MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Feb 18 2019, 9:49 am

court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE1                                        ATTORNEYS FOR APPELLEE
David G. Kaufman                                         Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David G. Kaufman,                                        February 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A05-1707-CR-1596
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas J.
Appellee-Plaintiff.                                      Alevizos, Judge
                                                         Trial Court Cause No.
                                                         46C01-1307-FC-242




1
 Appellate counsel, Mary P. Lake, wrote and submitted Kaufman’s Appellant Brief but withdrew her
appearance prior to the handdown of this memorandum decision.

Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019              Page 1 of 27
      Pyle, Judge.


                                           Statement of the Case
[1]   David G. Kaufman (“Kaufman”) appeals, following a jury trial, his convictions

      for Class C felony attempted misconduct with a minor2 and Class D felony

      attempted possession of child pornography.3 Kaufman argues that the trial

      court abused its discretion and violated Indiana Evidence Rule 404(b) when it

      admitted prior conduct evidence. The trial court admitted the evidence under

      the intent exception under Evidence Rule 404(b), finding it relevant to respond

      to Kaufman’s contrary intent and tempering any prejudicial effect by

      specifically instructing the jury as to the limited purpose for the evidence.

      Under the specific circumstances of this case, we conclude that the trial court

      did not abuse its discretion by admitting the challenged evidence, and we affirm

      Kaufman’s convictions.


[2]   We affirm.


                                                         Issue
             Whether the trial court abused its discretion in its admission of
             evidence.




      2
          IND. CODE §§ 35-42-4-9; 35-41-5-1.
      3
        I.C. §§ 35-42-4-4; 35-41-5-1. The jury also found Kaufman guilty of Class D felony child solicitation, but
      the record before us indicates that this charge was ultimately dismissed.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019           Page 2 of 27
                                                     Facts
[3]   Kaufman served as Fire Chief of the Lincoln Township Volunteer Fire

      Department (“Fire Department”) from the 1990’s until 2012. In 2006, B.D.,

      who was thirteen years old and who wanted to be a fireman, met Kaufman and

      talked to him about the cadet program at the Fire Department. Although

      participants in the cadet program had to be sixteen years old, Kaufman invited

      B.D. to go the Fire Department to “hang out and basically see how everything

      worked.” (Tr. Vol. 3 at 60). Thereafter, B.D. went to the Fire Department one

      day per week to watch activities at the Fire Department and learn from

      Kaufman.


[4]   The following year, when B.D. was fourteen years old, he was in Kaufman’s

      office at the Fire Department, and Kaufman asked him if he wanted to make

      some money by participating in a “college study” during which Kaufman

      would “measure [B.D.’s] penis hard and soft.” (Tr. Vol. 3 at 66). Kaufman

      told B.D. that the study would first involve measurements, then questions about

      his sex life, and an “opportunity for more things down the road[.]” (Tr. Vol. 3

      at 66). Kaufman offered B.D. $150 to participate in the measurement part of

      the study and told him that the study would provide “more money for younger

      people.” (Tr. Vol. 3 at 67). B.D. refused and told Kaufman that it was

      “weird.” (Tr. Vol. 3 at 66). Kaufman told B.D. that he “would never hurt”

      him. (Tr. Vol. 3 at 67).


[5]   Kaufman continually asked B.D. to participate in the study whenever he was

      with B.D. Before Kaufman talked to B.D. about the study, he always “look[ed]
      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 3 of 27
      side to side, mak[ing] sure there wa[s] nobody standing close enough to hear

      him.” (Tr. Vol. 3 at 68). When asking B.D. to participate in the study,

      Kaufman would put his arm around B.D. or grab him by the waist or his pants

      pockets.


[6]   During the summer when B.D. was fourteen years old, Kaufman asked B.D. to

      mow his lawn. After finishing the job, B.D. went inside Kaufman’s house to

      get paid. After Kaufman paid B.D. for the lawn, he then put his arm around

      B.D., “tried to coax” B.D. into doing the study, and told B.D. that he would

      “never hurt” him. (Tr. Vol. 3 at 71). B.D. refused and left Kaufman’s house.


[7]   B.D. mowed Kaufman’s lawn once per week that summer, and each time B.D.

      was at Kaufman’s house, Kaufman asked B.D. to participate in the study. On

      one specific occasion, B.D. went inside Kaufman’s house after he had mowed

      the lawn. Kaufman went to his bedroom to get the cash, and B.D. followed

      him. Kaufman then sat on his bed, put his fingers in B.D.’s pocket, and pulled

      B.D. towards him. Kaufman then told B.D. that “if he wanted [B.D.] he could

      have [him]” and said that he would never hurt B.D. (Tr. Vol. 3 at 72). B.D.

      left Kaufman’s house and never mowed his lawn again.


[8]   B.D. did, however, continue with his weekly observation day at the Fire

      Department. And Kaufman continued his requests for B.D. to participate in

      the study. On B.D.’s fifteenth birthday, he was at the Fire Department, and

      Kaufman was “persistent” about wanting B.D. to do the study where Kaufman

      would “measure [B.D.’s] penis hard and soft” and “ask questions about [B.D.’s]


      Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 4 of 27
       sex life.” (Tr. Vol. 3 at 75, 76). Kaufman told B.D., “let’s get this done.” (Tr.

