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:

JESSE R. POAG                                       GREGORY F. ZOELLER
Newburgh, Indiana                                   Attorney General of Indiana

                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                           Aug 11 2014, 10:38 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

BULENT COLAK,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 82A01-1312-CR-557
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Kelli E. Fink, Magistrate
                             Cause No. 82C01-1305-FD-572



                                         August 11, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Bulent Colak challenges the sufficiency of evidence to support his conviction for class

D felony battery. He also alleges fundamental error in the trial court’s admission of certain

hearsay testimony provided by an emergency medical technician (“EMT”) pursuant to the

medical diagnosis exception. Finding the evidence sufficient and finding no fundamental

error, we affirm.

                              Facts and Procedural History

       Colak and his ex-wife Mary (“Mother”) have three daughters. On May 16, 2013, the

daughters, S.C., N.C., and D.C. (ages eleven, nine, and eight respectively), were staying at

Colak’s Vanderburgh County residence, and N.C. placed some clothes on the bathroom floor

so that she could shower immediately after dinner. While N.C. ate, Colak saw the clothes

and called D.C. upstairs, thinking that they belonged to her. When he discovered that the

clothes belonged to N.C., he called N.C. upstairs and began yelling at her and hitting her in

the face, causing her to bleed from the mouth and nose. D.C. observed as Colak punched

N.C. in the face and shoved her head, neck, and back into the bathroom sink. When the

stepmother heard the commotion and ran upstairs, Colak left the house.

       Shortly thereafter, the stepmother phoned Mother and prepared to take the children to

Mother’s home in Posey County. Colak returned and said that he would drive the girls.

During the trip, the three girls sat in the second row of the van, and N.C. kept trying to inch

as far away from Colak as possible. At one point, he reached back and pinched N.C.’s leg




                                              2
and told her that he was going to kill her. Meanwhile, Mother was on the cell phone with

Colak throughout the thirty-five to forty-five-minute commute and heard a commotion.

       Colak dropped off the girls at Mother’s house, protested his innocence, and left.

Mother phoned 911, and an ambulance arrived shortly thereafter. An EMT conducted a

trauma assessment on N.C., which involved asking her questions to assess alertness,

verifying that she did not have head, neck, or spinal injuries, and conducting a head-to-toe

check for any acute injuries that might be life-threatening. He then loaded her into the

ambulance and accompanied her to St. Mary’s Medical Center. On the way, he checked her

vital signs, listened to her lungs, and conducted a more thorough head-to-toe examination.

He also questioned her about her injuries, and she explained that she had been struck in the

face and pinched on the leg.

       The State charged Colak with class D felony battery and class D felony intimidation.

The jury found Colak guilty of battery and not guilty of intimidation. He now appeals his

battery conviction. Additional facts will be provided as necessary.

                                 Discussion and Decision

                       Section 1 – Sufficiency of Venue Evidence

       Colak challenges the sufficiency of evidence to establish Vanderburgh County as the

proper forum for his trial. When reviewing a claim of insufficient evidence to support venue,

we apply the same standard as for other sufficiency claims. Eberle v. State, 942 N.E.2d 848,

855 (Ind. Ct. App. 2011), trans. denied. We neither reweigh evidence nor judge witness

credibility. Id. Rather, we consider only the evidence and reasonable inferences that support


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the conclusion of requisite venue. Id.

       A defendant has a constitutional and statutory right to be tried in the county in which

the offense was committed. Ind. Const. art. 1, § 13; Ind. Code § 35-32-2-1(a). However,

venue is not an element of the offense. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). As

such, the State must establish venue by a preponderance of evidence rather than beyond a

reasonable doubt. Id. Venue is usually an issue of fact to be determined by the jury because

it typically turns on where a certain act occurred. Eberle, 942 N.E.2d at 855. The State may

establish proper venue by circumstantial evidence. Mullins v. State, 721 N.E.2d 335, 337

(Ind. Ct. App. 1999), trans. denied (2000). The State therefore meets its burden of

establishing venue when the facts and circumstances permit the trier of fact to infer that the

offense occurred in a given county. Id.

       Here, the charging information reads in pertinent part, “[I]n Vanderburgh County,

State of Indiana, on or about May 16, 2013, Bulent Colak, a person at least eighteen (18)

years of age, did knowingly touch N.C., a person under the age of fourteen (14) … in a rude,

insolent, or angry manner, to wit: by striking her; by pushing her; by pinching her resulting

in bodily injury.” Appellant’s App. at 19 (emphasis added). Colak does not challenge the

establishment of venue concerning his acts of striking and pushing N.C., which occurred in

the bathroom of his Vanderburgh County home. Instead, he maintains that the State failed to

establish venue regarding his pinching of N.C., which occurred in his van as he drove his

three daughters from his home to Mother’s Posey County home.




