Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of Jan 11 2012, 9:15 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS McMATH GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DIYON EVANS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1104-CR-227
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
Cause No. 49G06-0906-FB-53420
January 11, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Diyon Evans appeals his convictions for Rape,1 a class B
felony, and Criminal Deviate Conduct,2 a class B felony, alleging that the trial court
erroneously admitted hearsay testimony and that the evidence is insufficient to support
the convictions. Specifically, Evans argues that the victim’s statements to her sister and
sexual assault examiner were improperly admitted into evidence as exceptions to the
hearsay rule. He also argues that the evidence was insufficient to show that the victim
was compelled to submit to sexual conduct by force or threat of force. Finding no error
and concluding that the evidence was sufficient, we affirm.
FACTS
In April 2009, A.K. was a 37-year-old resident at Eagle Valley Meadows, a long-
term care facility in Indianapolis. A.K.’s family had placed her in the facility after she
suffered a ruptured brain aneurysm that left her severely physically handicapped and
unable to care for herself. She breathes through a tracheotomy tube and is fed through a
tube. Although A.K. has feeling in her limbs, she maintains only a slight ability to move
her left hand. The aneurysm did not affect her cognitive functions, and she
communicates through hand gestures to indicate “yes” and “no” using her left hand.
A.K.’s sister, M.K., visited A.K. at the facility every day.
On April 7, 2009, Evans was working as a Certified Nursing Assistant at the
facility. He was assigned to take care of A.K., which included bathing her. At
1
Ind. Code § 35-42-4-1.
2
I.C. § 35-42-4-2.
2
approximately 9:00 a.m., Evans entered her room and remained inside with the door
closed for twenty to thirty minutes. A.K. did not have a roommate, and no one else was
in the room while the door was closed.
When M.K. arrived at the facility later that day, A.K. immediately began crying
when she saw M.K. M.K. described the crying as “terrifying.” Tr. p. 227. This was not
the first time that M.K had seen A.K. cry, but because of the nature of her crying, M.K.
suspected that something terrible had happened. M.K. asked A.K. a series of
investigative questions to deduce what was wrong, beginning with whether her head hurt.
A.K. gestured “no” to each of those questions. Id. at 226-27. Then, not believing it to be
a serious question, M.K. asked A.K. if she had been raped. A.K. began to cry harder and
gestured “yes.” Id. at 227.-28. M.K. further questioned her sister, and A.K. signaled
“yes” when asked whether it was one of her caretakers and whether that person was a
man. A.K. also indicated she had been touched in her vagina and “butt” and gestured
“yes” when asked whether the person had put his penis into her vagina and “butt.” Id. at
231, 234-35.
M.K. then reported the information to the on-duty nurse, who subsequently
reported the information at around 5:00 p.m. to Linda Wilkinson, a health care
administrator at Eagle Valley Meadows. Upon learning of the rape, Wilkinson
determined that only two male nurses were working in A.K.’s hallway that day, one
being Evans. Wilkinson presented the other male nurse to A.K., and A.K. signaled “no”
and smiled. Id. at 65. Wilkinson reviewed the facility’s security camera video and
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observed that Evans was the only male in A.K.’s room earlier in the day with the door
closed. Wilkinson then called the police.
Around 8:00 p.m., A.K. was taken to Methodist Hospital, where she was examined
by Joyce Fuss, a registered nurse and sexual assault nurse examiner. Fuss asked A.K. a
number of “yes” or “no” questions. When asked whether she was penetrated vaginally
and rectally, she responded “yes.” Id. at 102-05. Fuss examined A.K. and observed
injuries to A.K.’s posterior fourchette, the thin piece of skin below the vaginal opening,
and a rectal tear. Because of the rectal tearing, A.K. was prescribed an anti-viral
medication. Fuss collected swabs of A.K.’s vagina and the adult diaper she was wearing
for testing. Seminal fluid, including sperm, was found on the external genital swab and
on the adult diaper. The DNA profile of the sperm cells on the external genital swab
matched that of Evans to “a reasonable degree of scientific certainty” or “one in 6
sixtillion” African Americans. Id. at 173-74.
On April 10, 2009, Indianapolis Metropolitan Police Department Detective Kevin
Lauerman interviewed Evans. Evans admitted to being in A.K.’s room for twenty to
thirty minutes on April 7, but claimed he only bathed her. On June 3, 2009, Detective
Lauerman obtained an arrest warrant for Evans, called Evans on the phone, and arranged
to meet with Evans at Evans’s home later that day. When he arrived, Evans was no
longer there, and he was unable to locate Evans for several days. On June 8,, 2009, Evans
was arrested in Alabama.
