Jonathon McDonald v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
Aug 14 2013, 5:40 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER
Danville, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JONATHON MCDONALD, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1210-CR-483
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS CIRCUIT COURT
The Honorable Jeffrey V. Boles, Judge
Cause No. 32C01-1009-FA-1
August 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Jonathon McDonald appeals his convictions for three counts of child molesting as
class A felonies and two counts of vicarious sexual gratification as class B felonies.
McDonald raises three issues, which we revise and restate as:
I. Whether any error in the admission of the testimony of the child
victim is harmless;
II. Whether the trial court abused its discretion in denying McDonald’s
motions for mistrial; and
III. Whether an accumulation of certain alleged errors constitute
fundamental error.
We affirm.
FACTS1 AND PROCEDURAL HISTORY
McDonald has three children, A.M., his daughter born on April 28, 2001, his son
J.M., who was five years old in August 2008, and his daughter K.M., who was four years
old in August 2008. Between July 2007 and August 2008, McDonald inserted his penis
into J.M.’s anus, McDonald and J.M. placed their mouths on each other’s penises, and
McDonald had or helped J.M. insert his penis into A.M.’s vagina and anus. McDonald
told A.M. and J.M. not to tell anyone.
In the summer of 2008, McDonald’s three children were removed from the care of
McDonald and his wife by the Department of Child Services (“DCS”) due to unsanitary
conditions in the home. State v. McDonald, 954 N.E.2d 1031, 1032 (Ind. Ct. App. 2011).
The foster mother reported that the children were acting out sexually and that A.M.
claimed McDonald had molested her. Id. During the initial interviews, J.M. was unable
1
The facts recited here are taken in part from this court’s previous opinion in State v. McDonald,
954 N.E.2d 1031 (Ind. Ct. App. 2011).
2
to communicate due to severe speech delays and impaired hearing, and as a result DCS
did not substantiate sexual abuse allegations against McDonald as to J.M. Id.In December 2008, the State charged McDonald with two counts of felony child
molesting as class A felonies and one count of child molesting as a class C felony related
to McDonald’s alleged actions against A.M. and three counts of neglect of a dependent as
class D felonies related to the living conditions for A.M., J.M., and K.M. The State later
added a count of performing sexual conduct in the presence of a minor as a class D
felony for having sexual intercourse in the presence of A.M. Id. at 1032-1033. In March
2009, McDonald pled guilty to performing sexual conduct in the presence of a minor as a
class D felony and was sentenced to three years in the Department of Correction, and the
State dismissed the remaining charges. Id. at 1033. After receiving speech therapy
which started in November 2008, J.M. was reinterviewed in July 2010, and, based on the
interview, DCS substantiated sexual abuse allegations against McDonald related to J.M.
Id.In September 2010, the State charged McDonald, as amended, with: Count I, child
molesting as a class A felony for deviate sexual conduct involving the sex organ of
McDonald and the anus of J.M.; Count II, child molesting as a class A felony for deviate
sexual conduct involving the sex organ of McDonald and the mouth of J.M.; Count III,
child molesting as a class A felony for deviate sexual conduct involving the sex organ of
J.M. and the mouth of McDonald; Count IV, vicarious sexual gratification as a class B
felony for inducing or causing J.M. to engage in sexual intercourse with another child
under the age of sixteen; and Count V, vicarious sexual gratification as a class B felony
for inducing or causing J.M. to engage in deviate sexual conduct with another person.
