MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                    Oct 17 2018, 9:41 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Keating                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James M. Hardiman, Jr.,                                  October 17, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-CR-317
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Amy Miskimen,
Appellee-Defendant                                       Special Judge
                                                         Trial Court Cause No.
                                                         82D03-1708-F1-4817



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018                   Page 1 of 15
[1]   James Hardiman, Jr., appeals his convictions for Level 1 Felony Child

      Molesting,1 two counts of Class A Misdemeanor Contributing to the

      Delinquency of a Minor,2 and Level 5 Felony Neglect of a Dependent.3

      Hardiman makes the following arguments: (1) the trial court erroneously

      admitted testimony regarding Hardiman’s intoxicated state; (2) there is

      insufficient evidence supporting the neglect of a dependent conviction;

      (3) fundamental error resulted from prosecutorial misconduct; (4) the neglect of

      a dependent conviction and one of the contributing to the delinquency of a

      minor convictions violate the prohibition against double jeopardy; and (5) the

      trial court erroneously notated an habitual offender adjudication as a separate

      conviction and sentence rather than as an enhancement to the Level 1 felony

      conviction.


[2]   The State concedes the double jeopardy violation, and we agree. We also find

      that the sentencing order, chronological case summary, and abstract of

      judgment need to be corrected to properly notate the habitual offender

      enhancement. We find no other error. Therefore, we affirm in part, reverse in

      part, and remand with instructions to vacate one of the Class A misdemeanor

      contributing to the delinquency of a minor convictions and to correct the

      sentencing order, chronological case summary, and abstract of judgment to




      1
          Ind. Code § 35-42-4-3(a).
      2
          Ind. Code § 35-46-1-8(a).
      3
          I.C. § 35-46-1-4(b).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 2 of 15
      reflect that the habitual offender adjudication operates as an enhancement to

      the Level 1 felony conviction rather than an independent sentence.


                                                     Facts
[3]   On August 19, 2016, then-thirteen-year-old C.M. went to the apartment of her

      friend, K.H. K.H. lived with Hardiman, who is her father, and K.H.’s two

      older brothers. At some point, K.H. and C.M. texted Hardiman to ask him to

      pick up some food; instead, he took them to get alcohol. They returned to the

      apartment, where C.M. drank three or four “strawberritas” over the course of

      forty-five minutes to an hour. Tr. Vol. II p. 74. C.M. fell asleep in the living

      room.


[4]   Later that evening, C.M. woke up and stood up from the couch. She felt sick

      and vomited as she was walking to the bathroom. K.H. and K.R., the girlfriend

      of one of K.H.’s brothers, helped C.M. shower, got her a clean shirt, and helped

      her into K.H.’s bed. Around 1:00 a.m., K.H. woke up C.M. to ask her if she

      wanted to leave with K.H., her brothers, and K.R. to get some food. C.M. said

      she wanted to go back to sleep and did not want to go with them. C.M. went

      back to sleep and K.H., her brothers, and K.R. left the apartment.


[5]   At some point during the evening, Hardiman and his friend, Curtis White,

      arrived at the apartment. Hardiman and White both drank alcohol throughout

      the evening.


[6]   After everyone but Hardiman, White, and C.M. had left the apartment,

      Hardiman entered the room where C.M. was sleeping and sat on the end of the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 3 of 15
      bed. C.M. recognized his voice as he asked her whether she had ever had sex

      before. Id. at 95. C.M. said she had not and told him to leave her alone.

      Hardiman began touching her legs and pants and she tried to roll away from

      him, saying “Stop, leave me alone, I’m trying to sleep.” Id. at 97. He

      responded, “You’re never gonna wanna come back here again.” Id. at 98.

      Hardiman pulled C.M.’s pants down to her ankles. He left the room for two or

      three minutes, then returned and got onto the bed. C.M. tried to tense up so

      she couldn’t be moved, but she was unsuccessful. He moved her legs and

      inserted his penis into her vagina. Hardiman’s penis was inside her vagina for

      approximately ten seconds and C.M. said that it “hurt real bad,” id. at 106, later

      saying that the pain was a six or seven on a scale of one to ten. He “got off

      really fast and went back and laid down.” Id. At some point, C.M. saw his

      face and again recognized him as Hardiman.


