MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                        Dec 19 2019, 8:04 am
this Memorandum Decision shall not be
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
R. Brian Woodward                                       Curtis T. Hill, Jr.
Appellate Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                        Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Vincent E. Banks,                                       December 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1312
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Clarence D.
Appellee-Plaintiff,                                     Murray, Judge
                                                        Trial Court Cause No.
                                                        45G02-1703-F1-2



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019                Page 1 of 14
                               Case Summary and Issues
[1]   Following a jury trial, Vincent Banks was convicted of attempted murder, a

      Level 1 felony; auto theft and theft, both Level 6 felonies; and was found to be

      an habitual offender. Banks appeals, raising several issues which we consolidate

      and restate as: 1) whether the trial court abused its discretion in allowing a

      victim to testify to statements made by her doctor and admitting unredacted

      medical records into evidence, 2) whether the evidence is sufficient to support

      Banks’ attempted murder conviction, and 3) whether Banks’ auto theft and theft

      convictions violate the single larceny rule. We conclude that the trial court

      abused its discretion in allowing a victim to testify to statements made by her

      doctor, but we conclude such error was harmless. However, the trial court did

      not abuse its discretion in admitting the victim’s unredacted medical records

      into evidence. We also conclude that the evidence is sufficient to support

      Banks’ conviction of attempted murder, and Banks’ convictions for both auto

      theft and theft violated the single larceny rule. We therefore affirm in part,

      reverse in part, and remand with instructions.



                            Facts and Procedural History
[2]   The facts most favorable to the verdict are that Banks and Tiffany Young are

      cousins who grew up together. Banks would often help Young when her car

      needed repairs. In early 2017, Young drove her car to Banks’ home in Gary,

      Indiana, where he lived with his mother (and Young’s aunt), Fransis, and

      Fransis’ boyfriend, Jimmie Brown, and asked if he would repair the brakes on

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 2 of 14
      her car. After the brakes were fixed, Banks accompanied Young while she ran

      errands, including picking up $800.00 in cash. Young paid Banks $25.00 for the

      brake repair. Banks asked for additional money, and Young eventually gave

      him an additional $12.00.


[3]   Young drove Banks back to his house. While Young sat in her car smoking

      marijuana and playing with her phone, she noticed Banks constantly walking

      around the neighborhood and in and out of his house. Banks approached

      Young’s car several times and asked her to take him to a certain location, but

      Young refused because she did not want to drive while her car smelled like

      marijuana. At some point, Young dozed off. She was awakened by a “click[ing]

      noise” and turned to see Banks coming into the backseat of her car. Transcript,

      Volume 2 at 167. Banks put his arm over Young’s face. Young initially thought

      Banks was playing and said, “stop, Vincent.” Id. at 168. But then Banks told her

      to “shut the f**k up” and kept repeating that he was going to kill her as he cut

      her throat with what she thought was a razor. Id. at 167.


[4]   Young was able to escape through the passenger side of the car. While running

      to Banks’ house, Young noticed Banks driving away in her vehicle. Brown

      answered the door and Young informed Brown and Fransis that Banks had cut

      her throat and tried to kill her. Fransis called the police.


[5]   Officers arrived at the scene where Brown and Fransis informed them that

      Banks had cut Young. Young was transported to Methodist Hospital where it

      was determined that she suffered a “laceration to the anterior neck with


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 3 of 14
      penetration of the platysma.”1 Amended Confidential Jury Trial and Sentencing

      Exhibits (“Exhibits”), Volume 5 at 51. She sustained a cut from one side of her

      neck to the other and received approximately twenty stitches to her neck as a

      result of her injury.


[6]   Officer Isaiah Price of the Gary Police Department was dispatched to the

      hospital to gather supplemental information. While there, he received

      information from Young’s family members of the possible whereabouts of

      Young’s vehicle. Officer Price recovered Young’s vehicle in a parking lot of an

      apartment building. Located inside the vehicle was Young’s purse, her

      identification card, and a black jacket belonging to Banks.2 The officers did not

      locate the cash Young previously had in her purse. No weapon was recovered.


