John Barnhart v. State of Indiana

15 N.E.3d 138, 2014 Ind. App. LEXIS 412, 2014 WL 4181706
CourtIndiana Court of Appeals
DecidedAugust 25, 2014
Docket57A04-1312-CR-601
StatusPublished
Cited by18 cases

This text of 15 N.E.3d 138 (John Barnhart v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Barnhart v. State of Indiana, 15 N.E.3d 138, 2014 Ind. App. LEXIS 412, 2014 WL 4181706 (Ind. Ct. App. 2014).

Opinion

OPINION

BROWN, Judge.

John Barnhart appeals his convictions and sentence for two counts of child molesting as class A felonies and one count of possession of marijuana as a class A misdemeanor. Barnhart raises two issues which we revise and restate as follows:

I. Whether the trial court abused its discretion by excluding evidence that the victim submitted to a urine drug screen and that the results were negative; and
II. Whether the trial court abused its discretion in sentencing him.

We affirm.

FACTS AND PROCEDURAL HISTORY

Jessica Jordan moved to Indiana in December 2010. Jordan’s daughter, I.S., who was born on June 24, 1999, moved in with Jordan sometime between December 25, 2010, and the first week of January 2011. Barnhart and Jordan had been together since the end of August 2008, and he and his two daughters moved in with Jordan and her children. Barnhart was unemployed, and Jordan worked nights. Jordan and Barnhart shared the smaller of the two bedrooms in the apartment, while Barnhart’s daughters slept in a bunk bed in the master bedroom, and I.S. slept on a mattress on the floor of the walk-in closet in the master bedroom. During this time frame, I.S. sometimes saw Barnhart smoke marijuana using a blue and orange pipe.

On April 20, 2011, Jordan, I.S., Barn-hart, and one of Barnhart’s daughters attended a wedding in Ohio and returned to Indiana shortly before Jordan was scheduled to work. That evening, while Jordan was at work, Barnhart went into the closet of the bedroom where I.S. was sleeping, woke her up, and started touching her. Specifically, Barnhart rubbed his penis up and down on her vagina, and his penis entered the outer and inner lips of her vagina. Barnhart tried to “stick [his penis] in” her, and she screamed because it hurt. Transcript at 151. Barnhart also touched I.S.’s vagina with his tongue. Barnhart had an erection during the incident, and a white substance came out of Barnhart’s penis and ended up on I.S.’s bed and leg.

That weekend, I.S. visited her grandmother, Angela Dreher, in Ohio. While there, I.S. took a walk with her aunts, who were Dreher’s daughters, and when they all returned, Dreher’s daughters told Dre-her that I.S. had disclosed information about Barnhart. Dreher spoke with I.S., and after asking her what happened, and listening to I.S.’s answers, Dreher called the Sheriffs Department. Later, the Ken-dallville Police contacted Dreher to arrange an interview of I.S. by Beth Donovan of the Noble County Department of Child Services.

Detective Sergeant Lance Waters of the Kendallville Police Department observed the interview with I.S., which led him to obtain a search warrant for the home where I.S. lived. On April 28, 2011, the police executed the search warrant and discovered marijuana where I.S. had said it would be found, and the orange and blue pipe described by I.S. Police also collected the bed sheets and blankets from I.S.’s bed.

Detective Waters interviewed Barnhart, and Barnhart admitted to owning the mar *141 ijuana and pipe that was recovered. Barn-hart referred to I.S. as “that girl,” which Detective Waters found significant, as it indicated an indifference towards I.S. on Barnhart’s part. Id. at 192. Barnhart also told Detective Waters that none of his bodily fluids would be found on that sheet and that he never lay on that bed because that had always been i.S.’s bed. The police tested the bed sheets for DNA to compare with samples taken from both I.S. and Barnhart. The bed sheet contained both I.S.’s and Barnhart’s genetic material on it and seminal fluid that matched Barn-hart’s DNA.

On April 29, 2011, the State charged Barnhart with Count I, child molesting as a class A felony for licking I.S.’s vagina with his tongue; Count II, child molesting as a class A felony for penetrating I.S.’s vagina with his penis; Count III, possession of marijuana as a class A misdemeanor; and Count IV, contributing to the delinquency of a minor as a class A misdemeanor alleging that Barnhart provided I.S. marijuana.

On May 4, 2011, Joyce Moss, a registered nurse at the Fort Wayne Sexual Assault Treatment Center, interviewed and examined I.S. During the examination, I.S. told Moss that Barnhart’s “pee pee touched [her] pussy,” that she did not like it, and that he “licked [her] on [her] pussy, it was gross, [and] it hurt because he had a mustache.” Id. at 222.

On February 22, 2013, Barnhart filed a motion in limine requesting that the State be prevented from presenting any evidence of any alleged prior sexual allegations of I.S. that had not been charged. The court granted this motion on October 22, 2013.

On October 29, 2013, the State filed a motion in limine requesting that the court exclude evidence of a drug screen administered to I.S. on the basis that the only available avenue to the defense to introduce such evidence was via hearsay, the test did not meet the scientific reliability standards set forth in Daubert, no witness qualified to address the issue of scientific reliability, and the admission would unnecessarily confuse the jury. Prior to trial, the court and parties discussed the State’s motion in limine, and Barnhart’s counsel argued that the evidence should be admitted. The court granted the motion in li-mine.

During trial, Barnhart made an offer of proof in which Stacey Beam, the Chief Probation Officer for the Noble County Probation Department, testified that she was asked to perform a urine drug screen on I.S. on April 27, 2011, that she sent the drug screen to Redwood Toxicology,, and that the result indicated that the test was negative. Beam testified that the test did not have a “zero level cut off’ because “there is the possibility of having carry over, if you will, if you were in a room with someone who is using we like to have a level of 20 nanograms per milliliter instead of the zero, so it did not go all the way to zero.” Id. at 120. Beam also testified that a negative drug screen is tested only through one cycle and that if there is a positive screen after the first positive a second confirmatory test is run to make sure that the positive result was in fact positive. During cross-examination, Beam testified that she was not able to offer any testimony as to whether or not the underlying principles of the testing method were scientifically valid, whether the technique is capable of being tested repeatedly in order to show its performance over time, whether or not it had been subject to peer review and publication, whether there was a known potential error rate, or whether there existed a maintenance or standard in the performing of the technique of the test. Barnhart’s counsel argued that *142 Beam’s testimony was relevant and that this was the procedure that law enforcement and the State decided to use in regards to this case. The prosecutor argued that the “basic problem here is a problem of scientific reliability.” Id. at 128. The court granted the State’s motion in limine and stated:

I am going to go with my original gut reaction and say that it is not admissible. You know the problem here, I understand what [Barnhart’s counsel] is saying, hey it is your, I don’t want to say it is your, [i]t is the State’s test.

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Cite This Page — Counsel Stack

Bluebook (online)
15 N.E.3d 138, 2014 Ind. App. LEXIS 412, 2014 WL 4181706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-barnhart-v-state-of-indiana-indctapp-2014.