MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 17 2017, 8:08 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Emmett L. Waltz, III, August 17, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1702-CR-263
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1609-F6-1061
Pyle, Judge.
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Statement of the Case
[1] Emmett Waltz, III (“Waltz”) appeals his conviction, following a jury trial, for
Level 6 felony Strangulation.1 At Waltz’s jury trial, the victim—his girlfriend—
recanted her original report to police that Waltz had hit her multiple times and
had shoved his two fingers, up to his knuckles, into her mouth and down her
throat. Waltz argues that the trial court abused its discretion in admitting a
detective’s testimony regarding the cycles of domestic violence and the
percentage of victims who recant in domestic abuse cases. Specifically, he
contends on appeal that these two portions of the detective’s testimony were
inadmissible under Indiana Evidence Rule 702. Waltz also contends that there
was insufficient evidence to support his strangulation conviction.
[2] We conclude that Waltz has waived his appellate challenge to the detective’s
testimony. Specifically, he waived his challenge to the detective’s testimony
regarding the cycles of violence because he failed to object based on the same
grounds he now raises on appeal, and he waived his challenge to the testimony
regarding the percentage of recanting victims because he failed to object to that
testimony at trial. Additionally, we conclude that Waltz’s sufficiency argument
is merely a request to reweigh the inferences made by the jury and its
1
IND. CODE § 35-42-2-9, the strangulation statute, was recently amended effective July 1, 2017. Because
Waltz committed his offense in 2016, we will apply the statute in effect at that time. Waltz was also
convicted of Level 6 felony domestic battery under INDIANA CODE § 35-42-2-1.3 but does not appeal that
conviction.
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determination of witness credibility, and we deny this request and affirm his
challenged strangulation conviction.
[3] We affirm.
Issues
1. Whether Waltz waived his appellate challenge to the admission of the
police detective’s testimony.
2. Whether sufficient evidence supports Waltz’s Level 6 felony
strangulation conviction.
Facts
[4] In September 2016, Waltz and Melanie Bell (“Bell”) had been in a relationship
for two years and had a child together. Following an argument via text
message, Bell took her daughter to Waltz’s house so that Bell could speak with
him. Bell sat her five-month-old daughter in the living room and went into the
bathroom where Waltz was in the bathtub. The two argued, and Bell threw a
comb or a toothbrush at him. Waltz told Bell that she “better be scared[,]” (Tr.
Vol. 2 at 178), and he “grabbed her wrist and pushed it towards the side[.]” (Tr.
Vol. 3 at 23). Bell then ran out of the bathroom to leave the house. Waltz
caught up with Bell at the front door and again grabbed her wrist. Waltz then
shoved his two fingers, up to his knuckles, into her mouth and down her throat.
He also hit her in the ribs, on her arm, and on her head. Bell broke away and
retreated to her car in the driveway, leaving her daughter inside the house.
[5] Waltz went to Bell’s car to ask her to come back inside. Bell told Waltz to
bring their daughter outside to her, and Waltz refused. Bell then called 911 and
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told the operator that Waltz “was inside with [her] daughter and that he
wouldn’t bring her outside.” (State’s Ex. 1). Bell also “told them that there was
some violence that had happened[.]” (Tr. Vol. 2 at 151). She told the 911
operator that she did not want to stay in the driveway because she was scared
and that she was going to drive down the street and away from Waltz’s house.
A few minutes later, Bell again called 911 in an attempt to cancel her previous
call, and the operator informed her that the police were on the way. Minutes
later, the police responded and met Bell on a cross street near Waltz’s home.
[6] When the police arrived, Fort Wayne Police Officer Scott Wilson (“Officer
Wilson”) noticed that Bell appeared “afraid” and “ha[d] been crying.” (Tr.
Vol. 2 at 176). Bell told Officer Wilson that, after Waltz had gotten
“aggravated with her[,]” he “grabbed her[,]” “shoved his fingers down into her
throat or into her mouth[,]” and asked her “how d[id] she like that or how did
that feel.” (Tr. Vol. 2 at 179). Bell also told the officer that Waltz had hit her
ribs and head. Officer Wilson saw that Bell had a “red mark” on her arm and
“some skin fluffing from the arm like an abrasion.” (Tr. Vol. 2 at 180).