                                              4
       We are unpersuaded by Colak’s argument. First, he mistakenly presumes that the

State was required to prove all three acts in order to convict him of the single count of battery

with which he was charged. See Appellant’s Br. at 5 (“In Colak’s case, he was charged with

‘hitting, pushing, and pinching.’”) (emphasis added). We find the charging information’s

mention of pinching to be mere surplusage and note that Colak never objected to any

variance in the charging information either at trial or on appeal. See Mitchem v. State, 685

N.E.2d 671, 676 (Ind. 1997) (stating that allegations not essential which can be omitted

without affecting the sufficiency of charge against the defendant are considered mere

surplusage and may be disregarded).

       Notwithstanding the surplusage, we note the applicability of Indiana Code Section 35-

32-2-1(h), which reads, “If an offense is committed at a place which is on or near a common

boundary which is shared by two (2) or more counties and it cannot be readily determined

where the offense was committed, then the trial may be in any county sharing the common

boundary.” Colak asserts that the statute is inapplicable because the location of the pinching

was not unknowable, but rather simply not proven by a preponderance of evidence. We

disagree. Colak did not testify and thus could not be questioned concerning which county his

vehicle was in when he pinched N.C. Moreover, the three girls (ages eleven, nine, and eight)

could not have been expected to pinpoint their exact geographic location at the time of the

pinching and later testify to it in court.

       The record shows (1) that Vanderburgh and Posey County share a common boundary;

(2) that the commute from Colak’s Vanderburgh County home to Mother’s Posey County


                                               5
home took between thirty-five and forty-five minutes; (3) that Mother was on the phone with

Colak during the entire commute and heard a commotion over the phone during that time;

and (4) that Mother lives only three to five minutes beyond the Vanderburgh-Posey County

border. Based on this evidence, the jury could reasonably infer that, more likely than not, the

pinching occurred in Vanderburgh County. In short, the evidence was sufficient to establish

venue in the Vanderburgh County Circuit Court.

                            Section 2 – Admission of Hearsay

       Colak also maintains that the trial court erred in admitting hearsay statements that

N.C. made to the EMT during treatment. Conceding that he failed to object to the statements

at trial, Colak couches his claim in terms of fundamental error.

       The fundamental error exception [to the contemporaneous objection rule] 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.” The error
       claimed must either “make a fair trial impossible” or constitute “clearly blatant
       violations of basic and elementary principles of due process.” This exception
       is available only in “egregious circumstances.”

Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (citations and quotation marks omitted).

       During Colak’s trial, the EMT testified that N.C. told him that she had been punched

in the face and pinched on the leg. Tr. at 161, 165. Colak asserts that the State failed to lay

an adequate foundation to qualify this testimony for the medical diagnosis exception to the

hearsay rule. See Ind. Evidence Rule 803(4) (a statement “made by a person seeking medical

diagnosis or treatment;” who made the statement “for—and is reasonably pertinent to—

medical diagnosis and treatment; … and [whose statement] describes medical history; past or


                                              6
present symptoms, pain, or sensations; their inception; or their general cause.”). See also

McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996) (stating that where the declarant is a

young child being brought to a professional for treatment, there must be evidence that the

child understood the professional’s role in order to trigger the motivation to provide truthful

information).

       Colak asserts that the State failed to lay an adequate foundation concerning nine-year-

old N.C.’s motivation to provide the EMT with truthful information. During direct

examination, the State asked N.C. questions to establish that she understood generally the

difference between the truth and a lie and her duty to provide truthful testimony. Tr. at 41-

42. Later, when asked about her interaction with the EMT, N.C. remembered the EMT by

first name and recalled that he asked her questions, took care of her by checking the wounded

places on her body, and took her blood pressure. This evidence is sufficient to establish that

N.C. understood the EMT’s role as a medical caregiver.

       Notwithstanding, we find the EMT’s testimony to be cumulative concerning both

striking and pinching. N.C. testified that Colak struck her in the face. Additionally, N.C.’s

sister D.C. testified that she saw Colak slam N.C.’s back, head, and neck against the sink by

“punching her” with “[h]is fists.” Id. at 90. The EMT’s testimony concerning pinching was

also cumulative, having been referenced in N.C.’s medical records from the emergency room

at St. Mary’s Medical Center. See State’s Ex. 7 at 8 (nursing narrative stating that N.C.’s leg

was pinched). This exhibit was admitted without objection. Finally, as discussed, Colak’s

conviction for class D felony battery was not dependent upon the State proving beyond a


                                              7
reasonable doubt that he struck, pushed, and pinched N.C. Simply put, the admission of the

EMT’s hearsay testimony did not make a fair trial impossible. Based on the foregoing, we

conclude that Colak has failed to establish fundamental error. Accordingly, we affirm.

      Affirmed.

BAKER, J., and BARNES, J., concur.




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