[7]   Following the incident, C.M. was scared and did not know what to do. She did

      not tell anyone until August 23, 2016, when she told a friend at school.

      Eventually, C.M.’s parents learned about it. They took her to the hospital and

      called the police. A sexual assault examination revealed a fresh laceration on

      C.M.’s vagina and bright red coloring to her cervix, which is normally a much

      lighter pinkish color. The injuries observed were consistent with recent

      intercourse.


[8]   On August 30, 2016, the State charged Hardiman with Level 1 felony child

      molesting, Level 3 felony rape, and two counts of Class A misdemeanor

      contributing to the delinquency of a minor. The State later added an habitual

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 4 of 15
       offender allegation and charges of Level 3 and Level 5 felony neglect of a

       dependent.


[9]    Hardiman’s first jury trial resulted in a mistrial. A second trial began on

       December 11, 2017. The jury found Hardiman not guilty of Level 3 felony

       neglect of a dependent and guilty of the remaining charges. Hardiman

       admitted to being an habitual offender. At the January 11, 2018, sentencing

       hearing, the trial court vacated the rape conviction based on double jeopardy

       concerns. The trial court sentenced Hardiman to concurrent terms of thirty-five

       years for child molesting, one year on each of the Class A misdemeanor

       convictions, and six years for Level 5 felony neglect of a dependent. The trial

       court added an habitual offender enhancement of twenty years, resulting in an

       aggregate sentence of fifty-five years imprisonment. Hardiman now appeals.


                                    Discussion and Decision
                                                I. Evidence
[10]   Hardiman first raises two evidentiary issues: (1) the trial court erroneously

       permitted K.H. to testify regarding her belief that Hardiman was intoxicated on

       the night in question; and (2) the evidence does not support his conviction for

       Level 5 felony neglect of a dependent.


                                  A. Admission of Evidence
[11]   With respect to Hardiman’s argument that the trial court erroneously admitted

       evidence regarding his intoxicated state on the night in question, we note that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 5 of 15
       the admission or exclusion of evidence is within the trial court’s discretion, and

       we will reverse only if the trial court’s decision clearly contravenes the logic and

       effect of the facts and circumstances before it or if the trial court has

       misinterpreted the law. E.g., Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct.

       App. 2012).


[12]   Hardiman argues, essentially, that the State did not lay a sufficient foundation

       to permit K.H. to testify regarding her opinion that he was intoxicated. Indiana

       Evidence Rule 701 provides that if a witness is not testifying as an expert,

       testimony in the form of an opinion must be rationally based on the witness’s

       perception and helpful to a clear understanding of the witness’s testimony or to

       a determination of a fact in issue.


[13]   K.H. testified that she had been around her father in the past when he had been

       drinking and that on the night in question, he appeared to be intoxicated. Tr.

       Vol. III p. 133-34. She based that conclusion on her observations that he was

       slurring his speech and smelled of alcohol. Id. at 134-35. We find that this is a

       sufficient foundation to support K.H.’s opinion testimony that Hardiman was

       intoxicated and that the trial court did not err by admitting it. It was for the

       jury to evaluate and weigh K.H.’s opinions in light of her youthful age and

       inexperience—those factors do not render the evidence inadmissible.


[14]   We also note that Hardiman’s friend testified that Hardiman had told him that

       he was so drunk that night that he passed out on the couch. Id. at 160, 162.

       Additionally, an audio interview of K.R. was played for the jury in which she


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 6 of 15
       stated that Hardiman and White were “pretty drunk,” that Hardiman smelled

       of alcohol, and that “you could just tell by his behavior” that Hardiman was

       “really drunk.” Id. at 219-22. Another witness testified that Hardiman “was

       drunk” that night. Tr. Vol. IV p. 18. Under these circumstances, even if the

       admission of K.H.’s testimony was erroneous, it was harmless error because the

       substance of her testimony was cumulative of other evidence in the record.

       Pavey v. State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002). Consequently, this

       argument is unavailing.


