MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jun 17 2020, 8:51 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Spenser G. Benge                                         Evan Matthew Comer
K. Aaron Heifner                                         Deputy Attorney General
Anderson, Indiana                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Valonte Deshoun Smith,                                   June 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2333
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1706-F3-1632



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                      Page 1 of 31
                                                 Case Summary

[1]   Valonte Smith appeals his conviction for rape, a Level 3 felony. 1 We affirm.


                                                        Issues

[2]   Smith presents seven issues for our review, which we revise and restate as

      follows:


              I.       Whether the trial court abused its discretion in denying the
                       admission of certain evidence.


              II.      Whether the trial court abused its discretion in limiting
                       Smith’s discovery of certain facts regarding the recording
                       device through a protective order.


              III.     Whether the deputy prosecutor committed prosecutorial
                       misconduct.


              IV.      Whether the trial court properly instructed the jury.


              V.       Whether the evidence is sufficient to sustain Smith’s rape
                       conviction.


              VI.      Whether Smith received ineffective assistance of counsel.


              VII.     Whether Smith’s sentence is inappropriate.




      1
        Smith was also convicted of dealing in a narcotic drug, a Level 5 felony; however, Smith does not challenge
      this conviction on appeal and conceded at the jury trial that he was guilty of this charge.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                     Page 2 of 31
                                                          Facts

[3]   In 2014, L.H. began working as a confidential informant (“CI”) and primarily

      worked with Detective Keith Gaskill with the Anderson Police Department and

      the Madison County Drug Task Force. In preparing L.H. to serve as a CI,

      Detective Gaskill took several safety measures, including giving L.H. a “safe

      word” to use in the event of an emergency. Tr. Vol. II p. 92.


[4]   L.H. met Smith in 2015 and previously purchased heroin from Smith. 2 During

      two of her previous encounters with Smith, L.H. and Smith used heroin

      together and then engaged in sexual intercourse. According to L.H., she did

      not have an agreement with Smith that sexual intercourse would occur instead

      of exchanging money; however, L.H. did not pay for the heroin when sexual

      intercourse occurred. On these occasions, Smith would grab L.H.’s arm as she

      was leaving, and L.H. “went along with the flow,” allowing Smith to guide her

      before the two would engage in sexual intercourse. Tr. Vol. I p. 208.


[5]   In October 2016, when detectives sought to use L.H. as a CI during a controlled

      buy with Smith, detectives were not aware of the full nature of L.H.’s and

      Smith’s previous interactions. 3 On the night of the controlled buy, Detective

      Gaskill equipped L.H. with audio and video recording devices and two one-

      hundred-dollar bills. Detective Gaskill was able to listen to a live audio feed




      2
          In these previous encounters, L.H. was not working as a CI.
      3
       Detective Gaskill testified that, had he known, he would not have used L.H. as the CI for the controlled buy
      with Smith.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                    Page 3 of 31
      during the controlled buy. 4 L.H. was aware that members of the drug task force

      would be nearby during the transaction.


[6]   On October 3, 2016, L.H. met Smith at an intersection as Smith instructed.

      When L.H. arrived, Smith got into the passenger seat of L.H.’s vehicle. Smith

      then instructed L.H. to drive to an apartment complex in Anderson. L.H. and

      Smith walked into the apartment where Smith retrieved the heroin before the

      two disputed the price of the heroin. Prior to the controlled buy, Detective

      Gaskill instructed L.H. to try to purchase more than one gram of heroin. L.H.

      was initially anticipating spending $130.00 per gram; 5 L.H. told Smith: “If you

      show me some love, then, . . . I will spend the whole two [ ] hundred.” Tr. Vol.

      I p. 222. L.H. responded affirmatively when asked by the deputy prosecutor if

      this phrase was “street lingo for getting more . . . drugs[.]” Id. Detective

      Gaskill similarly testified that L.H. was “ask[ing] for a little consideration” on

      the price. Tr. Vol. II p. 107. Ultimately, L.H. gave Smith the entire $200.00

      but received only one gram.


[7]   According to L.H., the following events transpired. 6 After L.H. and Smith

      exchanged the money and heroin, L.H. got up to leave, and Smith “grabb[ed




      4
        Detective Gaskill testified at the jury trial that the quality of the live audio is “[n]ot very good.” Tr. Vol. II
      p. 95. Detective Gaskill primarily uses the live audio to determine if the CI is in trouble. He is unable to
      review the video recording until after the recording equipment is returned to him.
      5
          L.H. and Detective Gaskill believed $130.00 per gram to be the typical street price.
      6
       This version of events comes from L.H.’s testimony at Smith’s jury trial. As we will discuss further below,
      Smith argues the video contradicts portions of L.H.’s testimony.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                            Page 4 of 31
       L.H.’s] arm and pull[ed her] closer to [Smith],” which indicated to L.H. that

       Smith wanted L.H. “to stay and have sex.” Tr. Vol. I pp. 223-24. According to

       L.H., she then told Smith no “several times.” Id. at 224. L.H. also testified that

       she told Smith several times that she was in a hurry and needed to leave. Smith

       grabbed L.H.’s pants and asked L.H. if she was wearing a wire. L.H.

       responded: “You know me better than that.” Id. at 226.


