                                                                         FILED
                                                                    Oct 14 2016, 8:31 am
OPINION
                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Gregory F. Zoeller
Anderson, Indiana                                          Attorney General of Indiana

                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Adam K. Baumholser,                                        October 14, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A04-1509-CR-1457
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                        Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1305-FA-539




May, Judge.




Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016                  Page 1 of 13
[1]   Adam K. Baumholser appeals his convictions of three counts of child

      molesting, 1 one as a Class A felony and two as Class C felonies. As the

      admission of certain character evidence and forensic interviewer testimony was

      not fundamental error, and as Baumholser’s sentence was neither inappropriate

      nor an abuse of discretion, we affirm.



                                Facts and Procedural History
[2]   Baumholser and A.L. married in January 2006. A.L.’s daughter from a

      previous relationship, K.C., was four years old at the time of the marriage. In

      August 2007, Baumholser and A.L. had a son. Baumholser and A.L. divorced

      in 2009 when K.C. was eight years old.


[3]   In February 2013, K.C. disclosed to her mother and grandmother that

      Baumholser molested her on five separate occasions in 2007 when she was six

      years old. Following her disclosure, K.C. took part in a forensic interview. The

      State charged Baumholser with four counts of child molestation, two as Class A

      felonies and two as Class C felonies, for crimes committed on separate

      occasions.


[4]   At trial, K.C. testified she did not immediately report the molestations as she

      feared Baumholser, because “[h]e was a lot bigger than me and my mom and

      he drank a lot and he had weapons in the house.” (Tr. at 63.) Baumholser did




      1
          Ind. Code § 35-42-4-3 (2007).


      Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 2 of 13
      not object to her testimony. The forensic interviewer, Molly Elfreich, testified

      “most of the time [disclosure of a crime by a child] is delayed in some way.”

      (Id. at 121.) Baumholser also did not object to this testimony.


[5]   The jury found Baumholser guilty of one Class A felony and two Class C

      felonies. The jury was unable to reach a verdict on one of the Class A felony

      charges, and the State dismissed it.


[6]   At sentencing, the trial court noted as a mitigator that Baumholser had no prior

      felony convictions. The trial court found as aggravators that Baumholser had

      been in a position of trust and care and he “is being sentenced for three separate

      counts[.]” (Id. at 279.) The trial court sentenced him to thirty-two years

      executed on the Class A felony and four years each on the Class C felonies, all

      to be served concurrently.



                                 Discussion and Decision
                                       Admission of Evidence
[7]   Baumholser argues the erroneous admission of character evidence and prior

      misconduct evidence, together with vouching testimony, denied him a fair trial.

      We typically review rulings on the admission of evidence for an abuse of

      discretion. Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans.

      denied. An abuse of discretion occurred if the trial court misinterpreted the law

      or if its decision was clearly against the logic and effect of the facts and

      circumstances before it. Id.


      Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016    Page 3 of 13
[8]    Baumholser did not object at trial to the evidence about which he now

       complains on appeal. Failure to object at trial waives the issue on review unless

       fundamental error occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).

       Fundamental error is an extremely narrow exception that applies only when the

       error amounts to a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process. Matthews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The claimed

       error must be so prejudicial to the rights of a defendant as to make a fair trial

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


                                  Ind. Evidence Rules 404(a) and 404(b)

[9]    Baumholser asserts fundamental error occurred when the State introduced

       evidence that Baumholser “drank a lot and [] had weapons in the house,” (Tr.

       at 63), thus painting him as a “drunken, armed menace who intimidated K.C.

       into suppressing her secret.” (Appellant’s Br. at 24.) Baumholser claims this

       was inadmissible character evidence and prior bad acts evidence barred by Ind.