3
McDonald filed a motion to dismiss the charges against him in December 2010, arguing
that the charges should be dismissed pursuant to Indiana’s successive prosecution statute,
and the trial court granted the motion. Id. The State appealed the court’s ruling, and this
court reversed the ruling and remanded for further proceedings. Id. at 1035. In July
2012, the trial court granted the State permission to file an amended information related
to the counts of vicarious sexual gratification to correct a scrivener’s error. The State
filed a notice of intent to offer evidence under Ind. Evidence Rule 404(b) on July 13,
2012. McDonald filed a motion in limine seeking to exclude evidence of prior crimes or
misconduct on July 19, 2012, and the court granted the motion. The State then filed an
amended notice of intent to offer evidence under Ind. Evidence Rule 404(b) on July 23,
2012, which included evidence related to sexual acts and touches that A.M. was forced to
participate in with McDonald. At his jury trial, the evidence included the testimony,
among others, of J.M., A.M., Plainfield Police Detective Allison Ritter, the foster mother
of J.M. and A.M., the children’s bus driver, a volunteer at J.M.’s church group, and a
forensic interviewer. During the trial, McDonald challenged the competency of J.M.,
arguing in part that the State failed to demonstrate that J.M. understood the difference
between telling a lie and telling the truth or that he understood the consequences of lying,
and the court permitted J.M. to testify. In addition, McDonald filed two motions for
mistrial, one of which was based upon a statement by A.M. that McDonald had sex with
her, and the other of which was based upon alleged vouching testimony of Detective
Ritter. The court denied the motions. The jury found McDonald guilty as charged on all
five counts. The court sentenced McDonald to forty years for each of his convictions for
child molesting as class B felonies, to be served concurrently with each other, and ten
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years for each of his convictions for vicarious sexual gratification as class A felonies, to
be served concurrently with each other and consecutive to the sentences for child
molesting, for an aggregate sentence of fifty years.
DISCUSSION
I.
The first issue is whether any error in the admission of J.M.’s testimony is
harmless. McDonald contends that the trial court abused its discretion in determining
that J.M. was competent to testify at trial. McDonald specifically asserts that J.M. is
learning disabled with a communication disorder and has a low IQ, that McDonald had
objected and stated that the State failed to establish a foundation that J.M. understood the
difference between the truth and a lie or that J.M. understood the possible consequences
of lying, that the evidence contradicted a number of J.M.’s responses, and that J.M.
would agree with anything to make conflicts go away. The State maintains that the court
acted within its discretion when it found J.M. to be a competent witness and that, even if
the foundation was insufficient, such a deficiency does not warrant reversal of
McDonald’s convictions because J.M.’s testimony was merely cumulative of A.M.’s
more detailed testimony. In his reply brief, McDonald contends that J.M.’s testimony
was crucial to the State’s case, that it was J.M.’s bearing and demeanor that strengthened
the State’s case, that there is little doubt that J.M. was a sympathetic witness, and that
“[h]is testimony was that much more compelling when the court declared him to be
competent, despite his obvious disabilities.” Appellant’s Reply Brief at 4.
Ind. Evidence Rule 601 provides: “Every person is competent to be a witness
except as otherwise provided in these rules or by act of the Indiana General Assembly.”
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“A child’s competency to testify at trial is established by demonstrating that he or she (1)
understands the difference between telling a lie and telling the truth, (2) knows he or she
is under a compulsion to tell the truth, and (3) knows what a true statement actually is.”
Richard v. State, 820 N.E.2d 749, 755 (Ind. Ct. App. 2005), trans. denied, cert. denied,
546 U.S. 1091, 126 S. Ct. 1034 (2006). “It is within the sound discretion of the trial court
to determine whether a child is competent to testify based upon the judge’s observation of
the child’s demeanor and responses to questions posed to her by counsel and the court,
and a trial court’s determination that a child is competent will only be reversed for an
abuse of discretion.” Harrington v. State, 755 N.E.2d 1176, 1181 (Ind. Ct. App. 2001).
“Errors in the admission or exclusion of evidence are to be disregarded as harmless error
unless they affect the substantial rights of a party.” Fleener v. State, 656 N.E.2d 1140,
1141 (Ind. 1995) (citations omitted). An error in the admission of evidence does not
justify reversal if the evidence is cumulative of other evidence presented at trial. Cole v.
State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012).
In this case, even if the trial court abused its discretion in admitting J.M.’s
testimony, the admission was harmless and does not require reversal of McDonald’s
convictions. The record reveals that, when asked one of the things McDonald did to him,
J.M., who was nine years old at the time of trial, testified “[h]im done sex with me,” and
when asked the body part he was talking about, J.M. stated “[d]ick on your butt.”
