Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 19 2014, 8:18 am
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:
STEVEN J. HALBERT GREGORY F. ZOELLER
Carmel, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KENNETH DAVIS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1306-CR-535
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt Eisgruber, Judge
The Honorable Steven Rubick, Magistrate
Cause No. 49G01-1302-FC-9734
February 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Following a jury trial, Kenneth Davis was convicted of two counts of Battery,1 one as
a class C felony and another as a class A misdemeanor. Davis now appeals and presents the
following restated issues for our review:
1. Did the trial court abuse its discretion in denying Davis’s motion for a
mistrial?
2. Did the trial court abuse its discretion in admitting certain testimony after
the State committed an alleged discovery violation?
3. Do Davis’s convictions violate Indiana’s constitutional double-jeopardy
protections?
We affirm in part, reverse in part, and remand with instructions.
On the evening of January 7, 2013, Davis and his pregnant girlfriend, B.P., got into an
argument after Davis was several hours late in returning from work. During the argument,
Davis grabbed B.P. by her arms, pushed her onto the bed, and wrested her phone out of her
grasp. Davis then walked outside with B.P.’s phone, and B.P. followed him and told him to
give her phone back. Davis refused, and the couple continued to argue until Davis punched
B.P. in the face. B.P. then attempted to back away from Davis but slipped and fell on a patch
of ice. Davis struck B.P. three more times with his fists, and he used her phone to make a
call before throwing it on the ground and walking away. Shortly thereafter, someone in a car
picked Davis up. After Davis left, B.P. called the police, and she was transported to the
hospital by ambulance. While B.P. was being treated at the hospital, Davis called her and
told her he hoped the baby died.
1
Ind. Code Ann. § 35-42-2-1 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical Sess.).
2
As a result of these events, the State charged Davis as follows: Count I, battery as a
class C felony; Count II, domestic battery as a class A misdemeanor; and Count III, battery as
a class A misdemeanor. A jury trial was held on May 1, 2013, and Davis was convicted of
Counts I and III, but acquitted of Count II. On May 28, 2013, Davis was sentenced to five
years executed in the Department of Correction. Davis now appeals.
1.
Davis first argues that the trial court abused its discretion in denying his motion for a
mistrial. “We review a trial court’s decision to deny a mistrial for abuse of discretion
because the trial court is in ‘the best position to gauge the surrounding circumstances of an
event and its impact on the jury.’” Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. Ct. App.
2008) (quoting McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004)). “A mistrial is an
extreme remedy that is warranted only when less severe remedies will not satisfactorily
correct the error.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). To prevail on an appeal
from the denial of a motion for a mistrial, a defendant must establish that the event or
information precipitating the motion was so prejudicial and inflammatory that he was placed
in a position of grave peril to which he should not have been subjected. Burks v. State, 838
N.E.2d 510 (Ind. Ct. App. 2005), trans. denied. We determine the gravity of the peril by
considering the probable persuasive effect on the jury’s decision. Id. Reversible error is
seldom found where the trial court has admonished the jury to disregard the questioned
statement. Id.
3
Additionally, as this court has noted, when a defendant is faced with a circumstance
he believes might warrant a mistrial,
[g]enerally, the correct procedure is to request an admonishment. See Brown
v. State, 572 N.E.2d 496, 498 (Ind. 1991). However, if counsel is not satisfied
with the admonishment or it is obvious that the admonishment will not be
sufficient to cure the error, counsel may then move for a mistrial. See Dresser
v. State, 454 N.E.2d 406, 407-08 (Ind. 1983). [A] failure to request an
admonishment or move for a mistrial results in waiver of the issue. See
Robinson v. State, 693 N.E.2d 548, 552 (Ind. 1998).
Berkman v. State, 976 N.E.2d 68, 74 (Ind. Ct. App. 2012) (quoting Etienne v. State, 716
N.E.2d 457, 461 (Ind. 1999)), trans. denied, cert. denied, 134 S. Ct. 155 (2013).