[7] The police told Bell to follow them back to Waltz’s house so she could get her
daughter. Bell was “apprehensive” and “said she was too scared to go back[.]”
(Tr. Vol. 2 at 180). After Officer Wilson assured Bell that Waltz was “not
going to do anything with [the police] there[,]” Bell went back to Waltz’s house
with the police. The police officers knocked several times on Waltz’s door, but
he refused to answer. The officers, who noticed that Bell was texting Waltz,
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told her to tell him to come outside. Waltz then opened the door and came
outside with Bell’s daughter, and the police arrested Waltz.
[8] Thereafter, Bell drove to the police station to give a statement to Detective
Michelle Brown (“Detective Brown”), who is a detective in the domestic
violence unit. Bell told Detective Brown that Waltz had “shoved his first two
fingers down her throat . . . all the way down to . . . the knuckle” and that he
had “struck her on her left side in [her] ribs . . . and punched her with a closed
fist on the left side of her head.” (Tr. Vol. 2 at 228). While Bell was at the
police station, another officer took photographs of her side and arm.
[9] The State charged Waltz with Count I, Level 6 felony strangulation; Count II,
Level 6 felony domestic battery based on prior conviction for battery; and
Count III, Level 6 felony domestic battery committed in the presence of a child.
The trial court also issued a no-contact order between Waltz and Bell.
[10] Despite the no-contact order, Waltz called Bell multiple times while he was in
jail, and all of these calls were recorded. On the day of his arrest, Waltz called
Bell for the first time. During this phone call, Waltz cautioned Bell to stop
making statements. He also told Bell, “when you go to court, tell them that you
made it up,” and he emphasized that he was “dead fucking serious” about it.
(State’s Ex. 9). Waltz also asked Bell why she had called the police, and she
responded that she had been “scared.” (State’s Ex. 9). He then warned her that
if “[she] d[id] this, then [she was] gonna regret it . . . regret it every time.”
(State’s Ex. 9). Later during the phone call, Waltz questioned Bell about why
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she had told the police that he had strangled her, and she responded that she
had told the police that he had put his hands down her throat. Waltz told Bell
that she was not helping him by saying that “stupid shit” and that she needed to
“quit thinking honestly.” (State’s Ex. 9).
[11] Two days later, Bell wrote a letter to the trial court. In the letter, Bell stated
that she “want[ed] to recant [her] statement” made to police on September 16.
(App. Vol. 2 at 25). She also stated that she did not want the police to arrest
Waltz and that she did not want to press any charges against him. In the letter,
Bell stated that she had a mark on her arm because it had been sunburnt and
was peeling. Additionally, she wrote that she “c[ould] assure that there had
been no domestic violence[,]” that she did not fear Waltz, and that “no one
ha[d] pressured [her] into the writing of this letter.” (App. Vol. 2 at 26). On the
day that Bell wrote the letter, Waltz phoned Bell from the jail. After Bell read
part of the letter to Waltz, he told her that she needed to make it sound like the
police had “coached [her] and like changed [her] words” and “manipulated
charges that weren’t fuckin’ true.” (State’s Ex. 13). Waltz instructed Bell to
make a copy of the letter for both the trial court and the prosecutor’s office.
Bell told Waltz that “they had nothing to build a case off of without [her]
statement.” (State’s Ex. 9). Waltz said that the strangulation charge should get
dropped because there were no photos of Bell’s throat.
[12] On October 19, 2016, Waltz again called Bell from jail. During the phone call,
Waltz told Bell how to avoid being served with a subpoena, such as refusing to
answer the door or moving from her house and staying with her grandmother
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for a month or two. Waltz told Bell that her “showing up is going to fuck
everything up.” (State’s Ex. 14).
[13] In December 2016, the trial court held a jury trial. When the State called Bell
as a witness, she admitted that she had told the police that Waltz had hit her
multiple times and had shoved his fingers down her throat. She, however,
recanted those prior reports to police and testified that “in all actuality it didn’t
happen.” (Tr. Vol. 2 at 155). Instead, Bell testified that she had marks on her
because she had run into the refrigerator when leaving Waltz’s house and was
sunburnt. She also admitted that she had written the trial court a letter in which
she had stated that she did not want Bell to be arrested and did not want
charges filed against him, and she testified that she had written the letter all by
herself. After Bell testified that she was never scared of Waltz and continued to
deny that he had shoved his fingers down her throat, the State asked her “[h]ow
would someone having their fingers down your throat impact you?” (Tr. Vol. 2
at 159-60). Bell responded that “[i]t could affect your breathing or make you
sick or something[.]” (Tr. Vol. 2 at 160). The State then verified that Bell had
testified that “someone having their fingers down your throat . . . can impact
your breathing[,]” and Bell responded, “Yes.” (Tr. Vol. 2 at 160).