       Vol. 3 at 75). B.D. again refused.


[9]    Another day when B.D. was at the Fire Department in the fall of 2008,

       Kaufman approached B.D. and told him that if he was not comfortable having

       his penis measured in person, then B.D. could take photos of his penis with his

       cell phone, load the photos on an SD card, and put the SD card in Kaufman’s

       mailbox. Kaufman told B.D. that “it wouldn’t pay as good but it was a way to

       get started.” (Tr. Vol. 3 at 76-77). B.D. walked away from Kaufman and went

       to sit by Zac Richie (“Richie”), who was a fire cadet. Richie, who had

       overheard Kaufman ask B.D. if he “want[ed] to take penis pictures,” talked to

       B.D. about Kaufman’s request. (Tr. Vol. 3 at 96).


[10]   B.D. joined the cadet program at the Fire Department when he turned sixteen

       and remained in the cadet program until he was seventeen years old. Kaufman

       did not relent in his requests for B.D. to participate in the study. B.D.,

       however, never participated in Kaufman’s study and never took any photos of

       himself. When B.D. was eighteen years old, he told his mother about

       Kaufman’s repeated requests for B.D. to participate in a penis study.

       Thereafter, Kaufman was fired as fire chief, and the police department started

       an investigation into the allegations against Kaufman.


[11]   In April 2013, Detective Jennifer Rhine-Walker (“Detective Rhine-Walker”)

       interviewed Kaufman and discussed the university study with him. This




       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 5 of 27
interview was recorded and a redacted version of it was played at trial. 4 During

the interview, Kaufman told the detective that he had done the study in

conjunction with the University of Michigan but stated that he did not

remember the name of his contact person. Nor did Kaufman keep any

documentation of his involvement with the study. Kaufman stated that the

study was done “years and years ago” and was “very, very short lived.”

(State’s Ex. 1B). He could not remember an exact date or the duration of the

study. Kaufman stated that he was not paid to conduct the study and that the

subjects did not receive any payment to do the study. Kaufman described the

study as a “lifestyle survey” with “really benign” questions relating to sex,

including questions about how often the subject had sex, the subject’s favorite

positions, and the length of the subject’s penis. (State’s Ex. 1B). As for the

question regarding length, Kaufman initially told the detective that the subject

would merely self-report the measurement and that he did not remember ever

obtaining actual measurements of anyone’s penis. Later, in the interview,

Kaufman admitted that he had asked the male subjects to measure their penises,

both flaccid and erect, and stated that he usually gave the subjects a disposable

paper measuring tape to measure themselves. He stated that, at times, he

would hold the tape and measure a subject’s penis, but he clarified that he did

not come in contact in a “sexual manner.” (State’s Ex. 1B). Kaufman insisted

that he had never done anything of a “sexual nature” and that everything he



4
  The information about the interview recounted hereinafter includes only what was contained on the
redacted version shown to the jury.

Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019        Page 6 of 27
       had done was for “information and research.” (State’s Ex. 1B). He also denied

       that he had ever taken any photographs of anyone as part of the study.


[12]   In July 2013, the State initially charged Kaufman with three counts of Class C

       felony attempted sexual misconduct with a minor, Class D felony attempted

       possession of child pornography, and Class A misdemeanor false informing.

       The following month, the State amended the charging information and added

       three counts of Class D felony child solicitation.


[13]   After Kaufman had been charged and the case was pending, William Duttlinger

       (“Duttlinger”), who had been named as the new fire chief after Kaufman, found

       a thumb drive in a filing cabinet in Kaufman’s old office. Duttlinger inserted

       the thumb drive into his computer and saw photographs of fire scenes and a

       photograph of a naked man lying on a table. Duttlinger forwarded the thumb

       drive to the township trustee, who then forwarded it to Detective Rhine-

       Walker. Thereafter, the State sought and obtained a search warrant to search

       the contents of the thumb drive.


[14]   A forensic analysis of the thumb drive revealed that it was registered to

       Kaufman and his wife. The thumb drive contained Power Point documents

       (relating to fire/EMS), a few Word documents, and photographs. These files

       were placed on the thumb drive between 2002-2013. The metadata on the

       thumb drive revealed that all the photographs were taken by the same model of

       Olympus camera, which was known to be used only by Kaufman. The

       photographs included images of fire scenes that were contained in a non-


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 7 of 27
       concealed folder on the thumb drive and twenty-nine images of naked men that

       were contained in a secure, encrypted folder on the drive. All the hidden

       photographs were close-up images of penises in both flaccid and erect states.

