Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019 Page 1 of 12

ATTORNEY FOR APPELLANT

Robert P. Harper

Harper & Harper, LLC

Valparaiso, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Dawn Rauch

Certified Legal Intern

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Phillip B. Kress,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 18, 2019

Court of Appeals Case No.

19A-CR-490

Appeal from the Porter Superior 

Court

The Honorable Jeffrey W. Clymer, 

Judge

Trial Court Cause No.

64D02-1506-F1-4614

Bailey, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-490 | September 18, 2019 Page 2 of 12

Case Summary

[1] Following a jury trial, Phillip B. Kress (“Kress”) was convicted of Child 

Molesting, as a Level 4 felony.1 He now appeals. We affirm.

Issues

[2] Kress raises two issues, which we restate as follows:

I. Was it error for the trial court to admit certain testimony 

referring to the victim’s out-of-court statements; and

II. Whether sufficient evidence supports the conviction.

Facts and Procedural History

[3] The State charged Kress with Child Molesting, as a Level 4 felony. Kress filed 

a motion in limine, seeking to exclude evidence regarding the course of the 

investigation as well as repetitive testimony from witnesses other than the 

alleged victim regarding her out-of-court allegations against Kress. App. Vol. II 

at 76-77. Kress articulated concerns about relevance and “creating a prejudicial 

‘drumbeat repetition’ of [the] victim’s allegation[s] and story.” Id. at 77. The 

court ordered that the alleged victim’s testimony “must precede any testimony 

 

1

Ind. Code § 35-42-4-3(b).
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from other witnesses” regarding the allegations. Id. at 81. The court also 

ordered that the testimony “may not include ‘vouching’ testimony.” Id.

[4] Kress was brought to trial in October 2017. The first witness was H.K., the 

eight-year-old daughter of Kress and Melissa McNorton (“McNorton”). H.K.

testified about spending the night at Kress’s house when she was five years old. 

At that time, H.K. lived with McNorton and saw Kress a couple of times each 

month. H.K. testified that, around bedtime, she was lying in a bed next to 

Kress while her sister was asleep on a separate mattress. H.K. testified that 

Kress used a green, glowing object to touch H.K.’s “privates” under her 

clothing. Tr. Vol. II at 105. Kress told H.K. not to tell anyone. Kress also 

asked H.K. to look at his “private.” Id. at 106. H.K. declined this request and 

went to sleep. H.K. later told family members about the contact.

[5] After H.K. testified, the State called McNorton as its next witness. Kress 

sought a bench conference, at which he asserted the State was “just going to 

start calling in . . . witness after witness to say the child told them something.” 

Id. Kress objected, claiming this practice “is a form of vouching.” Id. at 117. 

The trial court agreed there could be a vouching issue with “people saying the 

same thing,” but the court would “have to wait and see what the State does.” 

Id at 118. The State then questioned McNorton, eliciting testimony that H.K. 

last went to Kress’s house for an overnight visit on January 2, 2015. McNorton

testified that when H.K. later learned she would soon see Kress, H.K. “told”

her grandfather. Id. at 125. McNorton testified she also had a conversation 

with H.K., and relayed H.K.’s allegations to the police. The State asked 
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whether, in reporting the allegations, McNorton added to or subtracted from 

what H.K. had said. Kress objected, arguing some background testimony had 

been admissible, but the State could not keep referring to the victim’s out-ofcourt allegations: “[McNorton] said she got a statement, she told the police, 

that should be the end of it.” Id. at 127. The court overruled the objection, and 

McNorton testified that she told the police “what [H.K.] said.” Id. at 128.

[6] Before calling its next witness, the State brought up the objection to vouching, 

acknowledging Kress’s concerns about “bringing in a string of witnesses” to 

refer to the out-of-court allegations. Id. at 135. The State said it did not intend 

to elicit testimony about H.K.’s specific out-of-court allegations, but that 

general testimony referring to those allegations had “important foundational 

information timing-wise” concerning “how this disclosure came out versus 

when it is alleged to have happened.” Id.at 136. At that point, Kress lodged a 

continuing objection to further testimony referring to H.K.’s allegations.

[7] The State then elicited testimony from H.K.’s grandfather, who said he had a 

conversation with H.K. related to the reason for the trial. He testified the 

conversation led him to bring H.K. to McNorton and have H.K. repeat “what 

she said.” Id. at 140. He further testified he told McNorton that they “need[ed]

to report this.” Id. at 141. He conducted online research concerning where to 

make the report, and eventually spoke with the police the following morning.

[8] There was also testimony from a detective who described his investigation, 

noting there was a report of “child abuse,” id. at 158, and that he coordinated 
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interviews about the “alleged abuse,” id. at 159. The detective also testified 

about the date of the “allegation,” id., mentioning police learned “the disclosure 

would have happened approximately six weeks after the incident, which is 

pretty fast,” id. at 160. The detective testified that he prepared a report and 

presented it to the State, and that a charge was drawn from that report.

[9] The jury found Kress guilty of the Level 4 felony offense, for which Kress was 

sentenced to ten years in the Indiana Department of Correction.

