Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         Jul 31 2014, 9:33 am
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:

VICTORIA L. BAILEY                               GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MARK McCOY,                                      )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A05-1310-CR-531
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Grant W. Hawkins, Judge
                           Cause No. 49G05-1203-FA-18546


                                       July 31, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Mark McCoy (McCoy), appeals his conviction for Counts

II, XX and XXV, child molesting, Class A felonies, Ind. Code §§ 35-42-4-3(a)(1) and 35-

41-2-4; Count IX, criminal confinement, a Class C felony, I.C. § 35-42-3-3; Count XI,

intimidation, a Class C felony, I.C. § 35-45-2-1; and Count XXIII, child molesting, a

Class C felony, I.C. §§ 35-42-4-3(b) and 35-41-2-4.

       We affirm.
                                           ISSUE

   McCoy raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion by admitting certain testimony at trial.

                        FACTS AND PROCEDURAL HISTORY

       McCoy began dating Beverly Cooper (Cooper) on and off after the two met at a

bar in 2010. In January of 2011, Cooper and her nine-year-old son, C.C., moved in to

McCoy’s home in Indianapolis, Indiana, where two of McCoy’s three sons, eight-year-

old C.M. and ten-year-old D.M., also lived. Approximately one week after Cooper and

C.C. moved in, the three boys heard McCoy and Cooper having sex. C.M. and D.M.

went down the hall and peeked through a crack in the door of the room that McCoy and

Cooper shared to watch them having sex. C.C. was down the hall in the room that the

three boys shared, and C.M. and D.M. called him to come watch with them. At this

point, McCoy heard C.M. and D.M. giggle outside the door. McCoy then instructed all

three boys to come inside the room.

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      C.M. and D.M. went inside the room willingly. C.C. did not want to go inside the

room, so C.M. and D.M. grabbed him and drug him inside. One of the boys shut the door

behind C.C. and when C.C. attempted to leave, McCoy told him not to touch the door in a

demanding, angry voice. When McCoy asked the boys why they were peeking through

the door, C.M. and D.M. said they were interested in what McCoy and Cooper were

doing. McCoy then instructed the boys to undress, and C.M. and D.M. disrobed. C.C.

did not undress and said that he knew it was wrong. McCoy demanded that C.C. undress.

C.C. felt compelled to follow the instruction because of the stern voice McCoy used and

because he noticed that McCoy’s handgun was right next to him on the dresser.

      After disrobing, C.M. and D.M. asked McCoy what they should do next. McCoy

pinned Cooper face-down on the bed and instructed the boys to reenact what they had

observed through the door. C.M. attempted to have anal intercourse with Cooper while

McCoy held her down. D.M. subsequently took his turn and attempted to have anal

intercourse with Cooper. C.M. and D.M. then dragged C.C. onto the bed and told him to

try. C.C. resisted, but C.M. and D.M. pushed his pelvis down and his penis touched

Cooper’s buttocks but did not penetrate her anus. McCoy then flipped Cooper over so

that she was lying on her back.

      While McCoy held Cooper down on her back, he allowed C.M. to attempt to have

vaginal intercourse with Cooper as she squirmed to attempt to prevent it. C.M. then

moved near Cooper’s head and placed his penis in her mouth before she could turn her

head away. D.M. then attempted to do the same. During this time, C.C. had put his

                                           3
clothes back on. McCoy again demanded C.C. to undress and try to have vaginal sexual

intercourse with Cooper—his mother. C.M. and D.M. pushed C.C. onto Cooper, causing

his penis to touch her, but it did not touch her vagina. C.C. subsequently rolled off the

bed, but C.M. and D.M. pushed him back onto the bed and climbed onto the bed too.

C.M. touched Cooper’s breasts, followed by D.M doing the same. McCoy then allowed

Cooper to get up, and McCoy left the room. After these events, C.C. was upset and

Cooper consoled him but also told him not to tell anyone what had happened.

      At some later point, C.C., C.M., and D.M. were in their room watching a

pornographic video that McCoy had given them. Cooper walked into the room and

turned the video off. She told them that they were not allowed to watch those types of

videos and discussed the reasons why. During this discussion, McCoy walked into the

room and grabbed Cooper; he then pinned her to the bed and pulled her pants down. He

instructed C.C. to put his mouth on her vagina, so C.C. touched her vagina with his chin.

After these events, McCoy, with his hand on his gun, told C.C., “If you tell anyone I’ll

shoot you.” (Transcript p. 73).

      Two weeks after Cooper and C.C. moved in, McCoy moved out of the

Indianapolis house.    In September of 2011, McCoy, D.M., and C.M. moved to

Washington, in Daviess County, Indiana, to live with McCoy’s mother and stepfather.

