Baker, S.J.
Our Rules of Evidence “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” Indiana Evidence Rule 102. Upon that foundation, we begin with the premise that all relevant evidence is admissible subject to delineated categories of excluded evidence. See Indiana Evidence Rule 402. In this case of first impression, we write to clarify and delineate the two separate kinds of evidence under Evidence Rule 608—opinion testimony and reputational testimony—and their respective foundational requirements to ensure that a just determination in a fair proceeding is not denied.
Matthew Hayko appeals from his conviction after a jury trial of one count of Level 4 felony child molesting, contending in part that the trial court’s conflation of the foundational requirements for reputational testimony under Evidence Rule 608 as to his proffered opinion testimony under the Rule, denied him the right to present a defense. This case alleged violations of no greater position of trust than that of a parent to his child, and Hayko’s conviction turned on the jury’s credibility determination in this “he said, she said” case. Finding that the court misinterpreted the Rule and thus did not allow Hayko the fair opportunity to challenge the “she said” part of the evidence with his proffered witnesses, we reverse and remand for a new trial. Though that issue alone is dispositive, we also address the court’s admission of Hayko’s statement to police because the issue is likely to recur in the new trial. On that issue, we agree with the trial court and affirm. Thus, we affirm in part, and reverse and remand in part for a new trial.
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Because it is likely that this issue will present itself again upon retrial, we first address Hayko’s challenge to the admission of his statement to police. In particular, Hayko challenges the court’s decision to admit the portion of his statement to Detective Pirtle that he did not want to call V1 a liar and the State’s characterization of that statement at trial as an admission. Hayko says that he was in custody at the time the statement was made and that the statement is inadmissible because he was not given his Miranda warnings prior to speaking with Detective Pirtle.
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Here, the court admitted Hayko’s statement in evidence. And the record contains facts supporting the court’s decision that the statement was not the result of a custodial interrogation. Hayko drove to the child protective services building with his then-wife A.A. after being contacted by Amy Jarboe, an employee with child protective services. He was led through the building into an area not accessible to the public and out of public view. Though the record is unclear as to whether Hayko expected to be interviewed by law enforcement as well at that time, Detective Pirtle made clear from the outset that he worked for the Indiana State Police, and Hayko participated in the interview, nonetheless.
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The interview lasted thirty to thirty-five minutes and at no point was Hayko handcuffed, even though Detective Pirtle stated that he did not believe him. And though Hayko argues that coercive language was used during the interview, the record reflects that Hayko initiated further contact with Pirtle by telephone after the interview to add to his statement. This supports the inference that Hayko was not as intimidated by Detective Pirtle as he now claims on appeal. Though Hayko argues the existence of factors that favor a finding that he was in custody, those factors are offset by the factors listed above. The trial court did not abuse its discretion by admitting the statement in evidence as it was not a custodial statement made without the benefit of Miranda warnings.
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Next, Hayko argues that the trial court abused its discretion by denying his request for witnesses to testify as to their opinion of V1’s untruthfulness under Rule 608. We agree.
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Two cases cited at trial discuss Rule 608, but those cases address the reputation component of the Rule. In Bowles v. State, 737 N.E.2d 1150 (Ind. 2000), as in Norton v. State, 785 N.E.2d 625 (Ind. Ct. App. 2003), we were called upon to address alleged errors in rulings on the admissibility of reputational evidence under the Rule. The foundation required for such evidence as established under Bowles and Norton is as follows: (1) the general reputation must be held by an identifiable group of people; (2) this group of people must have an adequate basis upon which to form their belief in this reputation; (3) the witness testifying must have sufficient contact with this group to qualify as knowledgeable of this general reputation; and (4) the group must be of a sufficient size such that the belief in this general reputation has an indicium of inherent reliability. 737 N.E.2d at 1153; 785 N.E.2d at 631.
The court assessed the proffered testimony and concluded that it consisted of:
three (3) family members on the father’s side that had experiences with the child mostly involving events at family gatherings, some of which were when the child was much younger, and none of which have been in the last two (2) years. The family members were from, if I understand correctly, Charlestown, Indiana and Washington, Indiana, none of which were located in the child’s community of residence. After listening to this evidence, the Court finds this group is too insular under Indiana caselaw and their contacts are not sufficient to justify an opinion about the child’s reputation for truthfulness. Under Indiana law, their testimony is not reliable pursuant to the caselaw because it would be based off the same set of biases.
