author: SHEPARD, Senior Judge.

text:
    STATE of Indiana, Appellant/Cross-Appellee-Plaintiff, v. David BISARD, Appellee/Cross-Appellant-Defendant.
    No. 49A04-1109-CR-459.
    Court of Appeals of Indiana.
    Sept. 12, 2012.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant/Cross-Appellee.
    John F. Kautzman, Andrew R. Duncan, Edward J. Merchant, Ruckelshaus, Kautz-man, Blackwell, Bemis & Hasbrook, Indianapolis, IN, Attorneys for Appellee/Cross-Appellant.
   OPINION

SHEPARD, Senior Judge.

Officer David Bisard of the Indianapolis Metropolitan Police Department had his blood drawn by a medical assistant following an accident in which one person died and two people were seriously injured. The State later charged him with several counts of operating while intoxicated and reckless homicide.

Bisard moved to suppress the blood test on multiple grounds. He contended that the medical assistant on duty had not followed appropriate protocols, and that in any event the Indiana Code prohibits medical assistants from drawing blood for these purposes. Largely agreeing, the trial court ruled that Indiana Code section 9-30-6-6 (2010) compels suppressing the evidence for purposes of the DUI charges, but not for the reckless homicide count.

We conclude that the medical assistant did in fact draw the blood in a way that followed physician-approved protocols, and that the statutes cited by Bisard do not reflect that the General Assembly intended to suppress blood evidence taken in a medical facility by a trained operator in the presence of the suspect’s lawyer. We therefore reverse.

FACTS AND PROCEDURAL HISTORY

In August 2010, Bisard was on duty in his patrol car when he collided with two motorcycles that were stopped at the intersection of 56th Street and Brendon Way South Drive. Eric Wells died, and Mary Mills and Kurt Weekly were seriously injured.

Bisard went to Methodist Occupational Health Center (“MOHC”) for treatment of his injuries. There, Officer Stan Stephens of the Lawrence Police Department advised him of Indiana’s implied consent law, and Bisard consented to a blood draw. Appellant’s Amended App. pp. 15, 50, 319— 20.

Stephens asked medical assistant Michelle Maga to perform the blood draw and handed her two blood collection tubes. Tr. p. 88. Maga noticed that the tubes had expired, discovered that MOHC’s available tubes had also expired, and called another clinic to have unexpired tubes sent over. Id. at 88-90, 55.

Stephens and other officers and Bisard’s attorney were in the room during the draw. Id. at 56-57. Maga used a swab to clean an area on Bisard’s right arm. Id. at 99, 119. She immediately realized that she had used an alcohol swab, which is not to be used when blood is drawn for alcohol screening. Id., at 56, 99, 130. She took off her gloves, washed her hands, gathered new equipment, and started the process over. Id. at 56, 99. She used Betadine, a non-alcohol swab, to clean an area on Bisard’s left arm and drew two tubes of blood from that arm. Id. at 56, 57, 119, 52. She then inverted the tubes eight to ten times to mix in the additive in the tube to preserve the blood, applied a bandage, and discarded the needle. Id. at 53-54, 104-05.

Although MOHC’s protocol required Maga to label the tubes, Ex. pp. 6, 10, 16, Stephens insisted on following police procedures. Tr. pp. 49, 61, 78. So, Stephens labeled the tubes as Maga watched, and she then initialed them as the collector. Id. at 88. MOHC also had a policy that the capped tubes be given a seal and placed in a drug screen bag. Ex. p. 6; Tr. pp. 58-59. Although Maga tried to insist on using a seal, Stephens did not do so before placing the capped tubes in a sealed bag. Tr. pp. 58, 81, 88.

The blood results showed a blood alcohol content of 0.19. These test results are the only evidence of intoxication in the record.

The State, by then-Marion County Prosecutor Carl Brizzi, charged Bisard in multiple counts: class B felony operating a motor vehicle with a BAC of 0.15 or higher causing death, C felony operating a motor vehicle while intoxicated causing death, C felony reckless homicide, two counts of D felony operating a motor vehicle while intoxicated causing serious bodily injury, two counts of D felony operating a motor vehicle with a BAC of 0.08 or higher causing serious bodily injury, and two counts of D felony criminal recklessness. It later moved to dismiss the alcohol-related charges, which the court granted.

In January 2011, the State, under newly-elected Marion County Prosecutor Terry Curry, dismissed the remaining charges and immediately re-filed the reckless homicide and six operating while intoxicated charges under a new cause number.

Bisard moved to suppress the blood evidence and/or dismiss the charges, and the court held a hearing. On May 31, 2011, the court issued an order determining that Maga was not qualified to draw blood under the implied consent statutes and that there was no clear evidence that she followed any of MOHC’s protocols for drawing blood. The court found that Maga did not place a seal on the tubes or package them for transport (the evidence being that Stephens packaged the tubes for transport in a police evidence bag). The court also found “significant conflict in the evidence” as to “whether the tubes were properly handled in order to mix the anticoagulant in the tubes with the blood” and “whether or not blood was drawn from an arm that had been swabbed with alcohol rather than a proper cleansing solution.” Appellant’s Amended App. p. 353. The court thus suppressed the blood evidence as to the Title 9 charges for DUI but allowed the evidence for the reckless homicide count. The same day, the State amended the information to add the two original counts of criminal recklessness, which were apparently inadvertently omitted during the earlier re-filing.

Upon requests by both parties, the court certified its order for interlocutory appeal, and this Court accepted jurisdiction.

ISSUES

The State contends that the court erred by suppressing the blood evidence for the Title 9 charges.

On cross-appeal, Bisard contends that the court erred by allowing the blood evidence for the Title 35 charges and by rejecting his claim that his consent to take the chemical test was invalid because the offer to do so was illusory inasmuch as Maga was not qualified to perform the blood draw.

DISCUSSION AND DECISION

If a driver appears intoxicated, the Fourth Amendment would surely permit an officer with a search warrant to obtain a sample of breath or bodily substance for purposes of a chemical test. Obtaining a warrant takes time, of course, and alcohol begins to dissipate soon after drinking ceases. By the time an officer prepares the appropriate documents, finds a magistrate, presents evidence of probable cause, receives a warrant, and arranges for a test, the evidence of blood alcohol would typically be substantially dissipated.

States have adopted implied consent statutes as a means of obtaining such evidence more expeditiously. These statutes proceed on the legal notion that any person who operates a vehicle consents to submit to a chemical test upon lawful request by an officer. 1 Edward Louis Fiandach, Handling Drunk Driving Cases § 8:1 (2d ed. 1995); 1 Donald H. Nichols & Flem K. Whited III, Drinking/Driving Litigation: Criminal and Civil § 11:2 (2d ed. 2006). New York enacted the nation’s first implied consent law in 1953, and by 1971, all the other states and the District of Columbia had done the same. Nichols & Whited, supra, § 11:2.

These statutes have been repeatedly upheld against various constitutional claims. See, e.g., Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (suspension of driver’s license for refusing to submit to breath testing without pre-sus-pension hearing did not violate Fourteenth Amendment due process rights); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood draw after accident did not violate Fourth Amendment protection from unreasonable search and seizure or Fifth Amendment privilege against self-incrimination); Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) (blood draw from driver unconscious in hospital after fatal accident did not violate Fourteenth Amendment due process rights).

I. INDIANA’S IMPLIED CONSENT STATUTES

Indiana’s implied consent statutes appear at Indiana Code chapters 9-30-6 and 9-30-7. Like the rest of the nation, the policy behind our implied consent statutes is to keep roadways safe by removing the threat posed by the presence of drunk drivers. Ruge v. Kovach, 467 N.E.2d 673, 681 (Ind.1984). To that end, the statutes facilitate the collection of evidence of a driver’s intoxication. As Justice Rucker observed for a unanimous Court, the statute is “designed as a tool to acquire evidence of blood alcohol content rather than as a device to exclude evidence.” Abney v. State, 821 N.E.2d 375, 379 (Ind.2005).

While there are two leading chapters in the Code on implied consent, they interact closely. Chapter 9-30-7 deals with implied consent in accidents involving serious injury or death, thus covering cases like the one before us. Chapter 7 first sets forth the basis for implied consent: “A person who operates a vehicle impliedly consents to submit to the portable breath test or chemical test under this chapter as a condition of operating a vehicle in Indiana.” Ind.Code § 9-30-7-2 (2001). In turn, if an officer has reason to believe that a driver operated a vehicle that was involved in a fatal accident or an accident involving serious bodily injury, the officer must offer a portable breath test or chemical test to that person. Ind.Code § 9-30-7-3(a) (2001). Refusal to submit to a test is an infraction and results in suspension of driving privileges. Ind.Code § 9-30-7-5 (2006).

