Ellica Ann Houser v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 27, 2016
• Docket: 79A02-1603-CR-556
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Dec 27 2016, 8:33 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy P. Broden Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ellica Ann Houser, December 27, 2016

Appellant-Defendant, Court of Appeals Cause No. 79A02-1603-CR-556 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Busch, Judge Appellee-Plaintiff. Cause No. 79C01-1502-FD-1

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 1 of 13 STATEMENT OF THE CASE

[1] Appellant-Defendant, Ellica Houser (Houser), appeals her conviction for

neglect of a dependent, a Class D felony, Ind. Code § 35-46-1-4(a)(3) (2012).

[2] We affirm.

ISSUE

[3] Houser raises two issues on appeal, which we consolidate and restate as the

following single issue: Whether the trial court abused its discretion in admitting

certain evidence.

FACTS AND PROCEDURAL HISTORY

[4] Between December 2010 and December 2012, K.N. 1 lived with her mother,

Houser, and her step-father, Michael Houser (Michael), at 4015 Jackson

Highway, West Lafayette, Indiana. Between 2011 and 2012, K.N. was in the

sixth and seventh grades. K.N.’s best friend was A.E., whom she had met in

the sixth grade. The two girls were closely bonded and they spent most of their

1 The charging Information and Affidavit of Probable Cause refers to K.N. as K.C. The record shows that K.N. was subsequently adopted and she changed her last name.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 2 of 13 free time together. Often times, A.E. stayed at K.N.’s house overnight on the

weekends.

[5] While living at Jackson Highway, every now and then, Michael would walk

into the bathroom while K.N. was taking a shower “and he would ask if he

could watch.” (Tr. p. 260). After a while, Michael progressed from observing

K.N.’s showers, and he would fondle K.N.’s breasts and vagina while he

masturbated. Michael would stop touching K.N.’s breast and vagina after he

ejaculated. According to K.N., Michael’s abuse in the bathroom happened

“every other day.” (Tr. p. 266).

[6] On one occasion, Michael went into K.N.’s bedroom and touched K.N.’s breast

and vagina with his hands. Thereafter, Michael inserted his penis into K.N.’s

vagina but he did not “insert it all the way.” (Tr. p. 268). Sometime between

January or February 2012, K.N. was at home sleeping on the couch. Michael

badgered K.N. to allow him to touch her and after several requests, K.N.

agreed. At first, Michael touched K.N.’s breast and vagina with his hands.

Next, Michael pulled K.N.’s shorts down, got on top of her, and inserted his

penis into her vagina. According to K.N., Houser was always at home when

Michael molested her; however, she specified that Houser was never in the

same room during the abuse. When K.N. reported to Houser about Michael’s

abuse, Houser advised her “not to think a lot about it.” (Tr. p. 281).

[7] Sometime in February 2012, Houser and K.N. got into an argument over a

“tootsie roll that [Michael] had given” K.N. (Tr. p. 280). Houser ordered

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 3 of 13 K.N.to go to her bedroom but K.N. refused. Houser verbally abused K.N.

stating that the only reason K.N. left her bedroom was “to fuck” Michael. (Tr.

p. 280). Soon thereafter, the argument between Houser and K.N. escalated into

a physical altercation. In the days that followed, K.N. reported Michael’s

yearlong abuse to her boyfriend, and a school counselor. The school counselor

instructed K.N. to write down the allegations, and she thereafter alerted the

Tippecanoe County Sheriff’s Department and the Department of Child

Services. Shortly after K.N.’s claims of sexual molestation surfaced, A.E.

disclosed to her mother that Michael had raped her in 2011 when she had been

left alone with him at K.N.’s house in West Lafayette. Subsequently, K.N. and

A.E. were interviewed on several occasions at the Hartford House by Dawn

Gross (Gross), a child forensic interviewer. In addition, Detective Jacob

Amberger (Detective Amberger) interviewed Houser regarding K.N.’s

allegations.

[8] On February 28, 2015, the State filed an Information, charging Houser with

neglect of a dependent, a Class D felony, I.C. § 35-46-1-4(a)(3) (2012). On

August 25, 2015, Houser, by counsel, filed a motion in limine requesting the

exclusion of specific prior bad acts including, but not limited to “any

photographs taken on a boat in White County.” (Appellant’s App. Vol. II, p.

