author: ROBB, Chief Judge.

text:
    Duane LEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1105-CR-225.
    Court of Appeals of Indiana.
    May 17, 2012.

      Elien M. O'Connor, Marion County Pub-lie Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Following a home invasion, robbery, rape, and police chase, Duane Lee, who was then seventeen years old, was arrested. While in custody, authorities acted on Lee's mother's consent to swab his hands, fingers, and penis for DNA evidence. DNA test results of such swabs were entered into evidence and a jury found Lee guilty of thirteen offenses, upon which the trial court entered a judgment of convietion: burglary as a Class B felony, rape as a Class A felony, six counts of eriminal deviate conduct as Class A felonies, robbery as a Class B felony, resisting law enforcement as a Class A misdemeanor, criminal confinement as a Class B felony, intimidation as a Class C felony, and pointing a firearm as a Class D felony. On appeal, Lee raises a single issue, which we restate as whether the trial court committed fundamental error in allowing the State to introduce into evidence the DNA test results obtained pursuant to Lee's mother's consent without her meaningful consultation with Lee and without Lee knowingly and voluntarily waiving his rights. We conclude that the police acted improperly in swabbing Lee's penis and the trial court erred in allowing results of that DNA test into evidence. We also conclude that other evidence presented renders the error harmless; therefore, we affirm Lee's convictions.

Facts and Procedural History

During the evening of November 11, 2009, three men, wielding at least one gun among them, broke down the door to K.P.'s boyfriend's apartment and entered the home. One wore a black shirt and a ski mask, the second wore a blue shirt, and the third wore a red shirt. They ordered K.P. to lie on the floor while they ransacked the home for valuables and then left. Moments later, before K.P. could leave the apartment to report what had happened, the three men returned.

Ordered at gunpoint, K.P. walked to the bathroom and removed all of her clothes but her socks. KP. was five months pregnant and told them so. At least one fondled her breasts and then two left the bathroom and closed the door leaving K.P. alone with the man in the black shirt and ski mask and his gun. The man in the black shirt forced his fingers into K.P.'s vagina, unzipped his pants, and ordered her to place his penis in her mouth. She did so until he ejaculated in her mouth. He left the bathroom for a moment and upon returning he ordered she place his penis in her mouth again. The man in the blue shirt also entered the bathroom, placed a gun to K.P.'s head, and demanded she perform oral sex upon him, too. K.P. threw up and the man in the blue shirt forced his penis in her mouth again before exiting the bathroom. When the man in the blue shirt left the bathroom, the man in the black shirt foreed his penis into K.P.'s mouth yet again. At some point when the man in the black shirt was speaking to K.P., she recognized his eyes and mouth as those of Lee. She had met Lee before and knew him to be her boyfriend's sister's children's father. Transcript at 102-08. The man in the blue shirt returned to the bathroom where K.P. was and partially inserted his penis into K.P.'s anus, but K.P. removed it and the man in the blue shirt began violent vaginal intercourse with K.P. One of the other two men told the man in the blue shirt that they were leaving, and the three males then left the apartment. KP. sought help and her neighbor called police.

Officer Aaron Hamer, responding to the emergency call, spotted a male crouched in dark clothes near K.P.'s apartment and asked the figure to show his hands because Officer Hamer thought he saw a gun in the figure's pocket. The figure began running and Officer Hamer chased him through the neighborhood, running across yards and vaulting fences. Officer Hamer ordered the figure to stop several times and tased the figure, but the figure ignored the orders to stop, broke away from the taser, and continued running. Officer Hamer finally eaught up to and grabbed the figure, who punched and kicked Officer Hamer. Officer Hamer handcuffed the figure, who then identified himself as Lee. Another officer soon brought K.P. nearby in a police vehicle and shone a bright light on Lee, who was handcuffed and standing next to a police vehicle for K.P. to see. K.P. told officers that he was one of the perpetrators. A black ski mask, a gun, and a cellular phone were recovered along the route that Officer Hamer chased Lee.

Lee was transported directly to the office of Detective Derek Cress, and Lee's mother also arrived there in response to a call from police. Lee's mother was summoned because Lee was under the age of eighteen. Id. at 309. Lee was either intoxicated or physically exhausted, and Detective Cress had a difficult time waking Lee. Id. at 812. Lee requested use of the restroom and Detective Cress later testified he "helped him assisted [sic] him by his arm and walked him down the hallway to the bathroom and in this kind of situation [officers] leave the door open and usually a detective stands in the doorway and it was me this time that did that and noticed Mr. Lee had to prop himself against the wall in order to stand up and urinate." Id. at 312-13. Lee was not permitted to wash his hands.

Detective Cress also presented Lee's mother with a form by which to provide consent to a search, informed her of her rights as Lee's parent, and, at 3:35 a.m., requested she sign the form so officers could obtain DNA swabs of Lee's person. The typed form reads in pertinent part: "I hereby CONSENT TO A SEARCH WITHOUT A WARRANT by officers ... of the following described residence and/or motor vehicle[.]" Ex. at 49 (State's Exhibit 27). "[Rlesidence and/or motor vehicle" were crossed out, and in its place was handwritten: "Person-Duane T. Lee, B/M, ... (17) DNA swabs taken from Lee's hands, fingers, & penis for the purpose of DNA comparison." Id. Lee's mother signed the form. Lee was then transported to a hospital and a forensic examining nurse swabbed Lee's hands, fingers, and penis in a private room while an officer stood by for security purposes. While at Detective Cress's office, Lee's mother also called Lee's cellular phone and the phone, found along the route Officer Hamer chased Lee, then rang.

The State charged Lee with fourteen counts: burglary as a Class B felony, rape as a Class A felony, seven counts of erimi-nal deviate conduct as Class A felonies, robbery as a Class B felony, resisting law enforcement as a Class A misdemeanor, criminal confinement as a Class B felony, intimidation as a Class C felony, and pointing a firearm as a Class D felony.

At trial, the consent to search form which Lee's mother signed was entered into evidence and a laboratory technician testified as to the results of DNA testing on the swabs of Lee's hands, fingers, and penis. Specifically, DNA test results showed that K.P.'s DNA was found on Lee's penis. Id. at 907-08. K.P. could not be excluded as a contributor to DNA traces on Lee's left hand, and her DNA was positively identified in samples of Lee's right hand. Id. at 910-11. Lee did not object to any testimony or exhibit regarding his DNA swabbing or the testing thereof. In addition, test results of DNA swabs of K.P.'s person revealed that Lee cannot be excluded as a contributor to DNA from semen found in an external lip swab of K.P., id. at 901, and of a dental floss sample of K.P., id. at 905. According to DNA testing of the ski mask found along the route Office Hamer chased Lee, Lee cannot be excluded as a contributor-his information was present in thirteen areas and at a low level in the remaining two areas tested. Id. at 906-07. Lee's fingerprints were also found on the counter of the bathroom sink/vanity of KP home. Id. at 926-27. At trial K.P. testified she finished cleaning the bathroom sink/vanity with Clorox or Lysol wipes just prior to the intruders' first entrance. Id. at 41.

The jury found Lee guilty of all counts except for one count of criminal deviate conduct. The trial court entered a judgment of conviction and, following a sentencing hearing, sentenced Lee to fifty-two years, of which five were suspended. Lee now appeals his convictions. Additional facts will be supplied as appropriate.

