MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                      Dec 18 2017, 10:29 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                        Curtis T. Hill, Jr.
Michael R. Fisher                                       Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana                                   Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Damon Dozier,                                           December 18, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1707-CR-1496
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark Stoner,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Jeffrey Marchal,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G06-1610-F1-42542



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017        Page 1 of 12
[1]   Damon Dozier appeals his convictions of two counts of Level 3 felony rape. 1

      He presents three issues for our review, which we restate as:


                 1. Whether the trial court abused its discretion when it admitted
                 testimony from the forensic nurse regarding statements made by
                 the victim, M.B.;


                 2. Whether the trial court abused its discretion when it admitted
                 the first 911 call made by M.B.; and


                 3. Whether the State presented sufficient evidence Dozier
                 committed Level 3 felony rape.


      We affirm.



                                Facts and Procedural History
[2]   On November 26, 2014, sixty-six-year-old M.B. traveled from her apartment to

      a nearby liquor store. After purchasing items at the liquor store, M.B.

      encountered Dozier, whom she did not know. Dozier walked M.B. back to her

      apartment and entered her apartment.


[3]   Approximately three hours after Dozier entered M.B.’s apartment, she called

      911 and indicated she had been raped. Officers arrived at M.B.’s apartment and




      1
          Ind. Code § 35-42-4-1(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 2 of 12
      found M.B. extremely intoxicated and were unable to understand her. Officers

      told M.B. to call back when she was no longer intoxicated because they could

      not understand her complaint. She called 911 again approximately six hours

      later. Detective Laura Smith of the sex crimes unit arrived on the scene, spoke

      with M.B., noticed M.B. was in pain, and had an ambulance take M.B. to

      Methodist Hospital for treatment.


[4]   When she arrived at the hospital, M.B. was transported to Center of Hope, an

      area in the hospital where nurses with specialized training in sexual assault

      injuries are staffed. Nicolette Baer, a forensic nurse, examined M.B., who

      complained of extreme pain in her buttocks area. Baer testified M.B. had

      sustained significant tears and lacerations to her vaginal and anal areas

      consistent with blunt force trauma. M.B. told Baer someone “put his penis in

      [her] butt.” (Tr. Vol. II at 63.)


[5]   Baer also took vaginal and anal swabs from M.B. to attempt to match DNA

      with the seminal fluid present. In late 2016, the DNA was determined to

      belong to Dozier. On October 28, 2016, the State charged Dozier with Count

      1, Level 1 felony rape; 2 Count 2, Level 3 felony rape; Count 3, Level 5 felony

      battery resulting in serious bodily injury; 3 and Count 4, Level 6 felony

      strangulation. 4 On April 18, 2017, the State filed two additional charges of



      2
          Ind. Code § 35-42-4-1(b) (2014).
      3
          Ind. Code § 35-42-2-1(f) (2014).
      4
          Ind. Code § 35-42-2-9(b) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 3 of 12
      Level 3 felony rape as Count 5 and Count 6. On May 2, 2017, the State alleged

      Dozier was an habitual offender. 5


[6]   On May 10, 2017, the trial court held a bench trial. The trial court found


                 The Court will make a finding that as to Count 1, the State has
                 proven beyond a reasonable doubt Rape as a lesser included
                 offense of Level 3. The State has shown beyond a reasonable
                 doubt that the Defendant is guilty of Rape, a Level 3 felony, as
                 charged in Count 2. The State of Indiana has not met its burden
                 with respect to Counts 3 and 4. You will be found not guilty as
                 to those. The State has proven beyond a reasonable doubt that
                 he is guilty of Rape as [a] Level 3 felony as charged in Counts 5
                 and 6.


      (Id. at 157.) On June 1, 2017, Dozier admitted he was an habitual offender.

      On June 14, 2017, the trial court held a sentencing hearing. The court first

      addressed the issue of double jeopardy at sentencing, stating:


                 The Court will enter judgment of conviction only as to Counts 1
                 and 2. As the Court finds that the constitutional prohibition
                 against double jeopardy would be violated if I entered judgment
                 of conviction and sentence him on [Counts] 5 and 6, so the
                 record would show [Counts] 5 and 6 proven.


      (Id. at 176.) The trial court then sentenced Dozier to nine years enhanced by

      six years for Dozier’s adjudication as an habitual offender for the first rape




      5
          Ind. Code § 35-50-2-8(b) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 4 of 12
      conviction, and nine years for the second rape conviction, to be served

      concurrently for an aggregate sentence of fifteen years.



                                Discussion and Decision
                                          Admission of Evidence

[7]   We typically review admission of evidence for an abuse of discretion. King v.

