MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 07 2020, 9:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Carrillo Law LLC Attorney General
Greenwood, Indiana Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Zachary Paul Collins, December 7, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-976
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Kristen McVey, Judge
Trial Court Cause No.
79D05-2001-F6-78
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-976 | December 7, 2020 Page 1 of 9
Case Summary
[1] Zachary Paul Collins appeals his convictions for Level 6 felony domestic
battery and Class A misdemeanor invasion of privacy, raising several issues.
We affirm.
Facts and Procedural History
[2] The evidence most favorable to Collins’s convictions is as follows. On January
20 of this year, Collins approached Valentina Barron, whom he had previously
dated for six to eight months, as she was getting in her car outside her
apartment. Collins stood in front of the car so Barron could not leave and then
got into the passenger seat. Inside the car, Collins yelled at Barron, “grabbed”
her arm and face, pulled her hair, and “punched” her face. Tr. pp. 84, 97.
Barron was eventually able to get out of her car, get back into her apartment,
and call police.
[3] The State charged Collins with Level 6 felony domestic battery, elevated from a
Class A misdemeanor based on Collins having a prior conviction for battery. 1
The trial court scheduled trial for March 5 and ordered Collins not to contact
Barron. While Collins was in jail awaiting trial, he sent Barron a letter
postmarked February 18, in violation of the no-contact order. The State learned
1
The State also charged Collins with domestic battery by bodily fluid or waste based on Barron’s claim that
Collins spit on her while they were in the car. Collins was found not guilty on that count at trial.
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about the letter on February 24 and the same day moved to add two counts
against Collins: Class A misdemeanor invasion of privacy (for violating the no-
contact order) and Class A misdemeanor domestic battery (the charge
underlying the Level 6 felony charge). The trial court immediately granted the
State’s motion and directed “the Magistrate” to conduct an initial hearing on
the added counts on February 25. Appellant’s App. Vol. II p. 45. According to
the chronological case summary, no such hearing was held.
[4] Collins did not object to the addition of the new counts or ask for trial to be
continued, and a jury trial proceeded as scheduled on March 5. The trial was
bifurcated, with the misdemeanor charges to be tried in the first phase and the
prior-conviction enhancement to be tried, if necessary, in the second phase. The
jury found Collins guilty on the misdemeanor charges. Collins then waived his
right to a trial on the prior-conviction enhancement and admitted to having a
prior conviction for battery, resulting in a guilty finding for Level 6 felony
domestic battery. The trial court “merge[d]” the misdemeanor domestic-battery
count with the felony domestic-battery count and entered convictions only for
Level 6 felony domestic battery and Class A misdemeanor invasion of privacy.
Id. at 73. The court imposed a sentence of two years, with one year to serve and
one year suspended to probation.
[5] Collins now appeals.
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Discussion and Decision
I. Sufficiency of Evidence
[6] Collins first contends the evidence is insufficient to support his conviction for
Level 6 felony domestic battery. When reviewing sufficiency-of-the-evidence
claims, we neither reweigh the evidence nor judge the credibility of witnesses.
Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only consider the
evidence supporting the verdict and any reasonable inferences that can be
drawn from the evidence. Id. A conviction will be affirmed if there is substantial
evidence of probative value to support each element of the offense such that a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Id.
[7] To convict Collins of Level 6 felony domestic battery, the State had to prove
beyond a reasonable doubt that Collins knowingly or intentionally touched a
family or household member in a rude, insolent, or angry manner and that he
had a previous, unrelated conviction for battery. Ind. Code § 35-42-2-1.3(a)(1),
(b)(1)(A); Appellant’s App. Vol. II p. 11. Collins does not dispute that Barron
was a family or household member or that he had a prior conviction for
battery.2 Nor does he dispute that he touched Barron. He only argues he did not
touch her knowingly or intentionally in a rude, insolent, or angry manner.
2
Regarding the “family or household member” element, Collins was not married or related to Barron, and
there is no evidence that the two were living together. However, an individual is considered a “family or
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[8] In support of his argument, Collins cites two pieces of Barron’s testimony.
When Barron testified that Collins grabbed her arm, she said, “I don’t know if
he was grabbing for my keys[.]” Tr. p. 84. Regarding Collins striking her face,
Barron had the following exchange with defense counsel:
Q: Is he leaning in the seat, how does he, how does he reach
you?
A: Like, I don’t know, when he came into the car he was
grabbing for something and then when he sat down, I
don’t know, that’s when he got, his hand struck, struck my
cheek.
Q: So you think that he just in getting in the car, trying to get
in the car that he brushed against you?
A: Yeah, I don’t think he intentionally went to---
Id. at 96-97. There are three problems with Collins’s argument. First, to the
extent Barron testified Collins accidentally grabbed her arm and struck her face,
the jury did not have to accept that part of her testimony. Second, even if
Collins did not “intentionally” strike Barron’s face, the evidence still supports a
conclusion he did so “knowingly,” i.e., that he was aware of a high probability
he was doing so. See Ind. Code § 35-41-2-2(b). Third, and most important, aside
from striking Barron’s face and grabbing her arm, there is also evidence he
household member” of another person if the individual “is dating or has dated the other person.” Ind. Code §
35-31.5-2-128(a)(2). Here, it is undisputed Collins and Barron had dated.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-976 | December 7, 2020 Page 5 of 9
grabbed her face and pulled her hair. Collins makes no claim he did those
things accidentally. The evidence is more than sufficient to support Collins’s
conviction.
