MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                Dec 30 2015, 5:47 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General of Indiana
Plainfield, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Isaiah H. Rogers,                                        December 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1505-CR-410
                                                         Appeal from the Vigo Superior
        v.                                               Court.
                                                         The Honorable David R. Bolk,
State of Indiana,                                        Judge.
                                                         Cause No. 84D03-1501-F1-227
Appellee-Plaintiff.




Shepard, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-410 | December 30, 2015       Page 1 of 6
                                                                                     1
[1]   Isaiah H. Rogers appeals his convictions for one count of rape as a Level 1
                                                  2
      felony and one of domestic battery as a Class A misdemeanor. We affirm.


                                                      Issue
[2]   The sole issue presented by this appeal is whether the trial court committed

      fundamental error by requiring the victim, S.R., to testify against Rogers, her

      husband.


                                   Facts and Procedural History
[3]   The couple fell to arguing at their residence during the evening hours of

      December 4, 2014. S.R. was about to shower when Rogers confronted her,

      demanding to know where she had been for the past three days, suspecting that

      she had been unfaithful. According to S.R., in the past, if either of them

      thought the other might have been unfaithful, that person could request to

      examine and smell the genitals of the other for evidence of infidelity. Rogers

      made such a request, but the two began to get physical. They moved among

      various rooms with Rogers throwing punches at S.R.’s head and upper chest

      area. With one of those swings, Rogers pushed S.R. down, and she suffered a

      broken finger.




      1
          Ind. Code § 35-42-4-1 (2014).
      2
          Ind. Code § 35-42-2-1.3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-410 | December 30, 2015   Page 2 of 6
[4]   At trial, S.R. claimed that everything was moving too fast to remember. She

      did recall being on the couch and, after rising, having blood flowing out of her

      genitals onto her legs. S.R. previously had problems with her I.U.D., but had

      not bled that day prior to the altercation.


[5]   S.R. went to the emergency room, where she was observed to be hysterical,

      crying, screaming in pain, her sweatpants saturated in blood on the back side.

      Dr. Rabina Rai, the first physician to examine S.R., noted that she was battered

      and bleeding profusely. Three of her fingers were swollen and the middle finger

      was fractured. Lacerations on both sides of her vagina cut almost to the muscle

      layer and extended the complete length of the vaginal canal. S.R. told Dr. Rai

      and Nurse Jenna Hardiman that Rogers had used his finger to penetrate her

      several times and caused those injuries. Neither Rai nor Hardiman believed

      that an I.U.D. could have caused S.R.’s injuries, but both believed fingers could

      do so.


[6]   Given the life-threatening nature of S.R.’s injuries, she was referred to Dr.

      Kathleen Couthino, an obstetrician-gynecologist. S.R. recounted for Dr.

      Couthino what Rogers had done to her. She said that she could not be sure but

      that Rogers might have inserted an object into her vagina. Dr. Couthino

      believed that a great deal of force was used to cause the injuries. S.R. declined

      a rape kit exam, but underwent surgery to repair her vaginal walls.


[7]   The State filed various charges against Rogers. While he was in jail, he made a

      telephone call, which was recorded, during which he admitted he had stuck his


      Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-410 | December 30, 2015   Page 3 of 6
       fingers inside S.R. Rogers also testified at trial and agreed that his fingernails

       were long and that they were the same length at the time of the alleged offenses.


[8]    A jury found Rogers guilty on multiple counts, and the trial court entered

       judgments of conviction against Rogers for rape and domestic battery. Rogers

       received concurrent executed sentences of thirty years for rape, a Level 1 felony,

       and one year for domestic battery, a Class A misdemeanor.


                                    Discussion and Decision
[9]    The Code provides that spouses shall not be required to testify regarding

       communications made to each other. Ind. Code § 34-46-3-1(4) (1998). S.R.

       gave testimony in a discovery deposition consistent with the criminal

       allegations against Rogers, but by the time of trial sought to have those charges

       dropped. Rogers appeals contending that the trial court committed

       fundamental error by instructing S.R. to testify after she had invoked the

       privilege. He frames the issue that way because when the State asked

       permission to treat S.R. as a hostile witness, Rogers stated he did not object.


[10]   After examining the unique position of the marital privilege among other

       privileged communications, our Supreme Court has indicated the privilege

       prohibits “requiring a spouse to testify as to confidential marital

       communications, but does not bar the spouse from testifying if the spouse

       chooses to do so.” Glover v. State, 836 N.E.2d 414, 422 (Ind. 2005) (emphasis

       added).



       Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-410 | December 30, 2015   Page 4 of 6
[11]   Without reference to any marital communications, confidential or not, the

       record contains abundant evidence to sustain the conviction. Like a hysterical

       S.R. reporting to the emergency room bleeding profusely from her vaginal area,

       telling a treating nurse and a physician, and an OB-GYN, that Rogers had stuck

       his fingers inside her vaginal area causing her pain.


[12]   The jury also heard S.R. had not previously experienced difficulties with her

       birth control that day and had not bled until after Rogers’ actions. The medical

       personnel were convinced that while an I.U.D. could not cause the damage to

       S.R.’s vagina, fingers could have. Emergency surgery was required to repair

       S.R.’s vaginal walls. Couthino believed that much force had been used to cause

       the type of injuries S.R. suffered.


[13]   And then there was Rogers’s telephone communication giving detail about his

       attack.


[14]   S.R. also told the nurse and doctors that Rogers had hit her in the head and

       upper torso region. Three of S.R.’s fingers were swollen and her middle finger

       was fractured after he knocked her down.


[15]   To prove domestic battery, the State was required to establish beyond a

       reasonable doubt that Rogers knowingly or intentionally touched S.R., his

       spouse, in a rude, insolent, or angry manner resulting in bodily injury. See Ind.

       Code § 35-42-2-1.3(1). As for rape, the State was required to prove that Rogers

       penetrated S.R.’s vagina with his finger or another object resulting in serious

       bodily injury to S.R. See Ind. Code § 35-42-4-1(b)(3). Sufficient evidence

       Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-410 | December 30, 2015   Page 5 of 6
       exclusive of marital communications exists in the record to support Rogers’s

       convictions. And, indeed, most of what S.R. said at trial was not actually

       confidential marital communication as described by Glover.


[16]   We find no fundamental error here in the trial court’s decision to require S.R. to

       testify at trial after asserting the privilege.


                                                Conclusion
[17]   In light of the foregoing, we affirm the trial court’s judgment.


[18]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1505-CR-410 | December 30, 2015   Page 6 of 6
