COA: Trial court erred in allowing opinion testimony during child molesting case, but didn’t commit fundamental error

A trial court erred in admitting opinion testimony by a detective during a child molesting case, but it wasn’t enough to establish fundamental error, the Indiana Court of Appeals has ruled.

In Sean Douglas Neal v. State of Indiana, 21A-CR-730, the defendant appealed his conviction of Level 4 felony child molesting and his adjudication as a habitual offender.

In February 2020, 10-year-old Z.N. spent the night with her paternal grandparents, Susan and Doug Neal. The grandparents’ son, Sean Neal, 32, lived in the home at the time.

At some point during the evening, Z.N. took a bath, got dressed and went to Sean’s bedroom to tell him good night. Neal, who appeared intoxicated, touched Z.N.’s vagina outside her underwear while they were talking.

Z.N. then left the room and told the grandmother that Neal had inappropriately touched her. The grandmother told Z.N. not to tell anyone what had happened.

When Z.N. returned to her mother two days later, she noticed that Z.N. was unusually quiet and would not look at her. Concerned about Z.N.’s behavior, the mother asked her daughter what had happened and Z.N. told her that Neal had touched her vagina.

The mother immediately took Z.N. to the local police station and filed a police report. Z.N. spoke with a Department of Child Services caseworker, who scheduled an appointment for Z.N. with a child forensic interviewer.

While Z.N. and her mother were at the police station, Neal called the station and spoke with Greene County Sheriff’s Department Deputy Camron Frye. Neal initially told Frye that he had not touched Z.N. However, during the course of the conversation, Neal told the deputy that he had “touch[ed] [Z.N.’s] butt, but in a non-sexual way and asked if groping in a non-sexual way was inappropriate.”

A few days later, the child forensic interviewer met with Z.N. The interviewer noticed that Z.N. was able to descriptively articulate through verbal communication what had happened and by drawing.

Two weeks later, Greene County Sheriff’s Department Detective Shawn Cullison interviewed Neal. During the interview, Neal told Cullison that he had “grabb[ed] [Z.N.’s] butt. Neal further admitted that he had “grabb[ed] [Z.N.’s] thighs and that she had told him to stop.” When Detective Cullison asked Neal if he had touched Z.N.’s vagina, Neal responded that “if it [had] happen[ed,] [he had not] mean[t] for it.”

At Neal’s March 2021 two-day jury trial, the jury heard the facts through the testimony of Z.N., her mother, father, Frye, Cullison, the DCS caseworker, and the child forensic interviewer.  The jury convicted Neal of Level 4 felony child molesting and adjudicated him to be a habitual offender.

In appeal, Neal argued the trial court committed fundamental error when it admitted into evidence Cullison’s testimony, citing Indiana Evidence Rule 704(b).

According to Neal, “[b]y testifying that guilty defendants typically give ‘a little bit more truth with each statement,’ [Detective] Cullison essentially stated that in his opinion, Neal’s denial of the allegations was evidence of Neal’s guilt. This testimony invaded the jury’s province.”

The COA agreed the trial court erred, but found it did not commit fundamental error.

“This is precisely the type of opinion testimony that Evidence Rule 704(b) prohibits because it ‘invades the province of the jury in determining what weight to place on a witness’ testimony,’” Judge Rudolph Pyle wrote for the appellate court.

“…Our review of the evidence reveals that Neal’s evidentiary appeal centered on one isolated instance of Detective Cullison’s testimony, which in light of the other unchallenged evidence in the two-day trial, was not so prejudicial to Neal’s rights as to make a fair trial impossible.

“…We reach this conclusion because there is a plethora of unchallenged evidence that independently supports Neal’s convictions, and the jury could have reached the same conclusion based solely upon this properly admitted evidence,” it concluded.

In a separate issue, Neal asked the COA to recommend that the Supreme Court adopt a corroboration requirement in cases where the complaining witness is a child, pointing to now-Senior Judge John Baker’s dissenting opinion in Leyva v. State, 971 N.E.2d 699, 705-06 (Ind. Ct. App. 2012).

However, COA determined there was more than enough evidence to support the testimony was uncorroborated and declined Neal’s request.

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