Joseph K. Smith v. State of Indiana

FILED
Jan 30 2020, 8:40 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Joseph K. Smith, January 30, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1515
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Judge
Appellee-Plaintiff.
The Honorable Stanley Kroh,
Magistrate
Trial Court Cause No.
49G03-1808-F1-25558

Riley, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-1515 | January 30, 2020 Page 1 of 22
 STATEMENT OF THE CASE
[1] Appellant-Defendant, Joseph Smith (Smith), appeals following his conviction

for rape, a Level 1 felony, Ind. Code § 35-42-4-1(a)(1); criminal confinement, a

Level 5 felony, I.C. § 35-42-3-3(a); strangulation, a Level 6 felony, I.C. § 35-42-

2-9(c); and domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3(a)(1).

[2] We affirm.

ISSUES
[3] Smith presents two issues on appeal, which we restate as the following:

(1) Whether the trial court abused its discretion when it excluded
certain evidence, preventing Smith from exercising his right to
present a full defense; and

(2) Whether the trial court abused its discretion when it denied
Smith’s motion for mistrial.

FACTS AND PROCEDURAL HISTORY
[4] Smith and J.R. were romantically involved from 2013 to 2017 and have two

children together. In the summer of 2018, Smith contacted J.R. on social

media, and the two began exchanging messages. J.R. was dating Aaron Perry

(Perry) at the time. On July 31 and August 1, 2018, J.R. and Smith continued

to message each other, and J.R. spent time with Smith at the homes of mutual

friends.

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[5] On August 2, 2018, Smith texted J.R. asking for a ride from a home in the 600

block of North Linwood Avenue in Indianapolis, Indiana. J.R. had been

wearing pants but assented to Smith’s request that she wear a dress when she

picked him up. When J.R. arrived at the home on Linwood, Smith approached

from an alley and got into J.R.’s vehicle. Smith had a red book bag with him.

Smith directed J.R. to pull around the back of the home into the alley. When

J.R. asked why, Smith retrieved a knife-like letter opener from his book bag,

showed it to J.R., and told her she “was either going to give him what he

wanted, or he was going to take it from [her].” (Transcript Vol. III, p. 25). J.R.

believed that Smith would stab her if she did not comply, so she pulled her

vehicle into the alley, parked, and turned off the motor as Smith instructed.

[6] Smith replaced the letter opener in his book bag and took out a small clamp, an

eyeglasses lanyard, and Velcro handcuffs. Smith repeatedly told J.R. that, if she

did not give him what he wanted, he would take it. J.R. told Smith that she did

not want to have any sexual contact with him, which made Smith angry. Smith

pulled down the top of J.R.’s dress, exposing her right breast. Smith placed the

small clamp on J.R.’s nipple, removed the clamp, and placed his mouth on

J.R.’s breast. Smith pushed aside J.R.’s underwear and placed his fingers

within her vagina. After discovering there was not adequate room in the back

seat for them, Smith exited the vehicle, opened the driver’s side door, and

placed the eyeglasses lanyard around J.R.’s neck. Smith tightened the lanyard

to the extent that J.R. could not breathe and began to lose consciousness.

While strangling J.R., Smith used his free hand to digitally penetrate J.R.’s

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 vagina. J.R. tried to push him away, and Smith eventually released the

lanyard. Smith next had J.R. position herself on her hands and knees in the

front seat and placed his mouth on her vagina. J.R. succeeded in pushing

Smith away. J.R. cried and asked Smith why he was doing these things. Smith

replied that J.R. “deserved everything [she] got.” (Tr. Vol. III, p. 33). J.R. did

not desire to engage in any of this physical contact with Smith and told him

repeatedly to stop.

[7] By this time J.R. was hyperventilating, and Smith began to cry as well. Smith

got back into the passenger side seat and replaced all his belongings, apart from

the lanyard, in his book bag. Because she was scared and did not know how

else to get Smith out of her car, J.R. complied with Smith’s request that she take

him to purchase a beverage and leave him at a nearby plasma donation center.

Before going into the donation center, Smith informed J.R. that he would tell

Perry about their contact and took a photograph of J.R. in her car as proof.

