Robert L. Woods v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 09 2015, 5:30 am
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 ATTORNEYS FOR APPELLEE
Jerry T. Drook Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert L. Woods, November 9, 2015
Appellant-Defendant, Court of Appeals Case No.
27A05-1502-CR-61
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J.
Appellee-Plaintiff. Kenworthy, Judge
Trial Court Cause No.
27D02-1405-FA-9
Kirsch, Judge.
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[1] Following a jury trial, Robert L. Woods was convicted of two counts of Class A
felony child molesting.1 He raises five issues, which we consolidate and restate
as:
I. Whether the trial court erred when it admitted into evidence
the nurse examiner’s diagram of the female sex organ, which
showed where the victim had been touched by Woods, and
permitted the nurse examiner to testify that the victim’s
statements to her demonstrated penetration;
II. Whether testimony of the investigating detective constituted
impermissible vouching;
III. Whether the State’s evidence was sufficient to convict
Woods of Class A felony child molesting by sexual intercourse;
and
IV. Whether Woods’s one-hundred-year sentence is
inappropriate.
[2] We affirm.
Facts and Procedural History
[3] One night in late March or early April 2014, eleven-year-old K.A.D. was at
home, along with her brother, a cousin, and Woods, who was her step-father.
Her mother (“Mother”) was playing late night bingo at another location. Near
1
See Ind. Code § 35-42-4-3(a)(1). We note that, effective July 1, 2014, a new version of the child molesting
statute was enacted and that Class A felony child molesting is now a Level 1 felony. Because Woods
committed his offenses before July 1, 2014, we will apply the statute in effect at that time.
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midnight, K.A.D. came out of her room and asked Woods if she could watch
television. Woods said yes and told her she could lie down on the couch,
which she did. K.A.D.’s brother and cousin were asleep in her brother’s
bedroom.
[4] Woods got on the couch next to K.A.D., lying behind her. Woods then turned
K.A.D. onto her back, and he got on his knees and hunched over her. Woods
moved K.A.D.’s pajamas pants and underwear down to her knees and “started
doing something” “to himself” and then he “started rubbing his private on
[hers]” in a “rough” manner. Tr. at 41-42. He rubbed his penis where she
would “wipe” when she would “pee.” Id. at 42. He told her not to tell Mother
or her brother because that would make them sad. Approximately a couple of
weeks later, K.A.D. was sick and throwing up and Woods purchased a
pregnancy test and told K.A.D. to take it. Woods thought she dipped it in
water, so he purchased a second one at Family Dollar, as she waited in the car,
and directed her to use it, which she did.
[5] Thereafter, on April 29, 2014, Woods woke up K.A.D. for school around 6:00
a.m. Mother and K.A.D.’s brother were home, each in their respective
bedrooms. Not wanting to go to school, K.A.D. went to the living room couch
and lay down. Woods proceeded to lay down next to her. Again, K.A.D. was,
initially, on her side, but Woods flipped her onto her back. He took off her
pajama pants and threw them on the floor, and he pulled down her underwear
to her knees. He did something to himself, and hunched over her, with a
blanket draped over him. Wood started “rubbing his private on [her] private.”
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Id. at 46. He rubbed his penis in the same area of her private part as he had on
the prior occasion, namely where K.A.D. would “wipe.” Id. at 47.
[6] While Woods was doing this, Mother entered the room and saw Woods, under
a blanket, but “on all fours” above K.A.D. “moving his hand up and down . . .
by his waist area.” Id. at 90. Mother yelled and cussed at Woods. Mother
went to her room, and Woods followed her, explaining that he was just tickling
K.A.D. to wake her for school. K.A.D. also went into the bedroom and, when
her Mother asked what happened, K.A.D. told her. K.A.D. thereafter got
dressed and went to school that day.2 Later that evening, Mother took K.A.D.
to the Marion General Hospital (“Hospital”), arriving around 10:00 p.m.
[7] Detective Brian Sharp (“Detective Sharp”) of the Marion Police Department
was dispatched to the Hospital. Because the Hospital did not have a pediatric
Sexual Assault Nurse Examiner (“SANE”), the plan was to send K.A.D. to the
Fort Wayne Sexual Assault Treatment Center (“Fort Wayne Center”) to be
examined. Detective Sharp spoke briefly to K.A.D. to explain to her that she
was going to the Fort Wayne Center for an examination, and before leaving for
Fort Wayne, K.A.D. and Mother accompanied Detective Sharp to their home,
where he took pictures of the home’s interior, and he collected K.A.D.’s
underwear and shirt as evidence. K.A.D. and Mother arrived at the Fort
Wayne Center around 3:15 a.m., and K.A.D. met with SANE Joyce Moss
2
K.A.D. did not shower or bathe before school that day. Tr. at 75.
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(“Moss”) for an examination. K.A.D. told Moss about the morning’s incident
with Woods, and Moss took notes as K.A.D. provided the information of what
happened with Woods.
[8] Later that morning, around 11:00 a.m., K.A.D. met with Detective Sharp at the
First Light Child Advocacy Center (“the CAC”), to be interviewed at a
“neutral,” “child-friendly” environment. Id. at 259. K.A.D. was interviewed
by Kelly Scott (“Scott”) of the Indiana Department of Child Services, while a
multi-disciplinary team, including Detective Sharp, a representative of the
CAC, and a representative from the prosecutor’s office observed on a television
monitor in another room.
[9] On April 30, 2014, Woods met with Detective Sharp and Officer David Bennett
for questioning during a videotaped interview. Woods denied that the two
incidents on the couch occurred at all, maintaining that he did not touch
K.A.D. He also denied that he required K.A.D. to take a pregnancy test, and
he denied buying a pregnancy test. “Why would I make a child take a
pregnancy [test] if nothing never happened and therefore if it did happen I never
penetrated or to go inside of her for her to take a pregnancy test. It don’t make
sense.” Ex. Vol. at 40 (State’s Ex. 22T). Detective Sharp took a buccal swab
DNA sample from Woods.
