MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jun 07 2016, 8:36 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark Leeman                                              Gregory F. Zoeller
Amber Garrison                                           Attorney General of Indiana
Pulaski County Public Defender
Leeman Law Offices                                       Tyler G. Banks
Logansport, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Randall L. Grigsby,                                      June 7, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         66A03-1508-CR-1184
        v.                                               Appeal from the Pulaski Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael Anthony
Appellee-Plaintiff.                                      Shurn, Judge
                                                         Trial Court Cause No.
                                                         66C01-1410-F1-1



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016            Page 1 of 26
[1]   On June 24, 2015, Appellant-Defendant Randall L. Grigsby was found guilty,

      following a jury trial, of Level 1 felony rape. Grigsby appeals from this

      conviction, contending that (1) the trial court abused its discretion in including

      an instruction relating to a lesser included offense, i.e., Level 3 felony rape, in its

      final instructions to the jury; and (2) the trial court committed fundamental

      error by admitting certain evidence at trial. Concluding that the trial court did

      not abuse its discretion in including the challenged instruction in the final jury

      instructions and that the admission of the challenged evidence did not

      constitute fundamental error, we affirm.



                            Facts and Procedural History
[2]   In late-October of 2014, C.C. travelled from Michigan to Indiana to visit his

      son. While in Indiana, C.C. stayed at the residence of his friend, Grigsby. 1

      C.C. had wanted to visit Grigsby during his trip because they had gone to

      school together and were “good friends.” Tr. p. 253.


[3]   On or about October 25, 2014, Grigsby, C.C., and two others went to a nearby

      Walmart. Once at the Walmart, Grigsby returned what he told C.C. were

      previously stolen items, receiving in-store credit. At Grigsby’s instruction, C.C.

      then used the in-store credit to purchase pseudoephedrine. Grigsby wanted the

      pseudoephedrine so that one of his relatives could use it in the manufacture of




      1
       At the time, Grigsby lived with a number of relatives in the residence of Grigsby’s grandfather,
      Forrest Manns.

      Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 2 of 26
      methamphetamine. Grigsby also purchased a package of syringes from

      Walmart.


[4]   After leaving Walmart, the group returned to Grigsby’s residence. They then

      gathered in a forest near the residence where Grigsby’s relative would

      manufacture the methamphetamine. After the manufacture of the drug was

      complete, Grigsby offered C.C. a syringe filled with the drug. C.C. did not take

      the syringe, however, because he had quit using methamphetamine after a

      friend had overdosed on the drug.


[5]   Over the course of the rest of the evening, C.C. ingested marijuana and alcohol.

      Around 10:00 or 11:00 p.m., C.C. went to lay down in an upstairs bedroom by

      himself because he was not feeling well. The next thing C.C. remembered was

      being awakened by Grigsby sticking a syringe “in [his] arm” and “pushing in on

      the syringe.” Tr. pp. 273, 274. C.C. quickly lost consciousness with the syringe

      still in his arm.


[6]   When C.C. regained consciousness, he was face down on the bed. C.C.

      noticed that his pants had been removed and that Grigsby was raping him from

      behind with Grigsby’s penis penetrating his anus. C.C. later recalled that this

      penetration “hurt really bad.” Tr. p. 276. C.C. cried and told Grigsby to stop

      before again losing consciousness. When C.C. next regained consciousness,

      Grigsby was choking him and yelling for C.C. to give him oral sex. C.C. then

      passed out yet again.




      Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 3 of 26
[7]   When C.C. awoke in the morning, he was fully clothed and Grigsby was

      placing him in a rocking chair. In an attempt to get away from Grigsby, C.C.

      left the residence and went to the nearby woods. C.C. called his brother, who

      eventually picked C.C. up from Grigsby’s residence and took him back to

      Michigan. Soon after arriving back in Michigan, C.C.’s brother and mother

      convinced him to seek medical attention. The incident was subsequently

      reported to law enforcement officials in Pulaski County.


[8]   On November 6, 2014, Appellee-Plaintiff the State of Indiana (the “State”)

      charged Grigsby with two counts of Level 1 felony rape and one count of Level

      3 felony rape. The charging information was later amended, with the State

      dismissing one of the counts of Level 1 felony rape and the Level 3 felony rape.

      Grigsby was subsequently alleged to be a habitual offender.


[9]   Following trial, a jury found Grigsby guilty of Level 1 felony rape. The jury

      also determined that Grigsby was a habitual offender. On July 22, 2015, the

      trial court sentenced Grigsby to a thirty-five-year term in relation to the Level 1

      felony rape conviction. The trial court enhanced Grigsby’s sentence by a term

      of ten years by virtue of his status as a habitual offender. This appeal follows.



