Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jan 12 2015, 9:54 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PATRICIA MCMATH GREGORY F. ZOELLER
Appellate Clinic Attorney General of Indiana
I.U. Robert H. McKinney School of Law
JODI KATHRYN STEIN
BRANDAIS HOLDEN Deputy Attorney General
Certified Legal Intern Indianapolis, Indiana
Appellate Clinic
I.U. Robert H. McKinney School of Law
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
)
CURTIS WILLIAMS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1405-CR-214
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Helen Marchal, Judge
Cause No. 49G16-1309-FD-058706
January 12, 2015
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Curtis Williams (“Williams”) appeals his conviction for Battery, as a Class A
misdemeanor.1 We affirm.
Issues
Williams presents two issues for our review, which we restate as:
I. Whether the trial court abused its discretion when it admitted
evidence obtained after a warrantless entry into Williams’s
home; and
II. Whether the trial court abused its discretion when it refused
Williams’s proposed final jury instruction on the affirmative
defense of use of reasonable force in defense of a dwelling.
Facts and Procedural History
In February 2013, Williams met L.C., who subsequently moved into his Indianapolis
apartment. Although L.C.’s name was not on the lease, she paid half of the rent and
generally contributed to the household. On September 3, 2013, Williams and L.C. got in an
argument after L.C. decided to go visit her sister for the evening. When L.C. returned to the
apartment the next day, Williams was sitting outside and appeared to L.C. to be intoxicated
and to have “an attitude.” (Tr. at 24.) L.C. passed by Williams and entered the apartment.
When Williams came inside, the two began arguing loudly. The verbal argument
escalated until Williams placed his hands around L.C.’s neck. Williams squeezed his hands
on L.C.’s lower neck while pushing her against a wall. L.C. testified that Williams applied
pressure until she felt “like something was going to tear or break” and that she “couldn’t
1
Ind. Code § 35-42-2-1(a)(1)(A). We refer to the version of the statute in effect at the time of Williams’s
offense.
2
hardly breathe.” (Tr. at 34.) After the attack ended, her voice sounded “raspy” (Tr. at 36)
and her throat was “inflamed.” (Tr. at 37.) She further testified that the feeling was
“painful” (Tr. at 80) and the pain lasted for about a day.
Indianapolis Metropolitan Police Department Officer Cory Heiny (“Officer Heiny”)
was dispatched to respond to the scene after Williams’s neighbors reported a disturbance.
When Officer Heiny arrived outside of the apartment, he heard a man’s voice yelling. A
second police officer, Daniel Greenwell (“Officer Greenwell”), arrived. The officers
knocked on Williams’s door and announced their presence, to which Williams responded
“fuck the police” and did not open the door. (Tr. at 118, 136.) When the officers informed
Williams that they wanted to check on the occupants, Williams told the officers “that his girl
was with him and she was not answering the door” (Tr. at 118) and they could come in if
they were “feeling good.” (Tr. at 119). The officers did not hear the woman’s voice
throughout the encounter.
Concerned that the woman, later identified as L.C., might have been injured or in
immediate danger, Officers Heiny and Greenwell contacted their supervisor who gave them
permission to force entry. Officer Greenwell kicked in the door and found Williams and L.C.
sitting at opposite sides of a small table located near the apartment’s entryway. L.C. was
visibly shaken and upset. The officers observed redness and scratches on her neck. After the
officers separated Williams and L.C., L.C. gave a statement and an evidence technician took
photos of her neck. Williams was placed under arrest.
3
On September 5, 2013, the State charged Williams with one count of Strangulation, a
Class D felony2 (“Count I”), one count of Domestic Battery, as a Class A misdemeanor3
(“Count II”), and one count of Battery, as a Class A misdemeanor (“Count III”).
On April 10, 2014, a jury trial was held. The State called L.C. as its first witness.
After the jury heard L.C.’s testimony about the physical altercation, Williams objected to the
admission of L.C.’s further testimony about any events that occurred after the police officers’
entry, arguing that the warrantless search was unconstitutional. The trial court held a hearing
outside the presence of the jury, after which the court held that emergency circumstances
existed, the warrantless search was reasonable, and the evidence was thus admissible. After
trial resumed, Williams renewed his objection prior to the introduction of photographs of
L.C.’s neck taken by an evidence technician at the scene. He also objected on the same
grounds to both officers’ testimony about their observations made after they entered the
home.
