the testimony of the forensic 

interviewer, Molly Elfreich (“Elfreich”). There, when Elfreich was asked at 

trial whether all children she had interviewed would disclose immediately, 

Elfreich testified that “most of the time [disclosure of a crime by a child] is 

delayed in some way.” Id. at 414. Baumholser did not object to this testimony. 

On appeal, Baumholser argued that Elfreich’s testimony was vouching 

testimony prohibited by Indiana Evidence Rule 704(b). The Baumholser court 

determined,

Elfreich’s testimony did not relate to the truth or falsity of [the 

victim]’s allegations. Rather, Elfreich was making a statement 

about how victims of child molestation behave in general. Thus, 

her testimony was not improper vouching.

Id. at 416 (citing Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012) 

(testimony on the general behavior of domestic violence victims “does not cross 

the line into impermissible vouching”), trans. denied). 
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[18] Here, in a like way, Dr. Thompson’s testimony cited to a research statistic, 

addressing how victims of child molestation behave in general. Dr. Thompson 

was being asked about what percentage of children exhibit physical injury or 

trauma, and she replied that “about 4 to 5 percent of children who have been 

victims of sexual abuse will have some kind of obvious physical evidence of 

penetration or sexual abuse.” Tr. at 298. The State then asked, “[D]oes that 

mean that all the rest of those children are making up allegations?” and Dr. 

Thompson replied:

No, it doesn’t mean that. It just means it’s the nature of the 

abuse. Like I said, often the disclosure is late, injuries are subtle 

or even very obvious it healed by the time we get to see them. 

And in fact some statistics will quote that less than two to three children 

out of a thousand are making up claims. 

Id. at 298-99. Dr. Thompson’s statement was explaining that a lack of physical 

injuries is not indicative that a child is fabricating the abuse, and it was based 

on her education and experience. It was not a statement as to A.M.’s 

credibility. It was not an opinion regarding the truth of the allegations against 

Alvarez-Madrigal. It was not an opinion about, or related to, whether A.M.

had been coached, and it did not concern whether A.M. was a truthful person 

in general. See Robey v. State, 7 N.E.3d 371, 380 (Ind. Ct. App. 2014) (family 

case manager’s testimony that child victim’s demeanor was “matter of fact” 

was general in nature, did not directly comment on whether victim’s 

accusations were true or whether victim was a truthful person in general), trans. 

denied. Nor was Dr. Thompson’s testimony a statement that a claim has been 
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substantiated. See Bean v, State, 15 N.E.3d 12, 19 (Ind. Ct. App. 2014) (“This 

Court has held that testimony that a claim has been substantiated constitutes an 

opinion regarding the truth of the allegations, thereby violating Indiana 

Evidence Rule 704(b).”), trans. denied. In sum, Dr. Thompson 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,” Indiana Evidence Rule 704(b), and we find that Dr. Thompson’s 

non-solicited and general statistical statement properly left the determination of 

A.M.’s credibility to the province of the jury. Accordingly, Dr. Thompson’s 

testimony was not vouching testimony prohibited by Indiana Evidence Rule 

704(b), and the trial court did not abuse its discretion by admitting the 

testimony into evidence. 

[19] Moreover, even assuming that the challenged testimony by Dr. Thompson –

“[S]ome statistics will quote that less than two to three children out of a 

thousand are making up claims” – constituted improper vouching, we find no 

reversible error. Tr. at 299. The record reflects that, immediately after Dr. 

Thompson made the statement, counsel for Alvarez-Madrigal objected: “This 

clearly calls for speculation. It’s not relevant to the facts in this case.” Id. The 

trial court did not expressly rule on the objection, but instead directed: “Then 

ask her this, ask her every question in terms of reasonable medical certainty.” 

Id. Alvarez-Madrigal did not seek to strike Dr. Thompson’s testimony or ask 

for admonishment. On appeal, the State argues that, because a party may not 

assert one basis at trial and other on appeal, Alvarez-Madrigal has waived his 
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vouching argument. Appellant’s App. at 12 (citing R.W. v. State, 975 N.E.2d 407, 

411 (Ind. Ct. App. 2012), trans. denied and Howard v. State, 818 N.E.2d 469 (Ind. 

