MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Apr 01 2019, 5:55 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Emilee L. Stotts                                          Curtis T. Hill, Jr.
Huntington County Public Defender                         Attorney General of Indiana
Marion, Indiana
                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew A. Wintrode,                                      April 1, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1615
        v.                                                Appeal from the Huntington
                                                          Superior Court
State of Indiana,                                         The Honorable Jennifer E.
Appellee-Plaintiff.                                       Newton, Judge
                                                          The Honorable Jeffrey R.
                                                          Heffelfinger, Judge Pro Tempore
                                                          Trial Court Cause No.
                                                          35D01-1603-F3-35



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019                      Page 1 of 15
                                        Statement of the Case
[1]   Matthew A. Wintrode appeals his convictions for rape, as a Level 3 felony;

      battery, as a Level 5 felony; and battery, as a Class A misdemeanor, following a

      jury trial. Wintrode presents one issue for our review, namely, whether the trial

      court abused its discretion when it denied his motion for a mistrial based on the

      cumulative effect of alleged errors in the admission of evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   E.H. and Wintrode began dating in March 2015.1 Sometime at the end of April

      or the beginning of May, Wintrode and E.H. became engaged. Approximately

      two weeks later, E.H. moved into Wintrode’s parents’ home with Wintrode.

      At first, Wintrode and E.H.’s relationship was “good” and “[t]here wasn’t

      any . . . fighting.” Tr. Vol. II at 71. But shortly after E.H. moved in with

      Wintrode, the couple began fighting, and some of the fights “turn[ed] physical.”

      Id. at 72. On one occasion, Wintrode and E.H. were watching television in the

      living room with Wintrode’s parents when Wintrode “all of the sudden . . .

      reached over, grabbed the pet carrier and wacked [E.H.] in the face.” Id. The

      pet carrier hit E.H. on the hairline, which hurt “like a bee sting.” Id. And the




      1
        E.H. was an eighteen-year-old senior in high school, and Wintrode had graduated from high school the
      year prior.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019                 Page 2 of 15
      pet carrier left a “zipper mark” on E.H.’s face, which lasted for “[a] few days.”

      Id.


[4]   Thereafter, at the end of June or the beginning of July, E.H. and Wintrode

      moved out of Wintrode’s parents’ house, and they moved in with their family

      friends Nick and Mary Brown. While they were living with the Browns, E.H.

      discovered that she was pregnant. E.H. then informed Wintrode of her

      pregnancy.


[5]   Approximately one or two days after E.H. had discovered that she was

      pregnant, E.H. asked Wintrode if they could speak in his truck. Once E.H. and

      Wintrode were in his truck, E.H. accused Wintrode of cheating on her.

      Wintrode initially denied the allegations, but he ultimately admitted that he had

      cheated on E.H. E.H. then slapped Wintrode. Wintrode got angry and

      “smashed [E.H.’s] head into his truck window.” Id. at 78. As a result, E.H.

      had “blurred vision for a few hours” and “some really bad headaches for about

      a week.” Id. at 80. She also had some bruising on her left jaw and “underneath

      the hair.” Id. at 81.


[6]   In early September, the Browns asked E.H. and Wintrode to leave their home

      because of “[a]ll their arguing and fighting.” Id. at 84. E.H. and Wintrode

      moved into an apartment on Grayston Avenue. After they had moved out of

      the Browns’ home, there were “hardly any day[s]” that Wintrode and E.H. did

      not fight. Id. at 85.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 3 of 15
[7]   E.H.’s pregnancy was “awful,” and she vomited “multiple times a day.” Id. at

      88. One day, after E.H. had gotten sick, she went to bed and tried to sleep.

      E.H. was lying on her side when Wintrode went into the bedroom and said that

      “he wanted to [have] sex.” Id. at 87. E.H. did not want to have sex. Id. at 88.

      But Wintrode proceeded to take his clothes off. E.H. again told Wintrode no,

      but Wintrode told E.H. to “shut up and take it like a cowgirl.” Id. Wintrode

      then got into the bed, forced E.H. onto her back, and “started taking [E.H.’s]

      clothes off.” Id. at 91. E.H. “kept telling [Wintrode] no,” and she tried to kick

      and push him off of her. Id. But Wintrode did not stop and had sexual

      intercourse with E.H. As a result of the incident, E.H. had bruises on her legs

      that lasted for a “few months.” Id. at 95.