At the close of evidence, Williams tendered a proposed final jury instruction on the
affirmative defense of use of reasonable force in defense of a dwelling. Williams argued that
the evidence supported the theory that L.C. was unlawfully on his property and therefore the
jury could find that he was justified in using reasonable force to remove her. The trial court
found that the evidence did not support the proposed instruction and refused to give it.
2
I.C. § 35-42-2-9.
3
I.C. § 35-42-2-1.3.
4
At the conclusion of trial, Williams was acquitted of Counts I and II and found guilty
of Count III (Battery). On April 16, 2014, the court sentenced Williams to ninety days
executed in the Marion County Jail. Williams now appeals his conviction.
Discussion and Decision
Admissibility of Evidence
The trial court has broad discretion to rule on the admission of evidence. Guilmette v.
State, 14 N.E.3d 38, 40 (Ind. 2014). We review the court’s ruling for abuse of that
discretion, and we will reverse only when admission is clearly against the logic and effect of
the facts and circumstances. Id. (citation omitted). When an appellant’s challenge to the
court’s ruling is predicated on an argument that the search or seizure of the evidence was
unconstitutional, it raises a question of law, and we consider that question de novo. Id. at 40-
41.
Even if a trial court’s decision was an abuse of discretion, we will not reverse if the
admission of evidence constituted harmless error. Ind. Trial Rule 61; Sugg v. State, 991
N.E.2d 601, 607 (Ind. Ct. App. 2013), trans. denied. An error is harmless if it does not affect
the defendant’s substantial rights. T.R. 61. The improper admission of evidence is harmless
error when the conviction is supported by substantial independent evidence of guilt as to
satisfy the reviewing court that there is no substantial likelihood that the erroneously-
admitted evidence contributed to the conviction. Cook v. State, 734 N.E.2d 563, 569 (Ind.
2000), reh’g denied. Furthermore, if the erroneously-admitted evidence is merely cumulative
5
of other evidence in the record, it is harmless error and not grounds for reversal. Lee v. State,
967 N.E.2d 529, 539 (Ind. Ct. App. 2012).
Williams first argues that the trial court abused its discretion when it admitted
evidence obtained after the officers’ warrantless entry into Williams’s home. Williams
argues that the search was unreasonable and therefore violated his rights under the Fourth
Amendment to the United States Constitution4 and Article 1, Section 11 of the Indiana
Constitution.5 He argues that the evidence therefore should be excluded as the fruit of an
illegal search. In response, the State argues that the search was reasonable and thus not
unconstitutional. The State also contends that, even if the search was unreasonable, the trial
court’s admission of the evidence was harmless error because any evidence collected as a
result of the officers’ entry “was merely cumulative evidence to L.C.’s own testimony[.]”
(Appellee’s Br. at 11.)
Without deciding the issue of whether the officers’ search of Williams home was
unconstitutional, we first address the State’s contention that the admission of evidence was
harmless error.
At trial, L.C. testified that during an escalating verbal altercation, Williams pushed her
against a wall, grabbed her around the neck, and applied pressure. She testified that the
pressure caused her to have trouble breathing and that, after the attack, her throat was
4
The Fourth Amendment provides, in relevant part: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
5
Article 1, Section 11 also provides, in relevant part: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search or seizure, shall not be violated . . . .”
6
inflamed. The record is clear that Williams did not object to L.C.’s testimony regarding these
events, but only objected to her further testimony about the post-entry events. “A failure to
object when the evidence is introduced at trial waives the issue for appeal.” Delarosa v.
State, 938 N.E.2d 690, 694 (Ind. 2010).
Williams then objected to the admission of the photographs and the officers’
observations after they entered the apartment. The photographs show redness and scratches
on L.C.’s neck. Both officers testified that when they entered Williams’s apartment, they
saw that L.C. had redness around her neck and described her injuries as consistent with the
redness and scratches depicted in the photographs.
L.C.’s unchallenged testimony alone provides substantial independent evidence to
sustain Williams’s battery conviction.6 Accordingly, even if we assume that the challenged
evidence was illegally obtained, the admission of any further evidence of battery was
harmless error. See Nowling v. State, 955 N.E.2d 854, 863 (Ind. Ct. App. 2011) (holding
that the erroneous admission of evidence obtained through an illegal search was harmless
error because unchallenged witness testimony was substantial, independent evidence to
sustain defendant’s conviction), clarified & aff’d on reh’g, 961 N.E.2d 34 (Ind. Ct. App.
