      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Aug 17 2015, 8:28 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Gregory F. Zoeller
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Ellen H. Meilaender
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James Pitman,                                            August 17, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1501-CR-5
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Mark Stoner, Judge
                                                               Cause No. 49G06-1404-FB-20163
      Appellee-Plaintiff




      Vaidik, Chief Judge.



                                            Case Summary
[1]   James Pitman was convicted of Class B felony rape, Class B felony criminal

      deviate conduct, Class D felony criminal confinement, Class D felony

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015     Page 1 of 10
      intimidation, and Class A misdemeanor domestic battery for raping, battering,

      and confining his live-in girlfriend. He now appeals his convictions, arguing

      that the arresting officer impermissibly vouched for the State’s witnesses, which

      constitutes fundamental error. However, the officer did not testify that he

      believed the victim or the victim’s co-worker that the victim had been texting

      during the ordeal nor did the officer express an opinion as to the truth of their

      statements. Rather, the officer merely explained—in response to defense

      counsel’s question—that he arrested Pitman based on the statements of the

      victim and her co-worker, the victim’s visible injuries, and the fact that Pitman

      had nothing to say to contradict the victim’s statements to police. Accordingly,

      we conclude that the trial court did not commit error, let alone fundamental

      error, in admitting the officer’s testimony. We therefore affirm Pitman’s

      convictions.



                            Facts and Procedural History
[2]   The facts most favorable to the verdict reveal that James Pitman lived with his

      girlfriend, F.N., and her three children. In the early-morning hours of April 18,

      2014, Pitman returned home intoxicated after drinking with a friend. Tr. p. 43,

      283. F.N. woke up around 3:45 a.m. to the sound of Pitman stumbling around

      the house. As Pitman lay down, F.N. got up and started to get ready for work.

      F.N. had to leave earlier than usual to pick up a co-worker, and she did not

      want to deal with Pitman “because [she] could tell he [had been] drinking.” Id.

      at 46. As F.N. was getting dressed in the bathroom, she heard Pitman grab her


      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015   Page 2 of 10
      keys and ask what she was doing. Id. at 47-48. F.N. told Pitman she was

      getting ready for work. After getting dressed, F.N. went to take her keys from

      Pitman, who was sitting on the bed. When she leaned over, Pitman “lean[ed]

      up” toward her and started punching her in the face. Id.


[3]   After Pitman hit F.N. several times, she went to the bathroom to wash off the

      blood. When F.N. told Pitman she had to go to work, Pitman responded that

      she could not go to work looking like that. Id. at 49. So F.N. called her

      employer and left a voice message that she would not be at work that day. F.N.

      told Pitman she needed to call her co-worker—David Thompson—to let him

      know she could not take him to work. In response, Pitman took her phone,

      threw it down, and told her she “needed to get in the shower, [and] that [she]

      was his.” Id. at 51. Although F.N. said she did not need to get in the shower,

      Pitman threatened that if she did not get in the shower, he would “bash” her

      head into the wall. Id. F.N. immediately got in the shower. After F.N. got out

      of the shower, dried off, and put on a T-shirt and shorts, she left the bathroom

      and walked through the bedroom. As she walked through the bedroom,

      Pitman shoved her onto the bed. Id. at 52. Pitman tried to pull F.N.’s shorts

      down, but F.N. kept trying to pull them back up. Id. at 54. F.N. asked Pitman

      to stop, but he refused. Id. When Pitman attempted to perform oral sex on

      F.N., she kicked him. He then bit her vaginal area. Id. at 54-55. F.N.

      continued to tell Pitman to “stop,” but he refused. Id. at 55. Pitman then got

      on top of F.N. and inserted his penis in her vagina and engaged in sexual

      intercourse with her against her wishes. Id. at 55-56.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015   Page 3 of 10
[4]   Although Pitman fell asleep, F.N. did not leave because she was afraid if she

      tried to leave he would just stop her. Id. at 57. When Pitman woke up a couple

      hours later, F.N. told him she was hungry. Pitman got up and left the room to

      fix F.N. something to eat. Id. at 59, 95.


[5]   During the course of the morning, F.N. texted her co-workers Robin Miller and

      Thompson that she had a broken nose, Pitman had punched her in the face, he

      would not let her leave, and he raped her. See id. at 59, 88, 97; see also State’s

      Ex. 7, 16 ,17, 18.


