                                                                      Mar 25 2015, 10:01 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Ellen M. O’Connor                                         Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General
      Indianapolis, Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larry Bell,                                               March 25, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A05-1405-CR-205
              v.                                                Appeal from the Marion Superior
                                                                Court

      State of Indiana,                                         The Honorable Kurt Eisgruber, Judge
                                                                Cause No. 49G01-1203-FB-20291
      Appellee-Plaintiff



      Mathias, Judge.

[1]   Larry Bell (“Bell”) was convicted in Marion Superior Court of Class B felony

      rape and subsequently admitted to being an habitual offender. The trial court

      sentenced Bell to an aggregate term of twenty-five years of incarceration. Bell

      appeals and presents one issue, which we restate as whether the trial court

      committed reversible error in admitting into evidence a statement made by Bell

      to a police officer.
      Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015                Page 1 of 11
[2]   We affirm.


                                     Facts and Procedural History

[3]   On February 24, 2012, twenty-five-year-old Bell and his stepbrother, sixteen-

      year-old Cody Semenick (“Semenick”), threw a party at a Marion County hotel

      room they had rented. Bell provided alcohol and marijuana for the party, and

      Semenick attempted to convince his female friends to attend. The only girl to

      respond was Semenick’s seventeen-year-old friend, C.M. As the night

      progressed, Bell, Semenick, and C.M. drank vodka and lemonade and also

      smoked marijuana. C.M. eventually became so intoxicated that she began to

      feel sick and started to fall asleep. She awoke vomiting on her sweatshirt and

      the bed. Bell helped C.M. to the sink, where she vomited again. Bell cleaned the

      vomit off C.M. with a washcloth and told her that she was “really, really f**ked

      up.” Tr. p. 123. C.M. had a blank look on her face and was having trouble

      moving her legs, and Bell helped her back to the bed, where she lost

      consciousness.


[4]   C.M. regained consciousness, feeling numb and nauseous, and began to vomit

      again, as Bell wiped the vomit from her face. Bell sat behind C.M. and

      attempted to pull her pants down, but C.M. pulled them back up. Semenick left

      the room to call his girlfriend because the smell of the vomit made him ill. As

      he walked out of the room, C.M. was lying on her back with her eyes only half

      opened and appeared to be “nodding off.” Tr. p. 274. After five or ten minutes

      in the hallway, Semenick attempted to reenter the hotel room, but the door was

      locked. He knocked on the door, but no one answered.
      Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015   Page 2 of 11
[5]   Inside the locked hotel room, C.M. awoke again to find Bell on top of her with

      his penis inserted into her vagina as she drifted in and out of consciousness.

      Bell was naked, and C.M.’s pants and underwear had been removed. She felt

      around the bed for her clothes but could not find them, then once again lost

      consciousness. When C.M. regained consciousness again, she was lying on her

      stomach while Bell had sexual intercourse with her. C.M. told Bell that she was

      going to be sick again and needed to get up. Bell told her that she was fine, but

      C.M. told him again that she needed to get up. Bell then stopped having sex

      with her and let her up. C.M. grabbed her clothes and prepared to leave.


[6]   C.M. was still dizzy, and her vision was blurry. Bell asked her if she needed a

      ride. C.M. stated that she did not need a ride and informed Bell that she was

      phoning for help. As C.M. prepared to leave the room, Bell asked her, “So you

      didn’t want this?” Tr. p. 133. C.M. stated, “No,” to which Bell responded,

      “Oh, I’m really sorry. My bad. I didn’t know.” Id. He also told C.M. that he

      thought she had wanted to have sex. Bell then asked C.M. if she was going to

      get him “in trouble.” Id. Afraid that Bell might not let her leave, C.M. stated

      “No.” Id. Bell later told Semenick that he had sex with C.M. but that during

      the intercourse, C.M. told Bell that she did not want to have sex. Bell told

      Semenick that C.M. was “crazy,” and told him not to talk to her anymore. Id.

      at 283. Bell later stated, “if anybody asks, just [I] wasn’t there, and nothing

      happened that night.” Id. at 286.