103). On September 15, 2015, the trial court held an evidentiary hearing to

hear all pending motions, including Houser’s motion in limine. At the close of

the evidence, the trial court took the matter under advisement. On December

16, 2015, the trial court denied Houser’s motion, stating, in part, that “with

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 4 of 13 respect to the swim suit incident, the motion in limine is denied . . . . the

evidence is relevant to show knowledge.” (Appellant’s App. Vol. II, p. 83).

[9] Houser and Michael were tried jointly during a three-day jury trial beginning on

January 11, 2016. During trial, the State questioned K.N. regarding an incident

in White County where Michael had untied her bikini top as well as A.E.’s.

Prior to K.N.’s response, Houser’s counsel requested a side bar outside the

jury’s presence, and after the conference, the trial court issued the following

limiting instructions to the jury:

Okay the defendants are charged with crimes committed in Tippecanoe County and you are now hearing some evidence about an incident that . . . allegedly occurred in White County. The . . . only purpose for which you may consider this evidence is to show the knowledge of [] Houser as to the charges against her, . . . and the intent or lack of mistake as to Michael[’s] . . . charges against him. You’re not to consider . . . the evidence of the White County incident for any other purpose.

(Tr. p. 275). K.N. proceeded to testify that in the summer of 2011, Houser,

Michael, A.E., and herself all went to a lake in White County. K.N. stated that

while on the boat, Michael unlaced her bikini top as well as A.E.’s and then she

and A.E. jumped into the water. K.N. indicated that Houser observed

Michael’s acts since she was in the water floating “on the tube.” (Tr. p. 278).

K.N. stated that Michael ejaculated when she and A.E. jumped into the water.

K.N. further stated that at a different time that same summer, while on the

same boat, Michael took naked photographs of her and Houser both with their

legs up in the air. Also, over Houser’s objection, Gross, the child forensic

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 5 of 13 interviewer, testified on the dynamics of child sexual abuse including the

disclosure process, reasons for delayed disclosures, and recantation of

allegations. 2 Specifically, Gross specified that every child is unique and reacts

differently to sexual abuse. Gross added that recantation did not mean that the

abuse did not occur, and she further explained that most children that were

sexually abused repudiated their assertions so as to avoid offending or upsetting

their caregiver or parent. At the close of the evidence, the jury found Houser

guilty as charged. On March 4, 2016, the trial court held Houser’s sentencing

hearing and subsequently sentenced her to an executed one and one-half years

in the Indiana Department of Correction.

[10] Houser now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[11] A trial court has broad discretion in ruling on the admissibility of evidence, and,

on review, we will disturb its ruling only on a showing of abuse of discretion.

Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When

2 The record shows that in June 2008, while living in Kentucky, K.N. alleged that her uncle had sexually molested her. However, during a forensic interview at the child advocacy center in Hopkinsville, Kentucky, K.N. recanted that allegation.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 6 of 13 reviewing a decision under an abuse of discretion standard, we will affirm if

there is any evidence supporting the decision. Id. A claim of error in the

admission or exclusion of evidence will not prevail on appeal unless a

substantial right of the party is affected. Ind. Evidence Rule 103(a). In

determining whether error in the introduction of evidence affected a defendant’s

substantial rights, we assess the probable impact of the evidence on the jury.

Sparkman, 722 N.E.2d at 1262.

[12] In her appellate brief, Houser argues that (1) the evidence in relation to the

incidents that arose in White County were inadmissible pursuant to Indiana

Evidence Rule 404(b); and (2) the trial court abused its discretion in admitting

Gross’ testimony since it amounted to indirect vouching for K.N.’s and A.E.’s

testimonies.

