Jose Morales v. State of Indiana ( 2013 )

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: ATTORNEYS FOR APPELLEE:
LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 26 2013, 9:28 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
JOSE MORALES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1207-CR-607
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa Borges, Judge
Cause No. 49G04-1009-FA-62314
February 26, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Following a jury trial, Jose Morales (“Morales”) was found guilty of two counts of
Class A felony child molesting and was sentenced to an executed, aggregate sentence of
fifty years. Morales appeals and raises two issues, which we restate as:
I. Whether the trial court abused its discretion by admitting Detective Cook’s
testimony regarding the general nature of child abuse reports and recantations
and testimony regarding the charging information;
II. Whether the trial court abused its discretion by limiting Morales’s cross-
examination of a State’s witness.
We affirm.
Facts and Procedural History
In January 2003, Jose Morales (“Morales”) and Maria Guadalupe-Ambrosio
(“Guadalupe-Ambrosio”) married. Guadalupe-Ambrosio had a son (“E.A.”), who was
born in 2001, from a previous relationship, and Morales and Guadalupe-Ambrosio had
two more children (“J.M.” and “A.M.”) together.
On two separate occasions between 2009 and 2011, while Guadalupe-Ambrosio
was at church, Morales threw E.A. down to the living room floor in their apartment and
penetrated E.A.’s anus with his penis. Tr. p. 50. E.A. had to use toilet paper to clean
“white stuff” off his bottom, and Morales told him that if he ever told his mother, he
“would never have a dad and never have a home to live and food.” Tr. p. 50, 59.
About a week after the second incident, in August of 2011, E.A. told his mother,
Guadalupe-Ambrosio, what had occurred. Guadalupe-Ambrosio took E.A. to the
hospital, and sexual assault nurse Stephanie Glover (“Glover”) examined E.A. The
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examination was normal; however, Glover testified that 70-90% of sexual abuse victims
have normal examinations after anal penetrations.
On September 6, 2011, the State charged Morales with two counts of Class A
felony child molesting and one count of Class D felony battery. On November 30, 2011,
the State amended the charging information and added six additional counts of Class A
felony child molesting of J.M. and one count of Class D felony battery of J.M. A jury
trial was conducted on June 25-26, 2012. At trial, the State dismissed the amended
counts against J.M. that were added on November 30, 2011.
Indianapolis Metro Police Department Detective Genae Cook (“Detective Cook”)
testified in regard to the nature of children’s reports of sexual abuse and the reasons why
some abuse victims recant or fail to disclose abuse. Detective Cook also testified that she
had interviewed Morales. On cross examination, Morales sought to elicit testimony from
Detective Cook regarding Morales’s denial of the allegations during this interview, but
the State objected that this was hearsay. Morales argued that the testimony was
admissible because the State opened the door to the testimony. The judge sustained the
objection and ordered the jury to disregard the testimony.
The jury found Morales guilty of two counts of Class A felony child molesting but
not guilty of Class D felony battery. The trial court sentenced Morales to consecutive,
executed sentences of twenty years on one count and thirty years on the other.
Morales now appeals.
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Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010) (citing Iqbal v.
State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)), trans. denied. An abuse of discretion
occurs if the trial court’s decision is “clearly against the logic and effect of the facts and
circumstances before the court, or if the court has misinterpreted the law.” Boatner v.
State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010). However, “[w]here the alleged error
also involves claims of legal error, we judge questions of law de novo.” Purvis v. State,
829 N.E.2d 572, 578 (Ind. Ct. App. 2005).
I. Admission of Detective Cook’s Testimony
Morales argues that the trial court abused its discretion by admitting Detective
Cook’s testimony regarding the general nature of children’s reports of sexual abuse and
reasons some children recant and her testimony regarding the charging information,
claiming it to be inadmissible vouching testimony. Vouching testimony is generally
prohibited by Indiana Evidence Rule 704(b) which provides that: “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.’” Kindred v. State, 973
N.E.2d 1245, 1257 (Ind. Ct. App. 2012) (quoting Gutierrez v. State, 961 N.E.2d 1030,
1034 (Ind. Ct. App. 2012)), trans. denied. “Until recently, an exception was made to
Evidence Rule 704(b) for vouching testimony in child-molesting cases[,]” but, in
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Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012), our supreme court eliminated the
“vouching testimony exception in the context of child-molesting cases.” Palilonis v.
State, 970 N.E.2d 713, 729 (Ind. Ct. App. 2012), trans. denied.