Transcript at 550-551. When asked “whose dick went in whose butt,” J.M. stated “[l]ike
mine.” Id. at 551. When asked “[y]ours went in whose butt,” J.M. stated “[i]n
[McDonald].” Id. at 551-552. J.M. responded affirmatively when asked if he did
6
anything with A.M. and if McDonald was present. When asked what he and A.M. did,
J.M. testified “[w]e just put my body part in her butt.” Id. at 552.
Prior to J.M.’s testimony, the jury heard the testimony of A.M., who was eleven
years old at the time of trial. When asked what she remembered happening between
McDonald and J.M., A.M. testified that they “had sex together and play with each other
and putting their mouth on each other’s parts.” Id. at 414. A.M. testified that McDonald
“put his part up [J.M.’s] butt . . . .” Id. at 414-415. When asked what body part
McDonald “put” in J.M.’s butt, A.M. stated “[a] dick,” and when asked “[y]ou saw
[McDonald] put his dick in [J.M.’s] butt,” A.M. stated “Yes.” Id. at 415-416. A.M.
further testified that she observed McDonald and J.M. “put each other’s mouth on their
parts,” and when asked “[s]o as far as you saw them each put their mouth on each other’s
dick,” A.M. stated “Yes.” Id. at 416. A.M. also indicated that she observed McDonald
insert his penis into J.M.’s butt more than once. When asked if she “ever [saw] anything
come out of [McDonald’s] dick,” A.M. testified “[j]ust white stuff,” and when asked
“what would [McDonald] do with this white stuff,” A.M. testified “[h]e just make put it
in his mouth or, and drink it.” Id. at 419.
In addition, A.M. testified that McDonald “made [her] and [J.M.] have sex
together,” and when asked what she meant, A.M. testified “[l]ike [J.M.] putting his part
up my butt or front of me.” Id. at 420. When asked “when you’re talking about the front
part here, are you talking about the outside of the part[] or did he actually put it . . . inside
your body,” A.M. testified “[i]nside,” and when asked the same question “about the back
part of your body” where “the poop comes out,” A.M. also testified “[i]nside.” Id. A.M.
testified that McDonald would be “standing by” her and J.M. “showing [them] how to do
7
it” and that he “moved [J.M.] and put it right, in the right, his right spot.” Id. at 421.
A.M. indicated that McDonald “would help put [J.M.’s] dick in [her].” Id. at 422. When
asked how many times she thought this happened, A.M. testified “[a]lmost every day and
all, all the time.” Id.
J.M.’s testimony was substantially similar to the testimony of A.M., and A.M.
testified as to each of the acts to which J.M. testified and alleged by the State, and
defense counsel was able to cross-examine J.M. and A.M. about their observations and
memories. We conclude that any possible error in the admission of J.M.’s testimony was,
at most, harmless because the testimony was cumulative of A.M.’s testimony. See Cole,
970 N.E.2d at 784 (holding the admission of hearsay is not grounds for reversal where it
is merely cumulative of other evidence admitted); Purvis v. State, 829 N.E.2d 572, 581-
585 (Ind. Ct. App. 2005) (holding that the admission of statements of a child molesting
victim to an officer was erroneous because the child was unable to understand the nature
and obligation of an oath and thus was incompetent to testify, but that the erroneous
admission was harmless because the testimony was cumulative and that the properly
admitted testimony was a lengthier recounting of events), trans. denied, cert. denied, 457
U.S. 1026 (2006). Accordingly, we conclude that reversal of McDonald’s convictions on
this basis is unwarranted.
II.
The next issue is whether the court abused its discretion in denying McDonald’s
motions for mistrial. “The granting of a mistrial lies within the sound discretion of the
trial court, and we reverse only when an abuse of discretion is clearly shown.” Davis v.
State, 770 N.E.2d 319, 325 (Ind. 2002), reh’g denied. “The remedy of mistrial is
8
‘extreme,’ Warren v. State, 757 N.E.2d 995, 998-999 (Ind. 2001), strong medicine that
should be prescribed only when ‘no other action can be expected to remedy the situation’
at the trial level, Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982).” Lucio v. State, 907
N.E.2d 1008, 1010-1011 (Ind. 2009). We afford the trial court such deference on appeal
because the trial court is in the best position to evaluate the relevant circumstances of an
event and its impact on the jury. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App.
