Kameron D. Burton, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Kameron D. Burton appeals from his conviction after a jury trial of Level 4 felony child molesting. He contends that the trial court committed fundamental error when it did not sua sponte disallow certain testimony. We conclude that Burton has not demonstrated fundamental error. Therefore, we affirm.

Facts and Procedural History

[2] From around 2017 to 2019 Burton lived with Adult Witness 1 ¹ , her husband Adult Witness 2, and two children, Victim, a female, and Child Witness 1, a male. Victim was born in 2017.

[3] In 2019, when Victim was two years old, Adult Witness 2 found Burton in Victim's room, which she shared with Child Witness 1, who was three years old. Adult Witness 2 told Burton to leave. The next day, Adult Witness 2 installed a camera or baby monitor in the children's bedroom. Around a week later, Adult Witness 1 and Adult Witness 2 reviewed the camera footage and once again saw Burton standing over the children while they were sleeping. They banished Burton from the house and did not speak to Burton for several years. Although they were not speaking, Adult Witness 1 and Adult Witness 2 were present at functions at which Burton was also present.

[4] Adult Witness 1 hosted a Thanksgiving meal at her home in 2023. Burton was present. He was “play fighting” with Victim, who was six years old at the time. Tr. Vol. 3, p. 79. In other words, Burton picked the Victim up, threw her on the couch, and tickled her. At one point, Burton carried Victim down a hallway to a bedroom. Victim and Child Witness 1 started playing video games there while Adult Witness 1 and Adult Witness 2 prepared dinner. Adult Witness 2 stopped briefly to check on the children and saw Burton standing next to them in the bedroom. Adult Witness 2 “let his guard down” and returned to food preparation. Tr. Vol. 4, p. 8.

[5] While Burton was in the bedroom with the two children, Victim accidentally stepped on a remote, which turned the television off. Child Witness 1 left the room, saying he was going to tell Adult Witness 1 and Adult Witness 2 what had happened. Burton closed the door, isolating Victim in the bedroom. Burton said he wanted to see Victim perform a headstand like the ones she did for gymnastics, and then he pulled her up by her feet. At first, Burton held Victim upside down facing the bed. But when Burton twisted her around, she saw that his pants and underwear were pulled down exposing his penis. Burton “made [Victim] touch his private part.” Tr. Vol. 3, p. 95. She said he grabbed her hand and made her touch his penis while Victim tried to tilt her body and get away. Burton did not say anything while this was happening. Victim asked him to put her down, and he eventually did. Burton pulled up his pants and headed toward the bathroom. Victim ran to wash her hands in the bathroom before he got there “[b]ecause he made [her] touch his private” and then went to tell a parent. Id. at 98-99.

[6] Victim looked for Adult Witness 3 and Adult Witness 4 and told Adult Witness 4 what happened. Adult Witness 4 instructed her to talk with Adult Witness 3. Victim told Adult Witness 3 what had happened and demonstrated where Burton had her touch him. Adult Witness 3 asked Burton what had happened and he denied doing anything wrong. Victim believed that he was trying to blame her by saying that she entered the bathroom he already occupied, and she touched him. Id. at 101. Burton left with Adult Witness 5 and her daughter after finishing his meal.

[7] Adult Witness 3 told Adult Witness 1 about what had happened. Adult Witness 1 told Adult Witness 2 what had happened and went outside to warn Adult Witness 5. Burton drove Adult Witness 5 and her young child home. Adult Witness 5 found him to be uncharacteristically quiet on the drive home and noted that “[t]here was tension in the car.” Tr. Vol. 4, p. 31. During the trip, Adult Witness 5 exchanged text messages with her husband and Adult Witness 1 about what had happened. Burton asked Adult Witness 5 who she was texting and who she had spoken with during the phone call.

[8] Later that evening, Burton called Adult Witness 1 and asked what was going on. Adult Witness 1 said, “you molested [the Victim]” and handed the phone to Adult Witness 2. Adult Witness 2 reiterated the allegations about what had happened to Victim, to which Burton responded “I have E.D.” Tr. Vol. 4, pp. 11-12. Adult Witness 2 ended the phone call and called the police.

[9] The State charged Burton with Level 4 felony child molesting. Prior to trial, the State filed a notice of intent to introduce evidence that between 2017 and 2019 Burton had stood over Victim's and Child Witness 1's beds as they slept and evidence that Burton had committed other sexual acts against Adult Witness 1 and Adult Witness 5 in the past. The trial court granted the State's request only as to the evidence of Burton standing over Victim's and Child Witness 1's beds, finding the evidence relevant to prove opportunity, plan, or motive, and that the prejudicial nature of the evidence did not outweigh its probative value.

