Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Karen Celestino-Horseman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ben J. Kendrick,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 2, 2019

Court of Appeals Case No.

18A-CR-967

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

The Honorable Jeffrey Marchal, 

Magistrate

Trial Court Cause No.

49G06-1701-F1-1024

Darden, Senior Judge. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 2 of 11

Statement of the Case

[1] Ben Kendrick appeals his conviction of three counts of Level 1 felony child 

molesting.

1

 We affirm. 

Issue

[2] The sole issue Kendrick raises for review is whether the trial court abused its 

discretion by admitting into evidence a medical doctor’s testimony regarding a 

diagnosis of the victim.

Facts and Procedural History

[3] Eight-year-old J.O. lived in a house in Marion County with her mother, D.W., 

her two sisters, and D.W.’s twenty-nine-year-old boyfriend, Kendrick. 

Kendrick, who was married at the time, had been dating D.W. “on and off for 

about three or four years” and was the father of one of J.O.’s sisters. Tr. Vol. 

II, p. 64. In December 2015, D.W. had a slip-and-fall accident that required her

to be on bedrest for approximately six months. During that six-month period, 

Kendrick became the primary caregiver for J.O. and her two sisters. 

[4] One day, when J.O. was in the third grade, Kendrick picked J.O. up from 

school, drove her to a dollar store, and parked his truck in the “back” section of 

the parking lot. Id. at 107. He unzipped his pants, pulled out his erect penis, 

and told J.O. to “suck it” “like a lollipop.” Id. at 109, 123. J.O. did as she was 

 

1

Ind. Code § 35-42-4-3(a)(1) (2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 3 of 11

told. She moved her mouth “[u]p and down” around Kendrick’s penis while 

Kendrick had his hands on her buttocks. Id. at 110. J.O. could not recall how 

long it lasted, but she testified that she stopped when Kendrick “peed in [her] 

mouth.” Id. Kendrick then told her to “spit it out on a rag” he had pulled from 

behind the driver’s seat. Id. J.O. recalled that the “pee” tasted “[n]asty.” Id. at 

111. Kendrick then told J.O., “Don’t tell anyone. This is my little secret.” Id.

at 112. J.O. testified that the molesting occurred more than once in the parking 

lot. 

[5] On another occasion, J.O. was in her mother’s bedroom when Kendrick, who 

was naked, stood at the foot of the bed and had J.O. lie on her stomach on the 

bed. Kendrick then inserted his penis into J.O.’s mouth and moved his penis 

back and forth. J.O. also testified that, on another occasion, Kendrick used his 

cell phone to record J.O. while she was “[s]ucking his front private part.” Id. at 

119. 

[6] In April of 2016, the house became infested with vermin, so the family moved 

into Kendrick’s mother’s apartment. J.O. testified that, one day, when 

Kendrick was babysitting J.O. at the apartment, she and Kendrick were in the 

playroom when Kendrick knelt behind her and inserted his penis in her bottom. 

J.O. recalled that when she told Kendrick that it hurt, he responded, “Just a 

couple more minutes.” Id. at 123. 

[7] Kendrick and D.W. ended their relationship in October 2016. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 4 of 11

[8] On November 16, 2016, J.O. spent the night with her thirteen-year-old aunt.2 

Late that night, J.O. told her aunt what Kendrick had done to her. J.O.’s aunt 

then reported the information to her mother, Q.W., who immediately asked 

J.O. to repeat the information to her. J.O. was “nervous,” “scared,” and 

“crying” when she recounted what had happened. Id. at 46, 55. Q.W. then 

told her husband, E.W., what had happened, and E.W. immediately called 

J.O.’s mother, D.W., and relayed the information to her. The next day,

November 17, 2016, D.W. took J.O. to a local hospital for an examination. 

[9] After an investigation, the State charged Kendrick, on January 9, 2017, with 

four counts of child molesting as Level 1 felonies and one count of child 

molesting as a Level 4 felony. Kendrick’s two-day jury trial was held on 

February 28 and March 1, 2018. 