       Evidence Rules 404(a) and 404(b). 2


[10]   Ind. Evidence Rule 404(a) prohibits using evidence of a defendant’s “character

       or character trait . . . to prove that on a particular occasion the person acted in




       2
         Baumholser also asserts the evidence of his drinking alcohol and owning guns should not have been
       admitted because it was not relevant. We agree those facts are not relevant to whether he molested K.C., but
       they were not admitted for that purpose. Rather, they were admitted to explain why K.C. delayed in
       disclosing the molestations, and for that purpose, the evidence was relevant. Ind. Evidence Rule 401
       (“Evidence is relevant if . . . the fact is of consequence in determining the action.”).

       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016                     Page 4 of 13
       accordance with that character or trait.” This rule is meant to deter a jury from

       pursuing a path of reasoning that leads to “the forbidden inference,” which is

       that a defendant is guilty of the alleged crime because the defendant possesses a

       bad character trait. Herrera v. State, 710 N.E.2d 931, 935 (Ind. Ct. App. 1999).

       Ind. Evidence Rule 404(b) prohibits the use of a defendant’s “crime, wrong, or

       other act . . . to prove a person’s character in order to show that on a particular

       occasion the defendant acted in accordance with that character.” Baumholser

       argues the State used the evidence regarding his status as an alcohol drinker and

       gun-owner to prove he had a dangerous character, and that molesting his step-

       daughter was consistent with that character.


[11]   Baumholser equates his case to Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App.

       2002), trans. denied. Oldham was convicted of murder and carrying a handgun

       without a license. At trial, the State introduced novelty photos of Oldham with

       text reading, “America’s Most Wanted,” “Wanted for: robbery, assault, arson,

       jaywalking,” “Considered armed and dangerous,” and “Approach with extreme

       caution.” Id. at 1171. On appeal, Oldham asserted the admission of that

       evidence was fundamental error that prejudiced the jury against him.


[12]   The State argued it had introduced the evidence to prove a shirt in the

       proximity of those pictures was Oldham’s shirt, but we determined the State

       was using the photographs to suggest Oldham was dangerous. Because the

       manner in which the State introduced the evidence suggested Oldham had the

       characteristics of one who would have guns and kill another person, its

       introduction would require Oldham to refute not only the charged crimes but

       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 5 of 13
       also the character evidence. Id. at 1173. As such, the admission of the evidence

       was fundamental error. Id. at 1174.


[13]   The evidence Baumholser drank alcohol and owned guns was not offered to

       prove he molested K.C. Rather, it was offered to show why K.C. waited four

       years to report the molestations. K.C. testified the reason she did not report the

       molestations was because she was afraid of Baumholser: “[h]e was a lot bigger

       than me and my mom and he drank a lot and he had weapons in the house.”

       (Tr. at 63.) Evidence of Baumholser’s drinking and ownership of guns was not

       used to suggest molesting K.C. was consistent with supposed bad character

       traits.


[14]   Baumholser did not object to the characterization at trial. The State questioned

       Baumholser regarding his ownership of guns and Baumholser did not object.

       As the evidence was not admitted to prove the molestation but to explain why

       K.C. delayed disclosure, the admission was not fundamental error.


                                          Ind. Evidence Rule 704(b)

[15]   Baumholser also asserts the testimony of Elfreich, the forensic interviewer, was

       vouching testimony prohibited by Ind. Evidence Rule 704(b). The State claims

       it was not, because she never directly referred to what K.C. told her during that

       interview. Rather, she testified as to the propensity of victims of child

       molestation to delay disclosure of the event. Baumholser did not object to this

       testimony at trial and must demonstrate fundamental error occurred. See




       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 6 of 13
       Halliburton, 1 N.E.3d at 678 (failure to object at trial waives the issue on review

       unless fundamental error occurred).


[16]   Ind. Evidence Rule 704(b) provides: “Witnesses may not testify to opinions

       concerning . . . whether a witness has testified truthfully[.]” When asked

       whether all children she had interviewed would disclose immediately, Elfreich

       testified:

               [Elfreich]: No.


