Isaiah H. Rogers v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Dec 30 2015, 5:47 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Isaiah H. Rogers, December 30, 2015
Appellant-Defendant, Court of Appeals Case No.
84A01-1505-CR-410
Appeal from the Vigo Superior
v. Court.
The Honorable David R. Bolk,
State of Indiana, Judge.
Cause No. 84D03-1501-F1-227
Appellee-Plaintiff.
Shepard, Senior Judge
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1
[1] Isaiah H. Rogers appeals his convictions for one count of rape as a Level 1
2
felony and one of domestic battery as a Class A misdemeanor. We affirm.
Issue
[2] The sole issue presented by this appeal is whether the trial court committed
fundamental error by requiring the victim, S.R., to testify against Rogers, her
husband.
Facts and Procedural History
[3] The couple fell to arguing at their residence during the evening hours of
December 4, 2014. S.R. was about to shower when Rogers confronted her,
demanding to know where she had been for the past three days, suspecting that
she had been unfaithful. According to S.R., in the past, if either of them
thought the other might have been unfaithful, that person could request to
examine and smell the genitals of the other for evidence of infidelity. Rogers
made such a request, but the two began to get physical. They moved among
various rooms with Rogers throwing punches at S.R.’s head and upper chest
area. With one of those swings, Rogers pushed S.R. down, and she suffered a
broken finger.
1
Ind. Code § 35-42-4-1 (2014).
2
Ind. Code § 35-42-2-1.3 (2014).
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[4] At trial, S.R. claimed that everything was moving too fast to remember. She
did recall being on the couch and, after rising, having blood flowing out of her
genitals onto her legs. S.R. previously had problems with her I.U.D., but had
not bled that day prior to the altercation.
[5] S.R. went to the emergency room, where she was observed to be hysterical,
crying, screaming in pain, her sweatpants saturated in blood on the back side.
Dr. Rabina Rai, the first physician to examine S.R., noted that she was battered
and bleeding profusely. Three of her fingers were swollen and the middle finger
was fractured. Lacerations on both sides of her vagina cut almost to the muscle
layer and extended the complete length of the vaginal canal. S.R. told Dr. Rai
and Nurse Jenna Hardiman that Rogers had used his finger to penetrate her
several times and caused those injuries. Neither Rai nor Hardiman believed
that an I.U.D. could have caused S.R.’s injuries, but both believed fingers could
do so.
[6] Given the life-threatening nature of S.R.’s injuries, she was referred to Dr.
Kathleen Couthino, an obstetrician-gynecologist. S.R. recounted for Dr.
Couthino what Rogers had done to her. She said that she could not be sure but
that Rogers might have inserted an object into her vagina. Dr. Couthino
believed that a great deal of force was used to cause the injuries. S.R. declined
a rape kit exam, but underwent surgery to repair her vaginal walls.
[7] The State filed various charges against Rogers. While he was in jail, he made a
telephone call, which was recorded, during which he admitted he had stuck his
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fingers inside S.R. Rogers also testified at trial and agreed that his fingernails
were long and that they were the same length at the time of the alleged offenses.
[8] A jury found Rogers guilty on multiple counts, and the trial court entered
judgments of conviction against Rogers for rape and domestic battery. Rogers
received concurrent executed sentences of thirty years for rape, a Level 1 felony,
and one year for domestic battery, a Class A misdemeanor.
Discussion and Decision
[9] The Code provides that spouses shall not be required to testify regarding
communications made to each other. Ind. Code § 34-46-3-1(4) (1998). S.R.
gave testimony in a discovery deposition consistent with the criminal
allegations against Rogers, but by the time of trial sought to have those charges
dropped. Rogers appeals contending that the trial court committed
fundamental error by instructing S.R. to testify after she had invoked the
privilege. He frames the issue that way because when the State asked
permission to treat S.R. as a hostile witness, Rogers stated he did not object.
[10] After examining the unique position of the marital privilege among other
privileged communications, our Supreme Court has indicated the privilege
prohibits “requiring a spouse to testify as to confidential marital
communications, but does not bar the spouse from testifying if the spouse
chooses to do so.” Glover v. State, 836 N.E.2d 414, 422 (Ind. 2005) (emphasis
added).
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[11] Without reference to any marital communications, confidential or not, the
record contains abundant evidence to sustain the conviction. Like a hysterical
S.R. reporting to the emergency room bleeding profusely from her vaginal area,
telling a treating nurse and a physician, and an OB-GYN, that Rogers had stuck
his fingers inside her vaginal area causing her pain.
[12] The jury also heard S.R. had not previously experienced difficulties with her
birth control that day and had not bled until after Rogers’ actions. The medical
personnel were convinced that while an I.U.D. could not cause the damage to
S.R.’s vagina, fingers could have. Emergency surgery was required to repair
S.R.’s vaginal walls. Couthino believed that much force had been used to cause
the type of injuries S.R. suffered.
[13] And then there was Rogers’s telephone communication giving detail about his
attack.
[14] S.R. also told the nurse and doctors that Rogers had hit her in the head and
upper torso region. Three of S.R.’s fingers were swollen and her middle finger
was fractured after he knocked her down.
[15] To prove domestic battery, the State was required to establish beyond a
reasonable doubt that Rogers knowingly or intentionally touched S.R., his
spouse, in a rude, insolent, or angry manner resulting in bodily injury. See Ind.
Code § 35-42-2-1.3(1). As for rape, the State was required to prove that Rogers
penetrated S.R.’s vagina with his finger or another object resulting in serious
bodily injury to S.R. See Ind. Code § 35-42-4-1(b)(3). Sufficient evidence
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exclusive of marital communications exists in the record to support Rogers’s
convictions. And, indeed, most of what S.R. said at trial was not actually
confidential marital communication as described by Glover.
[16] We find no fundamental error here in the trial court’s decision to require S.R. to
testify at trial after asserting the privilege.
Conclusion
[17] In light of the foregoing, we affirm the trial court’s judgment.
[18] Affirmed.
Crone, J., and Altice, J., concur.
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