II. Admission of Evidence

[13] Houser argues that the trial court abused its discretion in admitting two prior

bad acts: (1) Houser was present when Michael untied K.N.’s and A.E.’s bikini

tops while they were on a boat in White County; and (2) the naked photographs

that Michael took of her and K.N. Houser claims that the admission of these

prior bad acts was in violation of Evidence Rule 404(b), as they could only have

been admitted to show her propensity to commit the crime of neglect of a

dependent. The State counters Houser’s argument and states that the prior bad

acts committed in White County were properly admitted as the evidence was

relevant to show Houser’s knowledge with respect to Michael’s abuse of K.N.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 7 of 13 [14] Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs,

or acts of a defendant is not admissible to prove the character of the defendant

in order to show action in conformity therewith. “It may, however, be

admissible for other purposes, such as proof of motive, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” Evid. R. 404(b).

(emphasis added). In assessing the admissibility of Evidence Rule 404(b)

evidence, the trial court must (1) determine whether the evidence of other

crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s

propensity to commit the charged act; and (2) balance the probative value of the

evidence against its prejudicial effect. Goldsberry v. State, 821 N.E.2d 447, 455

(Ind. Ct. App. 2005). The well-established rationale behind Evidence Rule

404(b) is that the jury is precluded from making the forbidden inference that the

defendant had a criminal propensity and therefore engaged in the charged

conduct. Id. The list of “other purposes” in the Rule is not exhaustive;

extrinsic act evidence may be admitted for any purpose not specified in Rule

404(b) unless precluded by the first sentence of Rule 404(b) or any other Rule.

Id.

[15] The second step of a 404(b) analysis is to balance the probative value of the

evidence against its prejudicial effect. Id. “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative

evidence.” Evid. R. 403. “The trial court has wide latitude, however, in

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 8 of 13 weighing the probative value of the evidence against the possible prejudice of its

admission.” Evans v. State, 727 N.E.2d 1072, 1079 (Ind. 2000).

[16] We note that Evidence Rule 404(b)(2) specifies knowledge as one of the

purposes for which evidence of other crimes, wrongs, or acts may be admitted.

Such evidence is most commonly used to rebut the possibility that the

defendant was unaware that a criminal act was being committed. 12 Robert L.

Miller, Jr., Indiana Practice: Indiana Evidence, § 404.203 (3d ed. 2007). Further,

in Whitehair v. State, 654 N.E.2d 296, 302 (Ind. Ct. App. 1995), we concluded

that, with respect to a defendant’s knowledge of the wrongfulness of his actions,

evidence of a defendant’s prior bad acts is only admissible when the defendant

puts his knowledge at issue. Turning to the present case, in her opening

statement, Houser, through counsel, explained that she was unaware of the

ongoing abuse happening in her home. During trial, Houser cross-examined

K.N. to show that K.N. did not explicitly report Michael’s abuse to her, and she

further presented evidence that she was not in the same room when Michael

abused K.N. In short, Houser fostered the impression that she knew nothing

about K.N.’s abuse in her home.

[17] Despite Houser’s claim that the acts committed in White County were solely

introduced to prove the forbidden inference of her propensity to commit the

charged crime, we find that the evidence was introduced to challenge Houser’s

impression that she was unaware that K.N. had been subjected to sexual abuse

by Michael in her West Lafayette home. Houser turned a blind eye to

Michael’s abuse and failed to take any necessary action to prevent or limit

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 9 of 13 Michael from having any contact with K.N. In addition, as noted, the trial

court issued a limiting instruction to the jury to only consider the White County

events as evidence of Houser’s knowledge with respect to the charges proffered

against her. When a limiting instruction is given that certain evidence may be

considered for only a particular purpose, the law will presume that the jury will

follow the trial court’s admonitions. Ware v. State, 816 N.E.2d 1167, 1176

(citing Hernandez v. State, 785 N.E.2d 294, 303 (Ind. Ct. App. 2003), trans.

denied)).

[18] Regarding the balancing required under Evidence Rule 403, we find that the

trial court was well within its discretion in concluding that the probative value

of K.N.’s testimony regarding the White County events was not substantially

outweighed by the danger of unfair prejudice. In the instant case, the State

presented substantial independent evidence of Houser’s guilt such that we are

satisfied that there is no substantial likelihood that K.N.’s testimony regarding

the uncharged incidents that occurred in White County involving Houser

contributed to her conviction. At trial, K.N. offered her compelling testimony

recounting Michael’s abuse on her in the bathroom, bedroom, and living room.