[8]    Smith then “pull[ed] and guid[ed]” L.H. over to the couch near the front door.

       Id. With L.H.’s back to Smith, Smith pulled down L.H.’s pants. Smith then

       put his penis in L.H.’s vagina. L.H. did not yell for help or use the safety word

       because she knew Smith carried weapons, and L.H. was fearful that the

       situation would become violent if detectives stormed the apartment.


[9]    L.H. then left the apartment and met with Detective Gaskill to give him the

       heroin and recording equipment. Detective Gaskill asked L.H. if Smith and

       L.H. had sexual intercourse, which L.H. denied because she was embarrassed

       and “still trying to register” what occurred. Id. at 230.


[10]   Detective Gaskill returned to the police station and reviewed the audio and

       video recordings, which led him to conclude that sexual activity occurred

       during the controlled buy. Detective Gaskill spoke with his supervisor,

       Detective Chad Boynton, regarding his concerns. The following day,

       Detectives Boynton and Gaskill met with L.H., who admitted that Smith raped

       her. L.H. told detectives that she did not yell for help because she was afraid

       and embarrassed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 5 of 31
[11]   L.H. underwent a sexual assault examination at Community Hospital. After

       comparing the sperm fractions collected from L.H.’s vagina with the sample

       collected from Smith pursuant to a court order, “the analyst concluded that the

       DNA profile is seventy-seven (77) billion times more likely if it originated from

       [L.H.] and [Smith] than if it had originated from [L.H.] and an unknown

       individual.” Tr. Vol. II p. 62.


[12]   On May 14, 2019, the State filed an amended information and charged Smith

       with Count I, rape, a Level 3 felony; and Count II, dealing in a narcotic drug, a

       Level 5 felony. 7 At the August 2019 jury trial, the recording of the controlled

       buy was played for the jury. Although the audio is difficult to understand at

       times, L.H. can be heard telling Smith “no” at least once; however, it is unclear

       what Smith said to L.H. prior to her saying “no.” State’s Ex. 10. L.H. asked

       Smith if she could return later, and L.H. asked Smith: “why won’t you let me”

       leave and come back. 8 See id.


[13]   The jury found Smith guilty of both Count I and Count II. At the sentencing

       hearing, the trial court found Smith’s criminal history 9 as an aggravating factor




       7
        The initial charging information, filed on June 27, 2017, alleged Count II, dealing in a narcotic drug, a
       Level 4 felony, instead of a Level 5 felony. No change was made to Count I.
       8
           The precise wording is difficult to ascertain on the recording.
       9
        According to Smith’s pre-sentence investigation report (“PSI”), Smith’s criminal history includes
       convictions for: possession of marijuana, a misdemeanor, in 2006; carrying a concealed weapon, a
       misdemeanor, and operating with a license suspended revoked or denied, a misdemeanor, in 2008; assault
       with a dangerous weapon, a felony, and domestic violence, a misdemeanor, in 2014; and possession of
       marijuana, a misdemeanor, in 2014. The misdemeanor and felony classifications for the offenses are not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                       Page 6 of 31
       and found no mitigating factors. 10 The trial court sentenced Smith to twelve

       years for Count I and four years for Count II to run concurrently for an

       aggregate sentence of twelve years to be served at the Department of Correction

       (“DOC”). Smith now appeals.


                                                       Analysis

                                            I.       Admission of Evidence

[14]   Smith argues that the trial court erred by prohibiting Smith from introducing

       certain evidence. “The trial court has discretionary power on the admission of

       evidence, and its decisions are reviewed only for an abuse of that discretion.”

       Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015). An abuse of discretion occurs

       when the decision is clearly against the logic and effect of the facts and

       circumstances. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).


                                           A. Third-Party DNA Evidence

[15]   The trial court held a pretrial hearing regarding evidence Smith sought to

       introduce pursuant to Indiana Rule of Evidence 412 (“Rule 412”). In his brief,



       included. Smith’s PSI also includes several other arrests; however, no record of the outcome of those arrests
       is provided.
       10
          The trial court noted that Smith’s criminal history was not the “lengthiest” or “most egregious.” Tr. Vol.
       II p. 214. In sentencing Smith, the trial court stated:
                And so, while I know that you have a lot of dispute with the lead charge in this case, that being the
                rape, but the Court is fashioning a sentence not only based on what the jury found you guilty of, but
                you put yourself in this position. You came down to our community to deal drugs and however you
                want to characterize it, but you were taking advantage of people that are addicted or become
                addicted to those drugs and that continues to establish a market and with any kind of dealing drugs,
                comes risks.
       Id. at 216.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                      Page 7 of 31
       Smith argues that information regarding third-party DNA found during L.H.’s

       sexual assault examination was included in his Indiana Rule of Evidence 412(b)

       motion. Upon review of the motion Smith cites to in the Appellant’s

       Appendix, there is no mention of third-party DNA. Instead, Smith’s Indiana

       Rule of Evidence 412(b) motion sought to introduce evidence regarding Smith’s

       and L.H.’s prior sexual intercourse; the trial court allowed Smith to present this

       evidence. The third-party DNA issue, however, was discussed during a pretrial

       hearing. Prior to the beginning of Smith’s jury trial, the trial court ruled that it

       would exclude the evidence at that time, “absent another hearing to determine

       its relevance and, or admissibility.” Tr. Vol. I p. 100.