[6]   After receiving F.N.’s texts, Robin drove to F.N.’s house and called 911 from

      outside. Tr. p. 128-29. Officers Matthew Addington and John Reichle of the

      Indianapolis Metropolitan Police Department were dispatched to 2231

      Canvasback Drive around 10:30 a.m. for a domestic-related assault. Id. at 20-

      21, 31. Officer Addington arrived first and waited for Officer Reichle. Id. at 19-

      20. While he was waiting, Officer Addington was approached by Robin on the

      street and had a conversation with her. Once Officer Reichle arrived, both

      officers went to the door and knocked. Pitman answered the door after several

      minutes. Id. at 35. Officer Addington informed Pitman that they “were trying

      to confirm or dispel that an assault had occurred and [would] like to see all

      parties in the house.” Id. at 22-23. Pitman led Officers Addington and Reichle

      to F.N., who was in the master bedroom. Id. at 24. F.N. had lacerations and

      bruising on her forehead, and the bridge of her nose was cut open. Id.; see also

      State’s Ex. 1, 2, 3, 4. Pitman had no visible injuries. Tr. p. 32. After Officer



      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015   Page 4 of 10
      Riechle took Pitman outside, F.N. told Officer Addington that Pitman was

      responsible for the injuries to her face. Id. at 25-26.


[7]   Officer Addington radioed Officer Reichle to handcuff Pitman. Pitman asked

      Officer Addington “what [F.N.] had said.” Id. at 29. Pitman did not say

      anything else about what had happened. Officer Addington arrested Pitman for

      domestic battery, battery, and criminal confinement. Id. at 36. F.N. was taken

      to Indiana University (IU West) hospital because of a possible concussion. Id.

      at 26, 30, 32. After being examined at IU West, F.N. was transported to the

      Center of Hope at Methodist Hospital. F.N. informed a forensic-nurse

      examiner that she had been raped and consented to a sexual-assault

      examination. Id. at 168, 173. The test results revealed traces of Pitman’s semen

      and DNA in her vaginal area, on a maxi pad, and in her underwear. Id. at 221-

      26, 257-61.


[8]   The State charged Pitman with Count I: Class B felony rape; Count II: Class B

      felony criminal deviate conduct; Count III: Class D felony criminal

      confinement (for holding F.N. down); Count IV: Class D felony criminal

      confinement (for not allowing F.N. to leave); Count V: Class D felony

      intimidation; Count VI: Class A misdemeanor domestic battery; and Count

      VII: Class A misdemeanor battery.1 Appellant’s App. p. 44. At Pitman’s jury




      1
        Originally Count III was Class D felony sexual battery. The State, however, filed a motion to amend the
      information and deleted Count III on November 24, 2014. Appellant’s App. p. 43. The court granted the
      motion, and the charges in the information were renumbered to be sequential. Id. at 44.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015            Page 5 of 10
      trial, defense counsel asked Officer Addington on re-cross why Pitman was

      arrested on the scene. Officer Addington responded:

              After conducting what I thought was enough for a charge that met the
              statute of Domestic Battery and Battery, Criminal Confinement and
              the fact that Mr. Pitman had nothing to say about the assault itself. I
              wanted to know what she said possibly to formulate a lie to me. I
              went ahead and arrested based on that. Also the testimony from a
              witness or a friend, [Robin], on the lead-in information that she gave
              me initially, and also from [F.N.] and her injuries, that was
              [affirmative] occurrence of an assault.
      Tr. p. 36. Defense counsel did not object to Officer Addington’s response. Id.

      Pitman testified in his own defense that F.N. hit him first and after a few hits he

      “snapped” and hit her back. Id. at 285-88. Pitman also testified that the sexual

      intercourse was consensual. Id. at 302-04. The jury found Pitman guilty as

      charged. Id. at 373-74. The trial court entered judgment on all counts except

      Counts III and VII on double-jeopardy grounds.2 The court imposed

      concurrent sentences of twelve years each, with six years suspended, for Counts

      I and II; three years each on Counts IV and V; and one year for Count VI.

      Appellant’s App. p. 11-13; Tr. p. 430. This resulted in an aggregate sentence of

      twelve years with six years suspended, to be served in the Indiana Department

      of Correction.


[9]   Pitman now appeals.




      2
       The court merged Count III: criminal confinement, with Count I: rape; and Count VI: domestic battery,
      with Count VII: battery.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015           Page 6 of 10
                                  Discussion and Decision
[10]   Pitman contends that the trial court erred in admitting Officer Addington’s

       testimony concerning why he arrested Pitman on the scene because it

       impermissibly vouched for the State’s witnesses. Because Pitman did not object

       to Officer Addington’s testimony at trial, he argues that it amounts to

       fundamental error.


[11]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to “make a fair trial impossible.” Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014) (quotation omitted), reh’g denied. In other

       words, to establish fundamental error, the defendant must show that, under the

       circumstances, the trial judge erred in not sua sponte raising the issue because

       the alleged errors (a) “constitute clearly blatant violations of basic and

       elementary principles of due process” and (b) “present an undeniable and

       substantial potential for harm.” Id. (quotation omitted). The element of such

       harm is not established by the fact of ultimate conviction; rather, it “depends

       upon whether [the defendant’s] right to a fair trial was detrimentally affected by

       the denial of procedural opportunities for the ascertainment of truth to which he

       otherwise would have been entitled.” Id. (quotation omitted). In evaluating the

       issue of fundamental error, our task is to look at the alleged misconduct in the

       context of all that happened and all relevant information given to the jury—

       including evidence admitted at trial, closing argument, and jury instructions—

       to determine whether the misconduct had such an undeniable and substantial

       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015   Page 7 of 10
       effect on the jury’s decision that a fair trial was impossible. Id. Fundamental

       error is meant to permit appellate courts a means to correct the most egregious

       and blatant trial errors that otherwise would have been procedurally barred; it is

       not meant “to provide a second bite at the apple for defense counsel who

       ignorantly, carelessly, or strategically fail to preserve an error.” Id.