       Some of the photographs showed various naked male subjects, who were

       individually photographed lying on a bed, holding a tape measure, and

       measuring their penises in flaccid and erect states. Some other photographs

       depicted these naked male subjects, again individually photographed, while

       they were lying on a bed or kneeling back on the bed and thrusting their penises

       in a forward manner. Additionally, there were images of the penises of two

       naked males, photographed together, as they stood next to a bed, sat on the bed

       thrusting their penises in a forward manner, and knelt on all fours on the bed

       with their penises exposed from behind. A witness testified at trial that the

       bedroom depicted in the photographs was Kaufman’s bedroom.


[15]   In March 2014, the State filed its notice of intent to use 404(b) evidence.

       Specifically, the State’s notice indicated that it intended to introduce evidence

       from various witnesses, including eighteen males whom Kaufman had asked to

       participate in a sexually-based study and eleven males, from the eighteen listed,

       who had participated in the study. The State alleged that it sought to introduce

       the evidence, in accordance with Evidence Rule 404(b), to prove motive,

       opportunity, intent, preparation, plan, identity, absence of mistake, or lack of

       accident. The trial court initially denied the State’s 404(b) motion.


[16]   During the pendency of this case, Kaufman entered into a written plea

       agreement in which he agreed to plead guilty to two amended charges of Class

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 8 of 27
       D felony official misconduct and Class A misdemeanor false informing in

       exchange for the State’s dismissal of the remaining charges. The trial court

       ultimately rejected Kaufman’s plea, finding that Kaufman had failed to

       establish an adequate factual basis because Kaufman had stated that his request

       for photographs of B.D.’s penis and request to take measurements of B.D.’s

       penis, which would have included Kaufman physically touching his penis, were

       made for the study and were not made to arouse or satisfy Kaufman’s sexual

       desires.


[17]   In preparation for trial, the State filed its witness and exhibit list, which

       included, among its list of intended witnesses, the names of nine people who

       had been listed in the State’s 404(b) notice. Two of these nine witnesses were

       C.R. (“C.R.”) and K.R. (“K.R.”). Among its list of intended exhibits, the State

       indicated that it planned to introduce into evidence the thumb drive and the

       nude male photographs contained thereon; the video of Kaufman’s April 2013

       interview with Detective Rhine-Walker; and the video of a 1995 interview that

       Kaufman did with an attorney. Thereafter, Kaufman filed two motions in

       limine, seeking to prohibit the State from offering evidence of: (1) the thumb

       drive containing photographs of naked adult men; and (2) witnesses contained

       in the State’s 404(b) notice.


[18]   In March 2017, the trial court held a three-day jury trial. At the time of trial,

       the State had amended the charging information and proceeded against

       Kaufman on the following three charges: (1) Class C felony attempted sexual

       misconduct with a minor; (2) Class D felony attempted possession of child

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 9 of 27
       pornography; and (3) Class D felony child solicitation. All three of these

       charges involved an underlying specific intent to satisfy or arouse the sexual

       desires of Kaufman. See IND. CODE §§ 35-42-4-9 (sexual misconduct with a

       minor); 35-42-4-4 (possession of child pornography); 35-42-4-6 (child

       solicitation) (2008).5


[19]   Before the trial commenced, the trial court and the parties discussed the State’s

       proposed 404(b) evidence, which included: (1) C.R.’s testimony; (2) K.R.’s

       testimony; (3) the video of Kaufman’s interview with Detective Rhine-Walker;

       and (4) the photographs of naked men contained on the thumb drive. They also

       discussed whether the evidence might be allowed under the intent and plan

       exceptions of Rule 404(b).


[20]   The trial court, which was well-versed in the analysis and considerations of the

       Evidence Rule 404(b) exceptions, discussed some relevant caselaw, including

       Hicks v. State, 690 N.E.2d 215 (Ind. 1997) and Wickizer v. State, 626 N.E.2d 795

       (Ind. 1993) and explained to the parties that the evidence would be admissible if

       the State met the two required considerations, as set out in Hicks, of relevancy




       5
         Specifically, the attempted sexual misconduct with a minor charge alleged, in relevant part, that Kaufman,
       while acting with the intent to commit the crime of sexual misconduct with a minor, asked B.D. to submit to
       a fictional study wherein Kaufman would touch or fondle B.D.’s penis with intent to arouse or satisfy the
       sexual desires of Kaufman. The attempted possession of child pornography charged alleged, in relevant part,
       that Kaufman, with the intent to commit the crime of possession of child pornography, requested B.D. to
       provide photographs that depicted sexual conduct. The possession of child pornography statute defines
       “sexual conduct” in part, as the exhibition of uncovered genitals intended to satisfy or arouse the sexual
       desires of any person. See I.C. § 35-42-4-4. Lastly, the child solicitation charged alleged, in relevant part, that
       Kaufman knowingly or intentionally solicited B.D. to engage in fondling or touching to arouse or satisfy the
       sexual desires of Kaufman.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019              Page 10 of 27
and then balancing the probative value against any prejudicial effect. The trial

court also discussed how the facts of the case—specifically that Kaufman had

asserted that he was seeking B.D.’s penis measurements and photographs on

behalf of a university study—had established a contrary intent to the intent to

arouse or satisfy his own sexual desires as was part of the charges against him.

