MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Feb 28 2017, 6:01 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kashif Allen Weathers,                                   February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1608-CR-1751
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1507-F3-4244



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 1 of 9
                                       Statement of the Case
[1]   Kashif Allen Weathers (“Weathers”) appeals, following a jury trial, his

      convictions for Level 3 felony rape1 and Level 6 felony criminal confinement.2

      Weathers argues that the trial court committed fundamental error by admitting

      the testimony of a detective. Concluding that Weathers has failed to show that

      the trial court committed fundamental error, we affirm Weathers’ convictions.


[2]   We affirm.


                                                     Issue
                 Whether the trial court committed fundamental error by admitting
                 the testimony of a detective.

                                                     Facts
[3]   On July 17, 2015, B.A., a woman that Weathers had been dating for two

      months, told Weathers that she was pregnant with another man’s baby. After

      arguing for twenty-five to thirty minutes, Weathers “pushed [B.A.] down on the

      bed” and told her to give him a hug. (Tr. 17). He tried to kiss B.A., but she

      refused to kiss him back and “push[ed] him away telling him no.” (Tr. 18).

      Weathers then “pull[ed] [B.A.’s] pants down and just forced himself inside of

      [her]” for three to four minutes. (Tr. 17). B.A. repeatedly told Weathers to

      stop. She shouted, “Get off me, no, stop.” (Tr. 19). After B.A. was eventually




      1
          IND. CODE § 35-42-4-1.
      2
          I.C. § 35-42-3-3.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 2 of 9
      able to “kick[] him off of [her,]” she pulled up her pants and grabbed her purse

      and keys to leave the house. (Tr. 17). As B.A. was trying to use her phone,

      Weathers grabbed it from her hand and threw it down. He then “pinned [B.A.]

      up against the wall” so that she “couldn’t move[,]” and he held her there for

      five to ten minutes. (Tr. 20).


[4]   Once B.A. was able to get away, she and two friends went to a nearby Taco

      Bell, where she knew a police officer would be on duty, and she reported to the

      officer what Weathers had done to her. B.A. then went to the hospital for an

      examination. While at the hospital, B.A. spoke with Evansville Police

      Detective Brian Turpin (“Detective Turpin”) and gave the detective a

      handwritten statement.


[5]   The following day, Detective Turpin conducted a videotaped interview with

      Weathers. During the interview, Weathers stated that he and B.A. were

      arguing so he laid on top of her, got her pants off, and started to have sex with

      her to “get her mind off of it” and “change her mind.” (State’s Ex. 2).

      Weathers acknowledged that B.A. had told him “no” and that he had inserted

      his penis inside her “part of the way.” (State’s Ex. 2). He also admitted that he

      had prevented B.A. from leaving the house by putting his arm around her and

      that he had grabbed her phone from her and thrown it. Detective Turpin told

      Weathers that he could write an apology letter to B.A., and Weathers wrote the

      following letter:

              [B.A.] i’m so sorry for Holding you from leaving the House I
              should have never done that. Im sorry that i was trying to have

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 3 of 9
               sex with you while you was mad I should have tryed to do it
               another way then that i would never try to rape you or anybody
               else i’m so sorry that it went down this way tonite idk what i was
               thinking or what you was thinking so can you just forgive me 
               if you never want to talk to me agian i will understand but dont
               be mean to me over a argurment that we had cuz im really not a
               bad person and you know it im so “sorry”

               Love ♡

               Kashif. W.

      (State’s Ex. 3) (misspellings, capitalization errors, and lack of punctuation in

      original).


[6]   The State charged Weathers with Level 3 felony rape and Level 6 felony

      criminal confinement. The trial court held a jury trial on June 13, 2016.

      During Detective Turpin’s direct examination, the State introduced—without

      objection—the recording of Weathers’ police interview (State’s Ex. 2) and the

      apology letter that Weathers wrote to B.A. (State’s Ex. 3).3 After the admission

      of this evidence, Detective Turpin testified—without objection—that he had

      been trained to use the letter writing method and that he used this method

      because “people that are innocent don’t write apologies to people that they’ve

      been accused of wronging so you know it just shows guilt in those cases so . . .”

      (Tr. 83-84). During cross-examination, Weathers’ counsel asked Detective

      Turpin if the purpose of having Weathers write the apology letter was to “build




      3
       In fact, Weathers’ counsel specifically stated that he had “[n]o objection” to the admission of State’s
      Exhibits 2 and 3. (Tr. 79, 83).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017            Page 4 of 9
      up [his] file,” and the detective responded that “it’s to show that an innocent

      person wouldn’t apologize.” (Tr. 107).


[7]   Weathers’ defense at trial to the rape charge was that he and B.A. had engaged

      in consensual sex. He did not, however, raise a defense to the criminal

      confinement charge. In fact, during closing arguments, Weathers’ counsel told

      the jury that the State had “proven their case” on the criminal confinement

      charge and that the jury “c[ould] sign the guilty form on that one with

      confidence” because Weathers had “confessed to that crime” in his apology

      letter, State’s Exhibit 3. (Tr. 134). Weathers’ counsel argued that Weathers’

      apology letter was not a confession to the rape charge, and he reminded the jury

      that it had the right to accept or reject the evidence presented.


[8]   The jury found Weathers guilty as charged. The trial court imposed a nine (9)

      year sentence for Weathers’ rape conviction and eighteen (18) months for his

      criminal confinement conviction, and it ordered that these sentences be served

      concurrently in the Indiana Department of Correction. Weathers now appeals.