Following the Hoglund decision this court, in Kindred, contrasted general
testimony about the signs of coaching from specific testimony about the child victim in a
given case: “[G]eneral testimony about the signs of coaching, as well as the presence or
absence of those signs in the child victim at issue, preserves the ultimate credibility
determination for the jury and therefore does not constitute vouching[;]” whereas, when
“a witness opines as to whether the child victim was coached” this vouches for the child
and invades the province of the jury. 973 N.E.2d at 1258. Thus, we read Kindred to
suggest that if the witness’s testimony does not opine about the specific child in the case,
it leaves the ultimate credibility determination for the jury and, therefore, is not vouching
testimony prohibited by Rule 704(b). This interpretation is also supported by our court’s
opinion in Otte v. State, where we held that a domestic violence expert’s non-specific
statements that victims of domestic violence routinely recant their stories was not
impermissible vouching testimony under Indiana Evidence Rule 704(b), even though the
testimony “operated to explain away [the victim’s] recantation[.]” 967 N.E.2d 540, 544
(Ind. Ct. App. 2012), trans. denied.
A. Testimony regarding the general nature of children’s reports of sexual abuse
Morales argues that Detective Cook’s testimony regarding the general nature of
children’s reports of sexual abuse and the reasons why some abuse victims recant or fail
to disclose abuse was impermissible vouching testimony, because it implied that
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Detective Cook believed E.A. was credible. However, Morales admits that Detective
Cook “did not explicitly give[] an opinion about E.A.’s credibility[.]” Appellant’s Br. at
14; see also Appellant’s Reply Br. at 2. Rather, Detective Cook testified, in general
terms, how children report sexual abuse and why children may recant. Tr. p. 165-66.
The record is clear that Detective Cook’s testimony was based on her specialized
training in interviewing child abuse victims and her experience investigating 550 cases as
a detective in the child abuse unit. Tr. p. 160-61. Though Morales has characterized this
testimony as vouching testimony, we disagree. Detective Cook’s testimony did not focus
on E.A., and she did not testify that she believed E.A. was truthful or credible. By
eliciting only general, non-specific statements from Detective Cook, the State properly
left the determination of E.A.’s credibility to the province of the jury.1
B. Testimony regarding charging criteria
Morales also argues that Detective Cook’s testimony regarding the charging
criteria was vouching testimony. However, Morales’s only objection to the admission of
this evidence at trial was a hearsay objection, and the trial court sustained the objection
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Despite not clearly delineating the argument as a separate issue, Morales also contends that Detective
Cook’s testimony regarding the general nature of children’s sexual abuse reports should be excluded
because the State did not prove this testimony was scientifically reliable under Indiana Evidence Rule
702(b). Appellant’s Br. at 15-17; see also Steward v. State, 652 N.E.2d 490, 499 (Ind. 1995) (holding
that testimony regarding child sexual abuse syndrome was inadmissible to prove that a child was sexually
abused). However, Morales’s reliance on Steward is misplaced. Steward dealt with the use of child
sexual abuse syndromes or behavior profiles as scientific tools to prove child sexual abuse, whereas, here
Detective Cook testified as a skilled witness with specialized knowledge based on her observations and
training from dealing with abused children, not based on scientific principles governed by Rule 702(b).
See Haycraft v. State, 760 N.E.2d 203, 211 (Ind. Ct. App. 2001) (holding that the detective testified as a
skilled witness not an expert witness regarding grooming techniques of child molesters); see also Lyons
v. State, 976 N.E.2d 137, 142 (Ind. Ct. App. 2012) (holding that testimony based on specialized
knowledge “need not be proven reliable by means of ‘scientific principles[,]’” and “any weaknesses or
problems in the testimony go only to the weight of the testimony, not to its admissibility”).
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on that ground and directed the State to rephrase the question. See Tr. p. 172-73.
Morales made no other objection to the questions regarding the charging criteria and
made no objection at all to the evidence on the basis it was vouching testimony. See
Appellant’s Br. at 23 (noting that “defense counsel did not specifically object to the
testimony about the charging criteria”). Thus, this error was waived. See Brown v. State,
587 N.E.2d 693, 703 (Ind. Ct. A 1992) (holding that failure to properly object waives the
error upon appeal and that “defendant may not state one reason for an objection at trial
and then rely upon another upon appeal”).
Waiver not withstanding, Detective Cook’s testimony regarding charging criteria
was not vouching testimony. Detective Cook gave only brief testimony regarding the
charging criteria. She testified that she made the decision to arrest Morales, was part of
the filing process, and determined the date for the counts based off when E.A. started
school that year. Tr. p. 172-73. She did not testify to any opinion concerning the
veracity of E.A.’s allegations. See id.For all of these reasons, we conclude Detective Cook’s testimony was not
vouching testimony prohibited by Indiana Evidence Rule 704(b) and conclude the trial
court did not abuse its discretion by admitting the testimony into evidence.2
II. Exclusion of Detective Cook’s Statements
Morales also contends that the trial court abused its discretion by excluding
portions of Detective Cook’s testimony regarding statements Morales had previously
2
In light of our conclusion that Detective Cook’s testimony was not vouching testimony, we need not
address Morales’s argument that the cumulative effect of admitting Detective Cook’s testimony resulted
in fundamental error.
