George F. Hauk, IV v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 09 2018, 9:29 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George F. Hauk, IV, July 9, 2018
Appellant-Defendant, Court of Appeals Case No.
70A05-1710-CR-2437
v. Appeal from the Rush Circuit
Court
State of Indiana, The Honorable David E. Northam,
Appellee-Plaintiff Judge
Trial Court Cause No.
70C01-1705-F3-343
Crone, Judge.
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Case Summary
[1] George F. Hauk, IV, appeals his conviction for level 3 felony rape following a
jury trial. Hauk argues that the court committed fundamental error in
admitting evidence. Finding no fundamental error, we affirm.
Facts and Procedural History
[2] The evidence most favorable to the verdict shows that M.B. went to Hauk’s
house in early April 2016. Hauk, his wife, another woman who lived on the
property, and Hauk’s friend Aron Alexander were all there, and it was M.B.’s
first time meeting everyone except Alexander. Shortly after M.B. arrived,
everyone went upstairs, where she, Alexander, and Hauk played pool while the
other two women sat and talked to each other.
[3] After about thirty minutes, Hauk’s wife and the other woman said they were
going to eat and went downstairs. Hauk told M.B. that he wanted to show her
something in the attic, and along with Alexander, they made their way to the
attic. Hauk walked over to M.B., started kissing her neck and face, and pulled
down her pants. M.B. pushed Hauk off, but Alexander grabbed her arms and
held them behind her. Hauk penetrated M.B.’s vagina with his fingers. M.B.
yelled for the two men to get off her, which they did, pulled up her pants, went
downstairs to collect her belongings, and went home.
[4] The next morning, the following text message conversation took place between
Alexander and M.B.:
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[Alexander]: Good morning beautiful.
[M.B.]: Aaron I really honestly don't want to talk to you! I'll have
you know, I'm taking this shit that happened the other day pretty
hard and I will not continue to hold that on my shoulders. I
don't deal with that kind of shit and I won't! I'm more valuable
than you and your friend is giving me credit for! I'm taking this to
another level now and I don't want to talk to you. I've told you
now 3 times I don't want to talk to you and you continue to think
something is going to change. It's not.
[Alexander]: Ok I’m sorry I’ll leave you alone I apologize for my
friend nd I’m actually not stayin with him anymore cause of that
reason but have a nice day it was nice meeting you
[M.B.]: I honestly should take it to the police
[Alexander]: I done told him I was cause of wat he did cause that
was fucked up and I told his wife she flipped nd I even tried to
stop it.
[M.B.]: No you didn’t you carried me by my hands to the closet.
Don’t even fucking try that. I didn’t even know you or him. I’m
fucking worth more than that. You’re both fucking low life’s
State’s Ex. 1.
[5] M.B. reported the incident to the police, and Hauk was charged with level 3
felony rape and level 6 felony sexual assault. At trial, the court admitted the
text message conversation into evidence over Hauk’s objections of insufficient
foundation. Both M.B. and Alexander testified as witnesses for the State, and
both acknowledged sending the text messages at issue, which eliminated Hauk's
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insufficient foundation concerns. Alexander acknowledged that he had also
been charged with the rape and sexual battery of M.B., and that he agreed to
testify in hopes of getting “a better deal.” Tr. Vol. 2 at 48. During
deliberations, the only evidence the jury requested to review was the text
messages, which the court denied. The jury found Hauk guilty of rape and
sexual battery, and the trial court vacated the sexual battery charge. He was
sentenced to seven years. This appeal ensued.
Discussion and Decision
[6] Hauk’s sole argument is that the trial court erred in admitting the text messages.
He contends that the messages constitute inadmissible hearsay, but concedes
that he did not object on hearsay grounds at trial. He therefore argues that the
admission of the messages constituted fundamental error.
[7] To qualify as fundamental error, “an error must be so prejudicial to the rights of
the defendant as to make a fair trial impossible.” Mitchell v. State, 726 N.E.2d
1228, 1236 (Ind. 2000). “[T]he error must constitute a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting
error must deny the defendant fundamental due process.” Id.
[8] Hauk argues that the text messages constitute inadmissible hearsay, and the
State does not disagree. He contends that the admission of the messages was
prejudicial because it bolstered M.B.’s credibility with the jury, and a fair trial
was effectively impossible. Hauk furthers this contention by suggesting that the
messages played a pivotal role in bolstering M.B’s credibility with the jury
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because the jury requested to review the messages. The “[a]dmission of hearsay
is not grounds for reversal where it is merely cumulative of other evidence
admitted.” Wilkes v. State, 7 N.E.3d 402, 405 (Ind. Ct. App. 2014). Cumulative
evidence that is consistent with the victim’s testimony and does not elaborate
on the testimony is not grounds for reversal. Nunley v. State, 916 N.E.2d 712,
720 (Ind. Ct. App. 2009). Here, M.B’s and Alexander’s testimony did not
contradict the text messages, and the text messages did not elaborate on the
testimony. Hauk has not shown that M.B. had any reason to fabricate her
testimony, and the jury was made aware of Alexander’s motive for testifying. 1
Hauk merely speculates as to the jury’s reason for requesting the text messages
during deliberations. Because the messages were consistent with and
cumulative of M.B.’s and Alexander’s testimony, no fundamental error
occurred in the admission of those text messages. Accordingly, we affirm
Hauk’s conviction.
[9] Affirmed
Bailey, J., and Brown, J., concur.
1
We reject Hauk’s request to consider evidence outside the record regarding Alexander’s post-trial guilty plea
proceedings.
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