OPINION
BAILEY, Judge.
Case Summary
Appellant-Defendant Michael J. Weis ("Weis") appeals his convictions for two counts of Child Molesting, as Class A felonies.
We affirm.
Issues
Weis raises four issues, which we expand, reorder and restate as the following five issues:
I. Whether the trial court erred in admitting evidence of:
A. Hearsay medical notes; or
B. Improper vouching evidence;
II. . Whether the admission of evidence contrary to the Protected Persons Statute, Indiana Code Section 35-37-4-6 constituted fiindarmental error;
III. Whether the State's closing argument constituted misconduct;
IV. Whether sufficient evidence supports his conviction; and
V. - Whether Weis's concurrent forty-year enhanced sentences violate his Sixth Amendment rights outlined in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.
. Facts and Procedural History
On March 21, 2003, the Gibson County Division - of . Family - and . Children ("GCDFC") removed: seven-year-old J.S. and her half-brother from the home of her mother and Weis, J.S.'s stepfather, after receiving complaints about unsanitary conditions at the home. When interviewed about returning to the Weis's home, J.S. told Juanita Working, the Director of Gibson County CASA, that Weis had molested her. J.S. later described to Gibson County Sheriff's Deputy Deborah Borchelt ("Deputy Borchelt") a pattern of abuse by Weis that began when J.S. was three years old. J.S. told Deputy Borchelt that Weis re
peatedly engaged in vaginal, anal, and oral sex with J.S. J.S. also stated that Weisg's penis looked like a mushroom with a stem, and described how there were "a ton [of freckles] on the mushroom part." Appellant's App. at 568. |
The State charged Weis with four counts of child molesting, two as Class A felonies and two as Class C felonies, and one count of Rape, a Class B felony.
Following a jury trial, Weis was convicted on all counts. Due to double jeopardy concerns, the trial court entered judgment only upon the two convictions for child molesting as Class A felonies. Following the sentencing hearing, the trial court imposed an enhanced sentence of forty-years imprisonment on each count, to be served concurrently. This appeal ensued.
Discussion and Decision
I. Admission of Evidence
A. Standard of Review
The admission of evidence is "left to the sound discretion of the trial court, and we. will not reverse that decision except for an abuse of that discretion." Mann v. Russell's Trailer Repair, Inc., 787 N.E2d 922, 926 (Ind.Ct.App.2003) (quoting State v. Snyder, 594 N.E.2d 783, 787 (Ind.1992)), trans. denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id.
B. Analysis
Weis argues that the trial court abused its discretion by: (1) admitting medical notes taken by a hospital nurse but introduced during an examining physician's testimony and (2) admitting testimony of Deputy Borchelt and case manager Anne Sulawske ("Sulawske") intended to bolster the victim's testimony. We address each issue in turn.
1. Medical Notes
Weis first argues that the trial court erred in admitting State's Exhibit 2, which was a copy of a medical record made on May 27, 2003, contending that the exhibit contains inadmissible hearsay evidence that invades the province of the jury. State's Exhibit 2 contains margin notes made by a pediatric center nurse, which states: "Molested by step dad Michael Weis. [Hlas been happening off + on since pt was 3 yrs old. [Llast occurrence was in March...." Appellant's App. at 296.
Initially we note that although Weis objected to the introduction of State's Exhibit 2, he did not object when Dr. Joseph Lazzarra read the margin notes to the jury from State's Exhibit 2, and thus, waived any error as to Dr. Lazzarra's testimony. Reeves v. Boyd & Sons, Inc., 654 N.E.2d 864, 876 (Ind.Ct.App.1995), trans. denied. Waiver notwithstanding, Dr. Lazzarra testified that the medical record was made at the time the nurse interviewed J.S. as part of a typical intake evaluation conducted at his office. Had Weis made a timely objection, the trial court could have admitted State's Exhibit 2 as a business record.
See Ind. Evidence R. 803(6). Further, as the trial court explained for the jury, the margin notes did not constitute hearsay
because they were introduced to explain why the doctor conducted his physical examination, not for the truth of the statement. See Appellant's App. at 294. Accordingly, the trial court did not abuse its discretion in admitting State's Exhibit 2.