                                 Discussion and Decision




      Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 4 of 26
                          I. Lesser Included Jury Instructions                               2




[10]           In every criminal case, an accused is entitled to clear notice of the
               charge or charges against which the State summons him to
               defend. Clear notice serves the dual purposes of allowing an
               accused to prepare his defense and of protecting him from being
               placed twice in jeopardy for the same offense. When, therefore,
               the issue is under what circumstances a trial court should instruct
               a jury on a lesser included offense of that charged, it is essential
               that the appellate courts of this state speak with one voice. What
               we say will determine both how prosecutors draft indictments
               and informations and what notice defendants in criminal cases
               will have of the charges brought against them. Due process will
               brook no confusion on the subject.


       Wright v. State, 658 N.E.2d 563, 565 (Ind. 1995) (internal citations omitted).


[11]   “The purpose of a jury instruction is to inform the jury of the law applicable to

       the facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict.” Isom v. State, 31 N.E.3d

       469, 484 (Ind. 2015) (internal quotation omitted). “We review a trial court’s

       instructions to the jury for an abuse of discretion.” Id. “An abuse of discretion




       2
         The State initially asserted that Grigsby had waived his appellate challenge to the inclusion of
       the lesser included jury instruction because the record is unclear as to the grounds on which
       Grigsby objected to the inclusion of the instruction. In response, Grigsby requests that the
       instant appeal be stayed for a period of sixty days during which time his counsel would prepare
       an Indiana Appellate Rule 31 Statement of the Evidence setting forth the grounds on which
       Grigsby objected to the instruction at issue. Despite the State’s assertion to the contrary, we
       find that the record is sufficient to preserve Grigsby’s instant challenge for appeal and will
       therefore decide the issue on its merits. As such, we do not find it necessary for Grigsby’s
       counsel to prepare an Appellate Rule 31 Statement of the Evidence and hereby deny his request
       to stay the matter for a period of sixty days.

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016       Page 5 of 26
       arises when the instruction is erroneous and the instructions taken as a whole

       misstate the law or otherwise mislead the jury.” Id. at 484-85.


[12]   Grigsby contends that the trial court erred in instructing the jury regarding the

       lesser included offense of Level 3 felony rape over his objection. Grigsby

       asserts on appeal that the trial court should only have instructed the jury

       regarding the charged offense, i.e., Level 1 felony rape. Although the final jury

       instructions included instructions relating to both Level 1 felony rape and the

       lesser included offense of Level 3 felony rape, the jury found Grigsby guilty of

       Level 1 felony offense, i.e., the charged offense. Nothing in the record suggests

       that inclusion of the lesser included offense misled the jury or in any way

       affected the jury’s ability to clearly comprehend the case or to arrive at a just,

       fair, and correct verdict. Given that Grigsby was found guilty of the more

       serious charged offense of Level 1 felony rape, we note that even if the trial

       court could have been found to have abused its discretion in instructing the jury

       regarding the lesser included offense, which we do not believe the trial court did

       for the reasons stated below, we cannot see how Grigsby was prejudiced by the

       inclusion of the lesser included offense. Thus, we do not believe that the trial

       court abused its discretion in instructing the jury regarding the lesser included

       offense.


[13]   Furthermore, we note that the Indiana Supreme Court has held that it

       constitutes reversible error for a trial court to fail to instruct the jury as to a

       lesser included offense when that lesser included offense is an inherently

       included offense to the principal charge and there is a serious evidentiary

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 6 of 26
       dispute regarding the element that distinguishes the lesser offense from the

       principal charge. Id. at 485 (citing Wright, 658 N.E.2d at 567). An offense is

       inherently included if (a) the alleged lesser included offense may be established

       by proof of the same material elements or less than all the material elements

       defining the crime charged, or (b) the only feature distinguishing the alleged

       lesser included offense from the crime charged is that a lesser culpability is

       required to establish the commission of the lesser offense. Jackson v. State, 33

       N.E.3d 1067, 1071 (Ind. Ct. App. 2015), trans. denied; True v. State, 954 N.E.2d

       1105, 1108 (Ind. Ct. App. 2011).


               A serious evidentiary dispute exists where the jury can conclude
               that the lesser offense was committed and the greater offense was
               not. Chanley v. State, 583 N.E.2d 126, 130 (Ind. 1991). In
               determining whether there is a serious evidentiary dispute, Wright
               and its progeny dictate that the evidence presented by both the
               State and the defense must be taken into account. Webb v. State,
               963 N.E.2d 1103, 1107 (Ind. 2012).