2012), trans. denied. Moreover, the photographs and the officers’ observations of L.C.’s
neck were cumulative to L.C.’s testimony that Williams battered her in part by applying
pressure to her neck until it became inflamed. Because the challenged evidence was
6
In order to convict Williams of battery as charged, the State was required to prove beyond a reasonable
doubt that Williams knowingly touched L.C. in a rude, insolent, or angry manner that resulted in bodily
injury. I.C. § 35-42-2-1(a)(1)(A). The State charged that Williams, “on or about September 4, 2013, did
knowingly touch [L.C.] in a rude, insolent, or angry manner which resulted in bodily injury, that is: pain
and/or bruising and/or swelling and/or abrasions, to [L.C..]” (App. at 24.)
7
cumulative, its admission was also harmless error. See Hollen v. State, 740 N.E.2d 149, 157
(Ind. Ct. App. 2000) (holding that the erroneous admission of an affidavit was harmless error
because the affidavit was cumulative of unchallenged witness testimony), opinion adopted,
761 N.E.2d 398 (Ind. 2002); Muncy v. State, 834 N.E.2d 215, 217 (Ind. Ct. App. 2005)
(holding that the erroneous admission of weapons was harmless error where testimony about
the weapons was already admitted and not challenged), trans. denied.
In his reply brief, Williams argues that “[t]he evidence gathered from the officers’
unlawful forced entry into [his] home bolstered [L.C.’s] testimony, and was therefore
prejudicial to [him].” (Appellant’s Reply Br. at 3.) He further argues that the admission
cannot be harmless error because, “[w]ithout this evidence, the jury would have heard only a
‘he said, she said’ account of that incident.” (Appellant’s Reply Br. at 4.) However, it is
well settled that “[a] conviction may be sustained on the uncorroborated testimony of a single
witness or victim.” Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans.
denied. Furthermore, to the extent that the photographs of L.C.’s neck lend weight to the
State’s charge of strangulation, we observe that the jury acquitted Williams of that charge.
Because there was substantial independent evidence to support Williams’s battery
conviction and the challenged evidence was cumulative of other evidence presented, we hold
that even if the trial court erroneously admitted the challenged evidence, such admission
would constitute harmless error. Accordingly, Williams has not shown grounds for reversal
due to the improper admission of evidence.
Jury Instructions
8
Williams also contends that the trial court improperly refused his proposed jury
instruction regarding the defense of a dwelling. Instructing a jury is left to the sound
discretion of the trial court, and we review the court’s decision only for an abuse of
discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013). To determine whether a
trial court has abused its discretion, we first ascertain whether the tendered instruction is a
correct statement of the law. Id. We then examine the record to determine whether there was
evidence present to support the tendered instruction. Id. at 345-46. Finally, we consider
whether the substance of the tendered instruction was covered by another instruction or
instructions. Id. at 346. A defendant is entitled to an instruction on any defense that has
some foundation in the evidence. Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997).
Williams was entitled to an instruction on the affirmative defense of use of reasonable
force in defense of a dwelling if there was some foundation in the evidence that Williams
reasonably believed that the force was necessary to prevent or terminate L.C.’s unlawful
entry of or attack on Williams’s dwelling, curtilage, or occupied motor vehicle. See I.C. §
35-41-3-2(d). Williams tendered Indiana Pattern Jury Instruction Criminal Instruction No.
10.03B, which states, in relevant part:
A person may use reasonable force, including deadly force, against another
person, and does not have a duty to retreat, if he reasonably believes that the
force is necessary to prevent or terminate the other person’s unlawful entry of
or attack on his dwelling.
(App. at 69.)
The trial court rejected Williams’s proposed instruction because “I don’t think the
evidence presents the giving of this instruction[.]” (Tr. at 172.) The State concedes that the
9
tendered instruction was a correct statement of law and that it was not covered by any other
instruction. The only contested issue on appeal, therefore, is whether the evidence presented
supported the instruction.
The evidence shows that during the altercation, Williams pinned L.C. against an
interior wall when he wrapped his hands around her neck. When Officer Heiny arrived and
knocked on the door, Williams told the officer that he would not open the door. When asked
if anyone else was inside, Williams responded “that his girl was with him and she was not
answering the door.” (Tr. at 118.) The evidence thus indicates that Williams was not
attempting to get L.C. out of his apartment or otherwise protect his property. Rather, the
evidence indicates that Williams used force to keep L.C. inside. As such, there is no
evidence that when Williams battered L.C. he was attempting “to prevent or terminate
[L.C.’s] unlawful entry of or attack on [his] dwelling” in accordance with Indiana Code
section 35-41-3-2(d). Accordingly, we cannot say that the trial court abused its discretion
when it denied Williams’s proposed jury instruction on defense of a dwelling.