The trial court noted that this case was “kind of a strange case” and seemed to

be an issue of “first impression.” (Tr. Vol. 3 at 55). The trial court summarized

the unique nature of the case and the intent and plan exception as follows:


        Here’s the problem in this case. The facts as alleged are that
        [Kaufman] specifically used this lure. If he just said, ‘Hey, let me
        take pictures of your penises,’ and the guy said, ‘no,’ it’s a close
        call. But he said, ‘I’m taking a university study. You’ll get paid.
        You can get even more if you do this.’ And in the same period,
        he’s saying the same thing to other individuals, and those
        individuals go through with it, and it’s shown that the end result
        is fondling et cetera, it’s plan, it’s intent. I think it comes in.

                                                *****

        I’m trying to limit this to stuff that happened in the same time
        period. They have a whole slew of stuff they can ask me that I
        told them in advance, I’m probably not going to let them use.
        But once again, I’m just saying that I—because I don’t have a
        foundation, I don’t have these witnesses in front of me yet, but if
        [the State] can lay [its] foundation and do those things,
        [Kaufman] will be able to make [his] objection to preserve the
        record, but it is my thinking that I will probably allow in the
        photographs,[6] and I will probably allow in [C.R.]’s testimony,



6
 The trial court, however, indicated that certain photographs, including the “two-man series” of photos,
would not be admissible under the exception. (Tr. Vol. 3 at 47).

Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019        Page 11 of 27
               and perhaps, [K.R.]’s testimony. I doubt that I’m going to let in
               anything older than that.

       (Tr. Vol. 3 at 54-55).


[21]   During the trial, B.D. testified regarding the facts surrounding Kaufman’s

       offenses against him. B.D. also testified that he kept returning to the Fire

       Department because he wanted to be a fireman. He testified that he did not

       initially tell anyone about Kaufman’s repeated requests to participate in the

       study because “it was weird” and “embarrassing.” (Tr. Vol. 3 at 80). B.D. also

       testified that he was afraid that if the story got out, then Kaufman would kick

       him out of the cadet program and reduce the chance that B.D. would become a

       fireman.


[22]   Prior to the State calling C.R. as a witness, the trial court held a hearing outside

       the presence of the jury to discuss C.R.’s potential testimony and Kaufman’s

       404(b) objection thereto. The State indicated that C.R.’s proposed testimony

       would be that Kaufman had: (1) asked C.R. to participate in a University of

       Michigan sex study; (2) asked C.R. sex-related questions; (3) told C.R. that the

       university researchers liked his questionnaire responses and wanted C.R. to be

       part of the study by providing penis measurements and a semen sample; (4)

       measured and touched C.R.’s flaccid and erect penis; (5) offered to perform

       fellatio to assist C.R. in making his penis erect; and (6) offered to help C.R.

       ejaculate to get a semen sample; and (7) obtained a semen sample from C.R.,

       who did not use Kaufman’s assistance. The State asserted that C.R.’s

       testimony would be admissible under Rule 404(b) because it was necessary for

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 12 of 27
       the State to “show what the study actually consisted of and what actually

       happened as part of [the] plan, but also to show, in conjunction with other

       evidence, that the intent was for more than a professional or scientific study.”

       (Tr. Vol. 3 at 128).


[23]   In response, Kaufman’s counsel argued as follows:


               [T]his is a child solicitation, attempted sexual misconduct with a
               minor. [C.R.] was of a consenting age and an adult. The
               evidence thus far, in terms of our alleged victim, was -- the study
               consisted -- that he knew of -- consisted of the survey and
               photographing of [the] penis. There has been no evidence from
               the victim. In fact, he said he -- there might be other things down
               the road but he didn’t know what they were.

               So this evidence, this 404(b) evidence, while similar in the first
               two steps in terms of the study and the measurements, is not
               similar at all in terms of the semen sample, the assistance in
               obtaining the semen sample. Measuring the -- or weighing the
               probative value versus the prejudicial effect to the defendant,
               allows t[he] jury to speculate. And, again, the risk of them
               convicting on what happened to [C.R.] versus what actually
               occurred in these charged acts is great. That’s our objection.

       (Tr. Vol. 3 at 129).


[24]   The trial court then ruled as follows:


               In doing the Hicks analysis, first we determine[] whether it’s
               relevant to a manner other than the defendant’s propensity to
               commit the crime. I think it’s -- we talked about this yesterday. I
               think it’s part of a plan. It’s within the same time period. It’s
               also, in this case, intent and intensively [sic] been placed into the
               equation because of the nature of the ruse itself is of what the

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 13 of 27
        alleged ruse is. Because this is a specific intent -- these are
        specific intent crimes -- they must show that the attempt was to
        do something beyond scientific, beyond clinical. And the fact
        that these first two steps may be seen as part of a grooming plan
        that leads to -- that was meant to lead towards something else, I
        think is relevant. The question is is it overly prejudicial? I think
        it’s limited to one or two within the same timeframe, fine. As
        I’ve indicated there’s a slew of other witnesses listed on the State
        that I’m not going to allow because they are not similar and/or
        it’s a combination of not being similar or not within the same
        timeframe. But I will allow [C.R.].


