MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Aug 21 2020, 9:01 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                       Curtis T. Hill, Jr.
Montgomery Law Office                                    Attorney General of Indiana
Lafayette, Indiana                                       Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Blake Green,                                             August 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2791
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1810-F1-12



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020                   Page 1 of 16
[1]   Blake Green appeals his convictions for rape, burglary, and criminal

      confinement. Green argues the trial court improperly admitted certain

      testimony and the evidence is insufficient to show he committed the offenses

      while armed with a deadly weapon. The State claims the court erred in

      reducing the level of felony for Green’s burglary and criminal confinement

      convictions. We affirm in part, reverse in part, and remand.


                                        Facts and Procedural History

[2]   In September 2018, N.G. lived with her two children in a house in Clarks Hill.

      At some point after 11:00 p.m. on September 11, 2018, N.G. and her children

      watched a movie in the living room, and the children fell asleep. N.G. double-

      checked that the door was locked and fell asleep between midnight and 1:00

      a.m. N.G. woke up, opened her eyes, and saw Green in her living room. 1 She

      observed Green staring at her and holding a silver semi-automatic handgun.

      The television was on in the living room and the lights were off. Green ordered

      N.G. to “get up and go” and not to make any noise. Transcript Volume II at

      177. He pushed her through the hallway and into her daughter’s bedroom.

      N.G. noticed the gun was closer to her and saw it had black on it as well as

      silver. Green ripped N.G.’s tank top off of her, removed her pants and

      underwear, pushed her onto the bed, and forced her to suck on his penis. He

      then pushed her backwards, climbed on top of her, and shoved his penis in her




      1
       N.G. testified that she had never spoken with or spent time with Green but that she had seen him in passing
      around Clarks Hill.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020                 Page 2 of 16
      mouth. He “was forcing it . . . so hard that [she] couldn’t breathe,” she tried to

      push him off, and he “just force[d] it back and said ‘No.’” Id. at 181. Green

      held the gun in his hand and pointed it at N.G.’s temple. After a few minutes,

      he “pulled it out and stuck it inside of [her] vagina.” Id. While Green was

      having sexual intercourse with her, N.G. “begged him” not to ejaculate “inside

      of [her] because [she] said [she] already lost a child due to a piece of crap,” and

      Green “got angry and started to choke [her] and said ‘Are you calling me a

      piece of crap.’” Id. at 184. He kept saying “[t]ell me you love me.” Id. Green

      ejaculated while having sexual intercourse with N.G. According to N.G., there

      was a point when he placed the gun down on the bed, it fell between the bed

      and the wall, he picked it up again “after he was finished,” and “other than

      that, he had it in his hands.” Id. at 185.


[3]   N.G. told Green she needed to use the restroom, and he walked her to the

      bathroom and did not allow her to turn on the lights. Green and N.G. returned

      to the bedroom where he tried to have intercourse with her again but was

      unable maintain an erection. Green told N.G. that he had been watching her

      and said, “I’m sorry it had to happen this way,” “if I could have just met you

      up at Clarks Hill Park and told you who you were, you’d want to be with me,”

      and “maybe since you haven’t seen my face and only heard my voice, maybe []

      that’s still a possibility.” Id. at 184.


[4]   N.G. told Green she wanted to take a bath, and he took her to the bathroom

      but did not let her turn on the lights. While she was sitting in the tub, Green

      ordered her to stand and face the wall, he turned on the light and stood behind

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 3 of 16
      her, she observed a tattoo on his leg, he had intercourse with her again, she

      begged him not to ejaculate inside her, and he ejaculated on her back and butt.

      N.G. sat back down in the tub. Green said “reach your fingers way up in there

      and try to scrape out anything that’s in there.” Id. at 186. Green ordered N.G.

      to count to one hundred and to turn around. He told her that, if she went to the

      police, he would kill her brother and father and return to kill her. After Green

      left, N.G. contacted her manager, brother, and father, and her father’s girlfriend

      contacted law enforcement.