Ct. App. 2004), trans. denied). Anticipating that he might face this waiver

argument, Alvarez-Madrigal maintains that he preserved his claimed error, and 

even if he did not, it was fundamental error4to admit Dr. Thompson’s 

testimony. Appellee’s Br. at 21-22. 

[20] Assuming without deciding that, as Alvarez-Madrigal claims, he properly 

preserved his claim that Dr. Thompson’s testimony constituted impermissible 

vouching, we find no reversible 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. Ind. Evidence Rule 

103(a); Hamilton v. State, 43 N.E.3d 628, 633-34 (Ind. Ct. App. 2015) (citing 

Bradford v. State, 960 N.E.2d 871, 877 (Ind. Ct. App. 2012)), on reh’g, 49 N.E.3d 

554 (Ind. Ct. App. 2015), trans. denied; see also Norris v. State, 53 N.E.3d 512, 524 

(Ind. Ct. App. 2016) (“Errors in the admission or exclusion of evidence are to 

be disregarded as harmless error unless they affect the substantial rights of a 

party.”). In analyzing the prejudicial effect on a defendant’s substantial rights 

 

4 The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal. 

It is an extremely narrow exception that allows a defendant to avoid waiver of an issue, and it is available 

only in egregious circumstances. Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App. 2016), trans denied. It is 

error that makes “a fair trial impossible or constitute[s] clearly blatant violations of basic and elementary 

principles of due process, presenting an undeniable and substantial potential for harm. Id. (quotations 

omitted). Harm is not shown by the fact that the defendant was ultimately convicted; rather harm is found 

when error is so prejudicial as to make a fair trial impossible. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 

2012). 
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from the erroneous admission of evidence, we look to the probable impact of 

the evidence on the factfinder. Hoglund, 962 N.E.2d at 1238. 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.

[21] Here, A.M. testified to the incidents with specificity and consistency, and,

contrary to Alvarez-Madrigal’s suggestion, his convictions did not rest entirely 

on A.M.’s uncorroborated testimony. That is, other evidence was consistent 

with or supported A.M.’s allegations. A.M.’s friend P.J. testified to exchanging 

Facebook messages and texts with A.M. about the matter, which led to P.J. 

sharing her concerns about A.M. with her mentor, and a report was made to 

DCS. Tr. at 78. As a result of information received by DCS, Hunt initiated an 

investigation and made an unannounced visit to A.M.’s home, where Hunt 

spoke to A.M.’s mother and to A.M. As Hunt was at the front door, explaining 

that she was an employee with DCS and wanted to speak with A.M. and her 

parents, A.M. “burst out in tears” and said she knew why DCS was at the 

home, and she stated “what happened,” which was the first time that A.M. 

mentioned anything about it to her parents. Id. at 79. Hunt and an IMPD 

officer spoke to A.M., and as a result of what A.M. said, Hunt called Detective 

Barnett, the on-call child abuse detective, who found that immediate response 

was warranted because the suspect lived in proximity, “living on the same

street” as A.M. Id. at 187-88. Hunt took A.M. and her parents to the Child 
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Advocacy Center for an interview, and based on what Detective Barnett heard 

and observed, he obtained a search warrant for Alvarez-Madrigal’s residence. 

[22] S.A.O. also provided testimony that was consistent with aspects of A.M.’s 

testimony. She stated that on June 14, after the girls had been swimming, she 

waited outside for A.M. for “a long time kind of” and that, when A.M. came 

outside, she was sad. Id. at 265. S.A.O. stated that A.M. wanted to go for a 

walk and that during the walk, A.M. began crying, told S.A.O. about 

something S.A.O.’s father had done to her, and asked S.A.O. to speak to her 

father about it. S.A.O. testified that, at some point on their walk, A.M. told her 

that Alvarez-Madrigal had kissed her on the neck and touched her private parts. 