[16]   On appeal, Smith argues that denying admission of the third-party DNA was an

       abuse of discretion. Our review of the record reveals that Smith has waived this

       issue for our review. After the trial court’s preliminary ruling, Smith failed to

       raise the issue again during trial or make an offer of proof. See Fowler v. State,

       929 N.E.2d 875, 881 (Ind. Ct. App. 2010) (“[Fowler] made no offer of proof

       with regard to her excluded testimony. Nor can the substance of her excluded

       testimony, along with its relevance to her defense, be discerned from the trial

       record.”). Pursuant to Indiana Rule of Evidence 103(a)(2), “A party may claim

       error in a ruling to admit or exclude evidence only if the error affects a

       substantial right of the party and: . . . (2) if the ruling excludes evidence, a party

       informs the court of its substance by an offer of proof, unless the substance was

       apparent from the context.” Accordingly, Smith has waived this issue for our

       review.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 8 of 31
                                                 B. Facebook Messages

[17]   During Smith’s jury trial, in response to L.H.’s testimony on cross-examination

       that she did not recall communicating with Smith months before the controlled

       buy, Smith sought to refresh L.H.’s recollection with Facebook messages L.H.

       sent Smith three months prior 11 to the rape. The State objected and argued that

       the messages were inadmissible because both the messages were not disclosed

       prior to trial as required by Rule 412.


[18]   The State also made an offer of proof wherein L.H. testified that the exhibit

       appeared to be messages from her Facebook account; however, L.H. did not

       recall sending the messages and reviewing the messages did not refresh her

       recollection. The trial court, however, allowed Smith to ask L.H. in front of the

       jury whether the exhibit refreshed her recollection and, if it did, Smith would be

       able to question L.H. about the messages.


[19]   In front of the jury, L.H. conceded that the Facebook messages appeared to

       have been generated from her account; however, L.H. did not recall sending the

       messages. After L.H. again testified her recollection was not refreshed, the

       parties had a conference with the trial court, and the trial court did not allow




       11
         As can be seen in Figure 1, below, there is no date clearly visible on the paper copy of the proffered exhibit.
       At trial, Smith’s attorney questioned L.H. about the messages, stating that they were dated three months
       prior to the controlled buy and that the date could be seen more clearly on the digital copy of the proffered
       exhibit. On appeal, the State does not appear to contest this timing.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                        Page 9 of 31
       Smith to admit the messages “[be]cause [they] violate[ ] [Rule 412].” Tr. Vol. II

       p. 14.


[20]   On appeal, Smith argues the trial court abused its discretion in failing to admit

       the messages because: (1) the evidence was not proffered for an impermissible

       Rule 412 purpose but, rather, to impeach L.H.’s prior inconsistent testimony;

       (2) if the content of the messages was inadmissible under Rule 412, an

       exception to Rule 412 was applicable; and (3) the evidence was admissible as a

       prior inconsistent statement under Indiana Rule of Evidence 613. The State

       counters that the Facebook messages were not properly authenticated pursuant

       to Indiana Rule of Evidence 901(a). 12


[21]   We begin by discussing whether Evidence Rule 412 precluded admission of the

       Facebook messages. Evidence Rule 412 provides:


                  (a) Prohibited Uses. The following evidence is not admissible in
                  a civil or criminal proceeding involving alleged sexual
                  misconduct:


                           (1) evidence offered to prove that a victim or witness
                           engaged in other sexual behavior; or




       12
            Indiana Rule of Evidence 901(a) states:

                  In General. To satisfy the requirement of authenticating or identifying an item of evidence, the
                  proponent must produce evidence sufficient to support a finding that the item is what the proponent
                  claims it is.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                     Page 10 of 31
                       (2) evidence offered to prove a victim’s or witness’s sexual
                       predisposition.


               (b) Exceptions.


                       (1) Criminal Cases. The court may admit the following
                       evidence in a criminal case:


                                (A) evidence of specific instances of a victim’s or
                                witness’s sexual behavior, if offered to prove that
                                someone other than the defendant was the source of
                                semen, injury, or other physical evidence;


                                (B) evidence of specific instances of a victim’s or
                                witness’s sexual behavior with respect to the person
                                accused of the sexual misconduct, if offered by the
                                defendant to prove consent or if offered by the
                                prosecutor; and


                                (C) evidence whose exclusion would violate the
                                defendant’s constitutional rights.


       Ind. R. Evid. 412.


[22]   We disagree with the trial court that the Facebook messages are protected by

       Rule 412. The messages do not mention sexual behavior or discuss L.H.’s prior

       sexual conduct as seen in Figure 1 (partially redacted).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 11 of 31
                                                      Figure 1


[23]   The messages could perhaps be classified as suggestive or flirtatious; however,

       this is not the type of evidence of conduct prohibited under Rule 412. See

       Zawacki v. State, 753 N.E.2d 100, 103 (Ind. Ct. App. 2001) (holding that

       evidence Zawacki sought to offer, namely, letters from the victim to Zawacki’s

       daughter requesting to be in a relationship and communicating the victim’s

       attraction to Zawacki’s daughter “does not concern any actual prior sexual

       activity or conduct on [the victim’s] part,” because the letters contain only

       written matter and, thus, did not fall within the confines of the Rape Shield

       Law), trans. denied.