[14] The State introduced into evidence Bell’s 911 phone calls and the jail phone
calls between Waltz and Bell. The State also presented testimony from Officer
Wilson and Detective Brown regarding Bell’s initial statements that Waltz had
hit her and shoved his fingers down her throat. During Detective Brown’s
direct examination, she testified that she had experience and training in
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domestic violence cases and was familiar with how some domestic violence
victims behave, including recanting prior statements. She then, without
objection, explained the definition of recanting. Specifically, Detective Brown
testified that “[r]ecanting is when a victim will formally take back what they
[sic] had initially reported and said.” (Tr. Vol. 2 at 223). When the State asked
the detective to talk about the cycles of violence, Waltz objected to the
testimony based on relevancy. The trial court overruled the objection, and
Detective Brown then testified about the three cycles of violence. The State
then asked Detective Brown about the percentage of victims who had recanted
in her cases, and the detective testified—without objection—that “about 80 to
90 percent will go back and say it never happened.” (Tr. Vol. 2 at 225).
[15] Waltz testified at trial on his own behalf. He admitted that he had argued with
Bell and that he had grabbed Bell’s wrist in the bathroom and in the living room
as she was running out of the house. He, however, denied that he had hit her.
During closing argument, his counsel argued that Waltz had grabbed Bell’s
wrist out of self-defense, and the trial court granted his request to include a self-
defense instruction.
[16] The jury returned a verdict of guilty on Count I, Level 6 felony strangulation
and Count II, Level 6 felony domestic battery, and it found Waltz not guilty of
Count III, Level 6 felony domestic battery. The trial court sentenced Waltz to
two (2) years’ imprisonment for both Count I and Count II and ordered that
these sentences be served concurrently. Waltz now appeals.
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Decision
[17] Waltz argues that: (1) the trial court abused its discretion in admitting
Detective Brown’s testimony, and (2) there was not sufficient evidence to
support his Level 6 felony strangulation conviction. We will address each of
these arguments in turn.
1. Admission of Evidence
[18] Waltz argues that the trial court abused its discretion in admitting Detective
Brown’s testimony regarding the cycles of violence and the percentage of
victims who recant. He contends that these two portions of testimony were
inadmissible under Indiana Evidence Rule 702(a).
[19] The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,
871 (Ind. 2012), reh’g denied.
[20] “A claim of evidentiary error may not be raised for the first time on appeal but
rather must first be presented at trial[.]” Hunter v. State, 72 N.E.3d 928, 932
(Ind. Ct. App. 2017), trans. denied. “The failure to make a contemporaneous
objection to the admission of evidence at trial, so as to provide the trial court an
opportunity to make a final ruling on the matter in the context in which the
evidence is introduced, results in waiver of the error on appeal.” Brown v. State,
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783 N.E.2d 1121, 1125 (Ind. 2003). Additionally, “[a]ny grounds for objections
not raised at trial are not available on appeal, and a party may not add to or
change his grounds in the reviewing court.” Hunter, 72 N.E.3d at 932.
[21] Here, Waltz has waived his appellate challenge to the two portions of Detective
Brown’s testimony. First, Waltz has waived his challenge to the detective’s
testimony regarding the cycles of violence because his objection was based only
on the relevance of this testimony and not based on Indiana Evidence Rule 702,
which he now attempts to raise on appeal. Because he objected based on a
ground other than he now attempts to raise on appeal, he has waived review of
his appellate argument regarding this testimony. See, e.g., Brown, 783 N.E.2d at
1125-26 (holding that the defendant had waived his argument regarding the
admission of evidence where his objection at trial was based on grounds
different than those on appeal). Second, in regard to Waltz’s challenge to the
detective’s testimony about the percentage of victims who recant, Waltz failed
to raise an objection, let alone a contemporaneous objection, to this testimony.
