II v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Gary L. Martin, II, appeals following his three convictions of Level 1 felony rape ¹ and his adjudication as a habitual offender.² Martin presents two issues for our review, which we reorder and restate as:

1. Whether fundamental error arose from the repetitive presentation of evidence regarding the alleged victim's hospitalizations for suicidal ideation; and

2. Whether the prosecutor's comments during closing argument about the alleged victim being suicidal the week of trial constituted prosecutorial misconduct requiring a new trial.

We affirm.

Facts and Procedural History

[2] On the evening of August 23, 2023, B.O. was at a friend's house in Elkhart when she encountered Martin, whom she had met once before. Martin offered B.O. a ride in his truck, which she accepted. Martin drove very recklessly and then parked in front of a house belonging to his friend. After he parked, Martin grabbed B.O. by the throat, dragged her to a storage shed behind the house, and slammed her on the floor of the shed. Martin removed B.O.’s maroon dress, kissed her mouth, neck, and left breast, and digitally penetrated her anus. He pointed a gun at her head and cut her arm with a knife. Martin then exposed his penis and stated “bitch, you're going to take it, or I'll kill you” before penetrating B.O.’s vagina with his penis. (Ex. Vol. X at 13.) He also performed oral sex on her. After the assault, Martin left the shed and went into the house on the same property. B.O. put on some clothing that she found in a nearby alley and looked for help.

[3] At approximately 11:20 that evening, Aireal Woods was returning home from work and parked her car in front of her house. When she stepped out of her car, she heard a woman “screaming for help down the street.” (Tr. Vol. V at 28.) Woods found B.O. curled up “in a ball rocking back and forth, crying.” (Id. at 29.) B.O. was barefoot; her face was red; she had injuries on her chest, wrists, knees, and ankles; her clothing was inside-out and backwards; and her hair was disheveled. B.O. told Woods “he raped me and ․ he took everything of [mine].” (Id. at 30.) She pointed to Martin's truck down the street to show Woods who was responsible. Woods called the police.

[4] Law enforcement personnel responded to the scene. When Officer Daniel Mayer encountered B.O., she was crying, and he noted she had cuts on her arms, scrapes on her knees, and a red mark on her neck. B.O. described how she had been “battered, cut, and raped in a shed. Someone held a gun to her head.” (Tr. Vol. V at 53.) Officers located Martin inside the house in front of which he had parked his truck. Police found B.O.’s maroon dress in the shed behind the house, along with an extensive collection of bladed weapons, firearms, and replica weapons inside the house.

[5] Emergency medical personnel transported B.O. to the hospital for a sexual assault examination. The medical examiner documented B.O. had injuries “throughout her body,” including various lacerations, bruises, surface abrasions, restraint markings, and areas of redness and inflammation. (Tr. Vol. VI at 205-6.) Her injuries were consistent with having been raped. Dirt and debris were present in the creases of B.O.’s neck, abdominal area, bra, genital region, and anal area. Forensic DNA testing confirmed the presence of genetic material consistent with Martin on B.O.’s neck, vaginal area, and anal area.

[6] Approximately twelve hours after the assault, around midday on August 24, 2023, B.O. returned to the hospital and reported that “she was sexually assaulted last night” and that she “could not stop thinking of the assault and that she had the urge to jump in the river to end her life.” (Tr. Vol. VII at 110.) Medical professionals initiated a seventy-two-hour psychiatric hold for B.O.’s safety and then transferred her to a mental health facility.

[7] The State charged Martin with Level 6 felony intimidation,³ Level 6 felony strangulation,⁴ and three counts of Level 1 felony rape. The State also alleged Martin was a habitual offender. Before trial, defense counsel filed motions in limine challenging the admissibility of any evidence relating to B.O.’s suicidal thoughts and contending that evidence carried greater prejudicial impact than probative value. When it became clear that B.O. would not appear to testify at trial because she remained in a mental health facility, the trial court determined testimony about B.O.’s suicidal ideation was admissible to explain her absence from trial. The trial court also authorized the prosecution to argue during closing statements that B.O.’s suicidal ideation was connected to the rape, if such an argument was supported by testimony at trial.