       Jackson, 33 N.E.3d at 1072.


[14]   Again, review of the record reveals that in addition to an instruction relating to

       the charged offense of Level 1 felony rape, the trial court instructed the jury on

       the lesser included offense of Level 3 felony rape. This instruction was given at

       the State’s request and over Grigsby’s objection. Indiana Code section 35-42-4-

       1 provides, in relevant part, that:


               (a) Except as provided in subsection (b), a person who knowingly
               or intentionally has sexual intercourse with another person or


       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 7 of 26
               knowingly or intentionally causes another person to perform or
               submit to other sexual conduct … when:
                     (1) the other person is compelled by force or
                     imminent threat of force; [or]
                     (2) the other person is unaware that the sexual
                     intercourse or other sexual conduct … is occurring; []
                                              ****
               commits rape, a Level 3 felony.

               (b) An offense described in subsection (a) is a Level 1 felony if:
                                              ****
                     (4) the commission of the offense is facilitated by
                     furnishing the victim, without the victim’s
                     knowledge, with a drug … or a controlled substance
                     … or knowing that the victim was furnished with the
                     drug or controlled substance without the victim’s
                     knowledge.


       The language of Indiana Code section 35-42-4-1 demonstrates that the offense

       of Level 3 felony rape may be established by proof of less than all of the

       material elements of Level 1 felony rape. As such, we conclude that Level 3

       felony rape is an inherently included offense of Level 1 felony rape.


[15]   Having concluded that Level 3 felony rape is an inherently included offense of

       Level 1 felony rape, we must next determine whether a serious evidentiary

       dispute existed by which the jury could have concluded that Grigsby committed

       the lesser offense of Level 3 felony rape but not the greater offense of Level 1

       felony rape. At trial, the State presented evidence that Grigsby drugged C.C.,

       without C.C.’s knowledge, while C.C. slept, in furtherance of his act of raping

       C.C. Specifically, the State presented evidence indicating that (1) C.C. did not

       knowingly ingest or inject himself with methamphetamine on the night in
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 8 of 26
       question, (2) C.C. did not regularly use methamphetamine, (3) C.C. awoke to

       find Grigsby injecting him with a syringe containing what he believed to be

       methamphetamine and sexually assaulting him, and (4) preliminary medical

       tests taken when C.C. sought treatment hours after he was raped by Grigsby

       indicated that C.C. had methamphetamine in his system.


[16]   In presenting his defense, Grigsby challenged this evidence by presenting

       evidence indicating that one of Grigsby’s relatives had observed C.C. inject

       himself with methamphetamine on the night in question. Grigsby also disputed

       the State’s evidence by questioning C.C. about his body’s reaction after

       allegedly being injected with methamphetamine by Grigsby. During this line of

       questioning, C.C. admitted that the usual effect methamphetamine had on his

       body was to make him “wake up” rather than making him lose consciousness

       as he alleged happened in this instance. Tr. p. 313. Grigsby’s counsel also

       questioned the nurse who treated C.C. about whether any of the drugs for

       which C.C. was prescribed could have caused the positive drug test. Upon

       review, we find that the evidence presented by Grigsby sufficiently created an

       evidentiary dispute by which the jury could have reasonably concluded that

       Grigsby had committed the lesser offense of Level 3 felony rape but not the

       greater charged offense of Level 1 felony rape.


[17]   Again, we conclude that Level 3 felony rape is an inherently included offense of

       Level 1 felony rape. We also conclude that a serious evidentiary dispute exists

       where the jury could have reasonably concluded that the lesser offense of Level

       3 felony rape was committed and the greater offense of Level 1 felony rape was

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 9 of 26
       not. In light of these conclusions, it was not error for the trial court to give the

       requested lesser included instruction. Indeed, it would have been reversible

       error for the trial court to refuse to do so. See Isom, 31 N.E.3d at 485 (citing

       Wright, 658 N.E.2d at 567).


                                  II. Admission of Evidence
[18]   Grigsby next contends that the trial court abused its discretion in admitting

       certain evidence at trial.


