William J. Ray v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 31 2020, 11:15 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan M. Gardner Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William J. Ray, August 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2869
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable David M. Zent,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1812-F3-73
Tavitas, Judge.
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Case Summary
[1] William Ray appeals his convictions for Count I, rape, a Level 3 felony; Count
II, kidnapping, a Level 5 felony; Count III, criminal confinement, a Level 5
felony; Count IV, burglary, a Level 5 felony; Count V, sexual battery, a Level 6
felony; and his status as an habitual offender. We affirm.
Issue
[2] Ray raises one issue for our review, which we revise and restate as whether the
trial court abused its discretion in the admission of certain evidence.
Facts
[3] At approximately 8:15 a.m. on November 29, 2018, Leila Thomas dropped her
fifteen-year-old daughter, 1 J.T., off at her school bus stop in Fort Wayne.
Thomas left J.T. at the bus stop because Thomas had to leave for work. While
waiting at the bus stop, J.T. made a Facetime call to her best friend, J.W.,
which she typically did in the morning while at the bus stop. J.T. placed the
phone in her pocket while she spoke with J.W. from her headphones.
[4] Suddenly, Ray “grabbed [J.T.] from behind.” Tr. Vol. III p. 155. Initially, J.T.
thought a friend grabbed her, so she asked the person to stop; however, J.T.
quickly realized that the person was not a friend and started kicking to get away
from Ray. J.T. nearly escaped before Ray hit J.T. on her right side, causing
1
It appears that J.T. was fifteen at the time of the offense; however, J.T. was sixteen at the time of trial.
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J.T. to fall down. Ray dragged J.T. to an alley and forced her into a shed. Ray
pulled down J.T.’s pants and underwear, started kissing J.T. “all over [her]
face.” Id. at 157. Ray then touched J.T.’s vagina with his fingers. Ray pulled
down his pants and began to put on a condom.
[5] J.W., who remained on the phone during the incident, heard J.T. screaming for
help and to be released and, moments later, heard Ray tell J.T. to take her pants
off. At some point, J.T.’s earphones became disconnected from her phone, and
Ray heard J.W., which caused Ray to “panic[ ].” Id. at 157. J.W. disconnected
the call with J.T. and called J.T.’s mother, Thomas. Thomas began driving
back to the bus stop and called law enforcement. J.W. also called law
enforcement.
[6] Meanwhile, Ray covered J.T.’s head with a hat and led her away from the shed
to a nearby house. Once inside the house, Ray attempted to shut off J.T.’s
phone. J.T. told Ray not to hurt her, and Ray said he was going to take J.T.
back to the bus stop.
[7] Ray again placed the hat on J.T.’s head and began to take J.T. back to the bus
stop. Thomas arrived on the scene and saw that Ray had J.T. in a “headlock.”
Id. at 201. Ray released J.T. from the headlock and began running, and
Thomas began to chase Ray with her vehicle while she waited for police arrive.
Thomas followed Ray down an alley, where Ray was forced to stop running,
and Thomas photographed Ray. Law enforcement arrived on the scene, and
Ray was taken into custody.
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[8] The State filed an information, which was later amended, and charged Ray
with: Count I, rape, 2 a Level 3 felony; Count II, kidnapping, a Level 5 felony;
Count III, criminal confinement, a Level 5 felony; Count IV, burglary, a Level
5 felony; and Count V, sexual battery, a Level 6 felony. On July 31, 2019, the
State filed a notice of intention to seek an habitual offender enhancement.
[9] At Ray’s October 2019 jury trial, witnesses testified to the foregoing facts.
Relevant to this appeal, the following witnesses also testified sequentially to the
following events. First, J.T. testified that Ray touched J.T.’s vagina with his
fingers. Second, Officer Manuel Aguilar, with the Fort Wayne Police
Department, testified that when he arrived on the scene, Thomas reported
“that’s the man who raped my baby.” Id. at 229. Officer Aguilar also testified
that J.T. reported to him that Ray “put his finger in her vagina” and that Ray
“had [his penis] out” but did not insert his penis into her vagina. Id. at 231.
Ray did not object when Officer Aguilar made these statements.
[10] Next, Drew Kellogg, the paramedic who arrived on the scene, testified that
J.T.’s chief complaint was that she was “sexually assaulted.” Tr. Vol. IV p. 57.
