Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         May 09 2013, 8:39 am
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:

VALERIE K. BOOTS                                  GREGORY F. ZOELLER
Marion County Public Defender                     Attorney General of Indiana
Indianapolis, Indiana
                                                  ANGELA N. SANCHEZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARK A. CENTOFANTE,                               )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )      No. 49A05-1207-CR-360
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Kurt Eisgruber, Judge
                            Cause No. 49G01-1108-FA-55925



                                         May 9, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
                                STATEMENT OF THE CASE

          Mark Centofante appeals his conviction for sexual misconduct with a minor. We

affirm.

                                            ISSUES

          Centofante raises three issues:

          I.     Whether the trial court committed fundamental error by failing to instruct
                 the jury on the definition of the standard of proof applicable to his
                 affirmative defense.

          II.    Whether the trial court committed fundamental error by inadequately
                 instructing the jury on the presumption of innocence.

          III.   Whether the alleged errors cumulatively amount to fundamental error.

                           FACTS AND PROCEDURAL HISTORY

          On the evening of August 7, 2011, fifteen-year-old S.Y. and her younger sister

R.Y. were with their uncle’s ex-wife Kiona Leland when Leland’s car broke down.

Leland called her live-in boyfriend James Smith, and he and twenty-seven-year-old

Centofante arrived and fixed the car. Everyone then got into the car and went to Leland’s

house, with Centofante riding in the backseat with S.Y. and R.Y.

          Once at the house, Smith and Centofante left to get beer. When they returned,

they drank and used drugs with Leland in the living room. S.Y. and R.Y. were initially in

Leland’s bedroom but later joined the others in the living room. S.Y. testified that she

could not remember whether she snorted pills that night. Centofante testified that she

snorted pills and smoked marijuana with them and further that she made sexual advances

toward him by talking about sexual things and showing him her breasts.


                                              2
       Later that night, Centofante and S.Y. had sexual intercourse in the bathroom. At

trial, they each presented widely differing accounts of the incident.

       S.Y. testified that she was in the bathroom when Centofante started pushing the

door open. She called out that the bathroom was occupied, but Centofante responded, “I

don’t give a f*ck.” Tr. p. 99. According to her testimony, Centofante asked her to

perform oral sex on him. She refused, but he grabbed her breasts, pushed her, continued

asking for oral sex, and would not let her out of the bathroom. S.Y. claimed that when

Centofante then said he wanted to have sexual intercourse, she did not respond but

instead texted her boyfriend to distract herself. She told her boyfriend that someone had

just come into the bathroom but did not tell him anything else. S.Y. testified that she

eventually gave in to Centofante because she was scared he would hurt her. She claimed

Centofante had sexual intercourse with her and performed oral sex on her.            When

Leland’s nine-year-old son knocked on the door and asked them what they were doing,

S.Y. pulled up her pants and ran out of the bathroom.

       Centofante testified that S.Y. suggested going into the bathroom, so he followed

her there. According to his testimony, S.Y. asked to see his penis, he complied, and then

she pulled down her pants. They had sexual intercourse until Leland’s son knocked on

the door and asked them what they were doing, at which point they dressed and left the

bathroom.

       As a result of this incident, the State charged Centofante with Class A felony rape,

Class A felony criminal deviate conduct, Class B felony sexual misconduct with a minor

involving sexual intercourse, Class B felony sexual misconduct with a minor involving

                                             3
deviate sexual conduct, Class D felony criminal confinement, and Class D felony child

solicitation. As a result of a disruption in the house after the incident in the bathroom, the

State charged Centofante with Class B felony criminal confinement (of Leland and/or

Smith), Class C felony intimidation (of Leland and/or Smith), Class A misdemeanor

battery (of Leland), and Class A misdemeanor battery (of Smith). The State also charged

Centofante with being a habitual offender.

       At trial, the State presented evidence as to Centofante’s knowledge of S.Y.’s age.

