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Kress v. State

Court of Appeals of Indiana

September 18, 2019

Phillip B. Kress, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Porter Superior Court The Honorable Jeffrey W. Clymer, Judge Trial Court Cause No. 64D02-1506-F1-4614

          ATTORNEY FOR APPELLANT Robert P. Harper Harper & Harper, LLC Valparaiso, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Dawn Rauch Certified Legal Intern Indianapolis, Indiana

          BAILEY, JUDGE.

         Case Summary

         [¶1] Following a jury trial, Phillip B. Kress ("Kress") was convicted of Child Molesting, as a Level 4 felony.[1] He now appeals. We affirm.

         Issues

         [¶2] Kress raises two issues, which we restate as follows:

I. Was it error for the trial court to admit certain testimony referring to the victim's out-of-court statements; and
II. Whether sufficient evidence supports the conviction.

         Facts and Procedural History

         [¶3] The State charged Kress with Child Molesting, as a Level 4 felony. Kress filed a motion in limine, seeking to exclude evidence regarding the course of the investigation as well as repetitive testimony from witnesses other than the alleged victim regarding her out-of-court allegations against Kress. App. Vol. II at 76-77. Kress articulated concerns about relevance and "creating a prejudicial 'drumbeat repetition' of [the] victim's allegation[s] and story." Id. at 77. The court ordered that the alleged victim's testimony "must precede any testimony from other witnesses" regarding the allegations. Id. at 81. The court also ordered that the testimony "may not include 'vouching' testimony." Id.

         [¶4] Kress was brought to trial in October 2017. The first witness was H.K., the eight-year-old daughter of Kress and Melissa McNorton ("McNorton"). H.K. testified about spending the night at Kress's house when she was five years old. At that time, H.K. lived with McNorton and saw Kress a couple of times each month. H.K. testified that, around bedtime, she was lying in a bed next to Kress while her sister was asleep on a separate mattress. H.K. testified that Kress used a green, glowing object to touch H.K.'s "privates" under her clothing. Tr. Vol. II at 105. Kress told H.K. not to tell anyone. Kress also asked H.K. to look at his "private." Id. at 106. H.K. declined this request and went to sleep. H.K. later told family members about the contact.

         [¶5] After H.K. testified, the State called McNorton as its next witness. Kress sought a bench conference, at which he asserted the State was "just going to start calling in . . . witness after witness to say the child told them something." Id. Kress objected, claiming this practice "is a form of vouching." Id. at 117. The trial court agreed there could be a vouching issue with "people saying the same thing," but the court would "have to wait and see what the State does." Id at 118. The State then questioned McNorton, eliciting testimony that H.K. last went to Kress's house for an overnight visit on January 2, 2015. McNorton testified that when H.K. later learned she would soon see Kress, H.K. "told" her grandfather. Id. at 125. McNorton testified she also had a conversation with H.K., and relayed H.K.'s allegations to the police. The State asked whether, in reporting the allegations, McNorton added to or subtracted from what H.K. had said. Kress objected, arguing some background testimony had been admissible, but the State could not keep referring to the victim's out-of-court ...


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