MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                         Dec 27 2017, 8:32 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
William J. Cohen                                        Curtis T. Hill, Jr.
Cohen Law Offices                                       Attorney General of Indiana
Elkhart, Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brent N. Draime,                                        December 27, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1704-CR-870
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        20D03-1501-FA-5



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017          Page 1 of 15
                                       Statement of the Case
[1]   Brent N. Draime appeals his convictions, following a jury trial, and his sentence

      for three counts of child molesting, each as a Class A felony, and two counts of

      attempted child molesting, each as a Class A felony. Draime raises six issues

      for our review, which we restate as the following four issues:


              1.      Whether the trial court abused its discretion under Indiana
                      Evidence Rule 404(b) when it permitted the victim to
                      testify about certain photographs and the number of times
                      that Draime had forced her to perform oral sex on him.


              2.      Whether the trial court committed fundamental error
                      when it permitted a video statement made by the victim
                      ten years prior to the charges to be played to the jury.


              3.      Whether the State presented sufficient evidence to support
                      Draime’s convictions.


              4.      Whether Draime’s 120-year sentence is inappropriate.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Around 1993, when N.P. was four years old, her mother began dating Draime.

      A few years later, N.P. and her family moved into an apartment with Draime.

      N.P. considered Draime “a father figure.” Tr. Vol. II at 236.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 2 of 15
[4]   Between 1996 and 2003, Draime repeatedly molested N.P. On some occasions,

      he performed oral sex on her. On others, he had her perform oral sex on him.

      On still other occasions, he would have her manually stimulate him.


[5]   During those years, Draime showed N.P. photographs of naked women,

      including a photograph of N.P.’s mother masturbating. Draime also showed

      N.P. photographs of women performing oral sex. And Draime showed N.P.

      sexually explicit videos, including a video of Draime and N.P.’s mother

      engaging in sexual activity. On at least one occasion, Draime took several

      photographs of N.P. while her vagina was exposed.


[6]   During N.P.’s early teenage years, while at a local festival, N.P. wanted to get

      “Henna art on [her] hand.” Tr. Vol. III at 22. On another occasion during

      those years, N.P. wanted to get her belly button pierced. On both occasions,

      Draime told N.P. she would have “to do something for him” in exchange. Id.

      N.P. understood Draime to be “bartering for [sexual] acts,” which she declined

      to do both times. Id.


[7]   In 2004, a neighbor observed N.P. smoking marijuana and confronted N.P.

      During that conversation, N.P. reported Draime’s acts to the neighbor, and the

      neighbor, in turn, contacted the Child and Family Advocacy Center (“CFAC”).

      N.P. then gave a video-recorded statement to a CFAC investigator in which she

      described Draime’s actions. However, following N.P.’s recorded statement, the

      investigator immediately suspended the case rather than conducting any further

      investigation.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 3 of 15
[8]    About a decade later, N.P., an adult, contacted local police to find out what

       had happened with the 2004 investigation. Detective Jeremy Stout with the

       Elkhart County Sheriff’s Department received N.P.’s request, obtained her 2004

       CFAC video-recorded statement, and interviewed N.P. N.P. told Detective

       Stout of Draime’s actions, and her descriptions were consistent with her 2004

       statement.1 Accordingly, Detective Stout reopened the investigation into

       Draime.


[9]    Thereafter, Detective Stout interviewed Draime. Detective Stout observed that,

       during the interview, Draime was “nervous and stressed.” Tr. Vol. IV. at 163.

       Draime denied N.P.’s allegations generally but provided statements that

       corroborated portions of N.P.’s statements. For example, Draime confirmed

       that he had Polaroid photographs of nude women in his toolbox, and he

       confirmed that he shaved his pubic region.


[10]   On February 17, 2017, the State filed an amended information against Draime

       in which the State alleged that Draime had committed three Class A felony acts

       of child molesting and two Class A felony acts of attempted child molesting.

       Each of the State’s five charges alleged an act “between[] 1996[] and December

       24, 2003,” in Elkhart County between Draime and N.P., and each charge

       recited the relevant statutory language, but the charges were otherwise not

       factually specific. Appellant’s App. Vol. II at 127-28.



