MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
                                                                 Oct 25 2016, 6:05 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
Matthew D. Anglemeyer                                    Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D. B.,                                                   October 25, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A02-1512-JV-2217
         v.                                              Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marilyn Moores,
Appellee-Petitioner.                                     Judge
                                                         The Honorable Gary Chavers,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1508-JD-1490



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, D.B., appeals his delinquency adjudication for two

      Counts of rape, Level 3 felonies if committed by an adult, Ind. Code § 35-42-4-

      1.


[2]   We affirm.


                                                     ISSUE

[3]   D.B. raises one issue on appeal, which we restate as: Whether the trial court

      abused its discretion in admitting certain evidence.


                             FACTS AND PROCEDURAL HISTORY


[4]   In the summer of 2015, D.B. and S.M. were sophomores at Ben Davis High

      School in Indianapolis, Indiana. Fifteen-year-old D.B. was a wide receiver for

      the school’s football team. Sixteen-year-old S.M. was the school’s football team

      manager and responsible for the players’ equipment and uniforms. S.M.

      became acquainted with D.B. in her freshman year and they regularly

      interacted during football practice. At the end of football practice on August

      11, 2015, D.B. took S.M.’s phone and messaged “Heyy” to his own phone

      through an instant messaging software application known as “Kik.” (State’s

      Exh. 3, p.1). Later that evening, the two exchanged flirtatious messages and

      had three Facetime (i.e., video chat) conversations. The following day, on

      August 12, 2015, after football practice, D.B., S.M., and other friends,

      remained in the trainer’s room to talk and play. After everyone had left, S.M.

      and D.B. walked together, taking S.M.’s usual route home. D.B. stopped
      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 2 of 9
      behind the bleachers near the parking lot, and asked S.M. to come close. S.M.,

      who was talking with another person on her cell phone, stated no and began

      laughing. At that point, D.B. grabbed S.M. by the belt and he pulled her

      towards him. S.M. put her phone away, and D.B. tried to undo her belt but

      S.M. grabbed D.B.’s hand, and she stated no. Despite S.M.’s refusal, D.B.

      reached down S.M.’s pants and penetrated S.M.’s vagina with his finger. S.M.

      was shocked. According to S.M., they were no longer standing by the

      bleachers, they were standing between two cars in the parking lot. D.B. pulled

      down S.M.’s pants, turned her around, and forced her to bend over against one

      of the vehicles. D.B. proceeded to penetrate S.M.’s vagina with his penis;

      however, because S.M. tensed up, it made it difficult for D.B. to penetrate her

      vagina. In an attempt to penetrate her vagina, D.B. spread S.M.’s vagina with

      his two fingers, and inserted his penis. To some extent, D.B. succeeded in

      penetrating S.M.’s vagina, by moving past her vaginal lips. According to S.M.,

      D.B. tried to penetrate her vagina “too many” times. (Tr. p. 59). It hurt S.M.

      After several attempts, D.B. gave up trying to penetrate S.M.’s vagina, pulled

      up his pants and informed S.M. that his mother had arrived to pick him up.

      S.M. also pulled up her pants, hugged D.B. goodbye, and walked home.


[5]   Nearby, and from inside the high school, by Door 12, custodian Michael Short

      (Custodian Short) was working, and when he looked outside into the parking

      lot, he saw what he would describe as a sex act between a male and a female,

      and after the act, he saw them pull up their pants, hug, and leave. Custodian

      Short was able to identify the male in the parking lot as D.B.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 3 of 9
[6]   S.M. cried on her way home. When she arrived, S.M. went straight to her

      bedroom. S.M. was in pain, she could not sit down, and when she put on her

      pajamas, she noticed blood in her underwear. S.M. contacted her friend E.H.,

      who advised her how to clean up the bloody underwear. That same evening,

      S.M. texted D.B. via Kik where she stated that she did not want the sex act to

      happen, reminded him that she had told him “no,” and that she could not even

      sit down because of the pain. (Tr. p. 71). D.B. wrote back “L-O-L,” which

      means “lots of laughs.” (Tr. p. 72). D.B. told S.M. to lie to her family that she

      got injured. (Tr. p. 72). S.M. expressed to D.B. that she felt violated, and D.B.