In this case, Davis requested a mistrial when, in violation of a motion in limine, B.P.
made reference to Davis’s prior incarceration. Specifically, when the State attempted to elicit
testimony from B.P. concerning Davis’s knowledge of her pregnancy as necessary to support
the class C felony battery charge, the following exchange occurred:
Q. Okay. Did you discuss the existence of your unborn child with him at any
point?
A. Yes.
Q. When did you do that?
A. I told him the day—he was the first person I called, matter of fact, the first
day I found out and he knew—I sent him an ultrasound picture when he was
locked up.
Transcript at 17. At that point, Davis objected and a bench conference was held outside the
presence of the jury. During the conference, Davis argued, and the State conceded, that
B.P.’s testimony was improper and violated the motion in limine. Davis asked the court to
admonish the jury and moved for a mistrial. The trial court denied the motion for a mistrial,
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but stated that it would admonish the jury. Thereafter, the jury was brought back in, but no
admonishment appears in the record.2
The trial court agreed to give the admonishment as Davis requested, but appears to
have forgotten to do so. Davis did not object or otherwise alert the court to its omission in
this regard. Under these circumstances, we conclude that Davis has waived any claim of
error relating to the trial court’s failure to give the admonishment or declare a mistrial. “The
overriding purpose of the requirement for a specific and timely objection is to alert the trial
court so that it may avoid error or promptly minimize harm from an error that might
otherwise require reversal, result in a miscarriage of justice, or waste time and resources.”
Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009). In this case, when the trial court failed to
give the admonishment, Davis stood idly by and allowed the error to occur, and now attempts
to benefit from his failure to act. Indeed, at trial, Davis might have thought it wise not to
remind the trial court to give the admonishment, as doing so could arguably compound the
prejudicial effect of B.P.’s improper testimony by drawing attention to it. It is just this type
of behavior that the waiver rule was designed to prevent.
Waiver notwithstanding, Davis has not established that B.P.’s testimony placed him in
a position of grave peril. Any allusion to Davis’s prior criminal history was undoubtedly
improper, but the isolated statement in this case simply did not expose Davis to the degree of
prejudice required to necessitate the extreme remedy of a mistrial. This is particularly true in
2 We note, however, that certain parts of the trial were not transcribed. For example, the trial court’s
preliminary instructions and the opening statements of counsel were not transcribed. It is possible, then, that
an admonishment was given upon the jury’s return to courtroom, but simply not transcribed. Nevertheless,
because no admonishment appears in the record, we will proceed as if none was given.
5
light of the amount and quality of the evidence against Davis. Not only did B.P. testify and
give details of the battery, but the State presented numerous photographs depicting B.P.’s
injuries, a nurse and a police officer testified to observing B.P.’s injuries, and B.P.’s medical
records were admitted into evidence. Moreover, a detective testified that B.P. was obviously
pregnant at the time of the incident. Under these facts and circumstances, we cannot
conclude that B.P.’s single, fleeting reference to Davis previously being “locked up” placed
him in a position of grave peril so as to necessitate a mistrial. See Pittman v. State, 885
N.E.2d 1246 (concluding that in light of the evidence presented against the defendant, a
witness’s testimony that the defendant had been in prison was highly unlikely to have had
any significant effect on the jury so as to make a mistrial necessary).
2.
Next, Davis argues that a discovery violation by the State necessitated the exclusion of
a portion of B.P.’s testimony. Trial courts are given wide discretion in dealing with
discovery violations and may be reversed only for an abuse of that discretion involving clear
error and resulting prejudice. Ware v. State, 859 N.E.2d 708 (Ind. Ct. App. 2007), trans.
denied. Where a discovery violation has occurred, a continuance is the usual remedy; the
exclusion of evidence is an extreme remedy to be used only if the State’s actions were
deliberate and prevented a fair trial. Id. Failure to request a continuance constitutes a waiver
of any alleged discovery violation. Sisson v. State, 985 N.E.2d 1 (Ind. Ct. App. 2012), trans.
denied.