[10] During trial, Dr. Catherine Huber (“Dr. Huber”), a pediatrician for the 

Pediatric Center for Hope, located at Riley Hospital for Children, testified for 

the State. The center is an out-patient clinic where children are evaluated when 

there are concerns regarding sexual abuse. Dr. Huber first told the jury that, on 

December 5, 2016, D.W. brought J.O. to the clinic. Dr. Huber then explained,

in general terms, the protocol that she follows when a child presents at the clinic 

for alleged sexual abuse. She explained that she begins by obtaining

background information from the child’s caregiver, including medical history 

 

2 D.W. and J.O.’s aunt are half-sisters.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 5 of 11

and information about “what the concerns were that brought the child to the 

appointment.” Id. at 183. She then conducts a general physical examination of 

the child. Regarding J.O.’s examination, Dr. Huber found that “[J.O.’s] exam 

was normal” – “no scarring, no injuries.” Id. at 188, 190. However, Dr. Huber 

clarified that, in sexual abuse cases, 

[o]nly five to six percent of the time will there actually be an 

injury found. A lot of the times this is because there was no 

injury that occurred at all at the time of the evaluation. The 

tissues are very stretchy and flexible[,] and they are also very 

quickly [sic] to heal. So even if there was an injury at the time of 

an event, depending on when the examination occurs, it might 

have healed completely and there is no evidence of that injury 

anymore. 

Id. at 189. When asked by the prosecutor whether “sexual abuse is an actual 

medical diagnosis that you can provide if you find it to be diagnostically 

appropriate,” Dr. Huber replied, “Yes.” Id. at 189-90. 

[11] On cross-examination, defense counsel questioned Dr. Huber about whether 

there were scientific studies to support the percentages she cited regarding 

physical injuries in sexual abuse cases. Counsel then asked Dr. Huber if she 

knew “when the last alleged sexual conduct” occurred between J.O. and 

Kendrick. Id. at 194. Dr. Huber responded that the “last possible contact was 

in October [2016].” Id. Counsel then asked Dr. Huber which individual

provided her with this information. Dr. Huber replied, “The mother.” Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 6 of 11

[12] At the conclusion of Dr. Huber’s testimony, the jury submitted two questions 

for the witness, one of which is relevant to the instant case. Defense counsel 

stated that he had “[n]o objection” to the juror question. Id. at 195. The trial 

court then posed the question to Dr. Huber, which was: “Did you diagnose 

[J.O.] with sexual abuse?” Id. Dr. Huber responded, “Yes. The diagnosis of 

child sexual abuse was made at the time of her appointment.” Id. 

[13] After Dr. Huber answered the second, unrelated juror question, defense counsel 

engaged in follow-up questioning:

[DEFENSE COUNSEL:] Dr. Huber, the basis of the sexual 

abuse diagnosis, that was only based on the statements by the 

mother then, correct? 

[DR. HUBER:] The majority of the information that I had at the 

time of the appointment did come from the mother. Yes. And 

then I was provided information at a later date regarding the 

child’s forensic interview. 

[DEFENSE COUNSEL:] Okay. So[,] it’s only based on that 

information. It is not based on any physical evidence that you 

found? 

[DR. HUBER:] It is not based on physical evidence. No. 

Id. at 196. Later, during closing argument, defense counsel revisited the sexual 

abuse diagnosis, stating: 

We also heard how there was no physical evidence. No physical 

injury of any kind that was recovered by the doctors. We also 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 7 of 11

heard the doctor say that they assessed sexual abuse. But 

remember it was only based on her words, her mom’s words and 

hers. It was not based on any other evidence. Also remember 

that a doctor does not have the burden of beyond a reasonable 

doubt. A doctor is only going based on two people’s words 

without full picture, without all the information you have, 

without all the knowledge you have. After all, would you want a 

doctor to diagnose you only based on your statement? I know I 

wouldn’t. And it’s definitely no[t] how our criminal justice 

system works.

Tr. Vol. III, p. 131. 

[14] The jury found Kendrick guilty of three counts of Level 1 felony child molesting 

and the single count of Level 4 felony child molesting. The trial court declined 

to enter judgment of conviction on the Level 4 felony based upon double 

jeopardy concerns. On March 22, 2018, Kendrick was sentenced to twenty-two 

years for each of the remaining convictions, to be served concurrently. 

[15] Kendrick appeals. 

Discussion and Decision

[16] The issue is whether the trial court abused its discretion in allowing Dr. Huber 

to testify that she diagnosed J.O. as suffering from sexual abuse when, 

according to Kendrick, the “diagnosis was premised upon statements made by 

J.O. to her mother and shared with the doctor by the mother.” Appellant’s Br. 

p. 6. Kendrick contends that “Dr. Huber’s diagnosis of J.O. as suffering from 

sexual abuse was the equivalent of Dr. Huber vouching for J.O.’s truthfulness.” 

Id. at 8. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 8 of 11

[17] 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 

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.

[18] Vouching testimony is specifically prohibited under Indiana Evidence Rule 

704(b), which states: “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.” This testimony is 

considered an “invasion of the province of the jury in determining what weight 

they would place upon the child’s testimony.” Head v. State, 519 N.E.2d 151, 

153 (Ind. 1988). 