[24]   Accordingly, we address Smith’s argument that the messages were admissible

       under Indiana Rule of Evidence 613(b), which states: “Extrinsic evidence of a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 12 of 31
       witness’s prior inconsistent statement is admissible only if the witness is given

       an opportunity to explain or deny the statement and an adverse party is given

       an opportunity to examine the witness about it, or if justice so requires. . . .”

       “‘[W]hen a prior inconsistent statement is used to impeach a witness, it is not

       hearsay because the statement is not used to prove the truth of the matter

       asserted.’” Estate of Dyer v. Doyle, 870 N.E.2d 573, 578 (Ind. Ct. App. 2007)

       (quoting Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000)). For example, in

       Estate of Dyer, we held that the witness’s statement to an emergency room

       doctor was “arguably inconsistent with his testimony and could be used for

       impeachment purposes” under Evidence Rule 613(b). Id. The Facebook

       messages at issue here were arguably inconsistent with L.H.’s testimony

       regarding contact with Smith. Accordingly, the Facebook messages were

       admissible for impeachment purposes. See id.


[25]   Nonetheless, the trial court’s failure to admit this evidence is harmless. See Gray

       v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013) (“Even when a trial court errs

       in excluding evidence, we will not find reversible error where that error is

       harmless; that is, where the error did not affect the substantial rights of a

       party.”). The jury already received information regarding L.H.’s and Smith’s

       prior sexual history. The jury also heard Smith ask L.H. whether she sent the

       Facebook messages to Smith three months prior. Although L.H. did not recall

       sending the messages, L.H. testified before the jury that it appeared to be her

       Facebook account that sent the messages. The messages themselves were

       innocuous and do not establish further contact between L.H. and Smith. The


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 13 of 31
       exclusion of the exhibit containing the Facebook messages did not impact

       Smith’s substantial rights.


                                             II.      Protective Order

[26]   Smith argues the trial court abused its discretion in granting the State’s motion

       for a protective order. “Generally, the grant or denial of a discovery motion is

       within the trial court’s discretion and will be overturned only for an abuse of

       discretion.” Rogers v. State, 60 N.E.3d 256, 260 (Ind. Ct. App. 2016) (citations

       omitted), trans. denied. “An abuse of discretion will not be found unless the

       decision is clearly against the logic and effect of the facts and circumstances.”

       Id.


[27]   In pretrial proceedings, the State sought a protective order regarding, in part,

       “the description and identity of the type of recording device utilized by

       investigators [which] could place ongoing, existing, and future investigations

       and informants at risk of compromise and safety.” Appellant’s App. Vol. II p.

       122. Smith argued that the information was essential to his defense because a

       portion of the video was not in focus and did not capture the rape on camera;

       therefore, the defense needed to understand if L.H. had control over the video

       recording device. The trial court entered an order prohibiting Smith from

       discovering the nature and design of the recording devices used during the

       controlled buy.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 14 of 31
[28]   Pursuant to Indiana Trial Rule 26(C), the trial court may issue a protective

       order limiting broad discovery. 13 Our Supreme Court has established a “three-

       step test . . . for the discoverability of records by a criminal defendant in certain

       circumstances[.]” In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011).

       According to Crisis Connection:


                  (1) there must be sufficient designation of the items sought to be
                  discovered (particularity); (2) the requested items must be
                  material to the defense (relevance or materiality); and (3) if the
                  first two requirements are met, the trial court must grant the
                  request unless there is a showing of paramount interest in
                  nondisclosure.


       Id. (quotations omitted).


[29]   Regarding the first factor, both the State and Smith knew Smith sought to

       obtain information regarding the nature and design of the recording devices. As




       13
            Indiana Trial Rule 26(C) states:

                  (C) Protective orders. Upon motion by any party or by the person from whom discovery is sought,
                  and for good cause shown, the court in which the action is pending or alternatively, on matters
                  relating to a deposition, the court in the county where the deposition is being taken, may make any
                  order which justice requires to protect a party or person from annoyance, embarrassment,
                  oppression, or undue burden or expense, including one or more of the following:
                           (1)   that the discovery not be had;
                           (2) that the discovery may be had only on specified terms and conditions, including a
                           designation of the time or place;
                           (3) that the discovery may be had only by a method of discovery other than that selected
                           by the party seeking discovery;
                           (4) that certain matters not be inquired into, or that the scope of the discovery be limited
                           to certain matters; . . .



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                        Page 15 of 31
       to the second factor, regarding materiality, an item is “material” if it appears

       that it might benefit the preparation of the defendant’s case. Williams v. State,

       959 N.E.2d 360, 368 (Ind. Ct. App. 2012). Smith argues introduction of the

       device was material because “[L.H.] may have purposefully muffled the device

       during the time she was having sex with [Smith],” which, Smith argues, would

       “draw her credibility, motive, and intentions greatly into question.”

