      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                              Oct 20 2016, 8:54 am
      regarded as precedent or cited before any                               CLERK
      court except for the purpose of establishing                        Indiana Supreme Court
                                                                             Court of Appeals
      the defense of res judicata, collateral                                  and Tax Court


      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                      Gregory F. Zoeller
      Anderson, Indiana                                        Attorney General of Indiana
                                                               George Peter Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bernie C. Harmon,                                        October 20, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               13A01-1509-CR-1513
              v.                                               Appeal from the Crawford Circuit
                                                               Court
      State of Indiana,                                        The Honorable Kenneth Lynn
      Appellee-Plaintiff.                                      Lopp, Judge.
                                                               Trial Court Cause No.
                                                               13C01-1307-FB-27



      Mathias, Judge.


[1]   Bernie Harmon (“Harmon”) was convicted in Crawford Circuit Court of two

      counts of Class B felony sexual misconduct with a minor, two counts of Class C


      Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016     Page 1 of 32
      felony sexual misconduct with a minor, Class C felony child molesting, two

      counts of Class B felony vicarious sexual gratification, Class C felony vicarious

      sexual gratification, four counts of Class D felony neglect of a dependent, Class

      C felony battery, two counts of Class D felony battery, and Class A

      misdemeanor battery. The trial court ordered Harmon to serve an aggregate

      term of eighty years at the Department of Correction with thirteen years

      suspended to probation. Harmon appeals and presents four issues, which we

      renumber and restate as:


          I.   Whether the State presented sufficient evidence to support
               Harmon’s Count III, Class C felony child molesting and Count
               XIII, Class C felony battery convictions;

          II. Whether the trial court abused its discretion in excluding
              evidence that another person perpetrated the sexual misconduct
              with a minor offense in violation of Harmon’s right to present a
              defense as provided in the U.S. Constitution and Indiana
              Constitution;

          III. Whether Harmon’s neglect of a dependent and battery
               convictions violate Indiana’s prohibition against double jeopardy;
               and,

          IV. Whether the trial court imposed an erroneous sentence.

[2]   We affirm.

                                      Facts and Procedural History


[3]   Harmon and his wife, Melissa Harmon (“Melissa”) (collectively “the

      Harmons”) lived in Crawford County, Indiana with their biological son, K.H.,.

      and biological daughter, W.H. The Harmons drove school buses and operated a
      Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 2 of 32
      car repair shop near their home. In 2005, the Harmons became foster parents to

      five children1 (“the Children”). C.H.2, S.H.3, and C.A.H., 4 who were biological

      siblings, and G.H.5 and M.H.,6 who were biological siblings. In April 2006, the

      Children were removed for a short period and returned to the Harmons in 2007,

      after they received more foster parent training. In March 2008, the Harmons

      adopted C.H., S.H., and C.A.H. Several months later in June, the Harmons

      adopted G.H. and M.H.


[4]   Shortly after adoption, the Children were treated significantly worse than when

      they were foster children. Harmon began physically and sexually abusing the

      Children and limiting the amount of food that they could eat. According to the

      Children, Harmon punished them by hitting their buttocks or backsides with a

      paddle, an extension cord, a switch7, a bull whip or a horsewhip. The Children

      were sometimes clothed when Harmon beat them, but other times they were

      not. S.H. indicated that Harmon beat her many times, and she also saw

      Harmon beat the other children. C.A.H. explained that Harmon sometimes




      1
          C.H. is not included in this designation based on the events pertinent to this appeal.
      2
       C.H. left the Harmon household when he was eighteen years old after running away on several prior
      occasions. None of Harmon’s convictions involve C.H., but Harmon attempted to introduce testimony that
      C.H. was the perpetrator of the sexual abuse instead of him.
      3
          A girl born in 1997.
      4
          A girl born in 1998.
      5
          A boy born in 2000.
      6
          A boy born in 2001.
      7
          Harmon described a switch as a small branch from a tree or bush.

      Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016      Page 3 of 32
      whipped her a couple times a day, but not every day. Harmon told C.A.H.

      while she was still a foster child that she would be the first to be “whipped”

      after the Children were adopted. Tr. p. 322. Harmon also hit C.A.H. in the

      head with an ax handle, which caused bumps. M.H. and G.H. were whipped a

      couple of times per week.


[5]   Several of the children reported that Harmon sexually abused them after they

      were adopted.8 Harmon touched S.H.’s breasts on numerous occasions and

      sometimes masturbated while he touched her.9 Harmon also had sexual

      intercourse with S.H. and forced her to perform oral sex on him about four or

      five times. Harmon touched C.A.H.’s breasts and vagina as well. Harmon made




      8
        The Children reported that these acts occurred mostly in Harmon’s shop and in a garage near the house, but
      also in a bathroom in the house, and in the attic.
      9
          S.H. was asked when Harmon first touched her breast:
                 Q:      And do you remember the first time you knew it was him?
                 A:      Yes.
                 Q:      Okay and when and where did that take place?
                 A:      It was, um, in the summer time, school was about to end, um, and I was taken out of
                         school. It was, um, in his shop, a little room.
                 Q:      Okay in his shop and it was in summer time?
                 A:      Yes.
                 Q:      And now you said you were taken out of school in fifth grade, right?
                 A:      Yes.
                 Q:      So would this be right after fifth grade?
                 A:      It’d be, I think towards the end of sixth grade year that I didn’t go to school.
                 Q:      It was during sixth grade year, you think?
                 A:      Yes.
      Tr. pp. 231-32.

      Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016               Page 4 of 32
      C.A.H. perform oral sex on him and ejaculated in her mouth. He also placed

      hot dogs in C.A.H.’s vagina.

[6]   Further, Harmon instructed G.H. to perform and receive sexual acts on and

      from S.H. and C.A.H. Harmon made C.A.H. perform oral sex on G.H. and in

      return G.H. sucked on C.A.H.’s breasts. Harmon also told S.H. and G.H. to

      perform oral sex on one another. On another occasion when Harmon was

      driving home from his shop, he instructed G.H. to perform oral sex on S.H. as

      he drove. Harmon told the Children if they did not comply that he would beat

      them.


[7]   The Children reported being hungry as well. They were not allowed to access

      the refrigerator at home. During the 2009-2010 school year, G.H. and M.H.

      asked other children for food and rummaged through the trash looking for

      uneaten snacks. One of the girls also stole peanut butter from her classroom and

      kept it in her locker to eat.10 The Children were removed from public school

      after completing the 2009-2010 school year. Harmon stated that he was tired of

      receiving calls about the Children from school officials and the DCS

      investigations. At the time, M.H. had just completed second grade, G.H. had

      completed third grade, C.A.H. had completed sixth grade, and S.H. had

      completed fifth grade.11 Several of the children stated that they completed




      10
           The testimony is conflicting regarding whether S.H. or C.A.H. stole the peanut butter.
      11
           The record reflects that S.H. had difficulty in school and was held back at least one grade.

      Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016             Page 5 of 32
       homeschooling workbooks for about one year at the Harmon household but

       then the lessons stopped completely.

[8]    The Children also slept in the attic, which could be accessed with a step

       ladder.12 During the night, the Harmons locked the door to the attic and

       removed the step ladder so the Children could not access the downstairs

       bathroom. As a result, the Children urinated and defecated in the attic

       insulation and in plastic bottles and bags. The oldest child, C.H., stayed in the

       Harmon’s shed. The shed had electricity, a mini refrigerator, and a couch, but

       no bathroom. The Children were instructed to urinate and defecate in the

       woods in a bucket, but they were allowed to bathe in the house.

[9]    At one point after the Children were adopted, the Harmons went on vacation to

       Tennessee for about a week and left the Children at home with their older

       daughter, W.H. However, during this time, the Children were not allowed to go

       in the house, so they slept in the Harmon’s camper and urinated and defecated

       as needed in the woods.


[10]   Harmon and Melissa explained that the Children had a habit of digging through

       dumpsters and leaving trash in the woods. In March 2013, Harmon told the

       Children that they needed to clean up the trash in the woods.13 If they failed to




       12
         The house was being renovated during the time relevant to these events. At one point there was also a wall
       ladder.
       13
         The Children stated that Harmon wanted them to clean up the area in the woods where they used the
       bathroom.

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016         Page 6 of 32
       comply, he told them that they would be beaten. On March 19, 2013, G.H. and

       M.H. ran away from home because they were tired of “getting whipped.” Tr. p.

       364. At this time, G.H. also told M.H. about his forced sexual interactions with

       S.H. and C.A.H. One of Harmon’s neighbors found the boys walking on his

       property and transported them to the courthouse. G.H. told authorities about

       the physical and sexual abuse that he and the other children had experienced

       from Harmon. G.H. also wrote a letter to the judge asking not to be sent back to

       the Harmon’s home.


[11]   The Harmons were notified that the boys were found and were asked to bring

       S.H. and C.A.H. to the courthouse as well. They complied, and the girls were

       questioned. At first, S.H. and C.A.H. denied the accusations and indicated that

       they wanted to return home with the Harmons. However, C.A.H. later

       explained that she denied the accusations because she was afraid, and S.H.

       stated that she thought she would be placed in a worse foster home. Detective

       Craig Starr (“Detective Starr”) observed multiple red lateral marks on M.H.’s

       right and left buttocks along with several bruises on the back of his left thigh.

       Detective Starr also noticed that G.H. had a lateral mark on his right butt cheek

       and several lateral marks on his left buttocks and his lower hip area. The

       Children were then examined by a nurse at Memorial Hospital. The nurse

       documented that S.H. had scars and bruises on her hand, and C.A.H. had




       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 7 of 32
       numerous marks, bruises, and scars.14 State’s Ex. Vol., Ex. 12-13. She also

       noted that all of the Children except for G.H. were very emaciated. Tr. p. 421.

[12]   The Harmons gave up their parental rights to the Children on May 21, 2013.

       S.H. and C.A.H. were placed in a foster home, and G.H. and M.H. were placed

       in a different foster home. The Children were then placed back in public school

       after three years of being homeschooled. The record reflects that the Children

       actually completed lessons for one year at most but were unable to pass their

       grade-appropriate placement tests.


[13]   Harmon denied any allegations of sexual abuse but admitted to disciplining the

       Children with a paddle and a switch. He also denied ever using a whip of any

       kind as a means of discipline. Harmon explained that the Children would

       frequently misbehave and he thought that this type of discipline would be more

       effective than the time outs that he used when they were foster children.

[14]   On July 26, 2013, a grand jury indicted Harmon for multiple offenses, including

       child molesting, neglect of a dependent, battery, vicarious sexual gratification,

       and sexual misconduct with a minor. On April 20, 2015, the State filed an

       amended indictment which included: Count I, Class B felony sexual

       misconduct with a minor, Count II, Class C felony sexual misconduct with a

       minor, Count III, Class C felony child molesting, Count IV, Class B felony




       14
         All of the Children’s injuries were photographed after they were removed from the Harmon’s care, and
       those photos were admitted as evidence at trial.

