Anthony Gibson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

FILED

this Memorandum Decision shall not be Jul 25 2018, 8:48 am

regarded as precedent or cited before any CLERK

Indiana Supreme Court

court except for the purpose of establishing Court of Appeals

and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Stacy R. Uliana Curtis T. Hill, Jr.

Bargersville, Indiana Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Anthony Gibson, July 25, 2018

Appellant-Defendant, Court of Appeals Case No.

27A04-1712-CR-2745

v. Appeal from the Grant Superior

Court

State of Indiana, The Honorable Jeffrey D. Todd,

Appellee-Plaintiff Judge

Trial Court Cause No.

27D01-1607-F4-31

Crone, Judge.

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Case Summary

[1] Anthony Gibson appeals his conviction, following a jury trial, for level 4 felony

child molesting. He asserts that the admission of certain evidence during trial

resulted in fundamental error. He also argues that the trial court abused its

discretion in the admission of other evidence and that the effect of the court’s

cumulative errors deprived him of his right to a fair trial. Finding no

fundamental error or abuse of discretion, and concluding that Gibson was not

deprived of his right to a fair trial, we affirm.

Facts and Procedural History

[2] On June 19, 2016, thirteen-year-old K.R. went to her friend C.H.’s house to

spend the night. Also at the home that evening were C.H.’s mother, Lindy, her

stepfather, Gibson, and five of C.H.’s nine siblings.1 K.R. had been to C.H.’s

home on other occasions and felt comfortable with C.H.’s family.

[3] K.R. and C.H. fell asleep around midnight in the same bed. At approximately

2:30 a.m., K.R. awoke and saw a tall shadowy figure that she recognized as

Gibson standing in the doorway of the bedroom. He was wearing a white shirt.

K.R. assumed that Gibson was probably just checking on the girls, so she closed

her eyes to return to sleep. K.R. heard footsteps coming toward her, but she

kept her eyes closed and pretended to be asleep. She could hear deep breathing

right next to her, and then she felt a large hand move up her lower thigh, under

1

C.H. has one seven-year-old biological brother. Gibson has three biological children, and he and Lindy had

recently adopted five children from foster care.

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her shorts, and squeeze her buttocks a few times. K.R. was “shaking, trying not

to cry” because she could not “believe it was happening to [her].” Tr. Vol. 2 at

36. She rolled over to her other side, and Gibson removed his hand and left the

room.

[4] K.R. stayed under the covers crying and shaking for about ten minutes before

she grabbed her cell phone and began texting her mother. K.R. asked her

mother to come pick her up immediately, telling her mother that she had

awakened to Gibson putting “his hand up [her] pants.” State’s Ex. 71 at 2.

K.R.’s mother told K.R. that she and her fiancé, Dwayne Collins, would come

pick K.R. up and stated, “I hope you are telling the truth.” Id. at 3. K.R.

responded, “Please don’t make me say anything” and “I didn’t see that it was

[Gibson] but I felt big hands.” Id. After her mother said that she was calling

the police, K.R. texted, “[B]ut [I don’t know] who it was mom! I don’t want to

get anyone in trouble I just want to go home.” Id. K.R.’s mother responded,

“[I]t’s not ok and just promise me you are telling the truth.” Id. at 4. K.R. said,

“I am.” Id.

[5] After texting with her mom, K.R. eventually woke up C.H. and told her what

had happened. K.R. told C.H. that she was leaving, and she asked C.H. to

walk her downstairs. C.H. responded that it could not have been Gibson and

put the idea in K.R.’s mind that somebody else “had to have came into the

house.” Tr. Vol. 2 at 52. The two girls walked downstairs and observed

Gibson, who appeared to be sleeping in a recliner. K.R. exited the home and

walked down the driveway to get picked up. She was still texting with her

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mother, and when her mother informed her that Collins was on his way, K.R.

stated, “Tell him to hurry please…[I] don’t think it was [Gibson]…I feel like

someone came in the house…but [ I don’t know].” State’s Ex. 71 at 5.

[6] Before Collins arrived to pick up K.R., Gibson exited the house and confronted

K.R., asking her why she was leaving. Because K.R. did not want Gibson to

know that she was awake when he touched her, K.R. said, “I just want go

home…I just had a bad dream.” Tr. Vol. 2 at 41. When Collins arrived, he

approached Gibson and told him that somebody had touched K.R.

inappropriately and that he was going to find out who. Gibson did not really

respond, but instead just nodded his head. Collins drove away with K.R.