      State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. Thus, we reverse

      only if the trial court’s decision is clearly against the logic and effect of the facts

      and circumstances before it. Id. We will not reweigh the evidence, and we will

      consider conflicting evidence in favor of the trial court’s ruling. Id. However,

      we must also consider uncontested evidence favorable to the defendant. Id. A

      trial court ruling will be upheld if it is sustainable on any legal theory supported

      by the record, even if the trial court did not use that theory. Rush v. State, 881

      N.E.2d 46, 50 (Ind. Ct. App. 2008). Error in the admission or exclusion of

      evidence is to be disregarded as harmless unless it affects the substantial rights

      of a party. Id.


         Admission of Forensic Nurse’s Testimony Regarding M.B.’s Statements


[8]   Hearsay is “a statement, other than one made by the declarant while testifying

      at the trial or hearing, offered into evidence to prove the truth of the matter

      asserted.” Indiana Evidence Rule 801(c). Hearsay is not admissible unless it

      fits within an exception to the hearsay rule. Simmons v. State, 760 N.E.2d 1154,

      1160 (Ind. Ct. App. 2002). One exception to the hearsay rule is a statement


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 5 of 12
       made for purposes of a medical diagnosis or treatment. Indiana Evidence Rule

       803(4). For hearsay to fall into this exception, it must be a statement that: (A) is

       made by a person seeking medical diagnosis or treatment; (B) is made for - and

       is reasonably pertinent to - medical diagnosis or treatment; and (C) describes

       medical history; past or present symptoms, pain or sensations; their inception;

       or their general cause. Id. This exception “reflects the idea that people are

       unlikely to lie to their doctors because doing so might jeopardize their

       opportunity to be made well.” VanPatten v. State, 986 N.E.2d 255, 260 (Ind.

       2013).


[9]    To test whether the declarant’s self-interest in obtaining effective medical

       treatment makes the hearsay report adequately reliable for admission, the court

       must determine: “1) is the declarant motivated to provide truthful information

       in order to promote diagnosis and treatment; and 2) is the content of the

       statement such that an expert in the field would reasonably rely on it in

       rendering diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind.

       1996). The statements made by victims of sexual assault “satisfy the second

       prong of the analysis because they assist medical providers in recommending

       potential treatment for sexually transmitted disease, pregnancy testing,

       psychological counseling, and discharge instructions.” VanPatten, 986 N.E.2d

       at 260. The first prong regarding the declarant’s motivation can generally be

       inferred from the fact a victim sought medical treatment. Id. at 260-1.


[10]   M.B. told her daughter and Detective Smith that she was in pain. Baer testified

       when M.B. arrived at the Center of Hope, after being referred there from the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 6 of 12
       Emergency Room, she “was in a lot of pain and she was holding her bottom

       and she was talking to us saying that she had been sexually assaulted, she had

       been anally assaulted.” (Tr. Vol. II at 57.) Baer stated M.B. “was in so much

       pain that she was getting kind of agitated talking about it.” (Id.) Thus, the first

       prong of the medical exception to the hearsay rule is satisfied. See McClain, 675

       N.E.2d at 331 (“where a patient consults a physician, the declarant’s desire to

       seek and receive treatment may be inferred from the circumstances”).


[11]   Additionally, Baer explained a history of assault was necessary for treatment

       and diagnosis “[b]ecause if I would find any injuries based on the story she --

       she is consistent with the story, I would obtain a swab of that area.” (Tr. Vol. II

       at 61.) Indeed, M.B. reported to Baer she had been “rectally assaulted,” (id. at

       68), and Baer observed anal and vaginal tears. When Baer completed swabs of

       those areas, she collected seminal fluid later matched to Dozier. Thus, the

       second prong of the medical exception to the hearsay rule is satisfied. See

       VanPatten, 986 N.E.2d at 260 (the second prong satisfied by victim’s statements

       because “they assist medical providers in recommending potential treatment for

       sexually transmitted disease, pregnancy testing, psychological counseling, and

       discharge instructions”).


[12]   The trial court did not abuse its discretion when it admitted Baer’s testimony

       regarding what M.B. told her about her injuries because the two prongs of the

       medical exception of the hearsay rule were satisfied. Dozier’s argument that

       M.B.’s statements could not be believed because she claimed she did not

       remember Dozier raping her are invitations for us to reweigh the evidence and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 7 of 12
       judge the credibility of witnesses, which we will not do. See King, 985 N.E.2d at

       757 (appellate court will not reweigh evidence or judge the credibility of

       witnesses).


                                     Admission of the First 911 Call


[13]   Additionally, the State offered into evidence two 911 calls made by M.B. The

       trial court admitted the first over Dozier’s hearsay objection, but sustained

       Dozier’s hearsay objection regarding the second. Dozier argues the trial court

       abused its discretion when it admitted the first 911 call M.B. made because the

       statements therein were impermissible hearsay.


