Christian Ricker v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 15, 2015
• Docket: 71A03-1407-CR-266
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this May 15 2015, 9:31 am 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 Brendan K. Lahey Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christian Ricker, May 15, 2015

Appellant-Defendant, Court of Appeals Case No. 71A03-1407-CR-266 v. Appeal from the St. Joseph Superior State of Indiana, Court The Honorable Elizabeth Hurley, Appellee-Plaintiff, Judge Cause No. 71D08-1209-FA-26

Robb, Judge.

Case Summary and Issues [1] Following a jury trial, Christian Ricker was convicted of two counts of Class A

felony child molesting, one count of Class C felony child molesting, and one Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 1 of 10 count of Class D felony intimidation. On appeal, he raises two issues for

review: (1) whether the admission of testimony concerning Child Abuse

Accommodation Syndrome (“CAAS”) constituted fundamental error; and (2)

whether there is sufficient evidence to sustain Ricker’s convictions. Concluding

that the admission of testimony about CAAS did not amount to fundamental

error and that sufficient evidence was presented to support Ricker’s convictions,

we affirm.

Facts and Procedural History [2] In May of 2009, Ricker began a romantic relationship with L.S.’s mother. L.S.

was seven years old at the time. Starting in June of 2009, Ricker began

spending a few nights a week at their house. On occasion, Ricker watched L.S.

and her siblings while L.S.’s mother was at work.

[3] The first inappropriate contact between Ricker and L.S occurred during the

summer between L.S.’s third and fourth years in school. Ricker brought her

downstairs, sat on the couch next to her, and touched L.S.’s chest over her

clothes. The next inappropriate contact occurred later that year after school

had started. Ricker rubbed L.S.’s leg and crotch over her clothes while she was

sitting on the living room couch. A third incident occurred approximately one

month later when Ricker entered L.S.’s bedroom, grabbed her arm, and brought

her downstairs to the living room. Ricker removed L.S.’s shorts and

underwear, took his own clothes off, placed a “balloon” on his “private part,”

and had intercourse with her. Transcript at 278. This lasted for about five

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 2 of 10 minutes before L.S. kicked Ricker, grabbed her clothes, and went to her room.

Before she left, Ricker told L.S. that he would hit her if she told anyone. The

fourth instance of inappropriate contact occurred approximately one week later.

L.S. was in the living room wearing shorts and a tank top. Ricker took his

clothes off and removed L.S.’s shorts, placed a “balloon thing” on his “private,”

and put it inside her. Tr. at 286. Ricker stopped because L.S.’s mother came

home.

[4] On December 23, 2011, L.S. disclosed the sexual abuse to her father’s fiancée,

Karagh Brennan. Brennan told L.S. it would be investigated. In May of 2012,

L.S. opened up to Brennan again and disclosed additional abuse that had not

been disclosed the first time.

[5] The investigation involved interviews between L.S. and Carolyn Hahn, an

employee with the Child Abuse Service Investigation Education Center. Hahn

is a child forensic interviewer at the Center with an undergraduate degree and

masters work in elementary education. She has been a forensic interviewer

since 1996 and has conducted over 5,000 interviews with alleged child abuse

victims. Hahn has been trained in the use of CAAS, a system of clinical

accommodations to help children struggling with child abuse. During Hahn’s

interview with L.S. on December 29, 2011, L.S. gave a partial disclosure to

Hahn regarding her sexual abuse. On or about June 12, 2012, a second

interview took place during which L.S. made additional disclosures about her

sexual abuse.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 3 of 10 [6] On September 24, 2012, the State charged Ricker with three counts of Class A

felony child molesting,1 one count of Class C felony child molesting, and one

count of Class D felony intimidation. A jury found him guilty of two counts of

Class A felony child molesting, Class C felony child molesting, and Class D

felony intimidation. On July 25, 2014, the trial court imposed an aggregate

sixty-two year sentence. Ricker now appeals.

Discussion and Decision I. Admission of CAAS Evidence A. Standard of Review [7] The trial court has broad discretion in ruling on the admissibility of evidence.

Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). This court will

reverse the trial court’s ruling only if the admission of evidence was an abuse of

that discretion. Id. An abuse of discretion involves a decision that is clearly

against the logic and effect of the facts and circumstances before the court.

Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000) (quotation

omitted), trans. denied.

1 Prior to trial, the State moved to dismiss one count of Class A felony child molesting. The trial court granted the motion and dismissed the count with prejudice.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 4 of 10 B. Preservation of the Alleged Error [8] Ricker claims that Hahn’s testimony regarding the effects of CAAS was

improper. Specifically, he argues that Hahn was not a qualified expert under

Indiana Evidence Rule 702(a); the testimony about CAAS was scientific in

nature and must be proven reliable under Rule 702(b); Hahn’s testimony was

impermissible vouching in violation of Rule 704(b); and the testimony was

unfairly prejudicial and should have been excluded under Rule 403.

[9] A claim of error in the admission of evidence is forfeited unless the appellant

made a “contemporaneous objection at the time the evidence [was] introduced

at trial . . . .” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Ricker’s counsel

failed to object to the use of CAAS evidence or Hahn’s status as a qualified

expert. However, late into Hahn’s testimony on direct examination, Ricker did

object to a question about whether L.S. showed signs of CAAS, and the trial

court cautioned the State on that point. Ricker claims that this later objection

should be sufficient to preserve all of his appellate challenges to Hahn’s CAAS

testimony. But “[t]he purpose of requiring a contemporaneous objection is to

afford the trial court an opportunity to make a final ruling on the matter in the

context [in] which the evidence is introduced.” Orr v. State, 968 N.E.2d 858,

860 (Ind. Ct. App. 2012). Here, Ricker’s failure to specifically object to Hahn’s

qualifications and the general use of CAAS evidence renders those issues

forfeited on appeal.

[10] Regardless of his failure to object, Ricker claims that the trial court committed

fundamental error by allowing the testimony. If a timely objection is not made Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 5 of 10 at trial, then only review for fundamental error is allowed. Clark v. State, 915

N.E.2d 126, 131 (Ind. 2009). “Fundamental error is an error that makes a fair

trial impossible or constitutes clearly blatant violations of basic and elementary

principles of due process presenting an undeniable and substantial potential for

harm.” Id. We will review the admission of the CAAS testimony for

fundamental error.

C. Evidence of CAAS and Fundamental Error [11] With respect to CAAS, our supreme court has said “the reliability of such

evidence for the purpose of proving abuse is at present extremely doubtful and

the subject of substantial and widespread repudiation by courts and scientists.”

Steward v. State, 652 N.E.2d 490, 499 (Ind. 1995). Consequently, the court held

in Steward that CAAS evidence cannot be used to prove a child has been

sexually abused. Id. That said, our supreme court indicated that if a child’s

credibility is called into question by the defendant, then testimony about the

effects of CAAS may be appropriate to rebut an attack on the child’s credibility.

Id.

Because research generally accepted as scientifically reliable recognizes that child victims of sexual abuse may exhibit unexpected behavior patterns seemingly inconsistent with the claim of abuse, such evidence may be permissible under Indiana Evidence Rule 702(a)’s authorization of “specialized knowledge [which] will assist the trier of fact to understand the evidence.” Therefore, if the defense discusses or presents evidence of such unexpected behavior by the child . . . a trial court may consider permitting expert testimony, if based upon reliable scientific principles, regarding the prevalence of the specific unexpected behavior within the general class of reported child abuse victims.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 6 of 10 Id. (alteration in original) (emphasis added).