As a result, he has waived his appellate argument regarding this testimony. See,
e.g., Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996) (explaining that a defendant
waives a claim on appeal when he does not object to the introduction of
evidence, makes only a general objection, or objects only on other grounds),
reh’g denied.2
2
We recognize that “[a] claim that has been waived by a defendant’s failure to raise a contemporaneous
objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred.”
Brown, 929 N.E.2d at 207. See also Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) (“Failure to object to the
admission of evidence at trial normally results in waiver and precludes appellate review unless its admission
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2. Insufficient Evidence
[22] Waltz also argues that the evidence was insufficient to support his conviction
for Level 6 felony strangulation.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder would find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original).
[23] The strangulation statute in effect at the time of Waltz’s crime, INDIANA CODE
§ 35-42-2-9, provided, in relevant part, that “[a] person who, in a rude, angry, or
insolent manner, knowingly or intentionally . . . obstructs the nose or mouth of
. . . another person . . . in a manner that impedes the normal breathing or the
blood circulation of the other person commits strangulation, a Level 6 felony.”
constitutes fundamental error.”). Here, however, Waltz does not raise a fundamental error claim on appeal.
Therefore, we will not address it.
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I.C. § 35-42-2-9(b)(2). To convict Waltz as charged, the State was required to
prove beyond a reasonable doubt that Waltz knowingly or intentionally
obstructed Bell’s nose or mouth in a manner that impeded her normal breathing
or blood circulation.
[24] Waltz contends that there was insufficient evidence to support his strangulation
conviction because the State did not provide direct testimony that Bell’s normal
breathing was impeded. In support, he points to Bell’s testimony at trial that
she had lied to the officers about Waltz putting his fingers down her throat and
then claimed that her breathing was, therefore, not affected. The State, on the
other hand, argues that the probative evidence presented and the reasonable
inferences drawn therefrom were sufficient to allow the jury to find that Bell’s
breathing was impeded. We agree.
[25] “Triers-of-fact are charged with making common sense inferences” regarding
evidence presented. Davis v. State, 796 N.E.2d 798, 806 (Ind. Ct. App. 2003),
trans. denied. Indeed, we will determine that “evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict.” Drane, 867
N.E.2d at 147.
[26] Here, despite Bell’s recantation, the jury heard testimony from police officers
that Waltz had shoved his two fingers, up to his knuckles, into Bell’s mouth and
down her throat. Specifically, Bell told Officer Wilson that, after Waltz had
gotten “aggravated with her[,]” he “grabbed her[,]” “shoved his fingers down
into her throat or into her mouth[,]” and asked her “how d[id] she like that or
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how did that feel.” (Tr. Vol. 2 at 179). Bell told Detective Brown that Waltz
had “shoved his first two fingers down her throat . . . all the way down to . . .
the knuckle[.]” (Tr. Vol. 2 at 228). From this evidence, the jury could have
reasonably inferred that Bell’s breathing was impeded. See, e.g., Saxton v.
State, 790 N.E.2d 98, 99 (Ind. 2003) (explaining that the trier-of-fact could infer
from evidence that defendant was standing on air conditioning unit at 5 a.m.
peering into woman’s bathroom window that defendant did so without
woman’s permission). Indeed, even Bell acknowledged that the impact of
someone placing his fingers down her throat was that “[i]t could affect your
breathing or make you sick or something[.]” (Tr. Vol. 2 at 160).
[27] Based on the jury’s verdict, it is evident that it did not believe Bell’s testimony
that Waltz had never put his fingers down her throat or that her breathing had
not been affected. “The factfinder is obliged to determine not only whom to
believe, but also what portions of conflicting testimony to believe, and is not
required to believe a witness’ testimony even when it is uncontradicted.” Wood
v. State, 999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013) (internal citations
omitted), trans. denied, cert. denied. The evidence presented at trial and the
inferences drawn therefrom were sufficient for a reasonable jury to conclude
that Waltz impeded Bell’s breathing when he shoved his fingers down her
throat. Waltz’s challenge to the State’s evidence is merely a request to reweigh
the inferences made by the jury and its determination of witness credibility. We
deny this request and affirm his Level 6 felony strangulation conviction. See
Ferrell v. State, 746 N.E.2d 48, 50 (Ind. 2001) (explaining that “we look to the
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evidence and reasonable inferences drawn therefrom that support the verdict
and will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt”).
[28] Affirmed.
May, J., and Brown, J., concur.
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