MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 27 2020, 7:40 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald K. Smith Curtis T. Hill, Jr.
Public Defender Attorney General
Muncie, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle L. Combs, February 27, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2231
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne L.
Appellee-Plaintiff Vorhees, Judge
Trial Court Cause No.
18C01-1902-F4-7
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 1 of 8
Case Summary
[1] Kyle L. Combs appeals his convictions, following a jury trial, for level 4 felony
burglary, level 5 felony domestic battery, and class A misdemeanor invasion of
privacy. He asserts that the trial court violated his constitutional rights and
abused its discretion in admitting certain evidence, and that the State presented
insufficient evidence to support his burglary conviction. Finding no
constitutional violation or abuse of discretion, and finding sufficient evidence to
support the burglary conviction, we affirm.
Facts and Procedural History
[2] On February 10, 2019, Combs, who was drunk and high, went to the apartment
where his former girlfriend, C.S., lived with the couple’s two children. C.S. was
also pregnant with Combs’s third child. C.S.’s neighbors heard arguing coming
from the apartment and recognized the voices as belonging to Combs and C.S.
After a period of time, C.S. came to the neighbors’ door. She told them that she
had gotten into a fight with Combs. She left one of her children with the
neighbors and returned to her apartment. The neighbors then heard more
yelling coming from the apartment and decided to call 911.
[3] Approximately five minutes later, C.S. pounded on the neighbors’ window, and
they let her in their apartment. C.S. told them that she had climbed out her
bedroom window to escape from Combs. C.S. was now “crying, upset, frantic,
even more so than before.” Tr. Vol. 2 at 112. C.S. had visible injuries on her
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 2 of 8
head and back, and she told the neighbors that Combs had caused those
injuries.
[4] The neighbors locked their door as they waited for the police to arrive. They
could hear Combs yelling C.S.’s name through a shared wall from the other
apartment, and they could hear Combs kicking or hitting the wall, causing
things to fall from their shelves. Combs exited C.S.’s apartment and began
pounding on the neighbors’ apartment door and yelling for C.S. He then
“kick[ed] in” the door, damaging the door frame. Id. at 116. Combs “walk[ed]
in” the apartment “holding the [door] frame” and “stepped on the linoleum.”
Id. One of the neighbors pulled out a weapon and told Combs “to get out.” Id.
Combs stepped out of the neighbors’ apartment and went into C.S.’s apartment.
The neighbors made a second call to 911. Officers located Combs passed out in
C.S.’s apartment.
[5] The State charged Combs with level 4 felony burglary, level 5 felony domestic
battery, level 6 felony domestic battery, class A misdemeanor invasion of
privacy, and class B misdemeanor criminal mischief. The State subsequently
dismissed the class B misdemeanor charge. A two-day jury trial began on
August 5, 2019. The jury found Combs guilty on the remaining four charges.
During sentencing, the trial court vacated the level 6 felony domestic battery
conviction for double jeopardy purposes. The court sentenced Combs to
consecutive sentences of seven years for level 4 felony burglary and four years
for level 5 felony domestic battery, and a concurrent sentence of one year for
the class A misdemeanor invasion of privacy. This appeal ensued.
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Discussion and Decision
Section 1 – The trial court did not violate Combs’s Sixth
Amendment Rights.
[6] We initially note that with regard to each issue raised, Combs fails to make a
cogent argument. Indiana Appellate Rule 46(A)(8)(a) requires that an
appellant’s argument be supported by cogent reasoning and each contention
must be supported by citations to the authorities and the parts of the appellate
record relied upon. Combs’s argument section of his brief contains only a
single citation to the record on appeal, and other than a perfunctory assertion of
each issue raised and citation to minimal legal authority, Combs does nothing
to explain to this Court how the cited authority specifically supports his claims.
Although Combs’s failure has substantially impeded our appellate
consideration of the alleged errors and surely rises to the level of warranting the
waiver of his claims, see Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (waiver
warranted when noncompliance with appellate rules substantially impedes
consideration of issues), we choose instead to briefly address the merits of each
of his claims.
[7] Combs first argues that the trial court violated his Sixth Amendment right to
confrontation in permitting certain hearsay testimony 1 from two medical
1
Hearsay is an out-of-court statement offered for “the truth of the matter asserted[,]” Ind. Evidence Rule
801(c)(2), and is generally not admissible. Combs makes no argument regarding the admissibility of the
hearsay statements pursuant to our rules of evidence.
