FILED
Sep 20 2016, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christina Schermerhorn, September 20, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1510-CR-1643
v. Appeal from the Marion Superior
Court.
The Honorable Christina R.
State of Indiana, Klineman, Judge.
Appellee-Plaintiff. Cause No. 49G17-1311-FD-73120
Sharpnack, Senior Judge
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Statement of the Case
[1] Christina Schermerhorn appeals her convictions of criminal recklessness, a
1 2
Class A misdemeanor, and domestic battery, a Class A misdemeanor. We
affirm.
Issues
[2] Schermerhorn raises two issues, which we restate as:
I. Whether the trial court erred in refusing to admit
Schermerhorn’s proposed evidence; and
II. Whether the trial court abused its discretion in the course
of instructing the jury.
Facts and Procedural History
[3] Schermerhorn and her husband, Stanley, lived with their three young children
in Marion County. On the morning of November 10, 2013, Stanley woke up
because the children were crying. He found Schermerhorn doing the dishes.
She appeared to be intoxicated, but when Stanley asked her about it, she denied
drinking. Next, Stanley found a two-thirds empty bottle of vodka in the diaper
box. Stanley showed it to Schermerhorn, and an argument ensued.
[4] As Stanley poured out the bottle in the sink, Schermerhorn hit him in the back
of the head with her fist. He turned around, and Schermerhorn tried to hit him
1
Ind. Code § 35-42-2-2 (2006).
2
Ind. Code § 35-42-2-1 (2012).
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several more times. Next, she picked up a knife and slashed him on the left
arm. Schermerhorn dropped the knife, ran into the bathroom, and locked the
door.
[5] The cut on Stanley’s arm bled profusely. He went to the bathroom door to ask
for help, but Schermerhorn cursed at him and refused to come out. Next, he
called his mother, who called his sister-in-law to come look after the children.
Stanley drove to the hospital after his sister-in-law arrived, and hospital staff
reported his injury to the police.
[6] Officers were dispatched to the house to investigate the report. They arrived at
9:30 a.m., and Schermerhorn answered the door and allowed them to enter.
Stanley’s sister-in-law was not present. Schermerhorn was alone with the
children and appeared to the officers to be intoxicated, exhibiting slurred speech
and unsteady balance. In the kitchen, officers found blood on a knife and on
the floor.
[7] One of the officers went to the hospital to interview Stanley, where he was
being treated for a one to two inch long cut on his left arm. The officer returned
to the house, and Schermerhorn was placed in custody. Later, the State
charged Schermerhorn with criminal recklessness, a Class D felony; two counts
of domestic battery, one as a Class D felony and the other as a Class A
misdemeanor; and two counts of battery, one as a Class D felony and the other
as a Class A misdemeanor.
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[8] Prior to trial, Schermerhorn asserted a defense under Indiana Code section 35-
41-3-11 (1997), known as the “effects of battery statute.” Schermerhorn also
filed a notice of intent to offer evidence of alleged prior misconduct by Stanley,
including: (1) many instances of physical, sexual, and emotional abuse of her,
(2) an incident of physical abuse of his teenage son from a prior relationship,
and (3) use of controlled substances. The State filed a response. After a
hearing, the court determined Schermerhorn was entitled to introduce evidence
pertaining to Stanley’s alleged physical abuse of her on the night before the
incident in question but rejected all of her other proposed evidence. The court
later reconsidered its decision and ruled that Schermerhorn could present
evidence as to any prior incidents of Stanley’s alleged abuse against her, but
Schermerhorn could not present to the jury evidence of Stanley’s alleged
physical abuse of his son or Stanley’s alleged use of controlled substances.
[9] At trial, Stanley testified as described above. By contrast, Schermerhorn
testified that she was under the influence of alcohol and prescription medication
that morning, and, as a result, she could not remember anything that happened
after Stanley asked her if she had been drinking. Schermerhorn described for
the jury several prior occasions when Stanley had physically, sexually, and
emotionally abused her, including verbal and physical abuse on the night of
November 9, 2013.