[14]   In admitting the first 911 call, trial court stated, “We will show [the first 911

       call] admitted over objection. However, I think the exception is established as

       to the first call. I’m not as comfortable with the second call so I’m not going to

       consider the second call.” (Tr. Vol. II at 10.) In their arguments about the

       hearsay objection, the parties argued regarding whether the excited utterance or

       present sense impression exception to the hearsay rule would allow the first 911

       call into evidence. However, we need not decide whether the trial court abused

       its discretion when it admitted the first 911 call because the error is harmless.


[15]   In a bench trial,


               the harm from any evidentiary error is lessened. In bench trials,
               we presume that the court disregarded inadmissible evidence and
               rendered its decision solely on the basis of relevant and probative
               evidence. Any harm from evidentiary error is lessened, if not
               completely annulled, when the trial is by the court sitting without

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 8 of 12
               a jury. Also, any error in the admission of evidence which is
               merely cumulative of evidence properly admitted is harmless.


       Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000) (internal citations

       omitted). Here, the trial court had M.B.’s testimony she had been sexually

       assaulted, testimony from the responding officer and M.B.’s daughter, and

       testimony from Baer, the forensic nurse who examined M.B. at the Center of

       Hope. Any information contained in the first 911 call was cumulative of the

       other evidence. Thus, any error in the admission of the first 911 call was

       harmless. See id. (error in the admission of evidence which is cumulative of

       evidence properly admitted is harmless).


                                         Sufficiency of the Evidence

[16]   When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. We do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference may reasonably be drawn from it to support the verdict. Id. at

       147.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 9 of 12
[17]   To prove Dozier committed Level 3 felony rape, 6 the State had to present

       sufficient evidence he had sexual intercourse with M.B. or caused her to

       “perform or submit to other sexual conduct” when she was “compelled by force

       or imminent threat of force[.]” Ind. Code § 35-42-4-1(a)(1) (2014). Indiana

       Code section 35-31.5-2-221.5 defines “other sexual conduct” as “an act

       involving . . . a sex organ of one person and the mouth or anus of another

       person.”


[18]   Dozier argues the evidence to support his convictions for rape is insufficient

       because M.B. “had no independent recollection of the incident that was the

       basis for the convictions.” (Br. of Appellant at 19.) In addition, he asserts the

       encounter was consensual based on surveillance video showing M.B. and

       Dozier “behaving in a friendly manner.” (Id. at 21.) Finally, Dozier stated on

       a taped statement that if “there was semen or anything like that it was there

       willingly, having sex.” (Tr. Vol. II at 135.) Dozier’s arguments are invitations

       for us to reweigh the evidence and judge the credibility of witnesses, which we

       cannot do. See Drane, 867 N.E.2d at 146 (appellate court cannot reweigh

       evidence or judge the credibility of witnesses).


[19]   The State presented evidence Dozier’s DNA matched the seminal fluid found

       on M.B. Baer testified M.B. told her:




       6
        Dozier seemingly appeals both of his convictions, but his arguments are not separated based on the act
       charged.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017       Page 10 of 12
               [M.B.] was at the liquor store walking back. She recognized a
               gentleman, a black gentleman that was younger than her that
               hung around the liquor store. And he had said something to her
               to the effect, “Like what are you doing out this late?” And she
               tried to ignore him and he continued to walk with her and she
               was walking back to her apartment. And when they arrived at
               her apartment, uh, he knocked the door open and then she stated
               to me that he put himself in me. And I clarified, “What does that
               mean?” And [M.B.] told me that he put his penis in [her] butt. .
               . . She said it hurt very badly. She started to scream. He grabbed
               her from behind strangling her in the neck and said, “Shut up or I
               will kill you.”


       (Tr. Vol. II at 63.) Baer’s medical examination revealed both vaginal and anal

       tears, consistent with blunt force trauma to those areas. M.B. testified she did

       not consent to vaginal or anal intercourse with Dozier. Based thereon, we

       conclude the State presented sufficient evidence Dozier committed Level 3

       felony rape. See Johnson v. State, 539 N.E.2d 949, 950 (Ind. 1989) (victim’s

       testimony and presence of defendant’s seminal fluid on victim sufficient to

       affirm conviction of rape).



                                               Conclusion
[20]   The trial court did not abuse its discretion when it admitted Baer’s testimony

       regarding what M.B. told her because the hearsay was admissible under the

       medical diagnosis or treatment exception. Any error in the admission of the

       first 911 call was harmless, as the evidence contained in the call was cumulative

       of other evidence properly admitted. Further, the State presented sufficient

       evidence Dozier committed Level 3 felony rape. Accordingly, we affirm.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 11 of 12
[21]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-CR-1496 | December 18, 2017   Page 12 of 12
