Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020 Page 1 of 31

MEMORANDUM DECISION

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.

ATTORNEYS FOR APPELLANT

Spenser G. Benge

K. Aaron Heifner

Anderson, Indiana

ATTORNEY FOR APPELLEE

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Valonte Deshoun Smith,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 17, 2020

Court of Appeals Case No.

19A-CR-2333

Appeal from the Madison Circuit 

Court

The Honorable Angela Warner 

Sims, Judge

Trial Court Cause No.

48C01-1706-F3-1632

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020 Page 2 of 31

Case Summary

[1] Valonte Smith appeals his conviction for rape, a Level 3 felony.

1 We affirm. 

Issues

[2] Smith presents seven issues for our review, which we revise and restate as 

follows: 

I. Whether the trial court abused its discretion in denying the 

admission of certain evidence. 

II. Whether the trial court abused its discretion in limiting 

Smith’s discovery of certain facts regarding the recording 

device through a protective order.

III. Whether the deputy prosecutor committed prosecutorial 

misconduct. 

IV. Whether the trial court properly instructed the jury. 

V. Whether the evidence is sufficient to sustain Smith’s rape 

conviction. 

VI. Whether Smith received ineffective assistance of counsel. 

VII. Whether Smith’s sentence is inappropriate. 

1 Smith was also convicted of dealing in a narcotic drug, a Level 5 felony; however, Smith does not challenge 

this conviction on appeal and conceded at the jury trial that he was guilty of this charge. 
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Facts

[3] In 2014, L.H. began working as a confidential informant (“CI”) and primarily 

worked with Detective Keith Gaskill with the Anderson Police Department and 

the Madison County Drug Task Force. In preparing L.H. to serve as a CI, 

Detective Gaskill took several safety measures, including giving L.H. a “safe 

word” to use in the event of an emergency. Tr. Vol. II p. 92. 

[4] L.H. met Smith in 2015 and previously purchased heroin from Smith.

2

 During 

two of her previous encounters with Smith, L.H. and Smith used heroin

together and then engaged in sexual intercourse. According to L.H., she did 

not have an agreement with Smith that sexual intercourse would occur instead 

of exchanging money; however, L.H. did not pay for the heroin when sexual 

intercourse occurred. On these occasions, Smith would grab L.H.’s arm as she 

was leaving, and L.H. “went along with the flow,” allowing Smith to guide her

before the two would engage in sexual intercourse. Tr. Vol. I p. 208. 

[5] In October 2016, when detectives sought to use L.H. as a CI during a controlled 

buy with Smith, detectives were not aware of the full nature of L.H.’s and 

Smith’s previous interactions.

3

 On the night of the controlled buy, Detective 

Gaskill equipped L.H. with audio and video recording devices and two onehundred-dollar bills. Detective Gaskill was able to listen to a live audio feed 

2 In these previous encounters, L.H. was not working as a CI. 

3 Detective Gaskill testified that, had he known, he would not have used L.H. as the CI for the controlled buy 

with Smith. 
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during the controlled buy.

4 L.H. was aware that members of the drug task force 

would be nearby during the transaction. 

[6] On October 3, 2016, L.H. met Smith at an intersection as Smith instructed. 

When L.H. arrived, Smith got into the passenger seat of L.H.’s vehicle. Smith 

then instructed L.H. to drive to an apartment complex in Anderson. L.H. and 

Smith walked into the apartment where Smith retrieved the heroin before the 

two disputed the price of the heroin. Prior to the controlled buy, Detective 

Gaskill instructed L.H. to try to purchase more than one gram of heroin. L.H. 

was initially anticipating spending $130.00 per gram;

5 L.H. told Smith: “If you 

show me some love, then, . . . I will spend the whole two [ ] hundred.” Tr. Vol. 

I p. 222. L.H. responded affirmatively when asked by the deputy prosecutor if 

this phrase was “street lingo for getting more . . . drugs[.]” Id. Detective 

Gaskill similarly testified that L.H. was “ask[ing] for a little consideration” on 

the price. Tr. Vol. II p. 107. Ultimately, L.H. gave Smith the entire $200.00 

but received only one gram. 

[7] According to L.H., the following events transpired.6 After L.H. and Smith 

exchanged the money and heroin, L.H. got up to leave, and Smith “grabb[ed 

4 Detective Gaskill testified at the jury trial that the quality of the live audio is “[n]ot very good.” Tr. Vol. II 

p. 95. Detective Gaskill primarily uses the live audio to determine if the CI is in trouble. He is unable to 

review the video recording until after the recording equipment is returned to him. 

5 L.H. and Detective Gaskill believed $130.00 per gram to be the typical street price.

6 This version of events comes from L.H.’s testimony at Smith’s jury trial. As we will discuss further below, 

Smith argues the video contradicts portions of L.H.’s testimony. 
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L.H.’s] arm and pull[ed her] closer to [Smith],” which indicated to L.H. that 

Smith wanted L.H. “to stay and have sex.” Tr. Vol. I pp. 223-24. According to 

L.H., she then told Smith no “several times.” Id. at 224. L.H. also testified that 

she told Smith several times that she was in a hurry and needed to leave. Smith 

grabbed L.H.’s pants and asked L.H. if she was wearing a wire. L.H. 

responded: “You know me better than that.” Id. at 226. 