Discussion and Decision

I. Standard of Review

Lee argues the trial court committed fundamental error in allowing the State to introduce into evidence DNA test results of the swabs it took of Lee's hands, fingers, and penis. Generally, the admission of evidence is within the trial court's discretion and we review decisions to allow items into evidence for an abuse of discretion. Ziebell v. State, 788 N.E.2d 902, 908 (Ind.Ct.App.2008). However, where a party fails to object at the time an item is introduced into evidence, any error in allowing the item into evidence must be fundamental error to warrant reversal. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010). Fundamental error is an exception to the general rule requiring contemporaneous objection that is "extremely narrow, and applies only when the 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." Id. This exception applies only to "egregious circumstances," and must either "make a fair trial impossible" or constitute "clearly blatant violations of basic and elementary principles of due process." Id. (citations omitted).

II. Lee's Rights

A. The Juvenile Waiver Statute and Exigent Cireumstances

Lee's argument that the trial court fundamentally erred in allowing DNA test results into evidence is based on his underlying argument that the State failed to prove that it had legal authority to swab his penis for DNA. In McClain v. State, 274 Ind. 250, 410 N.E.2d 1297 (1980), our supreme court concluded that swabbing a criminal defendant's penis for biological evidence requires constitutional justification under the Fourth Amendment to the United States Constitution. Id. at 254, 410 N.E.2d at 1301; see Brent v. White, 398 F.2d 503, 505 (5th Cir.1968) (concluding that seraping a defendant's penis to obtain menstrual blood of the victim's type invoked Fourth Amendment protections).

These constitutional protections implicate Indiana's juvenile waiver statute, Indiana Code section 31-82-5-1, which provides:

Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:
(1) by counsel retained or appointed to represent the child if the child knowing ly and voluntarily joins with the waiver;
(2) by the child's eustodial parent, guardian, custodian, or guardian ad li-tem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver; or
(3) by the child, without the presence of a custodial parent, guardian, or guardian ad litem, if:
(A) the child knowingly and voluntarily consents to the waiver; and
(B) the child has been emancipated under IC 31-34-20-6 or IC 31-37-19-27, by virtue of having married, or in accordance with the laws of another state or jurisdiction.

The State argues this statute does not apply to Lee because exigent cireumstances necessitated an attempt to collect K.P.'s DNA from Lee's person before any such evidence was destroyed. [SJearches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions. One such exception is when exigent cireum-stances exist." Ware v. State, 782 N.E.2d 478, 481 (Ind.Ct.App.2008) (quotations and citations omitted). Exigent cireumstances have been found when a suspect is fleeing or is likely to take flight to avoid arrest and where incriminating evidence is in jeopardy of being destroyed or removed. State v. Straub, 749 N.E.2d 598, 597 (Ind.Ct.App.2001).

Exigent circumstances justifying a war-rantless search exist where the police . have an objective and reasonable fear that the evidence is about to be destroyed; the arresting officers must have a reasonable belief that there are people ... who are destroying or about to destroy the evidence. In such a case, the evidence's nature must be evanescent and the officers must fear its imminent destruction.

Harless v. State, 577 N.E.2d 245, 248 (Ind.Ct.App.1991) (citations omitted). Police officers cannot simply act and then later claim their actions were justified by exigent cireumstances. Hawkins v. State, 626 N.E.2d 436, 439 (Ind.1993) (concluding exigent cireumstances did not exist where officers claimed exigent cireumstances justified their warrantless search of a home to find the cash used in a controlled drug-buy by stating that the home was as "busy as a drive-in restaurant" and they might lose their buy money in subsequent transactions, even though only fifteen transactions were executed in the house during the preceding two weeks). In addition, the seriousness of the offenses being investigated does not render cireumstances exigent. Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Similarly, officers cannot forgo seeking a search warrant because to do so is not as "simplified" as conducting a search without and later claiming exigent circumstances existed. See id. Courts review the evidence presented to determine whether police "had an objective and reasonable fear that the evidence was about to be destroyed." Esquerdo v. State, 640 N.E.2d 1023, 1027 (Ind.1994). "The burden is on the prosecution to demonstrate exigent cireumstances to overcome the presumption of unreasonableness. ..." Straub, 749 N.E.2d at 598.

Accordingly, we review the record to determine whether evidence was presented that exigent cireumstances existed. In doing so, we acknowledge that Lee's failure to indicate in any way that the exigency of the circumstances regarding obtaining his penile swab was in question might have skewed the record. This is because without an objection by Lee, the State was not pressed to present evidence regarding the exigency of the circumstances. Nevertheless, we proceed with this review to determine whether evidence of exigent cireumstances was presented for the following reasons.

First, the law is clear that there is a presumption of unreasonableness when officers conduct a search in reliance upon purportedly exigent cireumstances, and the prosecution has the burden to present evidence sufficient to overcome that presumption. Straub, 749 N.E.2d at 598. It is imperative that courts hold the prosecution accountable to meet its burden regardless of what a criminal defendant does or does not argue at trial.

Second-which is more of a practical reason than an application of law-if officers reasonably believed exigent cireum-stances existed, that belief is usually reflected in the evidence regardless of whether a defendant challenges the purported exigency of the circumstances. Here, the State presented substantial evidence regarding the circumstances leading up to the swabbing, including testimony by Lee's mother and Detective Cress. We deem it appropriate to determine whether the evidence regarding these circumstances sufficiently demonstrates officers held an objective, reasonable belief that evidence was about to be destroyed.

Third, we narrowly tailor our conclusion here to a ruling on whether evidence presented was sufficient to demonstrate exigent cireumstances, and do not conclude as a matter of law whether exigent cireum-stances could have been demonstrated to exist in this case (or that exigent cireum-stances cannot exist in similar cases).

With all that said, based on the factual record before us, we do not agree with the State that officers actually held an objective, reasonable belief that DNA evidence was about to be destroyed. Substantial evidence was presented regarding the heetic scene prior to officers obtaining the swabs. Detective Cress testified that upon first hearing about what happened, he "quiekly realized that [he] needed to be at the scene because it was something that was fresh and something that recently just happened...." Tr. at 289. He continued by explaining the chaotic scene that spanned the neighborhood where Lee was apprehended by Officer Hamer, and noting various officers, friends, and family members milling about. Id. at 289-90. He specifically mentioned that he was trying to "check and secure" "multiple people and multiple locations." Id. at 290. After beginning parts of the investigation and delegating other portions to his colleagues, Detective Cress left the scene and returned to his office because Lee was also, separately, transported to an interview room in the same building as Detective Cress's office. Either Detective Cress or another officer contacted Lee's mother and transported her there as well because Lee was under the age of eighteen.

Detective Cress then had Lee's mother eall Lee's cellular phone to confirm that the phone found along the route Officer Hamer chased Lee was in fact Lee's. Detective Cress also presented Lee's mother with a consent to search form, which included a request to consent to swab Lee's penis. At some point, Detective Cress allowed Lee to use the restroom and assisted him in doing so, although he did not allow Lee to wash his hands. Detective Cress then accompanied Lee to the hospital for a forensic examining nurse to administer the DNA swabs of Lee's hands, fingers, and penis.

As relates to a concern that DNA evidence was about to be destroyed, the sole evidence presented is that Detective Cress would not allow Lee be alone in the restroom or to wash his hands after he urinated. Detective Cress did not state why or otherwise elaborate. Nor did Detective Cress make any other statement to suggest his concern about destruction of DNA evidence or whether he took any precautions to ensure that Lee did not wipe his hands or penis on his clothing or any other surfaces.

