Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MATTHEW J. McGOVERN                                 GREGORY F. ZOELLER
Evansville, Indiana                                 Attorney General of Indiana

                                                    ANGELA N. SANCHEZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
                                                                                  FILED
                                                                              Sep 07 2012, 9:10 am

                               IN THE                                                 CLERK
                     COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




JANELLA DATCHER,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 82A01-1111-CR-506
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                          The Honorable Kelli E. Fink, Magistrate
                              Cause No. 82C01-1102-FA-264



                                        September 7, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Janella Datcher (“Datcher”) pleaded guilty to two counts of battery, 1 each as a

Class D felony and was convicted of child molesting2 as a Class A felony after a jury

trial. Datcher was sentenced to an aggregate term of thirty-five years executed for these

convictions. She appeals, raising the following restated issues:

       I.        Whether the trial court abused its discretion when it excluded
                 evidence under the Rape Shield Rule that the victim may have been
                 inappropriately touched by a third person;

       II.       Whether the trial court committed fundamental error when it allowed
                 evidence of Datcher’s battery against one of her children to be
                 admitted at trial; and

       III.      Whether Datcher’s sentence was inappropriate in light of the nature
                 of the offense and the character of the offender.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       Until February 2010, Datcher lived with her children, including J.D.1 and J.D. 2,

in Vanderburgh County. At the time of the trial in the present case, J.D.1 was six years

old and J.D.2 was five years old. Both girls were removed from Datcher’s custody and

placed in foster care in February 2010 for reasons not related to this appeal.

       In November 2010, J.D.1 made an allegation of sexual abuse regarding Datcher to

a counselor, and a sexual assault examination was conducted by Dr. Emily Krajec (“Dr.

Krajec”).      During the examination, J.D.1 told Dr. Krajec that Datcher had inserted

various objects, including a light and crayons, into her vagina. Dr. Krajec discovered that


       1
           See Ind. Code § 35-42-2-1.
       2
           See Ind. Code § 35-42-4-3.


                                               2
J.D.1 had a ruptured hymen and trauma to her left lateral perineum, which were

consistent with her claims of sexual abuse by Datcher. Before physically examining

J.D.1, Dr. Krajec asked her if she had ever been touched inappropriately in the genital

area, and J.D.1 responded that she had, by both Datcher and by friends of Datcher.

Additionally, the record shows that Datcher struck both girls with an electrical cord,

striking J.D.2 in the vaginal area. Datcher also inserted a small toy into J.D.1’s vagina.

       The State charged Datcher with two counts of child molesting, each as a Class A

felony, and two counts of battery, each as a Class D felony. Before the jury trial

commenced, Datcher pleaded guilty to two counts of Class D felony battery, and a jury

trial subsequently commenced on the remaining two counts of Class A felony child

molesting. Prior to trial, Datcher sought to exclude evidence of the batteries under

Indiana Evidence Rule 404(b). The trial court ruled that limited evidence of the batteries

by Datcher against the children could be admitted as intrinsic evidence of the

molestations and as evidence of the relationship between Datcher and her children and

her motive for committing the molestation.          At trial, J.D.2 testified that Datcher

“whipped” her “private parts,” which she described as where she pees, with a cord. Tr. at

105. J.D.2 also testified that Datcher had touched her “private parts” with her hand on

the outside of J.D.2’s clothes, but had not inserted anything inside her “private parts.” Id.

at 105-07, 109. Following J.D.2’s testimony, the State moved to dismiss the charge of

child molesting related to J.D.2, which the trial court granted.

       Additionally, prior to trial, the trial court ruled that, under the Rape Shield Rule,

the defense was precluded from presenting evidence about any fondling or touching by

                                              3
other individuals that would not have resulted in the physical harm to the children. Id. at

11. Only evidence that someone else could have been responsible for the physical trauma

to the alleged victims was allowed to be presented. Id. During the trial, the trial court

excluded testimony under the Rape Shield Rule by Dr. Krajec that J.D.1 had said that

someone other than Datcher had touched her inappropriately, because these statements by

J.D.1 did not accuse others of inserting anything into her vagina, and therefore, could not

provide an alternative cause for the physical injuries described. Id. at 161-63.

       At the conclusion of the trial, the jury found Datcher guilty of the one remaining

charge, one count of child molesting as a Class A felony. A sentencing hearing was held,

at which the trial court found three aggravating circumstances: (1) Datcher was in a

position of trust as mother to the victims; (2) the offenses were committed in the presence

of minor children; and (3) the offenses were committed against two different victims. It

also found two mitigating circumstances: (1) Datcher had no criminal history; and (2)

Datcher pleaded guilty to two counts of Class D felony battery.           Finding that the

aggravating factors outweighed the mitigating factors, the trial court sentenced Datcher to

thirty-five years on her conviction for Class A felony child molesting and to two years on

each conviction for Class D felony battery and ordered the three sentences to be served

concurrently for an aggregate sentence of thirty-five years. Datcher now appeals.