Id. at 278-81. When S.A.O. was asked at trial if she spoke to her father as A.M. 

had asked, S.A.O. testified, “I didn’t say exactly what [A.M.] said. I just said, 

dad, she doesn’t like when you tickle her feet, stuff like that.” Id. at 270.

[23] Dr. Thompson also provided testimony that supported A.M.’s reports of abuse. 

Dr. Thompson testified that A.M. presented at Riley with complaints of genital 

pain and explained that A.M. was experiencing “somatic complaints,” which 

are fairly common in sexual abuse cases. Id. at 303, 305. She testified that the 

term does not mean that the patient is fabricating feelings of physical pain, as 

the “pain that the person is experiencing is real” and may stem from emotional 

trauma. Id. at 305. 

[24] Alvarez-Madrigal urges us to find that the factual statistic to which Dr. 

Thompson testified “likely influenced” the jury, especially given “the 
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inconsistencies, contradictions and peculiarities from other parts of the trial[.]” 

Appellant’s Br. at 18. This assertion is an argument that A.M.’s testimony was 

not entirely consistent with that of S.A.O. and her mother, who stated that they 

did not see or hear anything and did not observe red marks on A.M. S.A.O.

also denied that her father had begged her not to tell her mother, as A.M. had 

testified to hearing, and S.A.O’s mother stated that she did not come out of her 

room into the hallway, as A.M. had described, to ask what was going on. 

However, the fact that S.A.O. and her mother – who were Alvarez-Madrigal’s 

daughter and wife, respectively – denied hearing or seeing anything happen 

does not mean that A.M. was inconsistent. It means that there was a witness 

credibility determination to be made, and, here, the jury believed A.M. 

[25] The record before us indicates that there was substantial independent evidence 

of guilt supporting Alvarez-Madrigal’s convictions. We do not find that Dr. 

Thompson’s isolated factual statistic, which was not elicited and was

spontaneously offered, likely had substantial influence on the verdict.

5 See 

Hoglund, 962 N.E.2d at 1238 (improper admission of evidence is harmless error 

if conviction is supported by substantial independent evidence of guilt satisfying 

 

5 We note that Alvarez-Madrigal, in arguing that admission of Dr. Thompson’s testimony was not harmless, 

asserts that “another instance of vouching occurred” at trial, during Detective Flynn’s testimony when she 

stated that A.M. had disclosed during the interview matters in the nature of a “sexual assault” and that 

criminal charges are not always filed in every case that is investigated. Appellant’s Br. at 20-21. AlvarezMadrigal suggests that, by this testimony, the State was attempting “to persuade the jury that A.M.’s 

allegation of sexual assault was credible.” Id. at 21. Alvarez-Madrigal did not object at trial to the nowchallenged testimony, nor does he provide case law or support for the assertion that Detective Flynn’s

testimony constituted vouching. The State asserts, and we agree, that Alvarez-Madrigal has waived any 

argument with regard to Detective Flynn’s testimony. Ind. Appellate Rule 46(A)(8).
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reviewing court that there is no substantial likelihood the challenged evidence 

contributed to conviction); Norris, 53 N.E.3d at 525 (finding that interviewer’s

testimony stating that she found “indicia of reliability” to be present in child 

victim’s testimony was vouching, but holding single instance of improperly 

admitted testimony did not affect defendant’s substantial rights and was 

harmless). Accordingly, the trial court did not commit reversible error when it 

admitted Dr. Thompson’s testimony over Alvarez-Madrigal’s objection. 

[26] Affirmed.

[27] Robb, J., concurs.

[28] Barnes, J., concurs in result with separate opinion.
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Argumendo Alvarez-Madrigal,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

Court of Appeals Case No.

49A02-1601-CR-162

Barnes, Judge, concurring in result.

