[2] In September 2018, N.G. lived with her two children in a house in Clarks Hill.

At some point after 11:00 p.m. on September 11, 2018, N.G. and her children

watched a movie in the living room, and the children fell asleep. N.G. doublechecked that the door was locked and fell asleep between midnight and 1:00

a.m. N.G. woke up, opened her eyes, and saw Green in her living room.

1

She

observed Green staring at her and holding a silver semi-automatic handgun.

The television was on in the living room and the lights were off. Green ordered

N.G. to “get up and go” and not to make any noise. Transcript Volume II at

177. He pushed her through the hallway and into her daughter’s bedroom.

N.G. noticed the gun was closer to her and saw it had black on it as well as

silver. Green ripped N.G.’s tank top off of her, removed her pants and

underwear, pushed her onto the bed, and forced her to suck on his penis. He

then pushed her backwards, climbed on top of her, and shoved his penis in her

1 N.G. testified that she had never spoken with or spent time with Green but that she had seen him in passing

around Clarks Hill.

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mouth. He “was forcing it . . . so hard that [she] couldn’t breathe,” she tried to

push him off, and he “just force[d] it back and said ‘No.’” Id. at 181. Green

held the gun in his hand and pointed it at N.G.’s temple. After a few minutes,

he “pulled it out and stuck it inside of [her] vagina.” Id. While Green was

having sexual intercourse with her, N.G. “begged him” not to ejaculate “inside

of [her] because [she] said [she] already lost a child due to a piece of crap,” and

Green “got angry and started to choke [her] and said ‘Are you calling me a

piece of crap.’” Id. at 184. He kept saying “[t]ell me you love me.” Id. Green

ejaculated while having sexual intercourse with N.G. According to N.G., there

was a point when he placed the gun down on the bed, it fell between the bed

and the wall, he picked it up again “after he was finished,” and “other than

that, he had it in his hands.” Id. at 185.

[3] N.G. told Green she needed to use the restroom, and he walked her to the

bathroom and did not allow her to turn on the lights. Green and N.G. returned

to the bedroom where he tried to have intercourse with her again but was

unable maintain an erection. Green told N.G. that he had been watching her

and said, “I’m sorry it had to happen this way,” “if I could have just met you

up at Clarks Hill Park and told you who you were, you’d want to be with me,”

and “maybe since you haven’t seen my face and only heard my voice, maybe []

that’s still a possibility.” Id. at 184.

[4] N.G. told Green she wanted to take a bath, and he took her to the bathroom

but did not let her turn on the lights. While she was sitting in the tub, Green

ordered her to stand and face the wall, he turned on the light and stood behind

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her, she observed a tattoo on his leg, he had intercourse with her again, she

begged him not to ejaculate inside her, and he ejaculated on her back and butt.

N.G. sat back down in the tub. Green said “reach your fingers way up in there

and try to scrape out anything that’s in there.” Id. at 186. Green ordered N.G.

to count to one hundred and to turn around. He told her that, if she went to the

police, he would kill her brother and father and return to kill her. After Green

left, N.G. contacted her manager, brother, and father, and her father’s girlfriend

contacted law enforcement.

[5] N.G. went to the hospital, where Cathy Clark, a sexual assault nurse examiner,

(“Nurse Clark”) performed a sexual assault examination. As part of the

examination, N.G. described the attack to Nurse Clark. DNA testing was

performed on swabs obtained during N.G.’s examination and from Green. The

testing revealed that the DNA profile with respect to each of the

vaginal/cervical swabs, anal swabs, and internal genital swabs was “at least one

trillion times more likely if it originated from [N.G.] and [Green] than if it

originated from [N.G.] and an unknown, unrelated individual” and that “[t]his

analysis provides very strong support for the proposition that [Green] is a

contributor to the DNA profile.” State’s Exhibit 45.

