 Pursuant to Ind.Appellate Rule 65(D),                                        Mar 27 2014, 9:05 am
 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:

LAWRENCE D. NEWMAN                                   GREGORY F. ZOELLER
Newman & Newman, P.C.                                Attorney General of Indiana
Noblesville, Indiana
                                                     KATHERINE M. COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

AUSTIN M. SCHOLL,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )      No. 29A02-1309-CR-801
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Steven R. Nation, Judge
                               Cause No. 29D01-1203-FB-2662


                                           March 27, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
         Austin Matthew Scholl appeals after a jury trial from his convictions of Criminal

Deviate Conduct1 as a class B felony and Sexual Battery2 as a class D felony, contending that

the trial court erred by admitting a statement previously made by Scholl on a social media

website, and by denying Scholl’s motion to exclude the State’s expert witness’s testimony at

trial.

         We affirm.

         Late in the evening on March 17, 2012, E.H. and her husband, Cory, invited Scholl,

their long-time friend, to visit them at their home in order to discuss some comments Scholl

had recently posted on his Facebook page. Approximately a week prior, Scholl had posted

the following status on his Facebook page: “why do people act like they don’t wanna fuck?

Honestly”. State’s Exhibit 1. E.H. and Scholl had been friends for years and had performed

together in a folk band. Scholl’s comments on Facebook made E.H. uncomfortable. E.H.

had no romantic interest in Scholl and, although married, had told Scholl that she was gay.

         Scholl arrived at E.H. and Cory’s home at approximately midnight. E.H. was

intoxicated, having celebrated St. Patrick’s Day earlier in the evening. Scholl, Cory, and

E.H. sat in the living room discussing topics such as Scholl’s Facebook comments, religion,

monogamy in marriage, and E.H.’s sexuality. At some point, Cory left the room and went

down the hallway to the couple’s bedroom.




1 Ind. Code Ann. § 35-42-4-2 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical
Sess.).
2 I. C. Ann. § 35-42-4-8 (West, Westlaw current through 2013 1 st Reg. Sess. & 1st Reg. Technical Sess.).



                                                   2
       E.H. and Scholl continued to talk, and E.H. played a song for Scholl that she had

written. Scholl expressed to E.H. that she was speaking the words of his heart or mind, and

his belief that E.H. was the reincarnation of Bob Marley. Scholl stated that he considered

E.H. to be his soul mate. E.H. expressed her agreement and belief that she had connected

with Scholl as a friend on a deeper level. Scholl asked E.H. if she ever thought of him that

way, and glanced down the hallway where Cory slept. E.H. replied, “I am now,” but

reminded Scholl that she thought she was gay. Transcript at 368-69. Scholl also asked E.H.

why she had never given him “head,” and E.H. laughed. Id. at 368. Scholl moved from his

chair and sat next to E.H. on the couch. E.H. told Scholl, “I feel like you’re sitting next to

me because you want to do something with me and that’s not happening.” Id. at 371.

       Scholl told E.H. that he thought she was manipulating him. E.H. replied, “I don’t

know why you think that, but okay.” Id. at 372. E.H. relaxed on the couch with her eyes

closed and her head back, until she felt Scholl’s hand on her stomach. Scholl then kissed

E.H. E.H. sat in awkward silence as Scholl began masturbating next to her. E.H. closed her

eyes, and, when she opened them, discovered that Scholl had moved in front of her, with his

penis outside his pants as he continued masturbating. Scholl grabbed E.H.’s head with one

hand and tried to insert his penis inside E.H.’s mouth. E.H. resisted, told him not to do that,

and pushed against Scholl’s hip. E.H. continued to tell Scholl no, but Scholl placed his penis

into E.H.’s mouth. E.H. pushed Scholl away and said, “no, don’t do this, you will regret this

in the morning.” Id. at 374. Scholl grabbed E.H.’s head again, used his thumb and finger to

open E.H.’s mouth, and thrust his penis inside E.H.’s mouth.


                                              3
       E.H. leaned to the right as if to vomit so that she was lying back on the couch on her

side. Scholl then straddled E.H. and inserted his penis into E.H.’s mouth. E.H. said, “no, no,

no, don’t, don’t, don’t” but did not fight Scholl. Id. at 375. Scholl thrust his penis into

E.H.’s mouth and ejaculated. E.H. spit Scholl’s ejaculate into a sock, laughed, and made a

joke to Scholl. Scholl replied, “I’m an asshole. I’m sorry for mouth-raping you.” Id. at 377.

Scholl then extended his hand to E.H. and she shook it.

       At approximately that time, Cory entered the room and recognized that something was

wrong. E.H. asked Cory to tell Scholl that Scholl was not a bad guy, and Cory complied

before returning to bed. E.H. then went into the bathroom, vomited twice, and went to her

bedroom, where she entered the closet and cried. She texted two friends and explained that

she had been sexually assaulted by Scholl. One of E.H.’s friends advised her to call the

police, go to the hospital, and to tell Cory.