J.R. immediately deleted from her phone all the messages she and Smith had

exchanged.

[8] Around 2:00 p.m., J.R. messaged her friend Emily Nixon (Nixon), asking

Nixon to call her and providing her new telephone number. Nixon

immediately telephoned, and J.R. reported that she had met with Smith and

had been hurt. J.R. seemed panicked, was emotional, and had labored

breathing. J.R. was by herself when she spoke with Nixon. Nixon told J.R. to

contact the police, but J.R. declined. After Nixon hung up with J.R., she

telephoned Perry, thinking that he might arrive more quickly at J.R.’s home

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 than Nixon herself could. Nixon reached Perry at his place of business, and he

left work immediately after she called. Nixon also left work and proceeded to

J.R.’s home, calling 9-1-1 on the way.

[9] When Nixon arrived at J.R.’s home approximately fifteen minutes later, J.R.

was still alone and upset. Shortly thereafter, Perry arrived. Perry remained at

the door of J.R.’s home as he was told what had happened. Perry became upset

and left before the police arrived. Nixon and J.R. both gave statements to the

police. At 4:56 p.m. J.R. messaged Smith attempting to determine whether he

was still at the plasma donation center. During the course of their messaging,

J.R. told Smith she needed to speak with him “[‘c]ause what you did was

fucked up,” to which Smith replied, “What I’m about to do is even worse[.]”

(Exh. 8, Exh. Vol. I, p. 16). The police remained at J.R.’s home until Nixon

drove J.R. to the hospital around 6:00 p.m. for a forensic examination.

[10] Nurse Nakia Bowens (Nurse Bowens) performed a sexual assault examination

on J.R. which revealed vein engorgement in the whites of J.R.’s eyes, redness

on the tops of her ears and behind her left ear, and a linear red mark on the left

side of her neck, all of which were consistent with strangulation by ligature.

J.R. also had some redness in her vaginal area where the vestibule and labia

majora met, which was consistent with vaginal digital penetration. The Post-

Assault Sexual History portion of the medical records generated as a result of

J.R.’s examination indicated as follows: “Patient states she engaged in the

consensual sexual acts: Positive for Sexual Contact, anal sex, vaginal sex and

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 oral sex post-assault with ejaculation” with Perry. (Def.’s Hrg. Exh. A, Exh.

Vol. I, p. 118).

[11] Shortly after he messaged with J.R. after the offenses, investigators found

Smith, who was still at the plasma donation center. Smith gave investigators a

statement. Smith acknowledged being with J.R. that afternoon but denied

touching J.R. in any manner. Smith also reported that he had retrieved a pair

of scissors for J.R. while he and J.R. were together that day in a house.

[12] On August 6, 2018, the State filed an Information, charging Smith with two

Counts of rape as Level 1 felonies for the two instances of digital penetration

while armed with a deadly weapon, one Count of criminal confinement

elevated to a Level 3 felony for Smith’s use of a deadly weapon, one Count of

criminal confinement as a Level 5 felony for confining J.R. in her vehicle,

strangulation, battery resulting in bodily injury, domestic battery, possession of

marijuana, and possession of paraphernalia. 1 On May 2, 2019, Smith filed a

motion seeking a preliminary ruling on the admissibility of the Post-Assault

Sexual History portion of J.R.’s medical records. Smith argued that this

evidence was admissible under Indiana Evidence Rule 412 to show that J.R.’s

injuries were caused by someone else and that its admission was necessary for

his constitutionally-protected right to present a defense.

1
The trial court granted the State’s pre-trial motion to dismiss the possession of marijuana and paraphernalia
charges.

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[13] On May 21, 2019, the trial court held a hearing on Smith’s motion. Prior to the

commencement of the hearing, the State represented to the trial court that,

because it could not be determined when J.R.’s vaginal injury occurred, it did

not intend to admit evidence of that injury or J.R.’s medical records at trial.