[8] Smith then “pull[ed] and guid[ed]” L.H. over to the couch near the front door. 

Id. With L.H.’s back to Smith, Smith pulled down L.H.’s pants. Smith then 

put his penis in L.H.’s vagina. L.H. did not yell for help or use the safety word 

because she knew Smith carried weapons, and L.H. was fearful that the 

situation would become violent if detectives stormed the apartment. 

[9] L.H. then left the apartment and met with Detective Gaskill to give him the 

heroin and recording equipment. Detective Gaskill asked L.H. if Smith and 

L.H. had sexual intercourse, which L.H. denied because she was embarrassed 

and “still trying to register” what occurred. Id. at 230. 

[10] Detective Gaskill returned to the police station and reviewed the audio and 

video recordings, which led him to conclude that sexual activity occurred

during the controlled buy. Detective Gaskill spoke with his supervisor, 

Detective Chad Boynton, regarding his concerns. The following day, 

Detectives Boynton and Gaskill met with L.H., who admitted that Smith raped 

her. L.H. told detectives that she did not yell for help because she was afraid 

and embarrassed. 
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[11] L.H. underwent a sexual assault examination at Community Hospital. After 

comparing the sperm fractions collected from L.H.’s vagina with the sample 

collected from Smith pursuant to a court order, “the analyst concluded that the 

DNA profile is seventy-seven (77) billion times more likely if it originated from 

[L.H.] and [Smith] than if it had originated from [L.H.] and an unknown 

individual.” Tr. Vol. II p. 62. 

[12] On May 14, 2019, the State filed an amended information and charged Smith 

with Count I, rape, a Level 3 felony; and Count II, dealing in a narcotic drug, a 

Level 5 felony.7

 At the August 2019 jury trial, the recording of the controlled 

buy was played for the jury. Although the audio is difficult to understand at

times, L.H. can be heard telling Smith “no” at least once; however, it is unclear 

what Smith said to L.H. prior to her saying “no.” State’s Ex. 10. L.H. asked 

Smith if she could return later, and L.H. asked Smith: “why won’t you let me”

leave and come back.8 See id. 

[13] The jury found Smith guilty of both Count I and Count II. At the sentencing 

hearing, the trial court found Smith’s criminal history9 as an aggravating factor 

7 The initial charging information, filed on June 27, 2017, alleged Count II, dealing in a narcotic drug, a 

Level 4 felony, instead of a Level 5 felony. No change was made to Count I. 

8 The precise wording is difficult to ascertain on the recording. 

9 According to Smith’s pre-sentence investigation report (“PSI”), Smith’s criminal history includes 

convictions for: possession of marijuana, a misdemeanor, in 2006; carrying a concealed weapon, a 

misdemeanor, and operating with a license suspended revoked or denied, a misdemeanor, in 2008; assault 

with a dangerous weapon, a felony, and domestic violence, a misdemeanor, in 2014; and possession of 

marijuana, a misdemeanor, in 2014. The misdemeanor and felony classifications for the offenses are not 
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and found no mitigating factors.10 The trial court sentenced Smith to twelve 

years for Count I and four years for Count II to run concurrently for an 

aggregate sentence of twelve years to be served at the Department of Correction 

(“DOC”). Smith now appeals. 

Analysis

I. Admission of Evidence

[14] Smith argues that the trial court erred by prohibiting Smith from introducing 

certain evidence. “The trial court has discretionary power on the admission of 

evidence, and its decisions are reviewed only for an abuse of that discretion.” 

Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015). An abuse of discretion occurs 

when the decision is clearly against the logic and effect of the facts and 

circumstances. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).

A. Third-Party DNA Evidence

[15] The trial court held a pretrial hearing regarding evidence Smith sought to 

introduce pursuant to Indiana Rule of Evidence 412 (“Rule 412”). In his brief, 

included. Smith’s PSI also includes several other arrests; however, no record of the outcome of those arrests 

is provided. 

10 The trial court noted that Smith’s criminal history was not the “lengthiest” or “most egregious.” Tr. Vol. 

II p. 214. In sentencing Smith, the trial court stated: 

And so, while I know that you have a lot of dispute with the lead charge in this case, that being the 

rape, but the Court is fashioning a sentence not only based on what the jury found you guilty of, but 

you put yourself in this position. You came down to our community to deal drugs and however you 

want to characterize it, but you were taking advantage of people that are addicted or become 

addicted to those drugs and that continues to establish a market and with any kind of dealing drugs, 

comes risks. 

Id. at 216. 
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Smith argues that information regarding third-party DNA found during L.H.’s 

sexual assault examination was included in his Indiana Rule of Evidence 412(b)

motion. Upon review of the motion Smith cites to in the Appellant’s 

Appendix, there is no mention of third-party DNA. Instead, Smith’s Indiana 

Rule of Evidence 412(b) motion sought to introduce evidence regarding Smith’s 

and L.H.’s prior sexual intercourse; the trial court allowed Smith to present this 

evidence. The third-party DNA issue, however, was discussed during a pretrial 

hearing. Prior to the beginning of Smith’s jury trial, the trial court ruled that it 

would exclude the evidence at that time, “absent another hearing to determine 

its relevance and, or admissibility.” Tr. Vol. I p. 100. 