Section 9-30-7-4 (1991) directs that certain operational requirements will apply to tests in cases involving death or serious injury:

(a) If a chemical test conducted under this chapter involves an analysis of breath, the test must comply with the requirements under IC 9-30-6-5.
(b) IC 9-30-6-6 applies if a physician or a person trained in obtaining bodily substance samples who is acting under the direction of or under a protocol prepared by a physician or who has been engaged to obtain bodily substance samples:
(1) obtains a blood, urine, or other bodily substance sample from a person at the request of a law enforcement officer who acts under this section; or
(2) performs a chemical test on blood, urine, or another bodily substance obtained from a person under this section.

This bifurcated reference is straightforward enough: Section 9-30-6-5 deals with breath samples, while Section 9-30-6-6 deals with bodily substance samples.

There is no breath sample at issue here, so subsection 9-30-7-4(b) governs, and Bisard’s claims rest on applying two parts of Section 6, subsections (a) and (j).

Subsection 6(a) provides:

A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, who:
(1) obtains a blood, urine, or other bodily substance sample from a person, regardless of whether the sample is taken for diagnostic purposes or at the request of a law enforcement officer under this section; or
(2) performs a chemical test on blood, urine, or other bodily substance obtained from a person;
shall deliver the sample or disclose the results of the test to a law enforcement officer who requests the sample or results as a part of a criminal investigation. Samples and test results shall be provided to a law enforcement officer even if the person has not consented to or otherwise authorized their release.

Bisard has argued that, contrary to subsection (a), Maga was not a physician or a person trained in obtaining bodily substances samples and acting under the direction of or under a protocol prepared by a physician.

The other provision Bisard argues is subsection (j), which, at the time of the blood draw here, said:

This subsection does not apply to a bodily substance sample taken at a licensed hospital (as defined in IC 16-18-2-179(a) and IC 16-18-2-179(b)). A law enforcement officer may transport the person to a place where the sample may be obtained by any of the following persons who are trained in obtaining bodily substance samples and who have been engaged to obtain samples under this section:
(1) A physician holding an unlimited license to practice medicine or osteopathy.
(2) A registered nurse.
(3) A licensed practical nurse.
(4) An emergency medical technician-basic advanced (as defined in IC 16-18-2-112.5).
(5) An emergency medical technician-intermediate (as defined in IC 16-18-2-112.7).
(6) A paramedic (as defined in IC 16-18-2-266).

Bisard’s argument on subsection 6(j) is that the Code requires suppression because Maga does not qualify as one of the actors on this list.

II. PRIOR DECISIONS

Most of the decisions of this Court in cases seeking reversal due to contentions about the implied consent statutes have led us to conclude that the tests were properly admitted.

Bisard’s two strongest cases point in the opposite direction. In Combs v. State, 895 N.E.2d 1252 (Ind.Ct.App.2008), trans. denied, the defendant challenged the admission of blood test results by claiming that the State failed to show that the medical technologist who drew his blood was acting under a protocol prepared by a physician pursuant to subsection 6(a). The State had not presented any evidence at all that the technologist was acting under a protocol prepared by a physician. This Court concluded it was an abuse of discretion to admit the test but affirmed the conviction on the basis of harmless error because there was ample independent evidence of the defendant’s intoxication. Id. at 1259.

In Brown v. State, 911 N.E.2d 668 (Ind.Ct.App.2009), clarified on reh’g, 915 N.E.2d 996 (2009), trans. granted, order vacated, trans. denied, the defendant argued that the blood draw, performed at a hospital by a certified medical lab technician who was trained to draw blood, did not comply with subsection (j). Relying partly on Combs, this Court held that the test results must be suppressed because the technician, though trained in drawing blood, was not among the personnel in the list of subsection (j), which at the time included certified phlebotomists. Because there was substantial independent evidence of intoxication, however, the Court affirmed on the basis of harmless error. Id. at 673-74.

The reaction to this holding was swift and telling. In December 2009 the Supreme Court granted transfer in Brown, in March 2010 the legislature amended subsection 6(j) by eliminating certified phlebo-tomists and adding that the subsection does not apply at all to bodily substance samples taken at licensed hospitals, and in May 2010 the Supreme Court vacated its order granting transfer.

These two cases may fairly be described as one in which suppression was proper because the State failed completely in offering a foundation for admissibility and another in which the General Assembly immediately overruled the holding. They are relatively weak precedent as support for Bisard’s position.

III. THE OPERATION OF SECTION 9-30-6-6 AND ADMISSIBILITY

The best evidence of legislative intent is surely the language of the statute itself, and courts strive to give the words in a statute their plain and ordinary meaning. Prewitt v. State, 878 N.E.2d 184, 186 (Ind.2007). A statute should be examined as a whole, avoiding excessive reliance upon a strict literal meaning or the selective reading of individual words. Id. We presume that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute’s underlying policy and goals. Id.

To examine the legislative framework, we begin with its evident purpose. The Code’s plain language authorizes admitting blood alcohol concentration evidence in DUI prosecutions if the sample was obtained promptly enough after the incident:

At any proceeding concerning an offense under IC 9-30-5 or- a violation under IC 9-30-15, evidence of the alcohol concentration that was in the blood of the person charged with the offense:
(1) at the time of the alleged violation; or
(2) within the time allowed for testing under section 2 of this chapter;
as shown by an analysis of the person’s breath, blood, urine, or other bodily substance is admissible.

Ind.Code § 9-30-6-15(a) (2001). The statute by its own terms confirms the generally understood purpose of implied consent laws.

On the admissibility of test results, the Code reflects starkly different legislative policies as between breath tests and blood tests. Subsection (d) of 9-30-6-5 (governing breath samples), explicitly declares that “[rjesults of chemical tests that involve an analysis of a person’s breath are not admissible” if certain requirements are not met. By contrast, the section governing bodily substance samples demonstrates a broader approach: “For the purposes of this chapter, IC 9-30-5, or IC 9 — 30—9[,] ... samples, test results, and testimony may be admitted in a proceeding in accordance with the applicable rales of evidence.” Ind.Code § 9-30-6-6(c). That the General Assembly has explicitly barred evidence in breath tests where certain processes are not followed but not done so in blood tests is an important sign of its intent about how courts should examine the admissibility of blood tests.

A legislative policy that differentiates between the two types of tests seems altogether logical. Blood samples are obtained and analyzed by medical professionals who are trained to produce reliable results. Breath samples, on the other hand, are taken under field conditions by law enforcement officers who are trained in the best practices necessary to conduct the test, but not so expert in the underlying analytical chemistry. In those settings, we rely substantially on the results provided by a scientific instrument. Adherence to rules pertaining to breath test operators, equipment, and chemicals as well as the proper technique for administering a breath test are thus paramount to ensuring a reliable result.

The Supreme Court has recognized that this sort of difference characterizes the larger legislative scheme concerning admissibility of tests. After reviewing the range of statutes covering everything from radar speed results to breath tests to DNA analysis, the Court observed that “the more technical the test involved, the less particularized as a matter of law are the foundational requirements.” Hopkins v. State, 579 N.E.2d 1297, 1303 (Ind.1991). Put another way, “the greater the level of expertise involved, the more that procedural particulars are left to the expert’s discretion.” Id.

If anything, the Supreme Court’s declaration in Hopkins has been confirmed by the subsequent adoption of the Indiana Rules of Evidence and by the fact that chapters 9-30-6 and 9-30-7 (by referring back to chapter 9-30-6), indicate that blood evidence is generally admissible subject to rules of evidence. The spirit of the Indiana Rules of Evidence is to allow any relevant evidence. See Ind. Evidence Rule 402 (all relevant evidence is admissible except as otherwise provided by law). This is tempered by Rule 403, which provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” We see none of the Rule 403 factors here.

In sum, the implied consent statutes must be read with their global purpose in mind, namely to facilitate collecting evidence of impaired driving. Where the Code commands exclusion for failure to comply with one of its dictates, exclusion it shall be. Where the Code does not direct exclusion, the court must decide admissibility with reference to the Code and the Rules of Evidence.

IV. DID THE MEDICAL ASSISTANT FOLLOW PROTOCOL?

Subsection 9-30-6-6(a) applies only to “[a] physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician.” Bisard argues that although Maga is trained in obtaining bodily substance samples, she was not acting under the direction of or under a protocol prepared by a physician.

Bisard loses on this point because the evidence shows that Maga’s taking of his blood conformed to a protocol prepared by a physician.

At the suppression hearing, the State offered into evidence three different MOHC blood draw protocols. Two of these are fairly detailed and nearly identical. Exhibit 2 was a protocol approved in 2005 by Medical Director Michael Patellos, a doctor, and Exhibit 3 was a protocol approved in 2008 by Director of Practice Operations Shawn Dent, a registered nurse. Exhibits 2 and 3 each provided 24-step instructions on how to prep and obtain blood. They were identical except that the order of inverting the tubes to mix the blood and additives, applying the bandage, and discarding the needle were different.

Exhibit 1 was a much shorter protocol specifically for blood alcohol draws approved in 2008 by Dent. Exhibit 1 did not specify how to obtain blood but instead instructed in one step to “[ojbtain the requested blood specimen using Povidine swab for skin prep.” Ex. p. 6. Many of the steps in Exhibit 1 describe how to go about evidence handling.