6
Davis argues that the trial court abused its discretion by allowing B.P. to testify
concerning statements Davis made to her over the phone while she was at the hospital,
including the statement that he hoped the baby died. Specifically, Davis argues that under
Marion County Local Rule 107, the State was required, and failed, to disclose those
statements prior to trial. Assuming arguendo that the local rule required pretrial disclosure of
the statements, Davis has not established reversible error. Because Davis did not request a
continuance, he has waived appellate review of this issue. Sisson v. State, 985 N.E.2d 1.
Waiver notwithstanding, Davis has not established prejudice sufficient to warrant reversal.
The lack of prior notice of the statement did not hamper defense counsel’s efforts to attack
B.P.’s credibility, and Davis has made no effort to explain how his strategy would have
differed had he received prior notice of the statements. In sum, the trial court did not abuse
its discretion in admitting the complained-of testimony.
3.
Finally, Davis argues that his convictions violate Indiana’s constitutional double
jeopardy protections. The double jeopardy clause found in article 1, section 14 of the Indiana
Constitution “was intended to prevent the state from being able to proceed against a person
twice for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999). Two or more offenses are the “same criminal transgression” for the purposes of the
Indiana double jeopardy clause if, “with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged offense.” Id.
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Davis challenges his convictions under the actual-evidence test, which “prohibits
multiple convictions if there is ‘a reasonable possibility that the evidentiary facts used by the
fact-finder to establish the essential elements of one offense may also have been used to
establish the essential elements of a second challenged offense.’” Davis v. State, 770 N.E.2d
319, 323 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 53). Before addressing the merits
of this claim, we note that the State argues that Davis waived his double-jeopardy claim by
failing to make a cogent argument. We agree that Davis’s double-jeopardy argument is
undeveloped, as he fails to direct our attention to the evidentiary facts he claims support his
double-jeopardy analysis, focusing instead on the statutory elements of the crimes of which
he was convicted. We note, however, that this court routinely corrects double-jeopardy
violations sua sponte because such violations, if shown, implicate fundamental rights. See,
e.g., Scott v. State, 855 N.E.2d 1068 (Ind. Ct. App. 2006). We therefore decline to dispose of
Davis’s double-jeopardy claim on the basis of waiver.
Turning now to the merits of Davis’s double-jeopardy claim under the actual-evidence
test, we note that in order to prevail on such a claim, the defendant must show that the
evidentiary facts establishing the elements of one offense also establish all of the elements of
a second offense. Spivey v. State, 761 N.E.2d 831 (Ind. 2002). Thus, under the actual-
evidence test, Indiana’s double-jeopardy clause “is not violated when the evidentiary facts
establishing the essential elements of one offense also establish only one or even several, but
not all, of the essential elements of a second offense.” Id. at 833. This test requires the
reviewing court to “identify the essential elements of each of the challenged crimes and to
8
evaluate the evidence from the jury’s perspective, considering where relevant the jury
instructions, argument of counsel, and other factors that may have guided the jury’s
determination.” Id. at 832. Under the actual-evidence test, a “reasonable possibility” that the
jury relied on the same facts to reach two convictions “requires substantially more than a
logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). Instead, the existence
of a reasonable possibility “turns on a practical assessment of whether the jury may have
latched on to exactly the same facts for both convictions.” Id.
In order to convict Davis of Count III, battery as a class A misdemeanor, the State was
required to prove that Davis knowingly or intentionally touched B.P. in a rude, insolent, or
angry manner, and that the touching resulted in bodily injury to B.P. I.C. § 35-42-2-1(a)(1).
