FRYE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Savion Frye was convicted of attempted child molesting, a Level 4 felony. Frye appeals and claims: (1) vouching testimony by two of the State's witnesses amounted to fundamental error; and (2) the evidence is insufficient to support his conviction because the testimony of the victim is incredibly dubious. We disagree and affirm.

Issues

[2] Frye presents two issues, which we restate as:

I.  Whether the testimony of two of the State's witnesses amounted to fundamental error.

II. Whether the evidence is sufficient to support Frye's conviction.

Facts

[3] On November 18, 2023, then twenty-five-year-old Frye visited a home where twelve-year-old E.S. lived with her mother (“Mother”), her stepfather (“Stepfather”), and her younger sister, I.S. Frye was a friend of Stepfather. E.S. went upstairs to her bedroom and began to talk to her boyfriend on a social media app. Frye and I.S. soon went to E.S.’s bedroom as well. Frye gave E.S. a hug, but his hands were lower and closer to E.S.’s buttocks than when he usually hugged her. E.S. asked Frye to pop her back, which he did. Frye then asked if he could also pop E.S.’s neck. E.S. agreed and lay on the bed. Frye put his arms on the side of E.S.’s head. He then bit E.S. on her cheek, neck, and breast over her clothing. E.S. was alarmed and told Frye, “stop,” and “that hurts.” Tr. Vol. II p. 107. Frye then lay on the bed next to E.S. and caressed her breast with his fingers. He later moved his hand toward her genitals and rubbed her over her clothes. When I.S. left the room, Frye kissed E.S. on the lips and asked if she was “ready.” Id. at 59, 179.

[4] E.S. became frightened and made an excuse to leave the room. She then went to Mother's bedroom weeping and told Mother that Frye had touched her. Mother asked E.S. where Frye had touched her, and E.S. pointed to her breasts and genitals. Mother came up with a reason to leave the house, which resulted in Frye leaving as well. After Frye left, Mother took E.S. to the police station to report Frye's behavior. At the police station, E.S. spoke with Jasper Police Department (“JPD”) Officer Clint Stewart. As E.S. spoke with Officer Stewart, she was upset and crying. Two days later, E.S. underwent a forensic interview by JPD Detective Sergeant Gregory Brescher, and again she became emotional and cried when describing what happened.

[5] On January 11, 2024, the State charged Frye with attempted child molesting, a Level 4 felony; sexual battery, a Level 6 felony; and battery, a Level 6 felony. A two-day jury trial began on July 10, 2024. At trial, Officer Stewart testified that, when he spoke to E.S., “[s]he was visually crying. Her voice was very shaky, trembling. Like I said, she was – she was mild and meek in her speaking anyways, but there was an obvious change as she told the story that she was – her voice was shaking, and she was – had legitimate tears flowing down her face.” Tr. Vol. II p. 60. As to the forensic interview process, Detective Brescher testified:

It's a neutral fact finding interview. It is done by highly trained interviewers that are specifically trained to interview juveniles with non-leading questions. It's to get the juvenile to give their stories themselves and we don't put anything into their heads to make them come up with anything.

Id. at 71. At the conclusion of the trial, the jury found Frye guilty as charged. The trial court vacated the sexual battery and battery convictions on double jeopardy grounds and entered judgment of conviction only on the attempted child molesting verdict. Frye now appeals.

Discussion and Decision

I. Vouching Testimony—Fundamental Error

[6] Frye first argues that fundamental error occurred because two of the State's witnesses gave improper vouching testimony. Decisions regarding the admission of evidence generally rest within the sound discretion of the trial court. Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021). On appeal, we will reverse the trial court's decision only if it is clearly against the logic and effect of the facts and circumstances before the court and the error affects a party's substantial rights. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). Frye, however, failed to make a contemporaneous objection to the evidence he now claims was improperly admitted. Any claim that the trial court abused its discretion in the admission of this evidence is, accordingly, waived. Zuniga v. State, 237 N.E.3d 1168, 1172 (Ind. Ct. App. 2024), trans. denied.

[7] To avoid waiver, Frye frames his argument in terms of fundamental error. We explained in Snow v. State:

An error is fundamental ․ if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. These errors create an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal. The exception is very narrow, and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.

118 N.E.3d 50, 59 (Ind. Ct. App. 2019) (citations and internal quotations omitted). A defendant faces a heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible. Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).

[8] Frye argues that the trial court committed fundamental error because Officer Stewart's and Detective Brescher's testimony violated the vouching prohibition of Indiana Evidence Rule 704(b), which 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.” Evidence Rule 704(b) prohibits such “[v]ouching” for another witness because “[s]uch testimony invades the province of the jury in determining what weight to give a witness's testimony.” Henson v. State, 237 N.E.3d 1160, 1165 (Ind. Ct. App. 2024) (citing Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012)), trans. denied.

[9] In Hoglund v. State, 962 N.E.2d 1230, 1231 (Ind. 2012), our Supreme Court addressed the issue of vouching and held that “testimony amounting to the equivalent that a witness believes the child is telling the truth is inconsistent with our rules of evidence.” The Court held a question that “necessarily requires the witness to pass judgment on [the child's] allegations, or ‘story’ ․ invites direct vouching of the child witness’ allegations regardless of the child's motives.” Id. at 1238. The Court also held that “[n]o witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.” Id. (citing Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992)).

[10] Here, Frye claims that both Officer Stewart and Detective Brescher gave testimony that constituted impermissible vouching. He refers first to Officer Stewart's testimony that, when he spoke with E.S., she was “visually crying” and “had legitimate tears flowing down her face.” Tr. Vol. II p. 60. Frye claims that this constitutes vouching because Officer Stewart's “use of the word ‘legitimate’ ․ has the same effect as Officer Stewart stating that he believed E.S. was being genuine, and therefore truthful, during her interview.” Appellant's Br. p. 31. We disagree.

