 Pursuant to Ind.Appellate Rule 65(D),                            FILED
 this Memorandum Decision shall not be                          Sep 18 2012, 8:45 am
 regarded as precedent or cited before any
 court except for the purpose of                                       CLERK
                                                                     of the supreme court,
 establishing the defense of res judicata,                           court of appeals and
                                                                            tax court
 collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH                               GREGORY F. ZOELLER
Marion County Public Defender Agency                 Attorney General of Indiana
Indianapolis, Indiana
                                                     J.T. WHITEHEAD
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

ROBERT TAYLOR,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )        No. 49A02-1201-CR-50
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Jeffrey Marchal, Judge
                             Cause No. 49G06-1011-FB-86868


                                         September 18, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
         Robert Taylor appeals his conviction for Rape,1 a class B felony. He presents the

following restated issues for review:

         1.      Did the trial court abuse its discretion by allowing into evidence certain
                 DNA evidence?

         2.      Did the in-court identification of Taylor by the victim violate Taylor’s
                 due process rights?

         3.      Did the trial court abuse its discretion by allowing evidence of the
                 victim’s statements made to a forensic nurse examiner?

         We affirm.

         On June 27, 2009, S.S. was homeless and living in a shelter on 10th Street near

downtown Indianapolis. Late that Saturday morning, she was walking down 10th Street

toward Pennsylvania Avenue to a location where she could have a free lunch in a park.

While walking past a construction zone, a man pulled his car up by the curb and asked if she

needed a ride. S.S. declined. Shortly thereafter, the man grabbed her from behind and

dragged her up a hill where he threw her on the ground, pulled off her shorts and underwear,

and raped her. After ejaculating inside her, the man then went back down the hill and drove

away.

         Distraught and unable to call 911, S.S. dressed and then walked to the park for lunch.

Several hours later, S.S. encountered a good friend and told her about the rape. The friend

helped her call police. S.S. described her attacker as a black male in his twenties or thirties,

about five feet and ten inches tall, with short hair and a thin build. Detective David Everman




1
    Ind. Code Ann. § 35-42-4-1 (West, Westlaw current with all 2012 legislation).

                                                    2
took S.S. to Methodist Hospital to be examined by a sexual assault nurse examiner (SANE).

SANE Robin Brannan collected swabs from S.S., as well as the underwear S.S. wore after

the attack. A panty liner was attached to the underwear. Brannan apparently did not notice

the panty liner, as it was not separated from the underwear or documented. The underwear

with the panty liner were bagged together, sealed, and included in the rape kit. Thereafter,

the rape kit, which was stored in a locked refrigerator, was collected by the Marion County

Crime Lab and securely stored at the lab.

       Shannin Guy, a forensic scientist with the Marion County Forensic Services Agency,

conducted serology and DNA analysis on the material collected in the rape kit. Guy

identified the presence of seminal material on the vaginal cervical swab, the speculum swab,

the vaginal wash, and the panty liner. She then performed DNA analysis on a portion of the

seminal material collected from each of these four items. Analysis revealed that the male

DNA profiles from each item matched, identifying the same unknown male individual. Guy

submitted the profile from the seminal material found on the panty liner to CODIS,2 which

resulted in a match to Taylor in August 2010. After obtaining a buccal swab from Taylor,

Guy performed further DNA analysis, directly matching his DNA to the seminal material

found on the vaginal cervical swab, the speculum swab, the vaginal wash, and the panty liner.

       Detective Everman met with S.S. on October 15, 2010 and presented her with a photo

array. S.S. was unable to identify her attacker. The detective then directed her to Taylor’s

picture and indicated that there had been a DNA match.




                                             3
        On November 18, 2010, the State charged Taylor with class B felony rape and class D

felony criminal confinement. Taylor unsuccessfully sought to suppress the DNA results.

Following a bench trial on December 7, 2011, Taylor was found guilty as charged. A

judgment of conviction, however, was entered only on the rape charge, and the trial court

imposed an executed sentence of seventeen years. Taylor now appeals, asserting a number of

errors in the admission of evidence at trial.

        The decision to admit or exclude evidence lies within the trial court’s sound

discretion. Filice v. State, 886 N.E.2d 24 (Ind. Ct. App. 2008), trans. denied. An abuse of

discretion occurs when the trial court’s decision is against the logic and effect of the facts and

circumstances before it. Dixon v. State, 967 N.E.2d 1090 (Ind. Ct. App. 2012). We will not

reverse absent a showing of manifest abuse of discretion resulting in the denial of a fair trial.

Johnson v. State, 831 N.E.2d 163 (Ind. Ct. App. 2005), trans. denied. “Even when a

decision on the admissibility of evidence is an abuse of discretion, we will not reverse a

judgment where that error is harmless, that is, where the error did not affect the substantial

rights of a party.” Dixon v. State, 967 N.E.2d at 1092.


                                                     1.

        Taylor initially challenges the admission of the DNA evidence obtained from the

panty liner. He claims the State failed to establish a sufficient chain of custody for the panty

liner because collection of the item was not noted at the hospital by SANE Brannan.


2
   CODIS stands for Combined DNA Index System and is a national database of DNA profiles. Guy
explained that she only submitted the profile obtained from the panty liner because the other profiles matched
“so there was no need to put all the profiles in.” Transcript at 207.

                                                      4
              It is well established in Indiana that an exhibit is admissible if the
       evidence regarding its chain of custody strongly suggests the exact
       whereabouts of the evidence at all times. That is, in substantiating a chain of
       custody, the State must give reasonable assurances that the property passed
       through various hands in an undisturbed condition. We have also held that the
       State need not establish a perfect chain of custody whereby any gaps go to the
       weight of the evidence and not to admissibility.

Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000) (citations omitted). Further, “[t]o mount

a successful challenge to the chain of custody, one must present evidence that does more than

raise a mere possibility that the evidence may have been tampered with.” Troxell v. State,

778 N.E.2d 811, 814 (Ind. 2002).

       In the instant case, S.S. testified that she was wearing a panty liner with her underwear

after the attack and that her underwear was provided to SANE Brannan to be included in the

rape kit. Further, S.S. identified at trial the underwear and attached panty liner contained in

State’s Exhibit 7 as the ones she wore to the sexual assault exam.

       Although Brannan was apparently not aware of the attached panty liner, the evidence

indicates that S.S.’s underwear was placed in an evidence bag that was then properly sealed

and initialed. On the outside of the evidence bag, Brannan noted that it contained the

victim’s underwear worn after the attack.

       Taylor does not challenge the chain of custody of the rape kit after Brannan placed it

in the locked refrigerator at the hospital. The forensic evidence technician who picked up the

rape kit from the hospital testified that the kit was properly sealed, as were all items of

evidence inside. The evidence bag containing the victim’s underwear was first opened by

Guy, the DNA analyst. She testified that the evidence bag was sealed with no evidence of

tampering when she received it for testing. Upon opening the evidence bag in question, Guy

                                               5
determined that there was a panty liner inside the underwear. As set forth above, testing of

the panty liner ultimately led to the DNA identification of Taylor.

         We conclude that Brannan’s failure to make a notation of the panty liner or to remove

and separately bag it, though contrary to standard protocol, is not fatal to the chain of

custody.3 The evidence strongly suggests the exact whereabouts of the panty liner at all

times – attached to the underwear inside the marked and sealed evidence bag. Thus, the trial

court did not abuse its discretion by admitting the DNA evidence obtained from the panty

liner.

         Moreover, even if the DNA evidence related to the panty liner should have been

excluded, there was other DNA evidence linking Taylor to the rape. Guy explained that the

male profiles obtained from the vaginal cervical swab, the speculum swab, and the vaginal

wash were the same as the male profile from the panty liner. Thus, contrary to Taylor’s

assertions on appeal, it is clear that the DNA profile obtained from any one of these samples

would have produced the same match through CODIS. Further, after obtaining the buccal

swab from Taylor, Guy compared his DNA to each of the sperm fractions from the vaginal

cervical swab, the speculum swab, and the vaginal wash. All resulted in a match. To the

extent one of the four DNA matches was improperly admitted, which it was not, the other

three conclusively established his identity. Accordingly, any error in the admission of the

evidence obtained from the panty liner would have been harmless.


3
    Taylor correctly observes that the State “bears a higher burden to establish the chain of custody of
‘fungible’ evidence, such as blood and hair samples, whose appearance is indistinguishable to the naked eye.”
 Troxell v. State, 778 N.E.2d at 814. A panty liner is not the type of fungible evidence addressed in Troxell.
See also Baker v. State, 449 N.E.2d 1085, 1088 (Ind. 1983) (hospital report showing the presence of sperm in

                                                      6
a sample taken from the victim found inadmissible where there was “a total absence of proof of the chain of
custody”).

                                                    7
                                                      2.

        Taylor contends that S.S. was improperly allowed to identify him in court.4 He claims

her in-court identification was tainted a year before trial by the fact that Detective Everman

directed her to Taylor’s picture as the man with the DNA match immediately after she was

unable to identify him in the photo lineup.

        Regardless of whether the trial court abused its discretion by allowing the in-court

identification, we find that any error was harmless. At the conclusion of the bench trial, the

court acknowledged that the in-court identification made two and one-half years after the

attack was shaky at best. The trial court observed:

        Now this wasn’t the greatest testimony I’ve heard with respect to ID…. If this
        case rested only on ID testimony of [S.S.] then this is a much weaker case for
        the State. But it is more than that. This is a DNA case. And the DNA
        confirms conclusively and without hesitation that Robert Taylor is the source
        of the DNA evidence in this case.

Transcript at 270-71. We agree with the trial court. Taylor was conclusively identified by

the DNA he left inside S.S.

                                                      3.

        Taylor argues that the SANE was improperly allowed to testify regarding what S.S.

told her during the rape kit examination. Specifically, he complains, “the nurse testified that

S.S. said she had been sexually assaulted by an unknown African American male, that her




4
   Taylor also asserts that S.S.’s pre-trial identification of him was unduly suggestive. The record reveals,
however, that S.S. was unable to identify him prior to trial. To be sure, when objecting to the in-court
identification of his client, defense counsel indicated, “[s]he could not make an out-of-court identification”.
Transcript at 93. Further, Detective Everman testified that S.S. was unable to identify Taylor in the photo
array.

                                                      8
lower back hurt, that she was thrown in the grass, and that the man put his penis in her

vagina.” Appellant’s Amended Brief at 9-10. Taylor contends that these statements should

not have been admitted as exceptions to the hearsay rule under Ind. Evidence Rule 803(4)

because they did not constitute statements made for the purpose of medical diagnosis or

treatment.

       Once again, we need not reach the merits of Taylor’s claim because, as argued by the

State, any error in this regard is harmless, and Taylor does not argue otherwise. The

challenged statements reported by the SANE were cumulative of other evidence, particularly

S.S.’s and Detective Everman’s testimony, regarding the details of the sexual assault. See

Carter v. State, 683 N.E.2d 631, 632 (Ind. Ct. App. 1997) (“[a]n error in the admission of

evidence is not prejudicial if the evidence is merely cumulative of other evidence in the

record”), trans. denied. Evidence independent of the challenged statements established that

S.S. had been raped by an unknown African American man.              The DNA evidence

subsequently linked Taylor directly to the rape.

       Judgment affirmed.

BROWN, J., and PYLE, J., concur.




                                             9