[10] At trial, the State's first witness, Harrison County Sheriff's Department Detective Carrie Lamaster, the lead investigator on the case, testified that she was present during Victim's forensic interview. She testified that through the interview, she learned that Victim and Child Witness 1 were playing with Burton “and at some point, Victim and Mr. Burton were alone in a room and he made her touch his exposed penis.” Tr. Vol. 3, p. 55. Burton's counsel did not object to this testimony. The State's next witness was Victim. She testified in detail that Burton had forced her to touch his exposed penis. More specifically, she said he closed the door to the bedroom, asked her to do a handstand, picked her up by her feet, pulled his pants and underwear down, and made her touch his penis with her hand. Adult Witness 1 and Adult Witness 2 testified that between 2017 and 2019 Burton stood over Victim's and Child Witness 1's beds while they slept, and that they had no longer allowed him to live in the house. Burton's counsel did not object to the testimony. At the conclusion of the trial, the jury found Burton guilty of Level 4 felony child molesting. Burton now appeals.

Discussion and Decision

[11] Burton argues that the trial court committed fundamental error in two ways involving the admission of evidence. Burton contends that the court should have sua sponte disallowed Detective Lamaster's testimony that Victim disclosed Burton's molestation in a forensic interview. And he asserts that the court should have sua sponte disallowed the testimony of Adult Witness 1 and Adult Witness 2 regarding Burton standing over Victim's bed while she slept.

[12] The applicable standard of review for both claims follows. “Fundamental error is an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal.” Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019). “This exception is very narrow and includes only errors so blatant that the trial judge should have acted independently to correct the situation.” Id.

[13] The decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal. Taylor v. State, 841 N.E.2d 631, 634 (Ind. Ct. App. 2006), trans. denied. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or it misinterprets the law. Id.

A. Detective Lamaster's Testimony

[14] Burton contends that Detective Lamaster's brief summary of Victim's allegations made during her forensic interview constitutes the kind of drumbeat repetition of Victim's out of court statements that was proscribed by our Supreme Court in Modesitt v. State, 578 N.E.2d 649, 650 (Ind. 1991). He argues that the testimony vouched/bolstered the Victim's testimony at trial. We disagree.

[15] We begin with the longstanding premise that “[t]he number of witnesses who may be called to prove a single issue of fact is within the trial court's sound discretion.” Norris v. State, 53 N.E.3d 512, 525 (Ind. Ct. App. 2016) (citing Dobbs v. State, 143 N.E.2d 99, 100 (Ind. 1957)). The problem identified in Modesitt was the prejudicial impact on the jury of multiple witnesses recounting in detail what the victim told them happened in a manner that was consistent with the victim's own trial testimony. In Modesitt, in addition to, but prior to, the child victim's testimony about what had transpired, three witnesses each testified at length and in detail about what the child victim told them the defendant had done to her. Modesitt, 578 N.E.2d at 654. The Supreme Court held that this drumbeat repetition of the victim's story before the victim testified unduly prejudiced the jury against Modesitt, leading to his conviction. Id. at 652.

[16] Cases since that decision have held that in some factual scenarios, the erroneous admission of evidence in violation of Modesitt is harmless. See Craig v. State, 630 N.E.2d 207, 211-12 (Ind. 1994) (improper admission of hearsay testimony of two witnesses that “confirmed but did not elaborate upon” the victim's testimony would have had only minor impact on the jury because there was little to undermine the victim's credibility); Caley v. State, 650 N.E.2d 54, 57 (Ind. Ct. App. 1995) (erroneously admitted prior consistent statement which did not meet all foundational requirements for admission but was cumulative of victim's trial testimony and which did not elaborate or explain prior testimony was harmless), trans. denied.

[17] And, as acknowledged by Burton, in subsequent cases we have held that the defendant was not deprived of a fair trial, and thus fundamental error did not occur, where “the challenged testimony of the two witnesses merely provided an overview of the situation and a summary of [the victim's] accusations, without elaborating on [the victim's] evidence.” Norris, 53 N.E.3d at 526. We see Detective Lamaster's testimony as no different than that in Norris. And in the present case, there was only one witness who testified to the brief summary of Victim's allegations immediately prior to Victim's more detailed account of the sexual abuse. Even where the admission of evidence may have been error, it is harmless in light of the overwhelming evidence of guilt, and harmless error cannot be considered fundamental. Smith v. State, 190 N.E.3d 462, 466-67 (Ind. Ct. App. 2022), trans. denied.

[18] Moreover, Detective Lamaster's testimony was not impermissible bolstering. Indiana Evidence Rule 704(b) prohibits witnesses from testifying “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.” Detective Lamaster's testimony did not run afoul of the Rule because it merely established that Victim disclosed an allegation of sexual abuse during a forensic interview, which the detective attended. “Rule 704(b) is not violated by testimony that does not offer an opinion about whether any particular statement by a witness is true or not.” Ward v. State, 203 N.E.3d 524, 532 (Ind. Ct. App. 2024).

[19] Furthermore, Burton's reliance on this Court's decision in Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009) is misplaced. In Lainhart, we concluded that it was “inappropriate for the prosecutor to make an argument which takes the form of personally vouching for a witness.” 916 N.E.2d at 938. The prosecutor in that case personally vouched for the law enforcement officer's credibility, and we held that conduct to be improper. Id. Here, however, the officer made no comment about Victim's credibility. Detective Lamaster testified about the forensic interview process, the fact that not all interviews resulted in the disclosure of criminal activity, the fact that she attended Victim's interview, and the fact that Victim had alleged sexual abuse against Burton. None of these facts amount to impermissible vouching or bolstering of Victim's testimony.