[10] On May 7, 2014, the State charged Woods with three counts of Class A felony
child molesting; counts I and II alleged child molesting by sexual intercourse
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with K.A.D., and count III alleged Woods committed criminal deviate conduct
by penetrating K.A.D. with his finger.
[11] At the jury trial, K.A.D. testified to the two incidents where Woods had rubbed
his penis on her while she was on the couch at home. When describing
specifically on her body where Woods’s penis touched her body, K.A.D.
described that it was the location where she would wipe after urinating.
K.A.D. testified that, during the first incident, she told Woods to stop and he
replied, “Relax.” Tr. at 42. She pushed Woods off of her, and “he smiled and
then gave [her] a high five.” Id. at 43. K.A.D. started crying and Woods said,
“[S]top crying” and told K.A.D. go and change her underwear. K.A.D.
changed her underwear and began to read a book in her room. Woods came
into her room and asked K.A.D. “if [she] knew what that was called,” and
when she replied that she did not, he said, “[T]hat was called molestation.” Id.
43, 45. K.A.D. testified about meeting with Moss, stating that she told Moss of
the exact locations where the touching occurred and that she also showed Moss
by using her own hands to point to locations on her body.
[12] K.A.D. also testified that, sometime between the first and second incidents
involving Woods, she was ill and threw up “like five times” in one day. Id. at
61. Woods gave her “a stick for her to pee on.” Id. Woods suspected that she
did not urinate on the first one, so he went to Family Dollar store and
purchased a second one; K.A.D. accompanied him but waited in the car while
he went inside. When she got home, she told Woods that she “didn’t want to”
use it, but Woods told her, “Just do it so I can make sure you’re okay.” Id. at
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63. K.A.D. testified that she did not tell Mother or her brother about the two
incidents when Woods had touched her because she did not want them to be
sad, and she expected they would be because they loved Woods. K.A.D. stated
that she too loved Woods “[b]efore these things happened.” Id. at 64.
[13] On cross-examination, counsel for Woods asked K.A.D. about the first
incident, inquiring, “Did he put his penis in you at that time?” and she replied,
“No.” Id. at 65. She gave the same response when asked, “Did he put a finger
in you at that time?” Id. Counsel for Woods then asked whether Woods “put
anything inside the outer lips of your vagina.” Id. She replied, “What do you
mean?” Woods’s counsel repeated the question, and she replied, “No.” Id. at
65-66. Counsel for Woods then asked about the second incident on the couch,
asking “Did he insert anything in the outer lips of your [] vagina?” and K.A.D.
responded, “No.” Id. at 66. Counsel further inquired, “So he didn’t spread
them and put anything in there?” to which K.A.D. answered, “I still don’t
understand,” but later said, “Yeah, he did not put anything in me.” Id.
[14] Mother, who at the time of trial was no longer married to Woods, testified that
although she and Woods married in 2010, they had been together in a
relationship since before K.A.D. was born. Thus, K.A.D. had known Woods
her entire life and referred to him as “dad.” Id. at 83. Mother described what
she saw on April 29, 2014, when she woke up and walked into the living room
and saw Woods on top of K.A.D. She said that after she cussed, Woods
dropped on top of K.A.D. “and was like tickling her, like as to wake her up for
school.” Id. at 92. Mother explained that she “retreated” to her room “‘cause I
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was going to shoot him to be honest.” Id. at 92-93. Woods followed Mother to
her room and “was trying to explain hisself[,]” stating that nothing was going
on and he was just trying to tickle K.A.D. and wake her up for school. Id. at
92. This did not match what K.A.D. told Mother had happened. Mother spent
the day talking to family members and attempting to “deal[] with it.” Id. at 95.
That evening she and K.A.D. went to the Hospital, but were then sent to Fort
Wayne. Woods was contacting Mother by text messaging throughout the day
and while they were at the Hospital and at the Fort Wayne Center.
Photographs of the text message communications between Woods and Mother
were admitted at trial, some over Woods’s objection. Woods texted Mother
that it was “a big misunderstanding,” and told her, “Let me know what the
police saying.” Id. at 106, 109; Ex. Vol. at 11, 15 (State’s Ex. 8 and 13).
[15] Ralph Seitz (“Seitz”), a loss prevention manager for Family Dollar, testified
that on May 7, 2014, he received a request from Detective Sharp asking
whether Family Dollar store’s surveillance video showed that one or more
pregnancy tests had been purchased at a specific Family Doller location on
April 9, 2014 by a male with a physical description matching that of Woods.
Seitz explained that the company maintains an electronic journal, by which he
could search the surveillance footage for a particular product, using its SKU
product number. On May 8, Seitz provided a DVD of footage that matched
Detective Sharp’s request. During Detective Sharp’s trial testimony, he
identified the man in the video purchasing a pregnancy test as Woods. That
video was admitted without objection at trial and played for the jury. Id. at 293;
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Ex. Vol. at 23 (State’s Ex. 21). Still photographs taken from the video footage
were also admitted, without objection, which showed Woods purchasing the
item at the cash register.
[16] SANE Moss testified that she met with and performed an examination of
K.A.D. around 3:15 a.m. on April 30, 2014. Moss testified that the exam was
conducted in a typical medical clinic examination room, with things such as an
exam table, lights, medical equipment, bandages, and the like, and K.A.D.
wore a medical gown and Moss wore scrubs. Moss and K.A.D. were the only
two individuals in the room, while Mother waited in the lobby. Moss testified
about her examination of K.A.D., stating that, initially, K.A.D. told her what
had happened and where Woods had touched her. In addition to telling Moss,
K.A.D. showed Moss where Woods had touched her by using her own hand to
point to areas of her anatomy.3 Moss documented what K.A.D. told and
showed her by writing the information in her chart, which was admitted
without objection. Tr. at 187; Ex. Vol. at 57-66 (State’s Ex. 26). K.A.D. told
Moss that Woods “rubbed his weiner on my privates on the inside where I
wipe.” Ex. Vol. at 61.