2003), trans. denied. To prevail on appeal from the denial of a motion for a mistrial, the
appellant must demonstrate the statement or conduct in question was so prejudicial and
inflammatory that he was placed in a position of grave peril to which he should not have
been subjected. Id. We determine the gravity of the peril based upon the probable
persuasive effect of the misconduct on the jury’s decision rather than upon the degree of
impropriety of the conduct. Id. A mistrial is an extreme sanction warranted only when
no other cure can be expected to rectify the situation. Id.McDonald asserts that the court abused its discretion in denying his motions for
mistrial because the jury was improperly exposed to prior bad acts through a statement
made by A.M. and vouching testimony when Detective Ritter gave certain testimony
regarding the victims’ statements. The State maintains that the court properly denied the
motions for mistrial, that A.M.’s statement, which the State did not anticipate, did not
place McDonald in a position of grave peril, and that Detective Ritter’s testimony did not
constitute improper vouching testimony and did not place McDonald in a position of
grave peril.
With respect to McDonald’s motion for mistrial based upon A.M.’s statement,
during the direct examination of A.M., the following exchange occurred:
9
Q Did [McDonald] ever tell you or say anything to you about talking
about what was going on?
A Yes.
Q What did he tell you?
A He told me you better not tell anyone or you’ll be killed.
Q Who would kill you?
A Huh?
Q Who would kill you?
A [McDonald].
Q Did you believe him?
A Yes, and no.
Q But yet you told?
A Yes.
Q Uh, if you didn’t do these things, have sex with [J.M.], uh, or [J.M.]
wouldn’t have sex with [McDonald], what would [McDonald] do to
you?
A He had sex with me.
Transcript at 424-425. McDonald moved for a mistrial and stated that “the witness was
advised not to speak [of] any sexual acts between herself or anybody else and
[McDonald],”2 that A.M.’s statement was highly prejudicial, that “[n]ow [] the jury’s
2
Ind. Evidence Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on
10
been told that these things happened which we can rebut that her dad was going to kill
he[r] and that if she didn’t have sex with [J.M.] dad was going to have sex with her then,”
and that “I don’t think I can cure that, especially now through what this witness has said.”
Id. at 425. The trial court stated that A.M.’s response was not a violation of the motion in
limine,3 that McDonald could ask for a curative response from the court, and that the
motion for mistrial was denied. The court instructed the jury to disregard A.M.’s last
answer, in no way during deliberations to discuss or refer to her answer, and that the
answer could not be used as evidence. The court asked the jury whether they could all do
those things and noted that all of the jury members responded affirmatively.
Based upon the record, including A.M.’s extended and detailed testimony
regarding the actions of McDonald with J.M. and in causing J.M. and A.M. to have sex
with each other, and in light of the court’s admonition to the jury to disregard the
statement and the jury’s indication that they could do so, we conclude that McDonald has
not established that A.M.’s statement “[h]e had sex with me” was so prejudicial and
inflammatory that he was placed in a position of grave peril to which he should not have
been subjected, or that the jury’s decision was affected by the statement. The trial court
did not abuse its discretion in denying McDonald’s motion for mistrial on this basis.
good cause shown, of the general nature of any such evidence it intends to introduce at
trial.
3
In his motion in limine, McDonald requested that the State make no comment or argument on
his apparent criminal adult or juvenile record of any reference to any prior misconduct. In its amended
notice of intent to offer evidence pursuant to Ind. Evidence Rule 404(b), the State said in part that it still
intended to present evidence related to sexual acts and touches that A.M. was forced to participate in with
McDonald and that, pursuant to Marshall v. State, 893 N.E.2d 1170 (Ind. Ct. App. 2008), those acts are
considered intrinsic to the acts charged and therefore admissible, as Evidence Rule 404(b) does not apply.