[7]   The State charged Banks with attempted murder, aggravated battery, battery by

      means of a deadly weapon, battery resulting in serious bodily injury, auto theft,

      and theft. At trial, Young repeatedly identified Banks as her attacker. Brown

      also testified that Young told him that Banks was the person who tried to kill

      her. See Tr., Vol. 3 at 8. Young’s unredacted medical records were admitted

      into evidence over Banks’ objection. The medical records stated that “[Young]




      1
        Platysma is defined as: “a broad thin layer of muscle that is situated on each side of the neck immediately
      under the superficial fascia belonging to the group of facial muscles, that is innervated by the facial nerve, and
      that draws the lower lip and the corner of the mouth to the side and down and when moved forcefully
      expands the neck and draws its skin upward.” “Platysma,” Merriam-Webster (2019), https://www.merriam-
      webster.com/medical/platysma (last visited November 6, 2019).)
      2
       At trial, the parties stipulated that the black jacket found in Youngs vehicle belonged to Banks. See Tr., Vol.
      2 at 63.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019                    Page 4 of 14
      got in an altercation with family and someone slit her neck with a razor blade.”

      Exhibits, Vol. 5 at 34. The trial court also admitted into evidence, over Banks’

      objection, Young’s testimony that Dr. Rutland, the doctor who stitched her

      wound, “said that if [Banks] would have cut me four inches more or if I would

      have moved while [Banks] was cutting me, . . . I wouldn’t be here[.] I would

      have died.” Tr., Vol. 2 at 171. Dr. Rutland did not testify at trial.


[8]   A jury found Banks guilty on all counts. The trial court merged the aggravated

      battery, battery by means of deadly force, and battery resulting in bodily injury

      convictions into Banks’ attempted murder conviction and entered judgments of

      conviction only for attempted murder, auto theft, and theft. The trial court

      sentenced Banks to thirty years for attempted murder, enhanced by six years for

      being an habitual offender, and two years each for auto theft and theft, to be

      served concurrently with each other but consecutively to the sentence for

      attempted murder. Banks therefore received an aggregate sentence of thirty-

      eight years to be served in the Indiana Department of Correction. Banks now

      appeals.



                                Discussion and Decision
                                  I. Admission of Evidence
                                     A. Standard of Review
[9]   Our standard of review in this area is well-settled: the admission of evidence

      falls within the sound discretion of the trial court, and we review the trial


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 5 of 14
       court’s decision for abuse of that discretion. Mack v. State, 23 N.E.3d 742, 750

       (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs when the trial

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

       circumstances before it. Morrison v. State, 824 N.E.2d 734, 739 (Ind. Ct. App.

       2005), trans. denied. But even if a trial court abuses its discretion by admitting

       challenged evidence, we will not reverse the judgment if the admission of

       evidence constituted harmless error. Sugg v. State, 991 N.E.2d 601, 607 (Ind. Ct.

       App. 2013), trans. denied. Error in the admission of evidence is harmless if it

       does not affect the substantial rights of the defendant. McVey v. State, 863

       N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied.


[10]   Banks contends that the trial court abused its discretion when it admitted

       certain hearsay evidence. “Hearsay” is defined as an out-of-court statement

       offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). It is

       inadmissible unless it meets one of the exceptions to the hearsay rule. Evid. R.

       802.