       Appellant’s Br. p. 35. The State argues that this information was immaterial to

       Smith’s defense because “Smith was given a chance to question witnesses about

       the devices, and the jury was presented with an opportunity to consider the

       possibility that the devices had been tampered with by L.H. prior to or during

       her rape.” Appellee’s Br. p. 39.


[30]   We are not convinced that L.H.’s potential manipulation of the camera offers a

       defense. Importantly, as the State points out, the trial court allowed Smith

       some latitude in questioning witnesses regarding the devices, and the discovery

       order was limited to the nature and design of the recording devices. See Tr. Vol.

       I pp. 39, 41 (Smith’s attorney argued that he wanted to ask L.H. questions such

       as: “You knew where the device was, did you receive specific instructions

       regarding the device? What were those instructions? Have you used this device

       before?” to which the trial court responded: “I think this line of questioning,

       again, doesn’t really get into the um, the nature and the design, where it was

       located, the particulars of the device, it has more to do with, which I think is

       part of the investigation then, the familiarity that [L.H.] may have had with the

       device.”). Moreover, in closing argument, Smith’s counsel argued, without


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 16 of 31
       objection, that L.H. was controlling the device, that you could see several

       events during the controlled buy, and that “for some reason during the sex, the

       video goes blank.” Tr. Vol. II p. 157. Smith was merely limited from

       presenting evidence regarding the nature and design of the recording

       equipment.


[31]   Finally, we consider whether the State demonstrated a paramount interest in

       non-disclosure. “Whether a sufficient interest has been shown to prevent

       discovery will depend upon the type of interest put forth and the category of

       information sought. A legitimate interest in keeping the information or items

       confidential, for example, may suffice to deny discovery.” Williams, 959

       N.E.2d at 368 (quotations omitted). Here, the State argued at the hearing

       regarding the protective order that “the nature of the device is sensitive to

       ongoing [ ] investigations[.]” Tr. Vol. I p. 7. We agree. The information Smith

       sought—such as where the device was kept and how a CI works that device—

       could compromise investigations and endanger other CIs.


[32]   Based on the foregoing, the trial court did not abuse its discretion in granting

       the State’s protective order regarding the recording devices.


                                        III.    Prosecutorial Misconduct

[33]   Smith argues the deputy prosecutor committed prosecutorial misconduct during

       L.H.’s identification of Smith. When reviewing a claim of prosecutorial

       misconduct, we must determine whether the prosecutor: (1) engaged in

       misconduct that, (2) under all of the circumstances, placed the defendant in a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 17 of 31
       position of grave peril to which he or she would not have been otherwise

       subjected. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014); see also Nichols v. State,

       974 N.E.2d 531, 535 (Ind. Ct. App. 2012). “‘Whether a prosecutor’s argument

       constitutes misconduct is measured by reference to case law and the Rules of

       Professional Conduct.’” Nichols, 974 N.E.2d at 535 (quoting Cooper v. State, 854

       N.E.2d 831, 835 (Ind. 2006)). We measure the weight of the peril by the

       probable persuasive effect of the misconduct on the jury rather than the degree

       of impropriety of the conduct. Id.


[34]   During L.H.’s testimony at trial, the following events transpired:


               [DEPUTY PROSECUTOR]: Okay . . . . Do you know the
               Defendant, Valonte Smith?


               [L.H.]: Yes.


               [SMITH’S COUNSEL]: Well, Judge. . . let the record reflect that
               [the deputy prosecutor] turned and pointed at [Smith] as he’s
               asking the witness if she knows [Smith], and I would object to
               that in-court identification.


               THE COURT: Okay. Objection noted. Continue, [deputy
               prosecutor].


               [DEPUTY PROSECUTOR]: I noticed, ma’am, that you’re
               having trouble looking –


               [L.H.]: I didn’t even look over there, but yes I do.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 18 of 31
               [DEPUTY PROSECUTOR]: Okay. And we’ll get to the, to the
               video and, and talk about that and everything like that, but you
               know someone by the name of Valonte Smith, correct?


               [L.H.]: Yes.


               [DEPUTY PROSECUTOR]: And he’s in fact sitting over there?


               [L.H.]: Yes.


       Tr. Vol. I p. 204.


[35]   Smith argues that the deputy prosecutor was “impermissibly suggestive” during

       L.H.’s in-court identification of Smith and that, as a result, the jury “was sure to

       see [Smith] as the man in the video, despite its poor quality, because [L.H.] had

       identified him at the direction of the Deputy Prosecutor.” Appellant’s Br. pp.

       18, 38. Even if the deputy prosecutor impermissibly gestured to Smith when

       asking L.H. to identify Smith, Smith was not placed in a position of grave peril.


[36]   Smith’s argument regarding grave peril—that the jury was “sure” to see Smith

       as the man in the video despite its poor quality—is unpersuasive because Smith

       did not argue at any point during the trial that he was not the person in the

       video. In fact, in opening argument, Smith conceded that he was on the video

       dealing heroin. Thus, the alleged misconduct had no probable persuasive effect




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 19 of 31
       on the jury, and Smith failed to demonstrate that he was subject to grave peril. 14

       Smith has failed to meet his burden that the deputy prosecutor committed

       misconduct.