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016       Page 8 of 32
       sexual misconduct with a minor, Count V, Class C felony sexual misconduct

       with a minor, Count VI, Class B felony vicarious sexual gratification, Count

       VII, Class C felony vicarious sexual gratification, Count VIII, Class B felony

       vicarious sexual gratification, Counts IX-XII, Class D felony neglect of a

       dependent, Count XIII, Class C felony battery, Counts XIV-XV, Class D felony

       battery, and Count XVI, Class A misdemeanor battery.

[15]   A jury trial was held on June 9-17, 2015. The jury returned a verdict of guilty

       on all counts. The trial court held a sentencing hearing on August 25, 2015, and

       ordered Harmon to serve twelve years with two years suspended on Count I; six

       years with one year suspended on Count II; six years with one year suspended

       on Count III; twelve years with two years suspended on Count IV; six years

       with one year suspended on Count V; twelve years with two years suspended

       on Counts VI; six years with one year suspended on Count VII; twelve years

       with two years suspended on Count VIII; two years executed each on Counts

       IX-XII; five years with one year suspended on Count XIII; two years with six

       months suspended each on Counts XIV and XV; and one year executed on

       Count XVI. The court ordered Counts I-VIII to run consecutively and Counts

       IX-XII to run concurrently but consecutively to all other counts. Further, the

       court ordered Counts XIII through XV to run concurrently but consecutively to

       all other counts and Count XVI to run consecutively to all other counts, for an

       aggregate sentence of eighty years executed at the Department of Correction,

       thirteen of which were suspended to probation.




       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 9 of 32
[16]   At sentencing, the trial court found as mitigating factors that incarceration

       would be a hardship on Harmon’s family, Harmon showed a modest amount of

       remorse for the battery convictions, and Harmon had no prior criminal history.

       The court determined several aggravating factors including:

           (1) Harmon was in a position of trust as a parent, and the children looked
               to him for guidance and, Harmon violated their trust. While he should
               have been their protector, he became their predator;

           (2) the children looked to Harmon for stability, care, and love but found
               quite the opposite;

           (3) Harmon’s lack of remorse on the remaining convictions; and

           (4) the number of strikes against one of the Children exceeded the number
               needed to prove a felony, the type of weapon used to punish that child,
               along with the severity of that injury.

       Harmon now appeals.

                                       I. Sufficiency of the Evidence


[17]   Harmon argues that the Count III, Class C felony child molesting and Count

       XIII, Class C felony battery convictions were not supported by sufficient

       evidence. “Upon a challenge to the sufficiency of evidence to support a

       conviction, a reviewing court does not reweigh the evidence or judge the

       credibility of witnesses, and respects the jury’s exclusive province to weigh

       conflicting evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App.

       2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider

       only probative evidence and reasonable inferences supporting the verdict. Id.

       We must affirm if the probative evidence and reasonable inferences drawn from
       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 10 of 32
       the evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. Id.

       A. Class C Felony Child Molesting


[18]   Specifically, Harmon argues that S.H. was not under fourteen years of age

       when he fondled her. The State was required to prove beyond a reasonable

       doubt that Harmon:

                  with a child under fourteen (14) years of age, touched the breasts
                  of S.H. with the intent to arouse himself.


       Appellant’s Amended App. p. 251; see also Ind. Code § 35-42-4-3(b).


[19]   Harmon argues that based on S.H.’s testimony, Harmon first touched her breast

       when she was in sixth grade, so S.H. would have been fourteen at that time.15

       However, both S.H. and a school official testified that S.H. was taken out of

       school after the 2009-2010 school year after completing fifth grade. S.H.

       testified that the fondling occurred “in the summer time, school was about to

       end and [she] was taken out of school.” Tr. p. 231. Although S.H. thought she

       was in sixth grade when Harmon first touched her, based on her other

       testimony, the jury could have reasonably concluded that the fondling

       happened in the summer of 2010 when S.H. was thirteen years old. We must

       respect this discretion. See McHenry, 820 N.E.2d at 126. Therefore, we conclude




       15
            S.H. was born in April 1997.

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 11 of 32
       that the State presented sufficient evidence to support Harmon’s conviction for

       Count III, Class C felony child molesting.

       B. Class C Felony Battery


[20]   Although Harmon concedes that C.A.H. experienced pain from his

       punishment, he argues that it does not constitute extreme pain as required to

       elevate the conviction to Class C felony battery. The State was required to

       prove beyond a reasonable doubt that Harmon:


               knowingly or intentionally touched C.A.H. in a rude, insolent, or
               angry manner, resulting in serious bodily injury thereto.


       Appellant’s Amended App. p. 256; see also Ind. Code § 35-42-2-1(3).


[21]   “Serious bodily injury” means bodily injury that creates a substantial risk of

       death or that causes: serious permanent disfigurement, unconsciousness,

       extreme pain, permanent or protracted loss or impairment of the function of a

       bodily member or organ, or loss of a fetus. Ind. Code § 35-31.5-2-292. There is

       no bright line rule differentiating “bodily injury” from “serious bodily injury.”

       Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004). Whether bodily injury is

       “serious” is a question of degree and therefore appropriately reserved for the

       finder of fact. Whitlow v. State, 901 N.E.2d 659, 661 (Ind. Ct. App. 2009).


