MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                      Apr 17 2015, 9:31 am
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
Marce Gonzales, Jr.                                       Gregory F. Zoeller
Dyer, Indiana                                             Attorney General of Indiana

                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Ray Barnett, Jr.,                                 April 17, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          45A05-1408-CR-374
        v.                                                Appeal from the Lake Superior
                                                          Court
                                                          Cause No. 45G03-1210-FA-28
State of Indiana,
Appellee-Plaintiff.                                       The Honorable Diane Ross Boswell,
                                                          Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015       Page 1 of 9
                                               Case Summary

[1]   Kenneth Ray Barnett, Jr., appeals his convictions for Class A felony child

      molesting and Class C felony child molesting. We affirm.


                                                      Issue

[2]   The issue is whether the trial court abused its discretion in admitting evidence

      referencing Barnett’s criminal charges in another jurisdiction.


                                                      Facts

[3]   Barnett and Julie Roshanmanesh met in March 2007 and married in June 2009.

      Barnett moved in with Roshanmanesh at her home in LaPorte, Indiana, a few

      weeks after they met. Roshanmanesh had two children: a daughter, H.H., who

      was around ten years old, and a son, T.H., who was around eight years old.

      The family moved from LaPorte to Hobart, Indiana, (on Missouri Street) in

      November 2007, then to Louisiana in June 2009, and returned to Hobart (on

      Home Street) in September 2009. Barnett served as a “father figure” to H.H.

      and T.H., whose biological father was effectively absent. Tr. p. 109.


[4]   H.H. was subjected to several incidents of sexual abuse perpetrated by Barnett

      during the approximately four years that Barnett lived with the family. On one

      occasion at the Missouri Street residence, when Roshanmanesh was not home,

      Barnett called H.H., who was playing outside with T.H., inside the house.

      Barnett indicated that only H.H. should come. H.H. went into Barnett’s room

      and sat down on the bed. Barnett, who was seated at his computer, instructed

      Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 2 of 9
      H.H. to sit on his lap. Barnett began “caressing” H.H.’s lower back and leg and

      touched H.H. under her shirt. Id. at 106. Barnett also put his hand in H.H.’s

      pants and touched her vagina with his fingers and the back of his hand. After

      he heard a door shut, Barnett “stopped immediately” and directed H.H. to go

      downstairs. Id. at 108.


[5]   On another occasion at the Missouri Street residence, H.H. went upstairs to say

      goodnight to her mother, who was in the computer room, and Barnett, who

      was in the bedroom. Barnett leaned in to give H.H. a hug and a kiss and

      inserted his hand under H.H.’s baggy nightshirt and stuck his hand down the

      back and side of H.H.’s underwear, touching her buttocks.


[6]   On another occasion, at the Home Street residence, while Barnett and H.H.

      were alone in the house, Barnett summoned H.H. into his bedroom. While

      H.H. was sitting on the edge of the bed, Barnett forced H.H. down on the bed

      and straddled her. Barnett held H.H.’s face to prevent her from moving.

      Barnett unzipped his jeans, removed his penis, and positioned it toward H.H.’s

      face. Barnett’s penis went between H.H.’s lips but not between her teeth.

      Barnett also kissed H.H. on the side of her face. After he heard a knock at the

      door, Barnett stopped and went downstairs. H.H. testified that, during the time

      in which Barnett lived with the family, Barnett attempted to force his penis in

      her mouth “numerous times.” Id. at 128, 150.


[7]   Also, on several occasions, Barnett would go into H.H.’s bedroom at night

      while H.H. was in bed. Barnett would take H.H.’s hand and guide it to stroke


      Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 3 of 9
       his penis. During these incidents, H.H. was “very scared” and pretended to be

       asleep. Id. at 128.


[8]    When the family lived in LaPorte, H.H. reported having pain and other

       “issues” in her vaginal area. Id. at 74. Roshanmanesh suggested that H.H.

       undergo an examination, but Barnett advised against medical treatment,

       reasoning that Roshanmanesh could not afford it. Instead, Barnett took

       Roshanmanesh to purchase some Vagisil cream.


[9]    Because she did not want to disrupt her mother’s happiness, H.H. did not tell

       her mother about the continuing sexual abuse. Barnett also ordered H.H. not

       to notify anyone, explaining to H.H. that no one would believe her. In

       December 2010, Barnett and Roshanmanesh separated, although Barnett

       continued to make intermittent contact.


[10]   In fall 2012, when H.H. was about fifteen years old, Roshanmanesh began

       receiving frequent phone calls from Barnett, and he began “coming around

       again.” Id. at 132. This made H.H. anxious, and she began skipping her high

       school classes. When Roshanmanesh was notified by the school about H.H.’s

       absences, she confronted H.H. Roshanmanesh asked H.H. what was provoking

       her truancy, and H.H. broke down into “hysterics” and told her mother about

       the sexual abuse. Id. at 65. Roshanmanesh went to the police station and

       reported Barnett.


[11]   The State charged Barnett with Class A felony child molesting and Class C

       felony child molesting. At the jury trial, during opening statement, the

       Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 4 of 9
       prosecutor explained that H.H. had endured Barnett’s sexual abuse from 2007

       to 2010 and stated that Roshanmanesh’s testimony would reveal that Barnett

       “has charges in Louisiana for these same . . . type incidents [sic].” Id. at 32.

       Barnett’s counsel objected to the reference to extra-jurisdictional charges, and

       the trial court noted but overruled the ongoing objection. Barnett’s counsel also

       requested a mistrial, which was denied. During witness testimony, the

       prosecutor asked Roshanmanesh about the charges pending against Barnett in

       Louisiana, to which Barnett’s counsel objected. The court permitted the line of

       inquiry, and Roshanmanesh testified that Barnett “has two charges in

       Louisiana,” one of which she characterized as a “rape” charge. Id. at 69.