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providers who treated C.S. for her injuries following the domestic battery. 2
Specifically, Combs appears to complain that those providers were permitted to
testify that, in the course of medical treatment, C.S. identified Combs as her
attacker. Our supreme court has acknowledged that the federal constitution
bars only “testimonial” hearsay statements, while statements made primarily
for a “non-testimonial” purpose do not violate the Confrontation Clause. Ward
v. State, 50 N.E.3d 752, 757 (Ind. 2016). In determining whether a statement is
testimonial, the court applies the “primary purpose test,” which involves a
determination of “whether, in light of all the circumstances, viewed objectively,
the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court
substitute for trial testimony.’” Id. at 759 (quoting Ohio v. Clark, 135 S. Ct. 2173,
2180 (2015)).
[8] Here, we have little difficulty concluding that the primary purpose of the
identification statements made during C.S.’s medical treatment was non-
testimonial. Indeed, this Court has recognized that due to the unique nature of
cases involving child abuse, sexual assault, and/or domestic violence,
identifying the attacker serves a primarily medical, not testimonial, purpose
because a “physician generally must know who the abuser was in order to
render proper treatment because the physician’s treatment will necessarily differ
2
The Confrontation Clause of the Sixth Amendment to the United States Constitution, which is made
applicable to the States by the Fourteenth Amendment, provides in relevant part: “In all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....” U.S.
CONST. amend. VI.
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when the abuser is a member of the victim’s family or household.” Id. (citing
Nash v. State, 754 N.E.2d 1021, 1025 (Ind. Ct. App. 2001)). Under the
circumstances presented, we conclude that C.S.’s statements to the medical
providers were non-testimonial and therefore did not run afoul of the
Confrontation Clause. 3
Section 2 – The trial court did not abuse its discretion in
admitting C.S.’s prior sworn written statement.
[9] Combs next asserts that the trial court abused its discretion in admitting a prior
sworn statement C.S. gave to police shortly after the attack in which she
identified him as her attacker. The trial court has broad discretion to rule on
the admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).
Generally, evidentiary rulings are reviewed for an abuse of discretion and
reversed when admission is clearly against the logic and effect of the facts and
circumstances. Id.
[10] Combs argues that C.S.’s prior sworn statement constituted inadmissible
hearsay. However, Indiana Evidence Rule 801(d)(1)(C) provides that a
statement is not hearsay if the declarant testifies and is subject to cross-
examination about a prior statement, and the statement is an identification of a
person shortly after perceiving the person. C.S.’s prior sworn statement was a
3
Combs mentions the Indiana Constitution but fails to set forth a separate argument on that basis.
Consequently, the issue is waived. See Jackson v. State, 925 N.E.2d 369, 372 n.1 (Ind. 2010) (holding that
defendant’s state constitutional claim was waived for failure to make a separate argument).
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statement of identification given to officers at the scene almost immediately
after perceiving Combs, and C.S. was available for cross-examination
concerning the statement during trial. The trial court did not abuse its
discretion in admitting the statement.
Section 2 – The State presented sufficient evidence to support
the burglary conviction.
[11] Combs challenges the sufficiency of the evidence supporting his level 4 felony
burglary conviction. When reviewing a claim of insufficient evidence, we
neither reweigh the evidence nor assess witness credibility. Bell v. State, 31
N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable
inferences drawn therefrom that support the conviction, and will affirm if there
is probative evidence from which a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the conviction, then the
reviewing court will not disturb it. Id. at 500.
[12] Indiana Code Section 35-43-2-1(1) provides that a person who breaks and enters
the dwelling of another person with intent to commit a felony therein commits
level 4 felony burglary. The State presented evidence to establish that after
Combs battered C.S., she climbed out her bedroom window and escaped to the
neighbors’ apartment. Combs then went to the neighbors’ apartment and
pounded on the locked door while yelling for C.S. Both neighbors testified that
Combs kicked in their door and then stepped inside the apartment onto their
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linoleum floor. Combs did not have permission to enter the apartment and left
only after one of the neighbors confronted him with a weapon.
[13] Combs argues that the State failed to prove that he actually entered the
neighbors’ apartment, and he points to testimony from C.S. indicating that she
did not see him step inside. This is merely an invitation for this Court to
reweigh the evidence and reassess witness credibility on appeal, and we will
not. As noted above, both neighbors testified that Combs stepped inside, and it
was the jury’s prerogative to weigh any conflicting evidence on this issue.
[14] Combs further asserts that the State failed to prove that he entered the
neighbors’ apartment with the intent to commit a felony therein. It is well
settled that the “intent to commit a felony” element of burglary may be inferred
from the circumstances. Timmons v. State, 500 N.E.2d 1212, 1216 (Ind. 1986).
Here, Combs had just battered C.S., went searching for her, and then kicked in
the neighbors’ door while yelling her name. It was reasonable for the jury to
infer that Combs intended to enter the apartment and commit felony battery
against C.S. once inside. The State presented sufficient evidence to sustain
Combs’s conviction for level 4 felony burglary.
[15] Affirmed.
May, J., and Pyle, J., concur.
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