[6] On October 17, 2018, the State charged Green with: Count I, rape by using or

threatening the use of deadly force or while armed with a deadly weapon as a

level 1 felony; Count II, burglary while armed with a deadly weapon as a level

2 felony; Count III, criminal confinement while armed with a deadly weapon as

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a level 3 felony; Count IV, strangulation as a level 6 felony; and Count V,

residential entry as a level 6 felony.

[7] During the jury trial, N.G. testified to the foregoing. The prosecutor asked

Nurse Clark to summarize N.G.’s statement about the events leading to her

hospital visit, and Green’s defense counsel objected on hearsay grounds. The

prosecutor argued the testimony was admissible under Ind. Evidence Rule

803(4). Defense counsel argued that anything beyond diagnosis and treatment

was not admissible under Ind. Evidence Rule 803(4) and the testimony was

repetitive of N.G.’s testimony. The court overruled the objection. Nurse Clark

testified:

So [N.G.] said she was on her couch asleep. Her two children were also

asleep on the floor. And she was awakened by somebody yelling at her

very - with profanity, to get up, and also he had a gun in his hand. He

then walked her back down the hall into her daughter’s bedroom. And

on the way into the daughter’s bedroom, she reported that he ripped off

her white tank top that also had sequins on it. And then once he got her

into the daughter’s bedroom, he took off her jogging pants and her

underwear, and he then sexually assaulted her by putting his penis in

her mouth and also in her vagina, and also trying to get his penis in his -

in her anus, as well. And he did this more than once.

He also - after a while, he then took her down the hall and had her get

into a tub of water because he said, I want you to wipe off any evidence

of me. And then she got into the water and cleaned herself all off. And

then he also sexually assaulted her in the bathroom with putting his

penis in her mouth, and again, in her vagina in the bathroom, in the

bathtub, then pushed her back down in the water and made her get

washed again.

And then - also, he never allowed any lights on, and he told her that she

needed to stay in the water and count to 100. And if she didn’t, he

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would kill her. He talked about also threatening her mother and father

and brothers as well. And so she did it. She stayed in the bathtub and

counted to 100 until he was gone.

Transcript Volume III at 76. Nurse Clark testified she performed a head-to-toe

examination of N.G., documented her injuries, and photographed N.G.’s arm

which showed discoloration and bruising and her neck where she reported she

was strangled which showed discoloration and redness. She testified regarding

the genital exam she performed and that N.G. sustained a tear on her vaginal

wall. Nurse Clark testified that she collected swabs based on N.G.’s history and

performed swabs of the inner and outer areas of N.G.’s genitalia as well as her

breasts.

[8] The jury found Green guilty as charged on all counts. The court entered

judgments of conviction for rape as a level 1 felony under Count I, burglary as a

level 4 felony under Count II; criminal confinement as a level 6 felony under

Count III; and strangulation as a level 6 felony under Count IV. The court

stated that it reduced the level of felony for the burglary and criminal

confinement convictions because they had been elevated based on “the same

enhancement that’s used in the rape case,” and “I can only use one

enhancement.” Id. at 243. The court vacated Green’s conviction for residential

entry under Count V. The court sentenced Green to forty years on Count I,

eight years with five years suspended to supervised probation on Count II, and

two years each on Counts III and IV. It ordered that the sentences on Counts I,

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II and IV be served consecutively for an aggregate sentence of fifty years with

five years suspended.

Discussion

I.

[9] The first issue is whether the trial court abused its discretion in admitting

certain testimony from Nurse Clark. We generally review the trial court’s

ruling on the admission or exclusion of evidence for an abuse of discretion.

Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only

where the decision is clearly against the logic and effect of the facts and

circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

We may affirm a trial court’s decision if it is sustainable on any basis in the

record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied. Even if

the trial court’s decision was an abuse of discretion, we will not reverse if the

admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.

Ct. App. 1999), reh’g denied, trans. denied.

[10] Green argues the trial court abused its discretion when it permitted Nurse Clark

to testify as to N.G.’s statements to her at the hospital. Green cites Ind.