While staying there, McCoy told his stepfather, Jeffrey Scheid (Scheid), that Cooper

“used to let [C.M. and D.M.] mess around with her.” (Tr. p. 407). As a result of this and

other statements, on January 25, 2012, Scheid contacted the Daviess County Sheriff’s

                                           4
Department, and an investigation ensued.        The supervisor of the Daviess County

Department of Child Services (DCS), Briley Terrell (Terrell), sat in on Scheid’s interview

and subsequently went to Scheid’s house. After getting permission from McCoy, Terrell

and a Daviess County Detective took C.M. and D.M. to the police department for

interviews. There, C.M. told Terrell that McCoy would ask him to “use a rubber thing on

his ex-girlfriend, [Cooper].” (Tr. p. 363). D.M. told Terrell that McCoy asked D.M.,

C.M., and C.C. “to play with [Cooper’s] boobs and vagina.” (Tr. p. 364). Terrell

determined that C.M. and D.M. should be removed from McCoy’s custody. C.M. and

D.M. were placed in a foster home and eventually, the maternal grandparents of C.M. and

D.M. acquired a guardianship over the boys. Terrell later turned the case over to Kristi

Wilmes (Wilmes) of the Daviess County DCS, who served as the ongoing case manager.

      On February 3, 2012, the Daviess County DCS contacted the Marion County

DCS, and Jessica Price (Price) initiated an investigation in Marion County. On February

7, 2012, Price went to C.C.’s school and asked to speak with him. When she brought up

McCoy’s name, “[C.C.’s] whole posture closed down, he crossed his arms, he had red

hives all over, he started crying, [and] he was starting to get really fidgety. . . [and]

uncomfortable.” (Tr. p. 252). C.C. told Price that McCoy was a “bad man” and briefly

explained “why he felt that way.” (Tr. p. 253). Price subsequently ended the interview

with C.C. On March 22, 2012, Detective Christopher Lawrence of the Indianapolis

Metropolitan Police Department interviewed Cooper about the events, and she confirmed



                                            5
that the events had occurred. That same day, the State filed an Information charging

McCoy with twenty-eight Counts.

       Around May 9, 2012, Wilmes met with C.M. and D.M. separately and went

through each of the twenty-eight charges, one by one. During his interview, D.M.

confirmed that all three boys had been instructed to engage in the various acts with

Cooper.

       On September 30 and October 1, 2013, a bench trial was conducted, during which

McCoy acted pro se. At trial, Wilmes testified regarding what C.M. and D.M. had shared

with her during their interviews. At the close of evidence, the trial court found McCoy

guilty of Counts II, XX, and XV, child molesting, Class A felonies, I.C. §§ 35-42-4-3 and

35-41-2-4; Count IX, criminal confinement, a Class C felony, I.C. § 35-42-3-3; Count XI,

intimidation, a Class C felony, I.C. § 35-45-2-1; and Count XXIII, child molesting, a

Class C felony, I.C. §§ 35-42-4-3 and 35-41-2-4. A sentencing hearing was held on

October 17, 2013, and McCoy received an aggregate sentence of ninety-three years.

       McCoy now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       On appeal, McCoy is only challenging the three Counts involving D.M.—Counts

XX, XXIII, and XXV. McCoy argues that the trial court abused its discretion when it

admitted certain testimony into evidence at trial. Specifically, he maintains that the trial

court should have excluded Wilmes’ testimony that D.M. told her that the allegations

against McCoy were true and that D.M. confirmed the substance of each charged Count

                                             6
separately. When Wilmes testified about D.M.’s statements during trial, McCoy did not

object. McCoy now disputes the admission of the testimony on the basis that it was

inadmissible hearsay evidence under Indiana Evidence Rule 801(c).

       The admission or exclusion of evidence is within the sound discretion of the trial

court “and is afforded great deference on appeal.” Eastwood v. State, 984 N.E.2d 637,

640 (Ind. Ct. App. 2012), trans. denied. “An abuse of discretion occurs when the trial

court’s decision is clearly erroneous and against the logic and effect of the facts and

circumstances before it or it misinterprets the law.” Id. “Any error caused by the

admission of evidence is harmless error for which we will not reverse . . . if the

erroneously admitted evidence was cumulative of other evidence appropriately admitted.”

Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004).

       Indiana Evidence Rule 801(c) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Pursuant to Indiana Evidence Rules 802 and 803,

hearsay is not admissible unless it fits within some exception to the hearsay rule. Failing

to object to the admission of evidence “at trial waives any claim of error and allows

otherwise inadmissible hearsay evidence to be considered for substantive purposes.”