[7]   After C.M. left the hotel, she felt sleepy, nauseous, and achy. C.M. called a

      friend to give her a ride. C.M.’s friend heard her crying on the telephone before

      Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015   Page 3 of 11
       she even began to speak. When C.M. entered her friend’s car, she told her

       friend what had happened. C.M.’s friend drove her to the hospital, where she

       was examined by forensic nurse Lisa Nickle (“Nickle”). Nickle conducted a

       forensic exam on C.M. and observed that C.M. had visible bruising on her

       vaginal wall, abrasions inside the vaginal canal, and redness inside the vaginal

       vault. Nickle testified that it appeared forceful contact had occurred with the

       cells inside C.M.’s vagina, which she explained is more consistent with non-

       consensual sex than with consensual sex.


[8]    Cervical and vaginal swabs from C.M. were tested for DNA. The results of the

       DNA testing revealed a combination of DNA from two different individuals:

       C.M. and Bell. DNA testing of sperm cells found in C.M.’s vagina also

       matched Bell’s DNA profile.


[9]    The subsequent police investigation confirmed that Bell had rented the room at

       the hotel. The condition of the hotel room was consistent with C.M.’s version

       of events. Specifically, the police found a vodka bottle, a marijuana blunt, and

       lemonade. The bedding was also unkempt and stained with vomit.


[10]   The State charged Bell on March 29, 2012 with Class B felony criminal deviate

       conduct and Class B felony rape. With regard to the rape charge, the State

       alleged that Bell knowingly had sexual intercourse with C.M. when C.M. was

       unaware that the sexual intercourse was occurring. See Appellant’s App. p. 44;

       Ind. Code § 35-42-4-1.1 The State later alleged that Bell was an habitual

       1
           We refer to the version of the statute that was in effect at the time Bell committed the offense.

       Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015                                Page 4 of 11
       offender. When Bell failed to appear at a pre-trial conference on January 31,

       2013, the trial court issued a warrant for his arrest. Bell was eventually found on

       May 21, 2013, living under an alias in Michigan.


[11]   The trial court held a jury trial on March 10 and 11, 2014. At trial, part of

       Bell’s strategy was to argue that he did not know that C.M. was unaware that

       the sexual intercourse was occurring. During the State’s case-in-chief, the trial

       court admitted into evidence, over Bell’s objection, testimony from a Deputy

       Sheriff from Michigan, Lieutenant Jay Olejniczak (“Lt. Olejniczak”) that Bell

       had told him that Bell “could judge a person, read a person basically, he was a

       people’s person, and he could read a person by the way they acted, by the way

       they looked, by their actions.” Tr. p. 433. The jury acquitted Bell of criminal

       deviate conduct but found him guilty of rape. Bell later admitted to being an

       habitual offender. On April 11, 2013, the trial court held a sentencing hearing

       and imposed the advisory ten-year sentence on the rape conviction to which the

       court added a fifteen-year habitual offender enhancement, for an aggregate term

       of twenty-five years incarceration. Bell now appeals.


                                         Discussion and Decision

[12]   Bell claims that the trial court erred in the admission of certain evidence. The

       decision to admit or exclude evidence is within the discretion of the trial court,

       and this decision is afforded great deference on appeal. Taylor v. State, 841

       N.E.2d 631, 634 (Ind. Ct. App. 2006). Accordingly, we review the trial court’s

       decision for an abuse of this discretion. See id. An abuse of discretion occurs

       where the trial court’s decision is clearly against the logic and effect of the facts
       Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015    Page 5 of 11
       and circumstances before it, or if the court misinterprets the law. Id. At issue

       here is the trial court’s admission into evidence of his statement to Lt.

       Olejniczak wherein Bell claimed that he was good at “reading” people.


       A. Hearsay

[13]   Bell first claims that his statement was inadmissible hearsay because it was not

       a statement against interest. Hearsay is defined by rule as “(1) a statement that

       is not made by the declarant while testifying at trial or hearing; and (2) is

       offered in evidence to prove the truth of the matter asserted.” Ind. Evidence

       Rule 801(c); see also Amos v. State, 896 N.E.2d 1163, 1168 (Ind. Ct. App. 2008).

       Hearsay is generally inadmissible. Amos, 896 N.E.2d at 1168 (citing Ind.

