Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                             GREGORY F. ZOELLER
Marion County Public Defender                     Attorney General of Indiana
Indianapolis, Indiana
                                                  JAMES B. MARTIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana
                                                                                   FILED
                                                                                Dec 07 2012, 9:31 am


                              IN THE                                                    CLERK
                                                                                      of the supreme court,
                                                                                      court of appeals and
                                                                                             tax court

                    COURT OF APPEALS OF INDIANA

VICKIE JESSIE,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 49A02-1205-CR-413
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Sheila A. Carlisle, Judge
                            Cause No. 49G03-1111-FA-79065



                                       December 7, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

       Vickie Jessie appeals her conviction for criminal deviate conduct, as a Class A

felony, and the trial court’s order that she pay $200 restitution to her victim.1 Jessie

raises three issues for our review, which we restate as follows:

       1.        Whether the trial court committed fundamental error when it
                 permitted the State to make multiple references to a “rape kit” or
                 “sexual assault kit.”

       2.        Whether the State presented sufficient evidence to support Jessie’s
                 conviction.

       3.        Whether the trial court abused its discretion when it ordered Jessie to
                 pay $200 in restitution to her victim.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On November 4, 2011, Gary Johnson called J.B., his former girlfriend, and asked

her if she wanted to “hang out” with him and his current girlfriend, Jessie. Transcript at

22. J.B. agreed, and Johnson and Jessie arrived at J.B.’s house shortly thereafter to pick

her up and take her to Johnson’s house.

       At Johnson’s house, the three had several drinks together over the course of about

four hours. Around 3:30 a.m., Johnson asked J.B. and Jessie if they wanted to have a

threesome. J.B. declined, but Jessie expressed interest. Johnson then punched J.B. in the

face and knocked her out. When J.B. awoke, she noticed blood in her eyes and saw

Johnson and Jessie standing over her while hitting her. J.B. lost consciousness a second

time, and when she awoke again both Johnson and Jessie were undressing her.



       1
           Jessie does not appeal her other convictions or her sentence.
                                                     2
        J.B. then realized she was naked and face down on the bed. During the course of

the assault, Johnson inserted his penis into J.B.’s anus. At various times, Jessie would

force J.B. to perform sexual acts on Johnson, receive sexual acts from J.B. while Johnson

pointed a gun at J.B., or stand nearby while Johnson raped J.B. and told Johnson to “give

it” to the “whore.” Id. at 52.

        After the attack, Jessie emptied J.B.’s purse onto the bedroom floor, took J.B.’s

ATM card, and, while holding a carpet cutter to J.B.’s chest, demanded J.B.’s personal

identification number. J.B. complied, and Jessie took J.B. to a nearby gas station with an

ATM. Inside the station, Jessie removed $200 from J.B.’s bank account. While she was

doing so, J.B. told the cashier that she had been raped, and J.B. then called 9-1-1 on the

cashier’s personal phone. Jessie fled before the police arrived.

        On November 10, the State charged Jessie with criminal deviate conduct, as a

Class A felony, along with several other charges. At the ensuing jury trial, the State

introduced, without objection, testimony from forensic investigators and evidence

technicians. Those witnesses repeatedly referred to the use of a “rape kit” or a “sexual

assault kit.”2 E.g., id. at 246-47, 330-32.

        At the conclusion of the trial, the jury found Jessie guilty of, among other counts,

criminal deviate conduct, as a Class A felony, and robbery, as a Class B felony.

Accordingly, the trial court entered its judgment of conviction and sentence, and it

ordered Jessie to pay $200 to J.B. in restitution. This appeal ensued.




        2
           A rape kit, or sexual assault kit, is a collection of physical evidence from the victim of an
alleged sexual assault taken by hospital staff.
                                                   3
                            DISCUSSION AND DECISION

                             Issue One: Fundamental Error

       Jessie first argues on appeal that the description by the State’s witnesses of a “rape

kit” or a “sexual assault kit” was fundamental error. As our supreme court has explained:

       A claim that has been waived by a defendant’s failure to raise a
       contemporaneous objection can be reviewed on appeal if the reviewing
       court determines that a fundamental error occurred. See, e.g., Trice v.
       State, 766 N.E.2d 1180, 1182 (Ind. 2002); Hayworth v. State, 904 N.E.2d
       684, 694 (Ind. Ct. App. 2009). 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). The error claimed
       must either “make a fair trial impossible” or constitute “clearly blatant
       violations of basic and elementary principles of due process.” Clark v.
       State, 915 N.E.2d 126, 131 (Ind. 2009). This exception is available only in
       “egregious circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.
       2003).

             This doctrine has been applied, for example, to review a conviction
       without proof of an element of the crime despite the lack of objection.
       Smith v. State, 459 N.E.2d 355, 357 (Ind. 1984). . . .