               The trial court has broad discretion in ruling on the admission or
               exclusion of evidence. Gutierrez v. State, 961 N.E.2d 1030, 1034
               (Ind. Ct. App. 2012). The trial court’s ruling on review of
               admissibility of evidence will be disturbed only upon a showing
               of an abuse of discretion. Id. An abuse of discretion occurs
               when the trial court’s ruling is clearly against the logic, facts, and
               circumstances presented. Oatts v. State, 899 N.E.2d 714, 719
               (Ind. Ct. App. 2009). In reviewing the admissibility of evidence,
               we consider only the evidence in favor of the trial court’s ruling
               and any unrefuted evidence in the appellant’s favor. Redding v.
               State, 844 N.E.2d 1067, 1069 (Ind. Ct. App. 2006). As a rule,
               errors in the admission or exclusion of evidence are to be
               disregarded as harmless unless they affect the substantial rights of
               a party. Id. In determining whether an evidentiary ruling
               affected a party’s substantial rights, we assess the probable impact
               of the evidence on the trier of fact. Id.


       Kirk v. State, 974 N.E.2d 1059, 1066 (Ind. Ct. App. 2012).


                   A. Admission of Allegedly Repetitious Hearsay
[19]   Grigsby asserts that the trial court abused its discretion in admitting what he

       alleges to be repetitious hearsay at trial.
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 10 of 26
                                       1. The Rule Against Hearsay

[20]   “Hearsay” is defined as “a statement that: (1) is not made by the declarant

       while testifying at the trial or hearing; and (2) is offered in evidence to prove the

       truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is not

       generally admissible unless the Rules of Evidence or “other law provides

       otherwise.” Evid. R. 802. Indiana Evidence Rule 803(4) provides that one

       exception to the rule against the hearsay is statements made for medical

       diagnosis or treatment. This includes a statement that “(A) is made by a person

       seeking medical diagnosis or treatment; (B) is made for—and is reasonably

       pertinent to—medical diagnosis or treatment; and (C) describes medical history;

       past or present symptoms, pain or sensations; their inception; or their general

       cause.” Evid. R. 803(4). Another exception to the hearsay rule is records of a

       regularly conducted activity. Evid. R. 803(6). This includes a record of an act,

       event, condition, opinion, or diagnosis if:

               (A) the record was made at or near the time by--or from
               information transmitted by--someone with knowledge;
               (B) the record was kept in the course of a regularly conducted
               activity of a business, organization, occupation, or calling,
               whether or not for profit;
               (C) making the record was a regular practice of that activity;
               (D) all these conditions are shown by the testimony of the
               custodian or another qualified witness, or by a certification that
               complies with Rule 902(11) or (12) or with a statute permitting
               certification; and
               (E) neither the source of information nor the method or
               circumstances of preparation indicate a lack of trustworthiness.



       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 11 of 26
       Evid. R. 803(6). “Among those business records routinely held admissible

       under Rule 803(6) are medical records.” Perry v. State, 956 N.E.2d 41, 51 (Ind.

       Ct. App. 2011). Further, “[h]earsay within hearsay is not excluded by the rule

       against hearsay if each part of the combined statements conforms with an

       exception to the rule.” Evid. R. 805.


        2. Whether the Trial Court Abused Its Discretion in Admitting the Allegedly
                              Repetitious Hearsay Evidence

[21]   It is important to note that Grigsby did not object at trial to the admission of

       any of the challenged testimony or medical records that he now claims amounts

       to repetitious hearsay. Again, the admission of evidence is generally within the

       trial court’s discretion and we review decisions to allow items into evidence for

       an abuse of discretion. Lee v. State, 967 N.E.2d 529, 534 (Ind. Ct. App. 2012)

       (citing Ziebell v. State, 788 N.E.2d 902, 908 (Ind. Ct. App. 2003)). “However,

       where a party fails to object at the time an item is introduced into evidence, any

       error in allowing the item into evidence must be fundamental error to warrant

       reversal.” Id. (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)).


[22]   “Fundamental error is an exception to the general rule requiring

       contemporaneous objection that 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.’” Id. (quoting Brown, 929 N.E.2d at 207). “This

       exception applies only to ‘egregious circumstances,’ and must either ‘make a

       fair trial impossible’ or constitute ‘clearly blatant violations of basic and

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 12 of 26
       elementary principles of due process.’” Id. (quoting Brown, 929 N.E.2d at 207).

       Thus, because Grigsby failed to object to the admission of the challenged

       evidence at trial, he is only entitled to relief if the claimed error constituted

       fundamental error. See id.