                                                IV.      Jury Instructions

[37]   Smith argues the trial court improperly instructed the jury. The State proposed

       Instruction 5, and the trial court adopted the State’s instruction as written over

       Smith’s objection. Instruction 5 stated:


                The presence or absence of forceful compulsion is to be
                determined from an objective and reasonable perspective of the
                victim, not the assailant. You may consider the victim’s
                perception of the circumstances surrounding the incident in
                question, but this must also be an objective and reasonable
                perspective under the circumstances. The issue is whether under
                the circumstances presented the victim reasonably perceived the
                aggressor’s force or imminent threat of force as compelling her
                compliance.


       Appellant’s App. Vol. II p. 141 (emphasis added).


[38]            In reviewing a trial court’s decision to give or refuse tendered
                jury instructions, this Court considers: (1) whether the instruction
                correctly states the law; (2) whether there is evidence in the
                record to support the giving of the instruction; and (3) whether




       14
         Smith argues that the improper identification tainted all future identifications of Smith, such as Detective
       Gaskill’s identification. At trial, Detective Gaskill was asked if he recognized Smith as the person from the
       video. In light of the fact that Smith conceded in opening argument that he was in the video dealing heroin,
       we do not believe this testimony was impacted by the deputy prosecutor’s and L.H.’s prior remarks.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                      Page 20 of 31
               the substance of the tendered instruction is covered by other
               instructions which are given.


       Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002). “Instructing a jury is a

       matter assigned to trial court discretion, and an abuse of that discretion occurs

       when the instructions, as a whole, mislead the jury as to the law in the case.”

       Newbill v. State, 884 N.E.2d 383, 394 (Ind. Ct. App. 2008) (citing Ham v. State,

       826 N.E.2d 640, 641 (Ind. 2005)), trans. denied. “Jury instructions must be

       considered as a whole and in reference to each other, and even an erroneous

       instruction will not be reversible error if the instructions taken as a whole do not

       misstate the law or otherwise mislead the jury.” Filice v. State, 886 N.E.2d 24,

       37 (Ind. Ct. App. 2008) (citations omitted), trans. denied. “Before a defendant is

       entitled to a reversal, he must affirmatively show that the instructional error

       prejudiced his substantial rights.” Id.


[39]   Smith concedes the instruction “may correctly state the law, and there is

       evidence in the record which could be construed to support the giving of the

       instruction.” Appellant’s Br. p. 40. Smith argues, however, argues that the

       “instruction’s interaction with other instructions . . . creates the problem.” Id.


[40]   Smith’s argument is based on Newbill v. State, 884 N.E.2d 383, 393 (Ind. Ct.

       App. 2008), trans. denied. In Newbill, the trial court instructed the jury that:


               It is the victim’s perspective, not the assailant’s, from which the
               presence or absence of forceful compulsion is to be determined.
               This is a subjective test that looks to the victim’s perception of the
               circumstances surrounding the incident in question. The issue is
               whether the victim perceived the aggressor’s force or imminent
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 21 of 31
               threat of force as compelling her compliance. The element of
               force may be inferred from the circumstances.


       Newbill, 884 N.E.2d at 393. Our Court held that this instruction “may not

       properly reflect the perspective from which a jury should consider the evidence

       of forceful compulsion.” Id. Instead, our Court held, “the ‘perspective’ for a

       jury’s consideration of the evidence of forceful compulsion in a rape trial might

       better be described as either the ‘objective perspective of the victim’ or the

       ‘reasonable perspective of the victim.’” Id. (footnote omitted). We discouraged

       trial courts from using this language as an instruction in the future. Regardless,

       we then held that, “read as a whole, the instructions properly informed the jury

       that it was to consider the testimony and evidence presented, and to judge that

       evidence in order to reach its conclusion of whether the State established,

       beyond a reasonable doubt, that Newbill knowingly or intentionally exerted

       force that compelled H.R. to submit to sexual intercourse.” Id. at 394.


[41]   We observe that here the trial court did not use the instruction found in Newbill;

       rather, the instruction given by the trial court addressed the concerns raised in

       Newbill and provided that it was both the reasonable and objective perspective

       of L.H. framed the question of forceful compulsion. Contrary to Smith’s

       argument, the instruction did not “relieve[] the State of its burden as to proving

       each element objectively and beyond a reasonable doubt.” Appellant’s Br. p.

       41. Accordingly, we find the trial court did not abuse its discretion by giving

       Instruction 5.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 22 of 31
                                          V.       Insufficient Evidence

[42]   Smith argues the evidence is insufficient to support his rape conviction. When

       a challenge to the sufficiency of the evidence is raised, “[w]e neither reweigh

       evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210

       (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),

       cert. denied. Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). “We will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.

       2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[43]   Smith was convicted of rape, a Level 3 felony, pursuant to Indiana Code

       Section 35-42-4-1(a)(1), which states:


               Except as provided in subsection (b), a person who knowingly or
               intentionally has sexual intercourse with another person or
               knowingly or intentionally causes another person to perform or
               submit to other sexual conduct . . . when:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 23 of 31
                       (1) the other person is compelled by force or imminent
                       threat of force;


                                                    *****


               commits rape, a Level 3 felony.


