APPEAL FROM THE NOBLE SUPERIOR COURT. The Honorable Robert E. Kirsch, Judge. Cause No. 57D01-1104-FA-14.
ATTORNEY FOR APPELLANT: KATHRYN C. BYROM, Kendallville, Indiana.
ATTORNEY FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; J.T. WHITEHEAD, Deputy Attorney General Indianapolis, Indiana.
BROWN, Judge. VAIDIK, C.J., and NAJAM, J., concur.
John Barnhart appeals his convictions and sentence for two counts of child molesting as class A felonies and one count of possession of marijuana as a class A misdemeanor. Barnhart raises two issues which we revise and restate as follows:
I. Whether the trial court abused its discretion by excluding evidence that the victim submitted to a urine drug screen and that the results were negative; and
II. Whether the trial court abused its discretion in sentencing him.
FACTS AND PROCEDURAL HISTORY
Jessica Jordan moved to Indiana in December 2010. Jordan's daughter, I.S., who was born on June 24, 1999, moved in with Jordan sometime between December 25, 2010, and the first week of January 2011. Barnhart and Jordan had been together since the end of August 2008, and he and his two daughters moved in with Jordan and her children. Barnhart was unemployed, and Jordan worked nights. Jordan and Barnhart shared the smaller of the two bedrooms in the apartment, while Barnhart's daughters slept in a bunk bed in the master bedroom, and I.S. slept on a mattress on the floor of the walk-in closet in the master bedroom. During this time frame, I.S. sometimes saw Barnhart smoke marijuana using a blue and orange pipe.
On April 20, 2011, Jordan, I.S., Barnhart, and one of Barnhart's daughters attended a wedding in Ohio and returned to Indiana shortly before Jordan was scheduled to work. That evening, while Jordan was at work, Barnhart went into the closet of the bedroom where I.S. was sleeping, woke her up, and started touching her. Specifically, Barnhart rubbed his penis up and down on her vagina, and his penis entered the outer and inner lips of her vagina. Barnhart tried to " stick [his penis] in" her, and she screamed because it hurt. Transcript at 151. Barnhart also touched I.S.'s vagina with his tongue. Barnhart had an erection during the incident, and a white substance came out of Barnhart's penis and ended up on I.S.'s bed and leg.
That weekend, I.S. visited her grandmother, Angela Dreher, in Ohio. While there, I.S. took a walk with her aunts, who were Dreher's daughters, and when they all returned, Dreher's daughters told Dreher that I.S. had disclosed information about Barnhart. Dreher spoke with I.S., and after asking her what happened, and listening to I.S.'s answers, Dreher called the Sheriff's Department. Later, the Kendallville Police contacted Dreher to arrange an interview of I.S. by Beth Donovan of the Noble County Department of Child Services.
Detective Sergeant Lance Waters of the Kendallville Police Department observed the interview with I.S., which led him to obtain a search warrant for the home where I.S. lived. On April 28, 2011, the police executed the search warrant and discovered marijuana where I.S. had said it would be found, and the orange and blue pipe described by I.S. Police also collected the bed sheets and blankets from I.S.'s bed.
Detective Waters interviewed Barnhart, and Barnhart admitted to owning the marijuana
and pipe that was recovered. Barnhart referred to I.S. as " that girl," which Detective Waters found significant, as it indicated an indifference towards I.S. on Barnhart's part. Id. at 192. Barnhart also told Detective Waters that none of his bodily fluids would be found on that sheet and that he never lay on that bed because that had always been I.S.'s bed. The police tested the bed sheets for DNA to compare with samples taken from both I.S. and Barnhart. The bed ...