MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Jul 30 2015, 10:42 am
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
John Quirk                                                Gregory F. Zoeller
Muncie, Indiana                                           Attorney General of Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ashley L. Stapert,                                        July 30, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A02-1411-CR-787
        v.                                                Appeal from the Delaware Circuit
                                                          Court
State of Indiana,                                         The Honorable Kimberly S.
                                                          Dowling, Judge
Appellee-Plaintiff.
                                                          Cause No. 18C02-1112-FA-11




Pyle, Judge.


                                   Statement of the Case
Ashley L. Stapert (“Stapert”) appeals, following a jury trial, her convictions for

two counts of Class A felony child molesting, which were based on two acts of


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deviate sexual conduct against a six-month-old infant.1 On appeal, Stapert

challenges the trial court’s ruling on the admission of evidence and argues that

her two convictions violate the Indiana Constitutional prohibition against

double jeopardy. Finding no merit to Stapert’s arguments, we affirm her

convictions.


We affirm.


                                                 Issues
        1. Whether the trial court abused its discretion by admitting the
        victim’s medical records into evidence and by allowing a sexual
        assault nurse examiner to testify regarding the medical records and
        the examination protocol.

        2. Whether Stapert’s two Class A felony child molesting
        convictions violate the Indiana Constitutional prohibition against
        double jeopardy.

                                                 Facts
In August or September 2011, twenty-one-year-old Stapert went to live with her

childhood friend, Nikki Chambers (“Chambers”), and Chambers’s infant

daughter, J.F., who was born in May 2011. Chambers and J.F. lived in a one-

bedroom apartment, and Stapert slept in the living room. Stapert moved out for

a short time and, in early October 2011, moved back to Chambers’s apartment.




1
  IND. CODE § 35-42-4-3(a)(1). We note that, effective July 1, 2014, a new version of the child molesting
statute was enacted and that Class A felony child molesting is now a Level 1 felony. Because Stapert
committed her offenses in November 2011, we will apply the statute in effect at that time. Additionally, we
note that the legislature amended this statute during the most recent legislative session and that this
amendment will be effective on July 1, 2015.

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At that time, Stapert’s boyfriend, Bryan Strickler (“Strickler”), moved into the

apartment too. When Chambers went to work or to the grocery store, she

frequently left J.F. with Stapert and Strickler. Chambers also let J.F. sleep in

her pack-n-play in the living room where Stapert and Strickler slept.


On November 8, 2011, Stapert told Chambers that Strickler had tried to

smother six-month-old J.F. Chambers also found out about allegations that

Stapert and Strickler had sexually molested J.F. Chambers called the police

and kicked Stapert and Strickler out of her apartment. Chambers also had

J.F.’s father, who was having visitation with the baby, take J.F. to the hospital

to be examined. Dr. Antoinette Laskey (“Dr. Laskey”) from Riley Hospital

examined J.F. on November 9, 2011. This examination revealed that J.F. had

warts and fissures near her anus. Dr. Laskey performed a follow-up

examination of J.F. on December 21, 2011, and she noted that the anal warts

had resolved at that time.


On November 30, 2011, police officers from the Muncie Police Department

took turns questioning Stapert and videotaped the interview. At the beginning

of the police interview, Stapert claimed that she did not molest J.F. and stated

that it was Strickler who had done it. Stapert stated that Strickler had genital

warts on his penis and mouth and that he was the one who would have given

the warts to J.F. She also stated that Stickler had rubbed his penis on J.F.’s

anus one night while she and Strickler were in Chambers’s living room with

J.F. Later in the interview, Stapert stated that she was afraid of getting in

trouble and then admitted that she had put her finger in J.F.’s vagina while

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Strickler rubbed his penis on J.F.’s anus. Stapert also admitted that she had put

her mouth on J.F.’s vagina. Following the interview, the police arrested

Stapert.


The State then charged Stapert with two counts of Class A felony child

molesting, both of which were based on her engaging in deviate sexual conduct

with J.F. Specifically, Count One was based on Stapert’s act of “placing her

mouth on the sex organ of [J.F.,]” and Count Two was based on her act of

“penetrating [J.F.]’s sex organ by an object.” (App. 18, 63).


The trial court held a two-day jury trial on October 6-7, 2014. During the trial,

Chambers testified that J.F. had been sexually assaulted and that she had been

diagnosed with genital warts. The State also admitted into evidence the DVDs

of Stapert’s statement to police, in which she admitted that she had put her

mouth on J.F.’s vagina and had put her finger in J.F.’s vagina.2


During the trial, the State also called a sexual assault nurse examiner (“SANE

nurse”), Holly Renz (“Nurse Renz”), to testify about the medical records from

J.F.’s sexual assault examination.3 Nurse Renz testified that she had been a

nurse for thirty-eight years, had been employed by the Madison County Sexual

Assault Treatment Center for sixteen years, and was a board-certified SANE




2
 Because the officers took turns interviewing Stapert, her statement to police is contained on two DVDs. See
State’s Exs. 4 and 5.
3
    Dr. Laskey was apparently unable to testify because she had moved to Salt Lake City.

