MAY, Judge.
Jeremiah D. Wilkes appeals his two convictions of Class B felony sexual misconduct with a minor.
In the summer of 2010, thirty-year-old Wilkes cared for five children while the mothers of those children went out for the evening. After the four younger children went to sleep, fourteen-year-old W.V. played a game on his mother's computer, while Wilkes sat nearby using his own
A few months later, in a conversation about whether a friend was bisexual, W.V. told the friend that he had been either raped or sexually abused by a man. Then, nearly a year after the incident, W.V. told his mother and an investigation began.
The State charged Wilkes with two counts of Class B felony sexual misconduct with a minor, and a jury found Wilkes guilty. The court imposed two concurrent eight-year sentences, both to be served as three years executed and five years of probation.
Wilkes alleges he was denied the right to a fair trial by the erroneous admission of hearsay and vouching testimony. We typically review allegations of error in the admission of evidence for an abuse of discretion. Kindred v. State, 973 N.E.2d 1245, 1252 (Ind.Ct.App.2012). However, as Wilkes concedes, he did not object at trial to most of the evidence about which he now complains on appeal. Thus, he waived those allegations of error, see id., and we may not reverse his convictions unless he demonstrates fundamental error. Id. Error is fundamental error when it is a "blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Id. (quoting Kimbrough v. State, 911 N.E.2d 621, 634 (Ind.Ct.App.2009)).
Wilkes first alleges fundamental error from the presentation of hearsay testimony. Hearsay is a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801. G.H., one of W.V.'s classmates, testified that W.V. mentioned "he was raped or sexually abused by somebody."
Wilkes also asserts error in the admission of alleged "vouching" testimony from Detective Terry Judy. Indiana Evidence Rule 704(b) provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Under Rule 704(b), adults may not opine whether a particular child was "prone to exaggerate or fantasize about sexual matters [because] indirect vouching testimony is little different than testimony that the child witness is telling the truth." Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.2012), reh'g denied.
Detective Judy testified that W.V.'s reports were "consistent." (Tr. at 352.) Detective Judy indicated he told Wilkes he did not "see a reason why [W.V.] would come out and lie about this stuff ...," (id. at 355), and Wilkes also did not know "why [W.V. would] make something like this up." (Id.) Finally, Detective Judy testified that he discussed with Wilkes whether there was any chance W.V.'s mother would have encouraged W.V. to make these allegations, but that he never asked W.V.'s mother about whether she had anything to do with the allegations because "I didn't figure it was relevant and I didn't believe that that was the case [because] this wasn't in [a] custody battle and uh I didn't believe that that was the reason that [W.V.] would have said this." (Id. at 360-61.)
These statements by Detective Judy amount to the type of indirect vouching that our Supreme Court held inadmissible in Hoglund. See Kindred v. State, 973 N.E.2d 1245, 1258 (Ind.Ct.App.2012) (holding opinions regarding whether the child victim was "coached," "truthful," "believable," and "wouldn't lie" constituted vouching prohibited by Hoglund), trans. denied. However, the error in admitting the testimony was harmless.
"[E]rrors in the admission of evidence are to be disregarded unless they
Finally, Wilkes asserts the combination of those errors, taken cumulatively, constituted fundamental error. We disagree.
In support of his argument, Wilkes notes W.V. testified Wilkes was uncircumcised, while Wilkes and the medical professionals testified that Wilkes is circumcised. However, we decline to find fundamental error in the admission of the cumulative hearsay and the indirect vouching testimony discussed above simply because a teenager victim assigned the wrong medical to label his molester's penis. W.V. drew a picture that accurately depicts Wilkes' penis — including the relative size of the "flap of skin," (id. at 392), that W.V. thought was foreskin. (Compare State's Ex. 5 (W.V.'s drawing) with State's Ex. 6 (photograph).) Because W.V.'s picture and explanation clarified why he inaccurately labelled Wilkes' penis as uncircumcised, we decline to find any additional prejudice in the admission of the evidence discussed above. See, e.g., Hoglund, 962 N.E.2d at 1240 (holding no reversible error from admission of evidence where victim's testimony provided "substantial evidence of [defendant's] guilt").
No fundamental error occurred from the admission of hearsay testimony that was merely cumulative of the victim's own testimony, and the vouching testimony was harmless in light of the weight of the evidence in the record. Even when considering all that evidence cumulatively, we hold no fundamental error occurred. Accordingly, we affirm Wilkes' convictions.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.