[17] Moss continued her testimony by explaining for the jury the anatomy of the
female sex organ, drawing a diagram as she spoke and identifying the
differences between the external female sex organ and the internal female sex
3
Moss testified that K.A.D.’s statements to her did not indicate that ejaculation had occurred.
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organ. Moss explained that the internal female sex organ includes the labia
minora, clitoral hood, clitoris, urethra, and hymen. At the State’s request,
Moss marked on the diagram the locations that K.A.D. had indicated had been
touched by Woods. Moss marked the labia majora, labia minora, clitoral hood,
urethra, and hymen. Over Woods’s objection, the diagram was admitted into
evidence. K.A.D. told Moss that on one or more occasions during that day she
had urinated and wiped. Moss’s chart and documentation from the exam were
admitted without objection. Moss collected physical evidence during the
examination, including K.A.D.’s pajama pants that she had worn the prior
morning when Woods was on the couch with her. Moss also took DNA swabs
from K.A.D., including her vagina, buttocks, inner thighs, pubic combing, and
face/cheek/lips. At the conclusion of Moss’s testimony, jurors presented
additional questions for Moss, which the trial court reviewed with counsel.
Following a bench conference, and over Woods’s objection, the trial court
asked, “Did K.A.D.’s description of what happened include penetration of the
female sex organ?” and Moss replied, “Yes.” Id. at 196; Ex. Vol. at 98.
[18] During Detective Sharp’s testimony, he identified and testified about certain
pictures that he took at K.A.D.’s residence on April 29, explaining that some of
the pictures represented Mother’s point of view when she first observed Woods
on the couch over K.A.D., and another photograph captured her view of the
couch as she stepped closer, before she turned and left the room. Detective
Sharp also testified that K.A.D.’s statements in the CAC interview, which he
had observed, were consistent with K.A.D.’s trial testimony. Thereafter, over
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Wood’s objection, Detective Sharp testified that Moss’s trial testimony,
describing what K.A.D. had told her, was consistent with that which K.A.D.
told Scott at the CAC.
[19] Detective Sharp’s April 30, 2014 videotaped interview with Woods at the police
station was admitted into evidence and played for the jury. In addition,
Detective Sharp testified that he monitored and listened to phone calls that
Woods made while he was jailed at the Grant County Jail. Recordings of calls
on July 22, 2014, November 9, 2014, and December 4, 2014 were admitted into
evidence and played for the jury. In one phone call, Woods made statements to
Mother acknowledging that he “did something wrong” that he “screwed up
royally.” Ex. Vol. 54 (State’s Ex. 23, Jail Phone Call 7/23/14). He also
expressed that he wanted K.A.D. “to understand how sorry I am.” Id. He
hoped K.A.D. would know that “the man she grew up around was not like
that.” Id. In a November 9, 2014 phone call to Mother, Woods stated that he
was sorry, he considered K.A.D. to be his daughter, and he hoped he could
“repair” the damage to his relationship with her. Id. (State’s Ex. 23, Jail Phone
Call 11/9/14). He expressed, “I don’t know what the f*ck went wrong in my
head to make me do that sh*t.” Id. He told Mother, “I’m a broken f*cking
mess.” Id.
[20] Melissa Meyers (“Meyers”) a forensic biologist and DNA analyst with the
Indiana State Police Crime Lab (“Lab”) testified regarding the Lab’s DNA
testing on evidence submitted in connection with Woods’s case. Meyers stated
that she conducted YSTR DNA analysis, which she explained is a type of DNA
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testing that removes any female DNA on the sample being tested and is
intended to look for DNA that is found on the Y chromosome, “so it’s looking
specifically at male DNA.” Tr. at 211. Meyers testified that she tested ten
items that had been provided to the Lab, including a cutting from K.A.D.’s
underwear, a vaginal swab, an internal female sex organ swab, pubic hair
combing, face/cheek/lip swab. Meyers testified that nine items failed to
demonstrate a sufficient quantity of male DNA to continue with her YSTR
analysis, meaning there was not enough male DNA to be detected. Meyers
obtained a YSTR result only from the face/cheek/lip swab. That testing
demonstrated the presence of “a mixture with a major profile,” and the YSTR
profile was consistent with Woods, such that Woods and his male paternal
relatives could not be excluded as potential YSTR contributors to that sample.
Id. at 217. At the State’s questioning, Meyers also described the concept of
“touch DNA,” where DNA can be transferred from handling or touching an
item. Id. at 220. She testified that wiping after urination could affect the
likelihood of finding touch DNA on that location.
[21] The trial court’s final instructions included Instruction 14.189, which stated:
“The term ‘sexual intercourse’ is defined by law as meaning an act that includes
any penetration of the female sex organ by the male sex organ.” Appellant’s
App. at 80. The next instruction read:
Indiana law does not require that the vagina be penetrated for
sexual intercourse or deviate sexual conduct to occur. Proof of
the slightest degree of penetration of the external features of the
female sex organ by the male sex organ or an object is sufficient
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to establish sexual intercourse or deviate sexual conduct if all
other elements are proved beyond a reasonable doubt. The mere
contact with male and female sex organs is not by itself sufficient
evidence of penetration.
Id.