[16] On appeal, Smith argues that denying admission of the third-party DNA was an 

abuse of discretion. Our review of the record reveals that Smith has waived this 

issue for our review. After the trial court’s preliminary ruling, Smith failed to

raise the issue again during trial or make an offer of proof. See Fowler v. State, 

929 N.E.2d 875, 881 (Ind. Ct. App. 2010) (“[Fowler] made no offer of proof 

with regard to her excluded testimony. Nor can the substance of her excluded 

testimony, along with its relevance to her defense, be discerned from the trial 

record.”). Pursuant to Indiana Rule of Evidence 103(a)(2), “A party may claim 

error in a ruling to admit or exclude evidence only if the error affects a 

substantial right of the party and: . . . (2) if the ruling excludes evidence, a party 

informs the court of its substance by an offer of proof, unless the substance was 

apparent from the context.” Accordingly, Smith has waived this issue for our 

review. 
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B. Facebook Messages

[17] During Smith’s jury trial, in response to L.H.’s testimony on cross-examination

that she did not recall communicating with Smith months before the controlled 

buy, Smith sought to refresh L.H.’s recollection with Facebook messages L.H. 

sent Smith three months prior11 to the rape. The State objected and argued that 

the messages were inadmissible because both the messages were not disclosed 

prior to trial as required by Rule 412. 

[18] The State also made an offer of proof wherein L.H. testified that the exhibit 

appeared to be messages from her Facebook account; however, L.H. did not 

recall sending the messages and reviewing the messages did not refresh her 

recollection. The trial court, however, allowed Smith to ask L.H. in front of the 

jury whether the exhibit refreshed her recollection and, if it did, Smith would be 

able to question L.H. about the messages. 

[19] In front of the jury, L.H. conceded that the Facebook messages appeared to 

have been generated from her account; however, L.H. did not recall sending the 

messages. After L.H. again testified her recollection was not refreshed, the 

parties had a conference with the trial court, and the trial court did not allow 

11 As can be seen in Figure 1, below, there is no date clearly visible on the paper copy of the proffered exhibit. 

At trial, Smith’s attorney questioned L.H. about the messages, stating that they were dated three months 

prior to the controlled buy and that the date could be seen more clearly on the digital copy of the proffered 

exhibit. On appeal, the State does not appear to contest this timing. 
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Smith to admit the messages “[be]cause [they] violate[ ] [Rule 412].” Tr. Vol. II 

p. 14. 

[20] On appeal, Smith argues the trial court abused its discretion in failing to admit 

the messages because: (1) the evidence was not proffered for an impermissible

Rule 412 purpose but, rather, to impeach L.H.’s prior inconsistent testimony; 

(2) if the content of the messages was inadmissible under Rule 412, an 

exception to Rule 412 was applicable; and (3) the evidence was admissible as a 

prior inconsistent statement under Indiana Rule of Evidence 613. The State 

counters that the Facebook messages were not properly authenticated pursuant 

to Indiana Rule of Evidence 901(a).

12 

[21] We begin by discussing whether Evidence Rule 412 precluded admission of the 

Facebook messages. Evidence Rule 412 provides: 

(a) Prohibited Uses. The following evidence is not admissible in 

a civil or criminal proceeding involving alleged sexual 

misconduct:

(1) evidence offered to prove that a victim or witness 

engaged in other sexual behavior; or

12 Indiana Rule of Evidence 901(a) states: 

In General. To satisfy the requirement of authenticating or identifying an item of evidence, the 

proponent must produce evidence sufficient to support a finding that the item is what the proponent 

claims it is. 
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(2) evidence offered to prove a victim’s or witness’s sexual 

predisposition.

(b) Exceptions.

(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;

(B) evidence of specific instances of a victim’s or 

witness’s sexual behavior with respect to the person 

accused of the sexual misconduct, if offered by the 

defendant to prove consent or if offered by the 

prosecutor; and

(C) evidence whose exclusion would violate the 

defendant’s constitutional rights.

Ind. R. Evid. 412. 

[22] We disagree with the trial court that the Facebook messages are protected by 

Rule 412. The messages do not mention sexual behavior or discuss L.H.’s prior 

sexual conduct as seen in Figure 1 (partially redacted). 
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Figure 1

[23] The messages could perhaps be classified as suggestive or flirtatious; however, 

this is not the type of evidence of conduct prohibited under Rule 412. See 

Zawacki v. State, 753 N.E.2d 100, 103 (Ind. Ct. App. 2001) (holding that 

evidence Zawacki sought to offer, namely, letters from the victim to Zawacki’s 

daughter requesting to be in a relationship and communicating the victim’s 

attraction to Zawacki’s daughter “does not concern any actual prior sexual 

activity or conduct on [the victim’s] part,” because the letters contain only 

written matter and, thus, did not fall within the confines of the Rape Shield 

Law), trans. denied. 