       Evidence Rule 802). One of the exceptions to the hearsay rule is that a

       statement made by an unavailable person that was a statement against his

       interests that would “expose the declarant to civil or criminal liability” is

       admissible. Ind. Evidence Rule 804(b)(3).


[14]   Bell’s claim under Evidence Rule 804(b)(3) is misplaced. His statement to Lt.

       Olejniczak falls under Evidence Rule 801(d), which states that a statement by a

       party opponent, such as Bell, is specifically not hearsay. Because Bell’s

       statement is by definition not hearsay, it is unnecessary for us to determine

       whether the exception to the hearsay rule under Rule of Evidence 804(b)(3)

       applies. See Myers v. State, 887 N.E.2d 170, 185 (Ind. Ct. App. 2008) (declining

       to address defendant’s claim that his statement was not against his penal

       interest because it was a statement of a party opponent and therefore not

       hearsay).
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       B. Relevance

[15]   Bell next claims that his statement to Lt. Olejniczak was irrelevant. Evidence

       Rule 402 provides that relevant evidence is generally admissible and irrelevant

       evidence inadmissible. However, the threshold for relevance is set rather low by

       Evidence Rule 401, which provides that evidence is relevant if “(a) it has any

       tendency to make a fact more or less probable than it would be without the

       evidence; and (b) the fact is of consequence in determining the action.” Here,

       one of the main issues at trial was whether Bell knew that C.M. was so

       incapacitated as to be unaware that sexual intercourse was occurring.2 Bell’s

       statement that he could “read a person by the way they acted” had at least some

       tendency to make it more probable that he knew that C.M. was unaware that

       sexual intercourse was occurring. We therefore do not agree with Bell that his

       statement to Lt. Olejniczak was irrelevant.


       C. Danger of Unfair Prejudice

[16]   Still, even otherwise relevant evidence may be inadmissible “if its probative

       value is substantially outweighed by a danger of . . . unfair prejudice[.]” Ind.

       Evidence Rule 403. Evaluation of whether the probative value of an evidentiary

       matter is substantially outweighed by the danger of unfair prejudice is a

       discretionary task best performed by the trial court. Bryant v. State, 984 N.E.2d

       2
        Although the term “unaware” is not defined in the rape statute, we have held that the term means “not
       aware: lacking knowledge or acquaintance; Unconscious.” Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct.
       App. 2002) (citing Becker v. State, 703 N.E.2d 696, 698 (Ind. Ct. App. 1998); Webster’s Third New
       International Dictionary 2483 (1986 ed.)). A person is unconscious, and therefore unaware, if that person is
       asleep. Id. “Moreover, it is the general, if not universal, rule that if a man has intercourse with a woman
       while she is asleep, he is guilty of rape because the act is without her consent.” Id. (citing Becker, 703 N.E.2d
       at 698).

       Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015                             Page 7 of 11
       240, 249 (Ind. Ct. App. 2013), trans. denied. When determining any unfair

       prejudicial impact, courts should look for the dangers that the jury will

       substantially overestimate the value of the evidence or that the evidence will

       arouse or inflame the passions or sympathies of the jury. Duvall v. State, 978

       N.E.2d 417, 428 (Ind. Ct. App. 2012).


[17]   Here, the probative value of Bell’s statements may not have been

       overwhelming, but neither was the danger of unfair prejudice. In fact, we are

       unable to see how any danger of unfair prejudice existed in the admission of

       Bell’s out-of-court statement to Lt. Olejniczak, in which Bell merely bragged

       that he was good at “reading” people. This characteristic is not a negative one

       that might unfairly prejudice the jury against Bell. The fact that the statement

       may have been damaging to Bell’s defense theory is not grounds for exclusion

       of the statement. See Duvall, 978 N.E.2d at 428 (“All evidence that is relevant to

       a criminal prosecution is inherently prejudicial[.]”).


       D. Character Evidence

[18]   However, Bell’s main argument with regard to the admissibility of his statement

       to Lt. Olejniczak is that it was improper character evidence. Evidence Rule

       404(a) provides that “[e]vidence of a person’s character or character trait is not

       admissible to prove that on a particular occasion the person acted in accordance

       with the character or trait.” Thus, evidence of Bell’s character was inadmissible

       to prove that he acted in accordance with his character on a particular occasion.