A crime lab technician later testified as to the fragility of DNA evidence, but a lab technician's testimony does not reflect the beliefs of arresting or investigating officers. We will not impute a lab technician's knowledge of the fragility of DNA evidence to that of a field detective. It would not be reasonable to do so, especially when other evidence in the record suggests that if Detective Cress knew what the lab tech-niclan knew, Detective Cress might have attempted to obtain a DNA swab prior to allowing Lee to urinate at all; the technician testified that urination can destroy DNA evidence. Tr. at 916. Further, the evidence presented suggests Detective Cress was more concerned with obtaining Mother's consent to swab Lee's penis than he was with Lee destroying evidence. If Detective Cress actually believed the evidence was about to be destroyed and exigent circumstances existed, there was no reason to obtain Lee's mother's consent (or perhaps even Lee's, for that matter).

The absence of evidence that officers actually believed DNA was about to be destroyed might be due to a lack of evidence that would sufficiently support the State's appellate claim that the officers did so believe, or it might be due to Lee's failure to object and thereby press the State to present evidence thereof. In any event, our narrowly tailored holding is that sufficient evidence of exigent cireum-stances was not presented at trial Because it is the State's burden to present such evidence to overcome a presumption of unreasonableness, its failure to overcome that burden renders the admission of such evidence erroneous without another valid justification.

On appeal, the State compares this case to two cases from other jurisdictions in which officers apprehended suspects of sexual assaults soon after the crimes occurred and obtained penile swabs of the suspects in a manner such that appellate courts later held the swabs justified by exigent circumstances. See Kaliku v. U.S., 994 A.2d 765 (D.C.2010); Ontiveros v. Texas, 240 S.W.3d 369 (Tex.App.2007), petition stricken. We agree that the offenses under investigation in Kaliku and Ontiveros are similar to this case, and that the officers faced a similar situation in those cases as the officers did here. We conclude differently from Kaliku and On-tiveros because the evidence presented at Lee's trial regarding officers' thoughts and actions do not demonstrate they actually believed Lee might destroy any DNA evidence on his penis.

To further explain, we note the evidence presented in Kaliku and Ontiveros. In Kalilu, the officer who instructed the two defendants about how to obtain the penile swab samples "testified that he did not seek a court order or transport the appellants to a hospital where the sample could have been taken because "[elvidence could have been wiped away ... [or] contaminated ... [or] rubbed away at any time." 994 A2d at 780 (ellipses and alterations in original). In Ontiveros, a detective investigating a sex assault ordered officers holding the suspect to obtain a penile swab for DNA, either voluntarily or pursuant to exigent cireumstances. The detective later testified regarding the urgency:

The foreign DNA on a human body, in my training and experience, is very fragile. It can be removed and destroyed very readily. Three hours had already elapsed and there was still a possibility that that DNA could be present. It has also been my experience that suspects we have had in the interview rooms, hearing of a penile swab, had attempted to destroy the evidence on videotape during their interrogations.

240 S.W.3d at 370.

The Texas Court of Appeals added:

[The detective] testified that he did not know if a magistrate was available at the jail that morning to issue a search warrant. He added that because it was a Sunday morning, "the judges have an extremely large docket from a Saturday night," and he estimated that it "could have been four or five hours before I could have received a search warrant. In that time frame, I believed, after three hours had expired, that DNA could have been damaged." [The detective] testified that a suspect had been known to spit on his hands and try to wipe DNA material off of his penis. He also testified that urine can destroy DNA evidence.

Id.

Detective Cress's short statement that he would not allow Lee to wash his hands, without further elaboration, pales in comparison to the evidence presented in Kali-ku and Ontiveros, and is insufficient to overcome the State's burden to demonstrate officers actually held an objective, reasonable belief that evidence was about to be destroyed.

B. Waiver of Lee's Rights

Above, we concluded that evidence of exigent cireumstances was not presented. Moreover, at oral argument the State abandoned any argument (which was already implicitly conceded in its appellate brief) that police abided by the juvenile waiver statute. Accordingly, we deem DNA evidence collected from Lee's penis to have been improperly admitted into evidence. The dispositive issue, however, is whether this error rises to the level of fundamental error.

III. Fundamental or Harmless Error

-If the erroneously admitted evidence is merely cumulative of other evidence in the record, it is harmless error and not grounds for reversal. Bryant v. State, 802 N.E.2d 486, 494 (Ind.Ct.App.2004), trans. denied. If a conviction is supported by substantial independent evidence of guilt which satisfies the reviewing court that there is no substantial likelihood the challenged evidence contributed to the conviction, the error is harmless. Morales v. State, 749 N.E.2d 1260, 1267 (Ind.Ct.App.2001). Fundamental error "applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, ... the resulting error denies the defendant fundamental due process," or the "egregious cireumstances" either "make a fair trial impossible" or constitute "clearly blatant violations of basic and elementary principles of due process." Brown, 929 N.E.2d at 207 (citations omitted).

We conclude that the improperly obtained penile swab and the DNA test results thereof are not essential to sustain any of Lee's convictions. Other significant evidence supporting Lee's convictions include: (1) Lee's fingerprints in KP bathroom, indicating his presence after she washed it before the incident; (2) K.P.'s testimony, Lee's girlfriend's testimony, and Lee's co-defendant's testimony which implicated Lee in the burglary and robbery; (8) Lee's DNA on the ski mask, which indicates he wore the ski mask which was worn by the man in the black shirt and implicates him in the sex assault and other offenses by the man in the black shirt; (4) Lee's DNA was found in KP's mouth as a result of testing K.P. and Lee's hands; and (5) K.P.'s testimony that she identified Lee as the man in the black shirt during the incident because she met and knew Lee prior to this incident. K.P. positively identified Lee's eyes and mouth. She remembered him not only as the man in the black shirt, but as Lee whom she knew prior to these events.

Further, because Lee concedes that the swabs of his hands and fingers were not improper, the State had valid and properly obtained evidence of K.P.'s DNA on Lee's right hand. In addition, the State had a valid sample of Lee's DNA such that it could not exclude Lee as the contributor to DNA from semen found in an external lip swab of K.P. and of a dental floss sample of K.P. We agree with Lee's statement at oral argument that the fact that one cannot be excluded as a contributor does not alone satisfy the State's burden to prove guilt beyond a reasonable doubt. But we conclude that all of this DNA evidence-especially that of K.P.'s DNA on Lee's right hand-and the other evidence of Lee's guilt, numbered one through five above, constitutes substantial independent evidence of guilt. Although the State failed to present sufficient evidence that exigent cireumstances existed and the trial court erred in allowing into evidence test results of Lee's penile swab, this error does not rise to the level of fundamental error.

Conclusion

Lee argues the State improperly swabbed his person without satisfying the requirements of the juvenile waiver statute, which the State argues does not apply because exigent circumstances existed. We conclude that the exigent cireum-stances exception does not apply in this case, but that the error of allowing the test results into evidence does not rise to the level of fundamental error. Even without the improper admission into evidence of DNA test results of Lee's penile swabs, none of his convictions would fail. Additional substantial independent evidence of guilt was presented and there is no substantial likelihood the challenged evidence contributed to the convictions. Therefore, we affirm.

Affirmed.

RILEY, J., and CRONE, J., concur.

      . On April 18, 2012, we held oral argument at the Walden Inn and Conference Center, De-Pauw University, in Greencastle, Indiana. We thank counsel for their advocacy and Walden Inn and DePauw University for their hospitality.

      . It appears from the record that during K.P.'s sexual assault, whomever of the three who was not with K.P. was either vandalizing or continuing to plunder the home. The record also indicates the three targeted this home because they sought drugs or cash from K.P.'s boyfriend, who lived there.