[24] Accordingly, we address Smith’s argument that the messages were admissible 

under Indiana Rule of Evidence 613(b), which states: “Extrinsic evidence of a 
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witness’s prior inconsistent statement is admissible only if the witness is given 

an opportunity to explain or deny the statement and an adverse party is given 

an opportunity to examine the witness about it, or if justice so requires. . . .” 

“‘[W]hen a prior inconsistent statement is used to impeach a witness, it is not 

hearsay because the statement is not used to prove the truth of the matter 

asserted.’” Estate of Dyer v. Doyle, 870 N.E.2d 573, 578 (Ind. Ct. App. 2007)

(quoting Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000)). For example, in 

Estate of Dyer, we held that the witness’s statement to an emergency room 

doctor was “arguably inconsistent with his testimony and could be used for 

impeachment purposes” under Evidence Rule 613(b). Id. The Facebook 

messages at issue here were arguably inconsistent with L.H.’s testimony 

regarding contact with Smith. Accordingly, the Facebook messages were

admissible for impeachment purposes. See id.

[25] Nonetheless, the trial court’s failure to admit this evidence is harmless. See Gray

v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013) (“Even when a trial court errs 

in excluding evidence, we will not find reversible error where that error is 

harmless; that is, where the error did not affect the substantial rights of a 

party.”). The jury already received information regarding L.H.’s and Smith’s 

prior sexual history. The jury also heard Smith ask L.H. whether she sent the 

Facebook messages to Smith three months prior. Although L.H. did not recall 

sending the messages, L.H. testified before the jury that it appeared to be her 

Facebook account that sent the messages. The messages themselves were 

innocuous and do not establish further contact between L.H. and Smith. The 
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exclusion of the exhibit containing the Facebook messages did not impact 

Smith’s substantial rights. 

II. Protective Order

[26] Smith argues the trial court abused its discretion in granting the State’s motion 

for a protective order. “Generally, the grant or denial of a discovery motion is 

within the trial court’s discretion and will be overturned only for an abuse of 

discretion.” Rogers v. State, 60 N.E.3d 256, 260 (Ind. Ct. App. 2016) (citations 

omitted), trans. denied. “An abuse of discretion will not be found unless the 

decision is clearly against the logic and effect of the facts and circumstances.” 

Id. 

[27] In pretrial proceedings, the State sought a protective order regarding, in part, 

“the description and identity of the type of recording device utilized by 

investigators [which] could place ongoing, existing, and future investigations 

and informants at risk of compromise and safety.” Appellant’s App. Vol. II p. 

122. Smith argued that the information was essential to his defense because a 

portion of the video was not in focus and did not capture the rape on camera; 

therefore, the defense needed to understand if L.H. had control over the video 

recording device. The trial court entered an order prohibiting Smith from 

discovering the nature and design of the recording devices used during the 

controlled buy. 
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[28] Pursuant to Indiana Trial Rule 26(C), the trial court may issue a protective 

order limiting broad discovery.

13 Our Supreme Court has established a “threestep test . . . for the discoverability of records by a criminal defendant in certain 

circumstances[.]” In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011). 

According to Crisis Connection: 

(1) there must be sufficient designation of the items sought to be 

discovered (particularity); (2) the requested items must be 

material to the defense (relevance or materiality); and (3) if the 

first two requirements are met, the trial court must grant the 

request unless there is a showing of paramount interest in 

nondisclosure.

Id. (quotations omitted).

[29] Regarding the first factor, both the State and Smith knew Smith sought to 

obtain information regarding the nature and design of the recording devices. As 

13 Indiana Trial Rule 26(C) states: 

(C) Protective orders. Upon motion by any party or by the person from whom discovery is sought, 

and for good cause shown, the court in which the action is pending or alternatively, on matters 

relating to a deposition, the court in the county where the deposition is being taken, may make any 

order which justice requires to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had; 

(2) that the discovery may be had only on specified terms and conditions, including a 

designation of the time or place; 

(3) that the discovery may be had only by a method of discovery other than that selected 

by the party seeking discovery; 

(4) that certain matters not be inquired into, or that the scope of the discovery be limited 

to certain matters; . . .
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to the second factor, regarding materiality, an item is “material” if it appears 

that it might benefit the preparation of the defendant’s case. Williams v. State, 

959 N.E.2d 360, 368 (Ind. Ct. App. 2012). Smith argues introduction of the 

device was material because “[L.H.] may have purposefully muffled the device 

during the time she was having sex with [Smith],” which, Smith argues, would 

“draw her credibility, motive, and intentions greatly into question.” 

Appellant’s Br. p. 35. The State argues that this information was immaterial to 

Smith’s defense because “Smith was given a chance to question witnesses about 

the devices, and the jury was presented with an opportunity to consider the 

possibility that the devices had been tampered with by L.H. prior to or during 

her rape.” Appellee’s Br. p. 39. 

[30] We are not convinced that L.H.’s potential manipulation of the camera offers a 

defense. Importantly, as the State points out, the trial court allowed Smith 

some latitude in questioning witnesses regarding the devices, and the discovery 

order was limited to the nature and design of the recording devices. See Tr. Vol. 