       When E.H. returned to the living room, she told Scholl to leave before “someone beats

the shit out of you.” Id. at 380. Scholl said, “I’m sorry.” Id. E.H. asked Scholl why he had

assaulted her, to which he replied, “I don’t know.” Id. The two then hugged and Scholl left

the house. After Scholl left, E.H. told her husband what had happened. E.H. was calm at

first but then began to weep. Cory drove E.H. to the hospital where a nurse swabbed her

mouth and collected a sample of Scholl’s semen from E.H.’s hair.

       Detective Michael Haskett of the Noblesville Police Department interviewed E.H. and

then met Scholl at Scholl’s house on March 18, 2012. Detective Haskett asked Scholl if

something had happened the previous night. Scholl lowered his head and replied that


                                                4
something had happened. Scholl agreed to an interview and was transported to the police

station. Detective Haskett read Scholl his Miranda rights and admitted that he “pretty much

forced [E.H.] to give [him] a blow job.” State’s Exhibit 8. Scholl further admitted that E.H.

had told him not to put his penis in her mouth. Scholl claimed that he thought that “being

forced” was “what turned her on.” Id. Scholl acknowledged his comments and apology to

E.H. after he had assaulted her.

       The State charged Scholl with criminal deviate conduct as a class B felony and sexual

battery as a class D felony. At trial, Scholl objected on relevancy grounds to the State’s use

of Scholl’s Facebook post. The evidence was admitted over Scholl’s objection. Later,

Scholl sought to exclude the testimony of the State’s expert witness, on the ground that

expert testimony was not necessary as the evidence in question was within the common

knowledge of a lay person. The trial court allowed the State’s expert to testify so long as the

testimony did not stray into the area of E.H.’s credibility or constitute improper vouching.

The jury found Scholl guilty as charged. The trial court merged the class D felony conviction

and imposed a ten-year sentence on Scholl’s conviction for the class B felony, with six years

executed and four years suspended. Scholl now appeals.

       Scholl argues that the trial court erred by admitting the comment Scholl had

previously posted on his Facebook page. We review challenges to the admission of evidence

pursuant to the following standard:

       Our standard of review for the admissibility of evidence is well settled. The
       admission or exclusion of evidence lies within the trial court’s sound discretion
       and is afforded great deference on appeal. We will reverse the trial court’s
       ruling on the admissibility of evidence only for an abuse of discretion. An

                                              5
       abuse of discretion occurs where the trial court’s decision is clearly against the
       logic and effect of the facts and circumstances before it. In reviewing the
       admissibility of evidence, we consider only the evidence in favor of the trial
       court’s ruling and any unrefuted evidence in the defendant’s favor.
Meister v. State, 912 N.E.2d 412, 414 (Ind. Ct. App. 2009) (internal citations omitted), trans.

denied. “Evidence which is not relevant is not admissible.” Ind. Evidence Rule 402.

Relevant evidence is “evidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Evid. R. 401.

       About a week prior to the sexual assault, Scholl posted on his Facebook page, “why

do people act like they don’t wanna fuck? Honestly.” State’s Exhibit 1. E.H. and Cory

testified that they had invited Scholl to their house to discuss the comments Scholl posted on

his Facebook page. The comment was relevant because it was illustrative of Scholl’s state of

mind when he committed the crime. This comment showed Scholl’s belief that E.H. desired

sexual relations with him, even though she told Scholl that she had no romantic interest in

him.

       Several times that evening Scholl attempted to persuade E.H. to perform oral sex on

him, by asking her why she had not done so and by attempting to forcibly insert his penis into

E.H.’s mouth. Scholl did so in spite of E.H.’s frequent pleas for him to stop. The Facebook

post was relevant to show that Scholl did not believe E.H. when she said that nothing would

happen between them, and explains his comment to E.H. that he believed she was

manipulating him. Additionally, Scholl acknowledged to Detective Haskett that E.H. had

told him not to insert his penis into her mouth, but he believed that she wanted oral sex


                                               6
forced upon her because he thought “that’s what turned her on.” State’s Exhibit 8.

       Scholl asserts that the comment he posted on Facebook subjected him to unfair

prejudice. Our Supreme Court has observed that “all relevant evidence is ‘inherently

prejudicial’ in a criminal prosecution.” Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)

(quoting Richmond v. State, 685 N.E.2d 54, 55 (Ind. 1997)). Upon review, we must balance

the probative value of the evidence against the likely unfair prejudicial impact the evidence

may have on the jury. Carter v. State, 766 N.E.2d 377. “When determining likely unfair

prejudicial impact, ‘courts will look for the dangers that the jury will substantially

overestimate the value of the evidence or that the evidence will arouse or inflame the

passions or sympathies of the jury.’” Id. at 382 (quoting Evans v. State, 643 N.E.2d 877, 880

(Ind. 1994)).

       The record does not indicate that the jury overestimated the value of this evidence.

Neither E.H. nor Cory testified about the content of the Facebook post. The statement was

introduced at the beginning of the trial. During closing argument, the State reiterated that the

reason E.H. and Cory had invited Scholl over to their house was to discuss the post. The trial

court did not abuse its discretion.

