Vince M. Bryan v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 02 2019, 7:18 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Antonio G. Sisson Curtis T. Hill, Jr.
Muncie, Indiana Attorney General
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vince M. Bryan, December 2, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-851
v. Appeal from the
Delaware Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Thomas A. Cannon, Jr., Judge
Trial Court Cause No.
18C05-1805-F1-2
Vaidik, Chief Judge.
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Case Summary
[1] Vince M. Bryan appeals his convictions for two counts of Level 1 felony child
molesting, two counts of Level 4 felony child molesting, and two counts of
Level 5 felony child solicitation. He argues that the trial court committed
reversible error in admitting testimony about the victims’ allegations before the
victims themselves testified and that the evidence is insufficient to support his
convictions. We affirm.
Facts and Procedural History
[2] In 2015, N.S. (who was born in October 2005) and J.S. (who was born in
October 2007) (collectively, “the children”) lived with their mother, Stephanie
Reel, in Muncie. Stephanie, who struggled with addiction, had “involvement
with [the] Department of Child[] Services [throughout] the lifetime of” N.S.
and J.S. and had “lost custody [of them] a couple times.” Tr. Vol. I p. 162.
During the summer of 2015, Stephanie often “h[u]ng out” with Vince. Id. at
164. Sometimes, Stephanie would bring the children with her to Vince’s house.
According to Stephanie, the children called him “Vinny.” Id. at 163. On three
or four occasions, the children spent the night at Vince’s house without
Stephanie.
[3] In November 2015, the children told Jeffrey Reel (Stephanie’s brother) that
“Vinny” had inappropriately touched them. Id. at 211. Jeffrey told Stephanie
about the allegations, but Stephanie did not do anything about it. In January
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2016, the children were removed from Stephanie’s custody (unrelated to this
case) and placed in foster care.
[4] At some point, the children told their foster parents that Vince had molested
them, and this information “got reported to DCS.” Id. at 141.
[5] In March 2018, Muncie Police Department Officer Kristopher Swanson, who is
a member of the Sexual Molest and Abuse Response Team (SMART), received
an email from DCS about the children’s allegations against Vince. Shortly
thereafter, Officer Swanson interviewed N.S., J.S., Stephanie, Jeffrey, and
Vince. During his interview, Vince admitted that the children frequently came
over to his house in the summer of 2015 and that they called him “Vinny.” Id.
at 118. When Officer Swanson told Vince about the allegations that the
children had made against him, he denied that they had ever spent the night at
his house, started “throw[ing] out” different names of people who could have
molested them, and tried to “change the subject.” Id. at 119.
[6] Thereafter, the State charged Vince with Count 1: Level 1 felony child
molesting (N.S.); Count 2: Level 1 felony child molesting (J.S.); Count 3: Level
4 felony child molesting (N.S.); Count 4: Level 4 felony child molesting (J.S.);
Count 5: Level 5 felony child solicitation (N.S.); and Count 6: Level 5 felony
child solicitation (J.S.). A jury trial was held in February 2019.
[7] Officer Swanson was the second witness to testify for the State (the first witness
was another police officer who testified about background information). On
direct exam, Officer Swanson testified that he interviewed N.S. and J.S. in
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April 2018 at the Child Advocacy Center. Officer Swanson did not testify
about what N.S. or J.S. told him during their interviews. On cross-exam,
however, defense counsel asked Officer Swanson numerous questions about
what the children told him during their interviews, including how many times
the alleged incidents occurred, where they occurred, who was present when the
incidents occurred, and whether Vince was naked during any of the incidents.
See id. at 144-51. On redirect, when the State asked Officer Swanson what J.S.
told him during his interview, defense counsel made a hearsay objection. Id. at
155. The trial court overruled the objection, finding that defense counsel
opened the door to this line of questioning. Id. Officer Swanson then testified
that the children told him that “Vinny” touched their penises using his mouth
and hand. Id. at 156, 158.
[8] Jeffrey was the fourth witness to testify for the State. On direct exam, Jeffrey
testified that when he was alone with N.S. and J.S. in the car one day in
November 2015, N.S. asked him if he could “keep a secret.” Id. at 211. When
the State asked Jeffrey what that secret was, defense counsel made another
hearsay objection. Id. The trial court overruled the objection, and Jeffrey
testified that N.S. told him that “Vinny” had “pulled on their privates” and
“sucked on their privates” and that J.S. corroborated what N.S. said. Id.
[9] N.S. and J.S. were the last witnesses to testify for the State. They testified live
from the Child Advocacy Center using a closed-circuit television system. They
testified that they knew Vince and that they called him “Vinny.” Ex. 27 (3:20-
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3:36 & 1:58:30-38). They then testified that “Vinny” touched their penises with
his hand, put his mouth on their penises, and made them touch his penis.
[10] After the State rested, Vince moved for a directed verdict because “neither of
the alleged victims identified [Vince] as the person that sexually assaulted
them.” Tr. Vol. I p. 241. The trial court denied his motion. At the conclusion
of trial, the jury found Vince guilty of all six charges. The trial court sentenced
him to seventy years, with forty years executed and thirty years suspended to
probation.
[11] Vince now appeals.