[11] Officer Stewart did not testify that he believed E.S.’s claims about Frye. Nor did he state that he believed her testimony to be true. He merely stated that, when he spoke to her, she was crying and had real tears on her face. Although the fact that E.S. was crying and upset may be perceived as supporting the veracity of her accusations, Officer Stewart did not say that he believed E.S.’s allegations or her testimony, which is what Evidence Rule 704(b) prohibits.

[12] The same is true for Detective Brescher's testimony that the forensic interview was a “neutral fact finding interview” performed by “highly trained interviewers” who are trained to interview children with “non-leading questions,” in order to “get the juvenile to give their stories themselves” without putting “anything into their heads to make them come up with anything.” Tr. Vol. II p. 71. The fact that the detective described the interview process as neutral, non-leading, and designed to make sure that the interviewer does not “put anything into the [child]’s head” does not improperly vouch for E.S.’s testimony. Id. Although such an interview process hopefully makes it less likely for a child's allegations to be false, Detective Brescher did not state that he believed E.S.’s allegations or that her testimony was true, which is what Evidence Rule 704(b) prohibits.

[13] Frye's reliance on Hoglund is misplaced. In that case, the trial court admitted testimony from two witnesses that the child victim was not “prone to exaggerate or fantasize in sexual matters,” and that the witnesses saw no indication that the child “may have fabricated” her story of sexual abuse. 962 N.E.2d at 1237-38. This, the Court held, was “little different than testimony that the child witness is telling the truth.” Id. at 1237. Here, Officer Stewart's and Detective Brescher's testimony was not virtually the same as testifying that E.S. was telling the truth; they merely described E.S.’s demeanor and the circumstances under which she was interviewed.

[14] Accordingly, we conclude that the admission of these statements was not error, much less fundamental error. See Alvarez-Madrigal v. State, 71 N.E.3d 887 (Ind. Ct. App. 2017) (holding that pediatrician's testimony that less than two or three children in a thousand make up claims of sexual abuse was not vouching because the testimony was not an opinion about or related to the victim's credibility, the truth of the accusations, or whether the victim was a truthful person and was instead a statistical statement that properly left the determination of the victim's credibility to the jury), trans. denied.

II. Sufficiency of the Evidence—Incredible Dubiosity

[15] Frye also claims that the evidence is insufficient to support his conviction because E.S.’s testimony, he claims, was incredibly dubious. Sufficiency of the evidence claims warrant a deferential standard of review in which we “neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). A conviction is supported by sufficient evidence if “there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. In conducting this review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Id. We affirm the conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.’ ” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[16] Here, the State charged Frye with attempted child molesting, a Level 4 felony. Indiana Code Section 35-42-4-3, which defines the crime of child molesting, provides in relevant part:

A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Level 4 felony.

Id. § 3(b). The attempt statute provides:

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime․

Ind. Code § 35-41-5-1(b).

[17] E.S. testified that Frye bit her cheek, neck, and breast, fondled her breast, and touched her genital area. From this, the jury could reasonably conclude that Frye, acting with the intent to arouse or satisfy his sexual desires, took a substantial step toward fondling or touching E.S. Thus, the evidence is sufficient to support Frye's conviction. See Hoglund, 962 N.E.2d at 1238 (“The testimony of a sole child witness is sufficient to sustain a conviction for molestation.”) (citing Stewart v. State, 768 N.E.2d 433, 436 (Ind. 2002)).

[18] Frye claims, however, that E.S.’s testimony was incredibly dubious. “Under the incredible dubiosity rule, a court will impinge upon the jury's responsibility to judge the credibility of witnesses only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.” Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002). Application of the incredible dubiosity rule requires that there be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). “[W]hile incredible dubiosity provides a standard that is ‘not impossible’ to meet, it is a ‘difficult standard to meet, [and] one that requires great ambiguity and inconsistency in the evidence.’ ” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). “ ‘The testimony must be so convoluted and/or contrary to human experience that no reasonable person could believe it.’ ” Id. (quoting Edwards, 753 N.E.2d at 622).

[19] Here, the incredible dubiosity rule is inapplicable because there was not a sole witness. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (noting that the incredible dubiosity rule is limited to those situations in which there is a “ ‘sole witness[.]’ ”) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). E.S. was not the sole witness in this case.

[20] More importantly, there is nothing about E.S.’s testimony that runs contrary to human experience such that no reasonable person could believe it. E.S. unequivocally testified that Frye bit her, fondled her, and asked if she was “ready.” Tr. Vol. II pp. 59, 179. Frye points out several inconsistencies between E.S.’s trial testimony and her prior statements and the testimony of other witnesses. But the fact that a witness’ testimony is inconsistent with her pretrial statements does not, by itself, mean that the testimony is incredibly dubious. Murray, 761 N.E.2d at 409. Instead, it is the role of the jury to resolve such conflicts. Id. The same is true for inconsistencies between the testimony of several witnesses; such are matters of credibility to be determined by the jury. Stephenson v. State, 742 N.E.2d 463, 497 (Ind. 2001); Manuel v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012) (citing Morell v. State, 933 N.E.2d 484, 492-93 (Ind. Ct. App. 2010)). E.S.’s testimony was not incredibly dubious, and we, thus, conclude that sufficient evidence supports Frye's conviction.

Conclusion

[21] The statements by Officer Stewart and Detective Brescher did not constitute impermissible vouching and, therefore, were not error, much less fundamental error. E.S.’s testimony was not incredibly dubious, and the evidence was sufficient to support Frye's conviction. Accordingly, we affirm.

[22] Affirmed.

Tavitas, Judge.

Vaidik, J., and Felix, J., concur.