I pp. 39, 41 (Smith’s attorney argued that he wanted to ask L.H. questions such 

as: “You knew where the device was, did you receive specific instructions 

regarding the device? What were those instructions? Have you used this device 

before?” to which the trial court responded: “I think this line of questioning, 

again, doesn’t really get into the um, the nature and the design, where it was 

located, the particulars of the device, it has more to do with, which I think is 

part of the investigation then, the familiarity that [L.H.] may have had with the 

device.”). Moreover, in closing argument, Smith’s counsel argued, without 
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objection, that L.H. was controlling the device, that you could see several 

events during the controlled buy, and that “for some reason during the sex, the 

video goes blank.” Tr. Vol. II p. 157. Smith was merely limited from 

presenting evidence regarding the nature and design of the recording 

equipment. 

[31] Finally, we consider whether the State demonstrated a paramount interest in 

non-disclosure. “Whether a sufficient interest has been shown to prevent 

discovery will depend upon the type of interest put forth and the category of 

information sought. A legitimate interest in keeping the information or items 

confidential, for example, may suffice to deny discovery.” Williams, 959 

N.E.2d at 368 (quotations omitted). Here, the State argued at the hearing 

regarding the protective order that “the nature of the device is sensitive to 

ongoing [ ] investigations[.]” Tr. Vol. I p. 7. We agree. The information Smith 

sought—such as where the device was kept and how a CI works that device—

could compromise investigations and endanger other CIs. 

[32] Based on the foregoing, the trial court did not abuse its discretion in granting 

the State’s protective order regarding the recording devices. 

III. Prosecutorial Misconduct

[33] Smith argues the deputy prosecutor committed prosecutorial misconduct during 

L.H.’s identification of Smith. When reviewing a claim of prosecutorial 

misconduct, we must determine whether the prosecutor: (1) engaged in 

misconduct that, (2) under all of the circumstances, placed the defendant in a 
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position of grave peril to which he or she would not have been otherwise 

subjected. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014); see also Nichols v. State, 

974 N.E.2d 531, 535 (Ind. Ct. App. 2012). “‘Whether a prosecutor’s argument 

constitutes misconduct is measured by reference to case law and the Rules of 

Professional Conduct.’” Nichols, 974 N.E.2d at 535 (quoting Cooper v. State, 854 

N.E.2d 831, 835 (Ind. 2006)). We measure the weight of the peril by the 

probable persuasive effect of the misconduct on the jury rather than the degree 

of impropriety of the conduct. Id.

[34] During L.H.’s testimony at trial, the following events transpired: 

[DEPUTY PROSECUTOR]: Okay . . . . Do you know the 

Defendant, Valonte Smith?

[L.H.]: Yes.

[SMITH’S COUNSEL]: Well, Judge. . . let the record reflect that 

[the deputy prosecutor] turned and pointed at [Smith] as he’s 

asking the witness if she knows [Smith], and I would object to 

that in-court identification.

THE COURT: Okay. Objection noted. Continue, [deputy 

prosecutor]. 

[DEPUTY PROSECUTOR]: I noticed, ma’am, that you’re 

having trouble looking –

[L.H.]: I didn’t even look over there, but yes I do. 
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[DEPUTY PROSECUTOR]: Okay. And we’ll get to the, to the 

video and, and talk about that and everything like that, but you 

know someone by the name of Valonte Smith, correct?

[L.H.]: Yes. 

[DEPUTY PROSECUTOR]: And he’s in fact sitting over there?

[L.H.]: Yes. 

Tr. Vol. I p. 204. 

[35] Smith argues that the deputy prosecutor was “impermissibly suggestive” during 

L.H.’s in-court identification of Smith and that, as a result, the jury “was sure to 

see [Smith] as the man in the video, despite its poor quality, because [L.H.] had 

identified him at the direction of the Deputy Prosecutor.” Appellant’s Br. pp. 

18, 38. Even if the deputy prosecutor impermissibly gestured to Smith when 

asking L.H. to identify Smith, Smith was not placed in a position of grave peril. 

[36] Smith’s argument regarding grave peril—that the jury was “sure” to see Smith 

as the man in the video despite its poor quality—is unpersuasive because Smith 

did not argue at any point during the trial that he was not the person in the 

video. In fact, in opening argument, Smith conceded that he was on the video 

dealing heroin. Thus, the alleged misconduct had no probable persuasive effect 
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on the jury, and Smith failed to demonstrate that he was subject to grave peril.14 

Smith has failed to meet his burden that the deputy prosecutor committed 

misconduct. 

IV. Jury Instructions

[37] Smith argues the trial court improperly instructed the jury. The State proposed 

Instruction 5, and the trial court adopted the State’s instruction as written over 

Smith’s objection. Instruction 5 stated: 

The presence or absence of forceful compulsion is to be 

determined from an objective and reasonable perspective of the 

victim, not the assailant. You may consider the victim’s 

perception of the circumstances surrounding the incident in 

question, but this must also be an objective and reasonable

perspective under the circumstances. The issue is whether under 

the circumstances presented the victim reasonably perceived the 

aggressor’s force or imminent threat of force as compelling her 

compliance. 