                               B. Doctor’s Statement to Young
[11]   At trial, when the State asked Young whether she learned anything about her

       injury during her follow up visit with Dr. Rutland, Banks objected on the

       grounds of hearsay. The trial court overruled the objection. Young then

       testified, “Dr. Rutland . . . said that if [Banks] would have cut me four inches

       more or if I would have moved while [Banks] was cutting me, . . . I wouldn’t be

       here, I would have died.” Tr., Vol. 2 at 171. Banks argues the trial court abused


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 6 of 14
       its discretion in allowing this testimony because it was a statement from

       Young’s physician and not Young herself. We agree with the State’s concession

       that Young’s testimony regarding Dr. Rutland’s statement to her was

       inadmissible hearsay and that no hearsay exception applies. 3


[12]   Having concluded the trial court erred in admitting inadmissible hearsay, we

       must address whether such error was harmless. We will not reverse an error in

       the admission of evidence if the error does not affect a substantial right of the

       defendant. See McVey, 863 N.E.2d at 440. “An error will be found harmless if its

       probable impact on the jury, in light of all the evidence in the case, is

       sufficiently minor that it did not affect the substantial rights of the party.”

       Simmons v. State, 760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002).


[13]   Banks argues that admission of the statement was not harmless because the jury

       had an opportunity to infer based on the location of Young’s injury that he

       committed attempted murder, rather than the crime of aggravated battery. He

       contends that because there is no other evidence but Young’s hearsay testimony

       that explains the severity of her injury, the “prejudicial impact of this hearsay

       testimony cannot be overstated.” Appellant’s Brief at 21. We reject this

       contention because the plain language of the statute does not require the State

       to prove the severity of the injury. Instead, it requires the State to prove beyond




       3
        The State briefly analyzes the exception for statements made for medical diagnosis or treatment, see Evid.
       R. 803(4), and correctly concludes it does not apply because the statement was made by a medical
       professional not to a medical professional. See Brief of Appellee at 15.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019                Page 7 of 14
       a reasonable doubt that Banks, acting with the specific intent to kill Young,

       took a substantial step toward doing so. See Ind. Code §§ 35-41-5-1(a), 35-42-1-

       1(1). Here, the State presented evidence that Banks cut Young’s throat with a

       sharp object while stating he was going to kill her. In support, the State

       presented pictures to the jury showing Young suffered a cut to her neck from

       one side to the other, requiring twenty stitches. This evidence alone shows that

       Banks took a substantial step with the required culpability toward killing

       Young. The State did not need to present medical testimony to the jury for it to

       find that using a sharp object to cut a person’s throat is a substantial step toward

       killing someone. Based on the totality of the evidence presented to it, the jury

       could have reasonably concluded that Banks intended to kill Young by cutting

       her throat while threatening to kill her. In light of the substantial independent

       evidence of Banks’ guilt, the probable impact of Dr. Rutland’s statement is

       sufficiently minor so as to not affect Banks’ substantial rights. See Rogers v.

       State, 897 N.E.2d 955, 961 (Ind. Ct. App. 2008). Therefore, the erroneous

       admission of Dr. Rutland’s statement to Young was harmless.


                     C. Banks’ Identification in Medical Records
[14]   Banks next argues that the trial court abused its discretion when it admitted into

       evidence Young’s unredacted medical records that contained inadmissible

       hearsay. Banks contends that Young’s unredacted medical records identified

       him as the attacker, which denied him a fair trial because he denied having cut

       Young. He acknowledges that statements made pursuant to medical treatment

       or diagnosis are admissible under Indiana Rule of Evidence Rule 803(4), but he

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 8 of 14
       claims that statements about the identity of the attacker who cause the injuries

       are not admissible under this exception. See Appellant’s Br. at 23.


[15]   Indiana Evidence Rule 803(4) provides that statements for the purposes of

       medical diagnosis or treatment are admissible if the statement:


               (A) is made by a person seeking medical diagnosis or treatment;


               (B) is made for – and is reasonably pertinent to – medical
               diagnosis or treatment; and


               (C) describes medical history; past or present symptoms, pain or
               sensations; their inception; or their general cause.


       Id. This hearsay exception is “based upon the belief that a declarant’s self-

       interest in seeking medical treatment renders it unlikely that the declarant

       would mislead the medical personnel person she wants to treat her.” Miles v.

       State, 777 N.E.2d 767, 771 (Ind. Ct. App. 2002).