(Tr. Vol. 3 at 128-29). Kaufman then asked for a limiting instruction as to the

limited use for the evidence for intent and plan, and the trial court agreed.

When the jury returned, the trial court instructed the jury as follows:


        This next witness is problematic for us in the rules of evidence so
        to speak. I’m going to explain that generally prior bad acts
        cannot be used to so that the defendant has a propensity to
        commit the acts charged. Therefore, you’re going to here [sic]
        from this next witness who is going to talk about a few things.
        You can only use this witness’s testimony to aid you in
        determining the -- whether the intent of the defendant or whether
        there was a plan that the defendant had. You can only use it for
        those purposes if you need to determine those in your minds.
        You may not use it to say this man has a propensity to do these
        things. It’s a fine line. It’s obviously an intellectual line that
        you’re going to have to make. Does anybody have a problem
        with understanding that?

(Tr. Vol. 3 at 132-33). The trial court then asked Kaufman whether he had any

problems with the explanation, and his counsel indicated that he did not.




Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 14 of 27
[25]   Thereafter, C.R. testified that in the Fall of 2008, when he was twenty years

       old, he took an EMT class in which Kaufman was the instructor. C.R.

       described how Kaufman had approached him, invited him to his house, told

       C.R. that he was helping to conduct a University of Michigan study, and asked

       C.R. if he wanted to be a part of the compensated study. After C.R. agreed,

       Kaufman told C.R. that the study would first involve answering a survey of

       questions to see if C.R. would qualify for the study. Kaufman then asked C.R.

       detailed questions about his sexual involvement with women, wrote C.R.’s

       answers on a legal pad, and told C.R. that he would submit his responses to the

       university. Thereafter, Kaufman told C.R. that the university considered him

       to be a “top candidate” for the program. (Tr. Vol. 3 at 145). He then had C.R.

       return to his house on two different occasions. During the first return visit,

       Kaufman told C.R. that he needed to get a semen sample and gave C.R. a

       “Tupperware cup.” (Tr. Vol. 3 at 148). C.R. then went into Kaufman’s

       bathroom, masturbated, and returned the cup to Kaufman. (Tr. Vol. 3 at 148).

       During the second visit to Kaufman’s house, Kaufman told C.R. that the study

       would be finished after he obtained a measurement of the size of C.R.’s penis,

       both flaccid and erect. C.R. pulled down his pants, and Kaufman, bare-

       handed, touched C.R.’s flaccid penis and measured it with a cloth measuring

       tape. Kaufman then grabbed C.R.’s testicles, told C.R. that he had a “good

       load in there[,]” and measured his testicles. (Tr. Vol. 3 at 153). Kaufman also

       told C.R. not to think that “this is gay” because it was “just skin” and because

       Kaufman was an EMT and had “been trained to do this[.]” (Tr. Vol. 3 at 153).

       Kaufman then told C.R. that he needed to get an erect penis measurement and

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 15 of 27
       offered to “[s]uck it off” to help “get [C.R.] hard[.]” (Tr. Vol. 3 at 152). C.R.

       declined Kaufman’s offer, went into the bathroom, and accomplished the task

       by himself. Thereafter, Kaufman touched and measured C.R.’s erect penis and

       his testicles.


[26]   Following C.R.’s testimony, the State, outside the presence of the jury, made a

       proffer for K.R.’s testimony. The State told the trial court that K.R. would

       testify that: (1) when he was eighteen years old in 2007 when Kaufman

       approached him to do the study; (2) he agreed to participate in the study; (3)

       part of the study included flaccid and erect measurements of his penis; (4)

       Kaufman manually stimulated K.R.’s penis to get it erect; and (5) Kaufman

       continued to manually stimulate K.R. to collect a sperm sample. The State

       argued that K.R.’s testimony was relevant to show plan and intent. Kaufman

       objected to K.R.’s testimony regarding a semen sample and argued that it was

       prejudicial.


[27]   The trial court ruled that the State could introduce K.R.’s testimony but that it

       would be more limited than C.R.’s. The trial court stated that K.R.’s

       testimony, with exception of any testimony relating to a semen sample, would

       be admissible because it was “offered for one purpose, to show that this was the

       intent and that this was plan[.]” (Tr. Vol. 3 at 160). The trial court specifically

       explained that any semen sample testimony was not to be introduced because




       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 16 of 27
       the “probative value [wa]s outweighed by cumulativeness and prejudice.” (Tr.

       Vol. 3 at 161).7


[28]   Prior to K.R.’s testimony, the trial court again advised the jury that “the same

       caveats [applied] as the last witness” so that K.R.’s testimony was to be

       considered only for the purpose of plan and intent. (Tr. Vol. 3 at 164).

