The Indiana Court of Appeals has thrown out a man’s convictions of Class A felony child molesting because the trial court erred in admitting improper vouching testimony.
Ernesto Gutierrez’s stepdaughter accused him of molesting her on several occasions. M.L. was examined by a sexual assault nurse, Michelle Ditton, and spoke to LaGrange Department of Child Services’ case manager Penny Hasselman. At Gutierrez’s trial, there were inconsistencies in M.L.’s testimony. Ditton and Hasselman testified – over objections from Gutierrez – about whether they believed M.L. was telling the truth about the molestations. Both said they believed her.
In Ernesto Gutierrez v. State of Indiana, No. 44A03-1106-CR-257, the Court of Appeals reversed Gutierrez’s convictions because the testimony of Ditton and Hasselman ran afoul of Indiana Evidence Rule 704(b)’s prohibitions. The trial court erred in admitting the vouching testimony, which invaded the province of the jury and prejudiced Gutierrez’s substantial rights, Judge John Baker wrote.
The appellate court ordered Gutierrez be retried.