[5]   N.G. went to the hospital, where Cathy Clark, a sexual assault nurse examiner,

      (“Nurse Clark”) performed a sexual assault examination. As part of the

      examination, N.G. described the attack to Nurse Clark. DNA testing was

      performed on swabs obtained during N.G.’s examination and from Green. The

      testing revealed that the DNA profile with respect to each of the

      vaginal/cervical swabs, anal swabs, and internal genital swabs was “at least one

      trillion times more likely if it originated from [N.G.] and [Green] than if it

      originated from [N.G.] and an unknown, unrelated individual” and that “[t]his

      analysis provides very strong support for the proposition that [Green] is a

      contributor to the DNA profile.” State’s Exhibit 45.


[6]   On October 17, 2018, the State charged Green with: Count I, rape by using or

      threatening the use of deadly force or while armed with a deadly weapon as a

      level 1 felony; Count II, burglary while armed with a deadly weapon as a level

      2 felony; Count III, criminal confinement while armed with a deadly weapon as



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 4 of 16
      a level 3 felony; Count IV, strangulation as a level 6 felony; and Count V,

      residential entry as a level 6 felony.


[7]   During the jury trial, N.G. testified to the foregoing. The prosecutor asked

      Nurse Clark to summarize N.G.’s statement about the events leading to her

      hospital visit, and Green’s defense counsel objected on hearsay grounds. The

      prosecutor argued the testimony was admissible under Ind. Evidence Rule

      803(4). Defense counsel argued that anything beyond diagnosis and treatment

      was not admissible under Ind. Evidence Rule 803(4) and the testimony was

      repetitive of N.G.’s testimony. The court overruled the objection. Nurse Clark

      testified:

              So [N.G.] said she was on her couch asleep. Her two children were also
              asleep on the floor. And she was awakened by somebody yelling at her
              very - with profanity, to get up, and also he had a gun in his hand. He
              then walked her back down the hall into her daughter’s bedroom. And
              on the way into the daughter’s bedroom, she reported that he ripped off
              her white tank top that also had sequins on it. And then once he got her
              into the daughter’s bedroom, he took off her jogging pants and her
              underwear, and he then sexually assaulted her by putting his penis in
              her mouth and also in her vagina, and also trying to get his penis in his -
              in her anus, as well. And he did this more than once.

              He also - after a while, he then took her down the hall and had her get
              into a tub of water because he said, I want you to wipe off any evidence
              of me. And then she got into the water and cleaned herself all off. And
              then he also sexually assaulted her in the bathroom with putting his
              penis in her mouth, and again, in her vagina in the bathroom, in the
              bathtub, then pushed her back down in the water and made her get
              washed again.

              And then - also, he never allowed any lights on, and he told her that she
              needed to stay in the water and count to 100. And if she didn’t, he

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 5 of 16
              would kill her. He talked about also threatening her mother and father
              and brothers as well. And so she did it. She stayed in the bathtub and
              counted to 100 until he was gone.


      Transcript Volume III at 76. Nurse Clark testified she performed a head-to-toe

      examination of N.G., documented her injuries, and photographed N.G.’s arm

      which showed discoloration and bruising and her neck where she reported she

      was strangled which showed discoloration and redness. She testified regarding

      the genital exam she performed and that N.G. sustained a tear on her vaginal

      wall. Nurse Clark testified that she collected swabs based on N.G.’s history and

      performed swabs of the inner and outer areas of N.G.’s genitalia as well as her

      breasts.


[8]   The jury found Green guilty as charged on all counts. The court entered

      judgments of conviction for rape as a level 1 felony under Count I, burglary as a

      level 4 felony under Count II; criminal confinement as a level 6 felony under

      Count III; and strangulation as a level 6 felony under Count IV. The court

      stated that it reduced the level of felony for the burglary and criminal

      confinement convictions because they had been elevated based on “the same

      enhancement that’s used in the rape case,” and “I can only use one

      enhancement.” Id. at 243. The court vacated Green’s conviction for residential

      entry under Count V. The court sentenced Green to forty years on Count I,

      eight years with five years suspended to supervised probation on Count II, and

      two years each on Counts III and IV. It ordered that the sentences on Counts I,




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 6 of 16
       II and IV be served consecutively for an aggregate sentence of fifty years with

       five years suspended.


                                                          Discussion

                                                                I.


[9]    The first issue is whether the trial court abused its discretion in admitting

       certain testimony from Nurse Clark. We generally review the trial court’s

       ruling on the admission or exclusion of evidence for an abuse of discretion.

       Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only

       where the decision is clearly against the logic and effect of the facts and

       circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

       We may affirm a trial court’s decision if it is sustainable on any basis in the

       record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied. Even if

       the trial court’s decision was an abuse of discretion, we will not reverse if the

       admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.

       Ct. App. 1999), reh’g denied, trans. denied.


[10]   Green argues the trial court abused its discretion when it permitted Nurse Clark

       to testify as to N.G.’s statements to her at the hospital. Green cites Ind.

       Evidence Rule 801(d)(1). 2 The State responds that Nurse Clark’s testimony was




       2
           Ind. Evidence Rule 801(d) provides in part:

                  Notwithstanding Rule 801(c), a statement is not hearsay if:
                  (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination
                  about a prior statement, and the statement:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020                        Page 7 of 16
       admissible under Ind. Evidence Rule 803(4) and that any error was harmless as

       the testimony was substantially the same as N.G.’s testimony.


[11]   Ind. Evidence Rule 801(c) provides that hearsay means a statement that is not

       made by the declarant while testifying at the trial or hearing and is offered in

       evidence to prove the truth of the matter asserted. Ind. Evidence Rule 802

       provides that hearsay is not admissible unless the rules or other law provides

       otherwise. Ind. Evidence Rule 803 provides in part:

               The following are not excluded by the rule against hearsay, regardless of
               whether the declarant is available as a witness:

                                                           *****

               (4) Statement Made for Medical Diagnosis or Treatment. A statement
               that:

                   (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.




                        (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at
                        a trial, hearing, or other proceeding or in a deposition;
                        (B) is consistent with the declarant’s testimony, and is offered to rebut an express or
                        implied charge that the declarant recently fabricated it or acted from a recent improper
                        influence or motive in so testifying; or
                        (C) is an identification of a person shortly after perceiving the person.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020                  Page 8 of 16
       “The rationale underlying the exception is that a declarant’s self-interest in

       seeking treatment reduces the likelihood that she will fabricate information that

       she provides to those who treat her.” Perry v. State, 956 N.E.2d 41, 49 (Ind. Ct.

       App. 2011) (citation omitted), reh’g denied. In determining the admissibility of

       hearsay under Ind. Evidence Rule 803(4), courts evaluate (1) whether the

       declarant’s motive was to provide truthful information to promote diagnosis

       and treatment and (2) whether the content of the statement is such that an

       expert in the field would reasonably rely on it in rendering diagnosis or

       treatment. Id. “The extent to which a statement as to cause is pertinent to

       diagnosis or treatment rests within the discretion of the trial judge, who may

       consider the health care provider’s testimony in making that determination.”

       Id. at 50 (citation omitted).


[12]   The record reveals that N.G. was at the hospital and made her statements to

       Nurse Clark as part of a sexual assault examination. Nurse Clark testified that

       sexual assault examinations are “individualized based on [the patient’s]

       history.” Transcript Volume III at 65. She testified that, as part of the exam,

       she took “a history of what brought” N.G. to the hospital and N.G. gave her “a

       history of everything that occurred on September 12th, prior to coming in, and

       I’m documenting that in the electronic medical record.” Id. at 71. N.G.’s

       statement described the assault against her and related her medical condition

       and injuries and their inception and general cause. Based upon the record, we

       cannot say the trial court abused its discretion in admitting the challenged

       statements pursuant to the hearsay exception under Ind. Evidence Rule 803(4).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 9 of 16
       See Perry, 956 N.E.2d at 50 (concluding that the victim’s statements indicating

       she was grabbed around the neck and strangled were pertinent to the diagnosis

       and treatment of her injuries and admissible under Ind. Evidence Rule 803(4)).

       Further, errors in the admission of evidence are to be disregarded as harmless

       error unless they affect the substantial rights of a party. McClain v. State, 675

       N.E.2d 329, 331 (Ind. 1996); Ind. Trial Rule 61. In determining whether error

       in the introduction of evidence affected the defendant’s substantial rights, this

       court must assess the probable impact of the evidence upon the jury. McClain,

       675 N.E.2d at 331. The testimony of Nurse Clark regarding N.G.’s statements

       to her was cumulative of N.G.’s testimony, and any error in the admission of

       N.G.’s statements through Nurse Clark’s testimony was harmless. See id.

       (finding any error in admitting a therapist’s testimony was harmless where it

       was merely cumulative of the declarant’s statements made on the stand).