[10] Outside the presence of the jury, Schermerhorn made an offer of proof as to an
audio recording. According to Schermerhorn, who described the events
presented in the recording as it played for the trial court, the recording captured
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Stanley choking his teenage son in her presence in August 2011. The trial court
did not allow Schermerhorn to present that evidence to the jury. The jury
determined Schermerhorn was guilty of felony criminal recklessness,
misdemeanor domestic battery, and misdemeanor battery, but not guilty of
felony domestic battery and felony battery.
[11] The court imposed alternative misdemeanor sentencing for the criminal
recklessness charge. In addition, the court dismissed the Class A misdemeanor
battery verdict. As a result, the court entered a judgment of conviction and
sentence for Class A misdemeanor criminal recklessness and Class A
misdemeanor domestic battery. This appeal followed.
Discussion and Decision
A. Schermerhorn’s Recording
[12] Schermerhorn argues the trial court should have allowed her to present to the
jury the August 2011 audio recording of Stanley choking his teenage son in her
presence, along with her testimony about the incident. She further contends the
court’s error deprived her of her right to present a defense under the federal and
state constitutions. The State responds that Schermerhorn’s evidence was
inadmissible under Indiana’s Rules of Evidence and, as a result, her
constitutional rights were not violated.
[13] In general, a trial court has broad discretion in ruling on the admissibility of
evidence and we will disturb its rulings only where it is shown that the court
abused its discretion. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).
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Where, as here, an evidentiary claim raises constitutional issues, our standard
of review is de novo. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013),
trans. denied.
[14] Schermerhorn argues the trial court’s exclusion of her evidence violated her
right to present a defense under the Fifth, Sixth, and Fourteenth Amendments
3
to the United States Constitution. The constitution guarantees criminal
defendants “a meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636 (1986)
(quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L.
Ed. 2d 413 (1984)). An essential component of procedural fairness is an
opportunity to be heard. Id. at 2146-47.
[15] Nevertheless, the right to present a defense is not absolute. “The accused does
not have an unfettered right to offer testimony that is incompetent, privileged,
or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois,
484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798 (1988). Thus, both a
defendant and the prosecutor “must comply with established rules of procedure
and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284,
302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973). In Indiana, evidence must
3
She also argues the trial court’s decision violated her right to present a defense under Article one, sections
twelve and thirteen of the Indiana Constitution, but she does not present a separate analysis or citations to
authority specific to her state constitutional claims. As a result, those claims are waived. See Wilkins v. State,
946 N.E.2d 1144, 1147 (Ind. 2011) (failure to provide separate state constitutional analysis results in waiver).
Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016 Page 6 of 17
be relevant to be admissible. Ind. Evid. Rule 402. “Evidence is relevant if . . . it
has any tendency to make a fact more or less probable than it would be without
the evidence; and . . . the fact is of consequence in determining the action.”
Ind. Evid. Rule 401.
[16] We must consider Schermerhorn’s proposed evidence in the context of the
claim she presented at trial. She asserted she was not criminally liable for her
attack on Stanley pursuant to the “effects of battery” statute, Indiana Code
section 35-41-3-11. That statute provides, in relevant part:
(b) This section applies under the following circumstances when
the defendant in a prosecution raises the issue that the defendant
was at the time of the alleged crime suffering from the effects of
battery as a result of the past course of conduct of the individual
who is the victim of the alleged crime:
*****
(2) The defendant claims to have used justifiable reasonable force
under section 2 of this chapter. The defendant has the burden of
going forward to produce evidence from which a trier of fact
could find support for the reasonableness of the defendant’s belief
in the imminence of the use of unlawful force or, when deadly
force is employed, the imminence of serious bodily injury to the
defendant or a third person or the commission of a forcible
felony.
Id.
[17] “Effects of battery” is defined, in relevant part, as “a psychological condition of
an individual who has suffered repeated physical or sexual abuse inflicted by
another individual who is the . . . victim of an alleged crime for which the
abused individual is charged in a pending prosecution; and . . . abused
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individual’s . . . spouse or former spouse.” Ind. Code § 35-31.5-2-109 (2012).