[8] Throughout the six-day jury trial, the prosecution presented witness testimony, physical evidence, comprehensive medical documentation of B.O.’s injuries, and DNA evidence. The emergency room doctor who treated B.O. the day after the alleged rape testified that B.O. returned to the hospital with suicidal ideation. During cross examination, that doctor testified from B.O.’s medical records about B.O.’s mental illness, drug addiction, and prior hospital admission for suicidal ideation. A case worker testified that B.O. was unable to attend Martin's trial because she remained in a mental health facility due to suicidal ideation. The defense strategy centered on undermining B.O.’s credibility, with counsel explicitly stating that the “case turns completely on victim credibility.” (Tr. Vol. V at 20.) Defense attorneys conducted extensive cross-examination of witnesses regarding B.O.’s documented history of mental health disorders and substance abuse, eliciting testimony suggesting her untreated psychiatric conditions could potentially result in psychotic episodes or hallucinatory experiences. During closing argument, the prosecutor argued it was unsurprising that B.O. was suicidal the week of trial when all of her medical records were being made public in a trial that was available for viewing on the internet.

[9] The jury found Martin guilty of three counts of Level 1 felony rape and one count of Level 6 felony intimidation. Following the jury verdicts, Martin admitted his status as a habitual offender. At the sentencing hearing, the State moved to vacate the intimidation count on double jeopardy grounds, and the trial court granted that motion. The trial court then imposed a sixty-year sentence: forty years for each of the rape convictions, which would be served concurrently, with the first count enhanced by an additional twenty years due to Martin's habitual offender status.

Discussion and Decision

1. Evidence of B.O.’s suicidal ideation

[10] Martin contends fundamental error arose from the repetitive presentation of evidence that B.O. was hospitalized for suicidal ideation. We generally review the admission of evidence for an abuse of discretion, because the “admission or exclusion of evidence rests within the sound discretion of the trial court[.]” Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012)), cert. denied, 145 S. Ct. 424 (2024). Herein, however, Martin is challenging not any single reference to B.O.’s suicidal ideation, but rather the repetition of that information, which he claims created fundamental error. Fundamental errors are those that constitute “a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).

[11] Martin notes that both the emergency room doctor who admitted B.O. for a seventy-two hour hold and B.O.’s work release case worker testified more than once about B.O.’s suicidal ideation, and he argues the prejudice that occurred from that repetition should constitute reversible error like the repetition of the victim's statements in Stone v. State, 536 N.E.2d 534 (Ind. Ct. App. 1989), trans. denied. In Stone, the defendant argued that the trial court abused its discretion by admitting seven statements that recounted the child victim's allegations against the defendant, six of which were out-of-court statements made by the child to other people. We held that repetition unduly prejudiced the defendant's substantial rights because the “repetition probably built [the victim's] credibility to such a height Stone's presumption of innocence was overcome long before he got to the stand to deny the charges against him.” Id. at 540.

[12] The situation herein is not like Stone because the statements of the emergency room doctor and case worker indicated that B.O. was suicidal, either in the past or presently; they did not repeat B.O.’s allegation of rape by Martin. The drumbeat repetition rule, which was developed in Modesitt v. State, 578 N.E.2d 649 (Ind. 1991), primarily addresses hearsay concerns and repetition of the victim's specific allegations of criminal behavior by the defendant. Kress v. State, 133 N.E.3d 742, 747 (Ind. Ct. App. 2019), trans. denied. The evidence challenged by Martin is not hearsay repetition of B.O.’s allegation of rape and, as such, is not creating the sort of prejudicial drumbeat that our courts have found objectionable. See, e.g., id. at 748 (no reversible drumbeat repetition when subsequent witnesses gave only general statements and did not delve into the allegation against the defendant).

