                                                               FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Mar 08 2012, 8:51 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the                              CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court
case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DONALD C. SWANSON, JR.,                          GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


RICHARD J. CHARLTON,                             )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A03-1108-CR-397
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D04-1008-FB-135


                                       March 8, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Richard Charlton appeals his conviction for Class B felony rape. We affirm.

                                           Issues

       Charlton raises two issues, which we restate as:

              I.      whether the trial court abused its discretion by limiting
                      evidence of the sexual history between Charlton and
                      the victim; and

              II.     whether the evidence is sufficient to sustain his
                      conviction.

                                            Facts

       Charlton and R.F. had been involved in a sexual relationship that produced a child.

On March 21, 2010, Charlton asked R.F. to bring their daughter to his house in Fort

Wayne. R.F. took their one-year-old daughter and her other infant to Charlton’s home.

When she arrived Charlton was playing video games with his cousin, Cedric. Charlton

went into his bedroom and asked R.F. to come with him. Charlton shut and locked the

bedroom door, leaving their one-year old child outside the door. Charlton then pushed

R.F. face down on the bed and held her down by the back of her neck. Charlton

unfastened R.F.’s pants and ignored her requests for him to stop. Charlton then had

sexual intercourse with R.F. Charlton said, “just let me feel it for a little bit longer.” Tr.

p. 49. R.F. was having her menstrual period and was wearing a tampon. Charlton did not

remove the tampon, and the tampon was “jammed up inside” of R.F. as a result of the

sexual intercourse. Id. at 50. When Charlton was finished, R.F. readjusted her clothing,

collected her children, and left.


                                              2
       R.F. called a friend and her mother and went to the police station. Her mother

noticed that R.F. was crying, upset, and could barely walk. R.F. was sent to the Sexual

Assault Treatment Center, where she was examined by Sharon Robison, a sexual assault

nurse. Robison noticed that R.F. was crying and in pain. R.F. had several genital tears,

including on her inner labia minora and posterior fourchette. Robison also had to use

forceps to remove the tampon, which was “embedded underneath the cervical ausc.” Id.

at 124. Robinson collected evidence with a sexual assault evidence collection kit, which

revealed the presence of seminal material.       DNA analysis of the seminal material

matched Charlton’s DNA profile.

       The State charged Charlton with Class B felony rape. The State filed a motion in

limine regarding past sexual conduct between Charlton and K.F. pursuant to Indiana

Evidence Rule 412. Charlton did not object, and the trial court granted the State’s

motion. At the jury trial, Charlton questioned K.F. regarding whether sex was a “big

part” of her relationship with Charlton, and she responded that it was. Id. at 59. The trial

court then sustained the State’s objections to Charlton asking K.F. whether they had sex

in various places and whether his sexual approaches to her in the past had been different

than the occasion at issue. The trial court refused to allow juror questions regarding

whether Charlton and K.F. had sexual intercourse following the alleged rape because it

concluded the questions would have violated the motion in limine.

       Charlton testified in his defense regarding their prior sexual relationship. He

testified that the sexual intercourse on March 21, 2010, was consensual and that R.F. was

not in pain during or after the sexual intercourse. According to Charlton, the March 21,

                                             3
2010 sexual intercourse was not unusual in terms of their sexual relationship. Charlton

also testified that he had talked to and seen R.F. after the March 21, 2010 incident and

that he was not “intimate” with R.F. at any of those visits. Id. at 196. During his closing,

Charlton argued that the sexual intercourse was consensual.

       The jury found Charlton guilty as charged, and the trial court sentenced him to ten

years in the Department of Correction. Charlton now appeals.

                                         Analysis

                                I. Admission of Evidence

       Charlton argues that the trial court abused its discretion by excluding evidence of

the parties’ sexual history.   We review a trial court’s decision to admit or exclude

evidence for an abuse of discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind.

1997), cert. denied. An abuse of discretion occurs if a trial court’s decision is clearly

against the logic and effect of the facts and circumstances before the court. Joyner v.

State, 678 N.E.2d 386, 390 (Ind. 1997). However, if a trial court abuses its discretion by

excluding evidence, we will reverse only if that error affects “the substantial rights of the

parties.” Ind. Trial Rule 61. “Where the wrongfully excluded testimony is merely

cumulative of other evidence presented, its exclusion is harmless error.” Sylvester v.

State, 698 N.E.2d 1126, 1130 (Ind. 1998).

       During cross examination, the trial court sustained the State’s objections to

Charlton asking K.F. whether they had sex in various places and whether his sexual

approaches to her in the past had been different. The trial court also refused to allow



                                             4
juror questions regarding whether Charlton and K.F. had sexual intercourse following the

alleged rape because it concluded the questions would have violated the motion in limine.

          Charlton argues that the trial court abused its discretion by excluding this

evidence. The State argues that Charlton waived any error by failing to object to the

motion in limine, by failing to file a notice pursuant to Indiana Evidence Rule 412(b), and

by failing to make an offer of proof. We need not address Charlton or the State’s

arguments because we conclude that any alleged error is harmless.

          During cross examination, Charlton questioned K.F. regarding whether sex was a

“big part” of her relationship with Charlton, and she responded that it was. Tr. p. 59.

Charlton later testified in his defense regarding their sexual relationship. According to

Charlton, the March 21, 2010 sexual intercourse was not unusual in terms of their sexual

relationship. Charlton also testified that he had talked to and seen R.F. after the March

21, 2010 incident and that he was not “intimate” with R.F. at any of those visits. Id. at

196. The excluded evidence was merely cumulative of other evidence admitted at the

trial. As for the locations of sexual intercourse between Charlton and R.F., Charlton has

failed to demonstrate how this excluded evidence was relevant or affected his substantial

rights.

                                II. Sufficiency of the Evidence

          Charlton argues that the evidence is insufficient to sustain his conviction for rape.

When reviewing the sufficiency of the evidence needed to support a criminal conviction,

we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and

                                                5
any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if

there is substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt. Id.

       The State was required to prove beyond a reasonable doubt that Charlton

knowingly or intentionally had sexual intercourse with R.F. when she was compelled by

force or imminent threat of force. Ind. Code § 35-42-4-1(a)(1). Charlton argues that the

evidence is insufficient because his sexual intercourse with R.F. on March 21, 2010 was

not unusual, that R.F. was fine when she left his house, that his cousin indicated R.F. was

not angry or upset when she left, that R.F. did not oppose the sexual intercourse, and that

R.F. continued to have contact with him after the incident. Charlton’s argument is

merely a request that we reweigh the evidence and judge the credibility of the witnesses,

which we cannot do.

       The State presented evidence that Charlton invited R.F. into his bedroom, pushed

her face down on the bed, held her down by the back of her neck, and had sexual

intercourse with her despite her pleas for him to stop. During the sexual intercourse,

R.F.’s tampon was “jammed up inside” of her. Tr. p. 50. R.F. immediately called a

friend and her mother and went to the police station. Her mother noticed that R.F. was

crying, upset, and could barely walk. Robinson, a sexual assault nurse, examined R.F.

and noticed that she was crying and in pain. R.F. had several genital tears, and Robison

had to use forceps to remove the tampon, which was “embedded underneath the cervical

ausc.” Id. at 124. This evidence is sufficient to sustain Charlton’s conviction for Class B

felony rape.

                                            6
                                         Conclusion

          Any error in the exclusion of evidence regarding the sexual history of the parties

was harmless. The evidence is sufficient to sustain Charlton’s conviction for rape. We

affirm.

          Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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