Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : VICTORIA L. BAILEY GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIA NA

MARK McCOY , ) ) Appellant

- Defendant , ) ) vs. ) No. 49A05

- 1310

- CR

- 531 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant W. Hawkins , Judge Cause No. 49G05

- 1203

- FA

- 18546

July 31, 2014 MEMORA NDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Mark McCoy (McCoy), appeals his conviction for Counts II, XX and XXV, child molesting, Class A felonies, Ind. Code §§ 35

- 42

- 4

- 3 (a)(1) and 35

- 41

- 2

- 4; Count IX, c riminal confinement, a Class C felony, I.C. § 35

- 42

- 3

- 3; Count XI, intimidation, a Class C felony, I.C. § 35

- 45

- 2

- 1; and Count XXIII, child molesting, a Class C felony, I.C. §§ 35

- 42

- 4

- 3 (b) and 35

- 41

- 2

- 4. We affirm. ISSUE McCoy raises one issue on appeal, which we restate as: Whether the trial court abused its discretion by admitting certain testimony at trial.

FACTS AND PROCEDURAL HISTORY McCoy began dating Beverly Cooper (Cooper) on and off after the two met at a bar in 2010 . In January of 2011, Cooper and her nine

- year - old son, C.C., moved in to McCoy’s home in Indianapolis , Indiana, where two of McCoy’s three sons, eight

- year old C.M. and ten

- year - old D .M., also lived

. Approximately one week after Cooper and C.C. moved in , the three boys heard McCoy and Cooper having sex. C.M. and D.M. went down the hall and pee ked through a crack in the door of the room that McCoy and Cooper shared to watch them having sex. C.C. was down the hall in the room that the three boys shared , and C.M. and D.M. called him to come watch with them

. At this point, McCoy heard C.M. and D.M. giggle outside the door. McCoy then instructed all three boys to come inside the room.3

C.M. and D.M. went inside the room willingly. C.C. did not want to go inside the room, so C.M. and D.M. grab bed him and dru g him inside. One of the boys shut the door behind C.C. and when C.C. attempted to leave, McCoy told him not to touch the door in a demanding , angry voice. When McCoy asked the boys why they were peeking through the door, C.M. and D.M. said they were interested in what McCoy and Cooper were doing. McCoy then instructed the boys to undress , and C.M. and D.M. disrobed. C.C. did not undress and said that he knew it was wrong. McCoy demanded that C.C. undress. C.C. felt compelled t o follow the instruction because of the stern voice McCoy used and because he noticed that McCoy’s handgun was right next to him on the dresser.
A fter disrobing, C.M. and D.M. asked McCoy what they should do next

. McCoy pinned Cooper face

- d own on the bed and instructed the boys to reenact what they had observed through the door. C.M. attempted to have anal intercourse with Cooper while McCoy held her down. D.M. subsequently took his turn and attempted to have anal intercourse with Cooper. C.M. and D.M. then dragged C.C. onto the bed and told him to try. C.C. resisted , but C.M. and D.M. pushed his pelvis down and his penis touched Cooper’s buttocks but did not penetrate her anus. McCoy then flipped Cooper over so that she was lying on her back. While M cCoy held Cooper down on her back, he allowed C.M. to attempt to have vaginal intercourse with Cooper as she squirmed to attempt to prevent it. C.M. then moved near Cooper’s head an d placed his penis in her mouth before she could turn her head away. D.M. then attempted to do the same. During this time , C.C. had put his4

clothes back on. McCoy again demanded C.C. to undress and try to have vaginal sexual intercourse with Cooper

—his mother

. C.M. and D.M. pushe d C.C. onto Cooper , causing his penis to touch her , but it did not touch her vagina. C.C. subsequently rolled off the bed, but C.M. and D.M. pushed him back onto the bed and climbed onto the bed too. C.M. touched Cooper’s breasts, followed by D.M doing the same

. McCoy then allowed Cooper to get up , and McCoy left the room. After these events, C.C. was upset and Cooper consoled him but also told him not to tell anyone what had happened. At some later point , C.C., C.M., and D.M. were in their room watching a pornographic video that McCoy had given them. Cooper walked into the room and turned the video off. She told them that they were not allowed to watch those types of videos and discussed the reasons why. During this discuss ion, McCoy walked into the room and grabbed Cooper; he then pinned her to the bed and pulled her pants down. He instructed C.C. to put his mouth on her vagina , so C.C. touched her vagina with his chin. After these events , McCoy , with his hand on his gun, told C.C., “If you tell anyone I’ll shoot you.” (Transcript p. 73). Two weeks after Cooper and C.C. moved in, McCoy moved out of the Indianapolis house. In September of 2011 , McCoy , D.M., and C.M. moved to Washington, in Davies s County , Indiana, to live with McCoy’s mother and stepfather