[22] The jury found Woods guilty of Counts I and II, Class A felony child molesting
by sexual intercourse, and it found him not guilty of Count III, Class A felony
child molesting by committing sexual deviate misconduct by the act of
penetration of her vagina with his finger. The trial court identified as
aggravators Woods’s criminal history and his violation of a position of trust, as
Woods had been K.A.D.’s stepfather for her entire life. The trial court found
no mitigators and sentenced Woods to two fifty-year sentences, to be served
consecutively. Woods now appeals.
Discussion and Decision
[23] On appeal, Woods claims that SANE Moss’s diagram of the female sex organ
should have been excluded as hearsay evidence and that her answer to the juror
question – that K.A.D.’s description demonstrated penetration – constituted
witness testimony on a legal conclusion as prohibited by Indiana Evidence Rule
704(b). He also asserts that certain portions of Detective Sharp’s testimony
constituted impermissible vouching. Woods next argues that the evidence was
insufficient to convict him of Class A felony child molesting, especially without
the challenged evidence of Moss and Detective Sharp. More specifically, he
claims that there was insufficient evidence of penetration such that he could be
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convicted of child molesting by sexual intercourse, and the evidence was
sufficient to convict him only of Class C felony child molesting. See Appellant’s
Br. at 34 (conceding he was guilty of Class C felony child molesting by touching
or fondling). Woods also contends that his one-hundred-year sentence is
inappropriate. With that backdrop, we address Woods’s issues in turn.
I. Admissibility of Evidence
[24] A trial court has broad discretion in ruling on the admission or exclusion of
evidence. Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans.
denied. The trial court’s ruling on the admissibility of evidence will be disturbed
on review only upon a showing of an abuse of discretion. Id. An abuse of
discretion occurs when the trial court’s ruling is clearly against the logic, facts,
and circumstances presented. Id. We do not reweigh the evidence, and we
consider conflicting evidence most favorable to the trial court’s ruling. Id.
A. Moss’s Diagram of the Female Sex Organ
[25] Woods argues it was error to admit into evidence SANE Moss’s diagram of the
female sex organ, which Moss drew as she testified during trial. At trial,
Woods’s counsel objected on the basis that it should be admitted for
“demonstrative purposes only.” Tr. at 169. The trial court overruled the
objection and admitted the diagram “as substantive evidence.” Id. at 170. On
appeal, Woods asserts that the diagram was inadmissible hearsay evidence “in
written/diagram form” and that counsel should have objected on this basis.
Appellant’s Br. at 25. A party may not object to the admission of evidence on
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one ground at trial and seek reversal on appeal based on a different ground.
Boatner v. State, 934 N.E.2d 184, 187 (Ind. Ct. App. 2010). To avoid waiver of
the issue, Woods claims it was fundamental error for the trial court to admit the
diagram. The fundamental error exception is extremely narrow and applies
only when the error constitutes a blatant violation of basic principles, the harm
or potential for harm is substantial, and the resulting error denies the defendant
fundamental due process. Palilonis, 970 N.E.2d at 730 (citing Brown v. State, 929
N.E.2d 204, 207 (Ind. 2010). The error claimed must either make a fair trial
impossible or constitute clearly blatant violations of basic and elementary
principles of due process. Id. This exception is available only in egregious
circumstances. Id.
[26] A hearsay statement is one “other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Ind. Evid. R. 801(c). Hearsay statements are not admissible,
except pursuant to certain exceptions within the Rules of Evidence. Ind. Evid.
R. 802. One such exception is found in Rule 803(4), which states that the
following are not excluded by the hearsay rule, regardless of whether the
declarant is available as a witness:
Statements made by persons who are seeking medical diagnosis
or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
Ind. Evid. R. 803(4).
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[27] The exception is grounded in the premise that people are unlikely to lie to their
doctors because doing so might jeopardize their opportunity to be made well.
VanPatten v. State, 986 N.E.2d 255, 257 (Ind. 2013). There is a two-step analysis
for determining whether a statement is properly admitted under Rule 803(4):
(1) whether the declarant is motivated to provide truthful information in order
to promote diagnosis and treatment; and (2) whether the content of the
statement is such that an expert in the field would reasonably rely on it in
rendering diagnosis or treatment. Palilonis, 970 N.E.2d at 726 (quotations
omitted). With regard to the first inquiry, in the case of a child declarant, there
must be evidence that the child understood the professional’s role. VanPatten,
986 N.E.2d at 261. As to the second step of the analysis, “Statements made by
victims of sexual assault or molestation about the nature of the assault or abuse
. . . generally satisfy the second [step] of the analysis because they assist medical
providers in recommending potential treatment for sexually transmitted disease,
pregnancy testing, psychological counseling, and discharge instructions.” Id. at
260.
[28] Woods suggests that the statements made by K.A.D. to Moss were not for the
purpose of diagnosis or treatment, arguing that “[K.A.D.] had already been
seen at the emergency room in Marion before going to Fort Wayne. There was
no[] injury or pain or trauma being treated[.]” Appellant’s Br. at 26. Therefore,
Woods asserts, the purpose of her visit to the Fort Wayne Center was to be
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“interviewed for purposes of collecting evidence for trial” and “[K.A.D.’s]
statements to the nurse were testimonial.”4 Id. We disagree.