Dr. Saj Alex, a physician at MOHC, testified during the suppression hearing that Exhibits 1 and 3 were medically appropriate.

The trial court’s grant of Bisard’s motion to suppress rested on several grounds about following protocol. The court found that Maga “was not given an opportunity to perform two functions she felt her procedure required: place a seal on the tubes into which the blood had been drawn and package the tubes for transport.” Appellant’s Amended App. pp. 352-53. Maga and a radiology technician tried to insist that Stephens use the seal, but he declined and placed the tubes in a sealed bag.

In any event, the steps to which the trial court’s order referred were not a part of the protocol signed by Dr. Patellos and reissued by nurse Dent. These steps appear in Exhibit 1, the document issued by Dent, which told those who draw blood for alcohol cases, contemplating criminal prosecution, to prepare the label by placing “the peel off specimen seal from the Custody and Control Form over the top and down sides of collection tube” and place “sealed blood in appropriate biohazard container for transport.” Ex. p. 6.

That Maga did not perform steps that are not part of the protocol approved by a physician is not a ground on which one can argue that a specimen should be suppressed because it was not taken in accordance with a protocol approved by a physician.

A second protocol-related ground on which the trial court granted Bisard’s motion is reflected in the court’s finding of a “significant conflict in the evidence regarding whether the tubes were properly handled in order to mix the anti-coagulant in the tubes with the blood.” Appellant’s Amended App. p. 353. This may refer to whether Maga first inverted the tubes to mix them then discarded the needle or did it the other way around. There is no contention on appeal that this mattered in any real-world sense, much less any medical evidence so suggesting. Indeed, the only medical evidence in the record is from a physician who testified that it did not.

Or, it may refer to whether Maga “gently inverted] eight to ten times to mix blood thoroughly with additive,” to use the words of Dr. Patellos’s protocol. Ex. p. 12 (emphasis omitted). Maga testified during the suppression hearing that she inverted the tubes eight to ten times. Although Bisard elicited evidence that her written summary of the draw did not mention that she inverted the tubes, this is not conflicting evidence. That is, it does not mean she did not in fact invert the tubes. Neither is it conflicting evidence that Maga said in a police interview that she did not remember whether she inverted the tubes and then said, after some thought, that she was positive that she did.

Finally, the trial court found no clear evidence on “whether or not blood was drawn from an arm that had been swabbed with alcohol rather than a proper cleansing solution.” Appellant’s Amended App. p. 353. On this point, Maga testified that she swabbed Bisard’s right arm with alcohol, realized the mistake, and started the process anew with his left arm. She testified that she cleaned the left arm with Beta-dine and drew two tubes of blood from that arm. In the probable cause affidavit, however, an Officer Douglas Heustis stated, “Lt. Stephens then observed medical assistant Michelle Maga use a Betadine prep to clean the inner right arm of David Bisard. Michelle Maga then drew two tubes of blood from David Bisard’s right arm.” Id. at 16, 50. The affidavit does not indicate that Officer Heustis personally observed the blood draw.

As for the affidavit, we have the same cold evidence before us as did the trial court. We are thus able to assess independently this evidence without invading the province of the trial court. See Bunch v. State, 964 N.E.2d 274, 293 (Ind.Ct.App.2012) (not deferring to post-conviction court’s assessment of expert’s scientific evidence where that assessment was based not on demeanor but on evidence that was also before appellate court), trans. denied. As against Maga’s live testimony, a probable cause affidavit signed by someone who was not present holds little to no weight on this point. The great weight of the evidence is that Maga cleaned Bisard’s left arm with Betadine and drew blood from that arm.

V. DOES SUBSECTION 9-30-6-6(J) COMPEL SUPPRESSION?

Bisard has argued, and the trial court agreed, that the Code requires suppressing blood test results unless the person who draws the blood is one of the actors enumerated in subsection 9-30-6-6(j), such as physicians, registered nurses, paramedics, and the like. The parties agree that medical assistant Maga is not one of those.

As with earlier issues, the analysis necessarily begins with the part of the Code governing accidents resulting in death or serious bodily injury, chapter 9-30-7. Subsection 4(b) of that chapter tells us that Section 9-30-6-6 “applies” where one of three actors is at work drawing blood:

• “a physician”;
• “a person trained in obtaining bodily substance samples who is acting under the direction of or under a protocol prepared by a physician”; or
• “a person trained in obtaining bodily substance samples ... who has been engaged to obtain bodily substance samples.”

It is plain that Maga was the second or third of these. What is not plain is how Section 9-30-7-4(b) and Section 9-30-6-6 can be tightly read together. Is Section 9-30-6-6 designed to sanction blood draws from persons in the six categories of (j) whether or not they use a protocol approved by a physician? Why are physicians on the list in subsection 6(j) at all, inasmuch as physicians are already covered by earlier subsections in Section 6? And, as amended, should the courts conclude that any person “trained” and in a hospital may draw blood whether they are following a protocol or not?

As is often the case with statutes written at different times and with different problems in mind, trying to shoehorn these provisions seems likely to produce results that the General Assembly never contemplated and did not intend. The one thing we can say for certain is that the Code does not direct that samples taken under these various alternatives be automatically suppressed, as it does for breath samples. We conclude that the legislature’s specific reference to applying the rules of evidence and the implied consent statutes’ global purpose, as the Supreme Court has said, to “acquire evidence of blood alcohol content rather than ... to exclude evidence,” Abney, 821 N.E.2d at 379, means that, standing alone, the fact that the drawer is not on the list in subsection (j) does not compel suppression.

This is not to say that anyone may draw blood or that it may be drawn in any manner. Rather, subsection (j) tells us that blood may be drawn at a licensed hospital or by certain people if not at a licensed hospital. To the extent that someone else draws blood, the evidence must show that the person is properly trained and performed the draw in a medically acceptable manner. Here, Maga had been trained to obtain bodily substance samples and performed blood draws every day in her position as a medical assistant. As discussed above, we conclude that the procedure she followed complied with the available protocols for drawing blood.

We thus hold that the trial court erred by suppressing the evidence on the basis of subsections (a) or (j).

VI. ISSUES ON CROSS-APPEAL

Bisard claims that the trial court erred in allowing the blood test evidence for purposes of the Title 35 offenses while excluding that evidence for purposes of the Title 9 offenses. Because we conclude that the evidence meets the requirements specified under Title 9, the Rules of Evidence, which govern the admissibility of evidence for Title 35 offenses, clearly support admissibility.

Bisard also claims the consent he gave could not be valid because it was given pursuant to an illusory offer, i.e., an offer of a blood draw to be performed by a person not authorized to draw blood according to Title 9. Because we conclude that the provisions of Title 9 do not compel exclusion, we think this particular issue on cross-appeal is moot.

CONCLUSION

The implied consent statutes indicate that blood evidence is admissible so long as it complies with the rules of evidence. Although Maga was not a person enumerated in subsection (j), she was trained in obtaining bodily substance samples and generally followed MOHC protocol when she drew Bisard’s blood. Bisard makes no credible suggestion that any deviation compromised the reliability of the samples. We therefore reverse the trial court’s suppression of the blood evidence and remand for further proceedings.

Reversed and remanded.

ROBB, C.J., and BRADFORD, J., concur.

      . MOHC is now Indiana University Health Occupational Services. It is not a hospital.

      . Section 9-30-7-5 provides:
      (a) A person who refuses to submit to a portable breath test or chemical test offered under this chapter commits a Class C infraction. However, the person commits a Class A infraction if the person has at least one (1) previous conviction for operating while intoxicated.
      (b) In addition to any other penalty imposed, the court shall suspend the person’s driving privileges:
      (1) for one (1) year; or
      (2) if the person has at least one (1) previous conviction for operating while intoxicated, for two (2) years.

      . See, for example, Kolish v. State, 949 N.E.2d 856, 860 (Ind.Ct.App.2011), trans. denied, in which we affirmed a conviction where the blood draw was performed at a licensed hospital and according to protocol, and Boston v. State, 947 N.E.2d 436, 444 (Ind.Ct.App.2011), in which we affirmed the denial of a motion to suppress where the blood draw was performed at a licensed hospital.
      The facts in each of these cases indicate that the blood drawn was not the only evidence of intoxication. See Kolish, 949 N.E.2d at 857 (defendant crossed center line and nearly collided with oncoming vehicles, smelled of alcohol, had red and watery eyes and slurred speech, had two coolers and empty beer cans in back of truck, admitted consuming alcohol, was unable to complete field sobriety tests); Boston, 947 N.E.2d at 438-39 & n. 1 (no probable cause affidavit in record on appeal, but defendant requested blood alcohol test after being arrested on suspicion of operating while intoxicated).

      . To similar effect was State v. Hunter, 898 N.E.2d 455 (Ind.Ct.App.2008), in which the court suppressed the results of a blood test where the State did not offer evidence that the hospital nurse who drew the blood was acting under a protocol prepared by a physician.