Appellant’s App. Vol. II p. 141 (emphasis added). 

[38] In reviewing a trial court’s decision to give or refuse tendered 

jury instructions, this Court considers: (1) whether the instruction 

correctly states the law; (2) whether there is evidence in the 

record to support the giving of the instruction; and (3) whether 

14 Smith argues that the improper identification tainted all future identifications of Smith, such as Detective 

Gaskill’s identification. At trial, Detective Gaskill was asked if he recognized Smith as the person from the 

video. In light of the fact that Smith conceded in opening argument that he was in the video dealing heroin, 

we do not believe this testimony was impacted by the deputy prosecutor’s and L.H.’s prior remarks. 
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the substance of the tendered instruction is covered by other 

instructions which are given. 

Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002). “Instructing a jury is a 

matter assigned to trial court discretion, and an abuse of that discretion occurs 

when the instructions, as a whole, mislead the jury as to the law in the case.” 

Newbill v. State, 884 N.E.2d 383, 394 (Ind. Ct. App. 2008) (citing Ham v. State, 

826 N.E.2d 640, 641 (Ind. 2005)), trans. denied. “Jury instructions must be 

considered as a whole and in reference to each other, and even an erroneous 

instruction will not be reversible error if the instructions taken as a whole do not 

misstate the law or otherwise mislead the jury.” Filice v. State, 886 N.E.2d 24, 

37 (Ind. Ct. App. 2008) (citations omitted), trans. denied. “Before a defendant is 

entitled to a reversal, he must affirmatively show that the instructional error 

prejudiced his substantial rights.” Id.

[39] Smith concedes the instruction “may correctly state the law, and there is 

evidence in the record which could be construed to support the giving of the 

instruction.” Appellant’s Br. p. 40. Smith argues, however, argues that the 

“instruction’s interaction with other instructions . . . creates the problem.” Id. 

[40] Smith’s argument is based on Newbill v. State, 884 N.E.2d 383, 393 (Ind. Ct. 

App. 2008), trans. denied. In Newbill, the trial court instructed the jury that: 

It is the victim’s perspective, not the assailant’s, from which the 

presence or absence of forceful compulsion is to be determined. 

This is a subjective test that looks to the victim’s perception of the 

circumstances surrounding the incident in question. The issue is 

whether the victim perceived the aggressor’s force or imminent 
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threat of force as compelling her compliance. The element of 

force may be inferred from the circumstances.

Newbill, 884 N.E.2d at 393. Our Court held that this instruction “may not 

properly reflect the perspective from which a jury should consider the evidence 

of forceful compulsion.” Id. Instead, our Court held, “the ‘perspective’ for a 

jury’s consideration of the evidence of forceful compulsion in a rape trial might 

better be described as either the ‘objective perspective of the victim’ or the 

‘reasonable perspective of the victim.’” Id. (footnote omitted). We discouraged

trial courts from using this language as an instruction in the future. Regardless, 

we then held that, “read as a whole, the instructions properly informed the jury 

that it was to consider the testimony and evidence presented, and to judge that 

evidence in order to reach its conclusion of whether the State established, 

beyond a reasonable doubt, that Newbill knowingly or intentionally exerted 

force that compelled H.R. to submit to sexual intercourse.” Id. at 394. 

[41] We observe that here the trial court did not use the instruction found in Newbill; 

rather, the instruction given by the trial court addressed the concerns raised in 

Newbill and provided that it was both the reasonable and objective perspective 

of L.H. framed the question of forceful compulsion. Contrary to Smith’s 

argument, the instruction did not “relieve[] the State of its burden as to proving 

each element objectively and beyond a reasonable doubt.” Appellant’s Br. p. 

41. Accordingly, we find the trial court did not abuse its discretion by giving

Instruction 5. 
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V. Insufficient Evidence

[42] Smith argues the evidence is insufficient to support his rape conviction. When 

a challenge to the sufficiency of the evidence is raised, “[w]e neither reweigh 

evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 

(Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied), 

cert. denied. Instead, “we ‘consider only that evidence most favorable to the 

judgment together with all reasonable inferences drawn therefrom.’” Id.

(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is 

supported by ‘substantial evidence of probative value even if there is some 

conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also 

McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though 

there was conflicting evidence, it was “beside the point” because that argument 

“misapprehend[s] our limited role as a reviewing court”). “We will affirm the 

conviction unless no reasonable fact-finder could find the elements of the crime 

proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 

2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

[43] Smith was convicted of rape, a Level 3 felony, pursuant to Indiana Code 

Section 35-42-4-1(a)(1), which states: 

Except as provided in subsection (b), a person who knowingly or 

intentionally has sexual intercourse with another person or 

knowingly or intentionally causes another person to perform or 

submit to other sexual conduct . . . when: 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020 Page 24 of 31

(1) the other person is compelled by force or imminent 

threat of force; 

* * * * *

commits rape, a Level 3 felony. 

[44] Smith argues that the evidence is insufficient to prove that Smith used force or 

the imminent threat of force to compel L.H. to have sexual intercourse and that 

L.H. did not consent. As our Supreme Court explained in Tobias v. State, 666 

N.E.2d 68, 72 (Ind. 1996): 

[I]t is the victim’s perspective, not the assailant’s, from which the 

presence or absence of forceful compulsion is to be determined. 