                                              B. Sufficiency
[15]   Hardiman next argues that the evidence is insufficient to support his conviction

       for Level 5 felony neglect of a dependent. When reviewing the sufficiency of

       the evidence to support a conviction, we must consider only the probative

       evidence and reasonable inferences supporting the conviction and will neither

       assess witness credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007). We will affirm unless no reasonable factfinder could find

       the elements of the crime proved beyond a reasonable doubt. Id.


[16]   To convict Hardiman of Level 5 felony neglect of a dependent, the State was

       required to prove beyond a reasonable doubt that he had the care of a

       dependent, he knowingly or intentionally placed the dependent in a situation

       that endangered her life or health, and his actions resulted in bodily injury to

       the dependent. I.C. § 35-46-1-4(b)(1)(A). The only argument Hardiman makes

       on appeal is that the State did not prove that his actions resulted in bodily injury


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 7 of 15
       to C.M. More specifically, Hardiman argues that the State did not prove that

       his act of providing alcohol to C.M., thereby allowing her to become

       intoxicated, resulted in the sexual assault, because there is no evidence that she

       was so intoxicated that she could not have fought him off.


[17]   Initially, we note that the jury was instructed that “bodily injury” means

       impairment of a physical condition, including physical pain. And our Supreme

       Court has observed that “bodily injury” includes “‘pain, illness, or physical

       impairment caused indirectly’” by a defendant’s actions. Bailey v. State, 979

       N.E.2d 133, 139 (Ind. 2012) (quoting Model Penal Code § 211.1 cmt. 3).

       Therefore, the jury could have found that the bodily injury suffered by C.M.

       was the sickness and vomiting she experienced as a result of the alcohol given

       to her by Hardiman. It cannot be reasonably questioned that there is a direct

       causal nexus between his actions and this result. Therefore, we find the

       evidence sufficient to support the conviction.


[18]   Hardiman focuses on C.M.’s pain and vaginal laceration as the bodily injury on

       which the conviction is based. He argues that there is no evidence suggesting

       that she was still intoxicated at the time of the assault, meaning that the injuries

       did not result from his provision of alcohol to her. We disagree. There is

       evidence in the record that earlier in the evening, C.M. was so intoxicated that

       she vomited on herself and needed assistance to shower afterwards. A

       reasonable juror could conclude that she was still intoxicated at the time of the

       attack and that her intoxication affected her ability to ward off Hardiman’s

       assault. See Tr. Vol. II p. 104 (C.M.’s testimony that although she tried to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 8 of 15
       resist, Hardiman “moved like my legs and I couldn’t do anything about it”).

       Moreover, her intoxication certainly isolated her from the other young people

       in the apartment, causing her to remove herself to a bedroom and decline to

       leave with them, which left her alone in the apartment with Hardiman and

       created the opportunity for the assault. Therefore, regardless of which bodily

       injury the jury determined she sustained—the sickness and vomiting or the pain

       and vaginal laceration—we find the evidence sufficient to support this

       conviction.


                                II. Prosecutorial Misconduct
[19]   Hardiman next argues that the prosecutor committed prosecutorial misconduct

       at multiple points during closing argument. In reviewing a claim of

       prosecutorial misconduct, we must consider first whether misconduct occurred

       and second whether the misconduct placed the defendant in a position of grave

       peril to which he should not have been subjected. Williams v. State, 724 N.E.2d

       1070, 1080 (Ind. 2000). Here, Hardiman’s counsel did not object to the

       statements at issue. Therefore, he must establish not only the grounds for the

       misconduct but also the additional grounds for fundamental error. Ryan v.

       State, 9 N.E.3d 663, 667-68 (Ind. 2014). The fundamental error exception is

       extremely narrow and applies only when the error constitutes a blatant denial of

       basic due process principles that makes it impossible to receive a fair trial. Id.