[29] Here, contrary to Wood’s assertion that she had “already been seen at the
emergency room,” K.A.D. was not examined by a doctor or nurse while at the
Hospital. Id. Instead, K.A.D. was sent to the Fort Wayne Center because the
Hospital did not have a pediatric SANE nurse on staff. At the Fort Wayne
Center, K.A.D. and Mother met Moss in the lobby, where Mother provided
K.A.D.’s medical history. Moss then met privately with K.A.D. in the
examination room, which was a typical medical clinic room. Moss wore scrubs
and K.A.D. wore a medical gown. Moss took K.A.D.’s vital signs and she then
conducted an examination of K.A.D. Moss’s notes in her chart indicate that
K.A.D. expressed her understanding of the fact that Moss was a nurse and that
K.A.D. was at the Fort Wayne Center for an examination. When Moss asked
K.A.D. if she knew what doctors and nurses do, K.A.D. replied, “[T]hey make
sure you’re healthy.” Ex. Vol. at 61. We are satisfied that the evidence
demonstrated the foundational requirement that K.A.D., who was eleven years
4
We note that Woods generally asserts that the admission of K.A.D.’s statements to Moss, as reflected in
Moss’s diagram, were testimonial, and he was denied his right to confront K.A.D. about the diagram.
Appellant’s Br. at 25 (“The child never saw this diagram . . . nor was Woods given the opportunity to cross
examine [K.A.D.]” as to the accuracy of it). He thus appears to make a claim that its admission was a
violation of the Sixth Amendment’s Confrontation Clause. Woods does not, however, make any Sixth
Amendment claim in his brief nor cite to authority, instead primarily opposing the diagram’s admission on
hearsay grounds. Accordingly, our analysis is likewise directed to the appropriateness of its admission under
Indiana’s Rules of Evidence.
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old at the time, understood Moss’s professional role as a nurse who would be
examining K.A.D. in furtherance of diagnosis or treatment.
[30] K.A.D. shared with Moss her patient history and described what had happened
with Woods. K.A.D. made statements, describing how and where Woods
touched her, so that Moss would know how to proceed in treating K.A.D. On
appeal, Woods claims that K.A.D.’s statements to Moss about where Woods
touched her were not consistent with her trial testimony: “[S]he said nothing of
the sort herself while she was on the stand and subject to cross examination.”
Appellant’s Br. at 25. We disagree. Moss’s testimony, while more specific than
K.A.D.’s testimony, was not inconsistent with it. K.A.D. testified that
Woods’s penis touched her where she would “wipe,” which matched the areas
marked by Moss on the diagram. Tr. at 42, 47. As K.A.D. told and showed
Moss during the examination where Woods touched her, Moss recorded it,
using anatomical terms, in the medical chart. K.A.D., who was twelve years
old at the time of trial, could not be expected to name specific parts of the
female sex organ. Indeed, our courts have recognized that in child molestation
cases “a detailed anatomical description by the victim is unnecessary and
undesirable” because many people are unable to precisely describe anatomical
features, particularly children who may have unfamiliarity with anatomical
terms and possess a limited sexual vocabulary. Wisneskey v. State, 736 N.E.2d
763, 765-66 (Ind. Ct. App. 2000). Such a requirement would subject victims to
unwarranted questioning and cross-examination. Id.
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[31] K.A.D.’s statements to Moss during the examination were made so that Moss
could assess her and determine the need for further medical and psychological
care. We note that although Moss saw no physical trauma or injury, she
observed two “raised wart-like structures” on K.A.D.’s labia. Ex. Vol. at 64-65.
After the examination, Moss provided Mother with written and verbal
instruction regarding the exam findings, counseling for K.A.D., and directions
to follow up with a physician for medical evaluation, and if necessary,
treatment of the wart-like growths. Based on the record before us, we find that
Moss’s drawing of the female sex organ, which reflected K.A.D.’s statements to
Moss while receiving medical diagnosis and treatment, was properly admitted
under Indiana Evidence Rule 803(4), and Woods was not denied a fair trial
because of its admission.
B. Moss’s Statement Regarding Penetration
[32] Woods also argues that the trial court erred, and his trial lacked fundamental
fairness, when it allowed Moss to testify that what K.A.D. described to her
during the examination was penetration. More specifically, Juror #4 posed two
questions, one of which was modified by the trial court to state as follows: “Did
[K.A.D.’s] description of what happened include penetration of the female sex
organ?” Tr. at 196; Ex. Vol. at 98. Woods objected to the question on the basis
that it was improper because it constituted an ultimate fact to be decided by the
jury. Tr. at 193, 196. Over Woods’s objection, the trial court read the question
to Moss, who replied, “Yes.” Id. at 196. On appeal, Woods argues that
allowing Moss to so testify “was nothing short of allowing [her] to voice her
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legal conclusion that Woods had penetrated [K.A.D.] and therefore was guilty
as charged,” and this violated Indiana Rule of Evidence 704(b), which prohibits
a witness from testifying as to a legal conclusion.5 Appellant’s Br. at 21. Woods
argues that because Moss was a SANE nurse with extensive training, the jury
likely credited her opinion with considerable weight, and thus there is “a
substantial likelihood that this erroneously admitted evidence contributed to the
conviction” and swayed the jury’s verdict, such that Woods was denied
fundamental due process. Id. at 24. The State maintains that Moss’s response
was a medical assessment that K.A.D.’s description of where she was touched
reflected penetration of the female sex organ, and “she did not provide a legal
conclusion.” Appellee’s Br. at 10.
[33] Moss’s testimony that K.A.D. had described penetration of the female sex
organ went to the ultimate issue, and, therefore, this testimony was
inadmissible under Rule 704(b). See Williams v. State, No. 48S05-1507-CR-424,
2015 WL 6447736 at *3-4 (Ind. Oct. 26, 2015). Nevertheless, we find any error
was harmless, given the record before us. As we have held, the erroneous
admission of evidence will be disregarded unless it affects the substantial rights
of a party. Mastin v. State, 966 N.E.2d 197, 201 (Ind. Ct. App. 2012) (citing
Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012)), trans. denied. Here, the
State charged Woods with Class A felony child molesting by sexual intercourse.
5
Indiana Evidence Rule 704(b) provides: “Witnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or
legal conclusions.”
