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Pursuant to Ind. Appellate Rule 65(D), 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: CHARLES E. STEWART Appellate Public Defender Crown Point, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTHUS THADDEUS PERRY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN EUGENE SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 45A03-0608-CR-360

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Salvador Vasquez, Judge Cause No. 45G01-0508-FA-41

June 22, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAKER, Chief Judge

Appellant-defendant Kevin E. Smith appeals his convictions for Rape, 1 a class A felony, Criminal Deviate Conduct, 2 a class A felony, Criminal Confinement, 3 a class B felony, and Sexual Battery, 4 a class C felony. Specifically, Smith argues that the trial court committed reversible error when it took judicial notice that he violated a pretrial discovery order by failing to file a notice that he planned to raise a consent defense. Concluding that any error was harmless, we affirm the judgment of the trial court. FACTS M.S. lived with her grandparents and her mother in Griffith. As M.S. was walking past Smith's home on her way to a friend's house on August 15, 2005, Smith stopped her and told her that his girlfriend would give M.S. a ride if she came inside the house and waited. M.S. agreed and entered Smith's home. Inside the home, Smith approached M.S. and asked her if she wanted to have sex. M.S. said no and pushed Smith away. M.S. attempted to exit through a door, but it was locked. At that point, Smith put a knife to M.S.'s throat and told her that "everything would be okay" if she cooperated. Tr. p. 78. After M.S. again attempted to escape, Smith pushed her into a bedroom, threw her onto the bed, and climbed on top of her. Smith began to choke M.S. when she struggled. While Smith began to take off his pants, M.S. freed herself and again tried to run. Smith threw M.S. back onto the bed and ordered her to perform fellatio on

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