Ray objected to Kellogg’s testimony, arguing that it was repetitive and
constituted vouching for J.T. The trial court directed the State to refrain from
asking Kellogg questions about J.T.’s complaints. Kellogg then testified that
2
The State filed an amended information on Count I on January 31, 2019, due to a scrivener’s error.
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J.T. “did not go into any detail” and that J.T. “had no visible injuries.” Id. at
59.
[11] Lorrie Freiburger, a forensic interviewer with the Dr. Bill Lewis Center for
Children, testified that she interviewed J.T. on November 29, 2018. On direct
examination, the deputy prosecutor and Freiburger engaged in the following
colloquy:
Q. [Freiburger], with respect to J.T. we’re not gonna go into any
of the content of the interview, that would be hearsay. We had
an opportunity to meet her yesterday. What was her demeanor
like, though, when you spoke to her? How did she present?
A. Oh, she was [ ] she communicated very well. I mean, she was
able to articulate a lot of details about what happened, she was
very - had been very aware of her surroundings and were [sic]
able to retain those and then give those back to me. She was not
afraid to correct me if I repeated something back that —
Id. at 99. Ray objected and argued that Freiburger’s testimony was “getting
past demeanor and we’re talking about ability to recall things. We’re getting
close to vouching of this witness.” Id. The trial court agreed and reminded
Freiburger that the question referred to J.T.’s demeanor. Freiburger responded:
“Oh, very confident, very – was able to communicate well, and was – I want to
say helpful in an interview. I mean.” Id. Ray moved to strike Freiburger’s
latter comment, which the trial court granted and struck from the record.
Finally, the State elicited testimony from Freiburger regarding the difference
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between an interview room and the courtroom as a child-friendly environment.
Ray did not cross-examine Freiburger.
[12] J.T.’s medical examination report, which included a statement made by J.T. to
Leslie Cook, a forensic nurse examiner at the Fort Wayne Sexual Assault
Treatment Center, was also admitted at trial. The report restated J.T.’s versions
of events, as reported to Cook, as follows: “[Ray was] rubbing on [J.T.] –
[J.T.’s] vagina with his fingers, trying to stick his fingers inside [J.T.] He d[id],
both inside [and] outside.” State’s Ex. Vol. p. 168. Ray objected and argued
that, while J.T.’s statement contained in Cook’s report would ordinarily be
admissible for medical purposes, the statement would be a drumbeat repetition
of the earlier testimony by J.T., Officer Aguilar, and Kellogg. The trial court
overruled Ray’s objection.
[13] The jury found Ray guilty of all five counts and found Ray to be an habitual
offender. The trial court sentenced Ray to an aggregate sentence of fifty-two
years at the Indiana Department of Correction. Ray now appeals his
conviction.
Analysis
[14] Ray argues that the trial court abused its discretion in the admission of certain
evidence. “The general admission of evidence at trial is a matter we leave to
the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259-60 (Ind.
2013). “We review these determinations for abuse of that discretion and
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reverse only when admission is clearly against the logic and effect of the facts
and circumstances and the error affects a party’s substantial rights.” Id. at 260.
A. Did the evidence constitute a drumbeat repetition?
[15] Ray argues that J.T.’s testimony, followed by subsequent witnesses who
testified to J.T.’s out of court statements recounting the allegations, constituted
a drumbeat repetition in evidence, which was prejudicial to Ray. In Kress v.
State, 133 N.E.3d 742, 746-47 (Ind. Ct. App. 2019), trans. denied, a panel of our
court summarized the law and concerns regarding drumbeat repetition of
evidence as follows:
In a criminal case, the 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. For this reason, the Indiana Supreme Court
has urged courts to take caution when a prosecutor offers an
otherwise[]inadmissible assertion for the purpose of providing
context for the jury. Indeed, when an out-of-court assertion is
offered for some ancillary purpose, we must pay careful attention
to that proffered purpose. 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. . . .
In short, Indiana law does not permit minimally probative end
runs around the rule against hearsay. 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).
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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. . . . Or, the jury could
treat the repetitive testimony as a form of vouching for the
credibility of the declarant. . . . 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 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.
Kress, 133 N.E.3d at 746-47 (some citations and quotations omitted).
