ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert W. Hammerle Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Joseph M. Cleary Monika Prekopa Talbot
Indianapolis, Indiana Deputy Attorney General
SUPREME COURT OF INDIANA
ORVILLE CARTER, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-0001-CR-00041 )
September 5, 2001
SHEPARD, Chief Justice.
Appellant Orville Carter received a sixty-year prison sentence for molesting his autistic eight-year-old daughter. He claims that the childs word was not sufficient evidence. He also asserts that the trial court committed fundamental errors that rendered his trial unfair. We affirm.
M.C. went on to tell Jessica that Carter, M.C.s father, came into her
room one night and had M.C. touch his penis, then put it in
her mouth. Jessica asked M.C. what that felt like, and M.C. replied
that it felt like rubber.
Jessica told M.C. that other people would want to talk to her, and
that M.C. should tell them the same story. She immediately sought advice
at M.C.s school, where she happened to encounter Dr. Robin Murphy, a psychologist
specializing in autism who had worked with M.C. on three or four previous
occasions. At the urging of school authorities, Jessica then took M.C. to
the Family Advocacy Center for a videotaped interview with police officer Kathy Graban,
where M.C. related the same story.
Officer Graban found it curious that M.C. blurted out her story unprompted.
(R. at 183.) On Dr. Murphys advice, she visited M.C. unannounced on
th to make sure that this spontaneity was the result of autism
rather than coaching. M.C.s story remained consistent.
The State charged Carter with child molesting, a class A felony, and with
being an habitual offender.
M.C. was the first witness at trial. The prosecutor encountered difficulty immediately,
when M.C. was unable to identify Carter in the courtroom.
See footnote She did
elicit a disjointed version of M.C.s story.See footnote M.C.s responses then became so
rambling and incoherent that the prosecutor concluded her direct examination.
On cross-examination, M.C. admitted that she did not remember Carters attorney, whom she
had met previously, and said, I do get confused. I mostly forgot
about you . . . . (R. at 133.) When asked
Do you get confused a lot with things that have happened?, M.C. acknowledged,
Id.) She did reassert, however, that her father went to
jail because he-- because he done something-- touched my w[ie]nie. . . He
made me touch his w[ie]nie, I should say. (R. at 134.)
Jessica Carter testified next. On direct examination, she described what M.C. said
about the molestation. On cross, defense counsel elicited the fact that three
weeks after this disclosure, Jessica overheard M.C. talking to herself about a schoolmate
who said that if you put a w[ie]nie in your mouth it grows.
(R. at 147.) Jessica questioned M.C. further, and asked her again
about the incident involving Carter. According to Jessica, M.C. said that daddy
woke her up and then daddy pulled his big-boy shorts down . .
. . (R. at 148.) Jessica pointed out to M.C. that
big-boy shorts was their household term for briefs, which M.C.s younger brother wore
but her father did not. M.C. looked a little confused and 
said, well, maybe it wasnt daddy. (R. at 149.)
Jessica also testified on cross-examination that M.C. is [v]ery imaginative. (R. at 150.)
She said that M.C. sometimes imagines things such as earthquakes and tornadoes
that become very real in her mind.
The State next called Dr. Murphy as an expert witness. Officer Graban
took the stand last and the State introduced M.C.s videotaped May 25th interview.
Officer Graban testified that M.C.s story remained consistent on her June 4th
Carter did not call any witnesses. The jury found him guilty of
child molesting, and he pled guilty to being an habitual offender. The
court entered a judgment of conviction and imposed a sixty-year sentence.
Carter argues that the sole evidence against him, i.e. M.C.s story,
See footnote was unreliable
because M.C. could not identify her father in the courtroom and because, although
she referred to her dad in most of her testimony, at one point
she said, And-- [my brother]-- he just told me to touch it .
. . . (Appellants Br. at 6; R. at 131.) He
also cites Jessicas testimony that M.C. sometimes imagined things such as storms that
became real in her mind, and that M.C. expressed uncertainty about her attackers
identity after she remembered that he wore briefs.
The problem Carter faces is that, with few exceptions, juries decide whether
witnesses are to be believed.