Smith argued that, if the State presented any evidence of injury to J.R., the

Post-Assault Sexual History evidence was relevant and admissible. Nixon

testified about the timeline of her contact with J.R. and Perry on August 2,

2018. Nixon specified that J.R. and Perry were never alone when Perry was

briefly at J.R.’s home that day, she was with J.R. the entire time apart from

when they gave their statements to the police, and Perry never returned to the

home. J.R. recounted her version of events. J.R. denied that she had post-

assault sexual contact with Perry, and she denied reporting that she had to

Nurse Bowen. J.R. testified that she had not had sex with Perry for four-to-five

days before the offenses, they did not engage in any rough sex or strangulation,

and that the injuries she had on August 2, 2018, were not the result of any

sexual contact she had with Perry.

[14] Nurse Bowens testified at the hearing that it was impossible to determine when

a particular vaginal injury had occurred. Nurse Bowens doubted the accuracy

of J.R.’s Post-Assault Sexual History as it appeared in the printout of J.R.’s

medical records. Nurse Bowen explained that, at the time of J.R.’s

examination, the hospital had recently converted to electronic charting. After

the switch, it was discovered that, at times, printouts of medical records did not

match the data that had been input on the electronic chart. One problem that

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 had been discovered was that sections of data were not printed. It had also

been discovered that data sometimes appeared in the wrong location in the

printout. As to J.R.’s medical records, a Pre-Assault Sexual History section

should have appeared in J.R.’s medical records, but it did not. At the very

least, the medical records should have shown ‘none’ under a Pre-Assault Sexual

History. According to Nurse Bowen, it was very possible that the information

appearing in J.R.’s Post-Assault Sexual History in her medical records was her

reported Pre-Assault Sexual History. However, Nurse Bowen had no

independent recollection of J.R.’s examination, and she did not know what J.R.

had actually reported.

[15] The trial court found that, although the medical records were an exception to

the hearsay rule, in light of Nurse Bowen’s testimony, it could not deem the

records at issue to be reliable. The trial court also found that, given the

timelines provided by J.R. and Nixon, there was no opportunity for any post-

assault sexual activity between J.R. and Perry. The trial court denied Smith’s

motion, finding the evidence to be inadmissible under Indiana Evidence Rules

412 and 403.

[16] On May 30, 2019, the trial court convened Smith’s two-day jury trial. Smith

moved the trial court for an order in limine prohibiting the State from admitting

J.R.’s medical records or evidence that J.R. had previously procured a

protective order against him. The prosecutor declared her intention not to seek

admission of the medical records and stated that she did not intend to bring up

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 the subject of the protective order. The trial court granted Smith’s motion in

limine.

[17] Nixon testified and was cross-examined about the fact that J.R. did not say

Smith had raped her when she initially spoke with Nixon on the telephone and

J.R. did not wish her to contact the police or Perry. J.R. testified about the

offenses. As the prosecutor questioned J.R. about why she had changed into a

dress that day before meeting Smith, J.R. responded:

Because in the messages that we were sending back and forth,
that’s one thing that he told me I had to do was put a dress on to
come see him or he was going to let my boyfriend know that me
and him had been in communication, which was against the
protective order that I had filed against him.

(Tr. Vol. III, p. 28). Smith immediately moved for a mistrial because J.R. had

violated the order in limine prohibiting the State from mentioning the protective

order. The trial court denied Smith’s mistrial motion, finding that J.R.’s

reference to the protective order was not precipitated intentionally by the State

and that the single brief reference did not place Smith in a position of grave

peril. The trial court offered Smith the option to strike J.R.’s testimony or to

have a curative instruction given to the jury to ignore J.R.’s testimony. Smith

declined those options because he felt that, since the instant offenses were

crimes of violence, he could no longer receive a fair trial. The prosecutor

represented to the trial court that she had instructed J.R. not to mention the

protective order, and the trial court requested that J.R. be re-instructed. No

other evidence of the protective order was admitted at trial. J.R. testified that

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 after the offenses, she had injuries to her neck which were photographed at the

hospital.

[18] Smith’s counsel cross-examined J.R. about the fact that Perry was her boyfriend

at the time, J.R. did not inform Perry that she had been in contact with Smith,

J.R. was worried about Perry finding out about her contact with Smith, and

J.R. believed that Perry would discontinue their relationship if he found out

about her contact with Smith. J.R. also testified on cross-examination that, at

the plasma donation center, Smith threatened to tell Perry about his contact

with J.R., she did not want Smith to send the photograph he took of her to

Perry, and that she had deleted the messages between her and Smith. In

response to Smith’s questions, J.R. confirmed that she had told Nixon not to

call Perry or the police, that Perry was indeed upset after he came to J.R.’s

home on the day of the offenses, and that, after talking to Perry, J.R. was

concerned that Perry would leave her.