Furthermore, Indiana Code section 35-41-3-11(b)(2) refers to “section 2 of this
chapter,” which is the statute that governs claims of self defense. That statute
provides, in relevant part: “A person is justified in using reasonable force
against any other person to protect the person or a third person from what the
person reasonably believes to be the imminent use of unlawful force.” Indiana
Code section 35-41-3-2(c) (2013).
[18] Thus, a defense under Indiana Code section 35-41-3-11(b)(2) is a particular
form of self defense in which the reasonableness of the belief of the defendant
that the victim’s use of unlawful force against the defendant was imminent is
affected by “the effects of battery.” The defendant has the burden of producing
evidence to support the reasonableness of the defendant’s belief that use of
unlawful force by the victim was imminent.
[19] The parties dispute whether the recording of Stanley purportedly choking his
teenage son in Schermerhorn’s presence, as interpreted by Schermerhorn’s
testimony, is relevant to Schermerhorn’s defense. To be clear, the parties agree
that, as a general rule, evidence that a victim battered a third party can be
relevant to demonstrate the defendant’s reasonable fear of the victim for
purposes of self defense. The parties disagree as to whether a victim’s use of
force against a third party is relevant when a defendant raises a claim under the
effects of battery statute. This is an issue of first impression.
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[20] Schermerhorn cites several cases to argue that the recording was relevant to her
effects of battery defense, but those cases involve general self defense rather
than an effects of battery defense. See Littler v. State, 871 N.E.2d 276 (Ind.
2007); Russell v. State, 577 N.E.2d 567 (Ind. 1991); Holder v. State, 571 N.E.2d
1250 (Ind. 1991); Brand v. State, 766 N.E.2d 772 (Ind. Ct. App. 2002), trans.
denied.
[21] We are left with the plain language of the governing statutes. Indiana Code
section 35-41-3-11 requires the defendant to produce evidence that he or she
was “suffering from the effects of battery as a result of the past course of
conduct” of the victim. Pursuant to Indiana Code section 35-31.5-2-109, the
“past course of conduct” is limited to “repeated physical or sexual abuse” of the
defendant by the victim. The statutes do not address acts by the victim against
third parties in the defendant’s presence.
[22] Based on the statutory language, we cannot conclude that the recording of
Stanley purportedly choking his teenage son two years before the crimes at issue
was relevant to Schermerhorn’s effects of battery defense. The proposed
evidence was irrelevant pursuant to Indiana Evidence Rule 401 and thus
inadmissible under Indiana Evidence Rule 402. Schermerhorn’s right to
present a defense does not include the right to admit evidence that fails to
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comply with Indiana’s evidentiary rules, and as a result the trial court did not
4
violate her constitutional rights by excluding the recording.
[23] In any event, even if the recording should have been admitted, the error was
harmless. An error in the exclusion of evidence is harmless if its probable
impact on the jury, in light of all of the evidence in the case, is sufficiently
minor so as not to affect the defendant’s substantial rights. Barnhart v. State, 15
N.E.3d 138, 143 (Ind. Ct. App. 2014). Here, Schermerhorn testified about four
incidents where Stanley hit her or otherwise physically abused her over the
course of their marriage, including an incident on the night before the crimes at
issue. She presented to the jury photographs of facial injuries from one of the
incidents. In addition, Schermerhorn told the jury about two occasions where
Stanley had punched a door or wall in her presence during an argument. She
also testified that Stanley coerced her into sexual activity on an almost daily
basis and raped her twice in the summer of 2013. Finally, a clinical
psychologist who treated Schermerhorn noted that she exhibited many of the
characteristics of victims of domestic violence, including the use of denial as a
coping mechanism for emotional turmoil, very low self esteem, emotional
dependency on others, and learned helplessness in the face of stress. Based on
this evidence that Schermerhorn offered in support of her effects of battery
defense, the trial court’s exclusion of a recording of Stanley allegedly choking
4
The State argues the recording was also inadmissible pursuant to Indiana Evidence Rule 403. We need not
address this claim.
