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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA man convicted of child molesting failed to convince the Indiana Court of Appeals on Wednesday that testimony referring to the victim’s out-of-court statements should have been excluded at trial.
In Phillip B Kress v. State of Indiana, 19A-CR-490, Phillip Kress was convicted of Level 4 felony child molesting. During trial, Kress filed a motion in limine, seeking to exclude evidence regarding the course of the investigation and repetitive testimony from witnesses other than the victim regarding her out-of-court allegations against him.
Specifically, Kress voiced concerns about relevance and creating a prejudicial ‘drumbeat repetition’ of the victims’ allegations and story. Although the court ordered the victim’s testimony to precede any testimony from other witnesses regarding the allegations and that it may not include ‘vouching’ testimony, Kress objected during trial when the state asked the victim’s mother if she added or subtracted from what the child had testified.
The trial court overruled, prompting Kress lodged a continuing objection to further testimony regarding the victim’s allegations. A jury ultimately found Kress guilty, however, and sentenced him to 10 years in the Indiana Department of Correction.
On appeal, Kress first argued that the challenged testimony constituted unduly prejudicial “drumbeat repetition,” and that the testimony should have been excluded. The Indiana Court of Appeals rejected his argument, noting that the ruling on the motion to limine prevented the type of testimony warranting reversal in cases where the challenged testimony repeated the victim’s specific allegations.
The appellate court noted that the victim gave specific, descriptive testimony about the offenses, while subsequent witnesses only offered general testimony about the existence of allegations. No subsequent witness delved into the victim’s version of events, and unlike other cases, the jury heard the victim’s story just once, the appellate panel concluded.
“We are not unmindful that there is a fine line between impermissible vouching testimony and admissible corroboration testimony — especially where, as here, the case turns on whether the jury found the victim to be credible,” Judge L. Mark Bailey wrote for the panel. “However, in light of the general nature of the challenged testimony — which followed H.K.’s specific testimony — we ultimately conclude that there is no substantial likelihood that the challenged testimony contributed to the jury’s decision to convict Kress. Any error is harmless.”
The appellate panel additionally rejected Kress’ sufficiency of evidence argument, finding sufficient evidence from which a reasonable jury could conclude beyond a reasonable doubt that Kress intended to arouse his or the victim’s sexual desires.
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