To convict Davis of Count I, battery elevated to a class C felony, the State was required to
prove all of the foregoing elements, plus the following two additional elements: That B.P.
was pregnant and that Davis knew B.P. was pregnant. I.C. § 35-42-2-1(a)(8). The State
argues that Davis’s convictions pass scrutiny under the actual-evidence test because his
convictions were predicated upon separate acts of battery. Specifically, the State notes that
Davis struck B.P. multiple times, and that B.P. sustained multiple injuries as a result. The
reasonable-possibility standard applicable to claims under the actual-evidence test “permits
convictions for multiple offenses committed in a protracted criminal episode when the case is
prosecuted in a manner that insures that multiple guilty verdicts are not based on the same
evidentiary facts.” Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013) (quoting Richardson v.
State, 717 N.E.2d at 53 n.46) (emphasis supplied). Based on our review of the record, we
9
cannot conclude that this case was presented to the jury in a manner that insures the guilty
verdicts were not based upon the same evidentiary facts.
Neither the charging information nor the jury instructions drew any distinctions
concerning which touching and which injuries were alleged to support each battery charge.
The charging information provides as follows:
Count I:
Kenneth Davis, on or about January 7, 2013, did knowingly or
intentionally touch [B.P.] in a rude, insolent, or angry manner, that is: punched
and/or slapped and/or struck her with hands and/or fists, which resulted in
bodily injury, that is: bruising and/or laceration/s and/or swelling and/or pain,
to [B.P.], and furthermore, [B.P.] was pregnant at the time she was battered,
and Kenneth Davis knew that [B.P.] was pregnant; . . .
Count III:
Kenneth Davis, on or about January 7, 2013, did knowingly or
intentionally touch [B.P.] in a rude, insolent, or angry manner, that is: punched
and/or slapped and/or struck her with hands and/or fists, which resulted in
bodily injury, that is: bruising and/or lacerations and/or swelling and/or pain to
[B.P.]
Appellant’s Appendix at 25-26. The jury instructions simply listed the elements of the
offenses, without referencing any specific evidentiary facts. Moreover, in its closing
argument, the State had the following to say about the evidence supporting each charge:
[B.P.] has injuries on her face that are consistent with a slap. If you look at
those photos—and you’ll be able to again, you can see finger marks that have
come out and the nurse testified bruising. The detective testified bruising and
the officer testified redness. All of that is consistent with a battery. All of that
is consistent with the defendant having—in a rude, insolent or angry manner
having touched [B.P.] resulting in injury so that’s battery. That’s Count 3. For
the domestic battery which is Count 2, we have to establish that the defendant
is or was living as if a spouse of [B.P.] at some point. They did live together.
They talked about marriage and the relationship was close enough that her
daughter—her living daughter calls the defendant dad. That’s a close
relationship. That’s got close ties. That’s a domestic relationship. Add the
battery to that, that’s domestic battery. And then we come down to the C
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felony battery which is the battery on the pregnant person as it shows in the
instructions and there I want you to consider—because the only real issue—
there’s the battery—it happened. The real issue is whether the defendant knew
and for that I’d ask you to take into consideration the fact that [B.P.] testified
that she was the first person—he was the first person she called on October the
10th—the day she found out she was pregnant. She showed him papers related
to the pregnancy. She showed him an ultrasound picture that she sent to him in
the mail. She showed him pre-natal vitamins.
Transcript at 92-93. Thus, it appears the State invited the jury to rely upon the same touching
and the same injuries to support both the class C felony and the class A misdemeanor battery
charges. Under these facts and circumstances, we conclude that there is a reasonable
possibility that the jury relied on the same evidentiary facts to support both convictions, and
Davis’s convictions therefore cannot withstand double-jeopardy analysis under the actual-
evidence test. Accordingly, we reverse and remand with instructions to vacate Davis’s class
A misdemeanor battery conviction.
Judgment affirmed in part, reversed in part, and remanded with instructions.
KIRSCH, J., and BAILEY, J., concur.
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