[29] I concur in result here. I do not believe Alvarez-Madrigal adequately preserved 

his claim on appeal that Dr. Thompson gave impermissible vouching 

testimony. He objected to the testimony on the basis that it was “speculation” 

and “not relevant . . . .” Tr. p. 299. A party cannot object on one basis at trial 

and seek reversal on appeal on a different ground. Boatner v. State, 934 N.E.2d 

184, 187 (Ind. Ct. App. 2010). Thus, in order for Alvarez-Madrigal to prevail 

on his unpreserved claim that Dr. Thompson’s testimony was impermissible 

vouching, he must establish that it was fundamental error. See Absher v. State, 

866 N.E.2d 350, 355 (Ind. Ct. App. 2007). I believe Dr. Thompson’s testimony 

was erroneous but not fundamental error.

[30] Despite my colleagues’ thoughtful opinion, I am convinced that a similar 

vouching question to the one here was addressed, explained, and held improper 
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by our supreme court in Sampson v. State, 38 N.E.3d 985 (Ind. 2015), and this 

court in Hamilton v. State, 43 N.E.3d 628 (Ind. Ct. App. 2015), aff’d on r’hg, trans. 

denied. I am the author of Hamilton, and I stand behind it without reservation. I 

also understand that some cases may be distinguishable to allow some of the 

testimony provided here by Dr. Thompson. I also understand that crimes 

against children are particularly heinous. Our society as a whole—including 

investigators, prosecutors, and the judiciary—are understandably horrified by 

these crimes. I am, too. 

[31] The flip side of that coin, however, is that persons accused of such offenses face 

a stigma associated with no other type of crime, and they are entitled to the full 

protection of the law before they may be convicted. When we put in place a set 

of rules to govern the admission of evidence in these types of cases, we do so 

because of our obligation under the law to presume innocence and ensure that 

defendants receive a fair trial, regardless of the heinousness of the allegations. 

Dating back to cases such as Lannan v. State, 600 N.E.2d 1334 (Ind. 1992), and 

Modesitt v. State, 578 N.E.2d 649 (Ind. 1991), Indiana courts have constructed a 

pattern of rules to address the appropriate ways to try these sorts of cases.

[32] Most recently, in Sampson, our supreme court held that expert witnesses cannot 

testify as to the general signs that a child has or has not been coached and then 

testify as to whether a particular child exhibited any such signs, unless the 

defendant has opened the door to such testimony. Sampson, 38 N.E.3d at 991-

92. As the court explained, 
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when a jury is presented with expert testimony concerning 

certain coaching behaviors, the invited inference that the child 

has or has not been coached because the child fits the behavioral 

profile is likely to be just as potentially misleading as expert 

testimony applying the coaching behaviors to the facts of the case 

and declaring outright that a given child has or has not been 

coached. 

Id. at 991. The court overruled previous cases from this court in reaching this 

decision: Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012), trans. denied, 

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

Sampson court did not reverse the defendant’s child molestation conviction, 

however, because the defendant did not object to the testimony and the error 

was not fundamental, in light of the victim’s testimony. Sampson, 38 N.E.3d at 

992-93. The Sampson opinion relied heavily upon Hoglund v. State, 962 N.E.2d 

1230, 1237 (Ind. 2012), which held that 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.”

[33] In Hamilton, we addressed a case in which there was in fact a timely objection 

to the type of improper vouching testimony prohibited by Sampson. We 

rejected the trial court’s ruling that the defendant had opened the door to such 

testimony because he had asked the two alleged victims whether anyone had 

told them what to say in court, noting that both victims had said no and that no 

other evidence of alleged coaching was presented. Hamilton, 43 N.E.3d at 633. 

We explained that, for a defendant to open the door to otherwise inadmissible 
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evidence, the defendant “‘must leave the trier of fact with a false or misleading 

impression of the facts related.’” Id. at 632-33 (quoting Beauchamp v. State, 788 

N.E.2d 881, 896 (Ind. Ct. App. 2003)). “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.” Id. at 633. A false impression may be created if a child recants an 

abuse claim during trial, or if the defendant attempts to argue or present 

evidence that a child is not acting like a sexual abuse victim. Id. (citing Steward 

v. State, 652 N.E.2d 490, 499 (Ind. 1995)). Ultimately, we reversed the 

defendant’s convictions, stating:

If there is to be a rule barring vouching testimony . . . 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. 