[22]   At trial, C.A.H. testified that Harmon used a horsewhip to whip her a couple of

       times per day. She indicated that she was whipped on her back, buttocks, and

       legs. At the time C.A.H. was removed from the Harmon household and


       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 12 of 32
       examined, photographs were taken depicting red marks, bruises, and scars. See

       State’s Ex. Vol., Ex. 12-13. Our supreme court held in Norris v. State that

       photographs taken of a victim after receiving treatment for injuries depicting

       numerous cuts and bruises were sufficient to show that the victim suffered

       “serious bodily injury” as required to support defendant’s Class C felony battery

       conviction. 419 N.E.2d 129, 132 (Ind. 1981).

[23]   Also, our court held in Buckner v. State that the evidence was sufficient to

       support serious bodily injury and a conviction for Class C felony battery when

       the victim testified that defendant punched her several times with his fists and

       those punches left a number of bruises and scratches on the victim’s face and

       other parts of her body. 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006).

[24]   Harmon relies on our supreme court’s holding in Davis v. State for the

       proposition that a victim’s injuries including a lacerated hip, knee abrasion, and

       a broken pinky finger without testimony describing the victim’s level of pain did

       not rise to the level of serious bodily injury or extreme pain. 813 N.E.2d 1176,

       1178 (Ind. 2004). However, Davis involved a domestic violence situation

       between an adult boyfriend and girlfriend. Id. at 1177. Our supreme court

       emphasized that although the victim sought treatment, she was not prescribed

       pain medicine at the hospital, an officer saw her walking normally at the crime

       scene, and she said little about her pain at trial. Id. at 1178.


[25]   Like the victim in Davis, C.A.H. did not testify about the level of pain she

       experienced when Harmon whipped her. However, C.A.H. was a minor child


       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 13 of 32
       under the care of the Harmons and did not have the ability to seek medical

       treatment on her own. Rather, she would have required the assistance of

       Harmon, who was the person who caused her injuries. See Whitlow, 901 N.E.2d

       at 661. We find C.A.H. to be more akin to the victim in Norris, whose injury

       photographs were sufficient to prove serious bodily injury and the victim in

       Buckner, whose testimony of being repeatedly struck with a belt that left marks

       on her body was sufficient to prove serious bodily injury. For all of these

       reasons, we conclude that based on C.A.H.’s testimony and post-examination

       photographs, the jury could reasonably conclude that C.A.H. experienced

       extreme pain when Harmon whipped her with a horsewhip.

                                II. Trial Court’s Exclusion of Evidence


[26]   Harmon also argues that trial court abused its discretion in excluding evidence

       that another person perpetrated the sexual misconduct with a minor offense in

       violation of Harmon’s right to present a defense as provided in the U.S.

       Constitution and Indiana Constitution. As a general matter, the decision to

       admit or exclude evidence is within a trial court’s sound discretion and is

       afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.

       2003). We will not reverse the trial court’s decision unless it represents a

       manifest abuse of discretion that results in the denial of a fair trial. Id. An abuse

       of discretion in this context occurs where the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court or it

       misinterprets the law. Id. at 703. Even if the trial court’s decision was an abuse



       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 14 of 32
       of discretion, we will not reverse if the admission of evidence constituted

       harmless error. Micheau v. State, 893 N.E.2d 1053, 1059 (Ind. Ct. App. 2008).


[27]   Harmon specifically argues that the trial court erred in excluding the testimony

       of subsequent foster parent Deborah Wills (“Wills”)16 that: (1) C.H. had sex

       with S.H., and (2) that Wills overheard S.H. tell C.A.H., “You know dad never

       touched you.”17 Tr. p. 1047.

       A. Wills’s First Statement


[28]   Harmon contends that Wills’s first statement should have been admitted under

       Rule 412 (b)(1)(A). The admission of evidence relating to a victim’s past sexual

       conduct is governed by Indiana Evidence Rule 412.18 Rule 412 provides that,

       with very few exceptions in a prosecution for a sex crime, evidence of the past

       sexual conduct of a victim or witness may not be admitted into evidence. Rule

       412(b)(1) outlines several exceptions to the general prohibition in a criminal

       case including:


                  (A) evidence of specific instances of a victim’s or witness’s sexual
                  behavior, if offered to prove that someone other than the




       16
            Wills was S.H. and C.A.H.’s foster parent after the girls were removed from the Harmon household.
       17
         Harmon did not separately analyze the two statements included in Wills’s testimony. This caused overlap
       and confusion in understanding Harmon’s argument because one statement relates to behavior between S.H.
       and C.H. and the other statement involves C.A.H. and Harmon. We have separated the statements for
       purposes of clarity.
       18
         Harmon also cites to Indiana Code section 35-37-4-4, the rape shield act. However, this act has been
       superseded by Evidence Rule 412. See Sallee v. State, 785 N.E.2d 645, 650 (Ind. Ct. App. 2003).

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016        Page 15 of 32
                defendant was the source of semen, injury, or other physical
                evidence;

                (B) evidence of specific instances of a victim’s or witness’s sexual
                behavior with respect to the person accused of the sexual
                misconduct, if offered by the defendant to prove consent or if
                offered by the prosecutor; and

                (C) evidence whose exclusion would violate the defendant’s
                constitutional rights.

[29]   Harmon claims that Wills was prepared to testify, as she did in her deposition,

       that “[S.H.] said that they had lots of fights, her brother [C.H.] would beat her

       and have sex with her[.]” Tr. p. 1046. However, Wills’s statement does not

       establish that Harmon did not have sex with S.H, only that C.H. may have had

       sex with S.H., too. Therefore, the statement does not assist Harmon with his

       defense and is evidence of S.H.’s past sexual conduct, which is prohibited by

       Evidence Rule 412(1)(a).