Rodgers v. State, 422 N.E.2d 1211, 1213
(Ind. 1981). Carter invokes the incredible dubiosity rule, under which we may
encroach upon this prerogative if a witnesss testimony is inherently improbable or coerced,
equivocal, or wholly uncorroborated. Lott v. State, 690 N.E.2d 204, 208 (Ind.
1997)(citing Gaddis v. State, 253 Ind. 73, 251 N.E.2d 658 (1969)).
M.C.s story is not inherently improbable. It is uncorroborated, but by its
very nature child molestation often occurs without witnesses or physical evidence. As
noted above, the fact that the only evidence is the child victims statement
does not require reversal. Dinger, 540 N.E.2d at 39-40.
Carter says that M.C. equivocated by making contradictory statements. The State counters
by pointing out that M.C. told the same story four different times,
See footnote before
and after the one time she expressed some uncertainty about her molesters identity.
Furthermore, although M.C. failed to recognize Carter in the courtroom, she named
her father as her attacker in all four statements, and Carter was undisputedly
the only father figure in her life.See footnote
Carter presents a close case, but the evidence was not so equivocal as
to be incredibly dubious. A conviction for rape can rest on the
uncorroborated testimony of the victim even though there is equivocation or inconsistency in
Peters v. State, 542 N.E.2d 1340, 1342 (Ind. 1989) (citation
omitted). The same is true of molestation, and here a reasonable jury
could have accepted M.C.s four consistent accusations as true beyond a reasonable doubt.
We recently re-emphasized the extremely narrow applicability of the fundamental error doctrine
in Taylor v. State, 717 N.E.2d 90, 93-94 (Ind. 1999). A fundamental
error is a substantial, blatant violation of basic principles of due process rendering
the trial unfair to the defendant. Id. at 93. It applies
only when the actual or potential harm cannot be denied. Id. (citing Ford
v. State, 704 N.E.2d 457, 461 (Ind. 1998)). The error must be
so prejudicial to the rights of a defendant as to make a fair
trial impossible. Taylor, 717 N.E.2d at 93 (quoting Barany v. State, 658
N.E.2d 60, 64 (Ind. 1995)). An appellate court receiving contentions of fundamental
error need only expound upon those it thinks warrant relief. It is
otherwise adequate to note that the claim has not been preserved.
Of Carters six grievances, one presents a plausible claim for fundamental error and
we examine it at length. The remaining claims are modest ones that
do not warrant exception to the general rule requiring preservation of error.
A. Expert Vouching. Carter asserts that the court erred by permitting
Dr. Murphy to testify that autistic children cannot lie. (Appellants Br. at
9.) He claims that Dr. Murphys testimony violated Ind. Evidence Rule 704(b):
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.
In this case, the special problems that arise when a child accuses a
family member of molestation were compounded by M.C.s autism. We expect jurors
to draw upon their own personal knowledge and experience in assessing credibility and
deciding guilt or innocence. See Lamar v. State, 514 N.E.2d 1269 (Ind.
1987). When they are faced with evidence that falls outside common experience,
we allow specialists to supplement the jurors insight. Indiana Evidence Rule
702(a) says: If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
Dr. Murphy described her prior contacts with M.C. as very sporadic and said
that she had not seen M.C. since the prior year. She testified
that autistic children generally have a very, very difficult time manipulating whats in
someones mind, i.e., deliberately deceiving others. (R. at 159.) She substantiated
this conclusion by describing a study in which autistic children could follow an
instruction to lock a box to prevent a thief from taking the candy
inside, but could not lie on command and tell the thief that there
was no candy in the box. (R. at 158-59.) Although Dr.
Murphy did not at any point directly state an opinion that M.C. was
telling the truth, the jury could easily have drawn a logical inference:
autistic children do not deliberately lie, M.C. is autistic, therefore M.C. is not
On cross-examination, defense counsel attacked this inference by probing further into whether autistic
children are capable of relating events that did not actually happen. Dr.
