Gaby v. State
949 N.E.2d 870
| Ind. Ct. App. | 2011Background
- Gaby was convicted in Tippecanoe Superior Court of Class A felony child molesting.
- The molestation involved M.C., who was born in 1993; the incident occurred when she was approximately 3–4 years old in 1995–1996.
- M.C. disclosed the abuse to a teacher in 2009, leading to police interviews and Gaby's later statements to detectives.
- The State amended the charging information seven days before trial to broaden the time range to 1997–2002; Gaby objected but the court granted the amendment.
- Gaby was sentenced on May 26, 2010, to twenty years and ordered to serve as a credit restricted felon.
- The Court of Appeals reversed and remanded for retrial, holding the trial court erred in refreshing recollection and in prosecutorial vouching, but preserving the possibility of retrial with limitations on the credit-restricted felon designation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amendment of the charging information was proper | Gaby contends amendment prejudiced substantial rights | Gaby argues amendment was improper and broad | Amendment not prejudicial; waived but not merits‑winning |
| Whether refreshing recollection of the victim was proper | Gaby alleges no lack of memory; refreshing was inappropriate | Gaby argues State properly refreshed to aid memory | Trial court abused discretion; refreshing without lack of recollection improper |
| Whether prosecutorial misconduct occurred by vouching for credibility | Gaby asserts prosecutor vouched for M.C.’s credibility | Prosecutor argues credibility based on evidence; not improper | Prosecutorial vouching was improper |
| Whether the improper evidentiary rulings were harmless error | Errors cumulatively could be harmless given evidence | Cumulative error affected substantial rights | Cumulative errors not harmless beyond a reasonable doubt; reversal required |
| Whether Gaby may be sentenced as a credit restricted felon after retrial | Credit restricted felon status applies to post‑2008 convictions | Ex post facto and retroactivity concerns preclude labeling | If retried and convicted, cannot be sentenced as a credit restricted felon |
Key Cases Cited
- Brown v. State, 912 N.E.2d 881 (Ind.Ct.App. 2009) (amendment of information and substantial rights)
- McIntyre v. State, 717 N.E.2d 114 (Ind. 1999) (amendment of information; essential to charge)
- Garner v. State, 754 N.E.2d 984 (Ind.Ct.App. 2001) (sufficiency to allege time period; time not always of essence)
- Thompson v. State, 728 N.E.2d 155 (Ind.2000) (foundation for refreshing a witness's recollection)
- Lainhart v. State, 916 N.E.2d 924 (Ind.Ct.App. 2009) (prosecutorial vouching; credibility testing and justness)
- Schlomer v. State, 580 N.E.2d 950 (Ind. 1991) (prosecutor vouching for a witness)
- Paul v. State, 888 N.E.2d 818 (Ind.Ct.App. 2008) (ex post facto considerations in retroactive effect of statutes)
- Upton v. State, 904 N.E.2d 700 (Ind.Ct.App. 2009) (ex post facto analysis for credit restricted felon statute)