[30]   Further, Wills’s first statement does not fall under the Evidence Rule

       412(b)(1)(A) exception that focuses on physical evidence.19 Here, the State did

       not present physical evidence claiming that Harmon sexually abused the

       Children. Instead, the State relied on the testimony of S.H., C.A.H., and G.H.

       that Harmon sexually abused them. See Pribie v. State, 46 N.E.3d 1241, 1248

       (Ind. Ct. App. 2015) (stating “[a]n exception that allows a defendant to rebut



       19
          The purpose of this exception is for defendant to rebut the State’s evidence by claiming that someone else
       was the source of the physical evidence. See Pribie v. State, 46 N.E.3d 1241, 1248 (Ind. Ct. App. 2015) (stating
       “[t]he rule contemplates if the State had presented the [physical evidence] to the jury, defendant then would
       have been allowed to present evidence that the [physical evidence] came from someone else.”).

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016           Page 16 of 32
       physical evidence presupposes that evidence; since the State did not rely on

       physical evidence to convict defendant, the exception does not apply.”).

       Therefore, evidence that one of the victims may have engaged in sexual activity

       with another family member is not admissible under this exception.

       B. Wills’s Second Statement


[31]   Harmon also argues that even if our court determines that the Rule 412(b)(1)(A)

       exception does not apply to Wills’s first statement, Wills’s second statement

       that she overhead S.H. tell C.A.H., “You know dad never touched you,” is

       admissible under Indiana Evidence Rule 613(b) which states in relevant part:


               Extrinsic evidence of a witness’s prior inconsistent statement is
               admissible only if the witness is given an opportunity to explain
               or deny the statement and an adverse party is given an
               opportunity to examine the witness about it, or if justice so
               requires. This subdivision does not apply to an opposing party’s
               statement under 801(d)(2).


[32]   Although Harmon did not address it in his argument, Wills’s second statement

       is classic hearsay. Indiana Evidence Rule 801(c) provides:

               “Hearsay” means a statement that: (1) is not made by the
               declarant while testifying at trial or hearing; and (2) is offered in
               evidence to prove the truth of the matter asserted.


       As such, even if we concluded that Wills’s second statement was

       admissible under 613(b) to impeach S.H.’s credibility, the substance of

       the statement could not aid in Harmon’s defense to prove that he did not

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 17 of 32
       touch C.A.H. Even so, Wills’s proffered testimony was not that C.H.

       touched C.A.H. instead of Harmon.


[33]   Harmon also asserts that by excluding Wills’s testimony, the trial court violated

       his right to present a defense under both the U.S. Constitution and the Indiana

       Constitution. Harmon claims that he raised the “right to defense” argument at

       the pretrial hearing when the trial court was considering the State’s motion in

       limine. However, “[r]ulings on motions in limine are not final decisions and,

       therefore, do not preserve error for appeal.” Swaynie v. State, 762 N.E.2d 112,

       113 (Ind. 2002). Harmon failed to preserve this issue for appeal because he did

       not raise the argument again at trial.


[34]   Harmon alternatively argues that the exclusion of Wills’s testimony violated his

       right to present a defense, and as such constitutes fundamental error. A

       fundamental error is one that 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. Mathews v. State, 849 N.E.2d 578, 587 (Ind.

       2006). The error must be so prejudicial to the rights of the defendant so as to

       make a fair trial impossible. Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999).


[35]   Although the right to present a defense is of utmost importance, it is not

       absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001).” [T]he accused, as

       is required of the State, must comply with the established rules of procedure

       and evidence designed to assure both fairness and reliability in the

       ascertainment of guilt and innocence. Id. The Constitution “prohibits the

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 18 of 32
       exclusion of defense evidence that serve no legitimate purpose or that are

       disproportionate to the ends that they are asserted to promote,” but trial judges

       may exclude evidence “if its probative value is outweighed by certain other

       factors such as unfair prejudice, confusion of the issues, or potential to mislead

       the jury.” Ruiz v. State, 926 N.E.2d 532, 534 (Ind. Ct. App. 2010) (quoting

       Holmes v. South Carolina, 547 U.S. 319, 326 (2006)). Further, the trial court has

       wide discretion in determining the scope of cross-examination and only an

       abuse of discretion warrants that reversal. Seketa v. State, 817 N.E.2d 690, 693

       (Ind. Ct. App. 2004).

[36]   Wills’s first statement that Harmon sought to introduce did not implicate C.H.

       instead of Harmon in molesting S.H., but rather indicated that S.H. also had

       sex at some point with C.H. See Pribie, 46 N.E.3d at 1248 (concluding that the

       trial court did not violate defendant’s right to present a defense when it

       excluded evidence that a victim engaged in prior sexual activity). Thus, it was

       irrelevant and had great potential to mislead the jury.


[37]   Further, Harmon had the opportunity to extensively cross-examine S.H.,

       C.A.H., and C.H. Both S.H. and C.H. denied engaging in sexual relations with

       one another. C.H. also denied engaging in sexual relations with C.A.H., but

       C.A.H. was not asked whether she ever had a sexual relationship with C.H.

       Therefore, we conclude that the trial court’s exclusion of Wills’s testimony did

       not violate Harmon’s right to present a defense and accordingly did not

       constitute fundamental error.



       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 19 of 32
[38]   Furthermore, even if the trial court had erred in excluding Wills’s testimony,

       any error was harmless. Where wrongfully excluded evidence is merely

       cumulative of other evidence presented, its exclusion is harmless error. Pierce v.