       During the trial, one juror submitted a question pertaining to this testimony:

       “What is the status of the Louisiana charges [?]” Tr. Jury Trial Juror Questions

       p. 2. This question was not read aloud or answered in court.


[12]   Barnett was convicted as charged and now appeals.


                                                    Analysis

[13]   Barnett argues that the trial court’s admitting reference to and evidence of

       charges in another jurisdiction was improper and warrants a new trial. “The

       evidentiary rulings of a trial court are afforded great deference on appeal and

       are overturned only upon a showing of an abuse of discretion.” Herrera v. State,

       710 N.E.2d 931, 935 (Ind. Ct. App. 1999), trans. denied. A trial court’s decision

       to admit evidence will not be reversed “absent a showing of manifest abuse of




       Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 5 of 9
       the trial court’s discretion resulting in denial of a fair trial.” Minnick v. State,

       544 N.E.2d 471, 477 (Ind. 1989).


[14]   Barnett argues that the admissions at trial violated Indiana Evidence Rule

       404(b), which proscribes admission of “[e]vidence of a crime, wrong, or other

       act” to prove a person’s propensity to certain acts or behavior. The rule serves

       to avoid the “forbidden inference”: that the defendant has a criminal propensity

       and, therefore, is guilty of the presently charged offense. Hicks v. State, N.E.2d

       215, 218-19 (Ind. 1997). When assessing the admissibility of evidence objected

       to on Rule 404(b) grounds, the following standard is applied: “(1) the court

       must determine that 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; and (2) the court must balance the probative value of the evidence against

       its prejudicial effect . . . .” Id. at 221. Even if admission of the evidence was

       improper, however, we need not reverse or set aside the trial court’s ruling if the

       error was harmless. See, e.g., Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998);

       Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993).


[15]   Regarding the first prong of the Rule 404(b) test, Barnett argues that the State’s

       sole intention in mentioning the Louisiana charges was for the impermissible

       purpose of showing his criminal propensity. The State counters that reference

       to the Louisiana charges is admissible for purpose of demonstrating Barnett’s

       criminal plan, as manifest in the continuity of the sexual molestation. Although

       Rule 404(b)(2) expressly allows “plan” as a permissible purpose, this court has

       clarified that the Rule is a narrower exception than its common-law predecessor

       Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 6 of 9
       and that “[w]e must take care to ensure that Rule 404(b)’s exceptions do not

       swallow the rule.” Remy v. State, 17 N.E.3d 396, 399-400 (Ind. Ct. App. 2014),

       trans. denied; see also Greenboam v. State, 766 N.E.2d 1247, 1253 (Ind. Ct. App.

       2002), trans. denied.


[16]   As to the second prong, Barnett contends that mention of the extra-

       jurisdictional charges is only relevant to the forbidden propensity inference and,

       therefore, its probative value is substantially outweighed by its prejudicial effect.

       The State argues that the brevity of the two references negates their prejudicial

       effect. Evidence of distinct criminal charges of the same type at bar can be

       “highly prejudicial.” Thompson v. State, 690 N.E.2d 224, 235 (Ind. 1997). The

       trial court, however, maintains “wide latitude . . . in weighing the probative

       value of the evidence against the possible prejudice of its admission.” Evans v.

       State, 727 N.E.2d 1072, 1079 (Ind. 2000).


[17]   Even assuming that references to the Louisiana charges were improperly

       admitted in violation of Rule 404(b), the trial court’s decision to admit that

       evidence does not warrant reversal, as the admission amounted to harmless

       error. H.H. testified at length to the incidents detailed above. References to the

       charges pending against Barnett in Louisiana were not “critical” to the State’s

       case but were marginally significant in light of H.H.’s testimony describing

       years of sexual abuse. See Thompson, 690 N.E.2d at 236.


[18]   Mention of the Louisiana charges was not a “steady drumbeat” in the State’s

       case. James v. State, 622 N.E.2d 1303, 1310 (Ind. Ct. App. 1993). The


       Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 7 of 9
       Louisiana charges were raised in two isolated points during the trial. The

       State’s direct examination of H.H., the principal evidence in the case, elicited

       details about each of the incidents outlined above but omitted any reference to

       pending charges in Louisiana. References to the Louisiana charges were

       limited to brief discussions during the State’s opening statement and

       Roshanmanesh’s testimony. Given that H.H. recounted in detail the ongoing

       molestation as well as discrete incidents of abuse in Hobart and LaPorte, such

       “substantial independent evidence of guilt” makes it “unlikely that the

       erroneously admitted evidence played a role in the conviction.” Newman v.

       State, 719 N.E.2d 832, 837-38 (Ind. Ct. App. 1999), trans. denied.


[19]   Barnett claims that the juror’s question about the Louisiana charges suggests

       that mention of the charges was not wholly inconsequential. A single,

       undisclosed inquiry by a juror, however, does not establish a “substantial

       likelihood” that the evidence contributed to the jury’s unanimous finding of

       guilt. Sundling v. State, 679 N.E.2d 988, 994 (Ind. Ct. App. 1997). In light of

       H.H.’s unequivocal, detailed testimony about the charged sexual abuse, two

       brief references to charges pending in Louisiana are “sufficiently minor so as

       not to affect the substantial rights” of Barnett and, accordingly, their admission

       constitutes harmless error. Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995).


                                                  Conclusion

[20]   Even if the trial court abused its discretion in admitting the evidence referencing

       Barnett’s Louisiana charges, such error was harmless. We affirm.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 8 of 9
[21]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1408-CR-374 |April 17, 2015   Page 9 of 9