                                             i. Detective Woodruff

[23]   In claiming that the trial court committed fundamental error by admitting

       certain evidence at trial, Grigsby challenges the testimony of Detective

       Woodruff. During trial, Detective Woodruff indicated that he was first made

       aware of the incident in question when Nurse Mindy O’Brien reported C.C.’s

       allegations to the Pulaski County Sheriff’s Department. Detective Woodruff

       further indicated that after speaking with Nurse O’Brien, he spoke with C.C..

       Regarding his initial contact with C.C., Detective Woodruff testified that C.C.

       gave him “a brief statement in regards to what had taken place[,]” identified the

       specific location where the incident took place, and identified Grigsby as the

       person who had “committed [the] act against him.” Tr. p. 205. Detective

       Woodruff further testified that he met with C.C. the day after his initial contact

       with C.C., at which time C.C. described the events in question as follows:

               Mr. [C.C.] advised on the evening of October 27th he was at the
               Grigsby residence, and he said later in the evening he had
               become tired and went upstairs to go to bed. Mr. [C.C.] said he
               was awoken by a pain in his arm and looked and observed Mr.
               Grigsby sticking a syringe into his arm and he believed to be
               injecting an unknown substance into Mr. [C.C.]. Mr. [C.C.]
               advised that he then felt withdrawn and like a zombie. He stated
               that he blacked out until eventually coming back to finding
               himself laying on the ground with his pants removed and Mr.
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 13 of 26
               Grigsby behind him sexually assaulting him. Mr. [C.C.] advised
               he could feel Mr. Grigsby’s penis inside of his anus. He stated
               this caused pain and claimed to still be in pain at the time of the
               interview.

               Mr. [C.C.] advised he again blacked out or passed out and awoke
               to Mr. Grigsby standing over him, as [C.C.] was seated in a
               chair. [C.C.] advised Grigsby was choking him in attempting to
               force [C.C.] to perform oral sex on the defendant. Mr. [C.C.]
               advised that the oral sex was completed and had stated that Mr.
               Grigsby had ejaculated into his mouth. Mr. [C.C.] advised he
               again blacked out and awoke and found his clothes to be put
               back on but stated that his zipper was undone[.]


       Tr. p. 207. Detective Woodruff testified that C.C. further indicated that he had

       consumed alcohol and smoked marijuana prior to the attack but that he had not

       ingested methamphetamine, which he had stopped using “due to a close friend

       suffering an overdose.” Tr. p. 208.


[24]   Initially, we note that the challenged portions of Detective Woodruff’s

       testimony constituted inadmissible hearsay. As such, these statements should

       not have been admitted at trial. However, because Grigsby failed to object to

       the challenged testimony at trial, he is entitled to relief only if he demonstrates

       that the inclusion of the challenged testimony constituted fundamental error.

       See Lee, 967 N.E.2d at 534. Grigsby has failed to do so.


[25]   While Detective Woodruff testified prior to C.C. testifying at trial, his

       testimony regarding C.C.’s account was not overly prejudicial such that it

       denied Grigsby a fair trial. Detective Woodruff merely recounted the version of

       events provided to him during the course of his investigation. Detective
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 14 of 26
       Woodruff did so in explaining what steps he followed in completing his

       investigation and why. Detective Woodruff’s testimony in this regard was

       brief, was consistent with C.C.’s subsequent testimony, and did not appear to

       have elaborated on C.C.’s statement in anyway. Further, Detective Woodruff

       did not express any opinion as to C.C.’s credibility and even admitted on cross

       examination that he later learned that C.C. had provided inaccurate or

       untruthful information with regards to a different portion of the information he

       provided to Detective Woodruff. As such, we conclude that any error in

       admitting Detective Woodruff’s testimony was harmless. See generally, McGrew

       v. State, 673 N.E.2d 787, 796 (Ind. Ct. App. 1996) (providing that because

       admission of evidence which is cumulative of other evidence admitted at trial

       without objection does not constitute reversible error, the trial court did not err

       in allowing the testimony of two witnesses who provided testimony that was

       cumulative to that subsequently provided by the victim of a sexual assault),

       summarily aff’d on relevant grounds, 682 N.E.2d 1289, 1292 (Ind. 1997).


                                               ii. C.C.’s Brother

[26]   Grigsby next challenges the testimony of C.C.’s brother, Michael. The record

       reveals that Michael testified that he went to pick C.C. up from Grigsby’s

       residence after C.C. requested a ride and indicated that it was a “life and death

       situation.” Tr. p. 341. Michael indicated that C.C. was quiet during the drive

       and that he knew “something [was] going on” because it was unlike C.C. to be

       so quiet. Michael then provided the following testimony regarding what



       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 15 of 26
       happened once he picked up C.C. and headed back towards Michael’s

       residence in Michigan:


               A:     … And then eventually he was like he told me what had
               happened, and I was like what? And he was like yeah. I was like
               well then you need to go to the hospital.
               Q:     What did he tell you happened?
               A:     That he had been raped.
               Q:     Did he say by whom?
               A:     Yeah.
               Q:     Who did he say raped him?
               A:     Randall.