Evidence Rule 801(d)(1).2

The State responds that Nurse Clark’s testimony was

2 Ind. Evidence Rule 801(d) provides in part:

Notwithstanding Rule 801(c), a statement is not hearsay if:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination

about a prior statement, and the statement:

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admissible under Ind. Evidence Rule 803(4) and that any error was harmless as

the testimony was substantially the same as N.G.’s testimony.

[11] Ind. Evidence Rule 801(c) provides that hearsay means a statement that is not

made by the declarant while testifying at the trial or hearing and is offered in

evidence to prove the truth of the matter asserted. Ind. Evidence Rule 802

provides that hearsay is not admissible unless the rules or other law provides

otherwise. Ind. Evidence Rule 803 provides in part:

The following are not excluded by the rule against hearsay, regardless of

whether the declarant is available as a witness:

* * * * *

(4) Statement Made for Medical Diagnosis or Treatment. A statement

that:

(A) is made by a person seeking medical diagnosis or treatment

(B) is made for – and is reasonably pertinent to – medical diagnosis

or treatment; and

(C) describes medical history; past or present symptoms, pain or

sensations; their inception; or their general cause.

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at

a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony, and is offered to rebut an express or

implied charge that the declarant recently fabricated it or acted from a recent improper

influence or motive in so testifying; or

(C) is an identification of a person shortly after perceiving the person.

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“The rationale underlying the exception is that a declarant’s self-interest in

seeking treatment reduces the likelihood that she will fabricate information that

she provides to those who treat her.” Perry v. State, 956 N.E.2d 41, 49 (Ind. Ct.

App. 2011) (citation omitted), reh’g denied. In determining the admissibility of

hearsay under Ind. Evidence Rule 803(4), courts evaluate (1) whether the

declarant’s motive was to provide truthful information to promote diagnosis

and treatment and (2) whether the content of the statement is such that an

expert in the field would reasonably rely on it in rendering diagnosis or

treatment. Id. “The extent to which a statement as to cause is pertinent to

diagnosis or treatment rests within the discretion of the trial judge, who may

consider the health care provider’s testimony in making that determination.”

Id. at 50 (citation omitted).

[12] The record reveals that N.G. was at the hospital and made her statements to

Nurse Clark as part of a sexual assault examination. Nurse Clark testified that

sexual assault examinations are “individualized based on [the patient’s]

history.” Transcript Volume III at 65. She testified that, as part of the exam,

she took “a history of what brought” N.G. to the hospital and N.G. gave her “a

history of everything that occurred on September 12th, prior to coming in, and

I’m documenting that in the electronic medical record.” Id. at 71. N.G.’s

statement described the assault against her and related her medical condition

and injuries and their inception and general cause. Based upon the record, we

cannot say the trial court abused its discretion in admitting the challenged

statements pursuant to the hearsay exception under Ind. Evidence Rule 803(4).

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See Perry, 956 N.E.2d at 50 (concluding that the victim’s statements indicating

she was grabbed around the neck and strangled were pertinent to the diagnosis

and treatment of her injuries and admissible under Ind. Evidence Rule 803(4)).

Further, errors in the admission of evidence are to be disregarded as harmless

error unless they affect the substantial rights of a party. McClain v. State, 675

N.E.2d 329, 331 (Ind. 1996); Ind. Trial Rule 61. 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. McClain,

675 N.E.2d at 331. The testimony of Nurse Clark regarding N.G.’s statements

to her was cumulative of N.G.’s testimony, and any error in the admission of

N.G.’s statements through Nurse Clark’s testimony was harmless. See id.

(finding any error in admitting a therapist’s testimony was harmless where it

was merely cumulative of the declarant’s statements made on the stand).

II.

[13] The next issue is whether the evidence is sufficient to prove that Green

committed his offenses while armed with a deadly weapon. When reviewing

the sufficiency of the evidence to support a conviction, we must consider only

the probative evidence and reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility

or reweigh the evidence. Id. We consider conflicting evidence most favorably

to the verdict. Id. We affirm the conviction unless no reasonable factfinder

could find the elements of the crime proven beyond a reasonable doubt. Id.

