## FOR PUBLICATION

ATTORNEY FOR AP PELLANT : ATTORNEYS FOR APPELLEE :
S U SAN D. RAYL GREGORY F. ZOELLER Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis , Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, In diana



## IN THE COURT OF APPEALS OF INDIANA

COREY COLE , ) ) Appellant

- Defendant , ) )
vs. ) No. 49A02

- 1111

- CR

- 1019 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE MARION SUPERIOR COURT The Hon o rab l e Carol J. Orbison , Judge Cause No. 4 9G0 2

- 0907

- FB

- 64032

July 13, 2012
OPINION

- FOR PUBLICATION MAY, Judge2

Corey Cole appeals his conviction of Class B felony rape. 1 He presents two issues for

our consideration:

1. Whether the trial court abused its discretion when it sustained the S tate’s objection to Cole’s attempt to refresh the victim’s memory with a writing made by another witness; and

2. Whether the trial court’s admission of hearsay constituted a fundamental error.

We affirm.
FACTS AND PROCEDURAL HISTORY At 11:00 p.m. o n July 11, 2008, J.S. left work

. Thereafter she consumed several alcoholic beverages at two bars. J.S. testified she does not remember anything after leaving

the second bar. Around 1:00 a.m. on July 12, J.S. arrived at the bar where her boyfriend , D.R. , tended bar. D.R. noticed she was “very intoxicated, to the point of incoherency

. ” (Tr.

at 31

. ) After J.S. passed out in the bar, D.R. carried her to his car and left the car unlocked

. J.S.’s roommate, K .G. , testified she checked on J.S. three times throughou t the early morning

hours. K.G. testified J.S. was passed o ut in the passenger side of D.R. ’s car and J.S. did not acknowledge K.G. when she checked on J.S.

The last time K.G. checked on J.S., she noticed a man she later described as a “little
taller, ski nny, black , ” ( Id . at 14) , exit the driver’s side of the car and take off running. K.G. approached the car and found J.S. in a sta te of undress. She alerted D.R. , who testified J.S. was “completely passed out with her

– her legs her [sic] up, her dress wa s down, her

1 Ind. Code § 35

- 42

- 4

- 1(a).3

underwear was gone, her shoes w ere off.” ( Id . at 35.) K.G. alerted Kory Dickerson, an off

duty police officer who was working security at the bar. Officer Dickerson attempted to wake J.S., but she was unresponsive. She remained unresponsiv e even as m edics arrived and checked her vital signs. Detective Michael Hanson and a sex crimes deputy prosecutor also attempted to wake J.S., to no avail. J.S. finally awoke in the ambulance on the way to the hospital, sometime after 3:56 a.m.

At the hospital, Detective Hanson informed J.S. that she may have been sexually

assaulted and J.S. consented to collection of evidence using a rape kit. J.S. had a blood

alcohol level of .27. J.S. was unable to identify her a ttacker in a photo array. Based on DNA analysis of the fluids found on J.S., the police identified Cole as a suspect. Cole’s DNA and fingerprints were found on a beer bottle near D.R. ’s car. Cole was charged with Class B felony rape. At trial, Cole admitted he had sexual

intercourse wit h J.S. but claimed it was consensual. The trial court found Cole guilty as charged, and sentenced him to twelve years with six years suspended.
DISCUSSION AND DECISION
The trial court has broad discretion when deciding whether to admit evidence. Gaby

v. State , 949 N.E.2d 870, 877 (Ind. Ct. App. 2011). We will not reverse the trial court’s decision absent a showing of a manifest abuse of that discretion resulting in the denial of a

fair trial. Id . An abuse of discretion occurs when the trial court’s de cision is clearly against the logic and effect of the facts and circumstances before the court. Id

.4

1. Refresh ing Recollection Indiana Evidence Rule 612(a) allows a questioner to refresh a witness’ s memory using a writing or similar device after the wi tness indicate s she has no memory of the information sought. Thompson v. State , 728 N.E.2d 155, 160 (Ind. 2000). The item used to refresh the
witness’ s memory does not need to have been written by the witness. Id

. Cole tried to refresh J.S.’s memory u sing a writing prepared by th e sexual assault

nurse who met with J.S. after the rape. He argues the trial court abused its discretion when it sustained the State’s objection. During Cole’s cross

- examination of J.S., he asked her about

a conversation she had with the nurse from The Center of Hope:
[Defense]: Do you recall talking to a nurse? [J.S.]: Yes. [Defense]: Do you recall how much you told her you had to drink? [J.S.]: No. [Defense]: If I showed you her report and told her that you