      . The record also indicates that, by this time, Officer Hamer answered in the affirmative when asked if the figure wore black colored clothing. See Tr. at 226, 231.

      . During a sidebar, counsel for the State and Lee discussed with the trial court the potential relevance of Lee appearing to the detective too tired or intoxicated to make a statement and whether to raise the issues of 1) Lee's potential waiver of his Fifth Amendment right against self-incrimination, and 2) whether officers sought a statement from him at all. See Tr. at 304-08.

      . Detective Cress testified that Lee was "more alert at this time and ... easily accessible as far as conversation." Tr. at 314. Detective Cress also testified that he "briefly ... explain{ed] to him why [the two went to the hospital] and it's to obtain some evidence from his person and a greater explanation is given once the nurse gets there." Id.

      . Lee conceded at oral argument that he no longer challenges the State's authority to swab his hands and fingers for DNA evidence. We therefore need not determine their propriety.

      . In Lee's appellate brief, he discusses this issue in the context of protections under the Fifth Amendment to the United States Constitution; the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and Article 1, Section 14 of the Indiana Constitution, specifically the privilege against self-incrimination. Lee refers us to D.M. v. State, 949 N.E.2d 327 (Ind.2011), in which the Indiana Supreme Court described procedural safeguards which it previously established "as a precondition to using a juvenile's statements from a custodial interrogation ... in court," all in addition to constitutional protections. Id. at 332-33 (discussing Lewis v. State, 259 Ind. 431, 439-40, 288 NE2d 138, 142 (1972)). Following Lewis, the General Assembly codified the additional protections described in Lewis in what is now Indiana Code section 31-32-5-1. Id.

      . At oral argument the State conceded that it would no longer rely upon the jurisdiction argument it articulated, in the alternative, in its appellate brief.

      . Further, it should be noted that if officers wanted Lee's DNA, exigent circumstances certainly did not exist because Lee's DNA would not change and officers could have obtained a warrant and obtained his DNA later.


source: Caselaw Access Project

author: BRADFORD, Judge. VAIDIK, Judge,

license: Public Domain

text:
    Brian OTTE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A01-1108-CR-356.
    Court of Appeals of Indiana.
    May 17, 2012.

      Eric K. Koselke, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Following a jury trial, Appellant-Defendant Brian Otte appeals his convictions for Class D felony Residential Entry (Count 1); three counts of Class B misdemeanor Battery (Counts 2, 3, 5); Class A misdemeanor Criminal Mischief (Count 6); Class A misdemeanor Operating a Vehicle While Intoxicated (Count 7); Class B misdemeanor Failure to Stop after Accident Resulting in Damage to Unattended Vehicle (Count 8); and the finding that he is a Habitual Offender (Count 9) Upon appeal, Otte argues that he was tried in violation of Indiana Rule of Criminal Procedure 4 and that the trial court abused its discretion in permitting witness testimony that victims of domestic violence had a certain propensity to recant. We affirm.

FACTS AND PROCEDURAL HISTORY

On the night of November 11, 2010, Colleen Amos, her boyfriend Justin Shaffer, and her infant child were at her residence on McKinley Boulevard in Terre Haute. At approximately 9:80 pm. Amos received a call from Otte, her former boyfriend, asking to come over, which request Amos refused. At some point, Amos heard a person break into her house though the back door. Moments later, Otte, who did not have a key to the residence, appeared in Amos's living room, lunged at Shaffer, and began hitting him. Amos attempted to leave for help, at which point Otte forced his way in her direction, upsetting the car seat holding her sleeping infant, and punched her on the right side of her body. This knocked Amos to the ground on her hands and knees and caused her to feel pain. After Otte turned his attention onee more to Shaffer, Amos escaped the house and sought help. As Amos spoke to a neighbor, she saw Otte leave the home. Amos reentered the home and locked it, whereupon she noticed her sleeping infant lying in the tipped car seat. Upon hearing crashing noises, Amos looked outside to see Otte repeatedly ramming her car with his truck. Otte subsequently broke into the house again, and fought with Shaffer. Scared for her life, Amos hid in the sunroom and called for help.

Terre Haute Police Officer William El-lerman responded to the scene, where he found that the back door to Amos's home was "all busted out," and the door jamb was destroyed. Tr. p. 91. Seelyville Town Marshall James Halley subsequently apprehended Ofte following a traffic stop. Otte smelled of alcohol and admitted that he was drunk. A subsequent certified breath test, administered by Terre Haute Police Officer Theodore Lemke, revealed that Otte's blood-aleohol content was .14.

On November 15, 2010, the State charged Otte with seven charges arising out of the November 11-12 incidents. These charges included Class D felony residential entry (Count 1), Class A misdemeanor domestic battery (Count 2), Class A misdemeanor battery (Count 3), Class A misdemeanor invasion of privacy (Count 4), Class A misdemeanor criminal mischief (Count 5), Class A misdemeanor operating a vehicle while intoxicated endangering a person (Count 6) and Class B misdemean- or failure to stop after an accident resulting in vehicle damage (Count 7). On March 10, the State filed an additional count alleging Otte to be a habitual offender (Count 8).

On March 15, 2011, Otte moved for a speedy trial pursuant to Indiana Criminal Rule 4(B)(1). On April 21, 2011, the State filed an amended information alleging ten counts, which included new Counts 9 and 10, two counts of Class A misdemeanor battery. On April 29, the State moved for a continuance of Otte's speedy trial, over Otte's objection, on the grounds that Officers Ellerman and Lemke would be on vacation outside of Indiana and unavailable as witnesses for the May 19, 2011 trial date.

The trial court held two hearings on the State's motion. At a May 4, 2011, hearing, the prosecutor indicated that, upon subpoenaing the State's witnesses, he had learned that Officers Ellerman and Lemke had made unrefundable out-of-state vacation plans which they wished to keep. The prosecutor argued that, pursuant to Indiana Criminal Rule 4(D), the State was permitted a continuance of up to ninety additional days when evidence, such as these officers' testimony, would not otherwise be available. The trial court asked the prosecutor to inform the officers that the county would reimburse them for the cost of moving their vacations, and it took the matter under advisement.

At the May 9, 2011, hearing, the prose-eutor confirmed that at least one of the witnesses, Officer Ellerman, would be in Florida and was not inclined to change his vacation plans, even with reimbursement by the county. The trial court concluded that a two-week extension of the trial date was reasonable, granted the State's continuance on May 9, 2011, and reset the trial for June 2, 2011.

On May 11, 2011, the State filed a third amended information, replacing the habitual offender charge in Count 8 with a Class A misdemeanor battery charge and renaming the habitual offender allegation as Count 11. On June 2, 2011, the State filed a fourth amended information alleging the following nine counts: Class D felony residential entry (Count 1); Class A misdemeanor battery (Count 2); Class B misdemeanor battery (Counts 3-5); Class A misdemeanor criminal mischief (Count 6); Class A misdemeanor operating a vehicle while intoxicated endangering a person (Count 7); Class B misdemeanor failure to stop after accident resulting in damage to unattended vehicle (Count 8); and that Otte was a habitual offender (Count 9).

During the June 2-3, 2011 jury trial, defense counsel asked Amos on cross-examination about allegations she had made against Otte in October 2009 which she had subsequently recanted. Amos admitted having claimed three months after making the allegations that she had made them up after Otte began dating another woman. Amos testified at the instant trial that her true basis for recanting was that she had not wanted to go to trial On redirect examination the prosecutor confirmed with Amos that, despite her recantation, Otte had ultimately been convicted of charges arising out of her allegations.