       1
         Detective Stout stated that he was, “putting it lightly, very frustrated” by the 2004 decision to suspend the
       investigation following N.P.’s recorded statement. Tr. Vol. IV at 149. He also stated that the 2004 decision
       to suspend the investigation would “not happen” under current practices. Id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017             Page 4 of 15
[11]   N.P. testified at Draime’s ensuing jury trial. During her testimony, the State

       asked N.P., over Draime’s objections, to describe the different photographs and

       videos Draime had allegedly shown her or taken of her. The State also asked

       N.P., again, over Draime’s objections, “how many times specifically from the

       time you were in first grade [in 1996] through Christmastime of 2003 that you

       had to perform . . . oral sex on the defendant?” Tr. Vol. III at 52. N.P.

       responded, “[t]wenty or more.” Id. at 55.


[12]   In his cross-examination of N.P., Draime repeatedly attacked her recollection

       of the molestations. He also questioned whether N.P. “just ma[d]e these things

       up” in 2004 after her neighbor had caught her smoking marijuana. Id. at 139-

       44. In response to Draime’s cross-examination, the State requested that the

       2004 CFAC video recording and N.P.’s 2014 interview with Detective Stout be

       admitted into the record. The trial court granted the State’s request over

       Draime’s objections.


[13]   The jury found Draime guilty as charged. The trial court entered its judgment

       of conviction against Draime and ordered him to serve an executed term of 120

       years. In reaching that sentence, the court identified the following aggravating

       circumstances, which were in accordance with a stipulation between Draime

       and the State:


               defendant has [a] prior operating while intoxicated case; victim
               was less than 12 years of age at the time of the
               offense . . . ; . . . the victim was 6 years old and in first grade and
               ended [sic] when victim was 13 years old and in eighth grade; for
               seven years conduct was continued intermittently . . . ; defendant

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 5 of 15
               was in a position of having care and control of the victim as the
               defendant was viewed as the father figure in this household[,
               and] defendant was looked to [to] fulfill that role.


       Appellant’s App. Vol. II at 30. The court found as a mitigating circumstance

       Draime’s service in the United States military and his honorable discharge from

       that service. This appeal ensued.


                                      Discussion and Decision
                       Issue One: Admission of N.P.’s Testimony Regarding
                          the Photographs and the Number of Molestations

[14]   On appeal, Draime first contends that the trial court abused its discretion when

       it permitted N.P. to testify, over Draime’s objections, about the photographs

       and the number of times that Draime had made N.P. perform oral sex on him.

       As our Supreme Court has explained:


               Generally, a trial court’s ruling on the admission of evidence is
               accorded a great deal of deference on appeal. Because the trial
               court is best able to weigh the evidence and assess witness
               credibility, we review its rulings on admissibility for abuse of
               discretion and only reverse if a ruling is clearly against the logic
               and effect of the facts and circumstances and the error affects a
               party’s substantial rights.


       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (citations and quotation marks

       omitted).


[15]   Here, Draime objected in the trial court to the challenged evidence on two

       grounds. First, he argued that the evidence was prohibited under Indiana

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 6 of 15
       Evidence Rule 404(b), which generally prohibits “[e]vidence of a crime, wrong,

       or other act . . . to prove a person’s character in order to show that on a

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

       Second, he argued that any probative value of the evidence was “substantially

       outweighed by a danger of . . . unfair prejudice,” and, as such, the evidence

       should have been excluded under Indiana Evidence Rule 403. However, on

       appeal Draime limits his arguments to only Rule 404(b). See Appellant’s Br. at

       10-15.2


[16]   The trial court did not abuse its discretion under Rule 404(b) when it permitted

       N.P.’s testimony regarding the photographs. By its plain terms, evidence of

       prior acts is permitted under Rule 404(b) when that evidence is offered “for

       another purpose, such as proving motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” Here, N.P.’s

       testimony regarding the photographs was not admitted to show Draime’s

       propensity to commit sex offenses; rather, her testimony was admitted to show

       that Draime had prepared N.P. to be more comfortable with engaging him in

       sexual acts. See, e.g., Guffey v. State, 42 N.E.3d 152, 160-61 (Ind. Ct. App. 2015)

       (“We have previously held that a defendant’s planning and grooming were

       relevant and established a valid basis for the admission of prior acts under Rule

       404(b).”), trans. denied.



       2
         Although Draime references Rule 403 in his brief, he does not present argument supported by cogent
       reasoning on appeal under that Rule, and it is not this Court’s place to make that argument on his behalf. See
       Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017           Page 7 of 15
[17]   Still, Draime argues that the admission of N.P.’s testimony was contrary to our

       Supreme Court’s holding in Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002).

