Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                        FILED
court except for the purpose of                               Jan 11 2012, 9:15 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH                          GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                ELLEN H. MEILAENDER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DIYON EVANS,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A04-1104-CR-227
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Mark D. Stoner, Judge
                           Cause No. 49G06-0906-FB-53420



                                     January 11, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Diyon Evans appeals his convictions for Rape,1 a class B

felony, and Criminal Deviate Conduct,2 a class B felony, alleging that the trial court

erroneously admitted hearsay testimony and that the evidence is insufficient to support

the convictions. Specifically, Evans argues that the victim’s statements to her sister and

sexual assault examiner were improperly admitted into evidence as exceptions to the

hearsay rule. He also argues that the evidence was insufficient to show that the victim

was compelled to submit to sexual conduct by force or threat of force. Finding no error

and concluding that the evidence was sufficient, we affirm.

                                           FACTS

          In April 2009, A.K. was a 37-year-old resident at Eagle Valley Meadows, a long-

term care facility in Indianapolis. A.K.’s family had placed her in the facility after she

suffered a ruptured brain aneurysm that left her severely physically handicapped and

unable to care for herself. She breathes through a tracheotomy tube and is fed through a

tube. Although A.K. has feeling in her limbs, she maintains only a slight ability to move

her left hand.          The aneurysm did not affect her cognitive functions, and she

communicates through hand gestures to indicate “yes” and “no” using her left hand.

A.K.’s sister, M.K., visited A.K. at the facility every day.

          On April 7, 2009, Evans was working as a Certified Nursing Assistant at the

facility.      He was assigned to take care of A.K., which included bathing her.       At


1
    Ind. Code § 35-42-4-1.
2
    I.C. § 35-42-4-2.
                                              2
approximately 9:00 a.m., Evans entered her room and remained inside with the door

closed for twenty to thirty minutes. A.K. did not have a roommate, and no one else was

in the room while the door was closed.

      When M.K. arrived at the facility later that day, A.K. immediately began crying

when she saw M.K. M.K. described the crying as “terrifying.” Tr. p. 227. This was not

the first time that M.K had seen A.K. cry, but because of the nature of her crying, M.K.

suspected that something terrible had happened.         M.K. asked A.K. a series of

investigative questions to deduce what was wrong, beginning with whether her head hurt.

A.K. gestured “no” to each of those questions. Id. at 226-27. Then, not believing it to be

a serious question, M.K. asked A.K. if she had been raped. A.K. began to cry harder and

gestured “yes.” Id. at 227.-28. M.K. further questioned her sister, and A.K. signaled

“yes” when asked whether it was one of her caretakers and whether that person was a

man. A.K. also indicated she had been touched in her vagina and “butt” and gestured

“yes” when asked whether the person had put his penis into her vagina and “butt.” Id. at

231, 234-35.

      M.K. then reported the information to the on-duty nurse, who subsequently

reported the information at around 5:00 p.m. to Linda Wilkinson, a health care

administrator at Eagle Valley Meadows.          Upon learning of the rape, Wilkinson

determined that only two male nurses were working in A.K.’s hallway that day, one

being Evans. Wilkinson presented the other male nurse to A.K., and A.K. signaled “no”

and smiled. Id. at 65. Wilkinson reviewed the facility’s security camera video and

                                            3
observed that Evans was the only male in A.K.’s room earlier in the day with the door

closed. Wilkinson then called the police.

      Around 8:00 p.m., A.K. was taken to Methodist Hospital, where she was examined

by Joyce Fuss, a registered nurse and sexual assault nurse examiner. Fuss asked A.K. a

number of “yes” or “no” questions. When asked whether she was penetrated vaginally

and rectally, she responded “yes.” Id. at 102-05. Fuss examined A.K. and observed

injuries to A.K.’s posterior fourchette, the thin piece of skin below the vaginal opening,

and a rectal tear.   Because of the rectal tearing, A.K. was prescribed an anti-viral

medication. Fuss collected swabs of A.K.’s vagina and the adult diaper she was wearing

for testing. Seminal fluid, including sperm, was found on the external genital swab and

on the adult diaper. The DNA profile of the sperm cells on the external genital swab

matched that of Evans to “a reasonable degree of scientific certainty” or “one in 6

sixtillion” African Americans. Id. at 173-74.