[19] However, before we determine whether the testimony in question amounted to

vouching, and, ultimately, whether the trial court abused its discretion in 

admitting the testimony into evidence, “[a]s a preliminary inquiry, [we] must 

first determine whether the appellant properly preserved the alleged error at the 

trial level.” Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). We find that 

Kendrick did not.

[20] The record clearly indicates that Kendrick did not preserve his claim of error by 

raising proper objections at trial. In fact, as to the juror’s question for Dr. 

Huber regarding whether she had diagnosed J.O. with sexual abuse, Kendrick 

stated that he had “[n]o objection.” Tr. Vol. II, p. 195. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 9 of 11

[21] Kendrick seeks to avoid this procedural default by establishing that 

fundamental error occurred. “Fundamental error is an extremely narrow 

exception to the waiver rule where the defendant faces the heavy burden of 

showing that the alleged errors are so prejudicial to the defendant’s rights as to 

make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) 

(quotation and citations omitted). The State counters that Kendrick invited any 

error, and that the fundamental error exception is therefore inapplicable. We 

agree.

[22] [T]he doctrine of invited error is grounded in estoppel[] and 

forbids a party to take advantage of an error that he commits, 

invites, or which is the natural consequence of his own neglect or 

misconduct. At bottom, then, fundamental error gives us leeway

to mitigate the consequences of counsel’s oversights, but invited 

error precludes relief from counsel’s strategic decisions gone 

awry.

Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (internal citations, quotations, 

and brackets omitted). Simply put, invited error “is not reversible error” and is 

“not subject to appellate review.” Kingery v. State, 659 N.E.2d 490, 494 (Ind. 

1995). 

[23] Kendrick invited the error he now challenges as fundamental error. Kendrick 

did not object to the prosecutor’s question regarding whether sexual abuse is an 

actual diagnosis that can be made. Kendrick also did not object to the juror’s 

question posed to Dr. Huber regarding whether J.O. had been diagnosed with 

suffering from sexual abuse, instead explicitly stating that he had no objection 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 10 of 11

to the question. During follow-up questioning of Dr. Huber, Kendrick’s 

counsel chose to revisit the matter when he sought to clarify that Dr. Huber’s 

diagnosis was based upon information received from D.W. and not upon any 

physical evidence. In his closing argument, counsel, in an apparent attempt to 

discredit Dr. Huber, reiterated to the jury that J.O. suffered no physical injuries

and that Dr. Huber’s sexual abuse diagnosis was not rooted in science but 

instead was based upon what D.W. told Dr. Huber regarding J.O.’s allegations.

[24] Having failed to object to the questions and answers regarding the sexual abuse 

diagnosis, Kendrick waived the error. He then invited error by indicating that 

he had “[n]o objection” to a direct question from a juror regarding the sexual 

abuse diagnosis, eliciting additional testimony from Dr. Huber regarding the 

diagnosis, and including comments about Dr. Huber’s testimony in his closing 

arguments. Tr. Vol. II, p. 195. As such, Kendrick cannot obtain reversal on 

this basis.

[25] Waiver and invited error notwithstanding, we disagree with Kendrick’s claim 

that Dr. Huber’s testimony violated the prohibition against vouching. Dr. 

Huber’s testimony cited research statistics regarding the percentage of children 

who have been victims of sexual abuse that exhibit physical injuries. When 

asked by the prosecutor if sexual abuse is an actual medical diagnosis that can 

be found if appropriate, Dr. Huber answered in the affirmative. She also 

answered in the affirmative as to the juror’s question regarding whether she 

“diagnose[d] J.O. with sexual abuse.” Id. The doctor did not elaborate. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-967 | April 2, 2019 Page 11 of 11

During follow-up questioning by defense counsel, Dr. Huber explained that the 

diagnosis was based upon D.W.’s statements and not upon physical evidence.

[26] Dr. Huber did not specifically state that she believed J.O.’s allegations. Dr. 

Huber’s testimony did not speak to J.O.’s credibility and was not an opinion 

regarding the truth of J.O.’s allegations against Kendrick. Dr. Huber 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.” Ind. Evid. R. 704(b). The doctor’s responses regarding the 

diagnosis of sexual abuse did not invade the jury’s province to determine J.O.’s

credibility. As such, Dr. Huber’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. 

Conclusion

[27] For the foregoing reasons, the judgment of the trial court is affirmed.

[28] Affirmed.

Pyle, J., concur.

Vaidik, C.J., concur in result without opinion.