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his teenage child two years prior to the crimes at issue here was sufficiently
minor so as not to affect Schermerhorn’s right to present a defense.
B. Jury Instructions
[24] Schermerhorn argues the trial court should have given her proposed jury
instructions on the effects of battery. The State claims in response that the
court’s instructions correctly stated the law.
[25] Instructing a jury is left to the sound discretion of the trial court and we review
its decision only for an abuse of discretion. Washington v. State, 997 N.E.2d
342, 345 (Ind. 2013). When the court refuses a tendered jury instruction, we
undertake a three-part analysis in determining whether a trial court has abused
its discretion. Id. Specifically, we consider: (1) whether the tendered
instruction is a correct statement of the law; (2) whether there was evidence to
support the tendered instruction; and (3) whether the substance of the tendered
instruction was covered by another instruction or instructions. Id. at 345-46.
Preliminary and final instructions are considered as a whole, not in isolation.
Price v. State, 765 N.E.2d 1245, 1252 (Ind. 2002). We will reverse only when
the jury instructions, considered in their entirety, misstate the law or otherwise
5
mislead the jury. Id.
5
Schermerhorn argues in passing that the trial court’s refusal to give her tendered instructions “deprived [her]
of the due process and fair trial to which she was entitled under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article One, Sections 12 and 13 of the Indiana
Constitution.” Appellant’s Br. pp. 27-28. Schermerhorn cites to no authorities in support of any of her
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[26] The trial court’s instructions on self defense and effects of battery were as
follows:
Final Instruction No. 6
It is an issue whether the Defendant acted in self-defense. A
person may use reasonable force against another person to
protect himself from what the Defendant reasonably believes to
be the imminent use of unlawful force. However, a person may
not use force if:
he/she is committing a crime that is directly and immediately
connected to the confrontation
(or)
he/she is escaping after the commission of a crime that is directly
and immediately connected to the confrontation
(or)
he/she provokes a fight with another person with intent to cause
bodily injury to that person
(or)
he/she has willingly entered into a fight with another person or
started the fight, unless he withdraws from the fight and
communicates to the other person his intent to withdraw and the
other person continues or threatens to continue the fight) [sic].
The State has the burden of proving beyond a reasonable doubt
that the Defendant did not act in self-defense.
Final Instruction No. 7
constitutional claims and offers no constitutional analysis, unlike in her discussion of her claim that the trial
court should have admitted her recording. In the absence of any discussion or citation to authority, the
claims are waived. See Sandleben v. State, 29 N.E.3d 126, 132 (Ind. Ct. App. 2015) (federal constitutional
claims waived due to failure to provide argument), trans. denied.
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The defendant has raised the issue that the defendant was at the
time of the alleged crime suffering from the effects of battery as a
result of the past course of conduct of the individual who is the
victim of the alleged crime.
The defendant claims to have used justifiable reasonable force.
The defendant has the burden of producing evidence from which
a reasonable trier of fact could find support for the
reasonableness of the defendant’s belief in the imminence of the
use of unlawful force or, when deadly force is employed, the
imminence of serious bodily injury to the defendant or a third
person or the commission of a forcible felony.
Appellant’s App. pp. 237-38. Final Instruction 6 was based on a pattern jury
instruction. The trial court told the parties that it did not find a pattern jury
instruction on the effects of battery defense, so the court used the statutory
language to draft Final Instruction 7.
[27] Schermerhorn offered a number of proposed jury instructions, including the
following on the effects of battery defense:
Battered Person Syndrome – Sensitivity
A person who suffers from the effects of battery, or battered
person syndrome, has a greater sensitivity to danger than does
the ordinary person. As a result, a person who suffers from
battered person syndrome is justified in acting more quickly and
taking harsher measures for her protection in the event of assault,
either actual or threatened, than would a person who is not
subject to battered person syndrome.
Evidence has been received in this case that the accused suffers
from battered person syndrome and has a greater sensitivity to
danger. If you believe that the accused has a greater sensitivity to
danger and, because of such sensitivity, had reasonable cause to
fear greater peril in the event of an altercation with alleged
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victim, you are to consider such sensitivity in determining
whether the accused acted reasonably in protecting her life or
bodily safety.