According to K.N., Houser was never in the same room when the abuse

occurred; however, K.N. indicated that Houser was aware of Michael’s abuse.

Specifically, K.N. testified that when she reported Michael’s abuse, Houser

“would say that it’s okay or not to think a lot about it.” (Tr. p. 281). K.N. also

testified of an incident occurring sometime in February 2012 when she got into

an argument with Houser over a tootsie roll that Michael had offered her. K.N.

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 10 of 13 indicated that when she failed to obey Houser’s orders to return to her

bedroom, Houser implied that the only reason she left her bedroom was “to

fuck” Michael. (Tr. p. 280). In addition, the record shows that when Houser

was initially interviewed by Detective Amberger of the Tippecanoe County

Sheriff’s Department concerning K.N.’s sexual abuse claims, Detective

Amberger noted that Houser’s “demeanor was kind of . . . victim blaming” and

she accused K.N. of “flirting” with Michael. (Tr. pp. 406, 407). In light of the

substantial independent evidence establishing Houser’s guilt, we conclude that

that the trial court was within its discretion in concluding that the probative

value of K.N.’s testimony was not substantially outweighed by the danger of

unfair prejudice.

III. Vouching Testimony

[19] Finally, Houser challenges the trial court’s admission of Gross’ testimony

arguing that it improperly vouched for K.N.’s and A.E.’s testimonies. Indiana

Evidence Rule 704(b) provides that “[w]itnesses 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.”

And, “[n]o witness, whether lay or expert, is competent to testify that another

witness is or is not telling the truth.” Angleton v. State, 686 N.E.2d 803, 812

(Ind. 1997). “Such testimony is an invasion of the province of the jurors in

determining what weight they should place upon a witness’s testimony.” Rose

v. State, 846 N.E.2d 363, 367 (Ind. Ct. App. 2006).

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 11 of 13 [20] During its case-in-chief, and after K.N. and A.E. had testified, the State

presented the testimony of Gross, over Houser’s objection. Gross, a forensic

interviewer, provided expert testimony concerning the dynamics of child abuse,

the disclosure process, and why a child may recant his or her disclosure of the

abuse. Gross testified to a number of factors that contribute to a child’s delay in

disclosing abuse, including fear of shame, fear of being threatened, and worry of

how they would be perceived. Gross added that negation of sexual abuse

claims did not essentially mean that the abuse did not happen.

[21] We disagree with Houser that Gross’ testimony ran afoul of Indiana Evidence

Rule 704(b). In Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012), trans.

denied, our court permitted expert testimony explaining the behaviors and

dynamics associated with domestic violence, including that associated with

why a victim may recant. The Otte court noted that “the reactions and

behaviors of domestic violence victims are not commonly understood by

laypersons,” and “testimony regarding a victim’s propensity to recant . . .

simply provides the jury with information outside its experience, permitting it

to assess credibility based upon a more complete understanding of all potential

factors at issue.” Id. Although Gross interviewed K.N. and A.E., she never

repeated K.N.’s and A.E.’s statements at trial. Also, Gross did not offer any

opinion regarding the truth or falsity of K.N.’s and A.E.’s claims of

molestation. It is evident from the record that Gross’ testimony was based on

her specialized training in interviewing child abuse victims and her experience

investigating such cases. By eliciting only general, non-specific statements from

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 12 of 13 Gross, the State properly left the determination of K.N.’s and A.E.’s credibility

to the province of the jury. For all of the above reasons, we conclude that

Gross’ testimony was not vouching testimony prohibited by Indiana Evidence

Rule 704(b) and conclude that the trial court did not abuse its discretion by

admitting the testimony into evidence.

CONCLUSION

[22] Based on the foregoing, we conclude that the trial court did not abuse its

discretion by admitting evidence in relation to the events that arose in White

County; nor did it abuse its discretion by admitting Gross’ testimony regarding

the general nature of child abuse reports and recantations.

[23] Affirmed.

[24] Crone, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 79A02-1603-CR-556 | December 27, 2016 Page 13 of 13