[19] Smith testified that J.R. had agreed to have sex with him on August 2, 2018,

and that they met for that purpose. Smith denied removing the letter opener

from his book bag but stated that he had a pair of scissors that he took out of his

book bag while they were in the car in order to open a package of aspirin.

Smith testified that he had removed J.R.’s right breast from her dress, placed

the clamp and his mouth on J.R.’s nipple, touched the outside of her

underwear, and gently touched her vagina with his hand while he touched his

own genitals. According to Smith, the encounter was cut short when J.R.

decided to remain faithful to Perry. The prosecutor questioned Smith about the

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 discrepancies between his initial statement to police that he had not touched

J.R. that day and that he had retrieved the scissors for her in the house.

[20] During closing statements, Smith argued that J.R. reported the offenses because

she was ashamed that she had sex with Smith and feared that Smith would

inform Perry about it. Smith argued his theory that the contact that day was

consensual based on evidence the two had been communicating, J.R. changed

into a dress before meeting him, the claimed contact would have been difficult

to achieve without consent, J.R. had opportunity to leave or fight back but did

not, she drove Smith to purchase tea and then to the plasma donation center,

tried to cover up what had happened by deleting her messages with Smith, and

that she had told Nixon not to contact Perry or the police. Smith also pointed

out to the jury that the State had not presented any evidence of injury to J.R.’s

vagina from the alleged rape.

[21] The jury found Smith guilty on all charges. On June 11, 2019, the trial court

vacated one of Smith’s rape convictions, his Level 5 felony criminal

confinement conviction, and his domestic battery conviction due to double

jeopardy concerns. The trial court also entered judgment on the remaining

criminal confinement conviction as a Level 5 felony because the rape offense

entailed the use of the same deadly weapon to elevate it to a Level 1 felony.

The trial court sentenced Smith to an aggregate sentence of thirty years, with

eight years suspended to probation.

[22] Smith now appeals. Additional facts will be provided as necessary.

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 DISCUSSION AND DECISION
I. Exclusion of Evidence

[23] Smith contends that the trial court erred when it excluded J.R.’s Post-Assault

Sexual History from the evidence. Our standard of review of a trial court’s

exclusion of evidence is well-settled: We review it only for an abuse of

discretion. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). An abuse of

discretion occurs when the trial court’s ruling is clearly against the logic and

effect of the facts and circumstances before it. Blount v. State, 22 N.E.3d 559,

564 (Ind. 2014).

A. Indiana Evidence Rule 412

[24] Smith sought to have J.R.’s Post-Assault Sexual History admitted pursuant to

Indiana Evidence Rule 412, commonly referred to as the Rape Shield Rule.

Hall v. State, 36 N.E.3d 459, 463 (Ind. 2015). Rule 412 prohibits the admission

of any evidence offered to prove that a victim engaged in other sexual behavior

or to prove a victim’s sexual predisposition in a criminal proceeding involving

alleged sexual misconduct. Ind. Evidence Rule 412(a)(1)-(2). The purpose of

the Rule is to prevent the victim of a sexual assault from being placed on trial

and to remove impediments to reporting sex crimes. Conrad v. State, 938

N.E.2d 852, 855 (Ind. Ct. App. 2010). The Rule embodies Indiana’s Rape

Shield Statute, codified at Indiana Code section 35-37-4-4, which recognizes

that “inquiry into a victim’s [other] sexual activity is sufficiently problematic

that it should not be permitted to become the focus of the defense.” Williams v.

State, 681 N.E.2d 195, 200 (Ind. 1997).