2. Vouching Testimony
Weis next argues that the testimony of two State witnesses included improper vouching testimony concerning J.S.'s truthfulness, in violation of Indiana Evidence Rule 704(b), which provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." To support his argument, Weis cites Jones v. State, 581 N.E.2d 1256, 1258 (Ind.Ct.App.1991), abrogated on other grounds by Steward v. State, 652 N.E.2d 490 (Ind.1995).
In Jones, this Court reversed Jones' conviction for child molesting when the trial court allowed, over objection, a police officer to affirmatively answer the question posed by the prosecutor: "In your professional opinion, was [K.J.] sexually molested?" Jones, 581 N.E.2d at 1258. We found that the officer's affirmative answer impermissibly invaded the province of the jury. Id.
Here, Deputy Borchelt testified: "After speaking with [J.S.] I believed that we had evidence of several counts of child molesting, with the different levels of child molesting, your A felony and your C felony. [J.S.] had discussed force and fear and so I believed we possibly had a rape charge in there also." Appellant's App. at 270. Further, Sulawske testified, regarding whether J.S. had been allowed to see Weis after alleging abuse: "Well, certainly with the alleged perpetrator being her stepfather, there is no contact. This is a person who has caused great damage so we don't have any contact." Appellant's App. at 389. Weis contends that their testimony invaded the province of the jury to assess J.S.'s truthfulness. | (
We must first note that although Weis claims that he made a timely objection, our review of the record reveals that is not the case, and hence, Weig's argument is waived. See Impson v. State, 721 N.E.2d 1275, 1280 (Ind.Ct.App.2000). Waiver notwithstanding, neither the testimony of Deputy Borchelt nor Sulawske constitutes an impermissible invasion of the jury's province. Deputy Borchelt explained the course of the investigation after speaking with J.S., and did not specifically state that she believed J.S. Sulawske's testimony explained the GCDFC protocol on restricting visitation between an alleged abuser and victim. This testimony does not run afoul of Rule 704(b). Accordingly, there was no error in the admission of this evidence.
II. Protected Persons Statute
Weis also argues that the trial court erred in admitting previously recorded statements of J.S. contrary to the procedures outlined by the Protected Persons Statute, Indiana Code Section 35-37-4-6,
which provides, in pertinent part:
(a) This section applies to a criminal action involving the following offenses where the victim is a protected person under subsection (e)(1) or (c)(2):
(1) Sex crimes (IC 35-42-4).
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(e) As used in this section, "protected person" means:
(1) a child who is less than fourteen (14) years of age;
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(d) A statement or videotape that:
(1) is made by a person who at the tlme of trial is a protected person;
(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and
(8) is not otherwise admissiblg in evidence;
is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met.
(e) A statement or videotape described in subsection (d) is admissible in evi-denee in a eriminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the defendant's right to be present, all of the following conditions are met:
(1) The court finds, in a hearing:
(A) conducted outside the presence -of the jury; and |
(B) attended by the protected person; that the time, content, and cireum-stances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:
(1) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.
(ii) The protected person cannot participate in the trial for medical reasons.
(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.
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(g) A statement or videotape may not be admitted in evidence under this section unless the prosecuting attorney informs the defendant and the defendant's attorney at least ten (10) days before the trial of:
(1) the prosecuting attorney's intention to introduce the statement or videotape in evidence; and (2) the content of the statement or videotape.
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We note that Weis failed to object at trial on the basis of Indiana Code Section 35-37-4-6, and hence, waived any error in the admission of the exhibits. See Poffenberger v. State, 580 N.E.2d 995, 997 (Ind.Ct.App.1991), trams. denied. Nevertheless, Weis argues that the trial court's admission of evidence contrary to Indiana Code Section 35-37-4-6 constituted fundamental error. The fundamental error ex-éeption to the waiver rule is an extremely narrow one. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002), reh'g denied. To constitute fundamental error, the error must be 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. Bostick v. State, 773 N.E.2d 266, 271 (Ind.2002) (internal quotation and citation omitted), reh'g denied; see also Barany v. State, 658 N.E.2d 60, 64 (Ind.1995) (defining fundamental error as error "so
prejudicial to the rights of the defendant as to make a fair trial impossible").