      . The technician was certified to practice phlebotomy, but she was not a certified phle-botomist. Brown, 911 N.E.2d at 673 n. 2.

      . The defendant had glassy and bloodshot eyes and slurred speech, smelled of alcohol, was unsteady when exiting his truck, admitted consuming several beers, defecated in his pants, failed one field sobriety test, and was unable to complete another. Brown, 911 N.E.2d at 671.

      . See the subsequent history of Brown, which shows that transfer was granted, the order was vacated, and transfer was denied, and Boston v. State, 947 N.E.2d 436, 442 (Ind.Ct.App.2011), which summarizes the actions of the legislature and the Supreme Court after this Court’s opinion in Brown.

      . We have recently rejected a defendant’s claim that such evidence is inadmissible in prosecutions of chapter 9-30-5 offenses if the sample was obtained under chapter 9-30-7. See Temperly v. State, 933 N.E.2d 558, 566 (Ind.Ct.App.2010), trans. denied, cert. denied, - U.S. -, 132 S.Ct. 496, 181 L.Ed.2d 345 (2011).


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    Dezmon GAINES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A05-1201-CR-21.
    Court of Appeals of Indiana.
    Sept. 12, 2012.

      Jeffrey Elftman, Kokomo, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Dezmon Gaines (Gaines), appeals the trial court’s denial of his motion to suppress the evidence.

We affirm.

ISSUES

Gaines raises two issues on interlocutory appeal, which we restate as:

(1) Whether Indiana Code section 9-19-19-4, which prescribes the requirements for a vehicle’s tinted windows, is void for vagueness; and
(2) Whether Gaines’ search was reasonable.

FACTS AND PROCEDURAL HISTORY

On July 7, 2011, Sergeant Tonda Cock-rell with the Kokomo Police Department (Officer Cockrell) was attempting to locate a missing woman in the area of 1800 North Purdum in Kokomo, Indiana. During her search, Officer Cockrell received information that the woman might be associated with Jeremy Wilson (Wilson), who drove a black Cadillac or a tan Buick. While driving in the area of where Wilson was known to live, Officer Cockrell noticed a black Cadillac with tinted windows. Because she was driving an unmarked police vehicle and was not in uniform, she called for a marked unit to conduct a traffic stop of the Cadillac for having illegally tinted windows.

Kokomo Police Officers Bruce Rood (Officer Rood) and Thomas Mygrant (Officer Mygrant) responded to her call. The Officers stopped the vehicle in the Elks Lodge parking lot. As Officer Rood approached the window he could see people inside the car but could not tell how many people there were “until the window was rolled down.” (Transcript p. 25). After the window was down, Officer Cockrell noticed Gaines on the back seat. He had something in his mouth that he was chewing. Officers Rood and Cockrell both went to the car’s passenger side where Officer Rood ordered Gaines out of the vehicle. A strong odor of marijuana emanated from the vehicle.

Officer Rood placed Gaines in handcuffs. He briefly searched Gaines for weapons and detected what he believed to be a baggie containing marijuana in Gaines’ front pocket. Officer Rood did not take the baggie out of the pants’ pocket; instead, he placed his tazer in the small of Gaines’ back and ordered him to spit out the object in his mouth or he would be tazed. Gaines complied with the order and he spit out a baggie containing a substance that resembled rock cocaine.

On July 8, 2011, the State filed an Information charging Gaines with Count I, possession of cocaine, a Class D felony, Ind. Code § 35^18-4-6(a); Count II, dealing in marijuana, a Class D felony, I.C. § 35-48-4 — 10(a)(2); -(b)(1)(B); and Count III, possession of marijuana, a Class D felony, I.C. § 35-48^1-11(1). On November 1, 2011, Gaines filed a motion to suppress the evidence resulting from an invalid traffic stop and an illegal search. On December 16, 2011, the trial court conducted a hearing on Gaines’ motion, at the conclusion of which the trial court denied the motion to suppress evidence. On December 27, 2011, Gaines requested certification to pursue an interlocutory appeal, which the trial court granted on the same day. On February 24, 2012, we accepted the interlocutory appeal.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

When reviewing a ruling on a motion to suppress, we consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling. Williams v. State, 754 N.E.2d 584, 587 (Ind.Ct.App.2001), tram, denied. Where the evidence is conflicting, we consider only the evidence favorable to the ruling. Id. We will affirm if the decision is supported by substantial evidence of probative value. Id.

II. Traffic Stop

First, Gaines contends that the trial court abused its discretion when it declared the Officers’ traffic stop to be legal because of the vehicle’s illegally tinted windows. An officer may stop a vehicle when he observes minor traffic violations. Williams, 754 N.E.2d at 587. Indiana Code section 9-19-líM(c) provides in pertinent part:

A person may not drive a motor vehicle that has a:
(1) windshield;
(2) side wing;
(3) side window that is part of a front door; or
(4) rear back window
that is covered by or treated with sun-screening material or is tinted to the extent or manufactured in a way that the occupants of the vehicle cannot be easily identified or recognized through that window from outside the vehicle. However, it is a defense if the sun-screening material applied to those windows has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measured on the non-film side and light transmittance of at least thirty percent (30%) in the visible light range.

Focusing on the statutory requirement that the infraction is established when the vehicle’s occupants “cannot be easily identified or recognized,” Gaines asserts that this qualification is void for vagueness because the statute “does not state if identification of race, gender, and number of passengers is sufficient or if window tinting must be such that every feature of every person can be seen.” (Appellant’s Br. p. 6).

Upon a challenge that a statute is unconstitutional we presume the statute is constitutional. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind.Ct.App.2008). The burden is on the defendant to rebut this presumption and we resolve all reasonable doubts in favor of the constitutionality of the statute. Id. A Criminal statute may be void for vagueness for either of two independent reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits, and (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement. Brown v. State, 868 N.E.2d 464, 467 (Ind.2007). Where, as here, the defendant asserts the second prong, the statute must include a line of demarcation between trivial and substantial acts in order to avoid arbitrary or discriminatory enforcement of the statute. Id. Assessment of a vagueness challenge is limited to the facts and circumstances of each case. Id.

Although we agree that the statute omits a definition of “identified” or “recognized,” the statute does delineate a scientifically objective measurement for compliance within its context. As such, the statute imposes firm boundaries on the window tint, thereby precluding any arbitrariness or discriminatory enforcement by police officers.

Moreover, the statute as applied to the current situation did not invite “overly broad discretion by police.” (Appellant’s App. p. 7). During the hearing on the motion to suppress, Officer Rood, who conducted the traffic stop, testified that upon approaching the vehicle, he could not see through the windshield into the car. He stated that he could “see people but [he] couldn’t see what was going on, the windows were tinted too much.” (Tr. p. 25). Officer Rood clarified that he could not tell how many people were inside the car until the window was rolled down. Although Officer Cockrell stated during the hearing that she could see through the window and notice the “nervous state of the people inside” as well as the race and gender of the driver, we are mindful that where the evidence is conflicting, we only consider the evidence favorable to the ruling. (Tr. p. 17). See Williams, 754 N.E.2d at 587. Therefore, based on Officer’s Rood testimony, we find substantial evidence of probative value to affirm the trial court’s ruling.

III. Search

Next, Gaines alleges that the trial court erred when it found Officer Rood’s search of Gaines to have been reasonable. Specifically, Gaines claims that Officer Rood’s threat of using a tazer to induce Gaines to spit out what he was chewing after smelling an odor of marijuana coming from the car was unreasonable.

The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures of persons and property by requiring a warrant based on probable cause. Moore v. State, 827 N.E.2d 631, 637 (Ind.Ct.App.2005), reh’g denied, trans. denied. Probable cause exists when an officer has knowledge of facts and circumstances that would lead a reasonably prudent person to believe a crime has been committed. Id. However, it is axiomatic that warrants, both search and arrest, are required unless probable cause exists along with exigent circumstances rendering it impractical to seek a warrant. Id. Exigent circumstances may include danger to law enforcement officers or the risk of loss or destruction of evidence. Id. Absent probable cause, exigent circumstances alone are insufficient to justify a warrant-less seizure. Id.

Officers Rood and Cockrell testified that when they opened up the passenger door, an odor of marijuana emanated from the vehicle. At the same time, all three Officers noticed Gaines chewing on something in his mouth. Both Officers Rood and Cockrell stated that they believed Gaines was attempting to swallow some type of narcotic or other contraband. Based on these circumstances, we conclude that a reasonably prudent person could believe that Gaines was attempting to destroy contraband. Therefore, probable cause existed for Gaines’ warrantless search.

Gaines now points to Conwell v. State, 714 N.E.2d 764 (Ind.Ct.App.1999) as support for his argument that the means used by Officer Rood — i.e., the threat to use a tazer — to compel Gaines to spit out the contraband were unreasonable. In Con-well, Conwell, on probation at the time, was stopped for travelling at a high rate of speed in an area known to be a “high narcotics area.” Id. at 766. Because of the officer’s experience that individuals hide their narcotics “either in their mouth or in between the crack of their buttocks,” the officer requested Conwell to open his mouth and to lift his tongue. Id. Conwell did not comply but the officer observed that Conwell began to make a chewing motion. Id. The officer testified that he neither saw Conwell place anything in his mouth nor did he see Conwell chewing on an object. Id. Failing to get compliance, the officer began to choke Conwell. Id. A struggle ensued which only ended after Conwell was maced twice with CS spray. Id.