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[25] However, Rule 412’s prohibition on evidence of the victim’s other sexual

behavior or predisposition is not absolute. The Rule provides exceptions in

relevant part as follows:

(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; [and]

****

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

Evid. R. 412(b)(1)(A), (C). In addition, even when evidence falls within one of

these exceptions and is admissible, it must still be relevant and admissible under

Evidence Rules 401 and 403. Williams, 681 N.E.2d at 200-01. Smith argues

that the evidence was admissible to foreclose “the possibility of him being the

cause of J.R.’s vaginal injury,” its exclusion deprived him of his constitutional

right to present a full defense, and that any irregularities present in J.R.’s

medical records went to its weight, not its admissibility. (Appellant’s Br. p. 20).

We address each of these arguments in turn.

B. Admission to Prove Vaginal Injury Caused by Someone Else

[26] Smith argues that the evidence was admissible to prove that J.R.’s slight vaginal

injury, as documented in her medical records, was caused by someone else.

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 This court examined a similar claim in the case of Pribie v. State, 46 N.E.3d

1241 (Ind. Ct. App. 2015), trans. denied. In Pribie, victim C.G. attended a house

party at Pribie’s home. Id. at 1244. C.G. became intoxicated, threw up, and

eventually fell asleep. Id. Pribie woke up C.G. seeking sex, but she refused. Id.

Pribie forced C.G. into his bedroom, penetrated her, but stopped when he heard

a voice coming from the living room. Id. at 1244-45. Another friend found

C.G. in Pribie’s bed and offered to call the police. Id. at 1245. C.G. declined

because she was on probation. Id. C.G. procured some clothing and got into

the bed of Pribie’s housemate, whom she had previously dated. Id. C.G. and

the housemate had sex. Id. at 1246.

[27] C.G. decided to press charges against Pribie and underwent a forensic sexual

assault examination at a hospital. Id. at 1245. Pribie’s DNA was not found,

but that of an unknown male was. Id. Pribie was charged with Class B felony

rape and at trial sought to introduce the evidence from the sexual assault

examination of the unknown male’s DNA. Id. at 1245-46. The trial court

found that the evidence was barred by Rule 412, but the jury was allowed to

hear that the sexual assault examination had not revealed the presence of

Pribie’s DNA. Id. The State relied only on C.G.’s testimony to convict Pribie.

Id. at 1248. It did not introduce any evidence of injury, DNA, or other physical

evidence that it claimed belonged to or was caused by Pribie. Id.

[28] On appeal, Pribie argued that the DNA evidence was admissible to show

someone other than he was the source of the male DNA. Id. In affirming the

trial court’s evidentiary ruling, this court disagreed, holding that
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 [t]he rule contemplates that if the State had presented the
unknown male DNA to the jury, Pribie then would have been
allowed to present evidence showing that the DNA came from
someone else. The same is true if the State had presented
evidence of injuries to C.G. to any other physical evidence of the
rape; the exception ensures a defendant’s ability to rebut any
inference that he was connected to such evidence.

Id. (emphasis in original). The court found that the exception allowing a

defendant to rebut physical evidence presupposes the admission of that

evidence and that the fact that the State did not rely on physical evidence to

convict Pribie meant that the exception did not apply. Id.

[29] The same is true here. Smith urges that the J.R.’s Post-Assault Sexual History

was relevant to prove that someone other than he caused the injury to J.R.’s

vagina. 2 However, the State did not introduce evidence of the injury to J.R.’s

vagina at trial, and, therefore, there was nothing for Smith to rebut with the

Post-Assault Sexual History evidence. Thus, the exception did not apply. Id.

C. Constitutional Right to a Defense

[30] Smith also argues that the evidence was admissible under the Rule’s exception

that provides for the admission of “evidence whose exclusion would violate the

defendant’s constitutional rights.” Evid. Rule 412(b)(1)(C). He further

2
Smith does not argue on appeal that the evidence was relevant to show that someone else caused the
injuries to J.R.’s head and neck, evidence of which was used by the State to convict him. Regardless, we
note that there was no evidence presented at the Rule 412 hearing or at trial linking the sexual acts listed in
J.R.’s Post-Assault Sexual History with injuries to the neck and head.

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 contends that the State’s failure to present evidence of J.R.’s vaginal injury

“concealed significant evidence from the jury” and infringed upon his

constitutionally-protected right to present a full defense. (Appellant’s Br. p. 14).