       Thereafter, K.R. testified while he in the cadet program at the Fire Department,

       Kaufman had asked him to participate in a college study “for a college out of

       the State of Michigan.” (Tr. Vol. 3 at 171). K.R. further testified that, when he

       was eighteen years old, he went to Kaufman’s house for a landscaping job and

       that Kaufman again asked him to do the study. After K.R. agreed, Kaufman

       asked him some questions about his sex life; measured and touched K.R.’s

       flaccid penis with his bare hands while K.R. was on Kaufman’s bed; “jacked . .

       . off” K.R.’s penis “to get it hard;” and measured K.R.’s erect penis. (Tr. Vol. 3

       at 176). K.R. also testified that he never signed a university form or agreement

       to participate in the study and that he was never contacted by anyone at a

       university.


[29]   A representative of the University of Michigan, who oversaw the university’s

       research regulatory and compliance oversight and the protection of human

       subjects, testified that the university did not have any records of Kaufman or




       7
        The trial court told the State that “any further corroborating” evidence not related to the facts of the crimes
       charged, such as semen sample testimony, was not necessary and stated that “we’re already tempting the
       Court of Appeals to throw the whole thing out anyway.” (Tr. Vol. 3 at 161).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019            Page 17 of 27
       any records to indicate that Kaufman was affiliated with a research study for

       the university.


[30]   During Detective Rhine-Walker’s testimony, the State sought to introduce a

       redacted version of Kaufman’s videotaped police interview.8 The trial court

       and the parties discussed, outside the presence of the jury, the admissibility of

       the video and watched the redacted version. Kaufman’s counsel objected based

       on Evidence Rule 404(b), arguing that Kaufman had “admit[ted], in general, to

       certain conduct over some course of time never referenced by day or person”

       and that his admissions “never relat[ed] to [B.D.].” (Tr. Vol. 3 at 187).

       Kaufman’s counsel also argued that any reference to Kaufman’s sex life,

       potential for homosexuality, allegations from the 1990’s, or discussion of semen

       samples should not be admitted. The trial court agreed with Kaufman on this

       latter point and stated that it did not want “to risk the danger of the jury

       painting a picture that this exact same scenario took place for 25 years.” (Tr.

       Vol. 3 at 192). The trial court explained that Kaufman’s claim that he was

       conducting a study was the “only probative” part of the video because it went

       towards “intent and plan” and that the objected-to parts of the video would be

       exclude because it went “too much into propensity” and was outweighed by




       8
        The State had initially sought to introduce the entire two-hour video but then redacted it after the trial court
       had explained the limitations regarding the admission of evidence under the Rule 404(b) exceptions.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019            Page 18 of 27
       prejudicial value. (Tr. Vol. 3 at 192). Thereafter, the trial court admitted a

       further redacted version of the video as State’s Exhibit 1B.9


[31]   When the State sought to admit the thumb drive (State’s Exhibit 2) and nine

       photographs of naked men contained thereon (State’s Exhibits 4-12), Kaufman

       objected to the photographs based on Rule 404(b) and 403.10 Kaufman argued

       that the photographs, especially the ones that may have been placed on the

       drive in 2002, were “remote in time” and that, additionally, they were

       “cumulative” because the trial court had already allowed other evidence in

       relation to intent. (Tr. Vol. 3 at 248). Kaufman also argued that because the

       State would have a witness from the University of Michigan to testify that there

       was no study, then the photographs were not necessary and seemed to be

       offered only to “enflame this jury[.]” (Tr. Vol. 3 at 50). The State argued that

       they were seeking to admit the photographs under the 404(b) exceptions to

       prove, in relation to the attempted possession of child pornography charge, that

       the photographs were non-scientific, that Kaufman did not have the intent to do

       a scientific study, and that he intended to retain the photographs.


[32]   The trial court agreed with Kaufman that the photographs in Exhibits 4-12 were

       cumulative of the evidence of intent relating to the attempted sexual

       misconduct with a minor and child solicitation charges. However, the trial




       9
           The content of the video is discussed in the fact section above.
       10
         The photographs that the State sought to admit was narrowed from twenty-nine to nine based on the trial
       court’s explanation of limitations regarding the admission of evidence under the Rule 404(b) exceptions.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019      Page 19 of 27
       court noted that the thumb drive had been “possessed in an area that

       circumstantially could [have] be[en] [Kaufman’s]” and ruled that the

       photographs were indicative of “intent” and “plan” and were “relevant to the

       [attempted] possession of child pornography” charge. (Tr. Vol. 3 at 249). The

       trial court stated that the photos “could clearly be probative of whether the

       stated reason for this quote, unquote, ‘study,’ was true or not[,] [a]nd the fact

       that they go beyond anything that could resemble any type of scientific study

       into more prurient—prurient photographs would be evidence of the true intent

       of the defendant[.]” (Tr. Vol. 3 at 47). The trial court also informed Kaufman

       that it would give the jury a limiting instruction that the photographs were to be

       used only for consideration of intent in relation to the child pornography

       charge. After the photographs were admitted into evidence, the trial court

       instructed the jury that the photographs were relevant only to and to be

       considered only for “the count dealing with pornography” and not the other

       two counts. (Tr. Vol. 4 at 11).