– showed you

t hat you said you had a couple drinks, would that refresh your memory? [J.S.]: Yes. [State]: Your Honor, I would object to him showing her the notes that

another witness has taken and already testified to. She has no personal knowledge of those notes. Sh e was not watching her as she wrote them. That would not be able to refresh this witness’s memory. [Court]: Sustained. [Defense]: Do you recall telling the nurse how many drinks you had? [J.S.]: No. (Tr. at 190

- 9 1.) The testimony Cole sought to produc e through refreshment of J.S

. ’s recollection

– how many drinks she consumed the night of the crime

– was cumulative of the nurse’s5

testimony earlier in the trial. The nurse testified , “[J.S.] had two drinks at one place then another drink in another place . So I see her e that says she had three.” ( Id . at 149.) As the admission or exclusion of “[e]vidence that is merely cumulative is not grounds for reversal,”

Tobar v. State , 740 N.E.2d 106, 108 (Ind. 2000), the trial court did not err. 2

2. Hearsay Hearsay is “a statement, other than on e made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Evid. R. 801(c). Hearsay is not admissible unless it fits within an exception to th e hearsay rule.

Simmons v. State , 760 N.E.2d 1154, 1160 (Ind. Ct. App. 2002). Cole argues two witnesses

offered hearsay testimony . However , Cole did not object to the statements during trial

. T herefore , his claim of error is waived

. Johnson v. State , 725 N.E.2d 864, 867 (Ind. 2000). One way to escape such waiver is by claiming the error is fundamental

. Jewell v.

State , 887 N.E.2d 9 39, 940 n.1 (Ind. 2008). Fundamental error s are “clearly blatant violations of basic and elementary principles, and the harm or potential for harm could not be
denied.” Warriner v. State , 435 N.E.2d 562, 563 (Ind. 1982). The fundamental error exception is “extremely narrow.” Benson v. State , 762 N.E.2d 748, 755 (Ind. 2002). Cole first asserts testimony by James Roth of the Marion County Forensic Services Agency included hearsay. During cross

- examination, defense counsel asked Roth about a

2 We note, however, a portion of the State’s proffered reaso n for objecting to Cole’s attempt to refresh J.S.’s recollection was not proper, as there is no requirement that the item used to refresh the witness’s memory must have been written by the witness. See Thompson , 728 N.E.2d at 160 (witness does not have to be author of item used to refresh recollection).6

beer bottle found at the scene of the crime:
[Defense]: You found a beer bottle

– [Roth]: Yes. [Defense]:

- in the parking lot. [Ro th]: Yes. * * * [Defense]: Did you pick that up and look for prints on that? [Roth]: No, I did not. [Defense]: Why did you not do that? [Roth]: I didn’t feel at that point it was

– had any evidentiary value. [Defense]: Why did you think the beer bottle had value again? [Roth]: I was told by Detective Hanson that someone had observed an

individual place that beer bottle there and he wanted me to collect it. (Tr. at 81

- 8 2.) Cole claims Roth’s final statement was hearsay and its admission was

fundamental err or. However, because Cole’s counsel asked the question, he invited the alleged error
about which he now complains. See Thacker v. State , 578 N.E.2d 784, 786 (Ind. Ct. App. 1991) (holding defendant invited any error caused by admission of evidence where he

elicited the testimony during cross

- examination). Therefore, we may not reverse on the basis of that alleged error. See Kingery v. State , 659 N.E.2d 490, 4 94 (Ind. 1995) (invited error cannot be fundamental error, and does not warrant reversal), reh’g denied. Cole also argues five portion s of Detective Hanson’s testimony were hearsay. During
direct examination, Detective Hanson was asked about his investigation at the scene of the

crime . He said , “ I had been informed by a witness that he had observe d two males in what he had described as a silver, Dodge Magnum, had been drinking beer in the parking lot and left a beer bottle behind.” (Tr. at 97.) He later mentioned the witness who gave him the7

information:
[Prosecutor]: Okay. Now you stated earlie r that a witness had told you that he

saw some individuals get into a vehicle and leave the beer bottle in the parking lot. [Hanson]: Correct. [Prosecutor]: Were you able to go back and find the witness? [Hanson]: Yes. [Prosecutor]: And how did you find th at witness? [Hanson]: I had spoken with him when I was there earlier on the scene. He

had come up. He’s the one who had told me about the beer bottle. [Prosecutor]: And who was he? [Hanson]: His name was, I believe, Manasha Fairham and he was a

bouncer a t Bleeker Street.