11
With respect to McDonald’s motion for mistrial based upon Detective Ritter’s
testimony, Detective Ritter testified as to her role in the investigation of the allegations
against McDonald involving the children. During cross-examination, McDonald’s
defense counsel questioned Detective Ritter in part regarding her investigation and
several individuals she did not interview during the investigation. On redirect
examination, the prosecutor asked Detective Ritter why she had not talked during her
investigation “to the volumes of people that [defense counsel] listed off,” and Detective
Ritter responded by explaining her role on a multidisciplinary team and that other team
members perform other parts of the investigation. Id. at 473. The following exchange
then occurred:
Q All right. In other words, in making the determination to file
charges, uh, what is that, that you, made you decide to actually file
charges?
A Uh, the main point is the reliability of the victim’s statements. Uh,
once you are able to get the victim’s statements, the allegations, uh,
determining believability and corroboration of their statements.
Id. at 474. McDonald moved for a mistrial on the basis that Detective Ritter’s testimony
constituted improper vouching for a witness under Ind. Evidence Rule 704(b). 4 The trial
court informed the jury there had been an objection and to disregard the question and
Detective Ritter’s response above. The prosecutor then asked Detective Ritter if she felt
that she did a complete and thorough examination prior to bringing charges to the
prosecutor’s office, and Detective Ritter responded affirmatively.
4
Ind. Evidence Rule 704(b) provides: “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.”
12
If a witness’s testimony does not opine about the specific child in the case, it
leaves the ultimate credibility determination for the jury and, therefore, is not vouching
testimony prohibited by Rule 704(b). See Kindred v. State, 973 N.E.2d 1245, 1257 (Ind.
Ct. App. 2012) (contrasting general testimony about the signs of coaching from specific
testimony about the child victim in a given case, and noting that general testimony
preserves the ultimate credibility determination for the jury and therefore does not
constitute vouching, whereas a witness who opines as to whether the child victim was
coached vouches for the child and invades the province of the jury), trans. denied; see
also Otte v. State, 967 N.E.2d 540, 544 (Ind. Ct. App. 2012) (holding that a domestic
violence expert’s non-specific statements regarding victims of domestic violence was not
impermissible vouching testimony under Indiana Evidence Rule 704(b)), trans. denied.
Detective Ritter gave only brief testimony regarding the reliability of victims’
statements and did not testify as to any opinion concerning the veracity of the allegations
or testimony of J.M. or A.M. Based upon the record, including the fact that Detective
Ritter did not specifically vouch for any witness or testify that any witness testified
truthfully, the trial court’s admonition, and McDonald’s cross-examination of Detective
Ritter concerning the investigation, we conclude that McDonald has not established that
Detective Ritter’s response was so prejudicial and inflammatory that he was placed in a
position of grave peril. Accordingly, the trial court did not abuse its discretion in denying
McDonald’s motion for mistrial on this basis.
III.
The next issue is whether an accumulation of certain alleged errors constitute
fundamental error. McDonald contends that the admission of hearsay, testimony by an
13
incompetent complainant, testimony of prior bad acts, and vouching evidence combined
to deny him a fair trial and constitute fundamental error. In support of his position,
McDonald points to certain comments made during the prosecutor’s opening statement,
and certain alleged hearsay testimony including that of the foster mother of J.M. and
A.M., their bus driver, a volunteer for J.M.’s church group, and a forensic interviewer.
The State maintains that McDonald fails to show fundamental error, that the challenged
opening statements were not improper, that some of the challenged testimony did not
constitute inadmissible hearsay, and that, to the extent that some of the testimony
involved hearsay, the testimony was harmless.
To the extent that McDonald failed to object or otherwise challenge the argument
or admission of evidence he claims was improper, McDonald’s claims are waived. See
Johnson v. State, 734 N.E.2d 530, 532 (Ind. 2000) (holding that the failure to object at
trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be
considered for substantive purposes). Also, errors in the admission of evidence are to be
disregarded as harmless unless they affect the substantial rights of a party. McClain v.
State, 675 N.E.2d 329, 331 (Ind. 1996). In determining whether error in the introduction
of evidence affected the defendant’s substantial rights, this court must assess the probable
impact of the evidence upon the jury. Id. In addition, a claim waived by a defendant’s
failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing
court determines that fundamental error occurred. Delarosa v. State, 938 N.E.2d 690,
694 (Ind. 2010). The fundamental error exception is extremely narrow and applies only
when the error constitutes a blatant violation of basic principles, the harm or potential for
14
harm is substantial, and the resulting error denies the defendant fundamental due process.