II. Double Jeopardy
[9] Next, Collins contends his “conviction” for Class A misdemeanor domestic
battery “should be vacated to avoid a double jeopardy violation.” Appellant’s
Br. p. 11. But the trial court did not enter a conviction for Class A misdemeanor
domestic battery. After the jury found Collins guilty of that charge, Collins
admitted to having a prior conviction for battery, resulting in a guilty finding for
Level 6 felony domestic battery. The trial court “merge[d]” the misdemeanor
count with the felony count and entered convictions only for Level 6 felony
domestic battery and Class A misdemeanor invasion of privacy. The jury’s
guilty verdict on the charge of Class A misdemeanor domestic battery, without
more, does not constitute a “conviction” on that charge. See Carter v. State, 750
N.E.2d 778, 781 (Ind. 2001) (explaining that “a jury verdict on which the court
did not enter judgment for one reason or another (merger, double jeopardy,
etc.) is unproblematic”).
III. Amended Information
[10] Collins also argues the trial court erred by failing to hold a hearing on the
State’s motion to add the misdemeanor counts and, after granting that motion,
failing to hold an initial hearing on the added counts. He acknowledges he did
not raise either issue in the trial court, and he did not object to the addition of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-976 | December 7, 2020 Page 6 of 9
the new charges or, after the court allowed the amendment, ask for trial to be
continued. This would normally constitute waiver of the issues for appeal. Ryan
v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied. However, Collins asserts the
trial court’s failure to hold the hearings was fundamental error. “Fundamental
error is an extremely narrow exception to the waiver rule where the defendant
faces the heavy burden of showing that the alleged errors are so prejudicial to
the defendant’s rights as to make a fair trial impossible.” Id. at 668. To establish
fundamental error, the defendant must show that, under the circumstances, the
trial judge erred in not sua sponte raising the issue because the alleged error
constituted a clearly blatant violation of basic and elementary principles of due
process and presented an undeniable and substantial potential for harm. Id. In
evaluating a claim of fundamental error, our task is to look at the alleged error
in the context of all that happened and all relevant information given to the
jury—including evidence admitted at trial, closing argument, and jury
instructions—to determine whether the alleged error had such an undeniable
and substantial effect on the jury’s decision that a fair trial was impossible. Id.
[11] While Collins invokes the fundamental-error doctrine, he fails to explain how
the lack of hearings made a fair trial impossible. He contends his “substantial
rights were affected and resulted in prejudice because the amendment occurred
only ten (10) days before trial” and he “did not have a reasonable opportunity
to prepare for and defend against the added charges.” Appellant’s Br. p. 13.
However, he offers no specifics. We know he was not prejudiced by the
addition of the Class A misdemeanor domestic-battery charge, since that charge
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was merely the predicate for the original Level 6 felony charge. Regarding the
invasion-of-privacy charge, Collins does not tell us what objection(s) he would
have or could have made at either hearing, nor does he tell us what he would
have or could have done with more time to prepare for trial on that charge. As
such, he has not satisfied his “heavy burden” of establishing fundamental error
on these issues.
IV. Sleeping Juror
[12] During Barron’s testimony, the prosecutor noticed a juror was sleeping. The
trial court took a break and questioned the juror, who admitted he had missed
testimony. The court, with the agreement of the parties, replaced that juror with
an alternate juror. Collins now argues his convictions should be reversed
because the trial court did not (1) explain to the remaining jurors why the other
juror had been excused, (2) “admonish the jury to not speculate as to the cause
of the juror’s excusal,” or (3) question the alternate juror “to determine if
he/she was alert and paying attention up to the point of the other juror’s
dismissal.” Appellant’s Br. p. 15. He acknowledges he did not ask the trial court
to do any of these things but argues the court’s failure to do them constituted
fundamental error. We disagree.
[13] Collins bases his argument on Gridley v. State, 121 N.E.3d 1071 (Ind. Ct. App.
2019), trans. denied. There, in holding that the trial court did not abuse its
discretion by replacing a sleeping juror, we noted the court “explained to the
remaining jurors the reason for the dismissal” and that “the alternate juror was
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present and, presumably, awake up to the point of this juror’s dismissal[.]” Id.
at 1076. However, at no point did we hold that a trial court is required, any
time it replaces a juror, to explain its decision to the remaining jurors or to ask
the alternate juror if they had been alert and paying attention.
[14] In any event, to establish fundamental error, Collins must show that the trial
court’s alleged error “had such an undeniable and substantial effect on the
jury’s decision that a fair trial was impossible.” Ryan, 9 N.E.3d at 668. He has
not done so. He cites nothing in the record suggesting that the remaining jurors
speculated as to the cause of the dismissal, that the alternate juror was not
paying attention before being called to service, or that the dismissal otherwise
affected the jury’s deliberations. Collins has not established fundamental error
on this issue.
[15] Affirmed.
Bailey, J., and Weissmann, J., concur.
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