Cole v. State, 2012 Ind. App. LEXIS 330

J.S. consumed alcohol at two bars and could not remember the events after leaving the second bar.
She was found in a D.R. bar car intoxicated and unconscious; K.G. observed a tall, skinny Black man exit the vehicle and flee.
J.S. awoke in an ambulance and later consented to evidence collection via a rape kit; her blood alcohol was .27.
DNA analysis tied Cole to the fluids found on J.S. and his fingerprints were found on a beer bottle near D.R.'s car.
Cole admitted sexual intercourse with J.S. but claimed it was consensual; he was charged with Class B felony rape and convicted.
On appeal, Cole challenged the trial court’s ruling on refreshing recollection and the admission of hearsay; the conviction was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Refresh recollection admissibility	Cole argues the nurse’s notes should refresh J.S.’s memory	State argues writing by another witness is valid for refreshment	No reversible error; testimony was cumulative.
Hearsay admissibility	Cole asserts multiple statements were hearsay and prejudicial	State contends some statements were invited or cumulative and not outcome-determinative	No fundamental error; any error was invited or cumulative and did not contribute to guilt.

Gaby v. State, 949 N.E.2d 870 (Ind.Ct.App.2011) (trial court’s broad discretion in evidentiary rulings)
Tobar v. State, 740 N.E.2d 106 (Ind. 2000) (evidence that is cumulative is not reversible)
Meadows v. State, 785 N.E.2d 1112 (Ind.Ct.App.2003) (substantial independent evidence may render erroneous admission harmless)
Johnson v. State, 725 N.E.2d 864 (Ind.2000) (waiver of hearsay claims for failure to object)
Jewell v. State, 887 N.E.2d 939 (Ind.2008) (fundamental error exception is extremely narrow)
Warriner v. State, 435 N.E.2d 562 (Ind.1982) (definition of fundamental error)
Benson v. State, 762 N.E.2d 748 (Ind.2002) (fundamental error analysis narrow)