. While staying there, McCoy tol d his stepfather, Jeffrey Scheid (Scheid), that Cooper

“ used to let [ C.M. and D.M. ] mess around with her. ” (Tr

. p. 407). As a result of this and other statements, o n January 25, 2012, Sch e i d contacted the Daviess County S heriff’s5

D epartment , and an inves tigation ensued. The supervisor of the Daviess Count y D epartment of C hild S ervices (DCS) , Briley Terrell (Terrell), sat in on Scheid’s interview and subsequently went to Scheid’s house . After getting permission from McCoy, Terrell and a Davies s C ounty De tective took C.M. and D.M. to the police department for interviews. There, C.M. told Terrell that McCoy would ask him to “use a rubber thing on his ex

- girlfriend, [Cooper] .” (Tr. p. 363). D.M. told Terrell that McCoy asked D.M., C.M., and C.C. “ to play with [Cooper’s] boobs and vagina. ” (Tr. p. 364). Terrell determined that C.M. and D.M. should be removed from McCoy’s custody. C.M. and
D.M. were placed in a foster home and eventually, the maternal grandparents of C.M. and D.M. acquired a guardianship over the boys. Terrell later turned the case over to Kristi Wilmes (Wilmes) of the Daviess County DCS , who served as the ongoing case manager

. On February 3, 2012, the Daviess County DCS contacted the Marion County DCS , and Jessica Price (Price) initiat ed an investigation in Marion County. On February 7, 2012, Price went to C.C.’s school and asked to speak with him. When she brought up
M cCoy’s name, “[ C.C.’s ] whole posture closed down, he crossed his arms, he had red hives all over, he started crying , [and] he was starting to get really fidgety

. . . [ and] uncomfortable.” (Tr. p. 252). C.C. told Price that McCoy was a “ bad man ” and briefly explained “why he felt that way.” (Tr. p. 253) . Price subsequently ended the interview with C.C. On March 22, 2 012, Detective Christopher Lawrence of the Indianapolis Metropolitan Police Department interviewed Cooper about the events , and she confirmed6

that the events had occurred. That same day , the State filed an Information charging McCoy with twenty

- eight Coun ts

. Around May 9, 2012, Wilmes met with C.M. and D.M. separately and went through each of the twenty

- eight charges, one by one. During his interview, D.M. confirmed that all three boys had been instructed to engage in the various acts with Cooper. On S eptember 30 and October 1, 2013, a bench trial was conducted , during which McCoy acted pro se . At trial, Wilmes testified regarding what C.M. and D.M. had shared with her during their interviews

. At the close of evidence, the trial court found McCoy guil ty of Counts II, XX, and XV , child molesting, C lass A felonies , I.C. §§ 35

- 42

- 4

- 3 and 35

- 41

- 2

- 4 ; C ount IX, criminal confinement, a C lass C felony , I.C. § 35

- 42

- 3

- 3 ; Count XI, intimidation, a C lass C felony , I.C. § 35

- 45

- 2

- 1 ; and Count XXIII, child molestin g , a C lass C felony , I.C. § § 35

- 42

- 4

- 3 and 35

- 41

- 2

- 4

. A sentencing hearing was held on October 17, 2013, and McCoy received an aggregate sentence of ninety

- three years. McCoy now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DE CISION On appeal, McCoy is only challenging the three C ounts involving D.M.

— Counts XX, XXIII, and XXV . McCoy argues that the trial court abused its discretion when it admitted certain testimony into evidence at trial. Specifically, he maintains that the trial court should have excluded Wilmes’ testimony that D.M. told her that the allegations against McCoy were true and that D.M. confirmed the substance of each charged C ount7

separately. When Wilmes testified about D.M.’s statements during trial , McCoy di d not object. McCoy now disputes the admission of the testimony on the basis that it was inadmiss ible hearsay evidence under Indiana Evidence Rule 801(c). The admission or exclusion of evidence is within the sound discretion of the trial
court “ and is a fforded great deference on appeal. ” Eastwood v. State , 984 N.E.2d 637, 640 (Ind. Ct. App. 2012), trans. denied

. “ An abuse of discret ion occurs when the trial court’ s decision is clearly erroneous and against the logic and effect of the facts and circumst ances before it or it misinterprets the law