This is a subjective test that looks to the victim’s perception of the 

circumstances surrounding the incident in question. The issue is 

thus whether the victim perceived the aggressor’s force or 

imminent threat of force as compelling her compliance.

“Further, in the sufficiency context, the force necessary to sustain a conviction 

of rape need not be physical and it may be inferred from the circumstances.” 

Newbill, 884 N.E.2d at 392 (quotations and citations omitted). 

[45] Here, there was sufficient evidence of force to sustain Smith’s conviction. The 

jury was able to hear the audio recording in addition to L.H.’s testimony 

regarding the rape. L.H. can be heard on the recording telling Smith “no” at 
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least once.

15 See State’s Ex. 10. L.H. stated several times that she needed to 

leave to go to the local high school. L.H., in an effort to leave, even asked 

Smith if she could leave and come back later. The recording also captured L.H. 

asking Smith why he will not allow her to leave. In his brief, Smith concedes 

that he “grabbed” L.H.’s arm and “guided” her to the couch.

16 Appellant’s Br. 

p. 19. From these facts, a jury could reasonably conclude that Smith prevented

L.H. from leaving and forced L.H. to comply with his demands. 

[46] Smith’s arguments that L.H. consented because: (1) there “is no evidence that 

[L.H.] was hit, injured, pushed down, held down, or otherwise physically 

overcome,” Appellant’s Br. p. 19; (2) Smith was merely acting in conformity 

with past consensual behaviors; (3) Smith touched L.H. only to look for a wire 

and not to compel sexual intercourse; (4) L.H. did not tell Smith “no” to having 

sexual intercourse; and (5) L.H. was scared of the detectives’ presence causing 

violence, instead of Smith’s violence, are merely requests for us to reweigh 

evidence, which we cannot do. Appellant’s Br. p. 19; see Gibson, 51 N.E.3d at 

210. Accordingly, we find the evidence is sufficient to support Smith’s 

conviction for rape, a Level 3 felony. 

15 It is unclear on the recording what Smith says before L.H. says “no.” 

16 Even if this action was consistent with Smith’s and L.H.’s prior consensual encounters, L.H.’s testimony 

and the audio recording demonstrate that L.H. audibly contested Smith’s actions. 
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VI. Ineffective Assistance of Counsel 

[47] Smith next argues that he received ineffective assistance of counsel because his 

attorney failed to cross-examine L.H. on several issues.17 To prevail on a claim 

of ineffective assistance of counsel, the appellant must demonstrate both that: 

(1) his or her counsel’s performance was deficient, and (2) the petitioner was 

prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 

106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064 (1984)), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). 

The failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 

845 N.E.2d 1027, 1031 (Ind. 2006). Ineffective assistance of counsel claims, 

thus, can be resolved by a prejudice analysis alone. Id. To demonstrate 

prejudice, “the defendant must show that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018)

(quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052). Finally, “[t]o support 

such a claim of ineffective assistance of counsel, it is often necessary to develop 

17 “‘A postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim.’” 

McIntire v. State, 717 N.E.2d 96, 101 (Ind. 1999) (quoting Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998)). 

“Presenting such a claim often requires the development of new facts not present in the trial record. The 

assessment of such a claim requires a court to consider the overall performance of counsel and the reasonable 

probability that the alleged error affected the outcome.” McIntire, 717 N.E.2d at 101. Because Smith has 

chosen to raise this issue on direct appeal, “the issue will be foreclosed from collateral review.” Id. at 102

(quotations omitted). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020 Page 27 of 31

facts beyond those contained in the trial record.” Jewell v. State, 887 N.E.2d 

939, 942 (Ind. 2008). 

[48] Smith argues that counsel rendered ineffective assistance by failing to crossexamine L.H. regarding whether: (1) the video was inconsistent with L.H.’s 

testimony that she told Smith “no” before he raped her; (2) L.H. said “no” to

Smith’s question regarding a wire and not to sexual intercourse; (3) “the tone 

and disposition of [L.H.’s] voice was the same before she had sex with Mr. 

Smith as it was after”; and (4) any threat of force L.H. may have felt came from 

fear the police may cause a shootout, and not from Smith. Appellant’s Br. p. 

17. 

[49] Smith’s counsel cross-examined L.H. on other issues regarding her credibility

and on inconsistencies in her testimony. “It is not our prerogative to secondguess deliberate and informed choices made by an attorney for tactical or 

strategic reasons.” Weaver v. State, 432 N.E.2d 5, 8 (Ind. 1982). Moreover,

Smith has failed to demonstrate that he was prejudiced. The jury was able to 

hear the audio from the controlled buy and L.H.’s testimony and discern on 

their own whether they found L.H. to be credible and whether L.H.’s testimony 

was inconsistent with the audio evidence. Accordingly, Smith has failed to 

meet his burden to demonstrate that he received ineffective assistance of 

counsel. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020 Page 28 of 31

VII. Inappropriate Sentence

[50] Finally, Smith argues that his sentence is inappropriate in light of the nature of 

the offense and Smith’s character.18 Smith asks that we review and revise his 

sentence pursuant to Indiana Appellate Rule 7(B), which provides that we may 

revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, we find that the sentence “is inappropriate in light of the 

nature of the offense and the character of the offender.” The defendant bears 

the burden to persuade this court that his or her sentence is inappropriate. 

Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App. 2012) (citing Childress v. 

State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied. 

[51] In Indiana, trial courts can tailor an appropriate sentence to the circumstances 

presented; the trial court’s judgment receives “considerable deference.” Sanders 

v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895 

18 Smith makes two other arguments in his brief. First, Smith also argues that the trial court did not comply 

with the requirements in Harris v. State, 659 N.E.2d 522, 527-28 (Ind. 1995), that the trial court should: (1) 

identify the aggravating and mitigating circumstances; (2) state the specific reason why the circumstances are 

aggravating or mitigating; and (3) articulate the balancing of the factors at sentencing. As the State notes, 

however, Harris was decided prior to Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), which held that the 

trial courts “no longer [have] any obligation to weigh aggravating and mitigating factors against each other 

when imposing a sentence” (internal quotations omitted). Importantly here, the trial court entered a lengthy

oral sentencing statement and articulated the aggravating and mitigating factors. Smith’s argument that the 

trial court did not ascribe the weight to be given to each factor is not required under Anglemyer. 

Second, Smith argues that the trial court improperly considered the fact that Smith put himself in a situation 

to deal drugs as an aggravating factor. We do not find support for Smith’s argument that the trial court 

considered this an aggravating factor; the trial court was clear that Smith’s criminal history was the sole

aggravating factor. Nonetheless, as the State points out, this argument would have been more appropriately 

framed as the trial court abusing its discretion, and because Smith does not outline this standard in his brief, 

we consider this argument waived. See Ind. Appellate Rule 46(A)(8)(b) (“[t]he argument must include for 

each issue a concise statement of the applicable standard of review[.] . . .”). 
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N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our 

review, we do not look to see whether the defendant’s sentence is appropriate or 

“whether another sentence is more appropriate; rather the question is whether 

the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 

(Ind. 2015) (citations and quotations omitted and emphasis supplied). 

[52] We look to the statutory range established for the classification of the offense. 

The jury found Smith guilty of rape, a Level 3 felony; and dealing in a narcotic 

drug, a Level 5 felony. The sentence for a Level 3 felony ranges from three to 

sixteen years with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). 

The sentence for a Level 5 felony ranges from one year to six years, with an 

advisory sentence of three years. Ind. Code § 35-50-2-6(b). Here, the trial court 

imposed twelve years for the Level 3 felony and four years for the Level 5 

felony, to run concurrently, for an aggregate sentence of twelve years. 

[53] First, we consider the nature of Smith’s offense. Smith sold L.H. heroin while, 

unbeknownst to Smith, L.H. was working as a CI for the Anderson Police 

Department. Smith waited until the two were at an apartment to sell L.H. the 

heroin. Smith then grabbed L.H. by the arm as she was leaving. L.H. made 

several excuses to leave, including asking Smith if he would let her leave and 

return later. L.H. did not scream or ask for help because she knew Smith to 

carry weapons, and L.H. feared for her safety if she asked for help. Despite 

L.H.’s efforts to leave the apartment, Smith raped L.H.
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[54] Next, we examine Smith’s character. According to Smith’s PSI, Smith’s 

criminal history includes five misdemeanors and one felony between 2006 and 

2014. Smith’s offenses range from weapons charges to drug offenses, and at 

least two offenses involving violence. The trial court acknowledged that 

Smith’s criminal history was not the most extensive the trial court had ever 

seen; however, the trial court properly used Smith’s criminal history as an 

aggravating factor. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 

2007) (“[A]lthough Rutherford’s criminal history is not aggravating to a high 

degree, it still is a poor reflection on his character.”); see also Pruitt v. State, 78 

N.E.2d 14, 22 (Ind. Ct. App. 2017) (finding that an aggravated and consecutive 

sentence would have been permissible “based on a single aggravating factor”), 

trans. denied. 

[55] Finally, Smith also argues that he is not among the worst offenders; therefore, 

his sentence is inappropriate. The trial court, however, did not impose the 

maximum sentences and did not even impose consecutive sentences. 

Accordingly, Smith’s argument that he is not the worst offender and that his 

below-the-maximum sentence should be reduced is unavailing. Given the 

nature of the offense and Smith’s character, we cannot say that Smith’s twelveyear sentence inappropriate. 

Conclusion

[56] In light of the foregoing, the trial court did not abuse its discretion in denying 

admission of certain evidence; Smith has failed to meet his burden that the 

deputy prosecutor committed misconduct; the trial court did not abuse its 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2333| June 17, 2020 Page 31 of 31

discretion in instructing the jury; the evidence was sufficient to convict Smith of 

rape, a Level 3 felony; Smith did not receive ineffective assistance of counsel; 

and Smith’s sentence is not inappropriate. Accordingly, we affirm. 

[57] Affirmed.

Mathias, J., concurs.

Riley, J., concurs in result without opinion.