Weis first argues that the trial court erred in admitting the prior recorded statements because the State failed to give the requisite ten days notice, contrary to Indiana Code Section 35-37-4-6(g). The State filed its first witness and exhibit list on May 28, 2004, listing "Video/audio tape of interview of [J.S.]." Appellant's App. at 28. On July 29, 2004, four days prior to the trial commencement on August 2, 2004, the State filed its second amended witness and exhibit list, which added "Note handwritten by [J.S.] on 5/14/08" and "Transcription of interview with [J.S.] by Deputy Deborah Borchelt on 3/15/04," and specified that the video/audio tape interview referenced in the original witness and exhibit list had occurred on May 14, 2004. Thus, with respect to the interview conducted on May 14, 2004, Weis had sufficient notice under Indiana Code Section 35-87-4-6(g), and has demonstrated no error. See Poffenberger, 580 N.E.2d at 997.
With respect to the handwritten note and the transcript of the March 15, 2004 statement, although the State did not provide notice that it was intending to utilize the exhibits within the ten-day limit, Weis has failed to show how he was prejudiced by the State's delay. Weis argues in his brief that the exhibits themselves. were extremely prejudicial to his case. However, Weis does not argue that he did not have access to the exhibits more than ten days prior to trial. Indeed, the trial court's November 25, 2003 entry indicates that the State furnished the evidentiary materials to Weis. Accordingly, we cannot say that the State's delay in notifying Weis was so prejudicial as to make a fair trial impossible.
Weis next argues that the trial court improperly admitted the prior recorded statements without first conducting a hearing under Indiana Code Section 35-37-4-6(e). Here, J.S. was interviewed by a detective regarding the molestation. The two interviews were recorded. J.S. also made the following written statement during the interview on May 14, 2008: "He has been sticking his privates up my behind and down my throaht [sic]." Appellant's App. at 266. Because J.S. testified at trial, these recorded statements are not the only direct evidence of the events. Without deciding whether the recorded statements were properly admitted, the trial court's admission of the prior recorded statements were cumulative to J.S's trial testimony. See Pierce v. State, 677 N.E.2d 39, 45 (Ind.1997); Willis v. State, 776 N.E.2d 965, 968 (Ind.Ct.App.2002). Therefore, any error alleged by Weis regarding admissibility did not rise to the level of fundamental error. See Grundy v. State, 695 N.E.2d 167, 171-72 (Ind.Ct.App.1998) (holding that the admission of cumulative testimony was not fundamental error).
III: Prosécutowlal Misconduct
A claim of prosecutorial misconduct requires a determination that there was misconduct by the prosecutor and that it had a probable persuasive effect on the jury's decision. Cox v. State, 696 N.E.2d 853, 859 (Ind.1998), reh'g denied.
Because Weis failed to lodge an objection during the prosecutor's argument, his claim of prosecutorial misconduct is procedurally foreclosed and reversal on appeal requires a showing of fundamental
error. Zenthofer v. State, 613 N.E.2d 31, 34 (Ind.1993). "[AJn appellate claim of prosecutorial misconduct presented on appeal in the absence of contemporaneous trial objection will not succeed unless the defendant establishes not only the grounds for prosecutorial misconduct but also the additional grounds for fundamental error." Booher v. State, 773 N.E.2d 814, 817 (Ind.2002).
Weis argues that the prosecutor improperly and repeatedly referred to Weis as a "couch potato" in the State's closing argument, and repeatedly informed the jury that it could convict Weis solely on the basis of J.S.'s testimony. We separately address each argument.
During cross-examination, Weis testified that "I was-for a lack of a better word, I was a couch potato." Appellant's App. at 592. Later, Weis stated, "I was more of a couch potato on my days off than going and helping out with the kids." Id. at 594.
In judging the propriety of a prosecutor's remarks, we consider statements in the context of the argument as a whole. Hollowell v. State, 707 N.E.2d 1014, 1024 (Ind.Ct.App.1999). It is proper for a prosecutor to argue both law and fact during final argument and propound conclusions based on his analysis of the evidence. Id. We do not find that the prosecutor's reference to Weis using Weig's own words was error, much less fundamentally so. Accordingly, Weis has failed to demonstrate any error with respect to the "couch potato" reference.
Weis also contends that the prosecutor improperly informed the jury that it could convict Weis on the sole basis of J.S.'s testimony. Weis argues that Ludy v. State, 784 N.E.2d 459 (Ind.2003) requires reversal of Weig's convictions. We disagree.