       In Buchanan, the trial court permitted the State to introduce evidence that the

       defendant had drawn pictures of “naked little girls.” Id. The trial court also

       permitted the State to introduce evidence that the defendant owned a

       pornographic magazine titled “Little Girls,” which was legal pornography. See

       Buchanan v. State, 742 N.E.2d 1018, 1022 (Ind. Ct. App. 2001), rev’d, 767

       N.E.2d at 970. Our Supreme Court agreed with our Court that the admission

       of that evidence was erroneous because “[n]one of the drawings or photographs

       showed physical contact between an adult male and a female child” and “the

       drawings and photographs . . . [we]re not tied to [the defendant’s] relationship

       with the victim or to any other facts of [the defendant’s] crime.” Id., rev’d, 767

       N.E.2d at 970. Nonetheless, our Supreme Court held that the erroneous

       admission of that evidence was harmless. 767 N.E.2d at 970.


[18]   Buchanan is inapposite. Unlike in that case, here Draime presented the

       materials to his victim; some of those materials showed sexual acts that Draime

       had demanded of N.P.; some of those materials showed N.P.’s mother engaged

       in sexual activity; and some of the materials involved N.P. herself. In other

       words, N.P.’s testimony regarding the photographs was tied to Draime’s

       relationship with her and to his crimes against her. Accordingly, Rule 404(b)

       did not prohibit N.P.’s testimony regarding the photographs.


[19]   Draime also asserts that the trial court abused its discretion under Rule 404(b)

       when it permitted N.P. to testify that Draime had forced her to perform oral sex

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 8 of 15
       on him at least twenty times.3 In support of his argument on this issue, Draime

       relies on this Court’s opinion in Stettler v. State, 70 N.E.3d 874, 880 (Ind. Ct.

       App. 2017), trans. denied. In Stettler, the trial court admitted into evidence

       “events that occurred [between the victim and the defendant] several years prior

       to the conduct charged.” Id. We held that the trial court abused its discretion

       under Rule 404(b) in the admission of that evidence. Id. at 880-81.


[20]   Stettler does not apply here, however, where the victim’s testimony regarding

       the number of times she had been molested was within the timeframe of each of

       the State’s multiple charges against Draime. Such testimony does not describe

       prohibited acts under Rule 404(b) but, rather, is “evidence . . . intrinsic to the

       charge[s] . . . and therefore outside” Rule 404(b). Marshall v. State, 893 N.E.2d

       1170, 1175 (Ind. Ct. App. 2008). Moreover, the State did not specify in its

       charging information particular and distinct facts in support of each charge, and

       Draime in turn did not rely on any such stated facts in the preparation of his

       defense. Cf. Young v. State, 30 N.E.3d 719, 726-28 (Ind. 2015) (holding that it is

       fundamental error to convict a defendant based on facts that are different from

       facts stated in the charging information when the defendant has relied on the

       language of the information in the preparation of his defense). Rather, the State

       merely alleged that, within a span of about eight years, Draime had committed

       or attempted to commit five Class A felony acts of child molesting. N.P.’s



       3
         Draime’s final paragraph in his brief on this issue, which spans pages 14 and 15 of his brief, is unclear. As
       we will not make an argument on behalf of a party, we do not interpret that paragraph to raise a different
       argument on appeal than the argument we address.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017            Page 9 of 15
       testimony that he committed more than that number in that timeframe was

       intrinsic to the State’s charges. Accordingly, the trial court did not abuse its

       discretion under Rule 404(b) when it permitted N.P. to testify about the number

       of times Draime had forced her to perform oral sex on him.


                                Issue Two: Admission of the CFAC Video

[21]   Draime next asserts that the trial court erred when it permitted the State to play

       the CFAC video to the jury. As the grounds Draime raises on appeal against

       the admission of the CFAC video are different than the grounds on which he

       objected in the trial court,4 on appeal Draime must show that the trial court

       committed fundamental error in admission of the video. See Stephenson v. State,

       29 N.E.3d 111, 118, 121 (Ind. 2015).5 Fundamental error is error that makes “a

       fair trial impossible” and “is available only in egregious circumstances.” Brown

       v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quotation marks omitted). On

       appeal, Draime asserts that the trial court committed fundamental error when it

       admitted the CFAC video because “[t]he State did not follow the admission

       procedure set out in Ind. Code § 35-37-4-6,” which describes the admissibility of

       video statements made by protected persons. Appellant’s Br. at 16.