       State, 29 N.E.3d 1258, 1268 (Ind. 2015). Wills’s testimony would have been

       cumulative to other evidence presented because the jury also heard testimony

       that the girls originally denied that Harmon molested them. We also

       acknowledge Harmon’s argument that the State opened the door to this

       evidence. However, the State called C.H. to testify only after Harmon claimed

       in his opening statement that it was C.H. who sexually abused S.H. and C.A.H.

       instead of Harmon. Regardless, there is an overwhelming amount of evidence

       of Harmon’s guilt, and any such error was harmless. For all of these reasons,

       we conclude that the trial court did not abuse its discretion in excluding Wills’s

       testimony.

                                            III. Double Jeopardy


[39]   Harmon contends that his four neglect of a dependent and four battery

       convictions violate Indiana’s prohibition against double jeopardy. Specifically,

       he argues that because the State charged the neglect offense by listing several

       allegations of neglect in the disjunctive that there is a reasonable possibility that

       the jury could have convicted Harmon of neglect by using the same evidence of

       the whippings when it convicted him for battery.


[40]   The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” Ind. Const. art. 1, § 14. Our supreme court has


       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 20 of 32
       developed a two-part test for Indiana double jeopardy claims, holding that two

       or more offenses are the “same offense” in violation of Article 1, Section 14, if,

       with respect to either the statutory elements or the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense. Richardson v.

       State, 717 N.E.2d 32, 49 (Ind. 1999). To show that two challenged offenses

       constitute the “same offense” in a claim of double jeopardy, a defendant must

       demonstrate a reasonable possibility that the evidentiary facts used by the fact-

       finder to establish elements of one offense may also have been used to establish

       the essential elements of a second challenged offense. Id. at 53.


[41]   Our supreme court clarified the Richardson test in Bald v. State, holding that no

       violation of the actual evidence test occurs as long as “each conviction

       [contains] proof of at least one unique evidentiary fact.” 766 N.E.2d 1170, 1172

       (Ind. 2002). To determine if a jeopardy violation occurred, our court considers

       the charging information, jury instructions, and arguments of counsel. Spivey v.

       State, 761 N.E.2d 831, 832 (Ind. 2002).


[42]   Here, the State charged Harmon with four counts of Class D felony neglect of a

       dependent. The charges stated in relevant part:

               [O]n or about and between the 1st day of January, 2009, and the
               19th day of March, 2013, in the County of Crawford, State of
               Indiana, Bernie C. Harmon, a person having the care of a
               dependent, whether assumed voluntarily or because of a legal
               obligation did knowingly or intentionally place the dependent in
               a situation that endangered the dependent’s life or health, and/or

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 21 of 32
         cruelly confined the dependent, and/or deprived the dependent
         of education as required by law: to wit: [Harmon] having the care
         of [the victim] to a home environment wherein [he/she] was
         subjected to unreasonable corporal punishment, and/or was not
         provided adequate food/nutrition resulting in psychological
         and/or physical harm, and/or cruelly confined [him/her] in the
         attic of his home, and/or failed to enroll [him/her] in school or
         provide an education as required by law.


Appellant’s Amended App. pp. 254-55. The State also charged Harmon

with four counts of battery. The charging information provided in

relevant part:


         [O]n or about the 17th day of March in the County of Crawford,
         State of Indiana, Bernie C. Harmon, being a person of at least
         eighteen (18) years of age, did knowingly or intentionally touch
         [the victim], who was less than fourteen years of age, in a rude,
         insolent, or angry manner, resulting in bodily injury to wit: struck
         [the victim] several times with a whip causing [him/her] to suffer
         pain.20


Appellant’s Amended App. pp. 256-57. Further, at closing the State

noted:


         [A]s I told you before, there’s three different theories under the
         neglect. . . One places the dependent in a situation that endangers
         the dependent’s life or health. Two abandons or cruelly confines



20
  Harmon was charged with and convicted of one count of Class C felony, two counts of Class D felony,
and one count of Class A misdemeanor battery. Although there are differences in the charging information
based on age of the victim and the level of pain the victim experienced, all battery charges stem from the
Children being “struck several times with a whip.”

Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016        Page 22 of 32
               the dependent. And three deprives the dependent of an education
               as required by law. And a simple explanation to this is that there
               are four different counts of neglect. One for each child. And in
               order for you to find him guilty of neglect, you just have to
               determine that he’s committed neglect in at least one of these
               three ways. Placed the dependent in a situation that endangered
               his or her health by unreasonable corporal punishment or
               inadequate food. That’s one. Two, cruelly confined the
               dependent in an attic or three deprived the dependent of
               education and there’s a reason why I highlighted deprived the
               dependent of an education because all you have to do, you
               probably heard this, you have to unanimously decide something
               beyond a reasonable doubt. Theoretically the twelve of you who
               ended up being jurors, it’s possible that five of you could decide
               that he’s guilty of one, of the first one and not the other two and
               three of you could decide he’s guilty of a different one. As long as
               each person feels he’s guilty of at least one of the three and I, uh,
               I don’t want to be presumptuous but it seems obvious that we’ve
               proven this count of neglect, which was number four, which is
               the third one down, deprived the dependent of an education. .
               .Cause assuming you believe beyond a reasonable doubt that he
               deprived these children of an education required by law, you
               don’t even need to decide whether or not he cruelly confined
               them in the attic or he didn’t feed them enough or he uh, used
               too much corporal punishment.


       Tr. pp. 1203-04.