       Tr. p. 343.     Upon continued examination by the State, Michael further

       testified:

               Q:      So he had a difficult time telling you about it?
               A:      Yeah.
               Q:      Did he tell you the whole story all at once or did he spread
               it out over the trip home?
               A:      Well no, he had only told me he had been raped. He
               didn’t even tell me a whole lot about it. He just said that Randall
               raped him. And I was like well you need to go to the hospital.
               To this day I still don’t know everything.


       Tr. p. 344.


[27]   Similar to the challenged testimony discussed above, we note that the

       challenged portions of Michael’s testimony constituted inadmissible hearsay.

       As such, these statements should not have been admitted at trial. However, as

       was the case with the challenged testimony above, Grigsby is only entitled to

       relief if he demonstrates that the inclusion of the challenged testimony

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 16 of 26
       constituted fundamental error because he failed to object to the challenged

       testimony at trial. See Lee, 967 N.E.2d at 534. Grigsby has again failed to do

       so.


[28]   Michael’s testimony does not repeat the details of C.C.’s account in a manner

       which would unduly prejudice Grigsby. His testimony merely explains why he

       picked up C.C. from Grigsby’s residence and why he suggested C.C. seek

       medical attention. Further, Michael testified after C.C. had already testified

       and his testimony that C.C. indicated that he had been raped by Grigsby was

       cumulative of and consistent with C.C.’s testimony regarding the events in

       question.


                                               iii. Nurse O’Brien

[29]   Grigsby also challenges the admission of the testimony of Nurse O’Brien, the

       nurse who treated C.C. at the hospital. Review of Nurse O’Brien’s testimony

       reveals that the alleged hearsay contained in her testimony would fall under the

       exception to the rule against hearsay for statements made for medical diagnosis

       or treatment. To the extent that Nurse O’Brien testified about C.C.’s account of

       what had transpired at Grigsby’s residence on the night in question, C.C.’s

       statements about the incident were made by an individual seeking medical

       treatment for the purpose of receiving said treatment. Further, Nurse O’Brien

       only mentioned C.C.’s statements to the extent necessary to explain how she

       determined what treatment was necessary given C.C.’s situation. See generally,

       Palilonis v. State, 970 N.E.2d 713, 727 (Ind. Ct. App. 2012) (providing that the

       victim’s statements describing the events of her rape were highly important for
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 17 of 26
       making treatment decisions); Perry, 956 N.E.2d at 50 (providing that the

       victim’s statements describing the physical attack and identifying the defendant

       as the assailant were admissible pursuant to Evidence Rule 803(4) because they

       were pertinent to the diagnosis and treatment of the victim). Because the

       challenged portion of Nurse O’Brien’s testimony falls under the exception to the

       rule against hearsay for statements made for medical diagnosis or treatment,

       such statements did not amount to inadmissible hearsay.


                                              iv. Medical Records

[30]   Grigsby last challenges the admission of the medical records relating to C.C.’s

       treatment at the hospital. The record reveals that the State laid a foundation for

       the medical records by confirming that Nurse O’Brien had prepared the records

       as part of her treatment, the records were certified, and the records were kept in

       the normal course of the hospital’s business. Grigsby’s counsel was given the

       opportunity to review the medical records at trial and affirmatively stated that

       he had no objection to the admission of the said records. Again, “[a]mong

       those business records routinely held admissible under Rule 803(6) are medical

       records.” Perry, 956 N.E.2d at 51. Because the medical records falls within the

       exception to the hearsay rule for records created as a matter of regularly

       conducted activity, the records, and any alleged hearsay contained therein, did

       not amount to inadmissible hearsay. See generally, id. (providing that the

       victim’s medical records and the treating nurses observations relayed therein

       were admissible pursuant to Evidence Rule 803(6) because the records were

       created in connection to the nurse’s contemporaneous evaluation of the victim

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 18 of 26
       and in the course of the hospital’s regular business activity of consulting

       patients and documenting treatment).


