Appellate court splits in first impression ‘he said, she said’ child molesting case

IL file photo

Court of Appeals of Indiana judges parted ways on an issue of first impression in a “he said, she said” child molestation case, with the majority finding that a man was not given a fair opportunity to challenge the “she said” part of the evidence. However, a dissenting judge expressed concern about how the decision could potentially confuse character evidence regarding child victims.

In the case of Matthew Hayko v. State of Indiana, 21A-CR-2407, Matthew Hayko was convicted of Level 4 felony child molesting and was sentenced to eight years, with two years suspended to probation.

At his trial, during voir dire, the potential jurors were asked about witness credibility, their opinions about the truthfulness of children as witnesses, and their perceptions about how children would react to discussing sexual topics.

During the state’s case-in-chief, Tammy Lampert, the executive director of a children’s advocacy center, testified over objection about delayed disclosure and children’s reactions to molestations.

For his part, Hayko asked to present testimony from witnesses regarding their opinion character of V1, his daughter. In the offer to prove, the three witnesses testified independently about their interactions with the child and their opinion that she was untruthful.

The Spencer Circuit Court, however, concluded Hayko had not laid a proper foundation for that testimony and thus declined to admit it.

On appeal, Hayko argued in part that the trial court’s conflation of the foundational requirements for reputational testimony under Indiana Evidence Rule 608, as to his proffered opinion testimony under that rule, denied him the right to present a defense.

Parting ways in what it declared to be a case of first impression, the Court of Appeals agreed that the trial court misinterpreted Rule 608.

“This case alleged violations of no greater position of trust than that of a parent to his child, and Hayko’s conviction turned on the jury’s credibility determination in this ‘he said, she said’ case,” Senior Judge John Baker wrote. “Finding that the court misinterpreted the Rule and thus did not allow Hayko the fair opportunity to challenge the ‘she said’ part of the evidence with his proffered witnesses, we reverse and remand for a new trial” on the issue of the admissibility of the proffered opinion testimony under Rule 608(a).

Finding no caselaw that sets out the foundational requirements for admissibility of opinion testimony, the majority concluded that the court’s discussion covered only the requirements for reputational evidence.

“The opinion testimony clearly was relevant to the issue of V1’s credibility,” Baker wrote for the majority, joined by Judge L. Mark Bailey. “Witnesses were allowed to contradict Hayko’s version of the incident leading to the allegations, but because of the court’s ruling, Hayko was left to defend his version without available opinion testimony about V1’s character for truthfulness or untruthfulness.”

Further, the majority opined that, as it pertains to Rule 608, the admission of opinion testimony should not be limited in the way reputation evidence is limited. It concluded that a witness’s testimony about their perception of a victim’s character for truthfulness at the time the accusations are made is “particularly helpful.”

“These are two distinct types of evidence under the Rule and the foundation for the testimony as opinion testimony had been met in this instance,” Baker wrote. “For these reasons, we conclude that the court abused its discretion by ruling that the testimony was inadmissible.”

To that point, the appellate majority found the trial court’s error was not harmless, noting that Hayko’s conviction turned on the jury’s witness credibility assessment. As such, the error affected the essential fairness of the trial.

However, the COA agreed with the trial court’s admission of Hayko’s statement to police that he didn’t want to call the child a “liar,” noting that the issue is likely to recur in the new trial.

“The trial court did not abuse its discretion by admitting the statement in evidence as it was not a custodial statement made without the benefit of Miranda warnings,” the majority wrote.

As for the state’s characterization of Hayko’s statement as an admission, the majority observed that attorneys “are permitted to characterize the evidence, discuss the law, and attempt to persuade the jury to a particular verdict.”

“On retrial, the court will be in the best position to determine whether the closing arguments stay within those parameters should Hayko choose to challenge the State’s characterization of the evidence,” it wrote.

Judge Elizabeth Tavitas concurred in part and dissented in part in 12-page separate opinion. She agreed with the majority as to the admission of Hayko’s statement to police but split from the  conclusion that the trial court erred by excluding the proffered opinion testimony. .

“Because admission of such opinion testimony has the potential to be problematic, we should give trial courts wide leeway when deciding to admit or exclude such evidence,” Tavitas opined. “Here, the trial court decided to exclude the opinion of character testimony proffered by Hayko, a decision that was well within the trial court’s discretion in such matters.”

The dissenting judge noted that Hayko sought to admit testimony from three witnesses regarding their opinion of the victim’s character for veracity, rather than the victim’s reputation for veracity.

“In the present case, I am unable to conclude that the trial court abused its considerable discretion by excluding the evidence of Hayko’s character witnesses,” the dissenting judge concluded. “All three character witnesses had some contact with the victim, usually at family gatherings, a few times per year. All three witnesses would have testified that, in their opinion, the victim had a character for untruthfulness. None of the proposed character witnesses, however, had seen the victim in the two years before trial due to a protective order.

“… Even if the victim happened to be a fibber as a young child, does this mean that she would lie, under oath, as a more mature teenager?” Tavitas continued. “I fear that allowing such character evidence in this case could open a Pandora’s box of minimally relevant and potentially confusing character evidence, especially regarding child victims.”