[20]   Hardiman argues that the prosecutor improperly vouched for the credibility of

       certain witnesses, stated his personal opinion regarding Hardiman’s guilt, and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 9 of 15
       urged the jury to base its verdict on whether they trusted the prosecutor or

       defense counsel more. It is well established that a prosecutor “may not state his

       or her personal opinion regarding the credibility of a witness during trial, as

       such statements amount to vouching for a witness.” Brummett v. State, 10

       N.E.3d 78, 86 (Ind. Ct. App. 2015), aff’d, 24 N.E.3d 965 (Ind. 2015). A

       prosecutor may, however, “‘comment as to witness credibility if the assertions

       are based on reasons arising from the evidence presented at trial.’” Id. (quoting

       Thomas v. State, 965 N.E.2d 70, 77 (Ind. Ct. App. 2012)).


[21]   First, Hardiman directs our attention to the prosecutor’s comments about the

       testimony of James Price. Price is one of Hardiman’s friends who testified

       reluctantly against Hardiman. The prosecutor made the following observations

       to the jury:


               James Price is what I call a head on your pillow type witness.
               James Price is one that makes me feel pretty good when I put my
               head on my pillow, that I know that James Hardiman’s guilty. I
               know that he raped [C.M.] and I know that he’s guilty of child
               molesting. I know that he’s guilty of child neglect. I know he’s
               guilty of contributing to the delinquency of a minor. And why is
               that? First off, folks, in my experience - it’s just my personal
               preference - I find a lot of times the best evidence I get is from
               people who don’t wanna have to tell me things, ‘cause of either a
               relationship with a party on the other side - and it doesn’t mean
               there’s - Mr. Price testified admirably. There’s nothing wrong
               with what he testified to, but he’s close friends with Mr.
               Hardiman. And when I talked to Mr. Price it’s clear he wouldn’t
               give us this information unless he was bound to tell us the truth,
               and he had to. He didn’t wanna help us in this case. But he was
               under oath.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 10 of 15
       Tr. Vol. IV p. 68-69. It would certainly have been preferable for the prosecutor

       to have refrained from making comments about his own opinions as to

       Hardiman’s guilt and Price’s believability. But in reviewing the whole passage,

       it is apparent that the prosecutor was telling the jury, based on the evidence,

       that Price was Hardiman’s close friend and that a close friend would not

       provide damaging testimony unless that testimony were true. Ultimately, we

       find that these comments were a proper comment on the evidence before the

       jury and that they did not amount to misconduct.


[22]   Next, Hardiman directs our attention to the following comments related to

       Hardiman’s defense that it was Curtis White, rather than Hardiman, who

       assaulted C.M.:


                  [E]ven if you find that Curt White did this, you go down to those
                  neglect of a dependent charges and take a look at those charges.
                  That proximate cause for Curt White, if he did—and I don’t
                  believe he did—proximate cause of him being able to do this to
                  this young lady is this man and the fact that - I told you it was
                  about trust - Beth and J.D. trusted this man to take care of their
                  13 year old daughter and he goes out, he gets drunk, he gets
                  alcohol for them, he gets them drunk. She is in the bed. He brings
                  over an accused rapist[4] who helps get drunk with him. See
                  where I’m goin’? Screams neglect of a dependent. . . . Beth and
                  J.D. trusted James Hardiman with their 13 year old daughter and
                  he just blew through that trust in the worst way imaginable. Now
                  I’m tellin’ you this, it didn’t matter, because that man raped that




       4
           At the time of the assault, White was facing a rape charge in an unrelated case.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018        Page 11 of 15
               young lady. And she stood right there in front of you and said, “I
               am positive it was James Hardiman.[”]


       Id. at 71. Again, the prosecutor should have avoided commenting as to his own

       opinions. But we find that these comments did not vouch for the credibility of

       any particular witness. Instead, the prosecutor was informing the jury that

       (1) whether White or Hardiman committed the assault is irrelevant to the

       neglect charge; and (2) the argument that White committed the assault is not

       supported by the evidence, including C.M.’s testimony that it was Hardiman

       who assaulted her. We find that these comments are rooted in the evidence and

       arguments before the jury and that they do not amount to prosecutorial

       misconduct.