                                             v. Cumulative Effect

[31]   Again, Nurse O’Brien’s challenged testimony and the challenged medical

       records relating to C.C.’s treatment at the hospital were properly admitted

       because both the challenged testimony and the medical records fell under stated

       exceptions to the rule against hearsay. As such, their admission should not be

       considered in relation to our fundamental error analysis. Rather, we should

       consider only the cumulative effect of the testimony presented by Detective

       Woodruff and Michael.


[32]   While it was error to admit the challenged portions of Detective Woodruff’s

       and Michael’s testimony, we conclude that such error was harmless. While

       Detective Woodruff’s testimony came before C.C.’s at trial, his testimony

       recounting the version of the events in question provided by C.C. was brief, was

       consistent with C.C.’s subsequent testimony, and did not appear to have

       elaborated on C.C.’s statement in anyway. As we noted above, Detective

       Woodruff did not express any opinion as to C.C.’s credibility and even

       admitted on cross examination that he later learned that C.C. had provided

       inaccurate or untruthful information regarding a different portion of the

       information he provided to Detective Woodruff. Further, we have found that

       Michael’s testimony, which again came after C.C.’s testimony, was consistent

       with and cumulative of C.C.’s general assertion that he had been raped by

       Grigsby. Michael’s testimony did not repeat any specifics of the incident.
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 19 of 26
[33]   Upon review, we conclude the cumulative effect of the admission of the

       challenged testimony was not such that would have rendered a fair trial

       impossible. As such, any error in admitting the challenged evidence did not

       amount to fundamental error. Given that Grigsby failed to object to the

       challenged testimony at trial together with our conclusion that admission of the

       challenged testimony did not constitute fundamental error, we further conclude

       that Grigsby is not entitled to appellate relief. See generally, Lee, 967 N.E.2d at

       534 (providing that an appellant who challenges the admission of evidence on

       appeal to which he did not object at trial is entitled to relief only if the appellant

       proves that admission of the evidence in question amounted to fundamental

       error).


                 B. Admission of C.C.’s Hospital Blood Test Results
[34]   Grigsby last contends that the trial court committed fundamental error by

       admitting C.C.’s hospital blood test results into evidence. Specifically, Grigsby

       challenges the unconfirmed presumptive test result for methamphetamine. As

       was mentioned above, Grigsby acknowledged that he did not object to the

       admission of the hospital blood test results at trial. As such, Grigsby is only

       entitled to relief if the admission of the test results constituted fundamental

       error. See id.


[35]   Focusing on the foundational requirements for the admission of evidence,

       Grigsby asserts that Nurse O’Brien failed to provide an adequate foundation for

       the results, and, as such, the results should have been excluded at trial. Nurse

       O’Brien testified that the medical records at issue were certified hospital records
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 20 of 26
       created during the course of a medical evaluation of C.C. and were kept in the

       normal course of the hospital’s business. The State argues that the records in

       question were admissible because medical records are inherently reliable

       because failure to provide accurate medical laboratory test results in the course

       of patient treatment “would inevitably lead to profoundly deleterious

       outcomes.” Appellee’s Br. p. 23. Grigsby, on the other hand, claims that

       Nurse O’Brien did not adequately prove that the scientific principles used in

       creating the challenged records satisfied the requirements of Indiana Evidence

       Rule 702.


[36]   While medical records may not be excluded as hearsay, any medical opinions

       and diagnosis contained in such records must meet the requirements for expert

       opinions set forth in Evidence Rule 702.3 Brooks v. Friedman, 769 N.E.2d 696,

       701 (Ind. Ct. App. 2002). Review of the medical records at issue, however,

       demonstrates that the challenged medical records do not contain medical

       opinions and diagnosis. Instead, the records merely contain laboratory test

       results. The records merely presumptively indicated that methamphetamine



       3
           Evidence Rule 702 provides as follows:


              (a) A witness who is qualified as an expert by knowledge, skill, experience, training, or
       education may testify in the form of an opinion or otherwise if the expert's scientific, technical,
       or other specialized knowledge will help the trier of fact to understand the evidence or to
       determine a fact in issue.
              (b) Expert scientific testimony is admissible only if the court is satisfied that the expert
       testimony rests upon reliable scientific principles.



       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 21 of 26
       was present in C.C.’s blood at the time it was tested during the normal course of

       his treatment at the hospital.


[37]   The records contain no opinion as to how or when the methamphetamine

       entered C.C.’s bloodstream. While C.C. testified that he did not willingly

       ingest methamphetamine on the day in question, at least one of Grigsby’s

       relatives testified that he had seen Grigsby inject himself with

       methamphetamine. If the jury were to believe this testimony, the testimony

       would explain the presumptive result in Grigsby’s favor.