Following Amos's testimony, the State introduced testimony from domestic violence expert Yvonne Creekbaum, over defense counsel's objection, that victims of domestic violence routinely recant their stories. According to Creekbaum, whose testimony was not based upon the facts of the instant case, domestic violence victims may recant out of fear for their abuser or financial considerations, among other reasons.

Following trial, Otte was convicted of Count 1, Count 2 as a lesser-included Class B misdemeanor, Counts 3, 5, and 6-8, and he was found to be a habitual offender. At a July 13, 2011 sentencing hearing, the trial court imposed an aggregate sentence of eight and one-half years in the Department of Correction. Specifically, Otte received three years in the Department of Correction for Count 1; 180 days for each of Counts 2, 3, and 5, all to be served concurrent with each other and with Count 1; one year on Count 6, to be served concurrent with Count 1; and concurrent sentences of one year in the Department of Correction for Count 7 and 180 days for Count 8, with the sentence in Count 7 to be served consecutive to the sentence in Count 1. The trial court imposed an additional term of four and one-half years for Count 9, to run consecutive to the sentences in Counts 1 and 7. This appeal follows.

DISCUSSION AND DECISION

Upon appeal, Otte contends that his right to a speedy trial pursuant to Indiana Criminal Rule 4 was violated and that the trial court abused its discretion in admitting Creekbaum's testimony.

I. Criminal Rule 4

A. Waiver

The State's first response to Otte's Rule 4 challenge is that it is waived. The State argues that Otte was required to move for discharge in addition to his objection in order to preserve this claim for appellate review. The State cites Brown v. State, 725 N.E.2d 823, 825 (Ind.2000) in support of this proposition. While Brown references "the requirement that a defendant object to a trial date set after a Criminal Rule 4 deadline and move for discharge," it later references these two requirements in the disjunctive, suggesting that either is adequate to preserve a Rule 4 challenge. Id. (finding waiver where defendant "neither objected" to the trial date "nor moved the trial court for discharge[.]"). As the Brown court emphasizes, the purpose of Rule 4 is to permit a defendant a timely trial, not a mechanism for avoiding one. Id. A defendant therefore cannot sit idly by and wait for a deadline to pass before complaining about it. Here, there is no suggestion that Otte sat idly by and waited for deadlines to pass, only that he used a single means, namely timely objections, to bring it to the court's attention. We are satisfied that this was enough to preserve the claim and decline the State's invitation to resolve this appeal on waiver grounds. See id. (additionally observing that defendant who does not make timely Rule 4 objection waives his right to discharge).

B. The Merits

1. Applicable Law and Standard of Review

The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind.1995). This " fundamental principle of constitutional law' " has long been zealously guarded by the Indiana Supreme Court. Id. (quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572 (1957)). To this end, the provisions of Indiana Criminal Rule 4 implement the defendant's speedy trial right. Id.

Indiana Criminal Rule 4(B)(1) provides in pertinent part as follows:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned cireum-stance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.

Indiana Criminal Rule 4(B) specifically requires that, upon a motion for a speedy trial, a defendant must be tried within seventy days unless the defendant caused the delay or the court's calendar is congested. Chambers v. State, 848 N.E.2d 298, 301 (Ind.Ct.App.2006), trans. denied.

In addition, Criminal Rule 4(D) states as follows:

If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.

Criminal Rule 4(D) provides that a trial court may grant the State a continuance when it is satisfied that (1) there is evidence for the State that cannot then be had; (2) reasonable effort has been made by the State to procure the evidence; and (38) there is just ground to believe that such evidence can be had within ninety days. Chambers, 848 N.E.2d at 303-04. This court has previously stated that any exigent cireumstances may warrant a reasonable delay beyond the limitations of Criminal Rule 4. Id. " 'The reasonableness of such delay must be judged in the context of the particular case[.J' " Id. (quoting Smith v. State, 802 N.E.2d 948, 951 (Ind.Ct.App.2004)). In reviewing Criminal Rule 4 appeals, we employ two standards of review: we review the trial court's legal conclusions de novo but exercise deference with respect to its factual findings. See Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011) (resolving differing standards of review in Criminal Rule 4 cases).

2. Analysis

There is no dispute that Otte was charged on November 15, 2010; that he moved for a speedy trial on March 15, 2011; that the trial court granted the motion, setting the trial for May 19, 2011; that on April 29, 2011, the State moved to continue the trial, over Otte's objection, on the basis of allegedly unavailable witnesses; and that the trial court granted the continuance, setting the trial for June 2, 2011, which fell outside the seventy-day speedy trial period. In granting the State a continuance, the trial court found that a "short continuance of two weeks [was] reasonable." May 9, 2011 Hearing Tr. p. 8.

The State argues that Criminal Rule 4(D) permits the trial court to extend the trial date beyond the seventy-day period. "The absence of a key witness through no fault of the State is good cause for extending the time period requirements." Wooley v. State, 716 N.E.2d 919, 925 (Ind.1999) (internal quotation omitted). Such absence may be due to a long-planned vacation. See id. (citing Sims v. State, 267 Ind. 215, 220, 368 N.E.2d 1352, 1354-55 (1977) (witness out of country on vacation)).

In Wooley, the State moved for a Rule 4(D) continuance on the basis that one of its witnesses was not in Indiana despite her assurances that she would be. 716 N.E.2d at 925. State police officers had spoken to the witness, who had indicated that she would return, and they had made arrangements for her return flight, which the witness ultimately did not board. Id. Based upon these efforts and what the Wooley court deemed to be reasonable reliance on the witness's assurances, the Rule 4(D) extension was justified. Id. This was so despite the fact that the witness was in Indiana on the actual date set out in her subpoena, which, as the Wooley court observed, there was no evidence to show the State could have known. Id.

Here, the State made multiple efforts to secure the witnesses, including offering to reimburse them for rescheduling their vacations. Yet at least one of the witnesses, who had long-planned to be in Florida, was not amenable to the State's requests. The trial court concluded that a short extension of the trial was reasonable and justified under Criminal Rule 4(D). The testimony at issue, which included that of the first officer to arrive on the scene and the officer to perform Otte's certified breath test, would have been essential to the State's case. Given the above precedent permitting Rule 4(D) extensions for witnesses who are out of State and/or on long-planned vacations, we too are satisfied that a Rule 4(D) extension was justified here.

Otte suggests that the State should have issued subpoenas compelling the witnesses to appear. The May 4, 2011, hearing transcript indicates that the prosecutor did issue subpoenas, which led to his discovery that the officers would be out of state on the date of trial, Whether the officers would have ultimately ignored the subpoenas is a different question; in requesting a continuance, the State was entitled to rely upon their representations that they would be unable to comply. See id. (permitting Rule 4(D) continuance based in part on State's reliance on witness representations). We find no error.

II. Creekbaum's Testimony

Otte additionally challenges the trial court's admission of Creekbaum's testimony attesting to the propensity of domestic abuse victims to recant. The State introduced this testimony after Amos admitted during cross-examination that she had recanted her 2009 allegations against Otte. Otte claims that Creekbaum was not qualified under Indiana Evidence Rule 701 to give lay testimony; that Creekbaum was not qualified to be an expert witness under Rule 702; that Creekbaum's testimony constituted impermissible vouching testimony pursuant to Rule 704(b); and that it was overly prejudicial pursuant to Rule 403.

A trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its rulings only where it is shown that the court abused that discretion. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind.2012). An abuse of disceretion occurs when the trial court's decision is clearly against the logic and effect of the facts and cireumstances before it. Id.