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On June 3, 2009, the State charged Evans with rape, a class B felony, criminal
deviate conduct, a class B felony, and sexual battery, as a class D felony.
At trial, the State called Fuss and M.K. to testify. Fuss testified that, when asked
where she felt pain, A.K. pointed toward her pelvic area. Fuss further testified that A.K.
answered “yes” to questions inquiring whether her vagina was penetrated, whether a
penis had penetrated her vaginally, and whether her rectum was penetrated by a penis.
Evans raised a hearsay objection to the testimony that A.K. said her vagina was
penetrated. The trial court overruled the objection after the prosecutor argued that the
statement was an exception to the hearsay rule because it was made for the purpose of
medical diagnosis and treatment. Evans did not object to any of the other statements.
Fuss also testified that she observed injuries to A.K.’s vagina and rectum consistent with
sexual assault and blunt force trauma.
While M.K. was testifying about what A.K. had told her on April 7, the trial court
interrupted the testimony to ask defense counsel whether he had a strategic reason for not
objecting to the hearsay testimony. Evans never objected, but instead answered in the
affirmative when the trial court asked whether he would like for the trial court to
admonish the jury that M.K.’s statements were not being offered to prove the truth of the
matter asserted. The trial court, however, made no such admonishment because,
following argument during jury instructions, the trial court determined that A.K.’s
statements to her sister qualified as excited utterances and an exception to the hearsay
rule under Indiana Rule of Evidence 803(2).
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A.K. was brought to court and testified using her “yes” and “no” hand gestures.
When asked, “The boy who took care of you, did you see him in court? Can you point to
him?” Tr. p. 278. A.K. made a deliberate pointing motion to her left with her pointer
finger extended. Video of Trial Test. of A.K. The State asked for the record to reflect
that the witness identified Evans, but the trial court left it to the jurors to draw their own
conclusion as to whether A.K. pointed to Evans.3 Id. at 279. Then, A.K. testified that the
“boy who took care of [her],” touched her in a way she did not like and put his penis into
her vagina. Id. She also answered “yes” when asked whether she “told M.K. the truth.”
Id. at 278-82.
The jury found Evans guilty as charged. The trial court merged the sexual battery
count into the other counts in light of double jeopardy concerns and entered a sentence on
the remaining two convictions. Evans now appeals.
DISCUSSION AND DECISION
I. Hearsay
Evans argues that the trial court erred when it admitted certain testimony into
evidence as exceptions to the hearsay rule. The admission and exclusion of evidence is a
matter within the sound discretion of the trial court, and we will review only for an abuse
of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs when the trial court’s ruling is clearly against the logic, facts, and
3
When the State asked the trial court to have the record reflect that A.K. identified Evans, Evans objected
to the identification. The trial court stated, “All right. We’ll let the record speak for itself since its being
video recorded and the jurors can draw their own conclusions. And the record being made by this video.”
Tr. p. 279.
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circumstances presented. Parts v. State, 899 N.E.2d 714, 719 (Ind. Ct. App. 2009). If a
trial court abuses its discretion by admitting the challenged evidence, we will only
reverse if the error is inconsistent with substantial justice or if a substantial right of the
party is affected. In re S.W., 920 N.E.2d 783, 788 (Ind. Ct. App. 2010). Moreover, any
error caused by the admission of evidence is harmless error, for which we will not
reverse, if the erroneously admitted evidence was cumulative of other evidence properly
admitted. Id.
A. Statements to M.K.
Evans challenges the trial court’s admission of A.K.’s statements to her sister
pursuant to the excited utterance exception to the hearsay rule contained in Indiana
Evidence Rule 803(2). Specifically, Evans argues that A.K.’s statements to her sister are
not properly excited utterances because the State failed to present a clear record of the
amount of time that elapsed between the rape and when A.K. reported the rape to M.K.
Initially, we note that Evans concedes that he has waived the issue, inasmuch as
defense counsel failed to object to M.K.’s testimony. See Brown v. State, 783 N.E.2d
1121, 1125 (Ind. 2003) (holding that a contemporaneous objection at the time evidence is
introduced at trial is required to preserve the issue for review). Accordingly, Evans
attempts to circumvent waiver by alleging fundamental error. To be fundamental error,
an error must “constitute a blatant violation of basic principles, the harm or potential for
harm must be substantial, and the resulting error must deny the defendant fundamental
due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). In other words,
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fundamental error is defined as an error so prejudicial to the rights of a defendant that a
fair trial is rendered impossible. Id.