               [State]: Do you often interview children who have delayed
               disclosure?


               [Elfreich]: Yes, most of the time it is delayed in some way.


       (Tr. at 121.)


[17]   Elfreich’s testimony did not relate to the truth or falsity of K.C.’s allegations.

       Rather, Elfreich was making a statement about how victims of child

       molestation behave in general. Thus, her testimony was not improper

       vouching. See Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 2012)

       (testimony on the general behavior of domestic violence victims “does not cross

       the line into impermissible vouching”), trans. denied.


[18]   Baumholser’s reliance on Steward v. State, 652 N.E.2d 490 (Ind. 1995), reh’g

       denied, which disallows vouching testimony regarding Child Sexual Abuse

       Accommodation Syndrome (“CSAAS”) evidence, is misplaced. Steward

       specifically disallows testimony regarding evidence of a particular syndrome,
       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 7 of 13
       CSAAS, which was not mentioned in the current case. In State v. Velasquez, 944

       N.E.2d 34 (Ind. Ct. App. 2011), trans. denied, we distinguished the admissibility

       of evidence of CSAAS from the admissibility of “behavioral evidence without

       use of the term CSAAS,” and held such evidence was admissible. Id. at 43, n.3.

       Thus, the testimony from Elfreich, which does not mention any syndrome, did

       not run afoul of Ind. Evidence Rule 704(b) as applied in Steward. We see no

       error, fundamental or otherwise, in the admission of Elfreich’s statement. See

       Otte, 967 N.E.2d at 548.


                                                    Sentence
[19]   Finally, Baumholser challenges his sentence. First, he asserts the trial court

       relied on an improper aggravating circumstance by noting Baumholser was

       being convicted on three separate charges. Then, he claims the trial court

       imposed an inappropriate sentence.


                                                     Discretion

[20]   Sentencing decisions rest within the sound discretion of the trial court and we

       review only for an abuse of discretion. Anglemyer 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 if the decision is clearly against the logic and effect of the facts

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

       deductions drawn therefrom. Id. We review for an abuse of discretion the

       court’s finding of aggravators and mitigators to justify a sentence, but we

       cannot review the relative weight assigned to those factors. Id. at 490-491.


       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 8 of 13
       When reviewing the aggravating and mitigating circumstances identified by the

       trial court in its sentencing statement, we will remand only if “the record does

       not support the reasons, or the sentencing statement omits reasons that are

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

       given are improper as a matter of law.” Id.


[21]   “A fact which comprises a material element of a crime may not also constitute

       an aggravating circumstance to support an enhanced sentence[.]” Manns v.

       State, 637 N.E.2d 842, 844 (Ind. Ct. App. 1994). In Kien v. State, 782 N.E.2d

       398 (Ind. Ct. App. 2003), reh’g denied, trans. denied, we had to determine whether

       the trial court improperly considered Kien’s multiple acts of molestation to be

       an aggravating factor as he had been convicted of each offense alleged to have

       been committed. Id. at 411. The trial court also explained in great detail the

       impact the multiple incidents had on the victim and what they “revealed about

       Kien’s character.” Id. Because the trial court referred to the multiple

       convictions in the context of explaining the impact on the victim, we found no

       error in the trial court mentioning the multiple incidents as an aggravator. Id.


[22]   Here, the trial court stated:


               As an aggravating circumstance I find that he was in a position of
               trust and care of the victim in this case and had an opportunity to
               watch our [sic] for her welfare but instead as he was in a position
               of trust and care these event occurred. Also I find he’s being
               sentenced, another aggravator, the fact that he is being sentenced
               for three separate counts or three counts that the jury did find
               him guilty of, that also I find to be an aggravating circumstance.


       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 9 of 13
       (Tr. at 278-79.) While there was evidence of more incidents of molestation than

       those charged, the trial court did not elaborate on the impact of the crimes on

       K.C. or what the crimes revealed about Baumholser’s character, such that we

       could follow Kien and affirm the court’s finding of the aggravator.