[43]   Harmon relies on Morgan v. State, in which our supreme court held that a

       double jeopardy violation occurred where the charging information left open a

       mere possibility that the jury relied on the same acts to convict the defendant of

       two different offenses. 675 N.E.2d 1067, 1072 (Ind. 1996). However, our

       supreme court clarified its position several years later in Redman v. State in


       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 23 of 32
       stating, “[t]he issue before us, however, is not merely whether it is possible that

       this occurred, but rather whether the likelihood of this occurrence is sufficiently

       substantial for us to conclude that it is reasonably possible that this occurred.” 743

       N.E.2d 263, 267 (Ind. 2001).

[44]   In Redman, the defendant argued that there was a reasonable possibility that the

       jury used the evidence of the victim’s abduction to establish both of the

       conspiracy to commit murder and the criminal confinement offenses. Id. The

       charging information identified four alternative overt acts, one of which was

       abduction. The defendant further argued that the language of the conspiracy

       charge permitted the victim’s abduction to constitute the overt act element and

       that the State’s voir dire, opening statement, witness testimony, and closing

       statement described the initial abduction evidence as the basis for the criminal

       confinement charge. Id.


[45]   The State argued in response that there was no reasonable possibility that the

       jury relied on the same evidentiary facts to prove both charges because the

       charged overt acts were supported by separate evidence. Id. Our supreme court

       agreed with the State and relied on its reasoning in Griffin v. State, 717 N.E.2d

       73 (Ind. 1999), a situation where a jury was instructed that a charge of

       conspiracy to commit robbery could be established by various alleged overt

       acts, one of which was the completed robbery itself. In Griffin, our supreme

       court noted the extensive evidence of other alleged overt acts and rejected the

       claim of double jeopardy and emphasized: “[t]o establish that two offenses are



       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 24 of 32
       the same offense under the actual evidence test, the possibility must be

       reasonable, not speculative or remote.” Id. at 89.


[46]   In the present situation, like in Redman and Griffin, the charging information

       identified alternative overt acts that could constitute neglect of a dependent.

       One of the overt acts included unreasonable corporal punishment, which was

       also the basis for the battery offenses. Here, like in Griffin, we conclude that the

       State presented extensive evidence of Harmon’s other alleged acts of neglect.

       The Children testified that they were confined to the attic, were deprived

       adequate food, and that they only were homeschooled for at most one year of

       the three years that they were taken out of public school. Further, the State

       emphasized at closing the three alternative theories of neglect, not limiting the

       overt act to unreasonable corporal punishment. Rather, the State indicated that

       it was “clear” and “obvious” that Harmon neglected the Children by failing to

       provide them with an education. Tr. pp. 1204-05. Therefore, we conclude that

       there is no reasonable possibility that the jury relied on the evidence of

       unreasonable corporal punishment to establish the neglect element of Harmon’s

       neglect of a dependent charges. As a result, no double jeopardy violation

       occurred.

                                           IV. Harmon’s Sentence


[47]   Finally, Harmon argues that the trial court imposed an erroneous sentence in

       several respects.




       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 25 of 32
       A. Abuse of Discretion


[48]   Harmon first argues that the trial court considered improper aggravators at

       sentencing. As explained by our supreme court, “sentencing decisions rest

       within the sound discretion of the trial court and are reviewed on appeal only

       for an abuse of discretion.” Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

       clarified on reh’g. 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs

       where 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 actual

       deductions to be drawn therefrom. Id. A trial court may abuse its discretion by

       failing to issue a sentencing statement, or by issuing a sentencing statement that

       bases a sentence on reasons that are not supported by the record, that omits

       reasons both advanced for consideration and clearly supported by the record, or

       that includes reasons that are improper as a matter of law. Id. at 490-91.

       However, under the post-Blakely amendments to our sentencing statutes, a trial

       court can no longer be said to have abused its discretion by improperly

       weighing or balancing aggravating and mitigating circumstances. Id. at 491.

       1. Improper Aggravator No. 1


[49]   Harmon claims that the court’s finding that he struck C.A.H. with a whip in

       excess of evidence required to prove felony battery was not supported by the

       record. In other words, the trial court found this battery to be particularly severe

       in nature. The nature of the crime is “appropriately considered. . . as an

       aggravating circumstance.” Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002).


       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 26 of 32
       Thus, facts evidencing the particular brutality of an attack may be considered as

       an aggravating circumstance when sentencing a defendant for aggravated

       battery. Id; see also Benton v. State, 691 N.E.2d 459, 464 (Ind. Ct. App. 1998)

       (although bodily injury is an element of burglary, “the viciousness with which

       the injury was inflicted” could be considered as an aggravating circumstance to

       enhance the sentence).

[50]   Here, C.A.H. testified that Harmon whipped her as a routine punishment and

       the State submitted photographs of C.A.H.’s injuries consistent with being

       struck with a whip numerous times. Based on these facts and circumstances, we

       conclude that the trial court did not abuse its discretion in considering the

       severity of C.A.H.’s injuries as an aggravator.

       2. Improper Aggravator No. 2


[51]   Harmon also challenges the court’s finding that he lacked remorse as an

       aggravating factor. Although a court may not enhance a sentence for a

       defendant consistently maintaining his innocence if the defendant does so in

       good faith, a court may consider the defendant’s lack of remorse. Cox v. State,

       780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002). “A lack of remorse is displayed by

       a defendant when he displays disdain or recalcitrance, the equivalent of ‘I don’t

       care.’ This is distinguished from the right to maintain one’s innocence, i.e., ‘I

       didn’t do it.’” Id.