S.Y. testified that when they were all in the car, Leland saw Centofante “eyeballing” S.Y.

and R.Y. and warned him, “Don’t try to even mess with my two nieces. They’re both

underage, 14 and 15.” Id. at 89, 90. R.Y. testified that Centofante asked them in the car

how old they were, and Leland told him.           Leland did not testify, but a detective

responding to the scene testified that Leland said she had told Centofante in the car how

old they were. Smith testified that he did not remember any conversation that night with

Centofante about S.Y.’s age and that he had never told Centofante S.Y.’s age.

       At the close of the State’s evidence, the trial court granted Centofante’s motions

for judgment on the evidence as to Class B felony criminal confinement (of Leland

and/or Smith), Class C felony intimidation (of Leland and/or Smith), and Class A

misdemeanor battery (of Leland).

       Centofante then testified in his own defense.          He admitted he had sexual

intercourse with S.Y. but testified he did not think she was a minor. He claimed that

S.Y.’s age was never discussed, in the car or otherwise, and that she presented herself as



                                              4
an adult by the way she dressed, through her sexual advances, and by smoking marijuana

and snorting pills with them.

       The trial court gave the jury an instruction on the presumption of innocence:

              Under the law of this State, a person charged with a crime is
       presumed to be innocent. To overcome the presumption of innocence, the
       State must prove the defendant guilty of each element of the crime charged,
       beyond a reasonable doubt.
              The defendant is not required to present any evidence to prove his
       innocence or to prove or explain anything.

Appellant’s App. p. 74.

       The trial court also gave two jury instructions tendered by Centofante on the

affirmative defense that he reasonably believed S.Y. was at least sixteen years of age.

One instruction stated:

              It is a defense that the defendant reasonably believed that [S.Y.] was
       sixteen years of age or older. If the defendant proved this by a
       preponderance of the evidence, you must find the defendant not guilty of
       sexual misconduct with a minor.

Id. at 111. The other instruction stated:

             For the defense of mistaken belief to prevail, the defendant bears the
       burden of proving by a preponderance of the evidence that:
             1. The defendant had the actual belief that [S.Y.] was sixteen years
                of age or older; and
             2. The belief was reasonable under the circumstances.

Id. at 112. No instruction was offered or given defining the preponderance standard

noted in Centofante’s affirmative defense instructions.

       The jury returned guilty verdicts for Class B felony sexual misconduct with a

minor involving sexual intercourse, Class D felony child solicitation, and Class A

misdemeanor battery (of Smith). It acquitted him of the other charges.

                                            5
       Centofante waived jury trial on the habitual offender allegation, and the court

subsequently found him to be a habitual offender. The court merged the child solicitation

count with the sexual misconduct with a minor count and imposed an aggregate twenty-

year sentence: ten years for sexual misconduct with a minor, enhanced by ten years for

the habitual offender finding, and a concurrent one year for battery. Centofante now

appeals.

                            DISCUSSION AND DECISION

       Centofante contends that the trial court committed fundamental error by failing to

instruct the jury on the definition of “preponderance of the evidence” and by inadequately

instructing the jury on the presumption of innocence.

                          I. PREPONDERANCE STANDARD

       Indiana’s sexual misconduct with a minor statute provides that a person who is at

least twenty-one years of age commits Class B felony sexual misconduct with a minor if

he or she performs or submits to sexual intercourse or deviate sexual conduct with a child

at least fourteen but less than sixteen years of age. Ind. Code § 35-42-4-9(a)(1) (2007).

The statute also provides a defense: “It is a defense that the accused person reasonably

believed that the child was at least sixteen (16) years of age at the time of the conduct.”

Ind. Code § 35-42-4-9(c). This defense admits all the elements of the crime but provides

circumstances excusing the defendant from culpability. Moon v. State, 823 N.E.2d 710,

715 (Ind. Ct. App. 2005), trans. denied.        Because the defense addresses only the

defendant’s culpability and does not negate an element of the crime, the defendant has

the burden of proving the defense by a preponderance of the evidence. See id. at 715-16.

                                            6
        Here, the trial court gave the jury Centofante’s two tendered instructions on this

affirmative defense. Each instruction informed the jury that Centofante had the burden of

proving the defense by a preponderance of the evidence, but neither instruction nor any

other instruction informed the jury of the meaning of “preponderance of the evidence.”