[16] In support of his argument that the trial court abused its discretion in admitting
drumbeat repetition evidence, Ray points to the following: 3 (1) J.T.’s testimony
3
Ray, in his brief, also discusses Freiburger’s testimony when recounting the evidence that he argues
constituted a drumbeat repetition. Ray’s argument, however, appears to be more that Freiburger was
vouching for J.T. as a reliable witness in light of his reference to Indiana Trial Rule 704(b). We, therefore,
will consider that argument below instead of considering Freiburger’s testimony as part of the drumbeat
repetition of J.T.’s allegations.
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that Ray touched her vagina with his finger; (2) Officer Aguilar’s testimony
regarding J.T.’s statements, without objection from Ray; (3) Kellogg’s
testimony that J.T.’s chief complaint was that she was sexually assaulted; and
(4) the admitted medical report from the Fort Wayne Sexual Assault Treatment
Center, which contained J.T.’s statements regarding Ray’s actions.
[17] In Kress, the defendant was charged with child molesting, and the eight-year-old
child victim was the first witness to testify and to detail the defendant’s actions.
Kress, 133 N.E.3d at 745. Subsequent witnesses, including the child’s mother,
grandfather, and the investigating detective, all made reference to out-of-court
statements by the child victim relaying the incidents of sexual abuse. The child
victim’s mother testified that she told police “what [the child victim] said”; the
child victim’s grandfather testified that, once the child disclosed the allegations
to him, he asked the child to repeat the allegations to the child’s mother and
that the child’s mother “needed to report this”; and the detective testified that
he investigated an allegation of “child abuse” and conducted interviews
accordingly. Id. at 746.
[18] Importantly, however,
[The child victim] was the first witness to testify and 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 [the child victim]’s version of
events. Thus, unlike in other cases, here, the jury heard [the
child victim]’s story just once.
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Id. at 747-48. Our Court ultimately held that there was “no substantial
likelihood that the challenged testimony contributed to the jury’s decision to
convict Kress.” Id. at 748.
[19] Here, we do not find that the subsequent witnesses testimony constituted a
drumbeat repetition of J.T.’s versions of events. Importantly, J.T. was the first
witness to testify and gave “specific, descriptive testimony” about the day’s
events. Kress, 133 N.E.3d at 747; see cf. Modesitt v. State, 578 N.E.2d 649, 652
(Ind. 1991) (holding that “[b]ecause the trial court . . . allowed, over objection,
the drumbeat repetition of the declarant’s statements prior to the declarant’s
testifying and being subject to cross examination,” the defendant’s convictions
should be reversed). J.T. was cross-examined regarding the veracity of her
version of events before the other witnesses testified.
[20] Moreover, although Officer Aguilar gave some detail regarding J.T.’s
allegations, Ray did not object during Officer Aguilar’s testimony. Ray did
object to Kellogg’s statement that J.T. alleged she was “sexually assaulted”;
however, Kellogg provided no other details regarding J.T.’s allegations and this
statement alone can hardly be considered recounting J.T.’s allegations. Tr. Vol.
IV p. 59. Finally, Ray objected to the admission of J.T.’s medical exam report
because the report contained a narrative of J.T.’s allegations. Ray concedes in
his brief that the medical records were admissible under the medical exception
to the hearsay rule pursuant to Indiana Rule of Evidence 803(4); however, Ray
argues that J.T.’s statement within the medical report was repetitive and
cumulative. The narrative in the medical report, however, did not elaborate on
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J.T.’s allegations more than necessary, but instead merely stated them for
medical purposes.
[21] Based on the foregoing, we cannot find that the trial court abused its discretion
in admitting the evidence from J.T., Officer Aguilar, Kellogg, and J.T.’s
medical report from the Fort Wayne Sexual Assault Treatment Center.
B. Did the evidence constitute vouching?
[22] Next, Ray argues that Freiburger’s testimony constituted impermissible
vouching testimony. 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.” Alvarez-Madrigal v. State, 71 N.E.3d 887, 892 (Ind. Ct.
App. 2017) (citations omitted), trans. denied. “It is essential that the trier of fact
determine the credibility of the witnesses and the weight of the evidence.”
Carter v. State, 31 N.E.3d 17, 29 (Ind. Ct. App. 2015) (citations omitted), trans. denied.
[23] Freiburger’s specific comments described J.T. as articulate, confident, aware of
her surroundings, able to retain information, and able to share that information
with Freiburger. Freiburger also described J.T. as “helpful in an interview,”
which the trial court struck from the record. Tr. Vol. IV p. 99.