      wrote back, “Awh.” (Tr. p. 72). S.M. additionally texted D.B. that she told

      him to stop, and D.B. responded by stating, “So?” (Tr. p. 73). The following

      day, S.M. reported the incident to a school official, who, in turn, contacted the

      police. When the police arrived, they interviewed S.M., and S.M. was later

      taken to the hospital where she was examined by nurse Cantana Phillips (Nurse

      Phillips). Upon examining S.M., Nurse Phillips found a lot of redness and

      abrasions to the exterior of S.M.’s vagina, as well as abrasions on each side of

      her vaginal walls. S.M. “verbalized that she was in pain.” (Tr. p. 191).


[7]   Shortly after S.M. reported the incident to a school official, the dean of

      students, Dean Stanton (Dean Stanton), summoned D.B. and informed him of

      the rape allegations against him by S.M. D.B. was requested to provide a

      written statement of his version of events. On August 19, 2015, D.B. offered a

      written response where he reported that it was S.M. who initiated sexual

      touching, i.e., D.B. indicated that S.M. hit him in the private area, and he, in


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 4 of 9
       turn, hit S.M. in the private area. D.B. added that at S.M.’s request, he put his

       hand inside S.M.’s pants.


[8]    On August 19, 2015, the State filed a petition, alleging D.B. was a delinquent

       child because he committed two offenses of rape, which would be Level 3

       felonies if committed by an adult. On September 17, 2015, the juvenile court

       conducted a fact-finding hearing. S.M., S.M.’s friend—E.H., Custodian Short,

       Nurse Phillips, Dean Stanton, and D.B., testified. On September 18, 2015, the

       juvenile court found both allegations to be true. On November 25, 2015, the

       juvenile court placed D.B. on probation with a suspended commitment to the

       Department of Correction. D.B. was placed in the Resolute Treatment Facility

       to participate in a sex offense treatment program, and the juvenile court allowed

       for D.B.’s transfer into the Polaris Group Home if the Resolute Treatment

       Facility agreed with the transfer.


[9]    D.B. now appeals. Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION


[10]   D.B. argues that the juvenile court abused its discretion in admitting

       impeachment evidence. Specifically, during cross-examination, the State

       introduced evidence of an allegation against D.B., in which a girl had alleged

       that D.B. had touched her private area during the previous school year.


[11]   The juvenile court has broad discretion in ruling on the admissibility of

       evidence. See C.C. v. State, 826 N.E.2d 106, 110 (Ind. Ct. App. 2005), trans.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 5 of 9
       denied. We will reverse only upon an abuse of that discretion. Id. An abuse of

       discretion occurs if the decision is clearly against the logic and effect of the facts

       and circumstances before the court. See Berry v. State, 967 N.E.2d 87, 90 (Ind.

       Ct. App. 2012).


[12]   On direct examination, by his counsel, D.B. was asked if he had experienced

       any other disciplinary problems at school, and he stated, “[N]o, sir.” (Tr. p.

       218). Based on that testimony, on cross-examination, the State sought to

       impeach D.B. by asking him about a sexual harassment claim in which a girl at

       D.B.’s school had alleged that D.B. had touched her private area with his leg.

       The juvenile court overruled D.B.’s objection to the State’s questioning about

       his prior disciplinary problems.


[13]   D.B. contends that although he was suspended for sexually harassing a girl in

       2014, he refuted that assertion at his hearing, and the State failed to present

       evidence that the allegation was substantiated. Accordingly, D.B. posits that

       the sexual harassment allegation was irrelevant and had no tendency to make

       S.M.’s allegations of rape more probable.