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The trial court instructed the jury that “sexual intercourse” was defined by law
“as meaning an act that includes any penetration of the female sex organ by the
male sex organ.” Ex. Vol. at 110. It further instructed, in part:
Indiana law does not require that the vagina be penetrated for
sexual intercourse or deviate sexual conduct to occur. Proof of
the slightest degree of penetration of the external features of the
female sex organ by the male sex organ . . . is sufficient to
establish sexual intercourse . . . if all other elements are proved
beyond a reasonable doubt.
[34] Id. Although K.A.D. testified that Woods’s penis did not go “inside” her or
inside the outer lips of her vagina, she described that Woods’s penis touched
her in the area where she would “wipe” after urinating. Tr. at 42, 47, 65-66.
Moss described for the jury the anatomy of the female sex organ and explained
that the internal female sex organ includes the labia minora as well as the
urethra, the structure through which urine is expelled. K.A.D., by pointing to
her own body, showed Moss the exact locations where Woods’s penis touched
her, and Moss reflected that information in her report, which indicated that
K.A.D. said that Woods rubbed his penis “on my privates on the inside where I
wipe.” Ex. Vol. at 61 (emphasis added). Moss also marked on the female sex
organ diagram, which we have found was not erroneously admitted, that
Woods’s penis rubbed on structures of K.A.D.’s internal female sex organ.
Even without Moss’s answer to the jury question, the jury heard and saw where
Woods’s penis touched K.A.D. Given that record, we are not persuaded that
Moss’s “penetration” statement deprived Woods of a fair trial.
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II. Vouching
[35] Next, Woods asserts that the trial court committed evidentiary error by
allowing Detective Sharp to testify about whether things that K.A.D. said to
other people during the course of the investigation were consistent with what he
heard K.A.D. and Moss state on the witness stand. At trial, Woods posed
various objections during the line of questioning, including that the jury could
make its own decision as to consistency and that Detective Sharp’s testimony
about K.A.D.’s statements was not the best evidence of what was said; the trial
court overruled some objections, while for others it directed the State to
rephrase its question. Tr. at 261-65. Eventually, Woods argued that Detective
Sharp’s testimony was hearsay, and the State agreed. No trial court
admonishment or action was requested or occurred, but the line of questioning
ended.
[36] On appeal, Woods claims that Detective Sharp was permitted to give vouching
testimony. Apparently acknowledging that he did not object on that basis at
trial, Woods claims that the admission of Detective Sharp’s testimony regarding
the consistency of the various out-of-court statements constitutes fundamental
error. See Appellant’s Br. at 32 (stating that although individual instances of
vouching may not rise to fundamental error, “State’s repeated acknowledged
use of hearsay testimony . . . does get closer to the line [of[ fundamental error”).
As we have recognized, fundamental error is a very narrow exception and “is
meant to correct only the most egregious of trial errors.” Bean v. State, 15
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N.E.3d 12, 22 (Ind. Ct. App. 2014) (citing Ryan v. State, 9 N.E.3d 663, 668 (Ind.
2014), trans. denied.
[37] 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 jurors in determining what
weight they should place upon a witness’s testimony.” Bean, 15 N.E.3d at 18
(citing Kindred v. State, 973 N.E.2d 1245, 1257 (Ind. Ct. App. 2012), trans.
denied.) On appeal, Woods particularly challenges that Detective Sharp was
permitted over his objection to testify that: (1) K.A.D.’s trial testimony was
consistent with what he saw and heard K.A.D. say to Scott at the CAC; and (2)
SANE Moss’s trial testimony (in which she related what K.A.D. said to her
during the examination) was consistent with what K.A.D. had said to Scott at
the CAC. We examine each in turn.
[38] Detective Sharp was present at the CAC, and, from behind a mirror, he heard
and saw K.A.D. make statements (about when and how Woods touched her) to
Scott during the interview with K.A.D. At trial, the State asked Detective
Sharp, “In hearing K.A.D.’s disclosure, was it largely consistent with what she
told the jury here yesterday?” Tr. at 261. Detective Sharped responded, “Yes,
it was.” Id. As an initial matter, we note that Woods did not object to that
question and answer. Furthermore, Detective Sharp did not testify that he
believed K.A.D. or make any statements about the truth or falsity of the
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allegations against Woods. Woods has failed to demonstrate that Detective
Sharp’s testimony constituted vouching and that its admission resulted in
fundamental error.
[39] Woods argues that the next series of questions posed by the State to Detective
Sharp was more “troubling.” Appellant’s Br. at 31. After inquiring about
K.A.D.’s statement to Scott, the State asked Detective Sharp whether that same
statement was consistent with SANE Moss’s testimony, which related what
K.A.D. had told her. Woods objected, arguing that Detective Sharp was not
present at the Fort Wayne Center, and thus he did not observe K.A.D. make
any statements there. The State agreed to rephrase:
Q: You were present during Nurse Moss’s testimony yesterday.
A: Yes, I was.
Q: You also reviewed her written record of what she said she
wrote down as K.A.D. was telling her the history of what had
happened to her.
A: Yes.
....
Q: Was that consistent with what K.A.D. told [Scott] at the
CAC?
Tr. at 262. Woods again objected and argued that Detective Sharp was not
present at the Fort Wayne Center, it was “irrelevant” whether Detective Sharp
thought Moss’s testimony was consistent with K.A.D.’s statement at the CAC,
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and that the jury could make its own decision about the consistency between
the testimony of the two witnesses. Id. The trial court overruled Woods’s
objection. Id. at 263. The State continued:
Q: Was her disclosure at the CAC consistent with what Nurse
Moss testified yesterday K.A.D. had told Nurse Moss earlier that
morning?
A: Yes
Id.
[40] To the extent that Woods contends that Detective Sharp’s testimony is hearsay,
we disagree, as he did not testify as to the statements made by another person.