The evidence is sufficient if an inference may reasonably be drawn from it to

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support the verdict. Id. The uncorroborated testimony of one witness can be

sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073

(Ind. 1991).

[14] Green argues the evidence is insufficient to prove he “committed the offenses of

rape, burglary, and criminal confinement while armed with a deadly weapon.”

Appellant’s Brief at 12. He argues no firearm was ever discovered and no lights

were on in the house. He asserts that “[t]he testimony is only what N.G.

testified to – the intruder had a ‘gun’ which was (1) not a revolver and (2) had a

little bit of black on it besides the silver” and “there is no evidence or testimony

of how this ‘gun’ was in fact a ‘gun’ or firearm within the definition of Indiana

Code 35-47-1-5.” Id. at 20.

[15] The offense of rape is a level 1 felony if it is committed by using or threatening

the use of deadly force or it is committed while armed with a deadly weapon,

see Ind. Code 35-42-4-1, the offense of burglary is a level 2 felony if it is

committed while armed with a deadly weapon, see Ind. Code § 35-43-2-1, and

the offense of criminal confinement is a level 3 felony if it is committed while

armed with a deadly weapon. See Ind. Code § 35-42-3-3. Ind. Code § 35-31.5-

2-86 provides in part that a “deadly weapon” means “(1) A loaded or unloaded

firearm” or “(2) A destructive device, weapon, device, taser [] or electronic stun

weapon[, or] equipment . . . that in the manner it [] is used; [] could ordinarily

be used; or [] is intended to be used . . . is readily capable of causing serious

bodily injury.” Ind. Code § 35-47-1-5 provides that a firearm is any weapon

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that is capable of expelling or designed to expel, or that may readily be

converted to expel, a projectile by means of an explosion.

[16] In order to prove that a weapon was used in the commission of a crime, it is not

necessary to introduce the weapon into evidence at trial. Gorman v. State, 968

N.E.2d 845, 850 (Ind. Ct. App. 2012) (citing Gray v. State, 903 N.E.2d 940, 943

(Ind. 2009)), trans. denied. There must be some proof that the defendant was

actually armed with a deadly weapon at the time of the crime; it is not enough

if a victim merely feared that the defendant was armed with a deadly weapon,

but no such weapon was shown or displayed and/or the defendant made no

statements that he or she was armed. Id. at 850-851. However, “a victim’s

testimony that he or she saw the defendant use what was believed or ‘figured’ to

be a gun is, by itself, sufficient proof of the use of a deadly weapon.” Id. at 850

(citing Harvey v. State, 542 N.E.2d 198, 200-201 (Ind. 1989)).

[17] The evidence most favorable to the verdicts is that Green possessed and used a

deadly weapon during the commission of his crimes. N.G. testified that she

woke up and observed Green staring at her and holding a gun. She testified

that the television was on and there was enough light for her to identify Green.

She testified she could “tell it [the gun] was silver,” “[i]t was a handgun,” she

knew the difference between a semi-automatic and a revolver, and “[i]t was a

semi – it wasn’t a revolver.” Transcript Volume II at 177. When asked

“[w]hen you went down that hallway, were you able to notice anything else

about the Defendant or his gun,” she testified “the gun was closer to me, so I

could see a little bit of black on it besides the silver.” Id. at 178. She testified

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that Green pushed her backwards, climbed on top of her, and shoved his penis

into her mouth, and when asked “[w]here was the gun at this point,” she

testified: “In his hand. It was pointed towards my temple right here.” Id. at

181. When asked “[w]hen you were still in the bedroom, did the Defendant

have the gun the whole time” and “[w]as there any time he put it down,” N.G.

answered: “He did. There was a point in time where he had put it down on the

bed, and you could hear it slide down the wall, like, it had fell between the bed

and the wall and then slid down, and you could hear it kind of hit the floor.