[33]   In closing arguments, both the State and Kaufman’s counsel reminded the jury

       that some of the evidence could be considered for a limited purpose only. More

       importantly, in its final jury instructions, the trial court instructed the jury as

       follows:


               Evidence has been introduced that the Defendant was involved
               in bad acts other than those charged in the information. This
               evidence has been received solely on the issue of Defendant’s
               intent and plan. This evidence should be considered by you only
               for that limited purpose.


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 20 of 27
       (App. Vol. 3 at 53).


[34]   The jury found Kaufman guilty as charged. The trial court entered judgments

       of conviction for Class C felony attempted misconduct with a minor and Class

       D felony attempted possession of child pornography.11 The trial court imposed

       a five (5) year sentence, with four (4) years executed and one (1) year suspended

       to probation, for Kaufman’s Class C felony attempted misconduct with a minor

       conviction, and it imposed a concurrent six (6) month sentence for his Class D

       felony attempted possession of child pornography conviction. Kaufman now

       appeals.


                                                      Decision
[35]   Kaufman argues that the trial court abused its discretion by admitting: (1)

       C.R.’s testimony; (2) K.R.’s testimony; (3) State’s Exhibit 1B, the video of his

       police interview; and (4) State’s Exhibits 4-12, the photographs of naked men.

       Specifically, he contends that the evidence was inadmissible under the intent




       11
         The record before us contains conflicting information about the Class D felony child solicitation verdict.
       The chronological case summary indicates that the trial court “accept[ed] the verdicts of the Jury and
       enter[ed] judgment[s] accordin[g]ly.” (App. Vol. 2 at 13). The trial court’s sentencing order does not contain
       any indication that a judgment of conviction or a sentence was entered upon the Class D felony child
       solicitation verdict. The amended abstract of judgment indicates that Class D felony child solicitation charge
       was dismissed.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019         Page 21 of 27
       and plan exceptions of Indiana Evidence Rule 404(b) and under Evidence Rule

       403 because it was unfairly prejudicial.12


[36]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). 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. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[37]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with the character.” Ind.

       Evid. Rule 404(b)(1). However, such evidence may be admitted to prove

       “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

       mistake, or lack of accident.” Evid. R. 404(b)(2). Evidence “Rule 404(b) is

       designed to prevent the jury from making the forbidden inference that prior

       wrongful conduct suggests present guilt.” Halliburton v. State, 1 N.E.3d 670, 681

       (Ind. 2013) (citation and internal quotation marks omitted). See also Hicks, 690

       N.E.2d at 218 (explaining that Evidence Rule 404(b) is “designed to prevent the

       jury from assessing a defendant’s present guilt on the basis of his past




       12
          Kaufman also argues that the trial court should have excluded State’s Exhibits 4-12 based on a lack of
       foundation. We acknowledge that the record shows that the State laid the foundation in a rather piecemeal
       fashion; however, we find his argument without merit.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019       Page 22 of 27
       propensities”). When determining whether to admit evidence of specific acts

       under Rule 404(b), the trial court is required to: (1) determine whether the

       evidence of other crimes, wrongs, or acts is relevant to a matter at issue other

       than the defendant’s propensity to commit the charged act;13 and (2) balance the

       probative value of the evidence against its prejudicial effect pursuant to Indiana

       Evidence Rule 403.14 Hicks, 690 N.E.2d at 221.


[38]   Here, the trial court admitted the challenged evidence under the intent and/or

       plan exceptions of Evidence Rule 404(b). We choose to focus our analysis on

       the intent exception. See Cannon v. State, 99 N.E.3d 274, 278 (Ind. Ct. App.

       2018) (explaining that our Court “may affirm the trial court’s ruling if it is

       sustainable on any legal basis in the record, even thought it was not the reason

       enunciated by the trial court”), trans. denied. Our supreme court has explained

       that the intent exception in Evidence Rule 404(b) is to be narrowly construed

       and “will be available when a defendant goes beyond merely denying the

       charged culpability and affirmatively presents a claim of particular contrary

       intent.” Wickizer, 626 N.E.2d at 799. When determining whether a defendant

       has raised a contrary intent, our appellate courts have considered a defendant’s

       pretrial statement to police, opening statement, cross-examination of the State’s




       13
         “When inquiring into relevance, the court may consider any factor it would ordinarily consider under Rule
       402.” Hicks, 690 N.E.2d at 221. These factors may include “the similarity and proximity in time of the prior
       bad act to the charged conduct[] and will presumably typically include tying the act to the defendant.” Id.
       14
         Evidence Rule 403 provides that a “court may exclude relevant evidence if its probative value is
       substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
       misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019         Page 23 of 27
       witnesses, or evidence in the defendant’s case-in-chief. See id. (setting forth in-

       trial examples of ways a defendant could raise a contrary intent); 12 Robert L.

       Miller, Indiana Practice, Indiana Evidence, § 404.214 (4th ed.) (discussing

       consideration of a defendant’s pretrial police statements when considering a

       defendant’s contrary intent); Whitehair v. State, 654 N.E.2d 296, 302 n.2 (Ind.