A. Indiana Evidence Rule 701

Otte first contends that Creekbaum, who had made no personal observations of Amos, was not qualified to give lay testimony relating to the facts of this case. The State did not argue below, nor does it argue on appeal, that Creekbaum's testimony was admissible as lay testimony. The State has always qualified Creekb-aum's testimony as expert testimony. Otte's reliance on Rule 701, therefore, is misplaced.

B. Indiana Evidence Rule 702

Indiana Evidence Rule 702 provides as follows:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

Under this rule, a witness may be qualified as an expert by virtue of " 'knowledge, skill, experience, training, or education." Kubsch v. State, 784 N.E.2d 905, 921 (Ind.2003) (citing Ind. Evid. R. 702(a)). Only one characteristic is necessary to qualify an individual as an expert. Id. As such, an individual may qualify as an expert based upon practical experience alone. Id. Expert testimony regarding "specialized knowledge" need not involve scientific principles and therefore need not comply with Rule 702(b). See Malinski v. State, 794 N.E.2d 1071, 1085 (Ind.2003) (observing that expert testimony based upon specialized knowledge is not a matter of scientific principles governed by Rule 702(b)).

Otte's challenge under Rule 702 is that Creekbaum's testimony was not based upon demonstrably reliable scientific principles. But it need not have been; her status as an expert witness was due to her specialized knowledge about victims of domestic violence. As the Malinski court observed, "specialized knowledge" as referenced by Rule 702(a) is not a matter of scientific principles. Creekbaum's qualification as an expert witness was instead based upon her twenty-three-year history of experience, training, and education in the area of domestic violence. Otte does not claim that this experience is inadequate to qualify her as an expert witness with specialized knowledge. Accordingly, we find no error on this ground.

C. Indiana Evidence Rule 704

Otte also claims that Creekbaum's testimony constituted . impermissible vouching testimony in violation of Indiana Evidence Rule 704(b). Rule 704(b) states as follows: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions."

The State claims that Creekbaum's testimony was not vouching testimony because she never directly referred to the truthfulness of Amos's testimony. Creekbaum's testimony was introduced to provide an explanation for the phenomenon of recantation, after defense counsel opened the door to that issue, rather than to reflect upon the actual truth or falsity of either of Amosg's 2009 or instant allegations. Significantly, Creekbaum's testimony was not directly tied to Amos; Creekbaum had not observed or examined Amos and was making non-specific statements about how vice-tims of domestic abuse behave in general. This court has previously observed that expert testimony explaining the behavior of victims of domestic violence which is not based upon personal knowledge does not cross the line into impermissible vouching. Iqbal v. State, 805 N.E.2d 401, 409-10 (Ind.Ct.App.2004).

Admittedly, Creekbaum's testimony operated to explain away Amos's recantation, arguably attesting to the truth of her past allegations and, consequently, the eredibility of her testimony. Nevertheless, we cannot find a Rule 704(b) violation. In Carter v. State, 754 N.E.2d 877, 882-83 (Ind.2001), the Supreme Court permitted, in a case involving an autistic child witness, expert testimony regarding autistic children's general inability to deliberately deceive others. While the Indiana Supreme Court recently overturned longstanding precedent permitting "indirect" vouching in child cases, see Hoglund, 962 N.E.2d at 1237, it left Carter intact, reasoning that the child's autism "compounded the issues," confronting the jury with evidence which fell " 'outside common experience,"" and that the expert testimony was necessary to " 'supplement the jurors' insight. " Hoglund, 962 N.E.2d at 1237 n. 9 (quoting Carter, 754 N.E.2d at 882-83).

The domestic abuse at issue in the instant case compounds the issue in the same way that autism compounded the issue in Carter. As this court has previously observed, the reactions and behaviors of domestic violence victims are not commonly understood by laypersons. Odom v. State, 711 N.E.2d 71, 75 (Ind.Ct. App.1999), trans. denied. Consistent with this view, this court has endorsed the use of expert testimony about domestic abuse/battered woman syndrome to explain witness recantation. See id. at 72 n. 2, T7 (domestic abuse); Carnahan v. State, 681 N.E.2d 1164, 1166-68 (Ind.Ct.App.1997) (battered woman syndrome); see also Iqbal, 805 N.E.2d at 409-10 (affirming use of expert testimony to "educate[ ] the jury on the complexity of behavior of domestic violence victims"); Like in Carter, testimony regarding a victim's propensity to recant in this context simply provides the jury with information outside its experience, permitting it to assess credibility based upon a more complete understanding of all potential factors at issue. We find no Rule 704 violation.

D. Indiana Evidence Rule 403

Otte finally claims that Creekbaum's testimony was more prejudicial than probative, in violation of Indiana Evidence Rule 403. Rule 403 states as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."

We have already concluded that Creekb-aum's testimony had significant probative value by providing the jury a more complete picture of the potential cireum-stances at issue. As for the prejudicial effect of such testimony, Creekbaum specifically indicated that she had not examined Amos and knew nothing about her case. The jury was free to accept or dismiss Creekbaum's testimony as applicable or inapplicable to the instant case. We cannot conclude that this testimony was overly prejudicial.

III. Conclusion

Having found no error in the trial court's Criminal Rule 4(D) continuance or its admission of Creekbaum's testimony, we affirm the trial court on both grounds.

The judgment of the trial court is affirmed.

VAIDIK, concurs in result with opinion.

CRONE, concurs.

VAIDIK, Judge,

concurring in result.

I concur in full with the majority opinion that the trial court did not err in granting a continuance or in admitting the testimony of Creekbaum, a domestic violence expert.

I write separately because I believe Creekbaum's testimony was admissible under Indiana Evidence Rule 702 as syndrome evidence to help the jury understand why Colleen Amos recanted certain allegations she had made against Otte. Battered Women's Syndrome ("BWS") helps to explain why a victim of domestic violence may recant allegations of violence against her abuser. Such syndrome evidence is admissible to counter the inference that the victim's behavior or statement is inconsistent with the event having occurred.

Otte challenges the admission of Creekbaum's testimony not because she was not qualified to give her expert opinion on the matter, she was, but, among other reasons, because the scientific principles upon which Creekbaum's testimony rested were not reliable. I disagree. We have already held that BWS is a valid scientific theory under Rule 702. Carnahan v. State, 681 N.E.2d 1164, 1167 (Ind.Ct.App.1997). And once a particular type of scientific evidence is admitted into evidence in Indiana courts, a trial court should take judicial notice of that fact. McGrew v. State, 682 N.E.2d 1289, 1291 (Ind.1997).

I understand that Creekbaum, a non-lawyer, did not believe that evidence of BWS was admissible in Indiana. See Tr. p. 352. But, the reality is that it is. As such, her expert testimony regarding BWS, which we have previously found to be based on reliable scientific principles, is admissible. The trial court did not abuse its discretion by admitting this evidence.

      . Ind.Code § 35-43-2-1.5 (2010).

      . Ind.Code § 35-42-2-1(a) (2010).

      . Ind.Code § 35-43-1-2 (2010).

      . Ind.Code § 9-30-5-2 (2010).

      . Ind.Code §§ 9-26-1-3; 9-26-1-8 (2010).

      . Ind.Code § 35-50-2-8 (2010).

      . Notably, Count 9 alleged Otte's habitual offender status, so the accompanying finding and sentence should have been imposed as an enhancement to the felony conviction in Count 1 rather than as a separate conviction with a separate sentence. See Ind.Code § 35-50-2-8 (2010). Ofte does not seek redress for this error.


author: KIRSCH, Judge.

text:
    Dewayne JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. Dewayne Jones, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Nos. 49A02-1109-CR-853, 49A02-1109-CR-855.
    Court of Appeals of Indiana.
    May 17, 2012.

      Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Before us are two separate appeals in which Dewayne Jones ("Jones") appeals his convictions for invasion of privacy, each as a Class D felony, contending that the State failed to prove that the proper venue for the offenses was in Marion County.

We afﬁrm.

FACTS AND PROCEDURAL HISTORY

Having been convicted of invasion of privacy as a Class A misdemeanor and domestic - battery as a Class D felony under Cause No. 49G17-1105-FD-036748, Jones was sentenced on May 10, 2011, to an aggregate sentence of 545 days with 180 days executed on home detention and 365 days suspended to probation. In addition, a No Contact Order was issued which prohibited Jones from having any contact with Modesty Jones ("Modesty"), his estranged wife, or Sheila Brown ("Brown"), his mother-in-law, during both the executed and probationary periods of his sentence.

Under Cause No. 49A02-1109-CR-853 ("Case 853"), Jones was charged and convicted for a call made to Brown on May 17, 2011, at approximately 9:17 a.m. The charge and conviction in 49A02-1109-CR-855 ("Case 855") was for a call to Modesty's cell phone made on the night of May 20, 2011.

DISCUSSION AND DECISION

Although venue is not an element of a eriminal offense, the State must nonetheless prove by a preponderance of the evidence that all or part of the crime occurred in the county where charges were brought. Baugh v. State, 801 N.E.2d 629, 631 (Ind.2004). Electronic communication, such as via cell phone and internet sites, is an area that does not fall readily into traditional venue analysis. In traditional crimes, the perpetrator and victim are in the same place where the offense occurs. When a crime is committed electronically, however, the victim and perpetrator may be in different counties, states, or countries. In an attempt to address such challenges, the Indiana General Assembly adopted Indiana Code section 35-32-2-1(k), which deals with an offense committed by a person using electronic communication outside of Indiana directed at an Indiana resident. The section provides:

If an offense:
(1) is committed by use of:
(A) the Internet or another computer network (as defined in IC 35-42-2-3); or
(B) another form of electronic communication; and
(2) occurs outside Indiana and the vie-tim of the offense resides in Indiana at the time of the offense;
the trial may be held in the county where the victim resides at the time of the offense.

The purpose of this statute is to specify that Indiana has jurisdiction over violators of valid protective orders issued in Indiana regardless of whether either the perpetrator or the victim is physically in Indiana at the time of the violation. Under this statute, the State need only prove that Modesty and Brown resided in Marion County at the time the offense was committed. The locations of the party making the call and the party receiving the call are, therefore, irrelevant under this analysis. It follows logically that the county of proper venue may also be determined by the residence of the victim regardless of her location at the time she received the eall on her cell phone.

Furthermore, Indiana Code section 35-32-2-1(b) provides:

If a person committing an offense upon the person of another is located in one (1) county and the person's victim is located in another county at the time of the commission of the offense, the trial may be in either of the counties.

In Eberle v. State, 942 N.E.2d 848, 856 (Ind.Ct.App.2011), trans. denied, this court said:

Considering the nature of mobile phone technology, an offense committed over the telephone may reasonably be deemed to have been committed at either the geographic location from which the calls were made or at which the calls were received.

Although Jones argues that the State failed to prove that Modesty was at her home in Marion County when she received the call on her cell phone, her testimony that she was at home in Marion County is sufficient to support the convietion in Case 855. Tr. at 8-9. Likewise, Brown's testimony that she was at home in Marion County is sufficient to support the conviction in Case 858. Eberle, 942 N.E.2d at 856; Tr. at 382. Furthermore, it is undisputed that Jones was on home detention as a result of a conviction in Marion County. He testified that he was staying at his brother's home "off of 34th and Meridian," Id. at 37, easily recognizable as a Marion County address. Jones testified in each case that he did not make the phone calls. It is for the trier of fact to weigh the evidence and judge the credibility of the witnesses. Eberle, 942 N.E.2d at 856. Based on any of these scenarios, Marion County is a proper venue for this case.

Affirmed.

BAKER, J., and BROWN, J., concur.

      . See Ind.Code § 35-46-1-15.1.

      . Dewayne and Modesty Jones were married on May 3, 2010. She was the victim in the original case. A Decree of Dissolution was issued on July 3, 2011.


author: BRADFORD, Judge.

text:
    Heriberto SUAREZ, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 02A05-1106-PC-325.
    Court of Appeals of Indiana.
    May 17, 2012.
    Rehearing Denied July 24, 2012.

      Robert W. Gevers, II, Gevers & Tracey, Fort Wayne, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Petitioner Heriberto Suarez appeals from the post-conviction court's denial of his petition for post-conviction relief ("PCR"), contending that the post-conviction court erred in denying his claim that he received ineffective assistance of trial counsel. We affirm.

FACTS AND PROCEDURAL HISTORY

Suarez was born on May 24, 1944, and emigrated from Mexico to the United States in 1955. Suarez has never attained American citizenship. On September 11, 2009, Suarez pled guilty to Class C felony child molesting. In exchange for his guilty plea, the State agreed to dismiss a Class A felony child molesting charge. The trial court accepted Suarez's guilty plea and sentenced him to four years of incarceration with two suspended to probation. On May 10, 2010, Suarez filed a PCR petition, contending that he had received ineffective assistance of trial counsel. Specifically, Suarez contended that his attorney, Patrick J. Arata, had been ineffective for failing to advise Suarez of the possibility of deportation resulting from his conviction.

At the hearing on Suarez's PCR petition, Attorney Arata testified that he had assumed that Suarez was an American citizen and so did not inquire regarding his status or advise him that a criminal convietion might subject him to deportation. According to Attorney Arata, he considered several possible defense strategies, including that (1) the child, who is one of Suarez's grandchildren, could have been mistaken as to the nature of the touching; (2) Suarez's wife, who although blind, was in the room when the alleged molestation took place and would have heard something; (8) animosity between the Suarezes and the child's parents could have caused the child's parents to induce her to fabricate; (4) there was no physical evidence other than a small seratch on the child's vagina; (5) the child was ill at the time and it would be illogical to touch an ill child in that fashion; and (6) there had been a previous allegation that a person named "Carlos" had molested the child, which, if true, might explain the vaginal seratch and how she knew how to describe the molestation. Attorney Arata also mentioned that "Sex cases are probably, in my opinion, the toughest cases to defend." Tr. p. 18.

Suarez testified that he pled guilty to the Class C felony so that he could receive a shorter sentence and return to care for his wife, who is in poor health. Suarez testified that he was aware that he "could have gotten twenty to fifty years" and admitted that the shorter sentence he received as a result of the plea agreement would have been a "good deal" even if he had no family at all. Tr. p. 30. Nonetheless, Suarez testified that he would have fought the Class A felony charge and not pled guilty to the Class C felony had he known that pleading guilty would subject him to possible deportation.

On June 3, 2011, the post-conviction court denied Suarez's petition, concluding that he had not been prejudiced by any deficient performance by his trial counsel. The post-conviction court concluded that, although Suarez had established that he had good reason to stay in the United States, the plea agreement conferred upon him a great benefit and he had failed to show an objective likelihood of success at trial, The post-conviction court concluded that, under the cireumstances facing Suarez, there was no reasonable probability that a reasonable hypothetical defendant would have elected to go to trial.