In analyzing the reasonableness of the means used to compel compliance, the Conwell court adopted the three-part balancing test of Winston v. Lee, 470 U.S. 753, 761-62, 105 S.Ct. 1611, 1617-18, 84 L.Ed.2d 662 (1985). The Winston test requires the reasonableness of force used during a body search procedure to be measured against (1) the extent to which the procedure used may threaten the safety or health of the individual, (2) the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence. Id. Balancing these factors, the Conwell court focused on the method of force, as it found a choke hold to be dangerous, with a risk of serious injury to Conwell. Conwell, 714 N.E.2d at 768. As such, the court determined that the use of the choke hold amounted to unreasonable force. Id. at 769.

The Conwell court distinguished its situation from Foxall v. State, 157 Ind.App. 19, 298 N.E.2d 470 (1973). In Foxall, officers inserted a plastic shoehorn in Fox-all’s mouth to facilitate the removal of the contents in his mouth after Foxall had bitten the fingers of two of the officers. Id. at 477. The Foxall court determined the use of force to have been reasonable as Foxall’s air flow had not been restricted. Id.

Here, we cannot conclude that Officer Rood used unreasonable force by ordering Gaines to spit out the contraband under threat of using a tazer. Unlike Conwell, Gaines was not choked and he was not maced. Gaines was only told that he would be tazed if he did not comply with the Officer’s order. No amount of physical force was used and there was no risk to Gaines’ physical safety. There was no intrusion on Gaines’ bodily integrity by uttering a threat. At no time was Gaines’ airflow restricted. Consequently, balancing the Winston factors, we cannot conclude that the issuance of a verbal threat amounted to unreasonable force. We affirm the trial court.

CONCLUSION

Based on the foregoing, we conclude that Indiana Code section 9-19-19-4 is not void for vagueness and the Officer’s search of Gaines was reasonable.

Affirmed.

BAILEY, J., concurs.

CRONE, J., concurs in result.


author: VAIDIK, Judge.

text:
    Jerry L. KINDRED, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 28A01-1202-PC-50.
    Court of Appeals of Indiana.
    Sept. 12, 2012.

      F. Thomas Schornhorst, Oxford, MS, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

This case involves an allegation of sexual molestation for which there was no evidence other than a child’s testimony. In 2010, Jerry L. Kindred was convicted of one count of Class A felony child molesting. He was sentenced to thirty-five years in prison, with five years suspended to probation. Kindred filed an appeal but later sought a stay of that appeal to pursue post-conviction relief, alleging ineffective assistance of counsel. Kindred now appeals the denial of his request for post-conviction relief and reinstates his direct appeal utilizing the Davis-Hatton procedure.

Kindred raises several direct appeal and post-conviction claims, one of which we find dispositive of his appeal. Accordingly, we address only that issue, which is: did the admission of certain evidence, including hearsay and vouching testimony, deny Kindred a fair trial and therefore constitute fundamental error? We reverse and remand.

Facts and Procedural History

Kindred met Barbara Grissom in 2001. Barbara is the biological grandmother and adoptive mother of A.G. Barbara’s ex-husband, David, was A.G.’s step-grandfather and is her adoptive father. Barbara and David were divorced in 2002, and Kindred and Barbara began living together shortly thereafter. Barbara and David later attempted to reconcile, which ended badly, and A.G. struggled with this. As a result, the relationship between Barbara and her family was strained. Kindred’s relationship with Barbara’s family was similarly rocky.

After Barbara and David’s divorce, A.G. lived primarily with David, but she had weekly visits with Barbara. In the summer of 2008, nine-year-old A.G. spent six consecutive weeks with Barbara. During that time, A.G. shared a bed with Barbara and sixty-four-year-old Kindred because she was scared to sleep alone. Barbara would sleep in the middle of the bed, with A.G. on one side and Kindred on the other. Barbara often woke up around 3:30 in the morning to prepare for her shift at a local restaurant that began at 4:30. Before getting ready, Barbara would wrap A.G. in blankets and put a blanket in between the still-sleeping A.G. and Kindred to keep A.G. from rolling in her sleep. Once Barbara was dressed, she would wake A.G. and drive her to the babysitter’s house before going to work.

In late June, when the visit ended, A.G.’s biological mother, Christy, .picked A.G. up from Barbara and Kindred’s house. While Christy and A.G. were in the car, A.G. asked Christy if Barbara would live with David again if Barbara had nowhere else to live. Christy asked A.G. why she had asked such a question. A.G. told Christy that when she and Kindred were alone in bed together, Kindred put his hands down her panties. Christy told David that A.G. had been molested. They contacted law enforcement and said that A.G. had accused Kindred of touching her.

Don Fish, a caseworker for Greene County Child Protective Services (CPS), and Julie Martin, a sex-crimes investigator employed by the Greene County Prosecutor’s Office, conducted forensic interviews of A.G. A.G. told Fish and Martin that Kindred had put his finger in her vagina more than once. Fish and Martin also interviewed Kindred, who admitted that he slept in the same bed as A.G., sometimes without Barbara. However, he denied ever touching A.G. in a sexual manner, although Fish and Martin testified at trial that he nodded his head affirmatively while making this verbal denial. Kindred’s interview was recorded on audio. In January 2009, the State charged Kindred with two counts of Class A felony child molesting. Count I alleged that Kindred molested A.G. in May 2008. Count II alleged that Kindred molested A.G. in June 2008.

Before trial, the State sought to preclude Kindred’s planned impeachment of A.G. with a past false accusation of molestation. Specifically, Kindred sought to introduce evidence that, when A.G. was three or four years old, she accused one of Christy’s boyfriends of putting his finger in her vagina. In a pretrial deposition, A.G. denied making the accusation. Christy and Barbara, however, testified that A.G. made the allegation and later recanted it. The trial court ruled that there was sufficient evidence of a demonstratively false accusation under State v. Walton and allowed the impeachment.

Kindred was represented at trial by Ronald Chapman (“trial counsel”). The State’s first witness was Martin, the prosecutor’s sex-crimes investigator. Martin described her role in determining whether charges were filed when a sex crime was alleged:

Q Suppose you have an incident where the victim has accused someone of molesting [him or her], do you always file charges automatically?
A No.
Q Why not?
A We need some kind of [corroboration,] either DNA evidence, medical evidence!,] or possibly a confession by the suspect.
Q Are there times when you don’t file charges?
A Yes.
Q Do you often have times when people are upset with you for those decisions probably don’t you [sic]?
A Extremely upset, I have been told I am not doing my job—

Tr. p. 350. At that point, trial counsel objected on relevancy grounds. Id. at 351. The objection was overruled. The State circled back to the issue:

Q So on a daily basis you require some evidence other than child molest victim’s accusations before filing charges?
A Yes.

Id.

Martin went on to testify that in this case, she decided to file charges after speaking with A.G. on three occasions. Id. at 356. When asked what she had learned over the course of her investigation, Martin replied, “We learned that [A.G.] had been molested by ... Jerry Kindred.” Id. at 358. Martin said that “A.G. told us that Jerry Kindred had put his finger in her vagina on more than one occasion.” Id. at 363. Martin also testified that no medical examination of A.G. was conducted because “A.G. said that the last time it had happened was a couple of weeks prior to her tellingt,] which was on June 21,” and because the alleged molestation had occurred approximately two weeks earlier, “they wouldn’t find anything anyway[,] the vagina heals very quickly.” Id. at 365. Martin also testified about her interview with Kindred. Martin said that Kindred denied the allegations but “[corroborated] everything [A.G.] had told us other than the touching.” Id. at 381.

When asked specifically about A.G., Martin testified that A.G.’s “story has been consistent with the allegations every time that I have talked to her.” Id. at 382. She also described A.G.’s demeanor as “never changing] from the first time I talked to her,” and said that “[A.G.] has never been emotional with me, she [is] just matter-of-fact and to the point.” Id. at 356.

When A.G. took the stand, the prosecutor asked, “Why are you here?” A.G. responded: “Because Jerry Kindred sexually abused me.” Id. at 402. When the prosecutor remarked that A.G. had used “a pretty big word for a fifth grader,” A.G. replied, “Well I know it is not specific to say just abuse, or know [sic] that he sexually abused me so I put that word there.” Id. A.G. denied that anyone had told her to use the terms “sexual abuse.” Id.