Discussion and Decision
I. Admission of Evidence
[12] Vince contends that the trial court erred in admitting testimony from Officer
Swanson and Jeffrey regarding what the children told them because it was
hearsay. Specifically, Vince argues that Officer Swanson’s and Jeffrey’s
testimony, “prior to testimony of the victims, should have been excluded
because their testimony had the potential to unfairly prejudice the jury and
elevate the credibility of the victims.” Appellant’s Br. p. 10. He therefore asks
us to reverse his convictions. In support of his argument, Vince relies on
Modesitt v. State, 578 N.E.2d 649 (Ind. 1991).
[13] In Modesitt, the defendant was charged with molesting an eleven-year-old girl.
The victim’s mother, a caseworker, and a psychologist testified at length about
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what the victim told each of them about the defendant’s conduct before the
State called the victim to testify. Our Supreme Court held that the “drumbeat
repetition” of the victim’s statements by other witnesses before the victim was
called to testify “precluded direct, immediate cross examination of the
statements and constitutes error requiring reversal.” Id. at 652.
[14] We find no Modesitt violation here. Officer Swanson testified on direct exam
that he interviewed each child, but he did not testify as to what they told him.
On cross-exam, however, defense counsel asked Officer Swanson numerous
questions about what the children told him, including how many times the
alleged incidents occurred, where they occurred, who was present when the
incidents occurred, and whether Vince was naked during any of the incidents.
See Tr. Vol. I pp. 144-51. On redirect, the trial court allowed Officer Swanson
to testify more about what the children told him because defense counsel
opened the door to such testimony. See id. at 155. Notably, Vince does not
acknowledge the trial court’s specific ruling in his brief. The State argues in its
brief that Vince opened the door to the testimony, and Vince did not file a reply
brief to respond to this claim. We agree with the trial court that Vince opened
the door to Officer Swanson’s redirect testimony about what the children told
him during their interviews. See Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009)
(holding that otherwise inadmissible evidence may be admitted where the
defendant opens the door to questioning on that evidence), reh’g denied. Having
opened the door, Vince cannot now be heard to complain about Officer
Swanson’s redirect testimony.
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[15] This then leaves us with Jeffrey. Jeffrey briefly testified on direct exam about
what the children told him in the car in November 2015. Jeffrey’s testimony on
this point comprises less than one page of his twenty-page testimony. See Tr.
Vol. I p. 211 (Jeffrey testified that “[N.S.] said that [“Vinny”] pulled on their
privates, he sucked on their privates, which [J.S.] . . . co[rr]oborated . . . .”).
This is not the sort of “drumbeat repetition” that Modesitt prohibits. See, e.g.,
Norris v. State, 53 N.E.3d 512, 526 (Ind. Ct. App. 2016) (finding that “the
challenged testimony of the two witnesses merely provided an overview of the
situation and a summary of [the victim’s] accusations, without elaborating on
[the victim’s] evidence,” was “brief and consistent with [the victim’s] later
testimony,” and therefore did not constitute fundamental error); McGrew v.
State, 673 N.E.2d 787, 796 (Ind. Ct. App. 1996) (declining to find reversible
error where, although the victim was not the first to testify, the challenged
testimony was “brief and consistent with” the victim’s later testimony),
summarily aff’d in pertinent part, 682 N.E.2d 1289 (Ind. 1997).
II. Sufficiency of the Evidence
[16] Vince next contends that the evidence is insufficient to support his convictions.1
When reviewing the sufficiency of the evidence to support a conviction,
1
Vince also argues that the trial court erred in denying his motion for a directed verdict. Because his
argument in this regard is the same as his sufficiency argument, and our standard of review is the same in
both cases, we treat his directed-verdict and sufficiency arguments as one. See Edwards v. State, 862 N.E.2d
1254, 1262 (Ind. Ct. App. 2007) (“If the evidence is sufficient to sustain a conviction upon appeal, then a
motion for a directed verdict is properly denied; thus, our standard of review is essentially the same as that
upon a challenge to the sufficiency of the evidence.”), trans. denied.
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appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind.
2016). It is the fact-finder’s role, not that of appellate courts, to assess witness
credibility and weigh the evidence to determine whether it is sufficient to
support a conviction. Id. It is not necessary that the evidence “overcome every
reasonable hypothesis of innocence.” Id. (quotation omitted). The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
[17] Specifically, Vince argues that the evidence is insufficient to support his
convictions because N.S. and J.S. did not identify him “in court, nor via a
photograph” and there was no “physical or medical evidence” presented to
show that they were sexually assaulted. Appellant’s Br. p. 12. Numerous
witnesses identified the defendant in court as Vince M. Bryan. See Tr. Vol. I pp.
94, 114, 163, 207. Although neither N.S. nor J.S. pointed to the defendant or a
photo of the defendant as Vince M. Bryan, they testified that they knew Vince
M. Bryan and that they called him “Vinny.” They then testified that “Vinny”
touched their penises with his hand, put his mouth on their penises, and made
them touch his penis. The evidence is sufficient to prove that Vince is the one
who molested N.S. and J.S. As for the fact that there was no physical or
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medical evidence presented to show that N.S. and J.S. were sexually molested,
it is well established that a conviction can be sustained on the uncorroborated
testimony of a single witness, even when that witness is the victim. Bailey v.
State, 979 N.E.2d 133, 135 (Ind. 2012). Here, both N.S. and J.S. testified that
Vince touched their penises with his hand, put his mouth on their penises, and
made them touch his penis. We therefore affirm Vince’s convictions.
[18] Affirmed.
[19] Najam, J., and Tavitas, J., concur.
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