[14]   We initially note that Indiana Evidence Rule 401 provides a liberal standard for

       relevancy, and appellate courts review a trial court’s ruling on relevance for an

       abuse of discretion. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Relevant

       evidence is “evidence having any tendency to make the existence of any fact

       that is of consequence to the determination of the action more probable or less

       probable than it would be without the evidence.” Id. (quoting Ind. Evidence


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 6 of 9
       Rule 401). Further, Ind. Evidence Rule 607 provides that the credibility of a

       witness may be attacked by any party. Indiana Evidence Rule 616 explicitly

       makes “evidence of bias, prejudice, or interest of the witness for or against any

       party” relevant and admissible for impeachment purposes, as this evidence can

       impact the weight of the witness’s testimony. Id at 27-28. Our supreme court

       has stated, however, that Evidence Rule 616 “should be read in conjunction

       with Rule 403’s required balancing of probative value against the danger of

       unfair prejudice.” Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999). Evidence

       Rule 403 reads, “Although relevant, evidence may be excluded if its probative

       value is substantially outweighed by the danger of unfair prejudice, confusion of

       the issues, or misleading the jury, or by considerations of undue delay, or

       needless presentation of cumulative evidence.”


[15]   Here, D.B. testified that he had not experienced any disciplinary issues at his

       school, other than the instant case. D.B.’s testimony left the juvenile court with

       the impression that he was an honest person. Given that D.B. had asserted that

       it was S.M. who initiated the sexual acts during direct-examination, a focal

       point in this case was his credibility as a witness. Therefore, during cross-

       examination, the State inquired into D.B.’s suspension in 2014 with regards to a

       sexual harassment allegation, so as to show that D.B. was lying when he stated

       that he never encountered disciplinary problems at his school. Evidence that he

       was not truthful was therefore relevant, and the trial court did not abuse its

       discretion in admitting this evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 7 of 9
[16]   We further find that the probative value of the evidence was not outweighed by

       unfair prejudice. See Evid. R. 403. S.M. provided unequivocal testimony

       regarding her sexual encounter with D.B. in August of 2015. S.M. stated that

       she and D.B. were walking home, D.B. stopped by the bleacher and pulled her

       towards him. D.B. tried to undo her belt but S.M. grabbed D.B.’s hand, and

       she stated no. Despite S.M.’s refusal, D.B. reached into S.M.’s pants and

       penetrated S.M.’s vagina with his finger. In addition, D.B. pulled down S.M.’s

       pants, turned her around, and forced her to bend over against one of the

       vehicles. D.B. tried to penetrate S.M.’s vagina with his penis; however, because

       S.M. tensed up, it made it difficult for D.B. to penetrate her vagina. At that

       point, D.B. spread S.M.’s vagina with his two fingers, and inserted his penis.

       D.B. succeeded in slightly penetrating S.M.’s vagina, by moving past her

       vaginal lips. That evening, S.M. texted D.B. that she did not want it to happen,

       reminded him that she had told him “no,” and told him that she could not even

       sit down because of the pain. Other than S.M.’s testimony, the State

       introduced corroborating evidence through Nurse Phillips, who conducted the

       sexual assault examination indicating redness and abrasions on S.M.’s vaginal

       walls which were consistent with non-consensual sex.


[17]   Upon review, we are satisfied that, in light of S.M.’s unequivocal testimony

       regarding her sexual encounter with D.B., and other corroborating evidence, we

       find that there is no substantial likelihood that the evidence of D.B.’s previous

       suspension in relation to a sexual harassment allegation contributed to his




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 8 of 9
       conviction. Accordingly, we conclude that the juvenile court did not abuse its

       discretion in admitting the impeachment evidence.


                                                CONCLUSION


[18]   Based on the foregoing, we find that the juvenile court properly admitted the

       impeachment evidence.


[19]   Affirmed.


[20]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016   Page 9 of 9