       4
         The only objection to the CFAC video Draime maintained in the trial court was that the video should not
       be admitted because, at the time it was made, N.P. was not subject to cross-examination. Tr. Vol. III at 168.
       Despite his assertions on appeal, in the trial court Draime withdrew his objection that he “was never given
       the CFAC video with an opportunity to review it.” Id. at 167-68.
       5
          We note that our Supreme Court has held that fundamental error is not available on appeal when the
       defendant stated in the trial court that he had “no objection” to the admission of evidence. Halliburton v.
       State, 1 N.E.3d 670, 677 (Ind. 2013). However, in Stephenson our Supreme Court stated that fundamental
       error is available on appeal when the defendant objects to the admission of evidence on one ground in the
       trial court but proffers a different rationale on appeal. 29 N.E.3d at 121.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017          Page 10 of 15
[22]   Indiana Code Section 35-37-4-6 (2017) plainly did not apply to the CFAC

       video. Section 35-37-4-6 applies to recorded statements of protected persons.

       As relevant here, a protected person is “a child who is less than fourteen (14)

       years of age . . . at the time of trial.” I.C. § 35-47-4-6(c)(1), (d)(1). At the time

       of Draime’s trial, N.P. was not a child, let alone a child under fourteen years of

       age.6 Accordingly, no error, and no fundamental error, occurred in the

       admission of the CFAC video under Indiana Code Section 35-37-4-6.


                                  Issue Three: Sufficiency of the Evidence

[23]   Draime next asserts that the State failed to present sufficient evidence to support

       his convictions. Our standard of review is clear: in reviewing such claims, we

       will consider only the evidence most favorable to the verdict and the reasonable

       inferences to be drawn therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind.

       2017). We will affirm the conviction if there is probative evidence from which

       a reasonable jury could have found the defendant guilty beyond a reasonable

       doubt. Id. We will neither reweigh the evidence nor reassess the credibility of

       witnesses. Id.


[24]   Draime’s first argument on this issue is that N.P.’s testimony was incredibly

       dubious. As our Supreme Court has explained:




       6
         In his brief, Draime also requests that, “[i]n the event this Court reverses and remands for a new trial,” we
       “rule upon a discovery issue involving the CFAC video.” Appellant’s Br. at 17. As we are neither reversing
       nor remanding, we do not consider Draime’s purported “discovery issue.”

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017           Page 11 of 15
               The incredible dubiosity rule allows the Court to impinge upon a
               jury’s responsibility to judge the credibility of the witnesses only
               when confronted with inherently improbable testimony. The
               incredible dubiosity rule is only applied in limited circumstances.


                                                      ***


               . . . the appropriate scope of the incredible dubiosity rule as
               utilized in Indiana and other jurisdictions requires that there be:
               1) a sole testifying witness; 2) testimony that is inherently
               contradictory, equivocal, or the result of coercion; and 3) a
               complete absence of circumstantial evidence.


       Moore v. State, 27 N.E.3d 749, 754, 756 (Ind. 2015) (citation and quotation

       marks omitted). Even when there is a sole testifying witness, the incredible

       dubiosity rule may not apply. Id. at 755. To apply, the witness’ testimony

       “must be so convoluted and/or contrary to human experience that no

       reasonable person could believe it.” Id. at 756 (citation and quotation marks

       omitted).


[25]   The incredible dubiosity rule does not apply here for at least two reasons. First,

       N.P. was not a sole testifying witness. While she was the only testifying

       eyewitness to the molestations, various other witnesses testified and those

       witnesses corroborated other parts of N.P.’s testimony. For example, N.P.’s

       mother testified that she and Draime had made a video of them engaging in

       sexual activity. N.P.’s mother also corroborated N.P.’s testimony that Draime

       was not circumcised and that he often shaved his pubic region. Similarly,

       Detective Stout testified that he had interviewed Draime, that Draime had

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 12 of 15
       similarly corroborated key aspects of N.P.’s allegations, and that, during the

       interview, Draime was nervous. Second, Draime’s assertions aside, nothing

       about N.P.’s testimony by itself was “so convoluted” or “contrary to human

       experience that no reasonable person could believe it.” Id. (citation and

       quotation marks omitted). Draime’s argument on appeal is, in essence, merely

       a request for this Court to reweigh the evidence and reassess N.P.’s credibility,

       which we will not do.