[24] In Carter, the child victim disclosed Carter’s molestation, recanted the
allegations, then again disclosed Carter’s molestation. After an investigation of
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the child victim’s allegations and recantation, the defendant was charged with
three counts of child molesting, Class A felonies; and two counts of child
molesting, Class C felonies. Carter, 31 N.E.3d at 23. During the State’s case-in-
chief at Carter’s trial, a forensic interviewer provided testimony “concerning the
dynamics of child abuse, the disclosure process, and when and why a child may
recant his disclosure of the abuse.” Id. at 29.
[25] A panel of this court found that the forensic interviewer’s testimony did not run
afoul of Indiana Evidence Rule 704(b) because the forensic interviewer, who
interviewed the child victim, “never mentioned [the child victim] in her
testimony or made any statement of opinion regarding the truth of falsity of [the
child victim]’s allegations of molestation” at the jury trial. Carter, 31 N.E.3d at
29. Moreover, the Carter witness “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.” Id.
[26] Here, in contrast to the witness in Carter, Freiburger’s comments were specific
to J.T., painted J.T. as aware of her surroundings, able to retain information
well, confident, and articulate. Freiburger also testified that J.T. was able to
correct Freiburger in recounting J.T.’s allegations, which is important for
determining J.T.’s reliability.
[27] This testimony regarding J.T.’s characteristics constituted impermissible
vouching testimony because it took away the jury’s responsibility to determine
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whether J.T.’s testimony was credible. Freiburger implied, in specifically
describing J.T.’s qualities, that J.T. should be believed. Accordingly, the trial
court abused its discretion in allowing Freiburger’s impermissible vouching
testimony.
C. Was admission of the vouching evidence harmless error?
[28] The State argues that, even if admission of this vouching evidence was
erroneous, any error was harmless. Errors in the admission or exclusion of
evidence are to be disregarded as harmless error unless they affect the
substantial rights of the party. Mendoza-Vargas v. State, 974 N.E.2d 590, 597
(Ind. Ct. App. 2012). To determine whether an error in the introduction of
evidence affected the appellant’s substantial rights, we assess the probable
impact of that evidence upon the jury.
[29] Substantial evidence, other than the vouching testimony, was submitted to the
jury to support Ray’s conviction and to support J.T.’s testimony, including:
J.W.’s testimony of what she heard while Facetiming with J.T.; Thomas’
testimony that she saw Ray holding J.T. in a headlock and that Ray ran away
when he saw Thomas; the photographs that Thomas took of Ray; male DNA
evidence that was detected in an internal genital swab of J.T.; 4 Ray’s DNA that
was found as part of a mixture of DNA from three individuals on the front
4
J.T.’s female DNA “overwhelmed” the male DNA present; therefore, the male DNA was insufficient to
determine a matching profile. Tr. Vol. IV p. 228.
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waistband of J.T.’s underwear; 5 that a condom wrapper was found inside the
shed J.T. described; and that Ray had grass on his bottom, underneath his
clothes, which was consistent with J.T.’s account of Ray taking his pants off in
the shed.
[30] Accordingly, Freiburger’s vouching testimony likely did not impact the jury
because there was substantial evidence to support J.T.’s testimony and Ray’s
conviction. See Wilkes v. State, 7 N.E.3d 402, 406 (Ind. Ct. App. 2014) (finding
that, “[i]n light of the other evidence in the record, the admission of [the]
vouching testimony was harmless”); see also Norris v. State, 53 N.E.3d 512, 524
(Ind. Ct. App. 2017) (concluding “that the trial court’s erroneous admission of
the vouching testimony amounted to harmless error” in light of “substantial
evidence” in the record). We find that any error in the admission of the
evidence Ray challenges was harmless.
Conclusion
[31] The trial court did not abuse its discretion in admitting drumbeat repetition
evidence. Although the trial court did abuse its discretion in allowing vouching
testimony, any error in the admission of evidence was harmless. We affirm.
[32] Affirmed.
5
At trial, the State presented evidence that “[t]he DNA profile [from the waistband of J.T.’s underwear] is at
least one trillion times more likely if it originated from J.T., [Ray], and an unknown individual rather than if
it originated from J.T., and two (2) unknown unrelated individuals.” Tr. Vol. IV p. 233.
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Kirsch, J., and Pyle, J., concur.
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