                                                         II.


[13]   The next issue is whether the evidence is sufficient to prove that Green

       committed his offenses while armed with a deadly weapon. When reviewing

       the sufficiency of the evidence to support a conviction, we must consider only

       the probative evidence and reasonable inferences supporting the verdict. Drane

       v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility

       or reweigh the evidence. Id. We consider conflicting evidence most favorably

       to the verdict. Id. We affirm the conviction unless no reasonable factfinder

       could find the elements of the crime proven beyond a reasonable doubt. Id.

       The evidence is sufficient if an inference may reasonably be drawn from it to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 10 of 16
       support the verdict. Id. The uncorroborated testimony of one witness can be

       sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073

       (Ind. 1991).


[14]   Green argues the evidence is insufficient to prove he “committed the offenses of

       rape, burglary, and criminal confinement while armed with a deadly weapon.”

       Appellant’s Brief at 12. He argues no firearm was ever discovered and no lights

       were on in the house. He asserts that “[t]he testimony is only what N.G.

       testified to – the intruder had a ‘gun’ which was (1) not a revolver and (2) had a

       little bit of black on it besides the silver” and “there is no evidence or testimony

       of how this ‘gun’ was in fact a ‘gun’ or firearm within the definition of Indiana

       Code 35-47-1-5.” Id. at 20.


[15]   The offense of rape is a level 1 felony if it is committed by using or threatening

       the use of deadly force or it is committed while armed with a deadly weapon,

       see Ind. Code 35-42-4-1, the offense of burglary is a level 2 felony if it is

       committed while armed with a deadly weapon, see Ind. Code § 35-43-2-1, and

       the offense of criminal confinement is a level 3 felony if it is committed while

       armed with a deadly weapon. See Ind. Code § 35-42-3-3. Ind. Code § 35-31.5-

       2-86 provides in part that a “deadly weapon” means “(1) A loaded or unloaded

       firearm” or “(2) A destructive device, weapon, device, taser [] or electronic stun

       weapon[, or] equipment . . . that in the manner it [] is used; [] could ordinarily

       be used; or [] is intended to be used . . . is readily capable of causing serious

       bodily injury.” Ind. Code § 35-47-1-5 provides that a firearm is any weapon



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 11 of 16
       that is capable of expelling or designed to expel, or that may readily be

       converted to expel, a projectile by means of an explosion.


[16]   In order to prove that a weapon was used in the commission of a crime, it is not

       necessary to introduce the weapon into evidence at trial. Gorman v. State, 968

       N.E.2d 845, 850 (Ind. Ct. App. 2012) (citing Gray v. State, 903 N.E.2d 940, 943

       (Ind. 2009)), trans. denied. There must be some proof that the defendant was

       actually armed with a deadly weapon at the time of the crime; it is not enough

       if a victim merely feared that the defendant was armed with a deadly weapon,

       but no such weapon was shown or displayed and/or the defendant made no

       statements that he or she was armed. Id. at 850-851. However, “a victim’s

       testimony that he or she saw the defendant use what was believed or ‘figured’ to

       be a gun is, by itself, sufficient proof of the use of a deadly weapon.” Id. at 850

       (citing Harvey v. State, 542 N.E.2d 198, 200-201 (Ind. 1989)).


[17]   The evidence most favorable to the verdicts is that Green possessed and used a

       deadly weapon during the commission of his crimes. N.G. testified that she

       woke up and observed Green staring at her and holding a gun. She testified

       that the television was on and there was enough light for her to identify Green.

       She testified she could “tell it [the gun] was silver,” “[i]t was a handgun,” she

       knew the difference between a semi-automatic and a revolver, and “[i]t was a

       semi – it wasn’t a revolver.” Transcript Volume II at 177. When asked

       “[w]hen you went down that hallway, were you able to notice anything else

       about the Defendant or his gun,” she testified “the gun was closer to me, so I

       could see a little bit of black on it besides the silver.” Id. at 178. She testified

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 12 of 16
       that Green pushed her backwards, climbed on top of her, and shoved his penis

       into her mouth, and when asked “[w]here was the gun at this point,” she

       testified: “In his hand. It was pointed towards my temple right here.” Id. at

       181. When asked “[w]hen you were still in the bedroom, did the Defendant

       have the gun the whole time” and “[w]as there any time he put it down,” N.G.

       answered: “He did. There was a point in time where he had put it down on the

       bed, and you could hear it slide down the wall, like, it had fell between the bed

       and the wall and then slid down, and you could hear it kind of hit the floor.