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nurse. She also testified that she had not conducted the examinations of J.F.

but had reviewed the medical records from those examinations.


After Nurse Renz testified about the general procedures and protocols involved

in conducting a sexual assault examination on a child, the State asked her to

identify State’s Exhibit 2, the medical records from J.F.’s November 9 and

December 21, 2011 examinations. Stapert objected to the admission of State’s

Exhibit 2 based on “hearsay[,]” an “improper foundation” for verification that

the medical records were a “complete record[,]” and lack of “qualifi[cation] as

an expert witness.” (Tr. 302, 303, 304). The trial court overruled the objection

and admitted State’s Exhibit 2 into evidence.


The State then asked Nurse Renz if, based on her review of J.F.’s medical

records, she believed that the appropriate procedure or protocol for doing a

sexual assault exam was carried out by the hospital when examining J.F.

Stapert objected, arguing that it called for “speculation[,]” improper

foundation[,]” and “hearsay.” (Tr. 305, 307, 309). The State responded that it

sought to have Nurse Renz testify, “given her training and experience and

education,” about the medical records that had already been admitted into

evidence so she could give an opinion—as either an expert or a skilled

witness—on those medical records and provide the jury with “some

information about a subject that they likely d[id] not have.” (Tr. 307, 308).

The trial court overruled Stapert’s objections and allowed Nurse Renz to

answer the State’s question. Nurse Renz then testified that, based on her



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review of the medical records, she believed the proper procedure had been

followed.


When the State asked Nurse Renz if the medical records showed that J.F.

“present[ed] . . . with any medical issues or any injuries[,]” Stapert objected

based on “improper foundation and speculation” and because Nurse Renz had

“no knowledge” of the protocol of Riley Hospital. (Tr. 307). The trial court

overruled the objection. Nurse Renz then testified that the medical records

showed that J.F. had gone to Riley Hospital and had been diagnosed with

genital warts. She also testified that the records revealed that J.F. had redness

around her anus and had an anal fissure, or skin tear, near her sphincter.


At the end of the State’s direct examination of Nurse Renz, the prosecutor

asked the nurse for her opinion of whether the medical records and J.F.’s

injuries, including the presence of genital warts, were consistent with being

sexually abused. Nurse Renz responded that she “kn[e]w what the impression

was with Doctor Laskey[,]” and Stapert objected based on “speculation.” (Tr.

316). The trial court overruled the objection, and Nurse Renz testified that she

agreed with Dr. Laskey’s “impression” that “it was consistent with a history of

sexual abuse.” (Tr. 316).


During closing arguments, the prosecutor argued that the jury should find

Stapert guilty of the two charges because she “admit[ted] that she put her

fingers inside of [J.F.’s] vagina” and “admit[ted] that she performed oral sex on

[J.F.].” (Tr. 369). During Stapert’s closing argument, her counsel argued that


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the jury should find Stapert not guilty on Count Two because she had stated in

the video interview that she had “touched” J.F.’s vagina with her finger but did

not “penetrate” it. (Tr. 380). On rebuttal argument, the prosecutor argued that

there was evidence to support Count Two. Specifically, the prosecutor told the

jury to watch the video again and pay attention to where Stapert admitted the

following: “I put my finger. I didn’t eat her out. I put my finger in her

vagina.” (Tr. 385, 386).


When instructing the jury, the trial court explained to the jury the elements of

each of the two counts of child molesting alleged against Stapert. Specifically,

the trial court instructed that Count One was based on an allegation that Stapert

had placed her mouth on J.F.’s sex organ and that Count Two was based on an

allegation that Stapert had penetrated J.F.’s sex organ with an object. The trial

court also instructed the jury that “[t]he definition of the term ‘object’

include[d] the use of one’s fingers.” (Tr. 393).


During deliberations, the jury requested to see the DVDs of Stapert’s police

interview and specifically requested to see only the part where Stapert admitted

to inserting her finger into J.F.’s vagina. The trial court played the requested

DVD in its entirety.4 Before leaving the courtroom, a juror submitted a written

question, asking “Could a person[’]s tongue be considered an ‘object’ of

penetration?” (App. 128). The trial court instructed the jury that it should refer

back to the instructions.


4
    The trial court played State’s Exhibit 5.

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The jury found Stapert guilty of both counts as charged. The trial court

imposed a fifty (50) year sentence on each conviction and ordered that those

sentences be served consecutively at the Department of Correction. Stapert

now appeals her convictions.