Murphy testified that autistic children lack imagination. She said, Ive never had
a child with autism lie to me about what actually occurred. Thats
not to say that they absolutely will never lie. But, when they
do, they tend to be very poor liars. (R. at 165.)
But she did concede, I never talk in absolutes. I would never
say that absolutely every child with autism absolutely has no imagination and is
incapable of making up something that didnt happen. (R. at 166-67.)
On re-cross, she testified that autistic people might associate occurrences with no relationship
to each other and put them together into an event. (R. at
At this point the jury could have logically concluded that M.C. was not
deliberately lying about the molestation, but had confused different events and offered an
inaccurate account of what happened. M.C. herself demonstrated that this could happen.
In her videotaped statement, she described with apparent sincerity how it rained
the day she told her mother about the molestation, and how she used
an umbrella for five minutes. Jessica Carter testified that it was sunny
that day. Carters attorney referred to this inconsistency when cross-examining Dr. Murphy:
Q. Would you be surprised if a child reported, when she was sitting on a blanket, that it was raining when in fact it never rained that day?
A. Id figure that there was a leak in the ceiling or something-- from
the pipes. I mean, I just dont think that-- something happened that
made that association in her mind.
Q. Do you think an autistic child is capable of doing just that?
A. Thats what Im trying to say. I mean, this is one of
the characteristics of children with autism . . . .
(R. at 166.)
In summary, we conclude based on the entire context of the experts testimony
that she came close to, but did not cross the line into impermissible
Rule 704(b) vouching. Although her statements that autistic children find it difficult
to deliberately deceive others may have been persuasive, the jury still had to
draw its own inference as to whether M.C.s story was an accurate account.
B. M.C.s Videotaped Statement. Carter argues that M.C.s videotaped statement was unreliable because upon first hearing M.C.s story Jessica told M.C. that other people would want to talk to her and she should tell them the same story. (Appellants Br. at 5.) He claims this is coaching, but did not preserve any claim during trial.
C. Hearsay Evidence of M.C.s Story. Carter asserts that Jessica Carter and Officer Graban impermissibly bolstered M.C.s credibility by repeating at trial what M.C. told them about the molestation. (Appellants Br. at 4.) Indianas protected persons statute makes certain hearsay statements of children under age fourteen and certain mentally disabled persons admissible in sex crime cases. Ind. Code Ann. § 35-37-4-6 (West 1993 & Supp. 1994).
After a hearing required by statute, the court found M.C.s statements to Jessica reliable and it gave the requisite jury instruction immediately after Jessica repeated M.C.s statements at trial. Id. at § 6(d)(1), (g); (R. at 106-12, 123).
Carter did not object at trial to this testimony.
D. An Alias on the Charging Information. The charging information that went to
the jury room along with the instructions showed the alias a/k/a Arvine E.
Durham after Carters name.
See footnote He claims that this created an unfair inference
of previous criminal activity, (Appellants Br. at 4), but did not object
E. M.C.s Competency as a Witness. Carter argues that M.C. was not a
competent witness because the record does not show that she knew what an
oath meant and that she was compelled to tell the truth. (Appellants
Br. at 5.)
At the pre-trial hearing, M.C. asserted that she tell[s] the most truth ever before she was asked the first question. (R. at 119.) The prosecutor then asked M.C. if it would be the truth or a lie if she said that her (white) suit was black, and M.C. correctly identified the lie. When asked Is it important to tell the truth?, M.C. said yes, [b]ecause you dont want people to end up in jail. Who lied has to-- who lies would get the wrong person into jail. (R. at 120.) No objection was lodged.
F. Limits on Jessicas Cross-Examination. Carter claims the court violated his right to
confront and cross-examine Jessica Carter by sustaining the States objections to various questions
his lawyer asked her on cross-examination. (Appellants Br. at 22-24.)
Carters counsel did not make any offers of proof. In 1994, we
adopted Ind. Evidence Rule 103(a)(2):
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known by a proper offer of proof, or was apparent from the context within which questions were asked.
G. All Things Considered. At the end of the day, we
cannot conclude that these defects amounted to a substantial, blatant violation of due
process, the test for ordering reversal.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.