[13] Moreover, Martin used evidence of B.O.’s longstanding suicidality as part of his defense strategy to attack B.O.’s credibility. Defense counsel extensively cross-examined the emergency department physician about B.O.’s mental health history and elicited testimony that B.O. was suicidal prior to the rape allegation, which implies that any subsequent suicidal ideation was preexisting rather than tied to Martin's actions. Defense counsel also elicited testimony that B.O.’s untreated mental health issues could result in psychosis or hallucinations, and that use of illegal drugs could potentially exacerbate existing mental health conditions. During closing argument, defense counsel explicitly argued that the jury should not believe B.O. because of her extensive mental health and substance abuse issues, stating she had “mental health issues such as anxiety, bipolar disorder, current episode mixed severe without psychotic features ․ methamphetamine use disorder ․ polysubstance use disorder ․ [and] severe mixed bipolar disorder with psychotic features.” (Tr. Vol. VIII at 174-75).

[14] Finally, the evidence of Martin's guilt was overwhelming – when police encountered B.O., she had fresh physical injuries consistent with sexual assault; police found her dress in the shed where she told police that Martin had raped her; Martin's truck was parked in front of the property where that shed was located, and Martin himself was in the house on that same property; police found weapons consistent with those used to threaten and injure B.O. inside the house where Martin was found; and DNA consistent with Martin was found on B.O.’s neck, vaginal area, and anal area. The jury was also able to watch the body camera footage of B.O.’s distress and injuries as she gave her initial report of rape to Officer Mayer. In light of all the evidence of Martin's guilt, his ability to use the challenged evidence to support his defense, and the inapplicability of the rule prohibiting drumbeat repetition, Martin has not demonstrated fundamental error that denied him a fair trial. See, e.g., Kress, 133 N.E.3d at 748 (no reversible drumbeat repetition when subsequent witnesses gave only general statements and did not delve into the allegation against the defendant).

2. Prosecutorial Misconduct

[15] Martin next argues the prosecutor committed misconduct during closing argument. Having failed to object at trial, Martin must establish that any alleged misconduct constituted fundamental error. Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021) (“whether styled as ‘prosecutorial misconduct’ or trial-court error, Tate must establish fundamental error on appeal” when he failed to object at trial). As we noted above, errors are fundamental if they “made a fair trial impossible or amounted to a clear violation of basic due-process principles.” Id.

[16] Martin alleges fundamental error from the following closing argument by the prosecutor:

This is open court. You have seen people come in and out and that's how this is designed. This is live streamed. I could be anywhere and log in to watch this trial. And on the World Wide Web, B.O.’s private mental health records have been picked apart. Her private medical records have been picked apart. The world now knows about her substance abuse and the world now knows about her wanting to kill herself. It's got to be horrible to be a victim. No wonder she was suicidal this week as well.

(Tr. Vol. VIII at 151.)

[17] Martin argues the prosecutor undermined his rights to a public trial and to confront witnesses, but this argument misses the mark. The prosecutor did not discourage the exercise of constitutional rights but rather explained why the evidence supported B.O.’s credibility despite her inability to testify at trial that week. Moreover, the prosecutor's brief comment, viewed in the context of the entire argument and of the evidence presented at trial, did not make a fair trial impossible. As we noted above, the evidence of Martin's guilt was overwhelming –B.O. had fresh physical injuries consistent with sexual assault; her dress was in the shed where she told police that Martin had raped her; his truck was parked in front of the property and he was in the house with weapons consistent with those used to threaten and injure B.O.; and his DNA was found on B.O.’s neck, vaginal area, and anal area. The jury saw the footage of B.O. giving her initial report of rape to Officer Mayer. In light of all of this evidence of Martin's guilt, he cannot demonstrate the prosecutor's comment resulted in fundamental error. See, e.g., Jerden v. State, 37 N.E.3d 494, 500 (Ind. Ct. App. 2015) (holding defendant had not demonstrated fundamental error because “[w]here there is overwhelming independent evidence of a defendant's guilt, error made by a prosecutor during the closing argument is harmless”).

Conclusion

[18] The evidence admitted about B.O.’s suicidal ideation did not constitute improper drumbeat repetition that could be deemed fundamental error. Nor did the prosecutor's statement during closing argument create fundamental error. Accordingly, we affirm the trial court's judgment.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-1.

2.   Ind. Code § 35-50-2-8.

3.   Ind. Code § 35-45-2-1.

4.   Ind. Code § 35-42-2-9.

May, Judge.

Judges Weissmann and Scheele concur. Weissmann, J., and Scheele, J., concur.