[10] Kress now appeals.

Discussion and Decision

Admission of Evidence

[11] “The trial court has broad discretion to rule on the admissibility of evidence.” 

Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). We review evidentiary rulings 

for an abuse of discretion, which occurs when the ruling is clearly against the 

logic and effect of the facts and circumstances. Blount v. State, 22 N.E.3d 559, 

564 (Ind. 2014). Moreover, we may affirm an evidentiary ruling on any theory 

supported by the evidence. Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015).

[12] Directing us to testimony from (1) McNorton, (2) the grandfather, and (3) the 

detective, Kress argues testimony referring to H.K.’s out-of-court allegations 

constitutes hearsay. Hearsay—which is generally inadmissible—is an out-ofcourt statement offered to prove the truth of the matter asserted. Ind. Evidence 

Rule 801(c); 802. Kress argues “the only reason for the State to offer the 
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statements was to bolster H.K.’s in-court testimony about abuse” and “establish 

the truth of the out-of-court allegations.” Br. of Appellant at 13. Kress further

argues that “[a]ll of this testimony, at the very least, carried the very strong 

implication that H.K. made an out-of-court statement that [Kress] abused her.” 

Id. In response, the State does not appear to dispute that the challenged 

testimony referred to H.K.’s out-of-court assertions, and that the testimony 

would be inadmissible if offered to prove the truth of the matter asserted. The 

State contends the testimony was admissible because it was offered for other 

purposes: “to establish a timeline,” “to explain the justification for cancelling 

future visits between H.K. and Kress,” and “to provide a foundation for why 

the detective prepared a report and gave it to the State.” Br. of Appellee at 14.

[13] In a criminal case, “[t]he 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.” Blount, 

22 N.E.3d at 565 (emphasis removed). For this reason, the Indiana Supreme 

Court has urged courts to take caution when a prosecutor offers an otherwiseinadmissible assertion for the purpose of providing context for the jury. See id.

at 565-67. Indeed, when an out-of-court assertion is offered for some ancillary 

purpose, “we must pay careful attention” to that proffered purpose. Id. at 566. 

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; see also Blount, 22 

N.E.3d at 565 (noting course-of-investigation testimony “is of little value absent
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a direct challenge to the legitimacy of the investigation”). In short, Indiana law 

does not permit minimally probative end runs around the rule against hearsay. 

See Blount, 22 N.E.3d at 565. 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).

[14] 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. See, e.g., Blount, 22 N.E.3d at 568 (suggesting a limiting instruction 

might avoid this risk). Or, the jury could treat the repetitive testimony as a 

form of vouching for the credibility of the declarant. See, e.g., Modesitt, 578 

N.E.2d at 651. 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 
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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.

[15] Kress argues that the challenged testimony constituted unduly prejudicial 

“drumbeat repetition,” and that the testimony should have been excluded. 

Nonetheless, assuming arguendo Kress has identified evidentiary error, this 

Court is obligated to disregard harmless error. See Ind. Appellate Rule 66(A) 

(requiring us to disregard error that does not affect a party’s substantial rights). 

Error is harmless if the conviction is supported by “substantial independent 

evidence of guilt” satisfying us there is “no substantial likelihood that the 

questioned evidence contributed to the conviction.” Lafayette v. State, 917 

N.E.2d 660, 666 (Ind. 2009). “Put another way, ‘we judge whether the jury’s 

verdict was substantially swayed. If the error had substantial influence, or if 

one is left in grave doubt, the conviction cannot stand.’” Williams v. State, 43 

N.E.3d 578, 583 (Ind. 2015) (quoting Lafayette, 917 N.E.2d at 666).

[16] Indiana courts have identified reversible error where the challenged testimony 

repeated the victim’s specific allegations. See, e.g., Kindred v. State, 973 N.E.2d 

1245, 1248-51 (Ind. Ct. App. 2012) (involving repetition of the victim’s specific 

allegations of molestation), abrogated on other grounds; Stone, 536 N.E.2d at 540 

(“The trial court abused its discretion by admitting all seven statements in their 

entirety. The undue prejudice . . . of repeating [the victim’s] out-of-court 

statement six times far outweighed the probative value of such testimony.”). 

Moreover, the Indiana Supreme Court has expressed particular concern about 
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eliciting this sort of specific, repetitive testimony before the victim ever testifies. 

See Modesitt, 578 N.E.2d at 651 (noting that “[p]rior to putting the victim on the 

stand, the victim’s veracity had been, in essence, vouchsafed by permitting the 

three witnesses to repeat” the specific allegations). Here, however, the ruling 

on the motion in limine prevented the type of testimony warranting reversal in 

those cases. Indeed, here, H.K. was the first witness to testify and she 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 H.K.’s version of 

events. Thus, unlike in other cases, here, the jury heard H.K.’s story just once.

