Phillip B. Kress, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
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
Following a jury trial, Phillip B. Kress ("Kress")
was convicted of Child Molesting, as a Level 4
felony. He now appeals. We affirm.
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
II. Whether sufficient evidence supports the conviction.
and Procedural History
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'
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.
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