 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                 FILED
                                                              Jan 31 2013, 9:15 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                            CLERK
                                                                    of the supreme court,

 collateral estoppel, or the law of the case.                       court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

WILLIAM W. GOODEN                                    GREGORY F. ZOELLER
Mount Vernon, Indiana                                Attorney General of Indiana

                                                     GARY R. ROM
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

MICHAEL A. O’BRIEN,                                  )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 65A01-1205-CR-220
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                        APPEAL FROM THE POSEY CIRCUIT COURT
                           The Honorable James M. Redwine, Judge
                                Cause No. 65C01-1201-FB-20


                                          January 31, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Michael O’Brien appeals his conviction of Attempted Rape, 1 a class B felony,

presenting the following restated issue for review: Did the trial court err in prohibiting

O’Brien from eliciting certain evidence during cross-examination of the victim?

       We affirm.

       The facts favorable to the conviction are that on New Year’s Eve in 2011 and

continuing into early New Year’s Day morning, eighteen-year-old P.E. attended holiday

parties where she consumed alcohol and smoked marijuana. P.E. and her friend, Kristen

Germano, ended up at the Kelley residence at around 12:30 a.m. By the time P.E. and

Germano arrived, many people were already there, including O’Brien and his friend, Michael

Knepper. P.E. had brought with her a bottle of rum, which she drank until she became “fairly

intoxicated.” Transcript at 166. At some point, P.E. went into a “back room” of the house,

id. at 68, “laid down” on a sofa, and “passed out.” Id. at 166. At 1:45 or 2:00 a.m., Kourtney

Higdon, Knepper’s girlfriend and a friend of P.E., saw P.E. “lying on her right side sleeping”

on the sofa. Id. at 69. No one else was on the couch with P.E. at the time. At approximately

2:30 or 3 a.m., Reed Heathcott came to Higdon and told her that someone was having sex in

the back room. According to Higdon, Heathcott “was kind of freaked out.” Id. at 68.

Higdon grabbed another friend, Sally Harsh, and went to the back room.

       When they arrived, they saw P.E. “lying on her right side with [her] arm and her head

and her shoulder lying limp off the couch.” Id. at 70. O’Brien was lying on his right side on



1
  Ind. Code Ann. § 35-41-5-1 (West, Westlaw current through 2012 2nd Reg. Sess.) (attempt); Ind. Code
Ann. § 35-42-4-1 (West, Westlaw current through 2012 2nd Reg. Sess.) (rape).

                                                 2
the couch behind her, holding P.E. on the couch with his arm around her waist. P.E.

appeared to be asleep. Both P.E. and O’Brien were wearing shirts, but their pants and

underwear were down around their knees. Higdon observed that O’Brien was thrusting his

hips into P.E. Higdon loudly called P.E. by name two separate times, but got no response.

P.E.’s eyes remained shut and “[s]he was just dangling off of the couch.” Id. at 71. O’Brien,

however, looked directly at Higdon but did not stop thrusting. After a minute or so passed,

Higdon left to find Knepper. She returned a moment later with Knepper, who started yelling

at O’Brien and asking him what he was doing. O’Brien responded, “I am not doing

anything”, but kept thrusting against P.E. Id. at 84. Higdon continued attempting to rouse

P.E. by yelling at and shaking her. She finally succeeded and pulled P.E. up and off of the

couch. Higdon observed that O’Brien’s pants and underwear were pulled down and his penis

was erect. When P.E. got off of the couch and ran into the bathroom, O’Brien asked if he

was in trouble.

       As a result of this incident, O’Brien was charged with rape as a class B felony and

sexual battery as a class D felony. At the ensuing jury trial, upon the State’s motion, the trial

court dismissed the sexual battery charge at the conclusion of the State’s case-in-chief. With

respect to the remaining count, the jury found O’Brien guilty of the included offense of

attempted rape as a class B felony. The trial court sentenced O’Brien to eight years, with six

years executed and two years suspended to probation.

       Upon appeal, O’Brien contends the trial court abused its discretion in limiting his

ability to cross-examine P.E. “Trial courts have wide discretion to determine the scope of


                                               3
cross-examination, and a trial court’s decision as to the appropriate extent of cross-

examination will only be reversed for an abuse of discretion.” McCorker v. State, 797

N.E.2d 257, 266 (Ind. 2003). The Sixth Amendment to the United States Constitution

guarantees a defendant the right to confront witnesses against him. McCorker v. State, 797

N.E.2d 257 (citing Davis v. Alaska, 415 U.S. 308 (1974)). In state court proceedings, this

right is secured for defendants through the Fourteenth Amendment. Id. (citing Pointer v.

Texas, 380 U.S. 400 (1965)).

       Upon cross-examination, O’Brien’s counsel asked P.E. whether she had ever

pretended to be asleep in order to avoid having a conversation or a confrontation. The

State’s ensuing objection was sustained. At the conclusion of P.E.’s testimony, the jury was

excused and defense counsel submitted the following offer to prove concerning the

prohibited testimony:

       Q.     [P.E.], in the last … since January 1st, have you ever feigned being
              asleep to avoid a talk or a conversation or a confrontation with your
              mother?

       A.     Yeah.

       Q.     I am sorry?

       A.     (No audible response.)

       Q.     Are you looking to someone to help you answer that?

       A.     No.

       Q.     You seem to be looking out at the audience.

       A.     Like, your parent will sometime ask you, “Did you do your
              homework?”

                                             4
                     [Defense counsel]: Could I get closer, Your Honor?