        Centofante now claims that the trial court should have given such an instruction.

However, he neither objected to his own affirmative defense instructions on these

grounds nor offered another instruction to correct the deficiency in his own instructions.

He thus claims he may avoid procedural default because the error is fundamental. See

Baker v. State, 948 N.E.2d 1169, 1178-79 (Ind. 2011) (addressing instructional error

claim waived by defendant’s failure to object to instruction or tender his own at trial

where defendant asserted fundamental error). The fundamental error doctrine provides a

vehicle for the review of error not properly preserved for appeal. Id. at 1178. This

exception is extremely narrow and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process. Delarosa v. State, 938

N.E.2d 690, 694 (Ind. 2010). The error must be so prejudicial to the defendant’s rights as

to make a fair trial impossible. Baker, 948 N.E.2d at 1178. Harm is not shown by the

fact that the defendant was ultimately convicted; rather, harm is determined by whether

the defendant’s right to a fair trial was detrimentally affected by the denial of procedural

opportunities for the ascertainment of truth to which he would have been entitled. Id. at

1179.



                                             7
       Indiana’s court rules require trial courts to instruct juries on the issues for trial and

the applicable burdens of proof. See Ind. Crim. Rule 8(F); Ind. Jury Rules 20, 26. A

term used in instructions should be defined by the court where it has a technical meaning

or may be misapplied by the jury; however, where the term is in common use and can be

understood by a person of ordinary intelligence, it need not be defined or explained in the

absence of anything in the charge to obscure its meaning. McNary v. State, 428 N.E.2d

1248, 1252 (Ind. 1981).

       Legal definitions of “preponderance of the evidence” refer to evidence that

“convinces you most strongly of its truthfulness,” is of “greater weight,” or is “more

probably true than not true,” and specifically reject the notion that a party necessarily

meets the standard merely by presenting a greater quantity of evidence than the other

side. See, e.g., Gambill v. State, 675 N.E.2d 668, 676 (Ind. 1996). Jurors not instructed

on the meaning of “preponderance of the evidence” may incorrectly determine that the

standard is higher than it is or is met merely because one side of an issue has a greater

quantity of evidence. We therefore conclude that “preponderance of the evidence” is a

legal term of art not commonly understood by a layperson. See Ludy v. State, 784 N.E.2d

459, 462 (Ind. 2003) (meaning of “uncorroborated” likely not self-evident to lay juror).

Because the jury here was instructed that Centofante had the burden of proving his

affirmative defense to sexual misconduct with a minor by a preponderance of the

evidence, the court should have instructed it as to the meaning of that standard.

       However, Centofante defined the standard for the jury during closing arguments.

There, he stated that he had the burden of proving his affirmative defense by a

                                               8
preponderance of the evidence and that the preponderance standard “just means more

likely than not that Mr. Centofante had a reasonable belief that SY was at least 16.” Tr.

pp. 719-20. Moreover, a preliminary instruction regarding the jury’s role in weighing the

evidence informed the jury that the quantity of evidence was not necessarily

determinative: “The quantity of evidence or the number of witnesses need not control

your determination of the truth. You should give the greatest value to the evidence you

find most convincing.” Appellant’s App. p. 94.

       Centofante nonetheless points out that during deliberations, the jury submitted

several questions to the trial court, one of which was, “On [the counts for sexual

misconduct with a minor], is the jury being asked to determine the Defendant’s

knowledge of SY’s age?” Tr. p. 772. This inquiry, however, does not indicate confusion

over the preponderance standard but instead whether the jury was to evaluate his

affirmative defense at all. The court appropriately responded, “The jury must reread the

instructions and apply their collective knowledge to the instructions as a whole.” Id. at

775.

       We therefore conclude that the trial court did not commit fundamental error by

failing to instruct the jury on the definition of the preponderance standard.