But other than that, he had it in his hands.” Id. at 185. When asked “[d]id he

pick it up at any point,” she answered “[h]e did after he was finished.” Id.

Nurse Clark testified that N.G. told her that, when she was awakened, Green

had a gun in his hand. When asked on cross-examination “she didn’t specify

whether it was a cap gun, pellet gun, airsoft gun” and “[s]he just used the term

‘gun,’ correct,” Nurse Clark testified: “she called it, ‘[h]is .45.’” Id. at 90.

[18] The jury was able to assess witness credibility and consider the testimony.

Based upon the record, we conclude that evidence of probative value exists

from which the jury as the trier of fact could find beyond a reasonable doubt

that Green committed his crimes while armed with a deadly weapon. See

Gorman, 968 N.E.2d at 850-851 (observing the defendant argued the purported

gun used during a robbery was never recovered and the evidence did not show

he possessed a functioning firearm or deadly weapon as opposed to possibly a

toy, noting one of the victims indicated the robber possessed what looked like a

9mm semiautomatic handgun and the trier of fact could weigh any

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discrepancies between the witnesses’ testimony, and holding the testimony by

itself was sufficient to prove the defendant committed the robberies while armed

with a deadly weapon).

III.

[19] The next issue is whether the trial court erred in reducing the level of felony for

Green’s convictions for burglary and criminal confinement. The State contends

that elevated convictions for rape, burglary, and criminal confinement do not

violate Indiana’s prohibition against double jeopardy because he possessed the

weapon during the burglary and used the weapon during the rape and criminal

confinement of the victim.

[20] Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

shall be put in jeopardy twice for the same offense.” The Indiana Supreme

Court has established that the use of a single deadly weapon during the

commission of separate offenses may be used to enhance the level of each

offense and does not result in a violation of the Indiana Double Jeopardy

Clause. See Sistrunk v. State, 36 N.E.3d 1051, 1054 (Ind. 2015) (observing that

the use of a single deadly weapon during the commission of separate offenses

may enhance the level of each offense); Gates v. State, 759 N.E.2d 631, 633 n.2

(Ind. 2001) (“It is well established in Indiana that the use of a single deadly

weapon during the commission of separate offenses may enhance the level of

each offense.”); Leggs v. State, 966 N.E.2d 204, 209 (Ind. Ct. App. 2012)

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(holding that the defendant “was not subjected to double jeopardy when he was

convicted of multiple crimes enhanced by the use of a knife”).

[21] The jury found that Green possessed a handgun when he broke into and

entered N.G.’s home. The evidence shows that Green held the gun in his hand

when he ordered N.G. to the bedroom and that he pointed the gun at her

temple when he forced his penis into her mouth. N.G. testified that Green

placed the gun on the bed at one point and that it slid to the floor, he picked it

back up when “he was finished,” and “other than that, he had it in his hands.”

Transcript Volume II at 185. During closing argument, the prosecutor argued

that Green held a gun against N.G.’s temple which supported a finding he was

armed with a deadly weapon under Count I, he had a deadly weapon when he

broke in and entered which supported the charge under Count II, and he

confined her in the bedroom and bathroom and she could not leave because of

his threats and the gun which supported the charge under Count III. The court

instructed the jury on the elements of each charged offense and the definitions

of deadly weapon and firearm.

[22] The record supports the findings that Green committed the offenses of rape,

burglary, and criminal confinement while armed with a deadly weapon, and the

testimony demonstrates that, in each instance, the threat from the gun was

distinct. On the facts in this case, the fact the offenses were committed while

armed with a gun or the same gun does not require the reduction of the level of

felony of any of the convictions on double jeopardy grounds. Accordingly, we

remand with instructions to enter Green’s convictions for burglary as a level 2

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felony and for criminal confinement as a level 3 felony and to enter a new

sentencing order.

Affirmed in part, reversed in part, and remanded.