Johnson v. State, 734 N.E.2d 530 (Ind. 2000).          However, a claim “waived by a

defendant’s failure to raise a contemporaneous objection can be reviewed on appeal if the

reviewing court determines that a fundamental error occurred. Brown v. State, 929

N.E.2d 204, 207 (Ind. 2010).       Because McCoy failed to make a contemporaneous

                                             7
objection at trial, he must now show on appeal that the admission of the testimony was

fundamental error.

       The fundamental error exception is extremely narrow and is applicable only where

an “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.”

Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error “must either ‘make a fair

trial impossible’ or constitute ‘clearly blatant violations of basic and elementary

principles of due process.’” Brown, 929 N.E.2d at 207 (Ind. 2010) (quoting Clark v.

State, 915 N.E.2d 126, 131 (Ind. 2009)), reh’g denied. The mere fact that error has

occurred and that it will prejudice a defendant is not sufficient to invoke the fundamental

error exception; “[r]ather, the error must be one such that the defendant could not

possibly have had a fair trial or such that this court is left with the conviction that the

verdict . . . is clearly wrong or of such dubious validity that justice cannot permit it to

stand.” Stewart v. State, 567 N.E.2d 171, 174 (Ind. Ct. App. 1991), trans. denied.

       McCoy’s entire argument on appeal is based on his inaccurate assertion that the

trial court’s judgment for Counts XX, XXIII, and XV was based solely on Wilmes’

testimony regarding the statements that D.M. made to her.              McCoy argues that

fundamental error occurred because inadmissible hearsay evidence was admitted and

relied on by the trial court and that it was the only evidence presented at trial that is

favorable to the judgment of the court; however, there was, in fact, additional evidence

provided by the State and relied upon by the trial court. At trial, the court explained,

                                             8
“[D.M.], however, couldn’t remember anything happening. Didn’t say anything – didn’t

say it didn’t happen, he just said he couldn’t remember but said he told . . . Wilmes the

truth.   I looked at [D.M.]’s statement, I looked at [C.C.]’s statement and found a

combination of [C]ounts, I believe, where I feel comfortable convicting.” (Tr. p. 498).

Thus, the trial court clearly considered D.M.’s testimony that he had been truthful with

Wilmes, along with Wilmes’ testimony, and the evidence provided by C.C. Collectively,

this evidence led the trial court to its guilty verdict for Counts XX, XXIII, and XXV.

         Furthermore, we note that the State provided ample evidence in addition to

Wilmes’ testimony about D.M.’s statements to prove Counts XX, XXIII, and XXV,

including the unchallenged testimony of both C.C. and Cooper. During the trial, C.C.

testified that D.M.’s “[front private part] was touching [Cooper’s] front private part but

she was moving trying not to let him.”1 (Tr. p. 55). He also stated that D.M. was

“moving his waist trying to . . . stick his front private in [Cooper]’s back private” as

Cooper “move[d] around trying not to let him,” and McCoy was “holding [Cooper]’s

hands.” (Tr. p. 42-43). C.C. also testified that D.M. touched Cooper’s “boobs [but] not

for very long.” (Tr. p. 60). In addition, Cooper testified that McCoy “[g]rabbed her arms

. . . below the shoulders and then had pulled [her] backwards onto her back.” (Tr. pp.

159-60). He then “told the boys to put their penis[es] in [her] mouth.” (Tr. p. 160).

According to Cooper, “[D.M.] put his penis on [her] face . . . [i]t might have hit [her] lips


1
 Eleven-year-old C.C. testified that a “wiener” is the “private part” that is at “[t]he front around the
waist” and is used for “[g]oing to the bathroom.” (Tr. p. 38).

                                                      9
but not like actually all the way in.” (Tr. p. 163). Thus, the State presented the trial court

with more than just Wilmes’ hearsay testimony. Where evidence is merely cumulative,

there is no fundamental error. Wilkes v. State, 7 N.E.3d 402 (Ind. Ct. App. 2014).

       Because the hearsay testimony of Wilmes was sufficiently corroborated by other

evidence, we cannot say that its admission made a fair trial impossible, nor was it a

blatant violation of the fundamental due process principle that a crime must be proven

beyond a reasonable doubt. See Delarosa v. State, 938 N.E.2d 690, 695 (Ind. 2010).

Accordingly, we find that any error in the admission of Wilmes’ testimony based on

inadmissible hearsay is harmless—not fundamental. See Meadows v. State, 785 N.E.2d

1112, 1122 (Ind. Ct. App. 2003), trans. denied.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

by admitting and relying on Wilmes’ testimony at trial.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




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