      On April 10, 2009, Indianapolis Metropolitan Police Department Detective Kevin

Lauerman interviewed Evans. Evans admitted to being in A.K.’s room for twenty to

thirty minutes on April 7, but claimed he only bathed her. On June 3, 2009, Detective

Lauerman obtained an arrest warrant for Evans, called Evans on the phone, and arranged

to meet with Evans at Evans’s home later that day. When he arrived, Evans was no

longer there, and he was unable to locate Evans for several days. On June 8,, 2009, Evans

was arrested in Alabama.



                                            4
       On June 3, 2009, the State charged Evans with rape, a class B felony, criminal

deviate conduct, a class B felony, and sexual battery, as a class D felony.

       At trial, the State called Fuss and M.K. to testify. Fuss testified that, when asked

where she felt pain, A.K. pointed toward her pelvic area. Fuss further testified that A.K.

answered “yes” to questions inquiring whether her vagina was penetrated, whether a

penis had penetrated her vaginally, and whether her rectum was penetrated by a penis.

Evans raised a hearsay objection to the testimony that A.K. said her vagina was

penetrated. The trial court overruled the objection after the prosecutor argued that the

statement was an exception to the hearsay rule because it was made for the purpose of

medical diagnosis and treatment. Evans did not object to any of the other statements.

Fuss also testified that she observed injuries to A.K.’s vagina and rectum consistent with

sexual assault and blunt force trauma.

       While M.K. was testifying about what A.K. had told her on April 7, the trial court

interrupted the testimony to ask defense counsel whether he had a strategic reason for not

objecting to the hearsay testimony. Evans never objected, but instead answered in the

affirmative when the trial court asked whether he would like for the trial court to

admonish the jury that M.K.’s statements were not being offered to prove the truth of the

matter asserted.    The trial court, however, made no such admonishment because,

following argument during jury instructions, the trial court determined that A.K.’s

statements to her sister qualified as excited utterances and an exception to the hearsay

rule under Indiana Rule of Evidence 803(2).

                                              5
        A.K. was brought to court and testified using her “yes” and “no” hand gestures.

When asked, “The boy who took care of you, did you see him in court? Can you point to

him?” Tr. p. 278. A.K. made a deliberate pointing motion to her left with her pointer

finger extended. Video of Trial Test. of A.K. The State asked for the record to reflect

that the witness identified Evans, but the trial court left it to the jurors to draw their own

conclusion as to whether A.K. pointed to Evans.3 Id. at 279. Then, A.K. testified that the

“boy who took care of [her],” touched her in a way she did not like and put his penis into

her vagina. Id. She also answered “yes” when asked whether she “told M.K. the truth.”

Id. at 278-82.

        The jury found Evans guilty as charged. The trial court merged the sexual battery

count into the other counts in light of double jeopardy concerns and entered a sentence on

the remaining two convictions. Evans now appeals.

                                   DISCUSSION AND DECISION

                                                 I. Hearsay

        Evans argues that the trial court erred when it admitted certain testimony into

evidence as exceptions to the hearsay rule. The admission and exclusion of evidence is a

matter within the sound discretion of the trial court, and we will review only for an abuse

of discretion.      Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002).                        An abuse of

discretion occurs when the trial court’s ruling is clearly against the logic, facts, and

3
  When the State asked the trial court to have the record reflect that A.K. identified Evans, Evans objected
to the identification. The trial court stated, “All right. We’ll let the record speak for itself since its being
video recorded and the jurors can draw their own conclusions. And the record being made by this video.”
Tr. p. 279.
                                                       6
circumstances presented. Parts v. State, 899 N.E.2d 714, 719 (Ind. Ct. App. 2009). If a

trial court abuses its discretion by admitting the challenged evidence, we will only

reverse if the error is inconsistent with substantial justice or if a substantial right of the

party is affected. In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010). Moreover, any

error caused by the admission of evidence is harmless error, for which we will not

reverse, if the erroneously admitted evidence was cumulative of other evidence properly

admitted. Id.

                                   A. Statements to M.K.

       Evans challenges the trial court’s admission of A.K.’s statements to her sister

pursuant to the excited utterance exception to the hearsay rule contained in Indiana

Evidence Rule 803(2). Specifically, Evans argues that A.K.’s statements to her sister are

not properly excited utterances because the State failed to present a clear record of the

amount of time that elapsed between the rape and when A.K. reported the rape to M.K.