                                                  Decision
[9]   Weathers argues that the trial court committed fundamental error by admitting

      certain testimony of Detective Turpin. Specifically, Weathers challenges two

      statements made by the detective—one during direct examination and one

      during cross-examination—and argues that his statements were opinions of

      guilt that should have been excluded from evidence under Indiana Evidence

      Rule 704(b). He contends that both of his convictions should be vacated.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 5 of 9
[10]   Weathers acknowledges that he did not object to the testimony at trial. His

       failure to object to the testimony results in waiver of any argument regarding its

       admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure

       to object at trial waives the issue for review unless fundamental error

       occurred.”), reh’g denied. Weathers recognizes this procedural default and

       argues that the admission of the testimony constituted fundamental error.


[11]   “The fundamental error exception 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.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)

       (internal quotation marks omitted). “Harm is not shown by the fact that the

       defendant was ultimately convicted; rather harm is found when error is so

       prejudicial as to make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239.

       The fundamental error exception is “available only in ‘egregious

       circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting

       Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied. “Fundamental

       error is meant to permit appellate courts a means to correct the most egregious

       and blatant trial errors that otherwise would have been procedurally barred, not

       to provide a second bite at the apple for defense counsel who ignorantly,

       carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663,

       668 (Ind. 2014), reh’g denied.


[12]   We decline to review Weathers’ fundamental error claim relating to the

       admission of Detective Turpin’s cross-examination testimony because Weathers

       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 6 of 9
       invited the error he now claims is fundamental. “A party may not invite error,

       then later argue that the error supports reversal, because error invited by the

       complaining party is not reversible error.” Kingery v. State, 659 N.E.2d 490, 494

       (Ind. 1995), reh’g denied. In contrast to fundamental error, “the ‘doctrine of

       invited error is grounded in estoppel[]’ and forbids a party to ‘take advantage of

       an error that [he] commits, invites, or which is the natural consequence of [his]

       own neglect or misconduct.’” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014)

       (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)), reh’g denied, cert.

       denied. “[F]undamental error gives [appellate courts] leeway to mitigate the

       consequences of counsel’s oversights, but invited error precludes relief from

       counsel’s strategic decisions gone awry.” Brewington, 7 N.E.3d at 975.


[13]   Here, Weather’s counsel specifically asked Detective Turpin to explain the

       purpose of having Weathers write an apology letter. The detective’s testimony,

       of which Weathers now complains, was in response to his counsel’s question.

       Because Weathers invited the detective’s cross-examination testimony and

       “[i]nvited errors are not subject to appellate review[,]” we will not review his

       challenge to that testimony. Kingery, 659 N.E.2d at 494 (rejecting the

       defendant’s fundamental error claim where he elicited the testimony that he

       was attempting to challenge on appeal).


[14]   Turning to Weathers’ challenge to the admission of Detective Turpin’s direct

       examination testimony, we conclude that he has failed to meet his burden of

       showing fundamental error. Weathers has failed to show how the admission of



       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 7 of 9
       the detective’s direct examination testimony made a fair trial impossible and

       why the circumstances in this case were egregious.


[15]   Indeed, even if the trial court had erred in admitting the testimony, any “error[]

       in the admission of evidence [is] to be disregarded unless [it] affects the

       substantial rights of a party.” Hoglund, 962 N.E.2d at 1238. “The improper

       admission [of evidence] is harmless error if the conviction is supported by

       substantial independent evidence of guilt satisfying the reviewing court there is

       no substantial likelihood the challenged evidence contributed to the

       conviction.” Id. Additionally, “‘[a]ny error in the admission of evidence is not

       prejudicial, and [is] therefore harmless, if the same or similar evidence has been

       admitted without objection or contradiction.’” Id. (quoting McCovens v. State,

       539 N.E.2d 26, 30 (Ind. 1989)).


[16]   Here, there was substantial evidence apart from the detective’s direct

       examination testimony that leads us to conclude that there is no substantial

       likelihood the challenged evidence contributed to the conviction. Specifically,

       B.A. testified that, after she and Weathers had been arguing, he pushed her on

       the bed, tried to kiss her, and told her to give a hug. B.A. refused, pushed

       away, and told him no; however, Weathers “pull[ed] [B.A.’s] pants down and

       just forced himself inside of [her]” for three to four minutes. (Tr. 17). B.A.

       repeatedly told Weathers to stop. After B.A. was eventually able to get

       Weathers off of her, he then prevented her from leaving the house. Specifically,

       Weathers, “pinned [B.A.] up against the wall” so that she “couldn’t move[,]”

       and he held her there for five to ten minutes. (Tr. 20). During closing

       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 8 of 9
       argument, Weathers’ counsel conceded that Weathers was guilty of the

       criminal confinement offense and told the jury that it “c[ould] sign the guilty

       form on that one with confidence” because Weathers had “confessed to that

       crime” in his apology letter, State’s Exhibit 3. (Tr. 134). Furthermore,

       Weathers does not challenge the admission of his apology letter written to B.A.

       (State’s Exhibit 3)—in which he admitted that he held her and prohibited her

       from leaving the house and that he was sorry for having sex with her when she

       was mad and should have done it differently. Nor does he challenge the

       admission of his recorded police statement (State’s Exhibit 2)—in which he

       conceded that B.A. told him “no” two or three times and that he inserted his

       penis in her in an effort to “change her mind.” (State’s Ex. 2). Because there

       was substantial independent evidence of Weathers’ guilt, we conclude that any

       error in the admission of the detective’s direct examination testimony was

       harmless and did not constitute fundamental error. See, e.g., Palilonis v. State,

       970 N.E.2d 713, 731 (Ind. Ct. App. 2012) (concluding that the admission of

       improper vouching testimony was harmless error and not fundamental error).


[17]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1608-CR-1751 | February 28, 2017   Page 9 of 9