      Q.     Yes, ma’am.

      A.     Sometimes your parents will ask you, “Did you do your homework?”
             “Did you do this, blah, blah, blah? Something completely irrelevant to
             this case, which is what that Twitter thing was, because I don’t post
             things like that on social media. Just so you know, but, yeah,
             sometimes you will go to sleep and you will rollover [sic] so they won’t
             ask you something.

      Q.     So, you have pretended to be asleep to avoid a confrontation or a
             conversation with your mother?

      A.     Yeah.

      Q.     In fact, didn’t you Tweet sometime in mid-January on your Twitter
             account, “that moment when you pretend you are asleep to avoid a real
             talk from your mother”. Then it says, “Success”. Did you Tweet that?

      A.     Yeah, but we were talking about it. Nothing that actually ….

      Q.     But, I mean, is that a Tweet that you made?

      A.     Yes, and I think it is completely irrelevant to any of this.

      Q.     Yeah, well that will be up to the Court to decide that.

      A.     Yeah.

      Q.     I am just asking, is that what you Tweeted?

      A.     Yeah.

      Q.     And that would have been in about mid-January of this year, would it
             not?

      A.     Yeah.

Transcript at 210-11.


                                             5
       According to O’Brien, the foregoing testimony was permissible pursuant to Rule 406

of the Indiana Rules of Evidence, which states, in relevant part: “Evidence of the habit of a

person … whether corroborated or not and regardless of the presence of eyewitnesses, is

relevant to prove that the conduct of the person … on a particular occasion was in conformity

with the habit or routine practice.” This court has noted that in the context of Rule 406,

“[h]abit evidence is generally defined as ‘[e]vidence of one’s regular response to a repeated

specific situation.’” Carlson v. Warren, 878 N.E.2d 844, 850 (Ind. Ct. App. 2007) (quoting

Black’s Law Dictionary 597 (8th ed. 2004)).

       O’Brien’s defense at trial was that P.E. consented to the sexual activity between them

on the night in question. According to O’Brien’s testimony, P.E. beckoned him to lay on the

couch with her and the two began to “make out.” Transcript at 291. They kissed and he

fondled her breasts “for awhile” before he asked her if she wanted to have sex. Id. at 293.

According to O’Brien, she answered, “Yes.” Id. at 294. O’Brien testified that she assisted

him in lowering her pants and underwear to her knees, after which he tried to insert his penis

into her vagina. He was not successful, however, because “[s]he wasn’t wet enough, and my

penis wasn’t hard enough either, it bent.” Id. at 296. All the while, according to O’Brien’s

testimony, the two continued to kiss. O’Brien testified that eventually he got frustrated and

“ended up passing out.” Id. They apparently lay thus until Heathcott discovered them and

summoned Higdon. At this point in O’Brien’s narrative, the events he described more or less

tracked the testimonies of Higdon, Knepper, Harsh, and P.E., with a few minor differences.

He testified that he woke up and saw Knepper and Higdon entering the room. Thinking it


                                              6
was “funny that Knep … was going to walk in on me hooking up with someone”, O’Brien

started thrusting his pelvis against P.E. He elaborated:

          The first reason I started thrusting was because I was kind of confused, and
          that there was … that she was so wet, and two, I was like, I passed out on her,
          and three, Knepper and Kourtney were like about to come in the room, so I
          continued to thrust, because I thought it was funny that they were catching …
          Knepper was walking in on me hooking up with someone.

Id. at 299. O’Brien also acknowledged saying “I am doing nothing” and “Am I in trouble?”

Id. at 300.

          To summarize, O’Brien did not deny that P.E. was asleep when Higdon and Knepper

entered the back room. 2 Indeed, O’Brien claimed that he awakened from sleep at just about

the time they entered the room. O’Brien also claimed that P.E. was awake when they began

making out and affirmatively consented when their encounter turned sexual. In light of this,

it is not clear to us how the prohibited testimony could have contributed to his defense. A

synthesis of the State’s and O’Brien’s testimonies simply does not permit an inference that

P.E. ever pretended to be asleep during a relevant time period, whatever the reason.

According to O’Brien’s testimony, P.E. affirmatively consented to sexual conduct with him

at the outset, which of course required that she be awake. And, according to all of the


2
    The following exchange occurred during O’Brien’s cross-examination:
          Xq.     Okay, so when you said, “Am I in trouble?” You just really wanted to know if you
                  were in trouble and someone was going to tell on you?

          A.      I was … I was wondering am I in trouble because I didn’t realize she was passed out
                  at the time when they walked in.

          Xq.     Okay. But now you know she was passed out.

          A.      Yeah, when Knepper said, “She is passed out.” Or one of them said, “She is passed
                  out.” And that is when I was like, “Oh, shit, she is passed out.” And I got up.

                                                      7
eyewitness testimony, including O’Brien’s, P.E. was passed out when Higdon and the others

entered the room and found O’Brien thrusting against P.E. from behind.

       Moreover, the Twitter comment that O’Brien sought to introduce addressed a situation

that is totally dissimilar from the one in the present case. At most, it reflected that P.E. may

have been inclined to occasionally feign sleep in order to avoid talking to her mother. Thus,

the “specific situation” to which P.E.’s Twitter comment applied was decidedly not the

scenario in which O’Brien sought to establish P.E.’s “regular response” under the auspices of

Evid. R. 406 via the prohibited testimony. See Carlson v. Warren, 878 N.E.2d 844. Thus,

Evid. R. 406 does not apply and the trial court did not abuse its discretion in excluding the

testimony.

       Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




                                               8