                                DISCUSSION AND DECISION

                      I. Exclusion of Evidence under Rape Shield Rule

       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) (citing

                                             4
Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009)). The trial court’s ruling

on review of admissibility of evidence will be disturbed on review only upon a showing

of an abuse of discretion. Id. (citing Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct. App.

2010)). 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.

       Datcher argues that the trial court abused its discretion when it excluded testimony

by Dr. Krajec, pursuant to the Rape Shield Rule, that other individuals, in addition to

Datcher, had touched J.D.1 inappropriately in her genital area and therefore may have

committed the offense with which Datcher was charged. She specifically contends that

the exclusion of such testimony violated her right of cross-examination under the Sixth

Amendment to the United States Constitution. She asserts that the State was allowed to

present evidence corroborating the victim’s accusation of molestation, i.e., Dr. Krajec’s

testimony that J.D.1’s hymen was not intact and that she had trauma to her left lateral

perineum, and that she should have been allowed under the Sixth Amendment to present

evidence that others may have been responsible for the offenses.

                                            5
       The Sixth Amendment to the United States Constitution provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him . . . .”    The Fourteenth Amendment makes this right of confrontation

obligatory upon the states. Howard v. State, 853 N.E.2d 461, 464-65 (Ind. 2006) (citing

Pointer v. Texas, 380 U.S. 400, 406, (1965)).        The essential purpose of the Sixth

Amendment right of confrontation is to ensure that the defendant has the opportunity to

cross-examine the witnesses against him. Id. at 465 (citing State v. Owings, 622 N.E.2d

948, 950 (Ind. 1993)). Trial judges, however, have “wide latitude to impose reasonable

limits based on concerns including harassment, prejudice, confusion of the issues, the

witness’[s] safety, or interrogation that is repetitive or only marginally relevant.” Wright

v. State, 836 N.E.2d 283, 289 (Ind. Ct. App. 2005), reh’g granted with instructions, 845

N.E.2d 263 (Ind. Ct. App. 2006), trans. denied.

       The admission of evidence relating to a victim’s past sexual conduct is governed

by Indiana Evidence Rule 412, which is commonly referred to as the Rape Shield Rule.

Evidence Rule 412 provides that,

       a)     In a prosecution for a sex crime, evidence of the past sexual conduct
              of a victim or witness may not be admitted, except:

              (1)    evidence of the victim’s or of a witness’s past sexual conduct
                     with the defendant;

              (2)    evidence which shows that some person other than the
                     defendant committed the act upon which the prosecution is
                     founded;

              (3)    evidence that the victim’s pregnancy at the time of trial was
                     not caused by the defendant; or


                                             6
              (4)     evidence of conviction for a crime to impeach under Rule
                      609.

Ind. Evidence Rule 412(a). This rule is intended to prevent the victim from being put on

trial, to protect the victim against surprise, harassment, and unnecessary invasion of

privacy, and, importantly, to remove obstacles to reporting sex crimes. Sallee v. State,

785 N.E.2d 645, 650 (Ind. Ct. App. 2003), trans. denied, cert. denied 540 U.S. 990

(2003).

       In the present case, physical evidence showed that J.D.1 had a ruptured hymen and

trauma to her left lateral perineum, which were injuries consistent with having an object

inserted into her vagina as she alleged Datcher had done. The testimony of Dr. Krajec

that Datcher sought to have admitted provided that others had touched J.D.1

inappropriately, but not that anyone else had inserted an object into her vagina. The trial

court excluded such testimony because it did not tend to provide an alternate explanation

for J.D.1’s injuries or that someone else caused the injuries.

       Assuming without deciding that it was error to exclude such evidence, we find

such error to be harmless. Errors in the admission or exclusion of evidence are to be

disregarded as harmless error unless they affect the substantial rights of the party. Rogers

v. State, 902 N.E.2d 871, 877 (Ind. Ct. App. 2009) (citing Corbett v. State, 764 N.E.2d

622, 628 (Ind. 2002)). “We ‘assess the probable impact of that evidence upon the jury’ in

determining whether the admission of evidence affected the party’s substantial rights.”

Id. The erroneous exclusion of evidence is deemed harmless when its probable impact on

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


                                               7
substantial rights of the parties. Swanigan v. State, 720 N.E.2d 1257, 1260 (Ind. Ct. App.

1999) (citing Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995)).

