Mark D. Nichols v. State of Indiana, 2016 Ind. App. LEXIS 181

Victim M.S. (born 1997) and S.W. were residents at a ResCare group home; Nichols was a staff supervisor who intermittently supervised there.\
M.S. and S.W. testified that Nichols engaged in multiple sexual acts with them in March–April 2012; disclosures were made during polygraph-related treatment interviews.\
The State charged Nichols with five counts of sexual misconduct with a minor (three class B, two class C). Nichols waived a jury trial; bench trial held in August 2015.\
At trial, the polygraph examiner (Remaklus) and a counselor (Dobbs) testified about the victims’ disclosures; Remaklus also described telling M.S. the importance of truthful answers to the polygraph.\
Detective Seipel testified that he asked Nichols to come to the station and that Nichols agreed but did not ask why and did not appear; defense objected to relevance/self-incrimination. Court sustained some objections but allowed limited testimony.\
The court found the victims credible, convicted Nichols on all counts, and sentenced him to an aggregate 30-year term (25 executed, 5 suspended).

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nichols)	Held
Admissibility of evidence that Nichols did not attend/interview or ask about investigation	Evidence of failure to follow up was admissible and Nichols did not invoke Fifth Amendment; any error harmless	Admission implied consciousness of guilt and violated Fifth Amendment privilege against self-incrimination	Court affirmed admission; no abuse of discretion because Nichols never invoked the privilege and any error was not reversible
Admission of polygraph examiner and counselor testimony (hearsay/vouching/fundamental error)	Testimony showed how and why victims disclosed; was cumulative and not impermissible vouching; defense invited any error via stipulation	Testimony was hearsay and impermissible vouching that bolstered victims’ credibility; denial of objection warrants reversal as fundamental error	Court rejected fundamental-error claim: defense invited part of the testimony, victims testified directly, testimony was cumulative and not so prejudicial to make trial unfair

Salinas v. Texas, 133 S. Ct. 2174 (2013) (noncustodial silence does not invoke Fifth Amendment unless the privilege is expressly claimed)
Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012) (indirect vouching—testimony that a child is not prone to fabrication—can functionally equate to vouching for credibility)
Sampson v. State, 38 N.E.3d 985 (Ind. 2015) (admission of certain credibility-related testimony did not require reversal where the victim’s testimony was consistent and thoroughly cross-examined)
Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010) (discusses circumstances under which silence or failure to follow up may be probative)
Cooper v. State, 854 N.E.2d 831 (Ind. 2006) (defines narrow scope of fundamental-error doctrine)
Roche v. State, 690 N.E.2d 1115 (Ind. 1997) (standard of appellate review for evidentiary rulings)