[52]   Here, the trial court equated Harmon’s continuing claim of innocence with a

       lack of remorse. Therefore, the trial court abused its discretion in determining

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 27 of 32
       that lack of remorse was an aggravator. However, because the court found three

       other proper aggravators, this error is harmless. See Garrett v. State, 714 N.E.2d

       618, 623 (Ind. 1999) (the trial court erred in finding one improper aggravating

       factor, but defendant’s sentence was supported by other valid aggravators).

       3. Consecutive Sentences


[53]   Harmon further argues that the trial court’s imposition of consecutive sentences

       was inappropriate. However, Harmon should have addressed this under the

       abuse of discretion standard, not the inappropriate sentence standard. In order

       to impose consecutive sentences, the trial court must find at least one

       aggravating circumstance. Rhoiney v. State, 940 N.E.2d 841, 846 (Ind. Ct. App.

       2010). Here, the trial court noted Harmon’s position of trust and that the

       children came looking to him for stability, care, and love but found quite the

       opposite among other aggravating circumstances. The same aggravating

       circumstance may be used to both enhance a sentence and justify consecutive

       terms. Id. Therefore, we conclude that the trial court did not abuse its discretion

       in imposing consecutive sentences.

       B. Appropriateness of Sentence


[54]   Under Indiana Appellate Rule 7(B):


               [We] may revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.


       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 28 of 32
       When reviewing a sentence, our principal role is to “leaven the outliers” rather

       than necessarily achieve what is perceived as the “correct” result. Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012). Our review under Appellate Rule 7(B) should

       focus on “the forest”–the aggregate sentence–rather than the trees–consecutive

       or concurrent, number of counts, or length of the sentence on any individual

       count. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We do not look to

       determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008).


[55]   Sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference. Id. at 1222 (Ind. 2008) (citing

       Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996)). Therefore, the defendant

       has the burden of persuading us that his sentence is inappropriate. Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[56]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed in assessing the nature of the

       offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). The “character of

       the offender” portion of the sentence involves consideration of the aggravating

       and mitigating circumstances and general considerations. Clara v. State, 899

       N.E.2d 733, 735 (Ind. Ct. App. 2009).




       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 29 of 32
[57]   Harmon was convicted of four counts of Class B felony, five counts of Class C

       felony, six counts of Class D felony, and one count of Class A misdemeanor.

       During the time of Harmon’s offenses, the sentencing range for a Class B felony

       was six to twenty years, with ten years being the advisory sentence. See Ind.

       Code § 35-50-2-5. The sentencing range for a Class C felony was two to eight

       years, with four years being the advisory sentence. See Ind. Code § 35-50-2-6.

       The sentencing range for Class D felony was six months to three years, with

       one and one half years being the advisory sentence. See Ind. Code § 35-50-2-7.

       The sentence for Class A misdemeanor was one year. See Ind. Code § 35-50-3-2.

       Thus, the statutory maximum for Harmon would have been one hundred and

       forty-seven years. The trial court ordered Harmon to serve an aggregate eighty-

       year sentence, with thirteen years suspended.


[58]   Concerning the nature of the offenses, we observe that Harmon’s behaviors

       were absolutely reprehensible. The Children came to the Harmon family as

       foster children looking for stability and care. After being adopted and thinking

       that they found their forever family, the Children were physically and sexually

       abused and were neither properly fed nor educated. The Children were often

       times not allowed in the house during the day, used a bucket in the woods for

       their elimination needs, were locked in the attic at night, and were forced to

       urinate and defecate in bottles and bags.

[59]   At the time of removal all of the Children were emaciated except for G.H., who

       begged for snacks and dug through the trash while he was enrolled in school.

       When teachers at school and DCS began recognizing these issues, the Harmons

       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 30 of 32
       took the Children out of school and decided that homeschooling was a better

       option for their own sake. However, the record reflects that the Children were

       homeschooled for no more than one year out of the three years that they were

       taken out of public school. When the Children returned to public school, they

       were all unable to pass their grade appropriate placement tests.


[60]   Furthermore, Harmon beat the Children with whips, paddles, and switches

       from trees in his yard. He claimed that this was the only punishment that would

       work because the Children did not listen to him. At the time the Children were

       removed, all four had red marks, bruises, and scars from being punished by

       Harmon. Even worse, Harmon participated in sexual acts with S.H. and

       C.A.H., and he also forced G.H. to participate in sexual acts with his sisters as

       Harmon watched. The Children looked to Harmon for guidance and love, but

       were instead subjected to gross mistreatment and abuse that no child should

       ever have to endure. The nature of Harmon’s offenses alone justify the trial

       court’s sentencing decision. See Williams v. State, 997 N.E.2d 1154, 1166 (Ind.

       Ct. App. 2013).


[61]   Although Harmon has no prior criminal history, Harmon’s treatment of the

       Children is evidence of his deplorable character. Thus, Harmon has not

       persuaded us that the trial court’s imposition of an aggregate eighty-year

       sentence, with thirteen years suspended is inappropriate in light of the nature of

       the offense and the character of the offender.




       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 31 of 32
                                                   Conclusion


[62]   The State presented sufficient evidence to support Harmon’s Count III, Class C

       felony and Count VIII, Class C felony battery convictions. Further, the trial

       court did not abuse its discretion or violate Harmon’s right to present a defense

       when it excluded evidence that another person might have perpetrated

       additional sexual misconduct with one of the minor victims. Harmon’s neglect

       of a dependent and battery convictions also did not violate Indiana’s

       prohibition against double jeopardy and we affirm Harmon’s eighty-year

       aggregate sentence.


[63]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 13A01-1509-CR-1513 | October 20, 2016   Page 32 of 32