[7] Shortly thereafter, Gibson called 911 and reported that “maybe someone [was]

in [his] house.” State’s Ex. 70. He told the dispatcher that he thought the

person had just left because he saw a vehicle parked off a road behind his house

and the vehicle was departing as he called 911. A police officer who was

nearby and quickly responded to the scene did not see or pass any vehicles as he

approached the residence, nor did he observe any vehicles as he continued to

search the area. Because Gibson told one of the officers that he thought he saw

a man get in the vehicle and drive away, another officer and his canine arrived

at the scene and walked that area, but the canine gave no indications or leads

for tracking a scent. Also, because Gibson reported that the vehicle was parked

in a grassy area, an officer went to the area but saw no evidence of tire tracks or

downed grass in the damp ground where Gibson stated the vehicle had been

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located. Photographs of Gibson taken that night reveal that he was wearing a

white shirt.

[8] After K.R. returned home, she immediately told her sister what had happened.

She was subsequently interviewed by police, and on July 7, 2016, the State

charged Gibson with level 4 felony child molesting. Following a jury trial,

Gibson was found guilty as charged. The trial court imposed a six-year

sentence with one year suspended to probation. This appeal ensued.

Discussion and Decision

Section 1 – The trial court did not commit fundamental error

in admitting certain evidence.

[9] Gibson makes multiple claims of fundamental error. We begin by addressing

his assertion that the trial court’s admission of repeated vouching testimony

from K.R.’s mother, best friend, and sister resulted in fundamental error.

Gibson concedes that his counsel failed to object to the testimony as vouching

testimony, and the “[f]ailure to object to the admission of evidence at trial

normally results in waiver and precludes appellate review unless its admission

constitutes fundamental error.” Konopasek v. State, 946 N.E.2d 23, 27 (Ind.

2011) (quotation and citation omitted). Thus, Gibson seeks to avoid waiver

and obtain reversal of his conviction pursuant to the doctrine of fundamental

error.

[10] Generally speaking, the fundamental error doctrine is meant to permit appellate

courts a means to correct the most egregious and blatant trial errors that

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otherwise would have been procedurally barred, “not to provide a second bite

at the apple for defense counsel who ignorantly, carelessly, or strategically fail

to preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Indeed, our

supreme court very recently explained,

An error is fundamental, and thus reviewable on appeal, if it

“made a fair trial impossible or constituted a clearly blatant

violation of basic and elementary principles of due process

presenting an undeniable and substantial potential for harm.”

These errors create an exception to the general rule that a party’s

failure to object at trial results in a waiver of the issue on appeal.

This exception, however, is “extremely narrow” and

encompasses only errors so blatant that the trial judge should

have acted independently to correct the situation. At the same

time, “if the judge could recognize a viable reason why an

effective attorney might not object, the error is not blatant

enough to constitute fundamental error.”

Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (citations omitted).

[11] Indiana Evidence Rule 704(b) precludes witnesses from testifying to opinions

concerning the truth or falsity of allegations or whether a witness has testified

truthfully. Gibson claims that three witnesses improperly vouched for K.R.’s

credibility when they were permitted to tell the jury “that they believed” the

truth of her allegation against Gibson. Appellant’s Br. at 12. Such testimony is

considered an invasion of the province of the jurors in determining what weight

they should place upon a witness’s testimony. Bean v. State, 15 N.E.3d 12, 18

(Ind. Ct. App. 2014), trans. denied.

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[12] First, Gibson contends that impermissible vouching took place during K.R.’s

mother’s testimony. Specifically, when asked about text messages between

mother and daughter in which K.R. stated that Gibson had touched her, K.R.’s

mother testified, “I believed her, especially when you see the physical

symptoms she was having. You don’t have those physical symptoms unless

something truly stressful or traumatic has happened to you.” Tr. Vol. 1 at 204.

Contrary to Gibson’s assertion, this comment could be interpreted as limited to

K.R.’s mother’s belief that an actual molestation occurred, rather than vouching

for K.R.’s identification of Gibson as the perpetrator. Regardless, even if K.R.’s

mother’s testimony was “potentially erroneous under the strict terms of Rule

704,” we agree with the State that it did not amount to fundamental error.

Appellee’s Br. at 13-14.

[13] As noted above, if the trial judge “could recognize a viable reason why an

effective attorney might not object, the error is not blatant enough to constitute

fundamental error.” Durden, 99 N.E.3d at 652. Here, we think the trial judge

could recognize a viable reason why Gibson’s attorney might not object to

K.R.’s mother’s testimony. Specifically, the entirety of the text message

exchange showed that K.R.’s mother clearly questioned the credibility of K.R.’s

allegation at the time of the incident (questioning her honesty and twice

imploring that she “better be” telling the truth). During vigorous cross-

examination, Gibson’s counsel was able to emphasize the inconsistency in

K.R.’s mother’s current testimony regarding K.R.’s credibility at the time of the

incident versus the questions as to her credibility expressed in the text messages.