Hearsay is a statement, other than one made by the declarant while testifying at
trial, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule
801(c). Hearsay is inadmissible unless admitted pursuant to a recognized exception. Ind.
Evidence Rule 802. In order for a hearsay statement to be admitted as an excited
utterance, three elements must be present: (1) a startling event has occurred; (2) a
statement made by a declarant while under the stress of excitement caused by the event;
and (3) the statement relates to the event. Jones v. State, 800 N.E.2d 624, 627-28 (Ind.
Ct. App. 2003). Application of this rule is not mechanical and admissibility should
generally be determined on a case-by-case basis. Palacios v. State, 926 N.E.2d 1026,
1031 (Ind. Ct. App. 2010). The heart of the inquiry is whether the statement is inherently
reliable because the declarant was incapable of thoughtful reflection. Id. Although
relevant, the amount of time that has passed between the event and the statement is not
dispositive; rather, the focus is on whether the declarant was still under the stress of
excitement caused by the startling event when she made the statement. Mathis v. State,
859 N.E.2d 1275, 1279 (Ind. Ct. App. 2007).
Here, the record reveals that Evans was in A.K.’s room with the door closed from
approximately 9:00 to 9:30 a.m. M.K. testified that, when she arrived and A.K. told M.K
she had been raped, she immediately reported that information to the on-duty nurse, who
recalled talking to M.K. sometime around 5:00 p.m. Although the time between the
8
incident and A.K.’s statements to M.K. may have been in upwards of seven hours, it is
certainly conceivable that A.K.’s physical limitations prolonged the stress of the rape
committed by her caretaker. Unable to talk, A.K. could not communicate to anyone
about what had occurred until her sister arrived. Unable to move, she remained in the
same bed where she had been raped. When she made the statements to her sister, A.K.’s
crying was “terrifying.” Tr. p. 227. Under these facts and circumstances, the trial court
could reasonably conclude that, despite the elapsed time, A.K.’s statements to M.K. were
made while she was under the continuing stress of excitement caused by the rape.
Therefore, the trial court did not commit error, let alone fundamental error, in admitting
A.K.’s statement under the excited utterance exception to the hearsay rule.
B. Statements to Sexual Assault Nurse Examiner
Evans next contends that the trial court erred when it admitted A.K.’s statements
to sexual assault nurse examiner Fuss as statements for the purpose of medical diagnosis
or treatment under Indiana Evidence Rule 803(4). Evans only objected to the admission
of A.K.’s statement to Fuss that she was vaginally penetrated. He concedes that he failed
to object specifically to her statement that she was rectally penetrated, and, like before, to
the extent that he may have waived appellate review for failure to object, Evans argues
fundamental error.
As we noted above, fundamental error is available only in cases of a “clearly
blatant violation of basic and elementary principles, where the harm or potential for harm
9
cannot be denied.” Mathews v. State, 849 N.E.2d at 587. This exception is available only
in “egregious circumstances.” Delarosa v. State, 938 N.E.2d 690, 694-95 (Ind. 2010).
We need not decide whether A.K.’s statements to Fuss were for the purposes of
medical diagnosis or treatment and subject to an exception under the hearsay rule because
the erroneous admission of inadmissible hearsay will not be cause for reversal if the
evidence is merely cumulative in nature of other evidence that has been properly
admitted. Weinberger v. Boyer, 956 N.E.2d 1095, 1106-07 (Ind. Ct. App. 2011). And
here, Fuss’s testimony is cumulative of A.K.’s unchallenged testimony and of M.K.’s
testimony deemed admissible above. More particularly, Fuss testified that, during the
examination at the hospital, A.K. stated that she was feeling pain in her pelvic area and
indicated that her vagina had been penetrated, that it was penetrated by a penis, and that
her rectum was penetrated by a penis. Tr. p. 102-05. A.K. testified in court that Evans
touched her in a way she did not like and put his penis inside her vagina. Id. at 278-79,
281-82, 284. M.K. testified that A.K. signaled “yes” when asked whether it was one of
her caretakers and whether that person was a man. Id. at 228. A.K. also indicated she
had been touched in her vagina and “butt” and gestured “yes” when asked whether the
person had put his penis into her vagina and “butt.” Id. at 231, 234-35. Thus, even
assuming that A.K.’s statements to Fuss are inadmissible hearsay, those statements were
merely cumulative of the other evidence that was properly admitted.