       Here, the excluded evidence was merely cumulative of other more specific

testimony already given by J.D.1. During cross-examination, J.D.1 testified that she had

previously stated in a deposition that a man named Bossy had inserted something into her

“bottom.” Tr. at 69, 71-72. She also testified that in her deposition she had said that

several men put fingernail polish in her privates, where she goes potty. Id. at 74-76. She

stated that Datcher was present when the men did this and told the men how to do it. Id.

at 75, 82. Therefore, testimony had already been admitted regarding allegations of far

more specific offenses committed by people other than Datcher, and Dr. Krajec’s

testimony that J.D.1 had stated that friends of Datcher’s had inappropriately touched her

would be merely cumulative of the previous testimony. In light of all of the evidence in

the case, even if the exclusion of the doctor’s testimony was erroneous, such error did not

affect Datcher’s substantial rights and was harmless.

                              II. Admission of Battery Evidence

       Datcher argues that the trial court erroneously admitted evidence regarding her

battery of J.D.2. The trial court has broad discretion in ruling on the admission or

exclusion of evidence, and such ruling will be disturbed on review only upon a showing

of an abuse of discretion.     Gutierrez, 961 N.E.2d at 1034.         However, as Datcher

recognizes, although she filed a pretrial motion in limine pertaining to the battery

evidence, she did not object at the time testimony regarding battery was given. To avoid

waiver of review, Datcher invokes the fundamental error doctrine, which permits

                                            8
appellate review of otherwise procedurally defaulted claims. See Sasser v. State, 945

N.E.2d 201, 203 (Ind. Ct. App. 2011), trans. denied. The fundamental error doctrine is

extremely narrow and requires an error “so prejudicial that a fair trial is impossible.”

Southward v. State, 957 N.E.2d 975, 977 (Ind. Ct. App. 2011). Blatant violations of basic

principles, coupled with substantial potential or actual harm and denial of due process

constitute fundamental error. Id.

       Datcher argues that the trial court erred when it allowed evidence of her battery

against J.D.2 into evidence. She contends that admission constituted fundamental error

because it was inadmissible character evidence under Indiana Evidence Rule 404(b), and

no evidence linked the battery to the molestations. Further, Datcher claims that the

evidence was inadmissible under Indiana Evidence Rule 403 because it had no probative

value and was, therefore, unfairly prejudicial.

       Indiana Evidence Rule 404(b) provides,

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       intent, preparation, plan, knowledge, identity, or absence of mistake or
       accident, provided that upon request by the accused, the prosecution in a
       criminal case shall provide reasonable notice in advance of trial, or during
       trial if the court excuses pre-trial notice on good cause shown, of the
       general nature of any such evidence it intends to introduce at trial.

“The rule is ‘designed to prevent the jury from assessing a defendant’s present guilt on

the basis of his past propensities.’” Reese v. State, 939 N.E.2d 695, 700 (Ind. Ct. App.

2011) (quoting Hicks v. State, 690 N.E.2d 215, 218 (Ind. 1997)), trans. denied. In

determining whether to admit evidence of specific acts under the rule, the trial court is to:


                                             9
(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; (2) determine

that the proponent has sufficient proof that the person who allegedly committed the act

did, in fact, commit the act; and (3) balance the probative value of the evidence against its

prejudicial effect pursuant to Indiana Evidence Rule 403. Id. (citing Camm v. State, 908

N.E.2d 215, 223 (Ind. 2009)).

       In the present case, prior to trial, Datcher pleaded guilty to two counts of Class D

felony battery and sought, via a motion in limine, to have the evidence of her batteries

against J.D.1 and J.D.2 excluded at the trial for the remaining two counts of child

molesting. The trial court ruled that limited evidence of the batteries could be admitted

as intrinsic evidence of the molestations and as evidence of the relationship between

Datcher and her children and her motive for committing the molestations. Tr. 4-7. The

trial court ruled that evidence of certain incidents of abuse by Datcher that the trial court

found to be likely to inflame the jury should be excluded, but allowed testimony

regarding the “cord whippings” by Datcher. Id. at 6-7. During trial, when the State

sought to admit such evidence, Datcher did not object, and J.D.2 testified that Datcher

whipped her with a cord on her “private parts.” Id. at 105.

       “‘A defendant’s prior bad acts are . . . usually admissible to show the relationship

between the defendant and the victim.’” Smith v. State, 891 N.E.2d 163, 171 (Ind. Ct.

App. 2008) (quoting Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996)), trans. denied.

Where a relationship between parties is characterized by frequent conflict, evidence of

the defendant’s prior assaults and confrontations with the victim may be admitted to

                                             10
show the relationship between the parties and motive for committing the crime. Id. at

171-72 (quoting Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004)).