DISCUSSION AND DECISION

PCR Standard of Review

Our standard for reviewing the denial of a PCR petition is well-settled:

In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. To prevail on appeal from denial of postconviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court.... Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law.

Hall v. State, 849 N.E.2d 466, 468, 469 (Ind.2006) (internal citations and quotations omitted).

Whether Suarez Received Ineffective Assistance of Trial Counsel

We review claims of ineffective assistance of counsel based upon the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

[A]) claimant must demonstrate that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and that the deficient performance resulted in prejudice. Prejudice occurs when the defendant demonstrates 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 arises when there is a "probability sufficient to undermine confidence in the outcome."

Grinstead v. State, 845 N.E.2d 1027, 1031 {Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel's performance if the petitioner suffered no prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind.1999). The State concedes that Suareg's trial counsel performed deficiently in failing to advise him of the risks of deportation, so we focus solely on whether Suarez suffered any prejudice from this performance.

Suarez contends that his trial counsel was ineffective for failing to advise him before he pled guilty that he could be deported to Mexico following discharge of his sentence. In Segura v. State, 749 N.E.2d 496, 507 (Ind.2001), the Supreme Court created two categories of ineffective assistance of counsel claims relating to guilty pleas, applying different treatments to each respective category depending on whether the ineffective assistance allegation related to (1) a defense or failure to mitigate a penalty, or (2) an improper advisement of penal consequences. See Willoughby v. State, 792 N.E.2d at 560, 563 (Ind.Ct.App.2003), trans. denied. Suarez's claim is of the second type.

In such cases, the Indiana Supreme Court has stated that

in order to state a claim for postconviction relief a petitioner may not simply allege that a plea would not have been entered. Nor is the petitioner's conclu-sory testimony to that effect sufficient to prove prejudice. To state a claim of prejudice from counsel's omission or misdescription of penal consequences that attaches to both a plea and a conviction at trial, the petitioner must allege .. "special cireumstances," or, as others have put it, "objective facts" supporting the conclusion that the decision to plead was driven by the erroneous advice.
We believe a showing of prejudice from incorrect advice as to the penal consequences is to be judged by an objective standard, ie., there must be a showing of facts that support a reasonable probability that the hypothetical reasonable defendant would have elected to go to trial if properly advised. Nevertheless, ... a petitioner may be entitled to relief if there is an objectively credible factual and legal basis from which it may be concluded that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill [v. Lockhart], 474 U.S. [52,] 59 [106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ].

Segura, 749 N.E.2d at 507 (footnote omitted).

In addition to any special cireum-stances shown by the defendant, we also think it appropriate to consider the strength of the State's case. It is apparent that any reasonable defendant would take this into account when pondering a guilty plea. When evaluating the likelihood of conviction or acquittal, such "predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the 'idiosynera-HeH sies of the particular decisionmaker. Hill, 474 U.S. at 59-60, 106 S.Ct. 366 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). Finally, we think it also appropriate to consider the benefit conferred upon the defendant by his guilty plea. It seems clear that any reasonable person's decision whether to plead guilty, regardless of incorrect advisements about some penal consequences, would be informed by this consideration. See, e.g., Hacker v. State, 906 N.E.2d 924, 928 (Ind.Ct.App.2009), trans. denied ("Hacker clearly bene-fitted from his plea agreement. We believe this is a proper consideration under Segura for rejecting Hacker's contention that he was objectively prejudiced by trial counsel's misadvice regarding the maximum sentence he faced.").

Here, as a threshold matter, we conclude that Suarez established special cireumstances that would have affected a reasonable person's decision to plead guilty. It is undisputed that Suarez's wife is blind and in poor health and that he was her primary caregiver. Moreover, it should be noted that deportation can be a very serious penal consequence, with the United States Supreme Court recognizing that it is, at least in some cases, " 'the equivalent of banishment or exile[.]' " Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010) (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-391, 68 S.Ct. 10, 92 L.Ed. 17 (1947)). Were Suarez to be deported, it would be far more difficult for him to provide for his ailing wife, and he would be leaving a country that has been his home since 1955. On the other hand, as the trial court noted at sentencing, Suarez appears to have a large family that could care for his wife in his absence.

Second, based on the record before us, we conclude that Suarez's objective probability of success at trial was fairly low. Although Attorney Arata mentioned several possible avenues of defense for Suarez (presumably suggested by Suarez), he did not claim that any were particularly substantiated and none was supported by any other evidence in the record. There was no evidence that the alleged victim had been coached to lie or that her story had changed over time. Additionally, there was some physical evidence, in the form of a vaginal seratch, consistent with the allegation that Suarez had digitally penetrated the victim. On the whole, the case seems objectively solid with no obvious weaknesses for a type of case, which will often be tried with a lack of physical evidence and/or an alleged victim with known credibility issues.

As for the benefit conferred upon Suarez by his guilty plea, it was substantial, to say the least. Had Suarez been convicted of Class A felony child molesting, under the facts of this case he would have served a minimum of twenty-five actual years in prison. Because the alleged victim in this case was under the age of twelve and Suarez over the age of twenty-one, his base sentence would have been a minimum of thirty years of incarceration. See Ind.Code § 35-50-2-2(i). Moreover, Suarez, had he been convicted as charged, would have been a credit restricted felon and therefore could never have earned any more than one day of credit time for each six days served. See Ind.Code §§ 35-41-1-5.5 (2009); 35-50-6-3(d) (2009); 35-50-6-4(b) (2009). On the high end, Suarez could have received a fifty-year sentence, of which he would have had to serve approximately 41.7 years.

As it happened, Suarez pled guilty to a Class C felony, which meant that his sentence would range from two to, at most, eight years. See Ind.Code § 35-50-2-6 (2009). Additionally, Suarez was eligible to be assigned to credit classes I and II, where he could earn one day of credit time per day served or one day of credit per two days served, respectively. See Ind. Code § 35-50-6-8(a); -3(b) (2009). So, Suarez's maximum exposure, assuming he received a maximum sentence and earned absolutely no credit time, was eight years of incarceration under the plea agreement, a full seventeen years less than the bare minimum sentence he would have faced had he been convicted of the Class A felony. The four-year sentence Suarez did receive, with two years suspended to probation, saved him at least twenty-three years of incarceration and very likely twenty-four. Suarez received a very substantial benefit from his guilty plea.

Given the above, we conclude that a reasonable defendant's decision to plead guilty would not have been affected by the knowledge of the risk of deportation. While deportation would be a great inconvenience for Suarez, it is reasonable to assume that he would be in a better position to provide for his wife from Mexico than from prison. Finally, the extraordinarily large benefit Suarez received in exchange for his guilty plea cannot be denied, and, in our view, overwhelms all other considerations in this case. Suarez has failed to establish that he was prejudiced by his trial counsel's failure to advise him of the risk of deportation.

The judgment of the post-conviction court is affirmed.

CRONE, J., and BROWN, J., concur.

      . In fact, pursuant to Indiana Code section 35-50-2-2(i) (2009), because he was over twenty-one and his alleged victim was younger than twelve, had he been convicted of Class A felony child molesting, the trial court could only have suspended "that part of the sentence that is in excess of (30) thirty years."

      . For Suarez, who has been in the United States since 1955 and was a legal resident, deportation would be much closer to banishment or exile than it would be, say, for a drug courier planning on illegally visiting the country for only a short time.

      . It seems that the plea agreement, a copy of which does not appear in the record on appeal, provided that Suarez's sentence would be at least two years of incarceration, which, assuming he remained assigned to credit Class I the entire time, would mean actual incarceration of one year.