In Ludy, our supreme court determined that the following jury instruction was improper: "A conviction may be based solely on the uncorroborated testimony of the alleged victim if such testimony establishes each element of any crime charged beyond a reasonable doubt." Id. at 460. The Court found the instruction improper for three reasons: (1) it unfairly focuses the jury's attention on one part of the evidence; (2) it presents an irrelevant appellate concept to the jury's function as fact-finder; and (8) the term "uncorroborated" may mislead or confuse a jury. Id. at 461.
Here, Weis concedes that the trial court properly instructed the jury. However, Weis points to the prosecutor's repeated questions to the jury during voir dire concerning the testimony of the alleged vice-tim, and his comments during closing argument, that the jury "can convict Michael Weis based on [J.S.'s] testimony." Appellant's App. at 642-43. Weis contends that the prosecutor's statements "left the jury with precisely the same impact as would a jury instruction." Appellant's Br. at 22.
The mere fact that a jury may not be instructed on a certain point of law does not lead to the conclusion that argument concerning that point of law is also improper. Cf. Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001) ("[allthough evidence of flight may, under appropriate cireum-stances, be relevant, admissible, and a proper subject for counsel's closing argument, it does not follow that a trial court should give a discrete instruction highlighting such evidence.") Here, the essence of the case involved the credibility of two witnesses: Weis, who denied sexually abusing J.S., and J.S., who implicated Weis as her abuser. We view the State's argument that the jury could convict if it believed J.S.'s testimony as an appropriate characterization of the evidence. See Hol-
lowell, 707 N.E.2d at 1024. Accordingly, we find no error.
IV. Sufficiency of the Evidence
When we review a claim that a conviction is not supported by sufficient evidence establishing the defendant's guilt, we may not reweigh the evidence or question the credibility of witnesses. Doty v. State, 730 N.E.2d 175, 180 (Ind.Ct.App.2000). We must affirm a conviction if the finder-of-fact heard evidence of probative value from which it could have inferred the defendant's guilt beyond a reasonable doubt. Graham v. State, 713 N.E.2d 309, 311 (Ind.Ct.App.1999), trans. denied. When making this determination, we consider only the evidence, and all reasonable inferences to be drawn from that evidence, favorable to the judgment. O'Neal v. State, 716 N.E.2d 82, 89 (Ind.Ct.App.1999), trans. denied.
To sustain a conviction for child molesting as a Class A felony, the State is required to show that: (1) Weis, being over twenty-one years old; (2) with a child under fourteen (14) years of age; (8) performed or submitted to sexual intercourse or deviate sexual conduct. Ind.Code § 85-42-4-3.
Here, J.S. testified that Weis sexually abused her "pretty much every day after school" or "about five (5) nights a week because my mom was home the other two...." Appellant's App. at 387, 410. Weis would abuse J.S. three ways: "hle stuck them in my throat, then he stuck them in my behind ... and then sometimes he would stick it in my privates." Appellant's App. at 405. The abuse began "since I was three [years old]." Id. at 411. The last time J.S. was abused was the day before she went into foster care. J.S. never told anyone until she was in foster care because "[Weis] told me that if I: didn't-that if I did tell that I would be sent somewhere where I couldn't. see him or mom for a long tlme a long, long time." Id. at 408.
Weis argues that the evidence was insufficient to support his convictions for child molesting. He contends that J.S.'s testimony was incredibly dubious, and hence, could not serve as the basis for his convictions. Under the incredible du-biosgity rule, a court may "impinge on the. jury's responsibility to judge the eredibility of witnesses only when confronted with inherently - improbable - testimony - or coerced, equivocal, wholly. uncorroborated testimony of incredible dubiosity." Murray v. State, 761 N.E.2d 406, 408 (Ind.2002). The application of this rule is limited to. where "the sole witness presents inherently contradictory testimony. which is equivocal or the result of coercion and there is a complete lack of cireumstantial evidence of the appellant's guilt." Id. (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.1994)).