[31] Whether it is rooted directly in the Due Process Clause of the Fourteenth

Amendment or the Compulsory Process or Confrontation clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690

(1986). The admission of evidence showing that a victim had engaged in other

sexual behavior “may . . . be required when the trial court restricts a defendant

from giving his own account of the events at issue.” Williams, 681 N.E.2d at

201. However, although the right to present a defense is fundamental and of

the utmost importance, it is not absolute. Marley v. State, 747 N.E.2d 1123,

1132 (Ind. 2001). “‘[T]he accused, as is required by the State, must comply

with established rules of procedure and evidence designed to assure both

fairness and reliability in the ascertainment of guilt and innocence.’” Id.

(quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).

[32] Here, Smith’s theory at trial was that J.R. fabricated her rape claim because she

was ashamed she had consensual sex with Smith and was afraid that Perry

would find out what she had done. Smith developed this theory through a full

and extensive cross-examination of Nixon and J.R. about J.R.’s voluntary

contact with Smith prior to the offenses, her acquiescence to changing into a

dress before meeting him, her deletion of her text messages, her desire not to

alert the authorities or Perry after the offenses, and her fear that Smith would

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 tell Perry and Perry would leave her. Smith also testified at trial and provided

his version of events that were the basis of the charges against him. Smith was

also allowed to argue to the jury that the State had not presented any evidence

of injury to J.R.’s vagina. Therefore, Smith had every opportunity to develop

his own account of the events at issue. Smith was simply prevented from

presenting the jury with evidence of J.R.’s other sexual behavior which

allegedly occurred after the offenses and had nothing to do with the events

which formed the bases for the charges against him. Therefore, we conclude

that the evidence does not fall within the exception carved out by Rule

412(b)(1)(C).

[33] Nevertheless, Smith argues that the evidence was probative of his defense

theory because J.R. could have had sexual contact with Perry after the offenses

in order to prevent him from leaving her. However, the trial court found that

the evidence was inadmissible under Evidence Rule 403, which provides that

even relevant evidence may be excluded if its probative value is substantially

outweighed by a danger of unfair prejudice, confusing the issues, or misleading

the jury. We agree with the trial court. Even if the evidence was probative of

Smith’s defense, its probative value was greatly outweighed by the increased

chance that J.R.’s sexuality would be put on trial and become the focus of the

defense, which is precisely what Rule 412 is meant to prohibit. See Conrad, 938

N.E.2d at 855; see also Williams, 681 N.E.2d at 200 (affirming exclusion of

evidence that would have shifted jury’s attention away from the defendant’s

actions to those of the victim). Because Smith’s constitutional right to present a

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 defense was still required to comport with the Rules of Evidence and the

evidence was inadmissible under Rule 403, we conclude that his right to present

a defense was not unfairly curtailed. Marley, 747 N.E.2d at 1132.

D. Irregularities in the Medical Records

[34] Smith does not address the trial court’s ruling on the admissibility of the

evidence under Rule 403, but he argues that the trial court erred when it

determined that, in light of the Nurse Bowen’s testimony about the mistakes

found in the hospital’s medical records after it changed to electronic charting,

the medical record evidence was so unreliable as to be inadmissible. Smith

contends that any irregularities in the medical records went to the weight they

could be afforded by the jury, not to their admissibility.

[35] We will not reverse a trial court’s evidentiary ruling if it is sustainable on any

ground. Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002). Assuming, without

deciding, that Smith is correct, we affirm the trial court’s exclusion of the

evidence on the additional ground, which Smith does not challenge on appeal,

that it was inadmissible under Rule 403. See Pribie, 46 N.E. at 1250 (concluding

that the Rule 412 evidence at issue was excludable under Rule 403 alone).

Finding no abuse of the trial court’s discretion in excluding J.R.’s Post-Assault

Sexual History, we affirm the trial court’s evidentiary ruling.