       Ct. App. 1995) (noting that, although the Wickizer court set forth in-trial

       examples of assertions of contrary intent, it also took into consideration the

       defendant’s pretrial responses to police questions). The State may respond to

       the defendant’s contrary intent “by offering evidence of prior crimes, wrongs, or

       acts to the extent genuinely relevant to prove the defendant’s intent at the time

       of the charged offense.” Wickizer, 626 N.E.2d at 799. Thereafter, the trial court

       will balance the probative value of the evidence against its prejudicial effect

       pursuant to Indiana Evidence Rule 403. Id.


[39]   Here, as noted by the trial court, Kaufman’s contrary intent was advanced by

       the unique nature of the facts of this case. Specifically, the facts reveal that

       Kaufman had told B.D. that he was seeking B.D.’s penis measurements and

       photographs on behalf of a university study, which constitutes a contrary intent

       to the intent to arouse or satisfy his own sexual desires as was part of the

       charges against him. Additionally, Kaufman asserted a contrary intent in his

       interview with Detective Rhine-Walker.15 During the interview, Kaufman was




       15
         We reject Kaufman’s challenges to the admissibility of the video of his police interview. The trial court
       had the state substantially redact the video and limited what portion was admitted into evidence. We agree
       with the trial court that it was probative of Kaufman’s intent, and we conclude that Kaufman has made no

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019        Page 24 of 27
       resolute in his assertion that he was part of a university study that sought sexual

       lifestyle information and penis measurements. Kaufman insisted that during

       the study he never did anything of a “sexual nature” and that everything he did

       was for “information and research.” (State’s Ex. 1B). Based on Kaufman’s

       assertion of contrary intent, the trial court allowed the State to respond by

       offering its challenged evidence that was relevant to proving defendant’s intent

       at the time of the charged offenses. We conclude there was no abuse of

       discretion in the trial court’s determination. See Wickizer, 626 N.E.2d at 799

       (explaining that the State may respond to the defendant’s contrary intent “by

       offering evidence of prior crimes, wrongs, or acts to the extent genuinely

       relevant to prove the defendant’s intent at the time of the charged offense”).


[40]   In balancing the probative value of the evidence against its prejudicial effect

       under Rule 403, we note that “[a]ll evidence that is relevant to a criminal

       prosecution is inherently prejudicial; thus[,] [the] proper inquiry under

       Evidence Rule 403 boils down to a balance of the probative value of the

       proffered evidence against the likely unfair prejudicial impact of that evidence.”

       Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), trans. denied. “When

       determining the likely unfair prejudicial impact, courts will look for the dangers




       cogent argument to show how the probative value was outweighed by any prejudicial effect, especially where
       he asserts that his statements during the interview described “legal acts between consenting adults” and
       where he acknowledges that he did not make any admissions relating to his alleged offenses against B.D.
       (Kaufman’s Br. 21).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019      Page 25 of 27
       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.” Id.


[41]   Here, the trial court carefully considered and limited the State’s evidence that

       was relevant to showing Kaufman’s intent. The trial court recognized the

       potential for prejudice and tempered it by instructing the jury as to the limited

       nature of the challenged evidence when it was introduced at trial. Specifically,

       the trial court instructed the jury that C.R.’s and K.R.’s testimony was to be

       used only to determine Kaufman’s intent in regard to the attempted sexual

       misconduct with a minor and child solicitation charges and that the

       photographs were to be so considered for the attempted possession of child

       pornography charge. During closing arguments, the State and Kaufman’s

       counsel reminded the jury of the limited purpose for the challenged evidence.

       Additionally, the trial court gave a final jury instruction regarding the limited

       purpose for the evidence and expressly stated that it was to be considered only

       for intent and plan. “When limiting instructions are given that certain evidence

       be considered for only a particular purpose, the law will presume that the jury

       will follow the court’s admonitions.” Hernandez v. State, 785 N.E.2d 294, 303

       (Ind. Ct. App. 2003), trans. denied. See also Scalissi v. State, 759 N.E.2d 618, 623

       (Ind. 2001) (explaining that “when a jury is properly instructed by the trial

       court, the jury is presumed to have followed such instructions”). Given the

       “safeguards” set in place by the trial court to ensure that the jury did not make a

       forbidden inference that Kaufman’s prior conduct suggested present guilt, we

       conclude that trial court did not abuse its discretion by admitting the challenged


       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 26 of 27
       evidence under the intent exception of Evidence Rule 404(b). See Monegan v.

       State, 721 N.E.2d 243, 249 (Ind. 1999) (affirming the trial court’s admission of

       evidence under the intent exception of Rule 404(b) and explaining that the trial

       court’s admonition and instruction—that the jury was to consider evidence of

       the defendant’s previous act of murder only for the purpose of establishing the

       defendant’s intent—were “safeguards” and were “sufficient to prevent the jury

       from drawing the ‘forbidden inference’ that the prior wrongful conduct suggests

       present guilt”).


[42]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1707-CR-1596| February 18, 2019   Page 27 of 27