       However, we do not think that Bell’s statement to Lt. Olejniczak constituted

       “character” evidence.
       Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015    Page 8 of 11
[19]   As explained in by our supreme court in Malinski v. State, 794 N.E.2d 1071 (Ind.

       2003):

              “Character is a generalized description of a person’s disposition,
               or of the disposition in respect to a general trait, such as honesty,
               temperance or peacefulness.” United States v. Matias, 39 Fed.
               Appx. 550, 552 (9th Cir. 2002) citing John W. Strong, McCormick
               on Evidence (5th ed. 1999). “‘Character evidence’ is evidence
               regarding someone’s personality traits.” Black’s Law Dictionary
               576 (7th ed. 1999).
       Id. at 1082. Also, federal District Court Judge Miller has written:

                Wigmore defined character as “the actual moral or psychical
                disposition, or sum of the traits.” Graham defines character as
                “the nature of a person, his disposition generally, or his
                disposition in respect to a particular trait.” McCormick defines it
                as “a generalized description of a person’s disposition, or of the
                disposition in respect to a general trait.”

       Robert Lowell Miller, Jr., Indiana Evidence § 404.101 (3d ed. 2014) (citing 1A

       Wigmore § 52, at 1148 (Tillers rev. 1983); 1 Graham Handbook § 404:1, at 584

       (6th ed. 2006); McCormick on Evidence § 195, at 1080 (7th ed.)) (footnotes

       omitted).


[20]   With these definitions of “character” in mind, we cannot say that Bell’s

       statement regarding his ability to “read” people is a statement regarding his

       character or a character trait. It is instead more of a bragging description of his

       ability, not his character. Accordingly, the admission of Bell’s statement to Lt.

       Olejniczak was not inadmissible character evidence.




       Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015    Page 9 of 11
       E. Harmless Error

[21]   Moreover, even if we were to agree with Bell that his statement to Lt.

       Olejniczak was inadmissible, this would not necessarily require us to reverse his

       conviction. Errors in the admission of evidence are to be disregarded as

       harmless unless they affect the defendant’s substantial rights. Rogers v. State, 897

       N.E.2d 955, 961 (Ind. Ct. App. 2008) (citing Ind. Trial Rule 61; Ind. Evidence

       Rule 103(a)). An error will be deemed harmless if its probable impact on the

       jury, in light of all of the evidence in the case, is sufficiently minor so as not to

       affect the substantial rights of the parties. Id.


[22]   Here, the evidence regarding C.M.’s unawareness of the sexual intercourse was

       very strong, if not overwhelming. C.M. drank and smoked marijuana to the

       point she became physically ill, vomited, and began to lose consciousness.

       Semenick testified that C.M. was so drunk that she was barely able to stand,

       had a blank look on her face, and was “nodding off.” Tr. p. 274. Even Bell

       himself commented to C.M. that she was “really, really f**ked up.” Tr. p. 123.

       As Bell had sexual intercourse with C.M., she was going in and out of

       consciousness. C.M.’s injuries were more consistent with non-consensual sex

       than consensual sex. Also, Bell’s actions after the incident suggested that he

       was attempting to conceal his behavior. All of this evidence strongly supports

       the conclusion that Bell knew that C.M. was unaware that he was having

       sexual intercourse with her when she was unconscious. Thus, any error in the

       admission of Bell’s out-of-court statement that he could “read” people would

       have been harmless, if it was error at all.

       Court of Appeals of Indiana | Opinion 49A05-1405-CR-205 | March 25, 2015    Page 10 of 11
                                                   Conclusion

[23]   The trial court did not abuse its discretion by admitting into evidence Bell’s out-

       of-court statement that he was able to “read” people. This statement was not

       hearsay because it was the statement of a party opponent, namely Bell himself.

       It was relevant and not unfairly prejudicial. Nor was Bell’s statement

       inadmissible character evidence. Lastly, even if we agreed with Bell that the

       statement was inadmissible, any error in the admission of the statement would

       have been harmless given the evidence regarding C.M.’s inability to be aware

       that Bell was engaging in sexual intercourse with her.


[24]   Affirmed.

       Najam, J., and Bradford, J. concur.




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