The State acknowledges that the court’s discussion includes the foundational requirements for reputation testimony, but argues that the court’s discussion “was merely addressing the entire 608 argument.” Id. at 122; see Appellee’s Br. p. 15 (“merely covering all the possible bases for admission under Rule 608(a)”). However, we have found no caselaw that sets out the foundational requirements for admissibility of opinion testimony. We conclude that the court’s discussion covered only the requirements for reputational evidence and not those of opinion testimony.
The opinion testimony clearly was relevant to the issue of V1’s credibility. Witnesses were allowed to contradict Hayko’s version of the incident leading to the allegations, but because of the court’s ruling, Hayko was left to defend his version without available opinion testimony about V1’s character for truthfulness or untruthfulness.
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As respects Indiana’s Rule 608, we do not believe that the admission of opinion testimony should be limited in the way reputation evidence is limited. For example, we conclude that a witness’s testimony about their perception of the victim’s character for truthfulness at the time the accusations are made is particularly helpful. And like Weinstein, we agree that cross-examination remains a beneficial tool in probing the opinion testimony in a variety of ways.
These are two distinct types of evidence under the Rule and the foundation for the testimony as opinion testimony had been met in this instance. For these reasons, we conclude that the court abused its discretion by ruling that the testimony was inadmissible.
We next turn to whether the court’s error was harmless and conclude that it was not.
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The jury acquitted Hayko of all but one of the charged counts. And that conviction turned on the jury’s witness credibility assessment. Hayko was not allowed to present evidence directly bearing on the issue of witness credibility to present his defense. We conclude that the error was not harmless as it affected the essential fairness of the trial.
In light of the foregoing, we affirm the trial court’s ruling on the admissibility of Hayko’s statement to Detective Pirtle. However, we reverse and remand for a new trial on the issue of the admissibility of the proffered opinion testimony under Rule 608(a).
Affirmed in part, and reversed and remanded in part for a new trial.
Bailey, J., concurs.
Tavitas, J., concurs in part and dissents in part with opinion.
Tavitas, J., concurring in part and dissenting in part.
I concur with the majority’s holding that the trial court did not err by admitting into evidence Hayko’s statement to the police. I respectfully dissent, however, from the majority’s conclusion that the trial court erred by excluding opinion testimony regarding the victim’s character for truthfulness. Because admission of such opinion testimony has the potential to be problematic, we should give trial courts wide leeway when deciding to admit or exclude such evidence. Here, the trial court decided to exclude the opinion of character testimony proffered by Hayko, a decision that was well within the trial court’s discretion in such matters.
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In the present case, Hayko sought to admit testimony from three witnesses regarding their opinion of the victim’s character for veracity, rather than the victim’s reputation for veracity. The majority concludes that the trial court improperly analyzed the admissibility of these character witnesses’ testimony as reputational, not opinion, evidence. To be sure, the trial court did reference the analysis relevant to reputational evidence. See Tr. Vol. IV p. 120. Hayko explained to the trial court that his witnesses would testify as to their opinion of the victim’s character for untruthfulness, not the victim’s reputation for truthfulness. The trial court then stated: “I do not find there was sufficient contacts in this particular case to be able to form and express those opinions.” Id. Thus, the trial court did address Hayko’s argument regarding opinion-based testimony. It merely found the foundation for such opinion-of-character evidence to be lacking.
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Courts that have only minimal foundational requirements have held that excluding opinion testimony regarding a witness’s character for veracity is improper where the character witness has some basis to form an opinion of the other witness’s character for veracity. See, e.g., United States v. Jewell, 614 F.3d 911, 926 (8th Cir. 2010) (holding that district court erred in excluding testimony of attorney regarding his opinion of defendant’s ex-wife’s character for veracity where attorney had represented defendant in his divorce); State v. Blair, 583 A.2d 591, 593-94 (1990) (holding that trial court erred in excluding testimony of witness who would have testified that, in his opinion, the alleged victim had a character for untruthfulness based on his own knowledge); Honey v. People, 713 P.2d 1300, 1303 (Colo. 1986) (holding that trial court erred by excluding testimony of witness regarding his opinion of the complaining witness’s character for veracity where character witness saw complainant “two or three times a week over a two month period” during which time the character witness had “ample opportunity to observe” the complainant); United States v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982) (concluding that district court erred by excluding testimony of witnesses who had formed an opinion regarding the character for untruthfulness of the government’s main witness because the opinions were based on personal knowledge). Cf. United States v. Lollar, 606 F.2d 587, 588-89 (5th Cir. 1979) (holding that district court properly admitted testimony of former employer regarding defendant’s character for truthfulness).