* * * [Prosecutor]: . . . Did Mr. Fairham tell you what type of vehicle he saw the

individual get into. [Hanson]: He described it as a silver, Dodge Magnum. [Prosecutor]: Okay. And how was he able to determine that the same person

that got into the Dodge Magnum was the same person that sat down the beer bottle? [Hanson]: He observed it. [Prosecutor]: Okay. And had he had any other experience with that individual

that night? [Hanson]: I believe they had tried to enter Bleeker Street and they were not

allowed admittance. ( Id . at 99

- 101.) Next, Detective Hanson described his investigation into the owner of the car

Fairham described:
[Hanson]: I had asked about the silver vehicle and was informed that a

friend of his by the name of Mr. Off utt had a silver vehicle. [Prosecutor]: And did you make touch

– did you make contact with Mr.

Offutt? [Hanson]: Yes, I did [Prosecutor]: And upon making contact with Mr. Offutt, what did you

determine? [Hanson]: Mr. Offutt advised me that they had a frien d who had a silver,

Dodge Charger and that he had not been at Broad Ripple that evening. He told me about the gentleman, Mr. Vaughn, that had8 the silver, Dodge Charger. [Prosecutor]: So you made contact with Marlo (phonetic) Offutt based on the

silver Dod ge Magnum information. [Hanson]: Correct. [Prosecutor]: And he informed you that he had not been with Mr. Cole but

someone with a silver, Dodge Charger had been with him? [Hanson]: Well, that he knew that Mr. Vaughn had a silver, Dodge Charger. ( Id . at 10 5

- 6.) Finally, Cole argues two s tatements made by Detective Hanson about evidence

collected at the scene w ere hearsay. First, Detective Han son stated he “had been inform ed that there was a fingerprint identi fied off the beer bottle[,]” ( i d . at 98), and i t was Cole ’s

. Later, Detective Hanson answered in the affirmative when asked, “So did you get information from the Marion County Crime Lab that J.S.’s DNA matched the DNA on the

beer

– I’m sorry, the DNA found on J.S. was matched to t he DNA on the beer bo ttle?” ( Id . at 103.) Cole argues Detective Hanson’s hearsay statements about Fairham and the beer bottle “were the only evidence connecting Mr. Cole to the beer bottle in the parking lot[,]” (Br. of Appellant at 18), and thus he was denied a fair trial because those statements were inadmissible hearsay. We cannot agree.
As noted above, an error in the admission of evidence does not justify reversal if the evidence is cumulative of other evidence presented at trial. Tobar , 740 N.E.2d at 108.

Neither d oes the erroneous admission of evidence require reversal if there is “substantial independent evidence of guilt s o that there is no substantial likelihood that the challenged
evidence contributed to the conviction.” Meadows v. State , 785 N.E.2d 1112, 1122 (Ind. Ct.9

App. 2003). Detective Hanson’s testimony followed that of Rochelle O’Niel, a fingerprint examiner with IMPD, who testified about the fingerprints found on the beer bottle. Detective Hanson’s testimony regarding the match of DNA samples was c umulative of the testimony of

a DNA analyst for the Marion County Forensic Services Agency. Finally, Detective Hanson’s testimony regarding the beer bottle at the crime scene was cumulative of Cole’s own testimony that he was drinking beer in the parking lot near where J.S. was raped. Detective Hanson’s testimony was cumulative of other testimony properly admitted. See

Hunter , 172 Ind. App. at 416, 360 N.E.2d at 600 (“this court will not reverse for admission or denial of cumulative evidence”).
Further, the testimony about which Cole complains did not likely contribute to his

conviction. Cole admitted he had sex with J.S. on the night in question , which place s him at the scene of the crime regardless of whether his fingerprint was on a beer bottle and h is DNA

was on J.S

. Therefore, based on Cole’s own testimony, we cannot say fundamental error

occurred

. See Meadows , 785 N.E.2d at 1122 (erroneous admission of evidence is not a reason for reversal if there is “substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction”).
CONCLUSION
The trial court did not commit reversible error when it sustained the State’s objection

to Cole’s attempt to refresh J.S.’s memory with the n otes from the nurse ; J.S.’s testimony

would have been cumulative of the nurse’s testimony . In addition, no fundamental err or10

occurred when t he court admitted hearsay statements : Cole invited some of the error, the

uninvited statements were cumulative of o ther testimony , and they did not likely contribute to

the decision regarding Cole’s guilt. Accordingly, we affirm.

Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.