                                            Decision
On appeal, Stapert argues that: (1) the trial court abused its discretion by

admitting the medical records from J.F.’s sexual assault examination into

evidence and by allowing Nurse Renz to testify about those medical records

and the sexual assault examination protocol; and (2) her two Class A felony

convictions violate the Indiana Constitutional prohibition against double

jeopardy.


1. Admission of Evidence

Before we address Stapert’s argument regarding the admission of evidence and

testimony, we note that the admission and exclusion of evidence falls within the

sound discretion of the trial court, and we review the admission of evidence

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 decision is clearly

against the logic and effect of the facts and circumstances before it. Conley v.

State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g denied.


Turning to Stapert’s argument that the trial court abused its discretion by

admitting State’s Exhibit 2, J.F.’s medical records, into evidence, we note that

Stapert objected to the admission of this exhibit based on “hearsay” and an

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“improper foundation” for verification that the medical records were a

“complete record.” (Tr. 302, 303). On appeal, however, she merely makes a

general statement that the “trial court erred in admitting State’s Exhibit 2[.]”

(Stapert’s Br. 7). She does not argue that the admission of this evidence

violated an evidentiary rule nor does she offer any argument or citation to case

law as to why it should have been excluded. Because Stapert makes no cogent

argument, she has waived review of this issue. See Ind. App. R. 46(A)(8);

Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant

had waived an issue on appeal because the argument, presented merely as a

two-sentence assertion, was not supported by cogent argument or citation to

authority).


In regard to Stapert’s argument that the trial court abused its discretion by

allowing Nurse Renz to testify, she argues on appeal that the trial court erred by

admitting the nurse’s testimony “regarding medical treatment to which [she]

had no personal knowledge.” (Stapert’s Br. 7). Specifically, she argues that

Nurse Renz’s testimony about J.F.’s medical records, the propriety of Riley

Hospital’s protocol for conducting a sexual assault examination, and her

opinion regarding whether J.F. was sexually abused should have been excluded

because she was a “lay witness” and because her testimony was “in violation of

Indiana Rules of Evidence 602 and 701.” (Stapert’s Br. 9).


Here, however, the State did not argue that Nurse Renz was going to testify as a

lay witness under Evidence Rule 701; nor did it argue that she had personal

knowledge under Rule 602. Instead, the State argued that Nurse Renz should

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be allowed to testify, “given her training and experience and education,” about

the medical records that had already been admitted into evidence so she could

give an opinion—as either an expert or a skilled witness—on those medical

records and provide the jury with “some information about a subject that they

likely d[id] not have.” (Tr. 307, 308).


In other words, the State sought to introduce her testimony, and the trial court

allowed it, under Evidence Rule 702(a), which provides that:


        [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.


Under this rule, “a witness may be qualified as an expert by virtue of

‘knowledge, skill, experience, training, or education[,]’ . . . [a]nd only one

characteristic is necessary to qualify as an expert.” Kubsch v. State, 784 N.E.2d

905, 921 (Ind. 2003) (quoting Evid. R. 702). “As such, a witness may qualify as

an expert on the basis of practical experience alone.” Id. Additionally, “[a]n

expert may base an opinion on facts or data in the case that the expert has been

made aware of” and may, under certain circumstances, “testify to opinions

based on inadmissible evidence[.]” Evid. R. 703.


The record before us shows that there was a sufficient basis for Nurse Renz to

testify as an expert witness under Evidence Rule 702(a). She testified as to her

education, training, certification, and extensive experience as a SANE nurse,

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including the facts that she had been a SANE nurse for seventeen years and had

performed 798 sexual assault examinations. Even though Nurse Renz had not

examined J.F., the nurse had specialized knowledge that was beyond the

knowledge generally held by lay persons and that was helpful to the jury.

Given Nurse Renz’s history of experience, training, and education as a SANE

nurse, we cannot say that the trial court abused its discretion in allowing the

nurse’s testimony.5 See, e.g., Lyons v. State, 976 N.E.2d 137, 142 (Ind. Ct. App.

2012) (explaining that if an expert has specialized knowledge meeting the

requirements of Evidence Rule 702(a), “any weaknesses or problems in the

testimony go only to the weight of the testimony, not its admissibility”); Otte v.

State, 967 N.E.2d 540, 547 (Ind. Ct. App. 2012) (affirming the trial court’s

admission of a witness’s testimony under Rule 702(a) even though the witness

had made no personal observation of the victim), trans. denied; Newbill v. State,

884 N.E.2d 383, 398 (Ind. Ct. App. 2008) (affirming the trial court’s decision,

under Evidence Rule 702(a), to allow a SANE nurse to testify regarding a

sexual abuse examination due to her specialized knowledge), trans. denied.