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Counsel was further able to highlight that K.R. told her mother multiple times

that she did not know for sure who had touched her. K.R.’s mother admitted

that she believed that K.R. was also telling the truth when she said she did not

know who had touched her. In short, K.R.’s mother’s testimony highlighted

multiple inconsistencies and gave defense counsel a valuable impeachment

opportunity. Accordingly, the lack of objection could have been strategic, and

any error in the admission of the testimony is not blatant enough to constitute

fundamental error.

[14] Gibson next argues that K.R.’s sister and best friend impermissibly vouched for

K.R.’s credibility when the deputy prosecutor asked them for their opinions as

to K.R.’s character for truthfulness. When asked about K.R.’s character for

“truthfulness and honesty,” K.R.’s sister testified that “K.R. has never had a

reason to lie, ever” and “out of the three of us [sisters], she’s the most honest.

Always has been.” Tr. Vol. 3 at 42. Similarly, when asked whether K.R. was a

“truthful person,” her best friend responded, “yes.” Id. at 91.

[15] The State responds that the testimony was admissible pursuant to Indiana

Evidence Rule 608(a) which provides that a witness’s credibility may be

supported by testimony about the witness’s reputation for having a character for

truthfulness or by testimony in the form of an opinion about that character.

However, “evidence of truthful character is admissible only after the witness’s

character for truthfulness has been attacked.” Ind. Evidence Rule 608(a). This

is a close call. Unquestionably, it was the State and not Gibson that first

introduced evidence that some of K.R.’s prior statements were untrue. Indeed,

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it was the State’s theory that K.R. made untruthful statements at the time of the

incident, but that she was being truthful at trial. So, the State first introduced

the untruthful statements and then permitted K.R. to explain her prior

uncertainties and why she had been untruthful. On cross-examination, Gibson

responded, understandably so, by attacking K.R.’s credibility, emphasizing that

lies are still lies, and implying that her current testimony could not be trusted.

Under the circumstances, we conclude that while the credibility issue was first

interjected by the State, the opinion testimony subsequently solicited by the

State was intended to rehabilitate K.R.’s character for truthfulness which had

been attacked by Gibson during cross-examination.

[16] We acknowledge that, as a general matter, the State cannot open its own door

to inadmissible evidence. See Willey v. State, 712 N.E.2d 434, 444 (Ind. 1999)

(State cannot bootstrap otherwise inadmissible evidence by introducing it,

“forcing a denial, and then claiming it was put in issue by the defendant.”).

Nevertheless, both parties here relied heavily on K.R.’s prior inconsistent

statements to bolster their own theories. In fact, Gibson’s counsel

foreshadowed his attack on K.R.’s credibility as to her current allegation of

Gibson being the perpetrator of the molestation when during opening statement

he highlighted her anticipated inconsistent statements. K.R.’s credibility was

squarely at issue, and thus we conclude that the challenged testimony was

admissible pursuant to Evidence Rule 608(a).

[17] Moreover, even assuming that the opinion testimony of K.R.’s sister and her

best friend was inadmissible, we conclude that any error did not rise to the level

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of fundamental error. After an extensive review of the trial transcript, we find

no clearly blatant violation of basic and elementary principles of due process.

The opinion testimony regarding K.R.’s truthful character was incredibly brief

and isolated in light of the record as a whole. Consequently, Gibson’s

substantial rights were not affected by the admission of this testimony, and he

has not satisfied the lofty standard for fundamental error.

[18] Gibson also maintains that fundamental error occurred when testimony was

admitted regarding K.R.’s changed behavior since the molestation.

Specifically, K.R.’s family members, friend, and K.R. herself testified that since

the incident, she has become more reserved, does not want to be touched by

anyone, and is scared to be alone. Gibson argues that such evidence was

“irrelevant,” “highly inflammatory,” and aimed at invoking “an emotional

reaction” from the jury. Appellant’s Br. at 17, 20. However, we remind

Gibson that even if we were to assume that the evidence was irrelevant and

prejudicial, the mere fact that error occurred and that it was prejudicial will not

satisfy the fundamental error rule. Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct.

App. 2010), trans. denied. Rather, a finding of fundamental error “requires a

defendant to show greater prejudice than ordinary reversible error.” Id. (citation

omitted). Gibson has simply not done so.

Section 2 – The trial court did not abuse its discretion in

admitting certain evidence.