A.G. said that when she stayed with Barbara, Jerry touched her vagina, “sometimes rough and sometimes gentle.” Id. at 415. When asked how long Kindred would “keep his finger in there,” A.G. responded, “I don’t know, 15 or 10 minutes maybe.” Id. at 418. A.G. testified that she did not call for Barbara because she was too scared and because she “[thought] there was a gun in the room.” Id. When the prosecutor asked A.G. what led her to tell Christy about the molestation, A.G. responded:

A Well I kind of had to, I was making plans to see if [Barbara] would live with [David] after it happened, I can’t remember, but I think [Barbara], I might have asked her and she might have said yes and when I asked [Christy] if she would think [David] would and she asked why and I had to tell her.
Q Why did you think this had anything to do [with] where [Barbara] was going to live?
A Well I thought she would be upset with him, with Jerry[,] after she found out what happened.

Id. at 420.

CPS caseworker Fish also testified about the investigation. Fish elaborated on Martin’s response about seeking medical treatment for A.G.: “I attended a training session ... and during that training [it was] explained to us that most evidence is gone within 72 hours, [so] there is no need to do the examination.” Id. at 433-34. Fish also relayed A.G.’s statement — initially made to Christy, who told David, who reported it to Fish — that “she had been touched.” Id. at 438-39. Similarly, Fish testified that Christy had informed him that A.G. “had indicated that she had been touched.” Id. at 439. Fish also testified about A.G.’s demeanor, describing A.G. as “matter-of-fact.” Id. at 440, 449. He also said that A.G.’s demean- or before and after talking to the investigators was the same. When asked by the State if A.G. had indicated specifically that Kindred touched her on June 21, 2008, Fish said, “She indicated that she had been in Worthington, had been in a bed with Jerry Kindred and that he had reached over and had placed his finger inside her vagina.” Id. at 448.

The State then sought to introduce into evidence the audio recording of Kindred’s interview with Fish and Martin. Without objection from Kindred’s trial counsel, the entire forty-minute recording was admitted into evidence and played for the jury. Id. at 460. An un-redacted thirty-one-page transcript of the recording was also given to each juror. No limiting instruction was given to the jury regarding the recording. During the interview, Fish made many statements about A.G. and the allegations, including the following:

[A.G. is] pretty truthful. I mean when you talk to her she’s pretty detailed about the things that were going on, things that had happened and the things that were said to her. And that, and when you talk to this little girl, this [nine-year-old] little girl, and you, you try to look at the things that she’s saying and [the] way she’s telling it, it’s pretty believable. I mean especially whenever some of the facts that you tell me kinda [sic] match with the facts that she’s telling me.
And, and that’s one of the things that makes this girl more believable. Is the fact that a lot of times when these things happen, they don’t happen for hours or days or anything like that, these are quick things ... they’re just you know[,] people leaned over, they touch people and then they’re done. It’s not ... something that, that they do for hours. And ... that’s one of the things that makes this girl, one of the things that makes this girl believable is the fact that she’s not, she’s not saying [Kindred] never did this for hours, [Kindred] never hurt her, [Kindred] never meant to, to be mean to her, that, that she never indicates that at all. She just says that [Kindred] touched her. Ok? And, and that’s what we’ve, we’ve got to find out [Kindred], and, and when you talk to her, she is really, she has a lot of details. About what went on in that bed. And, and she’s real believable ....
And I don’t think you meant to hurt her or, or you hurt her at all, ok? I don’t think that’s what we’re talking about. But I think, I honestly think that something happened in that bedroom that, uh, was out of your control for whatever reason that something happened, maybe just a couple of seconds and ... you leaned over and you touched the little girl and that’s all the farther [sic] it went.
[Y]ou touched her, ok, and that’s all she’s saying. That you touched her and, and that’s all we’re talking about.
ifc ⅜ ⅛ ⅜
Well, she is really adamant that it was you ... [S]he’s saying that as she would wake up and it would be Barbara getting ready for work in just those few minutes and that you would reach over and would touch, touch her on, on the hip.

State’s Ex. 1, p. 27-30 (emphases added).

Finally, Fish testified that he was trained to identify signs that a child has been “coached,” including providing rehearsed answers, repeating answers, and an inability to provide details about the incident. Tr. p. 435-36. Fish stated twice that he did not believe A.G. had been coached. Id. at 449, 470. Barbara, Christy, and David also testified and repeated what A.G. had said about the alleged molestation. Id. at 500, 525, 551. David, however, testified that he had not specifically asked A.G. about the allegations because he knew that she would tell the truth and “wouldn’t lie.” Id. at 553, 555.

In April 2010, the jury found Kindred not guilty on Count I (molestation occurring in May 2008) and guilty on Count II (molestation occurring in June 2008). Kindred was sentenced to thirty-five years in the Department of Correction, with five years suspended to probation. Kindred filed an appeal in June 2010, but he later sought a stay of that appeal to pursue post-conviction relief, alleging ineffective assistance of counsel. On post-conviction, Kindred claimed his trial counsel was ineffective for failing to object to the admission of hearsay and vouching testimony, among other evidence. Following the hearing, the post-conviction court entered findings of fact and conclusions of law denying relief.

Kindred now appeals the denial of his request for post-conviction relief and reinstates his direct appeal.

Discussion and Decision

Kindred raises several direct appeal and post-conviction claims, one of which we find dispositive of his appeal. Accordingly, we address only that issue, which is: did the admission of certain evidence, including hearsay and vouching testimony, deny Kindred a fair trial and therefore constitute fundamental error?

With one exception, Kindred did not object to the admission of the evidence he now challenges on appeal. The single issue preserved for appeal is Kindred’s relevancy objection to Martin’s testimony regarding her role in filing charges at the prosecutor’s office. We review the admission of that evidence for an abuse of discretion. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App.2009) (citations omitted). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied.

As to all of Kindred’s other contentions, his claims are waived unless he can show that fundamental error occurred. Kimbrough, 911 N.E.2d at 634. The fundamental-error rule is extremely narrow. Id. Fundamental error occurs only when the error “constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id.

I. Course-of-investigation Evidence

We first address Kindred’s challenge to Martin’s testimony regarding her role in charging decisions. He also challenges numerous statements made by Martin and Fish regarding what A.G. told them during the forensic interviews. In its brief and at oral argument, the State claimed that this was properly offered as eourse-of-investi-gation evidence.

Course-of-investigation evidence is often offered to explain why police officers, investigators, or other law enforcement officers proceeded in a particular manner. “This ‘background’ information, however, generally is irrelevant and should be excluded.” 1 Wharton’s Criminal Evidence § 4:47 (15th ed. 1997). It is irrelevant if it does not make it more or less probable that the defendant committed the acts alleged. “In other words, the explanation for why the police did what they did may add nothing to the determination of the defendant’s guilt or innocence.” Id. While jurors may be curious about why investigators acted, an explanation of their actions may have no probative value. Id. (citation omitted).

In this case, Martin described her role in making charging decisions:

Q Suppose you have an incident where the victim has accused someone of molesting [him or her], do you always file charges automatically?
A No.
Q Why not?
A We need some kind of [corroboration,] either DNA evidence, medical evidence^] or possibly a confession by the suspect.
Q Are there times when you don’t file charges?
A Yes.
Q Do you often have times when people are upset with you for those decisions probably don’t you [sic]?
A Extremely upset, I have been told I am not doing my job—
t\: ⅜ ⅜ ⅜ i¡:
Q So on a daily basis you require some evidence other than child molest victim’s accusations before filing charges?
A Yes.

Tr. p. 350-51. The State argues that Martin’s testimony was proper eourse-of-inves-tigation evidence. At trial, Kindred’s trial counsel argued that this testimony was irrelevant. Id. at 351. The trial court overruled Kindred’s objection.

The fact that Martin generally requires corroborating evidence before filing charges is irrelevant — it does not make it more or less probable that Kindred committed the acts alleged by A.G. Nor was Martin’s charging criteria at issue at Kindred’s trial. Thus, the trial court should have excluded her testimony on this basis alone. Moreover, Martin’s testimony carries with it the threat that jurors would infer that because she requires corroborating evidence in the form of DNA, other medical evidence, or a confession, that one or more of those items were present in this case. We acknowledge, as the State implied at oral argument, that charging criteria may be an area of interest for jurors. However, this fact does not justify the admission of irrelevant and potentially prejudicial testimony. We conclude that the trial court erred by admitting this evidence.

In addition to being irrelevant, course-of-investigation evidence may also contain hearsay. , Indeed, “cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted.” 2 McCormick on Evidence § 249 (4th ed. 1992). While the need for this evidence “is slight, the likelihood of misuse [is] great.” Id. Here, Kindred challenges numerous statements made by Martin and Fish regarding what A.G. told them during the forensic interviews and argues that this was improperly offered as course-of-investigation evidence.

