MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                  FILED
regarded as precedent or cited before any                                    Jul 09 2018, 9:29 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

George F. Hauk, IV,                                      July 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         70A05-1710-CR-2437
        v.                                               Appeal from the Rush Circuit
                                                         Court
State of Indiana,                                        The Honorable David E. Northam,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         70C01-1705-F3-343



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 70A05-1710-CR-2437 | July 9, 2018                   Page 1 of 5
                                              Case Summary
[1]   George F. Hauk, IV, appeals his conviction for level 3 felony rape following a

      jury trial. Hauk argues that the court committed fundamental error in

      admitting evidence. Finding no fundamental error, we affirm.


                                  Facts and Procedural History
[2]   The evidence most favorable to the verdict shows that M.B. went to Hauk’s

      house in early April 2016. Hauk, his wife, another woman who lived on the

      property, and Hauk’s friend Aron Alexander were all there, and it was M.B.’s

      first time meeting everyone except Alexander. Shortly after M.B. arrived,

      everyone went upstairs, where she, Alexander, and Hauk played pool while the

      other two women sat and talked to each other.


[3]   After about thirty minutes, Hauk’s wife and the other woman said they were

      going to eat and went downstairs. Hauk told M.B. that he wanted to show her

      something in the attic, and along with Alexander, they made their way to the

      attic. Hauk walked over to M.B., started kissing her neck and face, and pulled

      down her pants. M.B. pushed Hauk off, but Alexander grabbed her arms and

      held them behind her. Hauk penetrated M.B.’s vagina with his fingers. M.B.

      yelled for the two men to get off her, which they did, pulled up her pants, went

      downstairs to collect her belongings, and went home.


[4]   The next morning, the following text message conversation took place between

      Alexander and M.B.:



      Court of Appeals of Indiana | Memorandum Decision 70A05-1710-CR-2437 | July 9, 2018   Page 2 of 5
              [Alexander]: Good morning beautiful.


              [M.B.]: Aaron I really honestly don't want to talk to you! I'll have
              you know, I'm taking this shit that happened the other day pretty
              hard and I will not continue to hold that on my shoulders. I
              don't deal with that kind of shit and I won't! I'm more valuable
              than you and your friend is giving me credit for! I'm taking this to
              another level now and I don't want to talk to you. I've told you
              now 3 times I don't want to talk to you and you continue to think
              something is going to change. It's not.


              [Alexander]: Ok I’m sorry I’ll leave you alone I apologize for my
              friend nd I’m actually not stayin with him anymore cause of that
              reason but have a nice day it was nice meeting you


              [M.B.]: I honestly should take it to the police


              [Alexander]: I done told him I was cause of wat he did cause that
              was fucked up and I told his wife she flipped nd I even tried to
              stop it.


              [M.B.]: No you didn’t you carried me by my hands to the closet.
              Don’t even fucking try that. I didn’t even know you or him. I’m
              fucking worth more than that. You’re both fucking low life’s


      State’s Ex. 1.

[5]   M.B. reported the incident to the police, and Hauk was charged with level 3

      felony rape and level 6 felony sexual assault. At trial, the court admitted the

      text message conversation into evidence over Hauk’s objections of insufficient

      foundation. Both M.B. and Alexander testified as witnesses for the State, and

      both acknowledged sending the text messages at issue, which eliminated Hauk's

      Court of Appeals of Indiana | Memorandum Decision 70A05-1710-CR-2437 | July 9, 2018   Page 3 of 5
      insufficient foundation concerns. Alexander acknowledged that he had also

      been charged with the rape and sexual battery of M.B., and that he agreed to

      testify in hopes of getting “a better deal.” Tr. Vol. 2 at 48. During

      deliberations, the only evidence the jury requested to review was the text

      messages, which the court denied. The jury found Hauk guilty of rape and

      sexual battery, and the trial court vacated the sexual battery charge. He was

      sentenced to seven years. This appeal ensued.


                                     Discussion and Decision
[6]   Hauk’s sole argument is that the trial court erred in admitting the text messages.

      He contends that the messages constitute inadmissible hearsay, but concedes

      that he did not object on hearsay grounds at trial. He therefore argues that the

      admission of the messages constituted fundamental error.


[7]   To qualify as fundamental error, “an error must be so prejudicial to the rights of

      the defendant as to make a fair trial impossible.” Mitchell v. State, 726 N.E.2d

      1228, 1236 (Ind. 2000). “[T]he error must constitute a blatant violation of basic

      principles, the harm or potential for harm must be substantial, and the resulting

      error must deny the defendant fundamental due process.” Id.


[8]   Hauk argues that the text messages constitute inadmissible hearsay, and the

      State does not disagree. He contends that the admission of the messages was

      prejudicial because it bolstered M.B.’s credibility with the jury, and a fair trial

      was effectively impossible. Hauk furthers this contention by suggesting that the

      messages played a pivotal role in bolstering M.B’s credibility with the jury

      Court of Appeals of Indiana | Memorandum Decision 70A05-1710-CR-2437 | July 9, 2018   Page 4 of 5
      because the jury requested to review the messages. The “[a]dmission of hearsay

      is not grounds for reversal where it is merely cumulative of other evidence

      admitted.” Wilkes v. State, 7 N.E.3d 402, 405 (Ind. Ct. App. 2014). Cumulative

      evidence that is consistent with the victim’s testimony and does not elaborate

      on the testimony is not grounds for reversal. Nunley v. State, 916 N.E.2d 712,

      720 (Ind. Ct. App. 2009). Here, M.B’s and Alexander’s testimony did not

      contradict the text messages, and the text messages did not elaborate on the

      testimony. Hauk has not shown that M.B. had any reason to fabricate her

      testimony, and the jury was made aware of Alexander’s motive for testifying. 1

      Hauk merely speculates as to the jury’s reason for requesting the text messages

      during deliberations. Because the messages were consistent with and

      cumulative of M.B.’s and Alexander’s testimony, no fundamental error

      occurred in the admission of those text messages. Accordingly, we affirm

      Hauk’s conviction.


[9]   Affirmed


      Bailey, J., and Brown, J., concur.




      1
       We reject Hauk’s request to consider evidence outside the record regarding Alexander’s post-trial guilty plea
      proceedings.

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