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made to her. At trial, the State elicited testimony from Detective Cook that she had
interviewed Morales and determined Morales’s date of birth. Tr. p. 170. During cross-
examination, Morales then attempted to elicit testimony from Detective Cook regarding
his denial of the allegations during this interview, but the State objected on hearsay
grounds and the trial court sustained the objection. Tr. p. 176. Morales argues that the
trial court’s ruling violated the doctrine of completeness and limited his constitutional
rights to cross-examine Detective Cook. 3
The completeness doctrine provides that “‘[w]hen one party introduces part of a
conversation or document, the opposing party is generally entitled to have the entire
conversation or entire instrument placed into evidence.’” Lewis v. State, 754 N.E.2d
603, 606 (Ind. Ct. App. 2001) (quoting McElroy v. State, 553 N.E.2d 835, 839 (Ind.
1990)). The doctrine of completeness has been incorporated into Indiana Evidence Rule
106 but the common law doctrine of completeness is also still viable. See id. at 607.
Morales does not clearly assert in his brief whether he is relying on doctrine of
completeness as incorporated into Indiana Evidence Rule 106 or the common law
doctrine of completeness. To the extent his argument relies on Rule 106, we find this
argument unavailing, because this rule only applies to a “writing or recorded statement or
part thereof[,]” and the State did not offer the transcript or recording of the interview
3
Morales does not raise the constitutional issue separate from his argument regarding doctrine of
completeness and does not support his constitutional argument with cogent reasoning; therefore, we
conclude he waived the issue for our consideration. See Indiana Appellate Rule 46(A)(8)(a); see also
Lampitok v. State, 817 N.E.2d 630, 638 (Ind. Ct. App. 2004). Waiver notwithstanding, trial judges retain
“wide latitude” in imposing limits on cross-examination, and here, the trial court’s limitation was
reasonable and did not impinge Morales’s ability to present his defense. See Lampitok, 817 N.E.2d at
638-39.
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between Detective Cook and Morales into evidence. See Farmer v. State, 908 N.E.2d
1192, 1200 (Ind. Ct. App. 2009).
In contrast, under the common law doctrine, a defendant can cross-examine and
impeach an officer “testifying about a conversation with a defendant[,]” even in regard to
“self-serving hearsay statements.” Farmer, 908 N.E.2d at 1200 (emphasis added). Yet,
in applying this doctrine we must keep the purpose of the completeness doctrine in
mind—”to avoid misleading impressions caused by taking a statement out of its proper
context[.]” Barnett v. State, 916 N.E.2d 280, 286 (Ind. Ct. App. 2009) (citing Lieberenz
v. State, 717 N.E.2d 1242, 1248 (Ind. Ct. App. 1999), trans. denied). Here, the only
testimony the State elicited was that Detective Cook had interviewed Morales and
determined his date of birth. Detective Cook did not testify in regard to the substance of
the interview with Morales and did not indicate, or in anyway imply, that Morales’s had
or had not made statements regarding the truth of E.A.’s allegations. Thus, this very
limited testimony regarding Detective Cook’s interview of Morales did not cause a
misleading impression, and as a result, it was not necessary under the completeness
doctrine to admit the otherwise inadmissible hearsay statements of Morales in which he
denied E.A.’s allegations.
Moreover, even if the trial court erred in prohibiting Detective Cook’s testimony
regarding Morales’s denial of the allegations, Morales has not demonstrated reversible
error. See Farmer, 908 N.E.2d at 1200 (holding that it was not reversible error where the
defendant testified at length on his own behalf and explained his statement). Morales
testified at trial and denied the allegations, Tr. p. 223-24; thus, he had the opportunity “to
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tell his version of the entire matter” as he saw fit. McElroy v. State, 553 N.E.2d 835, 840
(Ind. 1990) (holding that reversal was not required when the record in the case disclosed
that appellant testified on his own behalf at great length). Because Morales cannot
demonstrate that he was prejudiced by the exclusion, even if the trial court erred in
excluding the testimony, it was not reversible error.
Conclusion
The trial court did not abuse its discretion by admitting Detective Cook’s
testimony regarding the general nature of child abuse reports and child recantations and
her testimony regarding charging information. Nor did the trial court abuse its discretion
by limiting Morales’s cross-examination of Detective Cook in an attempt to elicit her
testimony regarding Morales’s denial of the allegations.
Affirmed.
KIRSCH, J., and CRONE, J., concur.
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