Our Supreme Court has examined course-of-investigation evidence that contains otherwise inadmissible hearsay and in doing so, has questioned its relevancy. In Craig v. State, 630 N.E.2d 207, 212 (Ind.1994), the defendant, accused of child molesting, objected to the testimony of a police officer describing an out-of-court statement made by the victim’s mother that two weeks after seeing the defendant, the victim said that the defendant molested him. The State argued that the testimony was not offered to prove the truth of the matter asserted, but rather to explain the course of the investigation — to show that a report was made and that the police acted on it. The Court disagreed, ruling that the testimony had “no conceivable relevance apart from proving the facts asserted in the statements.” Id. at 211. The error in admission was harmless, however, because “there was little to undermine the credibility of the [victim] ... and the tendency of [the investigators’] statements to bolster his credibility had only a minor impact on the jury.” Id. at 211-12. See also Maxey v. State, 730 N.E.2d 158, 162 (Ind.2000) (detective’s testimony that defendant had fled the state was improper course-of-investigation evidence; testimony had “extremely low” probative value as defendant’s ultimate apprehension was not a contested issue); Mason v. State, 689 N.E.2d 1233, 1236 (Ind.1997) (“What prompted the police to investigate Mason is not relevant to any contested issue at trial because Mason’s defense efforts were directed primarily towards establishing that he was not dealing heroin....”); Bonner v. State, 650 N.E.2d 1139, 1141 (Ind.1995) (informants’ statements that defendant was involved in drug trafficking “lacked relevance to any contested issue other than the matters asserted therein” and were improper as irrelevant or hearsay).

This Court has also questioned the relevancy of testimony offered as course-of-investigation evidence. In Winbush v. State, a police detective testified about information he had received about the defendants’ past criminal acts. 776 N.E.2d 1219, 1221-22 (Ind.Ct.App.2002), trans. denied. The State offered this testimony as course-of-investigation evidence over the defendants’ objections. We concluded that this evidence had “little relevance” as the defendants were not contesting “the quality or validity of the investigation,” but posed a high risk of prejudice and should not have been admitted at trial. Id. at 1222. Similarly, in Hernandez v. State, 785 N.E.2d 294, 300 (Ind.Ct.App.2003), trans. denied, we concluded that a police captain’s testimony about prior complaints of prostitution at a spa where the defendant was arrested and later charged with prostitution were improperly admitted. Despite the fact that the claimed purpose of the captain’s testimony was to show the course of the investigation, the “genesis of the investigation was not relevant to any contested issue” in the case while “the prejudicial impact was great.” Id.

In addition, the Seventh Circuit recently discussed course-of-investigation evidence in the Indiana case of Jones v. Basinger, 635 F.3d 1030, 1045 (7th Cir.2011). In Jones, the State elicited testimony from two police officers regarding a confidential informant’s double-hearsay statement. The officers’ testimony was permitted on the theory that it showed the course of the investigation that ultimately led to Jones’ arrest and conviction for felony murder. The federal court acknowledged that while “the reason a police investigation proceeded as it did could be said not to be inadmissible hearsay,” the “reasons for an investigation are most assuredly not something the Government has to prove to carry its burden” of proof in a criminal trial. Id. (citations omitted). The court also expressed skepticism about the use of course-of-investigation evidence given the threat of prejudice and abuse:

Statements offered to show background or the course of the investigation can easily violate a core constitutional right, are easily misused, and are usually no more than minimally relevant. Courts asked to admit such statements for supposed non-hearsay purposes must be on the alert for such misuse. A trial court should not accept without scrutiny an offering party’s representation that an out-of-court statement is being introduced for a material non-hearsay purpose.

Id. at 1046. In this ease, the State elicited the following testimony from Martin and Fish:

MARTIN: [A.G.] told us that Jerry Kindred had put his finger in her vagina on more than one occasion.
MARTIN: [A.G.] said that the last time it had happened was a couple of weeks prior to her telling[,] which was on June 21.
FISH: We talked to Christy, she informed us that she had been the one who had picked A.G. up[,] and as they were coming home to Bedford, A.G. had indicated that she had been touched.
FISH: [A.G.] indicated that she had been touched.
FISH: [A.G.] indicated that she had been in Worthington, had been in a bed with Jerry Kindred and that he had reached over and had placed his finger inside her vagina.

Tr. p. 363, 365, 438-39, 448. The State contends that these statements were not offered for the truth of the matter asserted, but instead were properly admitted as course-of-investigation evidence. We cannot agree. As in Craig, Winbush, and Hernandez, the genesis, development, or quality of Martin and Fish’s investigation was not at issue. For this reason, as our Supreme Court said in Craig, another child-molesting case, the testimony here had no “conceivable relevance apart from proving the facts asserted in the statements.” 630 N.E.2d at 211. Nor can we conclude that the admission of this evidence was harmless. The threat of prejudice was considerable as A.G.’s credibility — unlike the victim’s in Craig — was in question for numerous reasons, including a previous, demonstratively false accusation of molestation.

II. Drumbeat Repetition

We next address Kindred’s contention that this is a drumbeat-repetition case. Kindred argues that Martin and Fish’s testimony as set forth above, as well as hearsay statements by Barbara, Christy, and David, created a prejudicial drumbeat repetition of the allegations against him.

In addition to Martin and Fish’s testimony, Kindred also argues that Barbara, Christy, and David gave hearsay testimony:

BARBARA: [A.G.] was hesitant and I just said [Christy] said that you are not coming back up and staying with me and [A.G.] said no[,] and I said [Christy] said that [Kindred] touched you and [A.G.] was hesitant and she said yes.
CHRISTY: [A.G.] had told me that when [Barbara] would get out of bed that he would put his hands down her panties....
DAVID: [A.G.] told Christy on the way home [that she had been molested].

Tr. p. 500, 525, 551.

While seemingly conceding that the statements were hearsay, the State argues that they were nonetheless general, brief, and cumulative of A.G.’s testimony, and thus this is not a drumbeat-repetition case. We have addressed the issue of drumbeat evidence in child-molesting cases with differing results.

In Stone v. State, 536 N.E.2d 534 (Ind.Ct.App.1989), the defendant was convicted of two counts of child molesting. Although we concluded that the trial court did not err in admitting some of the child victim’s out-of-court statements, we held that the defendant was prejudiced when the trial court, over the defendant’s objection, allowed five witnesses to testify to the victim’s out-of-court statements. Id. at 540. Between the five witnesses and the victim, the victim’s version of the alleged molestation was presented to the jury seven times. We concluded that this was drumbeat repetition and reversed, explaining that the victim’s credibility was “of critical importance,” and “the line between [the victim’s] credibility became increasingly unimpeachable as each adult added his or her personal eloquence, maturity, emotion, and professionalism to [the victim’s] out-of-court statements.” Id. at 540-41.

Our Supreme Court also expressed concern about drumbeat repetition of evidence in Modesitt v. State, 578 N.E.2d 649 (Ind.1991). In Modesitt, the trial court, over the defendant’s objection, allowed three witnesses to testify to the child victim’s hearsay statements concerning the alleged molestation. The court explained that “three witnesses told the victim’s story before the victim herself testified” and the Court could not say that this “drumbeat repetition of the victim’s original story pri- or to calling the victim to testify did not unduly prejudice the jury which convicted Modesitt.” Id. at 651-52.

In two cases that followed, we found no drumbeat repetition. First, in Willis v. State, the child victim testified about being molested. 776 N.E.2d 965 (Ind.Ct.App.2002). After the victim testified, her mother testified and the trial court admitted a videotape of the victim’s interview with authorities. Both of these occurred despite the defendant’s objection. Noting that the videotape revealed no evidence that the jury had not heard from the child victim, as well as the brief nature of the niother’s testimony about the molestation, we concluded that this did not amount to the drumbeat repetition found in Modesitt. Id. at 968.

We also found no drumbeat repetition in Surber v. State, 884 N.E.2d 856, 864-65 (Ind.Ct.App.2008), trans. denied. In Sur-ber, the child victim’s statements about being molested were repeated by three witnesses, and a videotaped interview of the child describing the molestation was admitted into evidence without objection from Surber. Concluding that any error in admission was harmless, we noted that the victim was the first to testify and was cross-examined. Id. at 864. We also noted that the three witnesses’ testimony “was brief, consistent with, and did not elaborate upon [the child victim’s] testimony.” Id.

Looking to the evidence here, we note that while Barbara, Christy, and David’s testimony was brief, Martin and Fish testified at length. Martin’s testimony, in particular, spans forty pages of the record, and she testified before the jury heard from A.G. In addition to hearing A.G.’s allegations from the mouths of Martin, Fish, Barbara, Christy, and David, the jurors also heard Kindred’s entire forty-minute interview with investigators, during which Fish — not the child, as seen in Sur-ber and Willis — repeatedly suggested that Kindred had touched A.G. and that A.G. was being truthful. Jurors also received an un-redaeted transcript of the interview, which included these statements from Fish. In light of this, and because this case turned solely on the word of A.G., we cannot say that this drumbeat repetition of A.G.’s story did not prejudice the jury.

III. Vouching Testimony

Kindred next contends that fundamental error occurred when three witnesses vouched for A.G.’s credibility.

Vouching testimony is generally prohibited under Indiana Evidence Rule 704(b), which states: “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.” This testimony is considered an “invasion of the province of the jurors in determining what weight they should place upon a witness’s testimony.” Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind.Ct.App.2012).