       Initially, we note that Evans concedes that he has waived the issue, inasmuch as

defense counsel failed to object to M.K.’s testimony. See Brown v. State, 783 N.E.2d

1121, 1125 (Ind. 2003) (holding that a contemporaneous objection at the time evidence is

introduced at trial is required to preserve the issue for review). Accordingly, Evans

attempts to circumvent waiver by alleging fundamental error. To be fundamental error,

an error must “constitute a blatant violation of basic principles, the harm or potential for

harm must be substantial, and the resulting error must deny the defendant fundamental

due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). In other words,

                                              7
fundamental error is defined as an error so prejudicial to the rights of a defendant that a

fair trial is rendered impossible. Id.

       Hearsay is a statement, other than one made by the declarant while testifying at

trial, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule

801(c). Hearsay is inadmissible unless admitted pursuant to a recognized exception. Ind.

Evidence Rule 802. In order for a hearsay statement to be admitted as an excited

utterance, three elements must be present: (1) a startling event has occurred; (2) a

statement made by a declarant while under the stress of excitement caused by the event;

and (3) the statement relates to the event. Jones v. State, 800 N.E.2d 624, 627-28 (Ind.

Ct. App. 2003). Application of this rule is not mechanical and admissibility should

generally be determined on a case-by-case basis. Palacios v. State, 926 N.E.2d 1026,

1031 (Ind. Ct. App. 2010). The heart of the inquiry is whether the statement is inherently

reliable because the declarant was incapable of thoughtful reflection. Id. Although

relevant, the amount of time that has passed between the event and the statement is not

dispositive; rather, the focus is on whether the declarant was still under the stress of

excitement caused by the startling event when she made the statement. Mathis v. State,

859 N.E.2d 1275, 1279 (Ind. Ct. App. 2007).

       Here, the record reveals that Evans was in A.K.’s room with the door closed from

approximately 9:00 to 9:30 a.m. M.K. testified that, when she arrived and A.K. told M.K

she had been raped, she immediately reported that information to the on-duty nurse, who

recalled talking to M.K. sometime around 5:00 p.m. Although the time between the

                                            8
incident and A.K.’s statements to M.K. may have been in upwards of seven hours, it is

certainly conceivable that A.K.’s physical limitations prolonged the stress of the rape

committed by her caretaker. Unable to talk, A.K. could not communicate to anyone

about what had occurred until her sister arrived. Unable to move, she remained in the

same bed where she had been raped. When she made the statements to her sister, A.K.’s

crying was “terrifying.” Tr. p. 227. Under these facts and circumstances, the trial court

could reasonably conclude that, despite the elapsed time, A.K.’s statements to M.K. were

made while she was under the continuing stress of excitement caused by the rape.

Therefore, the trial court did not commit error, let alone fundamental error, in admitting

A.K.’s statement under the excited utterance exception to the hearsay rule.

                     B. Statements to Sexual Assault Nurse Examiner

       Evans next contends that the trial court erred when it admitted A.K.’s statements

to sexual assault nurse examiner Fuss as statements for the purpose of medical diagnosis

or treatment under Indiana Evidence Rule 803(4). Evans only objected to the admission

of A.K.’s statement to Fuss that she was vaginally penetrated. He concedes that he failed

to object specifically to her statement that she was rectally penetrated, and, like before, to

the extent that he may have waived appellate review for failure to object, Evans argues

fundamental error.

       As we noted above, fundamental error is available only in cases of a “clearly

blatant violation of basic and elementary principles, where the harm or potential for harm



                                              9
cannot be denied.” Mathews v. State, 849 N.E.2d at 587. This exception is available only

in “egregious circumstances.” Delarosa v. State, 938 N.E.2d 690, 694-95 (Ind. 2010).

       We need not decide whether A.K.’s statements to Fuss were for the purposes of

medical diagnosis or treatment and subject to an exception under the hearsay rule because

the erroneous admission of inadmissible hearsay will not be cause for reversal if the

evidence is merely cumulative in nature of other evidence that has been properly

admitted. Weinberger v. Boyer, 956 N.E.2d 1095, 1106-07 (Ind. Ct. App. 2011). And

here, Fuss’s testimony is cumulative of A.K.’s unchallenged testimony and of M.K.’s

testimony deemed admissible above. More particularly, Fuss testified that, during the

examination at the hospital, A.K. stated that she was feeling pain in her pelvic area and

indicated that her vagina had been penetrated, that it was penetrated by a penis, and that

her rectum was penetrated by a penis. Tr. p. 102-05. A.K. testified in court that Evans

touched her in a way she did not like and put his penis inside her vagina. Id. at 278-79,

281-82, 284. M.K. testified that A.K. signaled “yes” when asked whether it was one of

her caretakers and whether that person was a man. Id. at 228. A.K. also indicated she

had been touched in her vagina and “butt” and gestured “yes” when asked whether the

person had put his penis into her vagina and “butt.” Id. at 231, 234-35. Thus, even

assuming that A.K.’s statements to Fuss are inadmissible hearsay, those statements were

merely cumulative of the other evidence that was properly admitted.