[38]   Again, Grigsby did not object to the admission of the challenged medical

       records at trial. Grigsby has failed to convince us on appeal that the admission

       of these medical records constituted fundamental error. As such, we conclude

       that Grigsby is not entitled to relief in this regard.



                                               Conclusion
[39]   In sum, we conclude that the trial court did not abuse its discretion in including

       the instruction relating to the lesser included offense of Level 3 felony rape in its

       final instructions to the jury. We also conclude that the admission of the

       challenged testimony and the challenged medical records did not constitute

       fundamental error. As such, we affirm the judgment of the trial court.


[40]   The judgment of the trial court is affirmed.


       Altice, J., concurs.


       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 22 of 26
Bailey, J., concurs in result with opinion.




Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 23 of 26
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Randall L. Grigsby,
       Appellant-Defendant,                                     Court of Appeals Case No.
                                                                66A03-1508-CR-1184
               v.

       State of Indiana,
       Appellee-Plaintiff.




[41]   I agree with the majority’s result. However, because it is not our place to create

       arguments for the appellant, I believe we should not reach the merits of

       challenges waived by Grigsby as to certain items of hearsay evidence.


[42]   Generally, failure to object at trial results in the waiver of a claimed error on

       appeal. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). An exception to that

       waiver occurs only when “our extremely narrow fundamental error exception”

       is satisfied. Id.


               To qualify as fundamental error, “an error must be so prejudicial
               to the rights of the defendant as to make a fair trial impossible.”
               Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999) (citations
               omitted). To be fundamental error, the error “must constitute a
               blatant violation of basic principles, the harm or potential for
               harm must be substantial, and the resulting error must deny the
               defendant fundamental due process.” Wilson v. State, 514 N.E.2d
               282, 284 (Ind. 1987). See also Ford v. State, 704 N.E.2d 457, 461
               (Ind.1998) (“This Court views the fundamental error exception to

       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 24 of 26
               the waiver rule as an extremely narrow one, available only ‘when
               the record reveals clearly blatant violations of basic and
               elementary principles [of due process], and the harm or potential
               for harm [can]not be denied.’”) (quoting Warriner v. State, 435
               N.E.2d 562, 563 (Ind. 1982)).


       Id.


[43]   Here, Grigsby complains of the admission into evidence, without his objection,

       of portions of testimony from Detective Woodruff, C.C.’s brother, and Nurse

       O’Brien, as well as medical records that were admitted along with Nurse

       O’Brien’s testimony. Grigsby baldly characterizes all of this unobjected-to

       evidence as inadmissible hearsay. But in the absence of anything more than a

       citation to the basic hearsay rule, Grigsby has waived his argument as to the

       hearsay evidence. See Ind. Appellate Rule 46(A)(8)(a) (requiring cogent

       argumentation and citation to relevant authority); Pierce v. State, 29 N.E.3d

       1258, 1267 (Ind. 2015). Having waived in his brief the question of the

       inadmissibility of the evidence at issue, Grigsby cannot establish error—to say

       nothing of his ability to meet the extremely high threshold required to establish

       fundamental error.


[44]   Had Grigsby objected, some of the evidence that he identifies as inadmissible

       hearsay should have been excluded from evidence, namely, Detective

       Woodruff’s and Hall’s testimonies relating what C.C. told them about

       Grigsby’s actions. Other evidence—particularly Nurse O’Brien’s testimony

       concerning her clinical findings and the admitted medical records—is clearly

       admissible and provides corroboration of C.C.’s testimony. See Ind. Rule of
       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 25 of 26
       Evidence 803(4) and (6). Nevertheless, had there been any error in admitting

       Detective Woodruff’s and Hall’s statements, that error would have been

       harmless within the context of a typical abuse of discretion analysis, let alone

       under the more stringent standard of fundamental error analysis.


[45]   Because of Grigsby’s waiver of these arguments, however, I would simply

       observe that he failed to make arguments and note that it is not our place to

       create those arguments for him. See, e.g., New v. Estate of New, 938 N.E.2d 758,

       766 (Ind. Ct. App. 2010) (observing that it is not incumbent upon this Court to

       “search the record for support” of a party’s arguments or “consider issues” left

       unarticulated). Because I conclude that Grigsby waived his arguments as to the

       hearsay issues, I cannot join in the majority’s analysis of those arguments.


[46]   Therefore, I concur in the result.




       Court of Appeals of Indiana | Memorandum Decision 66A03-1508-CR-1184 | June 7, 2016   Page 26 of 26