Rather, he testified as to the consistency between K.A.D.’s statement at the
CAC and Nurse Moss’s trial testimony that recounted what K.A.D. had told
her. With regard to the claim that Detective Sharp’s testimony constituted
vouching, Woods appears to argue that that Detective Sharp’s testimony was
vouching for the “veracity and consistency” of Moss’s testimony. Appellant’s Br.
at 32; see also id. at 32 (“This an attempt to lend credence to Nurse Moss’s
hearsay testimony[.]”) Woods asserts that because Moss’s testimony was “of
critical importance to the State’s case,” the “instances of vouching for the
consistency of [Moss’s] rendition of what [K.A.D.] said to her” was prejudicial
to Woods’s substantial rights. Id. Upon review, we find no reversible error in
the Detective’s testimony. He did not testify that he believed K.A.D., and he
did not testify that he believed Moss. He did not opine as to the truth of Moss’s
testimony or of K.A.D.’s. He testified to the consistency of K.A.D.’s statement
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at the CAC to Moss’s trial testimony. We do not find that this testimony
constituted improper vouching.
[41] While we question the relevancy of Detective Sharp’s opinion as to consistency,
we find that error, if any, in its admission was harmless. See Owens v. State, 659
N.E.2d 466, 477 (Ind. Ct. App. 1995) (investigating officer’s testimony that
witness’s two prior statements were consistent was irrelevant “witness-
bolstering,” and State should have offered the prior statements and left it to jury
to draw conclusions with respect to consistency of statements to witness’s trial
testimony, but error in admission did not prejudice defendant’s substantial
rights or require reversal). Errors in the admission of evidence are generally to
be disregarded unless they affect the substantial rights of a party. Hoglund, 962
N.E.2d at 1238. Improper admission of evidence is harmless if the conviction is
supported by substantial independent evidence of guilt that satisfies the
reviewing court that there is no substantial likelihood that the challenged
evidence contributed to the conviction. Id.
[42] Here, the jury heard and saw K.A.D. testify that Woods touched her with his
penis on two occasions, several weeks apart, and she described the manner in
which Woods touched her and where on her body it occurred. The jury heard
Moss’s testimony about what K.A.D. had told and showed her during the
examination as to the exact location on her body where Woods touched her.
K.A.D. testified that Woods purchased a pregnancy test and required her to
take it, which Woods denied in his police interview, and at trial the State
presented the Family Dollar store surveillance footage of Woods purchasing a
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pregnancy test there on April 9, 2014, which fits the time frame of the two acts
of molestation. Given the record before us, we find no reversible error with
regard to Detective Sharp’s testimony.
III. Sufficiency of the Evidence
[43] Woods next contends that there is insufficient evidence to support the child
molesting by sexual intercourse convictions. More specifically, he denies that
there was evidence of penetration.6 Our standard of reviewing claims of
sufficiency of the evidence is well settled: an appellate court neither judges the
credibility of witnesses nor reweighs the evidence. Stetler v. State, 972 N.E.2d
404, 406 (Ind. Ct. App. 2012) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007)), trans. denied. We consider only the probative evidence and reasonable
inferences supporting the verdict and consider conflicting evidence most
favorable to the verdict. Mastin, 966 N.E.2d at 201-02. We will affirm the
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id. That is, the verdict will not be disturbed
if there is sufficient evidence of probative value to support the conclusion of the
trier of fact. Stetler, 972 N.E.2d at 406.
6
During his interview with police in May 2014, Woods denied that he touched K.A.D., and he denied that
he purchased a pregnancy test or required her to take one. However, during recorded subsequent jail phone
calls and visits, Woods admitted to touching K.A.D. but maintained, “I just rubbed it.” Ex. Vol. at 54 (jail
call of November 7, 2014).
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[44] To prove the Class A felony child molesting by sexual intercourse charges, the
State was required to show that Woods, being at least twenty-one years old,
performed sexual intercourse with K.A.D., a child under fourteen years of age.
Ind. Code § 35-42-4-3(a). Sexual intercourse is “an act that includes any
penetration of the female sex organ by the male sex organ.” Ind. Code § 35-
31.5-2-302. The statute defining sexual intercourse does not require that the
vagina be penetrated, only that the female sex organ be penetrated. Short v.
State, 564 N.E.2d 553, 559 (Ind. Ct. App. 1991); see also Morales v. State, 19
N.E.3d 292, 298 (Ind. Ct. App. 2014) (penetration of external genitalia, or
vulva, is sufficient to support unlawful sexual intercourse conviction), trans.
denied. To sustain a conviction for child molesting or incest, proof of the
“slightest penetration” of the female sex organ by the male sex organ is
sufficient. Mastin, 966 N.E.2d at 202 (citing Dinger v. State, 540 N.E.2d 39, 40
(Ind. 1989)). However, mere contact between a male and female sex organ is
not by itself sufficient evidence of penetration. Adcock v. State, 22 N.E.3d 720,
728 (Ind. Ct. App. 2014) (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind.
1996)). Penetration can be inferred from circumstantial evidence. Mastin, 966
N.E.2d at 202 (citing Pasco v. State, 563 N.E.2d 587, 590 (Ind. 1990)).
[45] Woods argues that K.A.D. “consistently maintained she was never penetrated
by Woods[.]” Appellant’s Br. at 33. However, this statement misrepresents the
evidence. Although K.A.D. stated, upon cross-examination, that Woods did
not put his penis “inside” her, she also testified that on two occasions Woods
rubbed his penis on her and she described the location of the rubbing as being
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where she would “wipe” after urinating. Tr. at 42, 47, 65-66. K.A.D. told
Moss the same thing, and she showed Moss by pointing to specific parts of her
own anatomy. K.A.D. told Moss that Woods “rubbed his weiner on my
privates on the inside where I wipe.” Ex. Vol. at 61. Moss told the jury that the
female sex organ includes the labia majora, labia minora, vulva, and urethra,
which are the same anatomical structures where Woods’s penis touched
K.A.D. Given this evidence, the jury could have found that penetration, even
the “slightest penetration,” of the female sex organ by the male sex organ had
occurred. See Mastin, 966 N.E.2d at 202.