[8]   On September 16, E.H. ended the relationship “because [she] had had enough

      of it.” Id. at 98. E.H. then returned to her parents’ house. Over the next two

      weeks, E.H. told her parents “bits and pieces” of what had occurred with

      Wintrode. Id. at 103. E.H.’s father encouraged E.H. to report Wintrode’s

      actions to the police. On October 1, E.H. and her father went to the

      Huntington Police Department (“HPD”) and spoke with Officer Dale Osborn.

      E.H. told Officer Osborn that she “had been . . . battered and raped” by

      Wintrode. Id. at 183. The next day, she returned to the police department so

      that Officer Osborn could take photographs of the bruises on her legs.


[9]   Officer Osborn interviewed Wintrode on November 3. During the interview,

      Wintrode denied having ever hit E.H. or forcing E.H. to have sex with him.

      However, when Officer Osborn asked Wintrode about the events that had

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 4 of 15
       occurred in the truck, Wintrode stated that “he grabbed [E.H.’s] hands” and

       “then he heard her head hit the window[.]” Id. at 193.


[10]   Thereafter, HPD Detective Shane Blair conducted two interviews of Wintrode.

       During the first interview on February 3, 2016, Detective Blair asked Wintrode

       about the incident that had occurred at his parents’ house. Wintrode admitted

       to Detective Blair that “he did swing . . . that pet carrier bag at [E.H.] and hit

       her in the face with that.” Id. at 149. Detective Blair also asked Wintrode

       about the incident that had occurred in his truck while he and E.H. lived with

       the Browns. Wintrode told Detective Blair that, after E.H. had slapped him, he

       “managed to take her head into the window.” Id. at 151. During the interview,

       Wintrode denied E.H.’s allegations that he had forced her to have sex with him.


[11]   On March 24, the State charged Wintrode with one count of rape, as a Level 3

       felony; one count of battery, as a Level 5 felony; and one count of battery, as a

       Class A misdemeanor. Prior to trial, Wintrode filed a motion in limine, in

       which Wintrode sought to exclude any “opinion testimony regarding

       undiagnosed mental health conditions of the defendant, specifically bi-polar

       disorder and anger management issues.” Appellant’s App. Vol. III at 62. The

       trial court granted Wintrode’s motion.


[12]   At Wintrode’s ensuing jury trial, the State called Sarah Coburn, a board-

       certified sexual assault nurse examiner, as a witness. Over Wintrode’s

       objection, Coburn testified about the likelihood of recovering forensic evidence

       in sexual assault cases. Specifically, Coburn testified that it is “not likely at all”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 5 of 15
       to recover physical evidence from a victim of sexual assault if the victim reports

       the assault two weeks after it had occurred. Tr. Vol. III at 26. On cross-

       examination, Coburn testified that she had never met E.H. and that she could

       not speak to any specifics of this case.


[13]   The State also called Robin James as a witness. James is a licensed counselor

       and clinician at the Stop Child Abuse and Neglect program in Fort Wayne.

       Over Wintrode’s objection, James testified about the behaviors of victims of

       domestic abuse. Specifically, James testified that it is “[n]ot unusual at all” for

       a victim of domestic violence to continue to say that they love a person or to

       plan a future with someone after an act of violence had occurred. Id. at 67. On

       cross-examination, James testified that she did not know anything about the

       facts of this case and that she could not give an opinion as to whether E.H. had

       been a victim of domestic violence.


[14]   The State further presented as evidence the testimony of Detective Blair.

       Detective Blair testified, over Wintrode’s objection, that, during his second

       interview of Wintrode on February 8, 2016, Wintrode stated that he would

       “threaten[] suicide to get things that he wants.” Id. at 163. At the conclusion of

       the State’s evidence, Wintrode moved for a mistrial “based on numerous

       prejudice[es]” that had occurred. Id. at 193. Specifically, Wintrode asserted

       that he had been denied the right to a fair trial because of the “testimony of the

       domestic violence expert” and because of the “suicidal . . . threats [that] came

       out during [Detective] Blair’s testimony.” Id. at 196-97. The trial court denied

       Wintrode’s motion.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 6 of 15
[15]   The jury found Wintrode guilty of rape, as a Level 3 felony; battery, as a Level

       5 felony; and battery, as a Class A misdemeanor. The trial court entered

       judgment of conviction accordingly and sentenced Wintrode to an aggregate

       term of nineteen years, with fourteen years executed in the Department of

       Correction and five years suspended to probation. This appeal ensued.