[12]   Pitman argues specifically that Officer Addington’s testimony that he arrested

       Pitman “based in part on the statements of [F.N.] and the ‘testimony’ of

       [Robin]” was impermissible vouching testimony in violation of Indiana

       Evidence Rule 704 (b).3 Appellant’s Br. p. 7. Evidence Rule 704 (b) provides

       that “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.” Such testimony is an

       invasion of the province of the jurors in determining what weight they should

       place upon a witness’s testimony. Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App.

       2014), trans. denied; Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App.

       2012). It is essential that the trier of fact determine the credibility of the

       witnesses and the weight of the evidence. Gutierrez, 961 N.E.2d at 1034.




       3
         Pitman does not argue that Officer Addington’s testimony was impermissible course-of-investigation
       evidence. See Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (“The core issue at trial is, of course, what the
       defendant did (or did not do), not why the investigator did (or did not do) something. Thus, course-of-
       investigation testimony is excluded from hearsay only for a limited purpose: to bridge gaps in the trial
       testimony that would otherwise substantially confuse or mislead the jury.” (quotation omitted)).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015                  Page 8 of 10
[13]   Here, defense counsel—not the State—asked Officer Addington why he

       arrested Pitman on the scene, and the officer answered by giving the facts that

       led him to make the arrest. This is not vouching. Instead, vouching occurs

       when a witness testifies or opines that what another person has said is true or

       that he believes her. See id. at 1033-35 (holding that the sexual-assault nurse’s

       testimony that she “believe[d]” that the victim was telling the truth and the case

       manager’s testimony that she “absolutely” believed what the victim had said

       constituted impermissible vouching testimony). Officer Addington did not

       testify that he believed F.N. or Robin nor did he express an opinion as to the

       truth of their statements. Instead, Officer Addington merely explained—in

       response to defense counsel’s question—that he arrested Pitman based on the

       statements of F.N. and Robin, F.N.’s visible injuries, and the fact that Pitman

       had nothing to say to contradict F.N.’s statements. See Tr. p. 24, 26, 32, 36. In

       essence, Officer Addington explained the basis of his probable cause to arrest

       Pitman. An officer’s testimony explaining the facts as to why he arrested

       someone cannot be considered as asserting a personal belief that a victim or

       witness is credible or telling the truth. Officer Addington did not say that the

       crime happened; rather, he said that there was probable cause to believe that the

       crime happened. Officer Addington did not vouch for the State’s witnesses.


[14]   Also, the fact that Officer Addington referred to Robin’s statements as

       “testimony” does not somehow convert his statement into vouching. See

       Appellant’s Br. p. 9 (“Although [Officer] Addington referred to the statements

       of [Robin] as ‘testimony,’ it was, in fact, unsworn hearsay.”). It is clear from


       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015   Page 9 of 10
       the context that Officer Addington was referring to what Robin told him when

       she approached him on the scene. Therefore, there was no danger that the jury

       believed he was referring to a sworn statement given in court or that he was

       commenting on what Robin would say in court later during trial.


[15]   Because Officer Addington did not vouch for the State’s witnesses, we conclude

       that the trial court did not commit error, let alone fundamental error, in

       admitting his testimony.4 We therefore affirm the trial court.


[16]   Affirmed.


       Robb, J., and Pyle, J., concur.




       4
         Pitman makes two additional arguments. First, he argues that the “error in admitting the vouching
       testimony was compounded by the officer’s improper statements casting doubt on Pitman’s credibility.”
       Appellant’s Br. p. 9. In support, Pitman points us to this testimony from Officer Addington: “I wanted to
       know what she said possibly to formulate a lie to me.” Tr. p. 36 (emphasis added). “She” is a clear reference
       to F.N. But in his analysis, Pitman argues that the officer “voic[ed] his suspicion that Pitman may have been
       ‘formulat[ing] a lie’ to police” and “portrayed Pitman as a calculating liar.” Appellant’s Br. p. 9 (emphases
       added). Because Pitman did not give a statement to police and only asked the officer what F.N. had said, we
       find that the officer’s statement was not a reference to Pitman, much less a reference to his credibility.
       Second, Pitman argues that although “[Officer] Addington referred to the statements of [Robin] as
       ‘testimony,’ it was, in fact, unsworn hearsay.” Id. We find this argument waived for failure to support it by
       cogent reasoning and citations to authority. See Ind. Appellate Rule 46(A)(8)(a).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-5 | August 17, 2015              Page 10 of 10
