                                                                            FILED
                                                                        Jul 19 2019, 9:19 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                         Curtis T. Hill, Jr.
Elkhart, Indiana                                            Attorney General of Indiana

                                                            Evan M. Comer
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ryan Baxter,                                                July 19, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2050
        v.                                                  Appeal from the Elkhart Superior
                                                            Court
State of Indiana,                                           The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            20D03-1612-F1-11



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019                               Page 1 of 8
[1]   Ryan Baxter appeals his conviction of Level 1 felony child molesting. 1 Baxter

      asserts:


                 1. The trial court erred by admitting a medical report; and


                 2. His victim’s testimony was incredibly dubious, rendering his
                 conviction unsupported by sufficient evidence.


      We affirm.



                                Facts and Procedural History
[2]   Jonathan Woods (“Father”) divorced Courtney Baxter (“Mother”) when their

      daughter A.W. was two years old. Father received primary custody over A.W.

      Every other weekend, A.W. would stay with Mother and her husband, Baxter.

      When A.W. would return from visits with Mother and Baxter, A.W.’s behavior

      would be noticeably changed. A.W. would be moody, avoid other people, and

      have night terrors.


[3]   Near the end of January 2016, A.W., then four, was staying with Mother and

      Baxter for the weekend. One night, after Mother had gone to work, A.W. was

      in Baxter’s bedroom. Baxter made A.W. lie down on the bed and threatened to

      spank her if she did not remove her clothes. Baxter then took off his pants and

      put his penis in A.W.’s butt and vagina. A.W. told Baxter to stop, but he




      1
          Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019            Page 2 of 8
      ignored her. When Baxter was finished, he told A.W. to go back to her room.

      A.W. experienced anal and vaginal pain for several days after the incident.


[4]   One night after A.W. had returned to Father’s home, A.W. was getting ready

      for bed with her grandmother, Rose. A.W. told Rose what happened with

      Baxter. The next day, Rose told Father what happened. Father and Rose then

      took A.W. to report the incident to the police. On February 8, 2016, A.W.

      underwent a sexual assault examination. The nurse, Nancy Grant, determined

      A.W. had an injury consistent with prior penile penetration that was healing.


[5]   The State charged Baxter with three counts of Level 1 felony child molesting.

      A jury found Baxter guilty of one count of Level 1 felony child molesting. The

      trial court imposed a forty-eight-year sentence with eight years suspended.



                                  Discussion and Decision
                                        Admission of Evidence
[6]    Baxter argues the trial court abused its discretion by allowing A.W.’s medical

       report into evidence because it contained inadmissible hearsay. “A trial court

       has broad discretion in ruling on the admissibility of evidence and we will

       disturb its rulings only where it is shown that the court abused that discretion.”

       Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). An abuse of discretion

       occurs when the trial court’s decision is “clearly against the logic and effect of

       the facts and circumstances before the court, or the reasonable, probable, and




      Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019           Page 3 of 8
       actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482,

       490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).


[7]    Baxter argues the medial report prepared by Grant contains hearsay because it

       contains A.W.’s report identifying Baxter as the perpetrator of the sexual

       assault that caused her injury. Hearsay is “a statement that: (1) is not made by

       the declarant while testifying at the trial or hearing; and (2) is offered in

       evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).

       Hearsay is inadmissible except as provided by law or other court rules. Evid.

       R. 802.


[8]    While the statement identifying Baxter as the perpetrator typically would be

       inadmissible, Isee Muncy v. State, 716 N.E.2d 587, 591 (Ind. Ct. App. 1999)

       (testimony regarding out-of-court identification of defendant was

       inadmissible), trans. denied, the State asserts a hearsay exception provided in

       Evidence Rule 803 renders admissible Grant’s report of A.W.’s identification

       of Baxter as the person who sexually assaulted her. Indiana Evidence Rule

       803(4) provides “[a] statement that: (A) is made by a person seeking medical

       diagnosis or treatment; (B) is made for—and is reasonably pertinent to—

       medical diagnosis or treatment; and (C) describes medical history; past or

       present symptoms, pain or sensations; their inception; or their general cause” is

       not excluded by the hearsay rule.




      Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019            Page 4 of 8
[9]        For a report to be admissible under that exception, the declarant’s self-interest

           in obtaining effective medical treatment must be considered. The court must

           determine: “1) is the declarant motivated to provide truthful information in

           order to promote diagnosis and treatment; and 2) is the content of the

           statement such that an expert in the field would reasonably rely on it in

           rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.