                                      Discussion and Decision
[16]   Wintrode asserts that the trial court abused its discretion when it denied his

       motion for a mistrial. As we have explained:


               A mistrial is an extreme remedy granted only when no other
               method can rectify the situation. A trial court’s decision not to
               grant a mistrial is reviewed for an abuse of discretion. Moreover,
               a reviewing court accords great deference to the trial court’s
               ruling on a mistrial motion. In determining whether a mistrial
               was warranted, we consider whether the defendant was placed in
               a position of grave peril to which he should not have been
               subjected. The gravity of the peril is determined by the probable
               persuasive effect on the jury’s decision. When a motion for
               mistrial has been denied, the defendant has the burden to
               demonstrate both that he was placed in a position of grave peril
               to which he should not have been subjected and that no other
               remedy can cure the perilous situation in which he was placed.


       Brooks v. State, 934 N.E.2d 1234, 1243 (Ind. Ct. App. 2010) (citations and

       quotation marks omitted), trans. denied.


[17]   On appeal, Wintrode contends that the trial court abused its discretion when it

       denied his motion for a mistrial because it had committed several errors in the

       admission of evidence. As the Indiana Supreme Court has stated:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 7 of 15
               Generally, a trial court’s ruling on the admission of evidence is
               accorded “a great deal of deference” on appeal. Tynes v. State,
               650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
               able to weigh the evidence and assess witness credibility, we
               review its rulings on admissibility for abuse of discretion” and
               only reverse “if a ruling is ‘clearly against the logic and effect of
               the facts and circumstances and the error affects a party’s
               substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
               2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.2013)).


       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).


[18]   Wintrode specifically contends that the trial court abused its discretion when it

       admitted into evidence the following: (1) Detective Blair’s testimony regarding

       Wintrode’s use of suicidal threats; (2) Coburn’s testimony about the low

       likelihood of finding forensic evidence two weeks after an alleged sexual

       assault; and (3) James’ testimony that it is not unlikely for a victim of domestic

       violence to continue to plan a future with someone after an act of violence had

       occurred. And Wintrode contends that the cumulative effect of the erroneously

       admitted evidence “resulted in unfair prejudice” and violated his “due process

       rights to a fair trial.” Appellant’s Br. at 8. We address each contention in turn.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 8 of 15
                                           Detective Blair’s Testimony

[19]   Wintrode first contends that the trial court abused its discretion when it

       admitted as evidence Detective Blair’s2 testimony that, during the February 8,

       2016, interview, Wintrode mentioned that he would “threaten[] suicide to get

       things he wants.” Tr. Vol. III at 163. Wintrode contends that the trial court

       abused its discretion when it admitted that testimony because it “concerned

       undiagnosed mental health issues” of Wintrode, which testimony “was

       precluded by a previously granted Motion in Limine.”3 Appellee’s Br. at 10.


[20]   Wintrode is correct that, prior to trial, the court granted a motion in limine that

       precluded the State from introducing “opinion testimony regarding

       undiagnosed mental health conditions” of Wintrode. Appellant’s App. Vol. III

       at 62. But we cannot agree that Detective Blair’s testimony concerned any

       undiagnosed mental health issues. Wintrode’s statement to Detective Blair that

       he would threaten suicide to get what he wants is not evidence that Wintrode is

       actually suicidal or that he otherwise suffers from depression or any other

       mental health disorder. Instead, Wintrode’s statement to Detective Blair was

       simply an admission that Wintrode would manipulate E.H. in order to get what




       2
         In his brief on appeal, Wintrode states that Sergeant Matthew Collins with the Indiana State Police testified
       about Wintrode’s use of suicidal threats. However, it was Detective Blair, not Sergeant Collins, who
       provided that testimony. See Tr. Vol. III at 163.
       3
         Wintrode does not provide a citation to the motion in limine in the record. Rather, he simply states that the
       motion can be found at: “App. Appendix Vol. ___ p. ___.” Appellant’s Br. at 10. We remind counsel that
       each contention on appeal “must be supported by citations to authority, statutes, and the Appendix or parts of
       the record relied on, in accordance with Rule 22.” Ind. Appellate Rule 46(A)(8)(a) (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019                     Page 9 of 15
       he wanted. Because Wintrode’s statement to Detective Blair was not evidence

       of an undiagnosed mental health issue, Detective Blair’s testimony did not

       violate the motion in limine, and the trial court did not abuse its discretion when

       it admitted that testimony.