[20] We conclude that the trial court did not commit fundamental error by failing to intervene and disallow Detective Lamaster's testimony. The testimony did not violate Rule 704) and the testimony was a summary of Victim's accusations.

B. Admission of Evidence Rule 404(b) Testimony

[21] Next, Burton contends that the testimony of Adult Witness 1 and Adult Witness 2 constituted impermissible propensity evidence and that the trial court committed fundamental error by failing to intervene by disallowing it in the absence of an objection. Again, we disagree.

[22] Prior to trial, the State filed a notice of its intent to introduce Indiana Evidence Rule 404(b) evidence. Rule 404 (b)(1) prohibits the admission of “[e]vidence of a crime, wrong, or other act ․ to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” However, Rule 404 (b)(2) establishes that “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The trial court's pre-trial ruling on the admissibility of the evidence, as it pertains to the testimony that was introduced at trial, was that the testimony concerning Burton's entrance into the children's bedroom on two occasions as they slept was admissible evidence of opportunity, plan, and motive in relation to the charged crime.

[23] Rule 404(b) “serves to safeguard the presumption of innocence in favor of criminal defendants.” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019). “The Rule's mandate is clear: a court may not admit evidence of another crime, wrong, or act ‘to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.’ ” Id. (quoting Evid. R. 404(b)(1)). “This restriction prevents the jury from indulging in the ‘forbidden inference’ that a criminal defendant's ‘prior wrongful conduct suggests present guilt.’ ” Id. (quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)). “So when the State claims that other-bad-acts evidence is admissible for a proper purpose, the trial court is tasked with deciding whether that evidence ‘is relevant to a matter at issue other than the defendant's propensity to commit the charged act.’ ” Id. (quoting Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997)).

[24] Adult Witness 1 and Adult Witness 2 each testified to essentially the same facts. On one occasion Adult Witness 2 personally observed Burton standing in the room Victim shared with Child Witness 1. Adult Witness 2 asked Burton why he was in the room and then told him to leave the room. Adult Witness 2 installed a baby monitor or camera in the children's bedroom. On the second occasion, the monitor or camera indicated that someone had entered the children's bedroom. When they looked at the camera, Adult Witness 1 and Adult Witness 2 saw Burton in the children's bedroom, standing there as the children slept. Burton's counsel did not object to the testimony.

[25] First, testimony that Burton entered the children's room and stood over Victim and Child Witness 1 as they slept is not the type of act that is prohibited by Rule 404(b). The witnesses did not testify that Burton committed an illegal act. “Innocuous, legal behavior does not present the concerns Rule 404(b) was designed to address, and so need not be subject to such scrutiny.” Allen v. State, 743 N.E.2d 1222, 1232 (Ind. Ct. App. 2001). As we observed in Allen, evidence that someone has previously acted as a confidential informant is not inadmissible under Rule 404(b) because acting as a confidential informant is not a criminal act or misconduct. Id.

[26] Furthermore, as the trial court found, evidence that Burton entered the children's room and stood over them was relevant to prove opportunity, plan, or motive. Adult Witness 1's and Adult Witness 2's testimony that Burton had previously stood over Victim in her room while no other adults were present and while she was asleep supported the theory that Burton planned to isolate Victim in the bedroom to commit the sexual abuse. Because the challenged testimony did not describe prior illegal or bad acts on Burton's part, the evidence did not place a forbidden inference before the jury, suggesting Burton's guilt in the present case. We conclude that the trial court did not abuse its discretion in ruling on the admissibility of the evidence. And, thus, the trial court did not commit fundamental error by admitting the testimony at trial.

Conclusion

[27] The trial court did not commit fundamental error by failing to exclude Detective Lamaster's testimony that she was present for Victim's forensic interview and that Victim disclosed Burton's sexual abuse during that interview. Furthermore, the trial court did not commit fundamental error by failing to exclude the testimony of Adult Witness 1 and Adult Witness 2 as to two prior occasions when Burton entered the children's room because no prior misconduct or illegal act was suggested by the testimony. Therefore, we affirm the trial court in all respects.

[28] Affirmed.

FOOTNOTES

1.   We identify the names of the victim and the witnesses in compliance with the Indiana General Assembly's newly-enacted standards in Indiana Code sections 35-32-4-1 to -4 (2026). When courts redact names in compliance with Indiana Code section 35-32-4-2, they are required to use “a descriptive anonymous designator” rather than initials or “references to familial relationships[.]” Ind. Code § 35-32-4-3 (2025). Since this statute deals with a procedural matter as opposed to a substantive issue, the statute appears to be an unconstitutional violation of the Indiana Constitution providing for separation of powers between the Judiciary and the Legislature but exercise our discretion to comply with it until we receive a definitive ruling on the matter from our Supreme Court.

Crone, Senior Judge.

Brown, J., and DeBoer, J., concur in result without opinion.