                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          Nov 15 2012, 8:39 am
any court except for the purpose of
establishing the defense of res judicata,                             CLERK
collateral estoppel, or the law of the case.                        of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

F. SCOTT STUARD                                    GREGORY F. ZOELLER
Frankfort, Indiana                                 Attorney General of Indiana

                                                   ERIC P. BABBS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KURT E. HINKLE,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 12A05-1204-CR-199
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE CLINTON CIRCUIT COURT
                         The Honorable Kathy R. Smith, Senior Judge
                              Cause No. 12C01-1008-FB-162



                                       November 15, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       During the summer of 2008, Kurt Hinkle began engaging in a sexual relationship with

K.G., who, at the time, was fifteen years old. Once this relationship commenced, Hinkle and

K.G. engaged in sexual intercourse two or three times a week. Hinkle and K.G.’s

relationship continued after K.G. turned sixteen and ultimately resulted in the birth of a child.

In August of 2010, the State charged Hinkle with two counts of Class B felony sexual

misconduct with a minor. During trial, the trial court admitted evidence of Hinkle and K.G.’s

continuing relationship after K.G. turned sixteen. The trial court instructed the jury that it

could only consider the evidence as evidence of Hinkle and K.G.’s relationship, not as

evidence of any wrongdoing by Hinkle. Following trial, the jury found Hinkle guilty of both

counts of Class B felony sexual misconduct with a minor. On appeal, Hinkle contends that

the trial court abused its discretion in admitting evidence of his continuing sexual

relationship with K.G. Concluding that the admission of the evidence, even if erroneous, was

harmless, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       K.G. was born on October 23, 1992. Hinkle was born on August 20, 1963. K.G. was

fifteen years old during the summer of 2008, and was working her first job detasseling corn.

Each morning, a bus would pick K.G. and her co-workers up at the convenience store where

Hinkle worked. K.G. became familiar with Hinkle when she purchased chocolate donuts

from the convenience store each morning while waiting for the bus. At some point, Hinkle,

who was running for Clinton County Surveyor, gave K.G. a campaign button and asked K.G.

to work on his campaign. K.G. agreed and soon after began attending campaign functions

                                               2
with Hinkle and his wife.

       One day in late July or early August of 2008, K.G. went to the home Hinkle shared

with his wife following a campaign event. While at the home, Hinkle took K.G. on a tour of

the property. Hinkle led K.G. into a shed, grabbed K.G., and kissed her, putting his tongue in

K.G.’s mouth. Hinkle then took K.G.’s shorts and underwear off, turned her around, and

placed his penis in K.G.’s vagina. K.G. “didn’t know what to think” so she “just kind of

…went along with it.” Tr. pp. 108-09. Hinkle stopped before completion.

       Later that evening, Hinkle drove K.G. home following another campaign event.

While driving along a “narrow country road in the middle of nowhere,” Hinkle suddenly

stopped the vehicle. Tr. p. 116. Hinkle instructed K.G. to come over to the driver’s seat,

“laid [her] down across the passenger seat,” and took her pants and underwear off. Tr. p.

116. Hinkle then engaged in sexual intercourse with K.G. Hinkle continued to engage in

sexual intercourse with K.G. throughout the late summer and early fall of 2008. During this

time, Hinkle and K.G. engaged in sexual intercourse “two or three times a week.” Tr. p. 119.

K.G. testified that she engaged in sexual conduct with Hinkle “[c]ause he was nice to me.”

Tr. p. 119.

       On August 10, 2010, the State charged Hinkle with two counts of Class B felony

sexual misconduct with a minor.1 December 7, 2011, Hinkle filed a Motion in Limine

concerning evidence of certain other alleged misconduct by Hinkle, i.e., evidence of a

continuing relationship between Hinkle and K.G. after K.G. turned sixteen. On December


       1
           Ind. Code § 35-42-4-9(a)(1) (2008).
                                                 3
19, 2011, the State requested, and was subsequently granted, permission to amend the

charging information to include Count III, Class D felony performance before a minor that is

harmful to minors.2 Hinkle subsequently filed a motion to sever Count III from the first two

counts as well as multiple motions to dismiss Count III. Following a hearing, the trial court

denied each of Hinkle’s pending motions. The State subsequently moved to dismiss Count

III.

       Following a two-day trial on February 28 and 29, 2012, the jury found Hinkle guilty of

both counts of Class B felony sexual misconduct with a minor. On March 12, 2012, the trial

court sentenced Hinkle to an aggregate eleven-year sentence, with nine of the eleven years

executed in the Department of Correction and the remaining two years suspended to

probation. This appeal follows.

                                 DISCUSSION AND DECISION

       Hinkle contends that the trial court abused its discretion in admitting evidence at trial

of his continuing relationship with K.G. after she turned sixteen, in violation of Indiana

Evidence Rule 404(b).