[44]   Smith argues that the evidence is insufficient to prove that Smith used force or

       the imminent threat of force to compel L.H. to have sexual intercourse and that

       L.H. did not consent. As our Supreme Court explained in Tobias v. State, 666

       N.E.2d 68, 72 (Ind. 1996):


               [I]t is the victim’s perspective, not the assailant’s, from which the
               presence or absence of forceful compulsion is to be determined.
               This is a subjective test that looks to the victim’s perception of the
               circumstances surrounding the incident in question. The issue is
               thus whether the victim perceived the aggressor’s force or
               imminent threat of force as compelling her compliance.


       “Further, in the sufficiency context, the force necessary to sustain a conviction

       of rape need not be physical and it may be inferred from the circumstances.”

       Newbill, 884 N.E.2d at 392 (quotations and citations omitted).


[45]   Here, there was sufficient evidence of force to sustain Smith’s conviction. The

       jury was able to hear the audio recording in addition to L.H.’s testimony

       regarding the rape. L.H. can be heard on the recording telling Smith “no” at




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 24 of 31
       least once.15 See State’s Ex. 10. L.H. stated several times that she needed to

       leave to go to the local high school. L.H., in an effort to leave, even asked

       Smith if she could leave and come back later. The recording also captured L.H.

       asking Smith why he will not allow her to leave. In his brief, Smith concedes

       that he “grabbed” L.H.’s arm and “guided” her to the couch. 16 Appellant’s Br.

       p. 19. From these facts, a jury could reasonably conclude that Smith prevented

       L.H. from leaving and forced L.H. to comply with his demands.


[46]   Smith’s arguments that L.H. consented because: (1) there “is no evidence that

       [L.H.] was hit, injured, pushed down, held down, or otherwise physically

       overcome,” Appellant’s Br. p. 19; (2) Smith was merely acting in conformity

       with past consensual behaviors; (3) Smith touched L.H. only to look for a wire

       and not to compel sexual intercourse; (4) L.H. did not tell Smith “no” to having

       sexual intercourse; and (5) L.H. was scared of the detectives’ presence causing

       violence, instead of Smith’s violence, are merely requests for us to reweigh

       evidence, which we cannot do. Appellant’s Br. p. 19; see Gibson, 51 N.E.3d at

       210. Accordingly, we find the evidence is sufficient to support Smith’s

       conviction for rape, a Level 3 felony.




       15
            It is unclear on the recording what Smith says before L.H. says “no.”
       16
         Even if this action was consistent with Smith’s and L.H.’s prior consensual encounters, L.H.’s testimony
       and the audio recording demonstrate that L.H. audibly contested Smith’s actions.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                   Page 25 of 31
                                     VI.      Ineffective Assistance of Counsel

[47]   Smith next argues that he received ineffective assistance of counsel because his

       attorney failed to cross-examine L.H. on several issues. 17 To prevail on a claim

       of ineffective assistance of counsel, the appellant must demonstrate both that:

       (1) his or her counsel’s performance was deficient, and (2) the petitioner was

       prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

       106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

       2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001).

       The failure to satisfy either prong will cause the claim to fail. Grinstead v. State,

       845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective assistance of counsel claims,

       thus, can be resolved by a prejudice analysis alone. Id. To demonstrate

       prejudice, “the defendant must show that there is a reasonable probability that,

       but for counsel’s unprofessional errors, the result of the proceeding would have

       been different. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018)

       (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052). Finally, “[t]o support

       such a claim of ineffective assistance of counsel, it is often necessary to develop




       17
         “‘A postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim.’”
       McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999) (quoting Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998)).
       “Presenting such a claim often requires the development of new facts not present in the trial record. The
       assessment of such a claim requires a court to consider the overall performance of counsel and the reasonable
       probability that the alleged error affected the outcome.” McIntire, 717 N.E.2d at 101. Because Smith has
       chosen to raise this issue on direct appeal, “the issue will be foreclosed from collateral review.” Id. at 102
       (quotations omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                    Page 26 of 31
       facts beyond those contained in the trial record.” Jewell v. State, 887 N.E.2d

       939, 942 (Ind. 2008).


[48]   Smith argues that counsel rendered ineffective assistance by failing to cross-

       examine L.H. regarding whether: (1) the video was inconsistent with L.H.’s

       testimony that she told Smith “no” before he raped her; (2) L.H. said “no” to

       Smith’s question regarding a wire and not to sexual intercourse; (3) “the tone

       and disposition of [L.H.’s] voice was the same before she had sex with Mr.

       Smith as it was after”; and (4) any threat of force L.H. may have felt came from

       fear the police may cause a shootout, and not from Smith. Appellant’s Br. p.

       17.


[49]   Smith’s counsel cross-examined L.H. on other issues regarding her credibility

       and on inconsistencies in her testimony. “It is not our prerogative to second-

       guess deliberate and informed choices made by an attorney for tactical or

       strategic reasons.” Weaver v. State, 432 N.E.2d 5, 8 (Ind. 1982). Moreover,

       Smith has failed to demonstrate that he was prejudiced. The jury was able to

       hear the audio from the controlled buy and L.H.’s testimony and discern on

       their own whether they found L.H. to be credible and whether L.H.’s testimony

       was inconsistent with the audio evidence. Accordingly, Smith has failed to

       meet his burden to demonstrate that he received ineffective assistance of

       counsel.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 27 of 31
                                            VII. Inappropriate Sentence

[50]   Finally, Smith argues that his sentence is inappropriate in light of the nature of

       the offense and Smith’s character. 18 Smith asks that we review and revise his

       sentence pursuant to Indiana Appellate Rule 7(B), which provides that we may

       revise a sentence authorized by statute if, after due consideration of the trial

       court’s decision, we find that the sentence “is inappropriate in light of the

       nature of the offense and the character of the offender.” The defendant bears

       the burden to persuade this court that his or her sentence is inappropriate.

       Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App. 2012) (citing Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[51]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895




       18
          Smith makes two other arguments in his brief. First, Smith also argues that the trial court did not comply
       with the requirements in Harris v. State, 659 N.E.2d 522, 527-28 (Ind. 1995), that the trial court should: (1)
       identify the aggravating and mitigating circumstances; (2) state the specific reason why the circumstances are
       aggravating or mitigating; and (3) articulate the balancing of the factors at sentencing. As the State notes,
       however, Harris was decided prior to Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), which held that the
       trial courts “no longer [have] any obligation to weigh aggravating and mitigating factors against each other
       when imposing a sentence” (internal quotations omitted). Importantly here, the trial court entered a lengthy
       oral sentencing statement and articulated the aggravating and mitigating factors. Smith’s argument that the
       trial court did not ascribe the weight to be given to each factor is not required under Anglemyer.
       Second, Smith argues that the trial court improperly considered the fact that Smith put himself in a situation
       to deal drugs as an aggravating factor. We do not find support for Smith’s argument that the trial court
       considered this an aggravating factor; the trial court was clear that Smith’s criminal history was the sole
       aggravating factor. Nonetheless, as the State points out, this argument would have been more appropriately
       framed as the trial court abusing its discretion, and because Smith does not outline this standard in his brief,
       we consider this argument waived. See Ind. Appellate Rule 46(A)(8)(b) (“[t]he argument must include for
       each issue a concise statement of the applicable standard of review[.] . . .”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020                       Page 28 of 31
       N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our

       review, we do not look to see whether the defendant’s sentence is appropriate or

       “whether another sentence is more appropriate; rather the question is whether

       the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228

       (Ind. 2015) (citations and quotations omitted and emphasis supplied).


[52]   We look to the statutory range established for the classification of the offense.

       The jury found Smith guilty of rape, a Level 3 felony; and dealing in a narcotic

       drug, a Level 5 felony. The sentence for a Level 3 felony ranges from three to

       sixteen years with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b).

       The sentence for a Level 5 felony ranges from one year to six years, with an

       advisory sentence of three years. Ind. Code § 35-50-2-6(b). Here, the trial court

       imposed twelve years for the Level 3 felony and four years for the Level 5

       felony, to run concurrently, for an aggregate sentence of twelve years.


[53]   First, we consider the nature of Smith’s offense. Smith sold L.H. heroin while,

       unbeknownst to Smith, L.H. was working as a CI for the Anderson Police

       Department. Smith waited until the two were at an apartment to sell L.H. the

       heroin. Smith then grabbed L.H. by the arm as she was leaving. L.H. made

       several excuses to leave, including asking Smith if he would let her leave and

       return later. L.H. did not scream or ask for help because she knew Smith to

       carry weapons, and L.H. feared for her safety if she asked for help. Despite

       L.H.’s efforts to leave the apartment, Smith raped L.H.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 29 of 31
[54]   Next, we examine Smith’s character. According to Smith’s PSI, Smith’s

       criminal history includes five misdemeanors and one felony between 2006 and

       2014. Smith’s offenses range from weapons charges to drug offenses, and at

       least two offenses involving violence. The trial court acknowledged that

       Smith’s criminal history was not the most extensive the trial court had ever

       seen; however, the trial court properly used Smith’s criminal history as an

       aggravating factor. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.

       2007) (“[A]lthough Rutherford’s criminal history is not aggravating to a high

       degree, it still is a poor reflection on his character.”); see also Pruitt v. State, 78

       N.E.2d 14, 22 (Ind. Ct. App. 2017) (finding that an aggravated and consecutive

       sentence would have been permissible “based on a single aggravating factor”),

       trans. denied.


[55]   Finally, Smith also argues that he is not among the worst offenders; therefore,

       his sentence is inappropriate. The trial court, however, did not impose the

       maximum sentences and did not even impose consecutive sentences.

       Accordingly, Smith’s argument that he is not the worst offender and that his

       below-the-maximum sentence should be reduced is unavailing. Given the

       nature of the offense and Smith’s character, we cannot say that Smith’s twelve-

       year sentence inappropriate.


                                                  Conclusion

[56]   In light of the foregoing, the trial court did not abuse its discretion in denying

       admission of certain evidence; Smith has failed to meet his burden that the

       deputy prosecutor committed misconduct; the trial court did not abuse its
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020    Page 30 of 31
       discretion in instructing the jury; the evidence was sufficient to convict Smith of

       rape, a Level 3 felony; Smith did not receive ineffective assistance of counsel;

       and Smith’s sentence is not inappropriate. Accordingly, we affirm.


[57]   Affirmed.


       Mathias, J., concurs.


       Riley, J., concurs in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020   Page 31 of 31