In addition to the above, the State established that Evans was the only male to
enter A.K.’s room and close the door that day. Id. at 67-68. Fuss found injuries to both
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A.K.’s vagina and rectum that were consistent with blunt force trauma and sexual assault.
Id. at 106-07. Forensic testing revealed seminal material and sperm on A.K.’s external
genital swab, and the sperm cells in the external swab matched Evan’s DNA profile to a
reasonable degree of scientific certainty. Id. at 139, 172-74, 553-56.
In light of this evidence, even if we were to conclude that A.K.’s statements to
Fuss were inadmissible hearsay, the remaining evidence of Evans’s guilt was
overwhelming and any error in admitting the statements that A.K. made to Fuss into
evidence at trial was harmless error.
II. Sufficiency of the Evidence
Evans argues that there was insufficient evidence to support his convictions for
rape and criminal deviate conduct. Specifically, Evans contends that the State failed to
present evidence that the A.K. was compelled to submit to rape or criminal deviate
conduct by force or the threat of force.
When reviewing the sufficiency of the evidence, we neither reweigh the evidence
nor judge the credibility of witnesses. Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct.
App. 2007). We consider only the evidence favorable to the verdict and the inference
therefrom. Id. Reversal is appropriate only when reasonable persons would not be able
to form inferences as to each material element of the offense. Id.
To convict Evans of rape, the State was required to prove beyond a reasonable
doubt that Evans knowingly or intentionally had sexual intercourse with A.K. when A.K.
was compelled by force or imminent threat of force. Ind. Code § 35-42-4-1(a). To
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convict Evans of criminal deviate conduct, the State was required to prove beyond a
reasonable doubt that Evans knowingly or intentionally caused A.K. to perform or submit
to deviate sexual conduct when A.K. was compelled by force or imminent threat of force.
I.C. § 35-42-4-2(a). Deviate sexual conduct is defined in relevant part as an act involving
a sex organ of one person and the mouth or anus of another person. I.C. § 35-41-1-9(1).
Evans’s sole challenge is that the State failed to present sufficient evidence to
prove that A.K. was compelled to submit to the sexual conduct by force or threat of force.
In fact, he argues that there is no evidence that force or threat of force was utilized as
“force or threat of force was not necessary to compel A.K. to submit to the conduct
because she physically had no choice but to submit.” Appellant’s Br. p. 13. Evans also
insinuates that the rape and criminal deviate conduct statutes afford A.K. no protection
because A.K., having the mental capacity to consent, must have verbally or physically
manifested signs of resistance. Appellant’s Br. p. 14-15.
Contrary to Evans’s assertions, compulsion by force or the threat of force is
determined in light of the victim’s perspective. Filice v. State, 886 N.E.2d 24, 37 (Ind.
Ct. App. 2008). Thus, the issue is whether the victim perceived the aggressor’s force or
imminent threat of force as compelling her compliance. Id. The force need not be
physical or violent, and the forcible compulsion may be inferred from the circumstances.
Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008). Circumstances that render
resistance impossible or unreasonable render issues of resistance moot; in other words,
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that submission was compelled may be shown by evidence other than acts of resistance.
Woodson v. State, 483 N.E.2d 62, 64 (Ind. 1985).
Here, A.K., because of her condition, was unable to physically or verbally resist.
At trial, she testified that the “boy who took care of [her],” tr. p. 279, touched her in a
way she did not like and put his penis into her vagina. Id. at 281. M.K. testified as to
A.K.’s excited utterances that she had been touched in the “butt” and vagina. Id. at 227-
31, 234-35. Fuss presented evidence of injuries to A.K.’s vagina and a rectal tear, both
consistent with sexual assault and blunt force trauma. Id. at 106-07. In short, Evans’s
argument that this State’s rape and criminal deviate conduct statutes offer no protection
to those with physical limitations such that they cannot resist are without merit and
unavailing. Therefore, we conclude that the evidence is sufficient to show forcible
compulsion in accordance Indiana Code sections 35-42-4-1(a) and 2(a) and support
Evans’s convictions for rape and criminal deviate conduct.
The judgment of the trial court is affirmed.
DARDEN, J., and BAILEY, J., concur.
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