[21]   Still, Wintrode further contends that the trial court abused its discretion when it

       admitted Detective Blair’s testimony because the State had failed to provide

       adequate notice that it intended to introduce that evidence, which Wintrode

       contends was a violation of Indiana Evidence Rule 404(b). Indiana Evidence

       Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” But that evidence

       “may be admissible for another purpose, such as proving motive, opportunity,

       intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

       accident.” Ind. Evidence Rule 404(b)(2). Further, on request by a defendant in

       a criminal case, the prosecutor must “provide reasonable notice of the general

       nature of any such evidence that the prosecutor intends to offer at trial[.]”

       Evid. R. 404(b)(2)(A).


[22]   Wintrode specifically contends that, while the State provided notice of its intent

       to introduce evidence under Indiana Evidence Rule 404(b), the State’s notice

       “failed to include that [Detective Blair] would testify to any mental health

       related testimony, specifically, [Wintrode’s] use of suicidal threats. Appellant’s

       Br. at 11. In essence, Wintrode contends that the trial court abused its

       discretion when it admitted Detective Blair’s testimony as evidence because he

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 10 of 15
       had not received adequate notice regarding the contents of Detective Blair’s

       testimony, which lack of notice caused him “unfair surprise.” Id. We cannot

       agree.


[23]   The State filed its first list of witnesses and exhibits on March 31, 2017, almost

       one full year before the date of Wintrode’s trial. In that notice, the State named

       Detective Blair as a potential witness. Further, the State provided that it

       planned to introduce as evidence the “[i]nterview of suspect Matthew Wintrode

       recorded on February 8, 2016.” Appellant’s App. Vol. II at 123. Accordingly,

       Wintrode received notice almost one year prior to his trial that the State

       intended to introduce as evidence any statements that Wintrode had made to

       Detective Blair during the February 8, 2016, interview, which included

       Wintrode’s statements that he threatened suicide to get what he wants.

       Accordingly, we cannot say that Wintrode was unfairly surprised by Detective

       Blair’s testimony or that he did not receive notice of the State’s intention to

       introduce that evidence. As such, we cannot say that the trial court abused its

       discretion when it admitted Detective Blair’s testimony as evidence.


                                             Coburn’s Testimony

[24]   Wintrode next contends that the trial court abused its discretion when it

       admitted Coburn’s testimony that an examination of a victim of sexual assault

       would be unlikely to produce forensic evidence two weeks after the alleged




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 11 of 15
       sexual assault had occurred.4 Wintrode specifically asserts that Coburn’s

       testimony was inadmissible “because it moves from education to credibility

       vouching for [E.H.]” in violation of Indiana Evidence Rule 704. Appellant’s

       Br. at 13.


[25]   Indiana Evidence Rule 704(b) provides that “[w]itnesses may not testify to

       opinions concerning intent, guilt, or innocence in a criminal case; the truth or

       falsity of the allegations; whether a witness has testified truthfully; or legal

       conclusions.” On appeal, Wintrode contends that “the trial court caused unfair

       prejudice and inflammatory thoughts in the minds of the jurors” when it

       allowed Coburn to testify as an expert witness because her testimony vouched

       for E.H. “not having an exam done.” Appellant’s Br. at 13. In essence,

       Wintrode contends that, because Coburn’s testimony partially corroborated

       E.H.’s allegations, Coburn’s testimony improperly vouched for E.H.


[26]   “Indiana Evidence Rule 704(b) prohibits a witness from testifying about wither

       a witness has testified truthfully.” Halliburton v. State, 1 N.E.3d 670, 680-81 (Ind.