[26]   Draime also asserts that the State failed to present sufficient evidence to support

       either of the two attempt charges. In particular, Draime states that, when N.P.

       “declined the proposals” Draime had made following her request for Henna art

       and to get her belly button pierced, “there was no attempt as a matter of law

       based upon the test set out in” Ward v. State, 528 N.E.2d 52, 53-54 (Ind. 1988).

       Appellant’s Br. at 21. But in Ward our Supreme Court held that the State

       presented sufficient evidence that the defendant had attempted to molest one of

       his victims when the evidence showed that the defendant had followed his

       eleven-year-old victim—whom the defendant had never before met—

       approached the victim, and thrice requested the victim to engage in oral sex.

       Ward, 528 N.E.2d at 55. In light of those facts, our Supreme Court held that

       the defendant’s demands were “substantially in the nature of persuasion” and

       therefore an attempt. Id.


[27]   The instant facts are even more compelling than those in Ward. Draime lived

       with N.P., he had a father-like position over her, and his demands, which she

       declined, were made against a background of prior molestations. We conclude

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 13 of 15
       that, although N.P. declined Draime’s demands, his demands were

       “substantially in the nature of persuasion” and therefore attempts on these facts.

       Id. Further, we reject the implication in Draime’s argument that N.P. had to

       accept Draime’s solicitations for those solicitations to become crimes.

       Accordingly, we affirm Draime’s convictions.


                                              Issue Four: Sentencing

[28]   Last, Draime challenges his 120-year sentence. We begin our review of this

       issue by noting that Draime repeatedly refers to his sentence as “unreasonable”

       or “manifestly unreasonable.”7 Appellant’s Br. at 22-23. We remind Draime

       that we have not reviewed sentences under the manifestly-unreasonable

       standard for more than fourteen years. Since January 1, 2003, Indiana

       Appellate Rule 7(B) has permitted the appellate revision of sentences only when

       “the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” Ind. Appellate Rule 7(B).


[29]   Substantively, Draime’s entire argument against his 120-year sentence is as

       follows: “such a sentence for a 64 year old man whose only criminal history

       consists of a Class C misdemeanor . . . is manifestly unreasonable. One

       hundred twenty (120) years is a sentence that is greater than life for the




       7
         Draime also states that “the trial court abused its discretion” when it sentenced him. Appellant’s Br. at 22.
       But Draime does not support that argument with cogent reasoning, and it is waived. App. R. 46(A)(8)(a).
       Moreover, insofar as Draime complains that the trial court used his criminal history as an aggravating
       circumstance, the trial court’s identification of aggravators was pursuant to a stipulation between Draime and
       the State. Thus, any error in the court’s identification of aggravators was invited by Draime. See Baugh v.
       State, 933 N.E.2d 1277, 1280 (Ind. 2010).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017          Page 14 of 15
       defendant.” Appellant’s Br. at 23. We interpret Draime’s argument to be that

       his sentence is inappropriate in light of his character. However, that argument,

       by itself, is not sufficient to invoke this Court’s authority to revise a sentence

       under Rule 7(B). Rather, to invoke this Court’s authority under Rule 7(B), the

       appellant must persuade this Court that his sentence is inappropriate in light of

       both the nature of the offenses and the appellant’s character. Sanders v. State, 71

       N.E.3d 839, 843-44 (Ind. Ct. App. 2017), trans. denied. Draime’s argument on

       appeal does not address his sentence in relation to the nature of his offenses. As

       such, he has waived our review of his sentence under Rule 7(B). Id. His waiver

       notwithstanding, Draime repeatedly molested N.P. over seven years while in a

       position of trust over her. As such, we cannot say that his sentence is

       inappropriate in light of the nature of the offenses and his character, and we

       affirm his sentence.


                                                   Conclusion

[30]   In sum, the trial court did not abuse its discretion in the admission of N.P.’s

       testimony regarding the photographs and the number of times Draime forced

       her to perform oral sex on him; the trial court did not commit fundamental

       error in the admission of the CFAC video; the State presented sufficient

       evidence to support Draime’s convictions; and Draime’s 120-year sentence is

       not inappropriate. Thus, we affirm his convictions and sentence.


[31]   Affirmed.


       Mathias, J., and Barnes, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017   Page 15 of 15