[16]   Statements made for the purpose of medical diagnosis or treatment do not

       include statements that identify the perpetrator because the identity of the

       perpetrator is usually not necessary to provide effective medical care. Perry v.

       State, 956 N.E.2d 41, 49 (Ind. Ct. App. 2011). Such statements are typically

       inadmissible. Id.


[17]   We conclude that Young’s unredacted medical records did not contain

       inadmissible hearsay. The unredacted medical records did not disclose the

       identity of Banks; rather, the medical records read in pertinent part, “[Young]

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 9 of 14
       got in an altercation with family and someone slit her neck with a razor blade.”

       Exhibits, Vol. 5 at 34 (emphasis added). Certainly, there is nothing in that

       statement that establishes a clear connection between Banks and Young’s

       attacker.


[18]   Banks, however, argues that the statement in Young’s unredacted medical

       records identified her attacker as someone within her family and asserts that the

       jury only heard evidence that it was him (Young’s cousin). Although this may

       suggest to the jury that Banks was a possible attacker, it does so only in

       conjunction with independent evidence that Banks was responsible. Any error

       caused by the admission of evidence is harmless error for which we will not

       reverse a conviction if the erroneously admitted evidence was cumulative of

       other evidence properly admitted. McVey, 863 N.E.2d at 440. The statement

       which Banks argues was erroneously admitted was merely cumulative of other

       properly admitted evidence disclosing his identity. Young repeatedly testified

       that she recognized the voice of the person who attacked her as being Banks’

       voice. She further stated that when someone entered her car, “the first thing I

       said . . . was stop, Vincent.” Tr., Vol. 2 at 168. In addition, Brown testified that

       Young told him that Banks was the person who was trying to kill her. Given the

       evidence in the record pertaining to Banks’ identification, the statement in

       Young’s unredacted medical records was merely cumulative and even

       erroneous admission of the statement would not be reversible error. See McVey,

       863 N.E.2d at 440.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 10 of 14
[19]   In light of the other evidence in the record, the trial court’s decision to admit

       into evidence Dr. Rutland’s statement to Young and Young’s unredacted

       medical records does not warrant reversal of Banks’ attempted murder

       conviction.


                              II. Sufficiency of the Evidence
[20]   Banks contends that the State failed to present sufficient evidence to sustain his

       conviction for attempted murder. When reviewing the sufficiency of the

       evidence to support a conviction, “we neither reweigh the evidence nor judge

       the credibility of the witnesses[.]” Wright v. State, 828 N.E.2d 904, 906 (Ind.

       2005) (quotation omitted). We consider only the probative evidence and

       reasonable inferences supporting the verdict. Oster v. State, 992 N.E.2d 871, 875

       (Ind. Ct. App. 2013), trans. denied. We consider conflicting evidence in the light

       most favorable to the verdict and will affirm the conviction unless no

       reasonable factfinder could find that the elements of the crime were proven

       beyond a reasonable doubt. Id.


[21]   To convict Banks of attempted murder, the State was required to prove beyond

       a reasonable doubt that Banks, acting with specific intent to commit murder,

       engaged in an overt act that constituted a substantial step toward the

       commission of the crime. See Ind. Code §§ 35-41-5-1(a), 35-42-1-1(1). Our

       supreme court has stated that the use of a deadly weapon in a manner likely to

       cause death or great bodily harm is sufficient evidence from which the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 11 of 14
       factfinder can infer an intent to kill. Kiefer v. State, 761 N.E.2d 802, 805 (Ind.

       2002).


[22]   Banks denies that he was the person who committed the crime and claims that

       the evidence failed to show he had a specific intent to murder. Banks is simply

       asking this court to reweigh the evidence, which our standard of review does

       not allow. See Wright, 828 N.E.2d at 906. Instead, we consider only the

       probative evidence supporting the verdict and reasonable inferences arising

       therefrom. See Oster, 992 N.E.2d at 875.