[23]   However, even if the trial court improperly considered Baumholser’s multiple

       convictions as an aggravator, the trial court properly found Baumholser’s

       position of trust with K.C. to be an aggravating factor. Abusing a position of

       trust is, by itself, a valid aggravator that may support a maximum sentence.

       Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005). “A single aggravating

       circumstance may be sufficient to enhance a sentence. When a trial court

       improperly applies an aggravator but other valid aggravating circumstances

       exist, a sentence enhancement may still be upheld.” Hackett v. State, 716 N.E.2d

       1273, 1278 (Ind. 1999) (internal citations omitted). The question we must

       decide is whether we are confident the trial court would have imposed the same

       sentence even if it had not found the improper aggravator. See Edrington v. State,

       909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009) (proper to affirm sentence even if

       improper aggravator is considered, if we have “confidence the trial court would

       have imposed the same sentence” regardless), trans. denied.


[24]   The sentencing range for a Class A felony is “between twenty (20) and fifty (50)

       years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-

       4 (2005). The sentencing range for a Class C felony is “between two (2) and

       eight (8) years, with the advisory sentence being four (4) years.” Ind. Code §

       35-50-2-6 (2005). The trial court imposed a sentence of thirty-two years for the

       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 10 of 13
       Class A felony conviction. The trial court imposed the advisory sentence for

       the Class C felonies and ordered them served concurrent with the sentence for

       the Class A felony.


[25]   Baumholser’s aggregate sentence is only two years more than the advisory

       sentence for his most serious offense. In addition to the fact he was convicted

       of multiple counts of child molestation, the trial court stated as an aggravator

       the position of trust and care Baumholser had with K.C. As such, we are

       confident the trial court would have imposed the same sentence even if it had

       not found the improper aggravator. See Edrington, 909 N.E.2d at 1101 (even if

       an improper aggravator is used, remand for sentencing is not required when the

       importance of the position of trust aggravator is stated).


                                                 Appropriateness

[26]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

       (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only

       the aggravators and mitigators found by the trial court, but also any other

       factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

       App. 2007), trans. denied. The appellant bears the burden of demonstrating his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[27]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

       494. The sentencing range for a Class A felony is “between twenty (20) and

       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 11 of 13
       fifty (50) years, with the advisory sentence being thirty (30) years.” Ind. Code §

       35-50-2-4 (2005). The sentencing range for a Class C felony is “between two (2)

       and eight (8) years, with the advisory sentence being four (4) years.” Ind. Code

       § 35-50-2-6 (2005). Baumholser received a thirty-two year sentence for the

       Class A felony and concurrent four-year sentences for the two Class C felonies.


[28]   Regarding the nature of his offense, Baumholser molested his six-year-old step-

       daughter on multiple occasions. By doing so, he violated the position of trust

       he had with her. We see nothing inappropriate about his sentence being

       slightly higher than the advisory sentence for the most severe of those crimes.


[29]   As to Baumholser’s character, we note his criminal history was minimal,

       including only two misdemeanor convictions. We also note the voluminous

       evidence of family and friends who support and spoke favorably of Baumholser.

       We find nothing in Baumholser’s character, beyond the current convictions, to

       be deplorable. However, to obtain relief, Baumholser must demonstrate the

       sentence is inappropriate in light of both the nature of the offense and his

       character. See Ind. App. R. 7(B). He has not.


[30]   In light of the position of trust Baumholser had with respect to K.C., we

       conclude the thirty-two year sentence is not inappropriate.



                                                Conclusion
[31]   As the admission of the evidence about which Baumholser complains was not

       fundamental error and as his sentence does not warrant reversal, we affirm.

       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 12 of 13
[32]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 82A04-1509-CR-1457 | October 14, 2016   Page 13 of 13