       At trial, the State theorized that, unlike most cases of child molesting, Datcher

inserted objects into her daughters’ vaginas as a form of punishment rather than to satisfy

any sexual desire. From the evidence that Datcher whipped the girls with a cord in their

genital area, the jury could infer that she targeted the girls’ genitals when inflicting

punishment. The evidence of the batteries tended to show Datcher’s motive for inserting

objects into the girls’ vaginas and that the acts were intentional. Further, the trial court

limited the evidence to exclude other evidence of abuse perpetrated by Datcher that

would be more inflammatory to the jury.

       Additionally, the admission of the battery evidence was not erroneous just because

the charge concerning the molestation of J.D.2 was dismissed after J.D.2 testified. When

the trial court made its pretrial ruling on the admissibility of the evidence of the batteries,

Datcher was facing two charges of Class A felony child molesting, one charge pertaining

to each victim, J.D.1 and J.D.2. At the time that J.D.2 testified that Datcher whipped her

with a cord in her private parts, the charge concerning the molestation of J.D.2 was still

pending. During her testimony, J.D.2 subsequently testified that Datcher did not insert

anything into her private parts and had only touched her private parts over her clothes

with Datcher’s hand. Tr. at 105-07. After J.D.2 completed her testimony, the State

moved to dismiss the molesting charge pertaining to J.D.2, which was granted by the trial

court. The trial court’s decision to admit the evidence must be viewed in context of the

trial as it existed at the time. Therefore, at the time of J.D.2’s testimony the evidence was

                                              11
properly admitted because it was still relevant to the molesting charge concerning J.D.2,

and after the charge was dismissed, Datcher did not make an effort to have J.D.2’s

testimony stricken from the record or have the jury admonished regarding the previously

admitted testimony.

       We conclude that Datcher has failed to show that the admission of the battery

evidence was a blatant violation of basic principles, with substantial potential or actual

harm and denial of due process or that it was so prejudicial that a fair trial was

impossible. Southward, 957 N.E.2d at 977. The trial court did not err in admitting the

evidence.

                              III. Inappropriate Sentence

       “This court has authority to revise a sentence ‘if, after due consideration of the

trial court’s decision, the court finds that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.’” Spitler v. State, 908 N.E.2d 694,

696 (Ind. Ct. App. 2009) (quoting Ind. Appellate Rule 7(B)), trans. denied. Although

Indiana Appellate Rule 7(B) does not require us to be extremely deferential to a trial

court’s sentencing decision, we still must give due consideration to that decision. Delao

v. State, 940 N.E.2d 849, 852-53 (Ind. Ct. App. 2011) (citing Patterson v. State, 909

N.E.2d 1058, 1062–63 (Ind. Ct. App. 2009)), trans. denied.            We understand and

recognize the unique perspective a trial court brings to its sentencing decisions. Id. at

853.   The defendant bears the burden of persuading this court that his sentence is

inappropriate. Id.



                                            12
       Datcher was sentenced to thirty-five years for her Class A felony child molesting

conviction and to two years for each of her Class D felony convictions for battery, with

the sentences ordered to run concurrently for an aggregate sentence of thirty-five years.

The sentencing range for a Class A felony is between twenty and fifty years, with an

advisory sentence of thirty years. Ind. Code § 35–50–2–4. The sentencing range for a

Class D felony is between six months and three years, with an advisory sentence of one-

and-one-half years. Ind. Code § 35-50-2-7. Datcher argues that her thirty-five-year

aggregate sentence was inappropriate in light of the nature of the offense and the

character of the offender and requests that we revise it to twenty-five years for her Class

A felony conviction and one-and-one-half years for each Class D felony with the

sentences running concurrently, for an aggregate sentence of twenty-five years.

       As for the nature of the offenses, Datcher was convicted of Class A felony child

molesting for inserting a baby toy into the vagina of one of her daughters, which resulted

in a ruptured hymen and trauma to the perineum. She also admitted that she battered

both of her daughters by striking them with a cord and caused bodily injury to both girls.

In each of these offenses, Datcher abused her position of trust as the girls’ mother when

she abused her daughters.

       As to Datcher’s character, we note that she did not have a prior criminal history

and that she pleaded guilty to the battery charges prior to trial. However, her guilty pleas

did not occur until the eve of trial, and she only pleaded guilty to two of her four charged

offenses. Therefore, she did not likely save the State or trial court substantial time or

effort, and she did not accept full responsibility for her crimes. Additionally, as stated

                                            13
above, Datcher abused her position of trust with her daughters in the commission of all of

her crimes. We therefore conclude that Datcher’s aggregate thirty-five-year sentence was

not inappropriate in light of the nature of the offenses and the defendant’s character.

       Affirmed.

NAJAM, J., and MAY, J., concur.




                                             14