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

       Jessie’s argument on this issue is that the use of the term “rape kit” or “sexual

assault kit” “invaded the province of the jury” and amounted to opinions on the ultimate

issue, contrary to Indiana Evidence Rule 704(b). Appellant’s Br. at 8. We cannot agree

that any error in the State’s admission of this evidence amounted to fundamental error.

The descriptive terms of the collection kits only suggest that J.B. had alleged to the

hospital staff who collected the evidence that she was the victim of a rape or sexual

assault. The jury was well aware of J.B.’s allegation regardless of the name of the

collection kits. Nothing in this issue is “a blatant violation of basic principles,” or shows
                                             4
that “the harm or potential for harm is substantial.” Brown, 929 N.E.2d at 207. As such,

this issue is without merit.

                               Issue Two: Sufficient Evidence

       Jessie next argues that the State failed to present sufficient evidence to support its

allegation that she committed criminal deviate conduct, as a Class A felony. Specifically,

Jessie asserts that the State failed to show that she was Johnson’s accomplice when

Johnson sodomized J.B. Rather, Jessie continues, the State’s evidence showed that she

“was merely present during the anal sex and failed to oppose it.” Appellant’s Br. at 15.

We disagree.

       To demonstrate that Jessie acted as Johnson’s accomplice, the State was required

to show that Jessie “knowingly or intentionally aid[ed], induce[d], or cause[d]” Johnson

to commit criminal deviate conduct, as a Class A felony.3 Ind. Code § 35-41-2-4.

       [T]he accessory statute has been construed to impose a form of vicarious
       liability for everything . . . which follows incidentally in the execution of
       the common design, as one of its natural and probable consequences, even
       though it was not intended as part of the original design or common plan,
       upon a showing that the accomplice acted in concert with those who
       physically committed the elements of the crime.

Chappell v. State, 966 N.E.2d 124, 130 (Ind. Ct. App. 2012) (emphasis added; citations

and quotations omitted), trans. denied.

       The State’s evidence that Jessie aided Johnson during his commission of the

offense was overwhelming. The State demonstrated that Jessie and Johnson designed to

sexually assault J.B., with Jessie helping Johnson to beat J.B. while she went in and out

of consciousness, helping him remove J.B.’s clothing, actively participating in the sexual
       3
          Jessie does not dispute that the State presented sufficient evidence to show that Johnson
committed criminal deviate conduct, as a Class A felony.
                                                5
assault herself, and vocally encouraging Johnson throughout the ordeal.          Johnson’s

criminal deviate conduct was more than incidental to the execution of that common

design, and, therefore, Jessie is liable as an accomplice. See id. Jessie’s argument to the

contrary is without merit.

                                  Issue Three: Restitution

       Finally, Jessie complains about the trial court’s $200 restitution order. “‘The

purpose of a restitution order is to impress upon the criminal defendant the magnitude of

the loss he has caused and to defray costs to the victims caused by the offense.’” Bennett

v. State, 862 N.E.2d 1281, 1286 (quoting Henderson v. State, 848 N.E.2d 341, 346 (Ind.

Ct. App. 2006)). It is within the trial court’s discretion to order restitution, and we will

reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the trial

court’s decision is clearly against the logic and effect of the facts and circumstances

before it, or if the trial court misinterprets or misapplies the law. Id.

       Jessie has invited any error on this issue and, as such, she cannot request relief

based on this ground on appeal. See Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct.

App. 2000), trans. denied.        During her sentencing hearing, in arguing mitigating

circumstances Jessie’s counsel expressly informed the court that “Jessie is certainly

willing to make restitution” to J.B. Transcript at 556. The court then ordered her to pay

J.B. $200, but the court added that, “if there is an additional request for restitution, the

Court will advise [Jessie] and her counsel. And if you wish to have a hearing, we’ll set

the matter for a hearing.” Id. at 576. Thus, the court’s restitution order was based on

Jessie’s invitation to pay restitution as a mitigating circumstance. Having invited the


                                               6
restitution order, Jessie cannot request relief from it on appeal. See Mitchell, 730 N.E.2d

at 201. Invited error is not reversible error. Id.

                                         Conclusion

       In sum, we affirm Jessie’s conviction for criminal deviate conduct, as a Class A

felony, and the trial court’s restitution order.      Jessie cannot show that the State’s

references to the “rape kit” or “sexual assault kit” were fundamental error, and the State

presented sufficient evidence to show that Jessie was Johnson’s accomplice during

Johnson’s commission of the criminal deviate conduct. Further, any error in the trial

court’s restitution order was invited by Jessie when she offered to pay restitution as a

mitigating circumstance.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                              7
