Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                               Feb 04 2014, 9:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                             GREGORY F. ZOELLER
Appellate Public Defender                         Attorney General of Indiana
Crown Point, Indiana
                                                  RYAN D. JOHANNINGSMEIER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RAMON SANTANA, JR.,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 45A03-1306-CR-213
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Diane Ross Boswell, Judge
                              Cause No. 45G03-1110-FB-91



                                       February 4, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Ramon Santana, Jr. appeals his convictions for rape, as a Class B felony, and

criminal deviate conduct, as a Class B felony, following a jury trial. Santana raises a

single issue for our review, which we restate as whether the trial court committed

fundamental error when it prohibited Santana from introducing evidence of one of his

victim’s prior sexual encounters. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On May 16, 2011, L.C. fell asleep at a friend’s house after several hours of

drinking. At about 3:00 a.m., she awoke to find Santana raping her. L.C. recognized

Santana because she had known him for “a couple years,” he had a beard that she

recognized, and she recognized his voice when he spoke to her while he raped her.

Transcript at 65, 104. Santana penetrated L.C.’s vagina and anus. L.C. “passed out”

during the assault. Id. at 81. When she awoke, she alerted her friend to what had

happened and called police and an ambulance. L.C. immediately identified Santana to

police as the perpetrator.

       On September 15, the State charged Santana with rape, as a Class B felony, and

criminal deviate conduct, as a Class B felony. On January 11, 2013, the court set the date

of Santana’s jury trial for April 22, 2013. On April 22, Santana for the first time filed a

motion to admit evidence of L.C.’s past sexual conduct. Appellant’s App. at 33. The

trial court denied Santana’s motion and granted the State’s corresponding request to

exclude L.C.’s past sexual conduct. The court then held Santana’s jury trial, at which




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L.C. testified. The jury found Santana guilty as charged, and the trial court entered its

judgment of conviction and sentence accordingly. This appeal ensued.

                             DISCUSSION AND DECISION

       On appeal, Santana asserts that the trial court erred when it prohibited him from

introducing evidence of L.C.’s past sexual conduct. But Santana has not preserved this

issue for our review under Indiana Evidence Rule 412. Evidence Rule 412 “is intended

to prevent the victim from being put on trial, to protect the victim against surprise,

harassment, and unnecessary invasion of privacy, and, importantly, to remove obstacles

to reporting sex crimes.” Sallee v. State, 785 N.E.2d 645, 650 (Ind. Ct. App. 2003)

(quotation omitted), trans. denied. Pursuant to Evidence Rule 412(c), evidence of a

victim’s sexual behavior is admissible only if the party that intends to offer that evidence

files a motion with the trial court “at least ten (10) days before trial unless the court, for

good cause, sets a different time.” There is no question that Santana did not file his

motion with the trial court at least ten days before trial and that the trial court did not set a

different time for good cause shown. As such, Santana has not preserved this issue for

our review. Id. at 651.

       Although Santana recognizes in his appellant’s brief that the fundamental error

doctrine applies here, see Appellant’s Br. at 10, nonetheless, in his reply brief Santana

asserts that he did preserve this issue because the trial court still had the chance to hear

his request before the jury was empaneled and because the State did not object to the trial

court based on his otherwise untimely request. But we have rejected this argument




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before. In Graham v. State, 736 N.E.2d 822, 826 (Ind. Ct. App. 2000), trans. denied, we

stated that,

       [a]lthough [the defendant’s failure to comply with the procedural mandate
       of Evidence Rule 412] was neither raised by the State at trial or on appeal
       nor formed the basis of the trial court’s decision to exclude the evidence,
       we find that [his] procedural error is fatal to his attempt to introduce
       evidence [under the rule]. To hold otherwise would allow circumvention of
       the rule itself.

See also Stephens v. State, 544 N.E.2d 137, 139 (Ind. 1989) (rejecting the defendant’s

assertion that there should be an exception to the ten-day requirement under the Rape

Shield Statute that permits “res gestae statements” because “approval of such an

exception would open the door for evading the statute entirely”).          And we are not

persuaded by Santana’s attempt to distinguish Graham.           As in Graham, Santana’s

assertion that he preserved this issue for our review would allow criminal defendants to

circumvent Evidence Rule 412(c) altogether and would undermine the Rule’s purpose of

protecting the victim in an alleged sex crime. See Sallee, 785 N.E.2d at 650. We will not

allow that result. Santana has not preserved this issue for our review.

       Although Santana has failed to preserve this issue for our review, we may still

consider his argument under the fundamental error doctrine. As our Supreme Court has

explained:

       A claim that has been waived . . . can be reviewed on appeal if the
       reviewing court determines that a fundamental error occurred. The
       fundamental error exception is “extremely narrow, and applies 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.” The error claimed must either “make
       a fair trial impossible” or constitute “clearly blatant violations of basic and



                                             4
       elementary principles of due process.” This exception is available only in
       “egregious circumstances.”

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citations omitted).

       According to Santana, the trial court denied him his constitutional rights to present

evidence and confront the witness when it prohibited him from introducing evidence that

L.C. had engaged another man in oral sex the same night and in the same home in which

Santana later raped her. The trial court did not commit fundamental error, if any error,

when it prohibited Santana from introducing this evidence. Santana’s bald assertion to

the contrary, nothing about L.C.’s oral sex with another man was relevant to her

unequivocal identification of Santana or the evidence regarding Santana’s vaginal and

anal penetration of L.C. We reject Santana’s argument on appeal and hold that the trial

court did not commit fundamental error when it did the same. Santana’s convictions for

rape, as a Class B felony, and criminal deviate conduct, as a Class B felony, are affirmed.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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