Id. This exception is available only in egregious circumstances. Id.In this case, some of the testimony challenged by McDonald does not constitute
inadmissible hearsay. The testimony of the children’s foster mother regarding her
observations of the children simulating sexual acts with each other, and A.M.’s statement
that “daddy taught me” after being asked where she learned “to do this,” explained why
the foster mother contacted DCS and why the children were interviewed. Transcript at
490. See Goldsworthy v. State, 582 N.E.2d 921, 922 (Ind. Ct. App. 1991) (noting that
trial courts may admit into evidence statements that would otherwise be hearsay where
those statements are introduced to explain a witness’s actions rather than for their
probative value). Also, the testimony of the church volunteer regarding J.M.’s statements
that he was scared to pray, he felt like he was a bad person because he had done bad
things, and that these things were “sexy things,” explained why the volunteer reported the
conversation to church staff and DCS. Transcript at 631. Further, the prosecutor
withdrew the question and asked the volunteer to describe his response without referring
to what J.M. may have stated, and the volunteer explained that he “felt that there was
something unusual about [J.M.’s] comments” and discussed the matter with the staff at
the church and then reported the incident to child services. Id. at 632. And to the extent
that other testimony McDonald challenges constitute inadmissible hearsay, the evidence
is cumulative of properly admitted testimony. The testimony of the forensic interviewer
regarding certain statements made by A.M. and J.M. during their interviews and by the
children’s bus driver was cumulative of the testimony of A.M. Admission of hearsay
evidence is not grounds for reversal where it is merely cumulative of other evidence
15
admitted. McClain, 675 N.E.2d at 331-332. Any such admission was harmless and does
not require reversal. See id. (holding that any error in the admission of the therapist’s
testimony was harmless and reversal was not required where hearsay evidence was
merely cumulative of other evidence admitted).
We further note that the prosecutor’s statements informing the jury of the evidence
and witnesses which the State expected to present was not improper. See Splunge v.
State, 526 N.E.2d 977, 981 (Ind. 1988) (noting that the scope and content of the opening
statement is within the discretion of the trial court and that the purpose of an opening
statement is to inform the jury of the charges as well as the contemplated evidence), reh’g
denied, cert. denied, 490 U.S. 1110, 109 S. Ct. 3165 (1989). Further, the trial court
instructed the jury that the opening statements of the attorneys are not evidence and
should be considered by the jury only as a preview of what the attorneys expect the
evidence will be. In light of the testimony against McDonald, we cannot say that the
prosecutor’s comments prejudiced him, denied him a fair trial, or affected his substantial
rights. See id. (holding that “[i]n view of the testimony of all the other witnesses
establishing Splunge’s participation with Fox in these crimes, it does not appear the
statements made by the prosecuting attorney in opening statement prejudiced Splunge . . .
.”). We also note that we addressed the testimony of J.M. and alleged prior bad acts and
vouching evidence above. Additionally we observe that McDonald does not contend that
each of his alleged errors, standing alone, constitutes fundamental error, but rather that
the cumulative effect constitutes fundamental error.
Based upon the record and the evidence, we conclude that the cumulative effect of
the admission of any inadmissible hearsay evidence does not establish a substantial
16
likelihood that any improper testimony contributed to McDonald’s conviction, that
McDonald was deprived of fundamental due process, that his substantial rights were
affected, or that any such error constitutes fundamental error. See Bryant v. State, 984
N.E.2d 240, 247 (Ind. Ct. App. 2013) (finding that the challenged testimony was for the
most part cumulative, that there was not a substantial likelihood that the hearsay
testimony contributed to the conviction, and consequently that admission of the
challenged testimony was harmless error), trans. denied. McDonald has not
demonstrated fundamental error requiring reversal of his convictions.
CONCLUSION
For the foregoing reasons, we affirm McDonald’s convictions.
Affirmed.
RILEY, J., and BRADFORD, J., concur.
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