II. Mistrial

[36] Smith next argues that the trial court abused its discretion when it denied his

motion for mistrial after J.R. testified in violation of the order in limine that she

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 had previously obtained a protective order against him. “A mistrial is an

extreme remedy invoked only when no other curative measure can rectify the

situation.” Hollowell v. State, 707 N.E.2d 1014, 1024 (Ind. Ct. App. 1999). We

review a trial court’s denial of a motion for mistrial only for an abuse of

discretion, and its decision is afforded great deference on appeal because the

trial court is in the best position to assess all of the circumstances and their

impact on the jury. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). A

mistrial is appropriate only where the questioned conduct is so prejudicial and

inflammatory that the defendant was placed in a position of grave peril to

which he should not have been subjected. Pittman v. State, 885 N.E.2d 1246,

1255 (Ind. 2008). The gravity of the peril to the defendant is measured by the

conduct’s probable persuasive effect on the jury. Id.

A. Waiver

[37] As a threshold issue, we address the State’s argument that Smith waived his

claim when he declined the trial court’s offer to strike or to give an

admonishment to the jury to ignore J.R.’s reference to the protective order.

Citing Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001), and Boyd v. State, 430

N.E.2d 1146, 1149 (Ind. 1982), the State argues that refusing a trial court’s offer

of an admonishment to the jury results in waiver of a mistrial claim. Our

supreme court has more recently clarified, however, that waiver of a mistrial

claim “occurs where there was neither a request for admonishment nor a

motion for mistrial.” Isom v. State, 31 N.E.3d 469, 482 (Ind. 2015). Where a

defendant has moved for a mistrial, the claim is not waived. See id. (finding no

Court of Appeals of Indiana | Opinion 19A-CR-1515 | January 30, 2020 Page 19 of 22
 waiver where Isom moved for a mistrial and proceeding to the merits of Isom’s

mistrial claim).

[38] Immediately after J.R. referred to the protective order, Smith moved for a

mistrial. Although Smith declined the trial court’s offer to strike or admonish,

following Isom, he did not waive his mistrial claim. Id. Therefore, we shall

address the merits of Smith’s claim. Id.

B. Grave Peril

[39] Smith argues that he was placed in a position of grave peril by J.R.’s reference

to the protective order. Smith contends that this was essentially a credibility

case and the reference painted him as “either a violent person or a stalker.”

(Appellant’s Br. p. 25). He also argues that J.R.’s statement was made early in

a relatively short trial, giving it great impact with the jury.

[40] Prior to the commencement of trial, the State had instructed J.R., who was a

civilian witness, not to mention the protective order. There was no indication

in the record that this reference was anything other than a mistake on J.R.’s

part. There was no other evidence of the protective order introduced at trial,

and the State did not mention it in its closing argument to the jury. These

circumstances indicate that a mistrial was not warranted. See Lucio v. State, 907

N.E.2d 1008, 1011 (Ind. 2009) (upholding trial court’s denial of a mistrial

motion despite witness’s reference to Lucio being jailed in the past, in part

because the reference was a mistake by a civilian witness, no other witness

testified to it, and the State did not argue it at the close of trial).

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[41] In addition, J.R. gave a detailed account of the offenses, and her testimony

regarding the strangulation, which Smith did not admit he had engaged in, was

corroborated by physical evidence of the injuries J.R. sustained and the lanyard

found in J.R.’s car. The State presented the messages between J.R. and Smith

after the offenses which included an implicit admission on Smith’s part that he

had harmed her. The State also impeached Smith about the fact that he initially

denied touching J.R. at all and about his shifting accounts regarding the scissors

he had with him that day. Given that this was an isolated reference which took

place during a two-day trial, the other evidence of Smith’s guilt, some of which

was corroborated by physical evidence, and the State’s effective cross-

examination of Smith, we conclude that J.R.’s reference to the protective order

probably had very little persuasive effect on the jury. This is particularly true

given that the reference was made in the context of J.R.’s testimony that she

had engaged in voluntary contact with Smith several times in the days prior to

August 2, 2018, which indicated to the jury that she was not afraid of Smith in

spite of the protective order. Accordingly, we find no abuse of discretion on the

part of the trial court in denying Smith’s motion for mistrial. See Mickens, 742

N.E.2d at 929.

CONCLUSION
[42] Based on the foregoing, we conclude that the trial court did not abuse its

discretion when it excluded evidence of J.R.’s Post-Assault Sexual History or

when it denied Smith’s motion for mistrial.

[43] Affirmed.
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[44] Baker, J. and Brown, J. concur

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