       Assuming arguendo that the trial court abused its discretion, that error was harmless.

The improper admission of evidence constitutes harmless error when the conviction is

supported by substantial independent evidence of guilt such that the court on review is

satisfied that there is no substantial likelihood that the challenged evidence contributed to the

conviction. R.W. v. State, 975 N.E.2d 407 (Ind. Ct. App. 2012). Such is the case here.


                                               7
       Both direct and circumstantial evidence presented at trial established that Scholl

forced E.H. to perform or submit to deviate sexual conduct. E.H. gave compelling testimony

about the details of the crime. E.H. made it clear that Scholl’s sexual advances were

unwelcome. E.H. repeatedly resisted Scholl’s numerous attempts to insert his penis in her

mouth by telling him not to do so and by pushing him away. Scholl persisted until he

succeeded. Scholl then apologized to E.H. after the assault.

       Shortly after the assault, E.H. sent several text messages to a friend recounting the

assault. The content of the text messages corroborated E.H.’s testimony at trial. Scholl

acknowledged to Detective Haskett that he knew why he was being interviewed, and

admitted that something had happened on the night in question. Scholl admitted to the

officer that he had “pretty much forced [E.H.] to give [him] a blow job.” State’s Exhibit 8.

Scholl further admitted that E.H. had told him not to place his penis in her mouth, but

claimed that he believed that the use of force excited her. Ample independent evidence of

Scholl’s guilt is present in the record. Any error, therefore, is harmless and does not warrant

reversal.

       Scholl asserts that the trial court erred by denying his motion to exclude the testimony

of the State’s expert witness. Because this issue involves review of a ruling on the

admissibility of evidence, we use the standard of review set forth above to determine whether

the trial court erred.




                                              8
       The trial court allowed State’s witness Andrea Hern to testify as an expert witness on

the topic of the varying reactions of victims of sexual assault. Ind. Evid. Rule 702 provides

as follows:

       (a) A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if the
       expert’s scientific, technical, or other specialized knowledge will help the trier
       of fact to understand the evidence or to determine a fact in issue.
       (b) Expert scientific testimony is admissible only if the court is satisfied that
       the expert testimony rests upon reliable scientific principles.
Under this rule, a witness may be qualified as an expert by virtue of “knowledge, skill,

experience, training, or education.” Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003). Only

one of those characteristics is necessary to qualify a witness as an expert. Kubsch v. State,

784 N.E.2d 905. It is within the trial court’s discretion to decide whether a witness qualifies

as an expert witness. Id.

       Hern was a licensed mental health counselor with twenty-two years of experience and

specialized in human sexuality and sexual trauma. She held a master’s degree in counseling

psychology and had considerable experience counseling victims of sexual assault. Hern was

a member of the International Society of Trauma and the Indiana Coalition Against Sexual

Assault. She had given hundreds of presentations on the topic of sexual assault, and kept up

with literature regarding adult victims’ responses to sexual assault. The trial court properly

found that Hern qualified as an expert witness.

       Scholl asserts that Hern’s testimony was within the common knowledge of any of the

jurors and that the substance of her testimony could have been presented as argument during

closing argument. In cases of domestic violence, we have observed that the reactions and

                                               9
behaviors of domestic violence victims are not commonly understood by lay persons, such

that the use of expert testimony is endorsed. Odom v. State, 711 N.E.2d 71 (Ind. Ct. App.

1999). Although this is not a case involving domestic violence, per se, the dynamics are

similar enough that we believe the principle applies here as well.

       The crime here was committed by the victim’s close friend, and E.H.’s reactions to the

assault might not conform to conduct a lay person would expect from a victim of a sex crime.

E.H. testified that after the assault she did “lots of weird things.” Transcript at 413. E.H.’s

reactions were relevant to her credibility. Thus, Hern’s testimony and opinion about varying

reactions of victims of sexual assaults likely aided the jurors to understand the evidence in

this case. Hern was qualified to form an opinion on that topic and her opinion was useful to

the jurors.

       Furthermore, Hern’s testimony did not stray into the realm of impermissible vouching

for E.H. Hern gave no opinion about E.H.’s credibility and did not link her opinion to E.H.’s

testimony. Hern did not testify that she had previous knowledge of the case or that she had

counseled E.H. In sum, Hern’s testimony consisted of general remarks about human

behavior following sexual trauma. She did not comment on whether E.H.’s reactions were

appropriate or if E.H. behaved consistently with someone who had been sexually victimized.

Where an expert’s testimony explains the behavior of victims, and is not based on personal

knowledge, the testimony does not constitute impermissible vouching. See Iqbal v. State,

805 N.E.2d 401 (Ind. Ct. App. 2004) (expert on topic of domestic violence explained

behavior of victims, was not based on personal knowledge, and did not constitute


                                             10
impermissible vouching). The trial court did not abuse its discretion by allowing Hern’s

testimony.

      Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.




                                          11