       2013) (emphasis in original, quotation marks removed). Here, while Coburn

       testified that it would be very unlikely for an examiner to find forensic evidence




       4
         The State asserts that Wintrode waived this issue because he did not specifically raise Coburn’s testimony
       as a basis for his motion for a mistrial to the trial court. While he did not specifically cite to Coburn’s
       testimony as a basis for his motion, Wintrode asserted that the mistrial was warranted due to several
       allegedly erroneous rulings on the admission of evidence during the trial. Because Wintrode’s argument on
       appeal is that the trial court abused its discretion when it denied his motion for a mistrial due to the
       cumulative effect of the court’s errors in the admission of evidence, and because Wintrode timely objected to
       Coburn’s testimony at trial, we will consider Wintrode’s argument that the trial court abused its discretion
       when it admitted her testimony as evidence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019                   Page 12 of 15
       if a victim does not report the assault until two weeks after it had occurred,

       Coburn did not testify about whether E.H. had testified truthfully. Neither did

       Coburn provide any opinion regarding Wintrode’s guilt or innocence or the

       truth or falsity of E.H.’s allegations against Wintrode. Indeed, at no point did

       Coburn provide any testimony that E.H. had been the victim of sexual assault

       or that Wintrode had sexually assaulted E.H. Rather, Coburn testified that she

       had never met E.H., that E.H. had never been seen at the treatment center

       where Coburn is employed, and that she did not have any specific knowledge

       about this case. Accordingly, Wintrode has not demonstrated that Coburn’s

       testimony vouched for E.H. or otherwise implicated Wintrode in the

       commission of any offense. We cannot say that the trial court abused its

       discretion when it admitted Coburn’s testimony.


                                               James’ Testimony

[27]   Finally, Wintrode asserts that the trial court abused its discretion when it

       admitted as evidence James’ testimony that it would not be unlikely for a victim

       of domestic abuse to continue to plan a future with a person after an act of

       violence had occurred. Wintrode contends that the trial court abused its

       discretion when it admitted that testimony because it potentially confused the

       jury and because the probative value of the testimony was substantially

       outweighed by unfair prejudice. In essence, Wintrode contends that the trial

       court should have excluded James’ testimony pursuant to Indiana Evidence

       Rule 403.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 13 of 15
[28]   Indiana Evidence Rule 403 provides that the court “may exclude evidence if its

       probative value is substantially outweighed by a danger of one or more of the

       following: unfair prejudice, confusing the issues, misleading the jury, undue

       delay, or needlessly presenting cumulative evidence.” On appeal, Wintrode

       specifically contends that, “[w]hile there is probative value in producing

       testimony” in a case that concerns domestic violence, he was unfairly

       prejudiced by James’ testimony because her testimony “could be potentially

       confusing to the jury.” Appellant’s Br. at 14.


[29]   But Wintrode does not make any argument on appeal as to why James’

       testimony was confusing to the jury, nor does he present any evidence that

       James’ testimony actually confused the jury. Rather, Wintrode simply

       contends, without more, that James’ testimony “could potentially be” confusing

       because James was not directly involved in the case. Appellant’s Br. at 14.

       Further, Wintrode has not shown that he was prejudiced by James’ testimony.

       Here, James testified that she was not involved with the case and that she did

       not know anything about the facts of the case. Indeed, James testified that she

       could not say whether E.H. had been the victim of domestic violence. And

       James did not provide any testimony to indicate that Wintrode had committed

       any acts of domestic violence. Accordingly, Wintrode has not demonstrated

       that the jury was confused by James’ testimony or that the probative value of

       James’ testimony was substantially outweighed by any prejudice. We therefore

       cannot say that the trial court abused its discretion when it admitted James’

       testimony as evidence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 14 of 15
                                                    Conclusion

[30]   In sum, the trial court did not abuse its discretion when it admitted the

       testimony of Detective Blair, Coburn, or James as evidence. Accordingly,

       Wintrode has not demonstrated that, due to the admission of that evidence, he

       was placed in a position of grave peril such that a mistrial was warranted based

       on either the alleged errors individually or cumulatively. Brooks, 934 N.E.2d at

       1243. The trial court therefore did not abuse its discretion when it denied

       Wintrode’s motion for a mistrial. We affirm the trial court.


[31]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1615 | April 1, 2019   Page 15 of 15