Williams argues that the evidence supports the instruction because “there was
evidence [L.C.] was not authorized to be [in Williams’s apartment] and was asked to leave
prior to the altercation turning physical.” (Appellant’s Br. at 18.) On appeal, the parties
dispute whether L.C. testified that Williams asked her to leave just prior to the battery. On
cross-examination, L.C. testified:
[Defense]: Mr. Williams told you to leave the house on that day correct?
[L.C.]: No.
[Defense]: He was trying to get you to leave?
[L.C.]: No.
10
(Tr. at 85-86) (emphasis added). Defense counsel then asked L.C. about a prior recorded
statement she made:
[Defense]: All right and if I play that statement am I going to hear you say
the argument was over Mr. Williams wanting you to leave?
[L.C.]: At the time before him choking me? No. I didn’t … well if I
said that it wasn’t that time that happened. It had to be another
time because that did not happen.
[. . . .]
[Defense]: [L.C.] is it your testimony that you don’t remember my client,
Mr. Williams, trying to kick you out of the house or that it didn’t
happen?
[L.C.]: I am saying that I don’t remember him trying to kick me out the
house when I came back that day. That he came over to choke
me … I don’t remember that. I don’t remember him saying “get
out my house right now” when I got back but I remember him
saying “you shouldn’t have went, you should have stayed.” [. . .
.]
(Tr. at 89, 91) (emphasis added).
Williams then played a recorded statement to refresh L.C.’s memory. The trial court
stated that “after hearing that I … I guess we can move forward with [L.C.’s] memory being
refreshed or asking her about that but again I am not seeing any inconsistencies[.]” (Tr. at
94.)
Williams then attempted to impeach L.C. with her prior testimony:
[Defense]: Mr. Williams did indeed, part of the argument did indeed want
you to leave correct?
[L.C.]: Yes, well he said that.
[Defense]: And you said “I am not going anywhere” is what you …?
[L.C.]: Right. Right.
[Defense]: But he was persistent and he wanted you to leave?
[L.C.]: No he wasn’t persistent. He just said that.
[. . . .]
[Defense]: He wanted you to leave and you wouldn’t leave?
11
[L.C.]: Okay.
[Defense]: Is that correct?
[L.C.]: No really because I don’t remember it going like that. I don’t
remember him telling me to get out the house. No I don’t.
[Defense]: But you just heard in your prior statement what you said?
[L.C.]: Yes well if that is what I said then but I don’t remember it going
like that when I came back from my sister’s.
(Tr. at 95-96) (emphasis added). L.C. also later testified on cross-examination:
[Defense]: And he was telling you to leave?
[L.C.]: I can’t remember that.
[Defense]: You heard yourself say prior that he ….
[L.C.]: Oh yes.
[Defense]: …he was telling you to leave?
[L.C.]: Yes but I can’t remember him saying that day when I came back
from my sister’s to leave and get out of here.
(Tr. at 101) (emphasis added).
Our review of the record as a whole shows that L.C. consistently testified that she did
not remember him telling her to leave on September 4, 2013 when the incident occurred, but
that Williams may have asked her to leave at some point during the argument that spanned
two days. We cannot say that the trial court abused its discretion when it found that her
testimony was not inconsistent. Moreover, even if Williams asked L.C. to leave on
September 4, nothing in the record indicates that L.C. behaved in such a manner that
Williams reasonably could have believed that force was “necessary” to terminate L.C.’s entry
of the apartment. See I.C. § 35-41-3-2(d).
The evidence does not support Williams’s proposed jury instruction of the affirmative
defense of use of reasonable force in defense of a dwelling. The trial court therefore did not
abuse its discretion in refusing Williams’s proposed instruction.
12
Conclusion
Even presuming, without deciding, that the trial court abused its discretion in
admitting certain evidence obtained as the result of a warrantless search, such admission
constituted harmless error because the unchallenged witness testimony was substantial
independent evidence to convict Williams of battery and the challenged evidence was
cumulative of other evidence presented. The trial court did not abuse its discretion when it
refused Williams’s proposed jury instruction on an affirmative defense.
Affirmed.
ROBB, J., and BROWN, J., concur.
13