[19] We next address Gibson’s assertion that the trial court abused its discretion in

admitting opinion testimony from 911 dispatcher Kelly Fields that the format of

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Gibson’s call was “a little odd” and “unusual” as compared to other 911 calls.

Tr. Vol. 2 at 149. Gibson’s counsel objected to the testimony on relevance

grounds. The State responded that Fields could give her opinion based on her

perception and her experience in taking emergency calls. The trial court

overruled Gibson’s objection and allowed the testimony. On appeal, in

addition to questioning the admissibility of Fields’s opinion pursuant to

Evidence Rule 401, Gibson claims that any probative value to the evidence was

substantially outweighed by the danger of unfair prejudice pursuant to Evidence

Rule 403.

[20] Our supreme court recently explained:

Trial judges are called trial judges for a reason. The reason is that

they conduct trials. Admitting or excluding evidence is what they

do. That’s why trial judges have discretion in making evidentiary

decisions. This discretion means that, in many cases, trial judges

have options. They can admit or exclude evidence, and we won’t

meddle with that decision on appeal. There are good reasons for

this. Our instincts are less practiced than those of the trial bench

and our sense for the rhythms of a trial less sure. And trial courts

are far better at weighing evidence and assessing witness

credibility. In sum, our vantage point—in a far corner of the

upper deck—does not provide as clear a view.

Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017) (citations and quotation marks

omitted). Because determinations of relevance and unfair prejudice can often

be resolved either way, trial courts have wide discretion in both determinations.

Id.

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[21] “Evidence is relevant when it has ‘any tendency’ to prove or disprove a

consequential fact. See Ind. Evidence Rule 401. This ‘liberal standard for

relevancy’ sets a low bar, and the trial court enjoys ‘wide discretion’ in deciding

whether that bar is cleared.” Id. (citation omitted). Similarly, opinion

testimony of a skilled witness, an individual whose knowledge is insufficient to

be termed an expert yet is beyond that of an ordinary juror, “generally needs

only rise to a relatively low bar in order to be admissible.” Hawkins v. State, 884

N.E.2d 939, 943-945 (Ind. Ct. App. 2008), trans. denied. Pursuant to Indiana

Evidence Rule 701, such a witness may provide an opinion or inference that is

rationally based on the perception of the witness and helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue.

[22] Here, Fields’s vast experience of taking emergency calls supported her

testimony as a skilled witness,2 and her opinion that the format of Gibson’s call

was unusual was rationally based on her perception and helpful to a clear

understanding of her testimony regarding the content of the call and her

subsequent response to the call. Any dispute as to the inferences to be drawn

from her opinion went to the weight of her testimony rather than to its

admissibility, and could be addressed on cross-examination.3 Hawkins v. State,

626 N.E.2d 436, 441 (Ind. 1993); Lyons v. State, 976 N.E.2d 137, 142 (Ind. Ct.

2

Gibson does not challenge that Fields was qualified as a skilled witness based on her more than fifteen years

of experience as a 911 dispatcher.

3

Gibson directs us to Cline v. State, 726 N.E.2d 1249, 1255 (Ind. 2000), in support of his argument that

Fields’s testimony was irrelevant, and therefore inadmissible. Cline is factually inapposite to the instant case.

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App. 2012). Indeed, Gibson’s counsel vigorously cross-examined Fields

regarding her opinion, offering the jury numerous reasonable explanations for

Gibson’s behavior during the call. As for prejudice, while we agree with

Gibson that Fields’s opinion testimony was prejudicial to him in the sense that

it may have been damaging to his case, we conclude that it was not unfairly so.

Her testimony was brief, and she gave the jury absolutely no indication as to

what, if anything, they should infer from her opinion that Gibson’s call was

unusual. The trial court did not abuse its discretion in admitting the testimony.

Section 3 – Cumulative error did not deprive Gibson of a fair

trial.

[23] Last, Gibson asserts that the combination of all the trial court’s evidentiary

errors, considered cumulatively, deprived him of a fair trial. Our supreme court

has acknowledged “for the sake of argument, that under some circumstances

the cumulative effect of trial errors may warrant reversal even if each might be

deemed harmless in isolation[.]” Hubbell v. State, 754 N.E.2d 884, 895 (Ind.

2001). However, as we concluded above, neither fundamental error nor an

abuse of discretion occurred that would support a cumulative error claim.

Moreover, a defendant is “entitled to a fair trial, not a perfect trial.” Inman v.

State, 4 N.E.3d 190, 203 (Ind. 2014) (citation omitted). We perceive no

significant breakdown in the adversarial process that deprived Gibson of his

right to a fair trial. Accordingly, we affirm his conviction.

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[24] Affirmed.

Bailey, J., and Brown, J., concur.

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