Upon reviewing J.S.'s testimony, we do not find it to be equivocal, or inherently contradictory or improbable. It is up to the trier of fact to. weigh the credibility of a witness's testimony. Weis was able to cross-examine J.S. in an attempt to uncover inconsistencies and biases in her story, and the jury was able to independently evaluate J.S.'s testimony. We view Weig's argument as an invitation for us to reweigh the credibility of the witnesses, which we shall not do. Weis has not demonstrated that the incredible dubiogity rule is applicable here. Accordingly, the State presented sufficient evidence to support Weis's convictions. , |
V. Sentencing
Finally, Weis asserts that his enhanced sentence violates his Sixth Amendment
rights as set forth in Blakely v. Washington.
Weis contends that because he has no criminal history, the trial court improperly enhanced his sentence by finding two aggravators: a breach of a position of trust and the effect the erimes will have on the vietim.
The determination of the appropriate sentence rests within the discretion of the trial court, and we will not reverse the trial court's determination absent a showing of manifest abuse of that discretion. Bacher v. State, 722 N.E.2d 799, 801 (Ind.2000). In Blakely, however, the United States Supreme Court held that the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. Strong v. State, 817 N.E.2d 256, 260 (Ind.Ct.App.2004) (citing Blakely, 124 S.Ct. at 2537), clarified: on reh'g, 820 N.E.2d 688 (2005), trans. denied. Specifically, in Blakely, the Supreme Court held that "[olther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court defined the "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537 (emphasis in original). "In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id. (emphasis in original). "Indeed, inasmuch as Indiana's present sentencing procedure allows a trial court, without the aid of a jury, to enhance a sentence where certain factors are present, it violates a defendant's Sixth Amendment right to have a jury determine all facts legally essential to his or her sentence, pursuant to Blakely" Strong, 817 N.E.2d at 262.
Initially, the State asserts that Indiana's sentencing scheme is not implicated by Blakely and therefore does not affect Weig's sentence. Based upon recent pree-edent by our supreme court, Blakely does apply to Indiana's sentencing scheme. Smylie v. State, 823 N.E.2d 679, 684-85 (2005); see also Strong, 817 N.E.2d at 261-62.
Turning to Weis's argument, we note that a defendants Sixth Amendment rights are not implicated where a defendant consents to judicial fact-finding or stipulates to the relevant facts. Blakely, 124 S.Ct. at 2541. Similarly, if a defendant admits to the relevant facts necessary to find an aggravating factor, Blakely is not implicated. Id. at 2537; see also Teeters v. State, 817 N.E.2d 275, 279 (Ind.Ct.App.2004), trans. denied.
Here, Weis testified at trial, and identified J.S. as his stepdaughter. Further, the State and Weis engaged in the following colloquy: . -
Weis:I consider -her as my biological daughter, even though I did not conceive her. I was there from day one when she was born. |
State:You were the only dad she ever knew? -
Weis:Right.
. Appellant's App. at 588. This.testimony is sufficient to constitute an admission that Weis held a position of trust with J.S. See Hampton v. State, 719 N.E.2d 803, 808 (Ind.1999) (finding position of trust to be a proper aggravator under Ind.Code § 35-38-1-7.1). The finding of a single aggravating factor is sufficient to support an enhanced sentence. Lewis v. State, 759 N.E.2d 1077, 1087 (Ind.Ct.App.2001), trans. denied. As such, the trial court did not err in enhancing Weis's sentence on that basis.
Moreover, even if we. found that the trial court improperly engaged in judicial fact-finding, an improper denial of a defendant's Sixth Amendment right to have a jury determine all facts legally essential to his or her sentence is subject to a harmless-error analysis. See Booker, 125 S.Ct. at 769; see also Holden v. State, 815 N.E.2d 1049, 1060 (Ind.Ct.App.2004), trams. denied. A denial of the defendant's Sixth Amendment right constitutes harmless error where the evidence supporting the conviction or enhancement is so convincing that a jury could not have found otherwise. - See Averitte v. State, 824 N.E.2d 1283, 1288 (2005).
Based upon Weis's own testimony, we believe that no jury could have found that Weis, as J.S.'s stepfather, was not in a position of trust. Accordingly, to the extent that the trial court erred in making this finding itself, any such error is harmless. *
Conclusion
Based upon the foregoing, we find that the trial court did not err in admitting certain evidence, and that Weis has not demonstrated fundamental error. Further, we find that the State did not commit prosecutorial misconduct, and the evidence is sufficient to support the convictions. Finally, the trial court did not err in enhance-ing Weis's sentence.
Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.