[17] In seeking reversal, Kress claims the case “turned on H.K.’s testimony,” and 

the State did not offer “physical evidence or additional testimonial evidence” to 

support H.K.’s allegation. Br. of Appellee at 13. We are not unmindful that 

there is a fine line between impermissible vouching testimony and admissible 

corroboration testimony—especially where, as here, the case turns on whether 

the jury found the victim to be credible. However, in light of the general nature 

of the challenged testimony—which followed H.K.’s specific testimony—we 

ultimately conclude that there is no substantial likelihood that the challenged

testimony contributed to the jury’s decision to convict Kress. Any error is 

harmless. See, e.g., Surber v. State, 884 N.E.2d 856, 864 (Ind. Ct. App. 2008) 

(determining any error was harmless where the victim testified first and the 

subsequent testimony was “brief, consistent with, and did not elaborate upon” 

the victim’s testimony), trans. denied.; McGrew v. State, 673 N.E.2d 787, 796 
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(Ind. Ct. App. 1996) (declining to find reversible error where, although the

victim was not the first to testify, the challenged testimony was “brief and 

consistent with” the victim’s later testimony), summarily aff’d in pertinent part.

Sufficiency of Evidence

[18] “A person may be convicted of an offense only if his guilt is proved beyond a 

reasonable doubt.” I.C. § 35-41-4-1(a). Here, the State could meet its burden 

by proving, beyond a reasonable doubt, Kress touched H.K.—a child under the 

age of fourteen—“with intent to arouse or to satisfy the sexual desires” of either 

H.K. or Kress. I.C. § 35-42-4-3(b). In reviewing for sufficient evidence, we 

neither reweigh evidence nor judge credibility of witnesses. Bowles v. State, 737 

N.E.2d 1150, 1151-52 (Ind. 2000). Moreover, “[w]e view all evidence and 

reasonable inferences drawn therefrom in a light most favorable to the 

conviction.” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). We affirm if 

there is substantial evidence of probative value from which a reasonable jury 

could find the defendant guilty beyond a reasonable doubt. McElfresh v. State, 

51 N.E.3d 103, 107 (Ind. 2016). Furthermore, it is well-established that the 

State can meet its burden through the uncorroborated testimony of a single 

witness. Sallee v. State, 51 N.E.3d 130, 135 (Ind. 2016). This is so “even when 

that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

[19] Kress challenges the sufficiency of evidence presented at trial. He does not, 

however, challenge the sufficiency of evidence that he touched H.K., who was 

under the age of fourteen—and we discern no deficiency concerning these 
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elements. Kress instead challenges the sufficiency of evidence that he intended 

the touching to arouse or to satisfy the sexual desires of either H.K. or Kress. 

“The intent element of child molesting may be established by circumstantial 

evidence and may be inferred from the actor’s conduct and the natural and 

usual sequence to which such conduct usually points.” Bowles, 737 N.E.2d at 

1152.

[20] Kress claims the State “did not establish how long the touching lasted” and

there was no evidence Kress “touched his own privates or did anything to 

suggest that he was sexually aroused.” Br. of Appellant at 10. Kress argues the 

State did not “offer the ‘glowing thing’ into evidence or establish what it was.” 

Id. Kress also points out the evidence concerned only a “single incident.” Id.

[21] We must decline Kress’s invitation to reweigh evidence, and instead focus on 

evidence presented at trial. Here, H.K. testified Kress touched her “privates,” 

under her clothes, with a green, glowing object. H.K. further testified it tickled 

when Kress touched her in this manner. After touching H.K. with the object, 

Kress told H.K. not to tell anyone. Kress also asked H.K. to view his “private.”

[22] Kress directs us to J.V. v. State, wherein this Court affirmed a conviction of

Child Molesting, identifying sufficient evidence of sexual intent. 766 N.E.2d 

412 (Ind. Ct. App. 2002), trans. denied. There, the victim testified he felt a hard 

object touch his bottom, and heard the defendant say it would only hurt for a 

little while. Id. at 415-416. The victim pulled back the covers, saw the 

defendant’s exposed “privates,” and felt a wetness near the area of the touching. 
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Id. at 416. Kress compares the instant evidence to the evidence in J.V., arguing

the evidence of sexual intent was stronger in J.V. However, J.V. does not 

establish a minimum standard of evidence to support a conviction. We must 

instead apply our well-established standard of review. In doing so, we identify

sufficient evidence from which a reasonable jury could conclude, beyond a 

reasonable doubt, Kress intended to arouse his or H.K.’s sexual desires.2

[23] We conclude that sufficient evidence supports the conviction.

[24] Affirmed.

Najam, J., and May, J., concur.

 

2 At the close of the State’s case-in-chief, Kress moved for judgment on the evidence pursuant to Indiana 

Trial Rule 50. He asks that, “[i]n addition to a sufficiency review,” we review the denial of that motion. Br. 

of Appellant at 9. A court may grant a Trial Rule 50 motion only “where there is a total absence of evidence 

on some essential issue or where the evidence is without conflict and susceptible [of] only one inference, an 

inference favorable to the defendant.” State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987). For the reasons 

set forth above, we conclude the court did not err by denying the motion for judgment on the evidence.