       We review a trial court’s decision to admit or exclude evidence for an abuse of
       discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004). An abuse
       of discretion occurs if a trial court’s decision is clearly against the logic and
       effect of the facts and circumstances before the court. Id. However, the
       improper admission of evidence is harmless error when the conviction is
       supported by substantial independent evidence of guilt sufficient to satisfy the
       reviewing court that there is no substantial likelihood that the questioned
       evidence contributed to the conviction. Hernandez v. State, 785 N.E.2d 294,
       300 (Ind. Ct. App. 2003), trans. denied.


       2
           Ind. Code § 35-49-3-3(a)(4) (2008).
                                                 4
Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004).

       Indiana Evidence Rule 404(b) provides that although 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 be admissible for other purposes, such as proof of motive,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b)

“is designed to prevent the jury from assessing a defendant’s present guilty on the basis of his

past propensities, the so called ‘forbidden inference.’” Hicks v. State, 690 N.E.2d 215, 219

(Ind. 1997). Evidence is excluded under Rule 404(b) “only when it is introduced to prove the

‘forbidden inference’ of demonstrating the defendant’s propensity to commit the charged

crime.” Herrera v. State, 710 N.E.2d 931, 935 (Ind. Ct. App. 1999).

       Furthermore, the Indiana Supreme Court has held that “[o]ur analysis of admissibility

under Rule 404(b) necessarily incorporates the relevancy test of [Indiana Evidence] Rule 401

and the balancing test of [Indiana Evidence] Rule 403.” Sanders v. State, 704 N.E.2d 119,

123 (Ind. 1999) (citing Hicks, 690 N.E.2d at 221). Thus, in admitting evidence of other

crimes, wrongs, or acts, the trial court must first determine that the evidence is relevant to a

matter at issue other than the defendant’s propensity to commit the charged act. Id. (citing

Hicks, 690 N.E.2d at 221). “Relevance is broadly defined as probative value, and the trial

court has wide discretion in ruling on the relevance of proffered evidence.” Id. at 124 (citing

Hicks, 690 N.E.2d at 220). If the trial court determines that the evidence is relevant, it must

then balance the probative value of the evidence against its prejudicial effect pursuant to

Rule 403. Id. at 123 (citing Hicks, 690 N.E.2d at 221).

                                               5
       In the instant matter, Hinkle argues that the evidence of his continuing relationship

with K.G. after K.G. turned sixteen was inadmissible under Rule 404(b) because it was

introduced solely to prove that he had the propensity to engage in a sexual relationship with a

minor. For its part, the State argues that the evidence was admissible because it was not

introduced to prove that Hinkle had the propensity to engage in criminal conduct, but rather

to show the ongoing nature of Hinkle and K.G.’s relationship. In support, the State points

out that the trial court instructed the jury that the evidence was admitted for the sole purpose

of showing the relationship between Hinkle and K.G. and “should be considered only for that

limited purpose.” Tr. p. 359. The State claims that the evidence of the continuing

relationship between Hinkle and K.G. was relevant to show that Hinkle and K.G.’s

relationship “was characterized by Hinkle’s sexual interest in K.G. and that Hinkle was not

an innocent friend.” Appellee’s Br. p. 8.

       Without deciding whether the evidence of Hinkle and K.G.’s continuing relationship

was relevant under Rule 401, we conclude that the admission of the evidence was, at most,

harmless.   Again, “the improper admission of evidence is harmless error when the

defendant’s conviction is supported by substantial independent evidence of guilt sufficient to

satisfy the reviewing court that there is no substantial likelihood that the questioned evidence

contributed to the conviction.” Ware, 816 N.E.2d at 1175 (Ind. Ct. App. 2004) (citing

Hernandez, 785 N.E.2d at 300). The record here demonstrates that Hinkle’s convictions are

indeed supported by substantial independent evidence of guilt.

       K.G. provided unequivocal testimony regarding her sexual encounters with Hinkle

                                               6
during the late-summer and early-fall of 2008, including sexual intercourse in a shed on

Hinkle’s property and in Hinkle’s car along a country road. These sexual encounters

occurred when K.G. was fifteen years old. K.G. further testified that after the above-

mentioned sexual encounters but prior to her sixteenth birthday, she and Hinkle engaged in

sexual intercourse two or three times a week. Upon review, we are satisfied that, in light of

K.G.’s unequivocal testimony regarding her sexual encounters with Hinkle which occurred

before she turned sixteen, there is no substantial likelihood that the evidence of Hinkle’s

relationship with K.G. after she reached the age of sixteen contributed to Hinkle’s conviction.

As such, the admission of the challenged evidence, to the extent improper, was harmless. See

Ware, 816 N.E.2d at 1175.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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