. ” Id. “ 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 appropriately admitted. ” Iqbal v . State , 805 N.E.2d 4 01, 406 (Ind. Ct. App. 2004). Indiana Evid ence Rule 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the mat ter asserted.” Pursuant to Indiana Evidence Rule s 802 and 803, hearsay is not admissible unless it fits within some exception to the hearsay rule. Failing to object to the admission of evidence “ at trial waives any claim of error and allows otherwise inadmissible hears ay evidence to be considered for substantive purposes .” Johnson v. State , 734 N.E.2d 530 (Ind. 2000). However, a claim “ waived by a defendant’ s failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred. Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010). Because McCoy failed to make a contemporaneous8

objection at trial, he must now show on appeal that the admission of the testimony was fundamental error

. The fundamental error exception is extremely narrow and is applicable only where

an “ error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. ” Mathews v. Sta te , 849 N.E.2d 578, 587 (Ind. 2006). The error “ must either ‘ make a fair trial impossible ’ or constitute ‘ clearly blatant violation s of basic and elementary principles of due process. ’” Brown , 929 N.E.2d at 207 (Ind. 2010) ( quoting Clark v.
State , 915 N. E.2d 126, 131 (Ind. 2009)), reh’g denied

. The mere fact that error has occurred and that it will prejudice a defendant is not sufficient to invoke the fundamental

er r or exception; “[r] ather, the error must be one s uch that the defendant could not possibly have had a fair trial or such that this court is left with the conviction that the verdict

. . . is clearly wrong or of such dubious validity that justice cannot permit it to stand. ” Stewart v. State , 567 N.E.2d 171, 174 (Ind. Ct. App. 1991), trans. deni ed

. McCoy’ s entire argument on appeal is based on his inaccurate assertion that the trial court’s judgment for Counts XX, XXIII, and XV was based solely on Wilmes’ testimony regarding the statements that D.M. made to her. McCoy argues that fundamental er ror occurred because inadmissible hearsay evidence was admitted and relied on by the trial court and that it was the only evidence presented at trial that is favorabl e to the judgment of the court; however, there was, in fact, additional evidence provided by the State and relied upon by the trial court. At trial, the court explained,9

“[D.M.], however, couldn’t remember anything happening. Didn’t say anything

– didn’t say it didn’t happen, he just said he couldn’t reme mber but said he told

. . . Wilmes the truth. I looked at [D.M.]’s statement, I looked at [C.C.]’s statement and found a combination of [C] ounts, I believe, where I feel comfortable convicting.” (Tr. p. 498). Thus, t he trial court clearly considered D.M.’s testimony that he had been truthfu l with Wilmes, along with Wilmes ’ testimony , and the evidence provided by C.C. Collectively, this evidence led the trial court to its guilty verdict for Counts XX, XXIII, and XXV. Furthermore, w e note that the State provided ample evidence in addition t o Wi l mes’ testimony about D.M.’s statements to prove Counts XX, XXIII, and XXV , including the unchallenged testimony of both C.C. and Cooper

. During the trial, C.C. testified that D.M.’s “[front private part] was touching [Cooper’s] front private part but she was moving trying not to let him.” 1 (Tr. p. 55). He also stated that D.M. was “moving his waist trying to

. . . stick his front private in [Cooper]’s bac k private” as Cooper “ move[d] around trying not to let him,” and McCoy was “holding [Cooper]’s
h ands.” (Tr. p. 42

- 4 3). C.C. also testified that D.M. touched Cooper ’ s “boobs [but] not for very long.” (Tr. p. 60). In addition, Cooper testified that McCoy “[g]rabbed her arms

. . . below the shoulders and then had pulled [her] backwards onto her back .” (Tr. pp. 159

- 60). He then “told the boys to put their penis [es] in [her] mouth

. ” (Tr. p. 160). According to Cooper, “[D.M.] put his penis on [her] face

. . . [i]t might have hit [her] lips

1 Eleven

- year - old C.C. testified that a “wiener” is the “private part” that is at “[t]he front ar ound the waist” and is used for “[g]oing to the bathroom.” (Tr. p. 38).10

but not like actually all the way in.” (Tr. p. 163). Thus, the State presented the trial court with more than just Wilmes’ hearsay testimony. Where evidence is merely cumulative, there is no fundamental error. Wilkes v. State , 7 N.E.3d 402 (Ind. Ct. App. 2014). Because the hearsay testimony of Wilmes was suffi ciently corroborated by other evidence, we cannot say that its admission made a fair trial impossible , nor was it a blatant violation of the fundamental due process principle that a crime must be proven beyond a reasonable doubt

. See Delarosa v. State , 93 8 N.E.2d 690, 695 (Ind. 2010). Accordingly, we find that any error in the admission of Wilmes’ testimony based on inadmissible hearsay is harmless

— not fundamental. See Meadows v. State , 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003), trans. denied

. CONCLUS ION Based on the foregoing, we conclude that the trial court did not abuse its discretion by admitting and relying on Wilmes’ testimony at trial. Affirmed. ROBB, J. and BRADFORD, J. concur