Other courts, however, have required more. For example, in State v. Paniagua, 341 P.3d 906, 910 (Or. Ct. App. 2014), the Oregon Court of Appeals explained “when determining if the proponent of the evidence has laid a foundation for the character witness’s opinion testimony,” the trial court must “consider whether the witness’s contacts with the person were sufficient to allow the witness to form an opinion about the person’s propensity to tell the truth in all the varying situations of life.” Thus, “[w]hen the witness’s contacts with the person are minimal, it is less likely that those contacts will have provided the witness with an opportunity to form an opinion about the person’s character, even if the witness can cite individual acts of untruthfulness.” Id.; see also State v. Caffee, 840 P.2d 720, 722 (Or. Ct. App. 1992).
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Accordingly, the court in Caffee held that the trial court did not abuse its discretion by excluding the testimony of a character witness because the witness “did not have recent contacts with the victim sufficient to make her able to offer an opinion regarding her truthfulness.” Id.; Honey v. People, 713 P.2d 1300, 1303 (Colo. 1986) (“In deciding whether to admit an opinion as to a witness’s credibility, a court may consider how well the witness knows the witness to be impeached and under what circumstances the witness giving the opinion knew the witness to be impeached.”); State v. Oliver, 354 S.E.2d 527, 540 (N.C. Ct. App. 1987) (“There must be a proper foundation laid for the admission of opinion testimony as to another’s character for truthfulness. That foundation is personal knowledge.”) (citing State v. Morrison, 351 S.E.2d 810, 815 (N.C. Ct. App. 1987)).
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Thus, there is no error in excluding opinion of character evidence where the character witness did not have sufficient personal knowledge on which to base such an opinion.
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I would, therefore, hold that, when determining whether an opinion regarding the character for veracity of a witness is admissible under Evidence Rule 608(a), a trial court should do as the trial court did here—require the proponent of such evidence to lay a sufficient foundation for such an opinion in a preliminary hearing outside the presence of the jury. The proponent of the opinion evidence must establish that the character witness had “sufficient personal contact with the [subject of the opinion] to have formed a personal opinion,” and that this contact was “sufficiently recent so that there will be a current basis for the [opinion] testimony.” Caffee, 840 P.2d at 722.
This fulfills the requirement of Evidence Rule 701 that the opinion be rationally based on the witness’s perception and be helpful to a determination of a fact in issue. Even if the opinion testimony meets these requirements, the trial court must also determine, under Evidence Rule 403, whether the probative value of such evidence is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. The trial court acts as a gatekeeper taking into consideration the evidence and in consideration of the rules of evidence. See Bedolla v. State, 123 N.E.3d 661, 666 (Ind. 2019) (referring to trial court as “gatekeeper” with regard to evidentiary issues).
In the present case, I am unable to conclude that the trial court abused its considerable discretion by excluding the evidence of Hayko’s character witnesses. All three-character witnesses had some contact with the victim, usually at family gatherings, a few times per year. All three witnesses would have testified that, in their opinion, the victim had a character for untruthfulness. None of the proposed character witnesses, however, had seen the victim in the two years before trial due to a protective order.
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In the present case, I am unable to conclude that the trial court abused its considerable discretion by excluding the evidence of Hayko’s character witnesses. All three-character witnesses had some contact with the victim, usually at family gatherings, a few times per year. All three witnesses would have testified that, in their opinion, the victim had a character for untruthfulness. None of the proposed character witnesses, however, had seen the victim in the two years before trial due to a protective order. necessarily exercise their considerable discretion in such matters. Trial courts must also require that the proponent of such evidence establish a foundation for such opinion testimony, so that it will be rational based on the witness’s perception and helpful to the jury.
The trial court here determined that there was insufficient recent contact to permit the admission of the character witnesses’ opinions of the victim’s character for untruthfulness at the time of trial. I find this to be within the trial court’s discretion in evidentiary matters. I, therefore, respectfully dissent.