Prosecutor's conduct leads to child-molesting conviction reversal

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The Indiana Court of Appeals said a Tippecanoe County man has the right to a retrial on a child molestation charge because the prosecutor inappropriately vouched for the victim’s credibility and had offered to show the victim a transcript of past statements without the teenager asking for that recollection.

In a unanimous ruling Tuesday in Michael J. Gaby v. State of Indiana, No. 79A02-1006-CR-804, the three-judge appellate panel reversed the Class A felony child molesting conviction and remanded for retrial before Tippecanoe Superior Judge Thomas Bush.

The case involves a girl known as M.C., born in 1993, who lived in the same apartment complex as Michael Gaby in the mid-90s. He watched her along with other children when M.C.’s mother went to work. One time, he was alone with the girl and told her to try on some clothes that his young daughter of the same age had outgrown. She undressed, and the court record says that Gaby put a blanket over her and used his fingers to molest her while she was sitting on the bed. The girl didn’t go to Gaby’s apartment alone after this incident, and Gaby and his daughter later moved out of the apartment. She never reported the incident until April 2009, when she was 15 years old and told a teacher what Gaby had done to her. That teacher contacted police and the investigation began, with Gaby denying he’d molested the girl.

Police charged him with felony child molesting in June 2009 and amended the charges in March 2010 based on dates of the incident. After a two-day trial, a jury found Gaby guilty. The trial court sentenced him to 20 years in prison and ordered that he serve that as a credit-restricted felon, based on a 2008 state statute, meaning that a convict only earns one day of credit for every six served.

But what led to this appellate reversal is the prosecutor’s conduct at trial. Gaby argued that the trial court abused its discretion in allowing the prosecutor to refresh M.C.’s recollection using a transcript from a previous interview. The girl testified at trial that Gaby hadn’t spoken or touched her anywhere else, but the prosecutor then showed her a past statement contradicting that. Gaby’s counsel objected and the trial court allowed it, saying attorneys are able to impeach their own witnesses on the stand. But the appellate panel disagreed, citing Indiana Rules of Evidence and past precedent stating that a witness must first state that he or she does not recall information sought by the questioner in order for the attorney to refresh that individual.

“We agree with Gaby that the transcript clearly shows that M.C. did not testify as to any lack of recollection regarding the events before the prosecutor showed her the transcript of previous statement,” Judge Paul Mathias wrote. “M.C. simply gave answers the prosecutor neither expected nor desired. The prosecutor attempted to rectify this by having M.C. read the transcript of her previous statement, after which M.C. still struggled to give the prosecutor the desired answers.”

The appeals court also found the prosecutor erred by saying she was “confident” that the jury would find M.C. credible, and that resulted in improper vouching on an issue central in this case.

Sending the case back for retrial, the appellate panel found the recollection and vouching issues to be non-harmless errors. A retrial is possible and double jeopardy doesn’t apply, said the appellate judges. They also determined that if Gaby is found guilty, he can’t be sentenced as a credit-restricted felon because the court in Upton v. State, 904 N.E. 2d 700, 704 (Ind. Ct. App. 2009), found that restriction unconstitutional when applied retroactively.



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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.