                          II. PRESUMPTION OF INNOCENCE

       Centofante also challenges the jury instruction on the presumption of innocence,

which, as noted above, stated:

             Under the law of this State, a person charged with a crime is
       presumed to be innocent. To overcome the presumption of innocence, the


                                              9
       State must prove the defendant guilty of each element of the crime charged,
       beyond a reasonable doubt.
              The defendant is not required to present any evidence to prove his
       innocence or to prove or explain anything.

Appellant’s App. p. 74. Centofante argues that this instruction was incomplete because it

did not inform the jury that the presumption of innocence continues until the close of trial

and that the jury had a duty to reconcile the evidence upon a theory of his innocence if it

could do so. Had he requested such an instruction, he would have been entitled to it. See

Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983). But because he failed to do so, he

must show fundamental error.

       Centofante cites two cases in which the defendants were granted new trials

because of inadequate presumption of innocence instructions, but the defendants in those

cases tendered more complete instructions that were rejected and thus did not need to

show fundamental error on appeal. See Farley v. State, 127 Ind. 419, 26 N.E. 898, 899

(1891); Lee v. State, 964 N.E.2d 859, 865 (Ind. Ct. App. 2012), trans. denied.

       In Bledsoe v. State, 274 Ind. 286, 410 N.E.2d 1310, 1316 (1980), the Indiana

Supreme Court determined that the defendant could not claim a denial of the presumption

of innocence or a fair trial merely because his tendered instruction was refused; instead, it

looked to the totality of the circumstances. In doing so, it found “highly relevant” that

the defendant was acquitted of two of the three charges against him. Id. It further stated:

       We fail to see how any of the above-recited allegations of error [including
       the refusal of the tendered presumption of innocence instruction] can be
       said to have prejudiced appellant as to the one count he was convicted of,
       when they obviously did not prejudice him with respect to the two counts
       he was acquitted of. Each of the incidents pertained to appellant generally
       and this case as a whole. Each of these alleged problems affected appellant,

                                             10
       if at all, in a general fashion, and would have had the same effect, if any, on
       the jury’s consideration of all three charges.

Id. at 1317.    The Court subsequently held that the defendant was not denied the

presumption of innocence or a fair trial by the refusal of his tendered instruction. Id.

       In examining the totality of the circumstances here, we likewise conclude that

Centofante was not denied the presumption of innocence or a fair trial. The trial court

gave an instruction on the presumption of innocence. The jury was further instructed that

the State had the burden to prove each element of a crime beyond a reasonable doubt, that

any reasonable doubt must be resolved in Centofante’s favor, and that the jurors were to

reserve judgment about the outcome of the case until the court submitted the case for

deliberations. Appellant’s App. pp. 93, 64. Further, the jury acquitted Centofante of

several charges. The incomplete presumption of innocence instruction can hardly be

considered to have denied him a fair trial when it clearly did not prejudice him with

regard to the counts of Class A and Class B felony rape, Class A and Class B felony

criminal deviate conduct, Class B felony sexual misconduct with a minor involving

deviate sexual conduct, and Class D felony criminal confinement (of S.Y.) for which the

jury found him not guilty. In light of the court’s instructions together with Centofante’s

acquittal of several charges, we are confident that he was not denied the presumption of

innocence or a fair trial. There is no fundamental error.

                     III. CUMULATIVE FUNDAMENTAL ERROR

       Finally, we reject Centofante’s claim that the lack of a preponderance instruction

and the incomplete presumption of innocence instruction cumulatively amount to


                                             11
fundamental error. At trial, S.Y. and Centofante each gave their versions of the events,

and S.Y. was subjected to rigorous cross-examination. Moreover, the jury was informed

that the preponderance standard required Centofante to show that it was more likely than

not that he reasonably believed S.Y. was at least sixteen years old, and that if he did so, it

must find him not guilty of sexual misconduct with a minor. The jury was also generally

instructed that the quantity of evidence was not necessarily determinative. Furthermore,

although the presumption of innocence instruction could have been more complete, it is

clear from the other instructions and the jury’s verdicts that Centofante was not denied

the presumption of innocence.

                                      CONCLUSION

       Because Centofante was not denied fundamental due process or a fair trial, we

affirm the trial court.

       Affirmed.

MAY, J., and PYLE, J., concur.




                                             12