[12] The record shows that Ricker repeatedly attacked L.S.’s credibility during his

cross-examination and also called her mother to testify and contradict L.S.’s

testimony. The State contends that testimony concerning the potential effects

of CAAS was presented in an attempt to rehabilitate L.S.’s credibility, and the

record supports the State’s explanation. Our supreme court has acknowledged

that rehabilitating the credibility of the alleged victim is a potentially acceptable

use of CAAS evidence. Where Ricker’s defense strategy opened the door to the

use of CAAS evidence for that purpose, and the State sought to submit it for

that purpose, we cannot conclude that admission of that evidence amounted to

II. Sufficiency of the Evidence A. Standard of Review [13] When reviewing the sufficiency of evidence, this court does not reweigh the

evidence or assess the credibility of witnesses. McHenry v. State, 820 N.E.2d

124, 126 (Ind. 2005). When confronted with conflicting evidence, we consider

it in the light most favorable to the conviction. Walker v. State, 998 N.E.2d 724,

726 (Ind. 2013). This court will affirm the conviction unless “no reasonable

fact-finder” could have found the defendant guilty beyond a reasonable doubt.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). A conviction may stand on a

minor witness’s uncorroborated testimony. Nelson v. State, 525 N.E.2d 296, 297

(Ind. 1988).

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 7 of 10 [14] “Within the narrow limits of the ‘incredible dubiosity’ rule, a court may

impinge upon a jury’s function to judge the credibility of a witness.” Love v.

State, 761 N.E.2d 806, 810 (Ind. 2002). “If a sole witness presents inherently

improbable testimony and there is a complete lack of circumstantial evidence, a

defendant’s conviction may be reversed.” Id. “Application of this rule is

limited to cases . . . where a sole witness presents inherently contradictory

testimony which is equivocal or the result of coercion and there is a complete

lack of circumstantial evidence of the appellant's guilt.” White v. State, 706

N.E.2d 1078, 1079-80 (Ind. 1999) (citation omitted). We apply the incredible

dubiosity rule only in rare circumstances, and “the standard to be applied is

whether the testimony is so incredibly dubious or inherently improbable that no

reasonable person could believe it.” Love, 761 N.E.2d at 810.

B. Incredibly Dubious Testimony [15] Ricker claims L.S. gave incredibly dubious testimony that could not have

allowed a reasonable trier of fact to find all of the elements of child molestation

and intimidation were proved beyond a reasonable doubt.

[16] L.S. testified that on four separate occasions she was touched by Ricker and

that sexual intercourse occurred on two of those occasions. When describing

the occurrences, she used language that a nine-year old child would use. She

described the occurrence using words such as “private,” “crotch,” “thing,” and

“balloon thing,” which are all terms that a child would use when referring to

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 8 of 10 such an incident. Tr. at 276-78. L.S.’s testimony was coherent and presented a

believable narrative of events.

[17] Ricker complains of alleged inconsistencies between L.S.’s pre-trial statements

and her trial testimony. However, any such inconsistency is irrelevant to the

question of whether her testimony was incredibly dubious because the rule

concerns only testimony that is inherently contradictory, not conflicting

statements made outside of trial. Reyburn v. State, 737 N.E.2d 1169, 1171 (Ind.

Ct. App. 2000), trans. denied.

[18] Ricker also claims L.S’s testimony was incredibly dubious because her mother

offered some conflicting testimony. This is an invitation for this court to

reweigh evidence, which we will not do. Inconsistencies in testimony given by

various witnesses is a matter for the jury to evaluate. Murray v. State, 761

N.E.2d 406, 409 (Ind. 2002). The inconsistencies in the testimony given by

different witnesses do not trigger the incredible dubiosity rule. See Berry v. State,

703 N.E.2d 154, 160 (Ind. 1998). In sum, we conclude that L.S.’s testimony

was not incredibly dubious.

[19] L.S. testified that Ricker touched her on four separate occasions, two of which

culminated in sexual intercourse, and once told her not to tell or he would hit

her. Her testimony is sufficient to sustain Ricker’s convictions for child

molesting and intimidation.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 9 of 10 Conclusion [20] We hold that no fundamental error occurred in the presentation of CAAS

evidence for the purpose of rehabilitating L.S.’s credibility and conclude L.S.’s

testimony was sufficient to support the jury’s verdict. Therefore, we affirm

Ricker’s convictions.

[21] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-266 | May 15, 2015 Page 10 of 10