       In addition to the above, the State established that Evans was the only male to

enter A.K.’s room and close the door that day. Id. at 67-68. Fuss found injuries to both

                                              10
A.K.’s vagina and rectum that were consistent with blunt force trauma and sexual assault.

Id. at 106-07. Forensic testing revealed seminal material and sperm on A.K.’s external

genital swab, and the sperm cells in the external swab matched Evan’s DNA profile to a

reasonable degree of scientific certainty. Id. at 139, 172-74, 553-56.

       In light of this evidence, even if we were to conclude that A.K.’s statements to

Fuss were inadmissible hearsay, the remaining evidence of Evans’s guilt was

overwhelming and any error in admitting the statements that A.K. made to Fuss into

evidence at trial was harmless error.

                              II. Sufficiency of the Evidence

       Evans argues that there was insufficient evidence to support his convictions for

rape and criminal deviate conduct. Specifically, Evans contends that the State failed to

present evidence that the A.K. was compelled to submit to rape or criminal deviate

conduct by force or the threat of force.

       When reviewing the sufficiency of the evidence, we neither reweigh the evidence

nor judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct.

App. 2007). We consider only the evidence favorable to the verdict and the inference

therefrom. Id. Reversal is appropriate only when reasonable persons would not be able

to form inferences as to each material element of the offense. Id.

       To convict Evans of rape, the State was required to prove beyond a reasonable

doubt that Evans knowingly or intentionally had sexual intercourse with A.K. when A.K.

was compelled by force or imminent threat of force. Ind. Code § 35-42-4-1(a). To

                                            11
convict Evans of criminal deviate conduct, the State was required to prove beyond a

reasonable doubt that Evans knowingly or intentionally caused A.K. to perform or submit

to deviate sexual conduct when A.K. was compelled by force or imminent threat of force.

I.C. § 35-42-4-2(a). Deviate sexual conduct is defined in relevant part as an act involving

a sex organ of one person and the mouth or anus of another person. I.C. § 35-41-1-9(1).

       Evans’s sole challenge is that the State failed to present sufficient evidence to

prove that A.K. was compelled to submit to the sexual conduct by force or threat of force.

In fact, he argues that there is no evidence that force or threat of force was utilized as

“force or threat of force was not necessary to compel A.K. to submit to the conduct

because she physically had no choice but to submit.” Appellant’s Br. p. 13. Evans also

insinuates that the rape and criminal deviate conduct statutes afford A.K. no protection

because A.K., having the mental capacity to consent, must have verbally or physically

manifested signs of resistance. Appellant’s Br. p. 14-15.

       Contrary to Evans’s assertions, compulsion by force or the threat of force is

determined in light of the victim’s perspective. Filice v. State, 886 N.E.2d 24, 37 (Ind.

Ct. App. 2008). Thus, the issue is whether the victim perceived the aggressor’s force or

imminent threat of force as compelling her compliance. Id. The force need not be

physical or violent, and the forcible compulsion may be inferred from the circumstances.

Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008). Circumstances that render

resistance impossible or unreasonable render issues of resistance moot; in other words,



                                            12
that submission was compelled may be shown by evidence other than acts of resistance.

Woodson v. State, 483 N.E.2d 62, 64 (Ind. 1985).

       Here, A.K., because of her condition, was unable to physically or verbally resist.

At trial, she testified that the “boy who took care of [her],” tr. p. 279, touched her in a

way she did not like and put his penis into her vagina. Id. at 281. M.K. testified as to

A.K.’s excited utterances that she had been touched in the “butt” and vagina. Id. at 227-

31, 234-35. Fuss presented evidence of injuries to A.K.’s vagina and a rectal tear, both

consistent with sexual assault and blunt force trauma. Id. at 106-07. In short, Evans’s

argument that this State’s rape and criminal deviate conduct statutes offer no protection

to those with physical limitations such that they cannot resist are without merit and

unavailing. Therefore, we conclude that the evidence is sufficient to show forcible

compulsion in accordance Indiana Code sections 35-42-4-1(a) and 2(a) and support

Evans’s convictions for rape and criminal deviate conduct.

       The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.




                                            13