           1996). “[C]ourts may exercise their discretion in admitting medical diagnosis

           statements which relay the identity of the perpetrator.” Perry v. State, 956

           N.E.2d 41, 49 (Ind. Ct. App. 2011).


[10]       Statements made by victims of sexual assault “satisfy the second prong of the

           analysis because they assist medical providers in recommending potential

           treatment for sexually transmitted disease, pregnancy testing, psychological

           counseling, and discharge instructions.” 2 VanPatten v. State, 986 N.E.2d 255,

           260 (Ind. 2013). As we have explained:


                  All victims of domestic sexual abuse suffer emotional and
                  psychological injuries, the exact nature and extent of which
                  depend on the identity of the abuser. The physician generally
                  must know who the abuser was in order to render proper
                  treatment because the physician’s treatment will necessarily differ
                  when the abuser is a member of the victim’s family or household.
                  In the domestic sexual abuse case, for example, the treating




       2
           Baxter does not argue the first prong of the analysis, so we need not address it.


       Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019                       Page 5 of 8
               physician may recommend special therapy or counseling and
               instruct the victim to remove herself from the dangerous
               environment by leaving the home and seeking shelter elsewhere.
               In short, the domestic sexual abuser’s identity is admissible under
               Rule 803(4) where the abuser has such an intimate relationship
               with the victim that the abuser’s identity becomes “reasonably
               pertinent” to the victim’s proper treatment.


       Nash v. State, 754 N.E.2d 1021, 1025 (Ind. Ct. App. 2001), trans. denied.


[11]   Father and Rose took A.W. to the hospital. The identification of Baxter as the

       perpetrator was relevant and necessary in order for Grant to know if she could

       discharge A.W. into Father’s custody without A.W. being subjected to more

       abuse after she was released. Because the identification of Baxter as the

       perpetrator was necessary to ensure A.W.’s safety, the court did not abuse its

       discretion by admitting the medical report. See Perry, 956 N.E.2d at 49

       (identification of assailant “relevant to any psychological counseling for

       domestic abuse, and significant to medical personnel in deciding how to

       discharge their patient”).


                                         Sufficiency of Evidence
[12]   Baxter argues there was insufficient evidence to support his conviction. When

       considering the sufficiency of evidence, “a reviewing court does not reweigh the

       evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed a reasonable trier of




       Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019            Page 6 of 8
       fact to find the defendant guilty beyond a reasonable doubt.” Id. at 126

       (internal citation omitted).


[13]   Baxter specifically claims the evidence was insufficient because A.W.’s

       testimony was incredibly dubious. “Under the incredible dubiosity rule, a court

       will impinge upon the jury’s responsibility to judge the credibility of witnesses

       only when confronted with inherently improbable testimony or coerced,

       equivocal, wholly uncorroborated testimony of incredible dubiosity.” Tillman v.

       State, 642 N.E.2d 221, 223 (Ind. 1994). “Application of this rule is limited to

       cases . . . where a sole witness presents inherently contradictory testimony [that]

       is equivocal or the result of coercion and there is a complete lack of

       circumstantial evidence of the appellant’s guilt.” Id.


[14]   Incredible dubiosity is not available to invalidate A.W.’s testimony because her

       testimony is not inherently contradictory and it is corroborated by other witness

       testimony. At trial, Grant, a sexual assault nurse examiner, testified A.W.

       sustained injury to her hymen that was consistent with penile penetration.

       Grant’s testimony provides circumstantial evidence in support of A.W.’s

       testimony and invalidates Baxter’s incredible dubiosity argument. See Moore v.

       State, 27 N.E.3d 749, 760 (Ind. 2015) (rejecting incredible dubiosity when

       testimony supported by circumstantial evidence). A.W.’s testimony was

       sufficient to support Baxter’s conviction. See Bennet v. State, 409 N.E.2d 1189,

       1191 (Ind. Ct. App. 1980) (testimony of victim of child molest was sufficient to

       sustain a conviction).



       Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019          Page 7 of 8
                                                 Conclusion
[15]   The trial court did not abuse its discretion by admitting Grant’s medical report.

       Because A.W.’s testimony was supported by evidence of sexual assault

       observed during an examination, A.W.’s testimony was not incredibly dubious.

       The evidence was sufficient to convict Baxter. Accordingly, we affirm.


[16]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2050 | July 19, 2019        Page 8 of 8