Until recently, an exception was made to Evidence Rule 704(b) for vouching testimony in child-molesting cases, under the rationale that “ ‘[t]he child’s capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue....’” Stewart v. State, 555 N.E.2d 121, 125 (Ind.1990) (quoting Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984)), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992). However, our Supreme Court recently decided Hoglund v. State, 962 N.E.2d 1230 (Ind.2012), in which it expressly eliminated this vouching-testimony exception in child-molesting cases.

In Hoglund, the Court, revisiting its holding in Lawrence, concluded that

testimony concerning whether an alleged child victim is not prone to exaggerate or fantasize about sexual matters is an indirect but nonetheless functional equivalent of saying the child is telling the truth. It is this aspect of Lawrence that we today expressly overrule as being inconsistent with the mandate of Rule 704(b) which specifically prohibits witnesses from testifying as to whether another witness testified truthfully.
:¡: ⅝ ⅜ ⅜ ⅜ ⅜
To summarize, we expressly overrule that portion of Lawrence allowing for some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. This indirect vouching testimony is little different than testimony that the child witness is telling the truth.

Id. at 1236-37 (citations omitted) (emphasis added).

In this case, Fish testified that he did not believe that A.G. had been “coached.” Tr. p. 449, 470. On appeal, Kindred contends that this statement was the functional equivalent of telling the jury that A.G. was telling the truth. The State contends that this was not vouching testimony, but rather a response to Kindred’s trial strategy, which was to attack AG.’s credibility and suggest that she had been coached or otherwise had reason to lie. Kindred and the State have identified the two main arguments regarding a witness’s testimony about coaching. In child-molesting cases, particularly where there is no physical evidence, as is the case here, the central issue is likely to be the child’s credibility. And in that instance, a defendant may suggest that the child was coached. Thus, this is an issue likely to be encountered with some frequency, but it has yet to be resolved by our courts.

While Hoglund prohibits testimony that an alleged child victim is not prone to exaggerate or fantasize about sexual matters, it does not expressly address testimony about coaching. However, in Hoglund, our Supreme Court discussed foreign-jurisdiction cases that reference coaching testimony:

In State v. Keller, 315 Or. 273, 844 P.2d 195 (1993), the Oregon Supreme Court repeated the admonition that a “witness may not testify about the credibility of another witness,” id. at 202, and found error in allowing a pediatrician — whose specialty was child abuse and neglect— to testify that “there was no evidence of leading or coaching or fantasizing” during her interview with the child.

962 N.E.2d at 1234-35 (emphasis added). Hoglund also discussed the Ohio Supreme Court’s ruling in State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220, 1240 (1989), which

described as “improper ... egregious, prejudicial and ... reversible error” for the trial court to allow the child victim’s pediatrician to express her opinion that the victim “had not fantasized her abuse” and that the victim “had not been programmed to make accusations against her father.” [According to the Court this testimony ‘in effect, declared that [the victim] was truthful in her statements.’

Hoglund at 1235 (emphasis added).

We read Hoglund to suggest that testimony about whether a child has been coached amounts to the same improper commentary on the child’s truthfulness as testimony about whether a child is prone to exaggerate or fantasize about sexual matters. We hold that general testimony about the signs of coaching, as well as the presence or absence of those signs in the child victim at issue, preserves the ultimate credibility determination for the jury and therefore does not constitute vouching. By contrast, where a witness opines as to whether the child victim was coached— offering an ultimate opinion, as Fish did here — the witness invades the province of the jury and vouches for the child.

We also conclude that Fish vouched for A.G.’s credibility indirectly though the admission of the audio recording of his interview with Kindred. During the interview, Fish stated five times that A.G. was “truthful” or “believable.” Petitioner’s Ex. 1, p. 27-28. The jurors heard these statements when the interview was played in the courtroom and read them in the transcript of the recording. A.G.’s father, David, also vouched for A.G.’s credibility when he stated at trial that he never questioned the allegations made by A.G. because he knew that she would tell the truth and “wouldn’t lie.” Tr. p. 553, 555. While these statements were made by A.G.’s father and did not convey any specific knowledge about the allegations, they nonetheless vouched for AG.’s credibility.

IV. Cumulative Error

We need not determine whether any single error in the admission of vouching, hearsay, or other evidence detailed above was fundamental because we conclude that the cumulative effect of the admission of this evidence is fundamental error. We reach this conclusion because of the unique facts of this case, which turned entirely on A.G.’s credibility: A.G. alleged that Kindred put his finger inside her vagina. She was impeached with testimony regarding a prior, demonstratively false accusation of precisely the same molestation she claimed Kindred committed. Before A.G. made this allegation, she inquired about where Barbara would live if she no longer lived with Kindred. At trial, A.G. explained that she was “making plans to see if [Barbara] would live with [David] after it happened,” and it was implied that A.G. hoped her parents would reconcile if Kindred was out of the picture. There was also testimony about the difficult dynamic between AG.’s family and Kindred. Importantly, there was no physical or other evidence to corroborate A.G.’s allegations. Considering these facts in light of the extensive hearsay and vouching testimony that was admitted in error, we conclude that Kindred was denied a fair trial, and we reverse his conviction.

Having reached this conclusion, the question of whether Kindred may be subjected to a new trial depends upon an analysis of the sufficiency of the evidence. Browning v. State, 775 N.E.2d 1222, 1226 (Ind.Ct.App.2002). When determining whether retrial is permissible, we consider all of the evidence admitted at trial, including the erroneously admitted evidence. Id. “If, viewed as a whole, that evidence would have been sufficient to sustain the judgment, retrial would not offend double jeopardy principles.” Id. The uncorroborated testimony of a child victim is sufficient to support a conviction for child molesting. Stewart v. State, 768 N.E.2d 433 (Ind.2002) (citing Barger v. State, 587 N.E.2d 1304, 1308 (Ind.1992)). Because A.G.’s testimony would be sufficient to justify a conviction, jeopardy has not attached and Kindred may be retried.

Reversed and remanded.

CRONE, J., and BRADFORD, J., concur.

      . The Davis-Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the trial court. State v. Lopez, 676 N.E.2d 1063, 1069 (Ind.Ct.App.1997) (citing Hatton v. State, 626 N.E.2d 442 (Ind.1993), trans. denied; Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977)). See also Ind. Appellate Rule 37(A) ("At any time after the Court on Appeal obtains jurisdiction, any party may file a motion requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to the trial court ... for further proceedings. The motion must be verified and demonstrate that remand will promote judicial economy or is otherwise necessary for the administration of justice.”).

      . Specifically, A.G. said that Kindred would "dig” deep in her private area with his hand. Fish then asked ”[D]oes he try to go inside you?” A.G. responded, "I guess.” Petitioner's Ex. 4, p. 12. A.G. said this happened "lots of times.” Id. at 13.

      . In State v. Walton, our Supreme Court held that a defendant’s offer of evidence of prior false accusations of rape to impeach the credibility of the witness does not violate the Rape Shield Rule or Indiana Evidence Rule 608. 715 N.E.2d 824, 827 (Ind.1999). Under Walton, evidence of prior false accusations may be admitted if: (1) the complaining witness admits he or she made a previous false accusation or (2) the accusation is demonstratively false. Id. at 828. In determining what is demonstratively false, the Court held that "while no bright line rule can be established,” the standard is "more stringent than a mere credibility determination.” Id.

      . This was not the only reference to guns possessed by Kindred, who was a federally licensed firearms dealer. In fact, the prosecutor made numerous references to Kindred owning guns, even at one point implying that Kindred sold guns illegally. See Tr. p. 598-99, 624-25, 630, 641, 674. Kindred also asserts this as a basis for fundamental error; however, we need not address this issue due to our resolution of Kindred's other arguments.

      . We held oral argument in this case on August 21, 2012. We thank counsel for both parties for their able advocacy.

      . Although there was no objection to Martin and Fish’s testimony regarding what A.G. said during the interviews, Hernandez sets forth succinctly the procedure for analyzing an objection to the admissibility of an out-of-court statement received by a law enforcement officer during the course of an investigation:
      When the admissibility of an out-of-court statement received by a police officer during the course of an investigation is challenged as hearsay, the court must first determine whether the testimony describes an out-of-court statement asserting a fact susceptible of being true or false. If the statement contains no such assertion, it cannot be hearsay and the objection should be overruled. The court then must consider the evidentiary purpose for the proffered statement. If the evidentiary purpose is to prove the fact asserted, and the statement is neither from a witness nor from a party as described in Ind. Evidence Rule 801(d), and there are no applicable hearsay exceptions, the statement is inadmissible as hearsay. If the statement is offered for a purpose other than to prove the truth of the matter asserted, the court should consider whether the fact to be proved is relevant to some issue in the case and whether the danger of unfair prejudice which may result from its admission outweighs its probative value.
      785 N.E.2d at 298 (citations omitted).

      . Given our resolution of this issue, we need not address Kindred's remaining direct-appeal or post-conviction claims.