Appearance of Danger – Effects of Battery
The effects of battery, or battered spouse syndrome, applies
where an accused raises the issue that the accused at the time of
the alleged crime, was suffering from the effects of battery as a
result of the past course of conduct of the individual who is the
injured person of the alleged crime.
If you find from the evidence that the accused suffers from
battered person syndrome or the effects of battery, you may
consider that evidence in connection with the accused’s claim of
self-defense. Such evidence relates to the issue of the
reasonableness of the accused’s belief that the use of force was
immediately necessary, even though no use of force against the
accused may have been, in fact, imminent. The standard is
whether the circumstances were such as would excite the fears of
a reasonable person possessing the same or similar psychological
and physical characteristics of the accused and faced with the
same circumstances surrounding the accused at the time the
accused used force.
[28] Appellant’s App. pp. 190, 192. The trial court effectively rejected both
instructions.
[29] Schermerhorn argues Final Instructions 6 and 7 were erroneous as a matter of
law. Specifically, she claims Final Instruction 6 should have instructed the jury
to consider from her subjective standpoint whether she had a reasonable belief
that the use of unlawful force against her was imminent.
[30] Schermerhorn is correct that a claim of self defense has both subjective and
objective components, as follows: (1) a defendant must have actually believed
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that the use of force was necessary to protect himself or herself; and (2) the
belief must have been one that a reasonable person would have held under the
circumstances. Washington, 997 N.E.2d at 349. In Washington, our Supreme
Court determined the jury instruction on self defense in that case, which tracked
the pattern jury instruction, sufficiently instructed the jury on both components.
In this case, Final Instruction 6 is also based on the pattern jury instruction, and
the final instruction’s language tracks the instruction in Washington with respect
to a defendant’s reasonable belief in the imminent use of unlawful force. See id.
at 345. Final Instruction 6 adequately defines a reasonable belief and is not
erroneous.
[31] Schermerhorn further argues Final Instructions 6 and 7 were inadequate
because they did not inform the jury that the “effects of battery is part of self-
defense” and did not sufficiently address the “interplay” between the two
concepts. Appellant’s Br. pp. 29-30. She thus claims the court should have also
given her instructions on the effects of battery to sufficiently explain her defense
to the jury. We disagree. We are obligated to read Final Instructions 6 and 7
together. They address the same concepts, specifically the use of reasonable
force in self defense and the reasonableness of a defendant’s belief that the use
of unlawful force was imminent, using the same language. The plain language
of the instructions establishes that the concepts of self defense and the effects of
battery are related. As a result, the final instructions adequately covered the
substance of the legal issues, and Schermerhorn’s proposed instructions were
unnecessary.
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[32] Finally, Schermerhorn claims Final Instruction 7 misstated the law because it
told the jurors that she bore the burden of producing evidence to establish the
reasonableness of her belief that the use of unlawful force against her was
imminent. She concedes the instruction tracks the language of the governing
statute, Indiana Code section 35-41-3-11, but she claims the jury could have
confused the burden of producing evidence with the overall burden of proof as
to her defense of the effects of battery, which rested with the State.
[33] We disagree. We have already determined Final Instructions 6 and 7, read
together, adequately informed the jury of the relationship between self defense
in general and the effects of battery defense. Final Instruction 6 instructed the
jury that the State bears the “burden of proving beyond a reasonable doubt that
the Defendant did not act in self-defense.” Appellant’s App. p. 237. The
instructions, read together, adequately informed the jury the State bore the
6
ultimate burden of proof. See Marley v. State 747 N.E.2d 1123, 1129 (Ind. 2001)
(noting the effects of battery defense does not “impermissibly shift the burden of
proof” to the defendant).
Conclusion
[34] For the reasons stated above, we affirm the judgment of the trial court.
6
The State argues Schermerhorn’s proposed instructions on her effects of battery defense misstated the law.
We need not address this claim.
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[35] Affirmed.
Baker, J., and Najam, J., concur.
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