Id. at 634. Clearly, the recent trend in the case law is to restrict both direct and 

indirect forms of vouching for a child witness’s credibility unless the door has 

been opened to such vouching. Moreover, the door must be opened by 

something more than simply questioning the witness and attempting to poke 

holes in his or her testimony, which is always the point of cross-examination.

[34] Here, Alvarez-Madrigal cross-examined A.M. about possible inconsistencies in 

her testimony and conflicts with pre-trial statements. I do not believe this 

amounted to opening the door for vouching testimony. And, I disagree with 
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my colleagues that Dr. Thompson’s testimony was permissible, especially with 

respect to her statistical statement about the number of children who 

purportedly make up molestation claims. That kind of testimony is, in my 

mind, the type of indirect vouching addressed and rejected in Hoglund, Sampson, 

and Hamilton. Even if Dr. Thompson’s testimony was not directly tied to A.M., 

what other conclusion could a jury draw from this testimony other than, 

“there’s a very small chance this child is making these things up”? 

[35] A number of other courts take the same dim view of statistical vouching 

evidence such as this. For example, in Wheat v. State, 527 A.2d 269 (Del. 1987), 

the Delaware Supreme Court reversed a molestation conviction after an expert 

witness on child abuse testified about typical behaviors exhibited by an abuse 

victim, and also testified “that in general, between thirty percent and forty 

percent of children recant, alter, or otherwise minimize their original allegations 

of sexual abuse, but that fewer than five percent recant and maintain the altered 

statement.” Wheat, 527 A.2d at 271. The court flatly rejected the admissibility 

of this testimony. It stated, “[t]o the extent such expert testimony is given in 

general terms and directed to behavior factors in evidence, it is admissible. To 

the extent it attempts to quantify the veracity of a particular witness or provide 

a statistical test for truth telling in the courtroom, it is clearly unacceptable.” Id. at 

275 (emphasis added). The court held that the expert had “impermissibly 

invaded the credibility province of the trier of fact in ‘lie detector’ fashion.” Id. 

See also United States v. Brooks, 64 M.J. 325, 329-30 (C.A.A.F. 2007) (reversing 

military convictions for indecent liberties with a child because of expert’s 
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plainly erroneous testimony that only two to five percent of child sex abuse 

allegations were fabricated; convictions were reversed despite no objection to 

the testimony); State v. MacRae, 677 A.2d 698, 702 (N.H. 1996) (holding expert 

testimony that seventy to eighty percent of males treated at a certain substance 

abuse facility also attended by victim had been sexually abused was erroneous 

but was harmless because defendant had presented similar evidence); State v. 

Lindsey, 720 P.2d 73, 75 (Ariz. 1986) (reversing incest convictions based on 

expert’s inadmissible testimony that only “a very small proportion” of incest 

allegations are false and stating, “trial courts should not admit expert testimony 

that quantifies the probabilities of the credibility of another witness”); Aguirre v. 

State, 379 P.3d 1149 (Kan. Ct. App. 2016)6(holding defendant received 

ineffective assistance of counsel and vacating convictions for rape and indecent 

liberties with a child where trial counsel did not object to expert testimony that 

“very few children lie about sexual abuse” and that ninety-three percent of 

children who recant an abuse allegation are lying about the recantation). 

[36] In sum, I believe this court should unequivocally hold that statistical evidence 

about the possibility a witness is lying invades the province of the fact finder 

and is inadmissible vouching. That said, I do not believe Alvarez-Madrigal 

adequately preserved his claim of error in this case. I also cannot say he 

established fundamental error, given A.M.’s detailed testimony and other 

 

6 This case was not published; however, unlike in Indiana, there is not an absolute bar in the Kansas rules of 

appellate procedure upon citing it as precedent. See Kan. Sup. Ct. R. 7.04.
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evidence in the record that corroborated it. See Sampson, 38 N.E.3d at 992-93. 

On that basis, I vote to affirm Alvarez-Madrigal’s convictions.