[23]   Finally, Hardiman directs our attention to the following statements made by the

       prosecutor on rebuttal:


               The reason people don’t come forward and don’t share all of this
               is because we skewer them. We Monday morning quarterback.
               And we nitpick all the details. And you darn well better bet
               you’re not gonna get every single thing right. You can take
               almost anyone on somethin’ that happened a year and a half ago,
               and especially if it’s embarrassing, and if you make ‘em talk
               about it enough you’re gonna find things to start pickin’ at. And
               once you pick open one little wound, then all of a sudden
               somethin’ else is gonna be different. That’s what lawyers do.
               But, you know, you don’t have to do it. What you have to do is
               what’s right. I said this case is about trust. If you were on a ledge
               and we’re handin’ you this case and I’m givin’ you my hand, do
               you trust that I would get you in off that ledge? Or do you trust
               [defense counsel] and the Defense? That’s what it’s about, it’s
               about trust.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 12 of 15
       Id. at 92-93. Hardiman argues that these comments improperly suggest to the

       jury that it should base its decision on whether it trusted counsel for the State or

       counsel for the defense more. We disagree. It is apparent that the prosecutor

       was appropriately asking the jury to credit the State’s theory of the case over

       Hardiman’s, which the prosecutor contended required the jury to ignore the

       evidence in favor of speculation, and explaining why C.M. may have been

       reluctant to come forward and uncertain about all of the details of the assault.

       These comments do not amount to prosecutorial misconduct. In sum, we do

       not find that any of these comments amount to error, let alone fundamental

       error, and we decline to reverse on this basis.


                                       III. Double Jeopardy
[24]   Next, Hardiman argues that his convictions for Level 5 felony neglect of a

       dependent and one of the Class A misdemeanor contributing to the delinquency

       of a minor charges cannot both stand because they violate the prohibition

       against double jeopardy. The State concedes this issue, and we agree.


[25]   The evidence supporting both of these charges was the same—that Hardiman

       provided alcoholic beverages to C.M., a minor in his temporary care and

       custody.5 Consequently, the dual convictions violate the actual evidence test set

       forth by our Supreme Court. See Richardson v. State, 717 N.E.2d 32, 55 (Ind.




       5
        The other Class A misdemeanor contributing to the delinquency of a minor conviction was based on
       Hardiman’s provision of alcohol to K.H.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018            Page 13 of 15
       1999) (Sullivan, J., concurring) (observing that a defendant may not be

       convicted and punished for a crime that consists of the very same act as another

       crime for which he has been convicted and punished). Therefore, we reverse

       and remand with instructions to vacate Count IV, which is one of Hardiman’s

       convictions for Class A misdemeanor contributing to the delinquency of a

       minor. See Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct. App. 2012)

       (providing that a violation of double jeopardy principles requires that we vacate

       the conviction with the least severe penal consequences).


                         IV. Habitual Offender Enhancement
[26]   Finally, Hardiman argues that the trial court issued an improper sentencing

       order that listed the habitual offender enhancement as a separate and

       independent sentence rather than an enhancement to his Level 1 felony

       conviction. The hearing journal entry and sentencing order state that the trial

       court “hereby sentences the Defendant on the Habitual Count [to] 20 years

       executed at the IDOC consecutive to the other Counts.” Appellant’s App. Vol.

       IV p. 28, 112.


[27]   Hardiman is correct that an habitual offender finding does not constitute a

       separate crime, nor does it result in a separate sentence; instead, it is a sentence

       enhancement imposed on an underlying felony conviction. Dimmitt v. State, 25

       N.E.3d 203, 209 (Ind. Ct. App. 2015). Therefore, we remand with instructions

       to correct the sentencing order, chronological case summary, and abstract of

       judgment (if necessary) to reflect that the habitual offender adjudication is an


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 14 of 15
       enhancement of the sentence for Hardiman’s Level 1 felony conviction rather

       than an independent conviction and sentence.


[28]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to (1) vacate Count IV, which is one of Hardiman’s

       Class A misdemeanor convictions; and (2) correct the sentencing order,

       chronological case summary, and abstract of judgment to reflect that the

       habitual offender adjudication is an enhancement of the sentence for

       Hardiman’s Level 1 felony conviction rather than an independent conviction

       and sentence.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-317 | October 17, 2018   Page 15 of 15