[46] Furthermore, the State presented circumstantial evidence that sexual
intercourse occurred during the first incident on the couch. K.A.D. testified
that sometime between the first incident on the couch and the second incident,
which happened about three weeks later, on April 29, 2014, Woods required
her to “pee on a stick” and when he was not satisfied with the results of that
test, he went to Family Dollar and purchased another test, as she waited in the
car. Tr. at 61-62. In his police interview that was played for the jury, Woods
denied both having purchased a pregnancy test and requiring K.A.D. to take
one; however, the State introduced Family Dollar videotaped surveillance
footage of Woods purchasing a pregnancy test on April 9, 2014. From this, it
would have been reasonable for the jury to infer that Woods’s suspected that
K.A.D. was pregnant and that he was responsible for it.
[47] Our standard of review dictates that we will affirm the conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
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reasonable doubt. Mastin, 966 N.E.2d 202. Based on the record before us, we
find sufficient evidence was presented to convict Woods as charged. See Stetler,
972 N.E.2d at 408 (evidence of penetration sufficient to convict defendant of
Class A felony child molesting where child victim described to nurse that
defendant touched her on clitoral hood, which nurse explained was structure of
female sex organ); Mastin, 966 N.E.2d at 202 (evidence of penetration of female
sex organ sufficient where defendant admitted to rubbing child’s vagina with his
penis and nurse testified that child had redness on labia minora and areas of
scarring on labia majora).
IV. Appropriateness of Sentence
[48] Woods argues that his one-hundred-year sentence is inappropriate. Under
Indiana Appellate Rule 7(B), we may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, we find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. When considering whether a sentence is inappropriate, we must give
due consideration to that decision. Mastin, 966 N.E.2d at 203. We also
recognize the unique perspective a trial court brings to its sentencing decisions.
Id. Under this rule, the burden is on the defendant to persuade the appellate
court that his or her sentence is inappropriate. Stetler, 972 N.E.2d at 408.
[49] Woods was sentenced to two consecutive fifty-year sentences for each Class A
felony child molesting conviction, for an aggregate sentence of one hundred
years. The sentencing range for a Class A felony is twenty to fifty years
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imprisonment, with an advisory sentence of thirty years imprisonment. See Ind.
Code § 35-50-2-4. In addition, because Woods was convicted of child
molesting involving sexual intercourse with a victim less than twelve years of
age, he is classified as a credit restricted felon, earning one day of credit time for
every six days that he is imprisoned. Ind. Code §§ 35-31.5-2-72, 35-50-6-3; Tr.
at 355.
[50] Woods asserts that the sentence was inappropriate based on the nature of the
offense. Initially, we remind Woods that he bears the burden of establishing
that his sentence is inappropriate in light of both the nature of the offenses and
his character. See Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013)
(appellant bears burden of showing both prongs of inquiry favor revision of
sentence), trans. denied. Woods argues on appeal only the “nature of the
offense” prong and not the “character” prong. He has therefore waived any
“character” argument. See id. Waiver notwithstanding, Woods’s argument
fails.
[51] Concerning Woods’s character, we observe that Woods possessed a lengthy
criminal history of at least ten felony convictions and eleven misdemeanor
convictions, extending from 1996 to the present offenses. The history includes
drug offenses and crimes of violence such as battery, domestic battery, and
strangulation. Woods had violated his probation at least thirteen times, and he
was on probation under two separate cause numbers at the time of the current
offenses. The trial court characterized Woods’s criminal history as both
“lengthy” and “serious.” Tr. at 353. The trial court also recognized that certain
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evidence, namely conversations that transpired during one or more jail phone
calls between Woods and Mother, who by then was his ex-wife, “spoke
volumes to . . . the character of this defendant.” Id. at 354. The trial court
observed that, in the calls, Woods “degrad[ed]” her and “the amount of control
that he still to this day tries to exert over [Mother] after she’s done right by her
daughter” was “incredible.” Id. at 354-55. We find that Woods’s character
does not indicate that a revision in his sentence is warranted.
[52] On appeal, Woods urges us to find that that the nature of the offenses “does not
merit maximum consecutive sentences.” Appellant’s Br. at 35. He highlights
that the conduct occurred on two isolated occasions, occurring approximately
three weeks apart, with no physical injury or pain to the victim. The State, in
turn, argues that Woods, who was K.A.D.’s stepfather for her entire life,
molested her on two occasions, when she was eleven years old, violating their
bond and he trust. At sentencing, the trial court commented that although
Woods was K.A.D.’s stepfather, “Woods was the primary father that she had
known throughout her life and clearly she was attached to him, bonded to him,
looked up to him[.] . . . She was emotionally damaged. That was demonstrated
throughout her testimony as she cried, as she talked about what happened to
her in this case.” Tr. at 354. He violated a position of trust and, after the first
incident, he intimidated her into not disclosing what he had done by telling
K.A.D. that her mother and brother would be sad. The trial court observed that
Woods “had ample time between [the two] offenses to conform [] his behavior
to the confines of the law.” Id. at 355. Woods did not do so.
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[53] The sentencing question before us is not whether another sentence would be
more appropriate; rather, the inquiry is whether the sentence imposed is
inappropriate. Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013).
Based on Woods’s character and the nature of the offense, we cannot say that
the sentence was inappropriate.
[54] Affirmed.
Najam, J., and Barnes, J., concur.
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