       But other than that, he had it in his hands.” Id. at 185. When asked “[d]id he

       pick it up at any point,” she answered “[h]e did after he was finished.” Id.

       Nurse Clark testified that N.G. told her that, when she was awakened, Green

       had a gun in his hand. When asked on cross-examination “she didn’t specify

       whether it was a cap gun, pellet gun, airsoft gun” and “[s]he just used the term

       ‘gun,’ correct,” Nurse Clark testified: “she called it, ‘[h]is .45.’” Id. at 90.


[18]   The jury was able to assess witness credibility and consider the testimony.

       Based upon the record, we conclude that evidence of probative value exists

       from which the jury as the trier of fact could find beyond a reasonable doubt

       that Green committed his crimes while armed with a deadly weapon. See

       Gorman, 968 N.E.2d at 850-851 (observing the defendant argued the purported

       gun used during a robbery was never recovered and the evidence did not show

       he possessed a functioning firearm or deadly weapon as opposed to possibly a

       toy, noting one of the victims indicated the robber possessed what looked like a

       9mm semiautomatic handgun and the trier of fact could weigh any


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 13 of 16
       discrepancies between the witnesses’ testimony, and holding the testimony by

       itself was sufficient to prove the defendant committed the robberies while armed

       with a deadly weapon).


                                                        III.


[19]   The next issue is whether the trial court erred in reducing the level of felony for

       Green’s convictions for burglary and criminal confinement. The State contends

       that elevated convictions for rape, burglary, and criminal confinement do not

       violate Indiana’s prohibition against double jeopardy because he possessed the

       weapon during the burglary and used the weapon during the rape and criminal

       confinement of the victim.


[20]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” The Indiana Supreme

       Court has established that the use of a single deadly weapon during the

       commission of separate offenses may be used to enhance the level of each

       offense and does not result in a violation of the Indiana Double Jeopardy

       Clause. See Sistrunk v. State, 36 N.E.3d 1051, 1054 (Ind. 2015) (observing that

       the use of a single deadly weapon during the commission of separate offenses

       may enhance the level of each offense); Gates v. State, 759 N.E.2d 631, 633 n.2

       (Ind. 2001) (“It is well established in Indiana that the use of a single deadly

       weapon during the commission of separate offenses may enhance the level of

       each offense.”); Leggs v. State, 966 N.E.2d 204, 209 (Ind. Ct. App. 2012)




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 14 of 16
       (holding that the defendant “was not subjected to double jeopardy when he was

       convicted of multiple crimes enhanced by the use of a knife”).


[21]   The jury found that Green possessed a handgun when he broke into and

       entered N.G.’s home. The evidence shows that Green held the gun in his hand

       when he ordered N.G. to the bedroom and that he pointed the gun at her

       temple when he forced his penis into her mouth. N.G. testified that Green

       placed the gun on the bed at one point and that it slid to the floor, he picked it

       back up when “he was finished,” and “other than that, he had it in his hands.”

       Transcript Volume II at 185. During closing argument, the prosecutor argued

       that Green held a gun against N.G.’s temple which supported a finding he was

       armed with a deadly weapon under Count I, he had a deadly weapon when he

       broke in and entered which supported the charge under Count II, and he

       confined her in the bedroom and bathroom and she could not leave because of

       his threats and the gun which supported the charge under Count III. The court

       instructed the jury on the elements of each charged offense and the definitions

       of deadly weapon and firearm.


[22]   The record supports the findings that Green committed the offenses of rape,

       burglary, and criminal confinement while armed with a deadly weapon, and the

       testimony demonstrates that, in each instance, the threat from the gun was

       distinct. On the facts in this case, the fact the offenses were committed while

       armed with a gun or the same gun does not require the reduction of the level of

       felony of any of the convictions on double jeopardy grounds. Accordingly, we

       remand with instructions to enter Green’s convictions for burglary as a level 2

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 15 of 16
       felony and for criminal confinement as a level 3 felony and to enter a new

       sentencing order.


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


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2791 | August 21, 2020   Page 16 of 16