2. Double Jeopardy

Turning to Stapert’s argument that her two Class A felony child molesting

convictions violated the prohibition against double jeopardy under the Indiana


5
  Furthermore, any error in the admission of the challenged testimony would have been harmless as it was,
for the most part, merely cumulative of State’s Exhibit 2. See Crawford v. State, 770 N.E.2d 775, 781 (Ind.
2002) (explaining that the erroneous admission of evidence that is merely cumulative of other admissible
evidence is harmless error and is not grounds for reversal). Moreover, Nurse Renz’s testimony did not
address the elements of the crime, and Stapert admitted to the two acts of molestation.



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Constitution, we note that the Indiana Double Jeopardy Clause provides, in

relevant part, that “No person shall be put in jeopardy twice for the same

offense.” IND. CONST. art. I, § 14. “Indiana’s Double Jeopardy Clause was

intended to prevent the State from being able to proceed against a person twice

for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49

(Ind. 1999). Consequently, two or more offenses are the “same offense” and

violate the state double jeopardy clause if, “with respect to either the statutory

elements of the challenged crimes or the actual evidence used to convict, the

essential elements of one challenged offense also establish the essential elements

of another challenged offense.” Id.


Stapert contends that the Double Jeopardy Clause was violated under the actual

evidence test. The Double Jeopardy Clause is violated under the actual

evidence test if there is “a reasonable possibility that the evidentiary facts used

by the fact-finder to establish the essential elements of one offense may also

have been used to establish the essential elements of a second challenged

offense.” Id. at 53. Our supreme court explained that “under the Richardson

actual evidence test, the Indiana Double Jeopardy Clause is not violated when

the evidentiary facts establishing the essential elements of one offense also

establish only one or even several, but not all, of the essential elements of a

second offense.” Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002) (quoting

Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). In applying the actual

evidence test, this Court must identify the essential elements of each offense and

evaluate the evidence from the trier of fact’s perspective. Spivey, 761 N.E.2d at


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832. “In determining the facts used by the fact-finder, it is appropriate to

consider the charging information, jury instructions, and arguments of

counsel.” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008) (citing Spivey, 761

N.E.2d at 832 and Richardson, 717 N.E.2d at 54 n.48).


Stapert asserts that the essential elements of both counts were “almost

identical” but acknowledges that the essential elements differ because the

specific act of deviate sexual conduct alleged in each differs. (Stapert’s Br. 11).

Her double jeopardy argument is based solely on the existence of a submitted

juror question, which asked if a person’s tongue could be considered an

“object” of penetration. (App. 128). Stapert contends that this question shows

that there is a reasonable possibility that the jury used the same evidentiary facts

to establish the essential elements of both offenses.


The State, however, contends that there is no such reasonable possibility

because: (1) Stapert admitted to the two separate acts of inserting her finger

into J.F.’s vagina and placing her mouth on J.F.’s vagina; (2) the trial court

instructed the jury as to the elements of each offense; and (3) the State argued in

closing arguments about Stapert’s two separate offenses against J.F. We agree

with the State.


“[A] ‘reasonable possibility’ that the jury used the same facts to reach two

convictions requires substantially more than a logical possibility.” Lee, 892

N.E.2d at 1236. “Rather, ‘reasonable possibility’ turns on a practical

assessment of whether the jury may have latched on to exactly the same facts


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for both convictions.” Id. See also Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999)

(“To establish that two offenses are the same offense under the actual evidence

test, the possibility must be reasonable, not speculative or remote.”), cert. denied.


Here, the State charged Stapert, in Count One, with Class A felony child

molesting, which required the State to show beyond a reasonable doubt that

Stapert performed deviate sexual conduct by placing her mouth on six-month-

old J.F.’s sex organ. Under the Class A felony child molesting charge in Count

Two, the State was required to prove beyond a reasonable doubt that Stapert

performed deviate sexual conduct by penetrating J.F.’s sex organ with an

object. The trial court repeated these charges in its jury instructions and also

instructed the jury that a finger was included in the definition of an object.

Additionally, the evidence presented by the State showed that there were

distinct facts supporting the two child molesting charges. Specifically, Stapert

admitted to putting her mouth on J.F.’s vagina and to putting her finger in her

vagina. Finally, the State, in its closing argument, discussed the evidence

supporting the two acts of child molesting.


Considering the charging information, the evidence presented at trial, the trial

court’s instructions regarding the two offenses, and the State’s closing

argument, we conclude that there was no reasonable possibility that the jury

used the same evidentiary facts to establish the essential elements of both

offenses. Therefore, there was no violation of the Indiana Double Jeopardy

Clause.



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Affirmed.


Crone, J., and Brown, J., concur.




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