The Indiana Court of Appeals upheld a Marion County man’s various convictions for child molesting Monday, finding that the testimony of a pediatrician who examined the victim did not constitute vouching testimony.
Beginning in May 2014, Argumedo Alvarez-Madrigal frequently touched 11-year-old A.M. inappropriately, gaining access to her when she would come to his house to visit his child. During one visit after a pool party, Alvarez-Madrigal forced A.M. to perform various sex acts with him, then threatened to kill her if she told.
After confiding to another friend, a report about A.M. was made to the Indiana Department of Child Services, and Alvarez-Madrigal eventually was arrested and charged with five counts of Class A felony child molesting and two counts of Class C felony child molesting. Shannon Thompson, a pediatrician at Riley Children’s Hospital who examined A.M., testified for the state, telling the court that less than two to three children out of 1,000 make up claims of sexual abuse, even if there are no obvious physical signs.
Alvarez-Madrigal objected, and the trial court instructed the state to ask its questions in terms of reasonable medical certainty. Thompson then testified that although A.M. showed no physical signs of abuse, she was still experiencing pain manifested as a result of emotional trauma and that the story A.M. provided was consistent with sexual abuse.
A jury found Alvarez-Madrigal guilty on four counts of Class A felony child molesting and two counts of Class C felony child molesting. On appeal in Argumedo Alvarez-Madrigal v. State of Indiana, 49A02-1601-CR-162, Alvarez-Madrigal asserted that Thompson’s testimony as to the number of children who make up claims of sexual abuse was prohibited vouching testimony erroneously admitted under Indiana Evidence Rule 704(b).
The Indiana Court of Appeals disagreed Monday, with Judge James Kirsch writing that Thompson’s testimony addressed the general behavior of child molestation victims, not A.M.’s specific behavior or case.
“It was not a statement as to A.M.’s credibility. It was not an opinion regarding the truth of the allegations against Alvarez-Madrigal. It was not an opinion about, or related to, whether A.M. had been coached, and it did not concern whether A.M. was a truthful person in general,” Kirsch wrote in the appellate panel’s affirmation of Alvarez-Madrigal’s convictions.
Further, even if the testimony constituted improper vouching, Kirsch wrote that there would have been no reversible error. Assuming without deciding that Alvarez-Madrigal properly preserved his claim of error, the appellate panel wrote that “other evidence was consistent with or supported A.M.’s allegations,” so reversible error did not occur.
Judge Michael Barnes concurred in result, writing in a separate opinion that he did not believe that Alvarez-Madrigal adequately preserved his claim on appeal because he objected to Thompson’s testimony as “speculation” and “not relevant.” Further, Barnes wrote that he believed Thompson’s testimony was erroneous, but not fundamental error.
Additionally, Barnes wrote that “a similar vouching question to the one expressed here was addressed, explained, and held improper” in Sampson v. State, 38 N.E.3d 985 (Ind. 2015) and Hamilton v. State, 43 N.e.3d 628 (Ind. Ct. App. 2015), which he authored.
“In sum, I believe this court should unequivocally hold that statistical evidence about the possibility a witness is lying invades the province of the fact finder and is inadmissible vouching,” Barnes wrote. “That said, I do not believe Alvarez-Madrigal adequately preserved his claim of error in this case.”