[23]   Here, the evidence most favorable to the verdict shows that Banks entered

       Young’s car through the back door and put his arm over her. Young told Banks

       to stop. He repeatedly told her to shut up and stated, “I’m going to kill you.”

       Tr., Vol. 2 at 167. Pictures admitted into evidence showed a cut on Young’s

       neck from one side to the other resulting in twenty stitches in her neck. See

       Exhibits, Vol. 5 at 7-8. At trial, Young identified Banks as the person who cut

       her throat and threatened to kill her. Moreover, when Officer Price located

       Young’s vehicle, Banks’ black jacket was recovered inside, which would further

       suggest that Banks was the person who injured Young. Brown also testified that

       Young identified Banks as the person who tried to kill her. This is sufficient

       evidence from which a jury could reasonably infer that Banks was the person

       who wounded Young and that he acted with the specific intent to kill Young

       when he cut her throat. See, e.g., Miller v. State, 106 N.E.3d 1067, 1074-75 (Ind.

       Ct. App. 2018) (holding that the defendant acted with the specific intent to kill

       when he slit the victim’s throat with a knife, requiring the victim to receive forty

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 12 of 14
       stitches), trans. denied. We therefore conclude that the State presented sufficient

       evidence to support Banks’ conviction for attempted murder.


                                    III. Single Larceny Rule
[24]   Banks was charged with auto theft for stealing Young’s car and with theft for

       stealing her purse and the money therein. Banks argues that his convictions for

       both auto theft and theft violate the single larceny rule because both the car and

       the items in the car were taken at the same time, from the same place, and from

       the same person. The State concedes this point and suggests that we remand to

       the trial court to vacate Banks’ conviction for theft.


[25]   The single larceny rule has historically provided that “when several articles of

       property are taken at the same time, from the same place, belonging to the same

       person or to several persons there is but a single ‘larceny’, i.e. a single

       offense.” Raines v. State, 514 N.E.2d 298, 300 (Ind. 1987). “The rationale behind

       this rule is that the taking of several articles at the same time from the same

       place is pursuant to a single intent and design.” Id. “If only one offense is

       committed, there may be but one judgment and one sentence.” Id.


[26]   The single larceny rule is applicable to the facts of this case. Banks was

       convicted of and sentenced for both auto theft and theft. But the vehicle and the

       money were stolen from Young at the same time and place. We agree with the

       parties and conclude that the theft of the vehicle and the money, although

       separately charged, constituted one offense for which there may be but one

       judgment and one sentence. See, e.g., N.R.H. v. State, 25 N.E.3d 1280, 1282 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019   Page 13 of 14
       Ct. App. 2015) (concluding that the defendant’s conduct of stealing currency

       and inventory from the same store at the same cash register within a few

       minutes time amounted to a single offense and therefore, she could be

       convicted of only one count of theft). Therefore, we conclude that Banks’ auto

       theft and theft convictions violated the single larceny rule and we remand to the

       trial court to vacate one of the Level 6 convictions.4



                                                  Conclusion
[27]   The trial court did abuse its discretion in allowing Young to testify to

       statements made to her by her doctor, but we conclude that such error was

       harmless. The trial court did not abuse its discretion in admitting Young’s

       unredacted medical records. We also conclude that the evidence presented at

       trial is sufficient to support Banks’ conviction for attempted murder. We

       therefore affirm the trial court’s judgment with respect to those issues.

       However, Banks’ auto theft and theft convictions violate the single larceny rule

       and, therefore we remand this cause to the trial court with instructions to vacate

       one of the Level 6 convictions and amend the sentencing order accordingly.


[28]   Affirmed in part, reversed in part, and remanded.

       Mathias, J., and Pyle, J., concur.




       4
         Banks also contends these two convictions violate the prohibition against double jeopardy. In light of our
       conclusion that the single larceny rule precludes both convictions, we need not address the double jeopardy
       claim.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1312 | December 19, 2019                Page 14 of 14
