MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 30 2017, 9:22 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Barbara J. Simmons Indianapolis, Indiana Oldenburg, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Roberson, August 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1612-CR-2761 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff Judge Trial Court Cause No. 49G10-1512-CM-45870
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 1 of 8 [1] Anthony Roberson appeals his conviction of Class A misdemeanor battery
resulting in bodily injury. 1 He argues the trial court abused its discretion when
it allowed an interpreter to translate the victim’s statements, and the State did
not present sufficient evidence to support his conviction. We affirm.
Facts and Procedural History [2] On December 27, 2015, Govindbhai Patel was working at the Royal Inn motel.
Patel was cleaning on the second floor of the motel when he noticed an open
window on a vacant room. Through the window, Patel could see Roberson
sleeping inside the room. Patel recognized him because Roberson “used to
sleep right on the staircase in their motel.” (Tr. at 7.) When Patel went into the
room, he did not see anyone, but he saw a pair of shoes on the floor. Patel
noticed, through a crack in the door, that Roberson was hiding in the
bathroom. Patel went to the bathroom, and Roberson “opened the door very
quickly on [Patel], and it hurt him and he fell down.” (Id. at 8.) Patel clarified
by explaining Roberson pushed him with his hands. Patel’s back was injured
from his fall, and Roberson ran away after pushing Patel down.
[3] Patel tried calling the front office from the motel room phone. Patel then went
to the front office, as he suspected Roberson might be hiding there. He saw
Roberson run toward Walgreens. Patel and the motel manager pursued
1 Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 2 of 8 Roberson and called the police from the Walgreens. Police subsequently
located Roberson at a nearby gas station and arrested him. The State charged
Roberson with Class A misdemeanor battery resulting in bodily injury and
Class A misdemeanor criminal trespass. 2
[4] At a one-day bench trial, the State used an interpreter, Depak Goradia, to
translate Patel’s testimony from the Indian language of Gujarati to English.
The trial court asked Goradia what language he would be translating, and
Goradia was administered an oath in which he swore he would properly
translate Patel’s testimony. During Patel’s testimony, Roberson objected
repeatedly to the manner 3 in which Goradia was translating, and eventually the
court acknowledged Roberson’s standing objection to the interpretation.
[5] After a bench trial, the trial court found Roberson guilty of one count of Class
A misdemeanor battery resulting in bodily injury. He was sentenced to 365
days in jail with 335 days suspended and thirty days credit. The trial court also
sentenced Roberson to 335 days of probation, ordered Roberson to have no
contact with Patel, and ordered Roberson to stay away from the Royal Inn.
Discussion and Decision
2 Ind. Code § 35-43-2-2 (2014). 3 For example, Roberson objected to Goradia’s translation of Patel’s answer to a question because Roberson felt Goradia was summarizing Patel’s words instead of translating Patel’s words verbatim.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 3 of 8 Abuse of Discretion [6] “On appeal, because we have noted that the manner in which an examination
of an interpreter occurs is discretionary, we will review the trial court’s
examination under an abuse of discretion standard.” Tesfamariam v.
Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011). An abuse of
discretion occurs if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances presented to the court. Gomez v. Gomez,
887 N.E.2d 977, 982 (Ind. Ct. App. 2008). If the trial court’s decision to admit
evidence is sustainable on any ground, we will not reverse its decision. Id.
[7] Roberson argues the court abused its discretion in allowing Goradia to translate
because the court “failed to make but a cursory inquiry as to Mr. Goradia’s
qualifications.” (Appellant’s Br. at 8.) As an initial matter, we note Roberson
did not object to Goradia’s qualifications as a translator or to the trial court’s
acceptance of Goradia as a translator, and thus the issue is waived for our
review. See Tesfamariam, 956 N.E.2d at 122 (when complaining party does not
object to the qualification of the interpreter during trial, the issue is waived for
appellate consideration).
[8] An exception to the doctrine of waiver arises when errors are so blatant and
serious that to ignore them would constitute a denial of fundamental due
process, i.e., when fundamental error has occurred. Madden v. State, 656 N.E.2d
524, 526 (Ind. Ct. App. 1995), trans. denied. The fundamental error doctrine
permits us to consider the merits of a waived error if the error was so prejudicial
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 4 of 8 to the rights of the appellant that he could not have had a fair trial. Id. To be
“fundamental,” error must be “a clearly blatant violation of basic and
elementary principles, and the harm or potential for harm therefrom must be
substantial and apparent.” James v. State, 613 N.E.2d 15, 25 (Ind. 1993). This
means irremediable prejudice to a defendant’s fundamental right to a fair trial
must be immediately apparent in the disputed evidence or argument. Allen v.
State, 686 N.E.2d 760, 775 n.3 (Ind. 1997), reh’g denied, cert. denied sub nom Allen
v. Indiana, 525 U.S. 1073 (1999).
[9] At the beginning of Roberson’s trial, the court identified Goradia as the
interpreter for Patel. The court then asked, “you are the court appointed
interpreter translating what language, sir?” (Tr. at 4.) Goradia answered the
language was “Gujarati,” (id.), and the State’s witness Patel spoke Gujarati.
The court then administered an oath to Goradia. Roberson did not object to
any of these processes.
[10] Roberson objected thereafter when he suspected Goradia was not properly
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 30 2017, 9:22 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Barbara J. Simmons Indianapolis, Indiana Oldenburg, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Roberson, August 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1612-CR-2761 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff Judge Trial Court Cause No. 49G10-1512-CM-45870
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 1 of 8 [1] Anthony Roberson appeals his conviction of Class A misdemeanor battery
resulting in bodily injury. 1 He argues the trial court abused its discretion when
it allowed an interpreter to translate the victim’s statements, and the State did
not present sufficient evidence to support his conviction. We affirm.
Facts and Procedural History [2] On December 27, 2015, Govindbhai Patel was working at the Royal Inn motel.
Patel was cleaning on the second floor of the motel when he noticed an open
window on a vacant room. Through the window, Patel could see Roberson
sleeping inside the room. Patel recognized him because Roberson “used to
sleep right on the staircase in their motel.” (Tr. at 7.) When Patel went into the
room, he did not see anyone, but he saw a pair of shoes on the floor. Patel
noticed, through a crack in the door, that Roberson was hiding in the
bathroom. Patel went to the bathroom, and Roberson “opened the door very
quickly on [Patel], and it hurt him and he fell down.” (Id. at 8.) Patel clarified
by explaining Roberson pushed him with his hands. Patel’s back was injured
from his fall, and Roberson ran away after pushing Patel down.
[3] Patel tried calling the front office from the motel room phone. Patel then went
to the front office, as he suspected Roberson might be hiding there. He saw
Roberson run toward Walgreens. Patel and the motel manager pursued
1 Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 2 of 8 Roberson and called the police from the Walgreens. Police subsequently
located Roberson at a nearby gas station and arrested him. The State charged
Roberson with Class A misdemeanor battery resulting in bodily injury and
Class A misdemeanor criminal trespass. 2
[4] At a one-day bench trial, the State used an interpreter, Depak Goradia, to
translate Patel’s testimony from the Indian language of Gujarati to English.
The trial court asked Goradia what language he would be translating, and
Goradia was administered an oath in which he swore he would properly
translate Patel’s testimony. During Patel’s testimony, Roberson objected
repeatedly to the manner 3 in which Goradia was translating, and eventually the
court acknowledged Roberson’s standing objection to the interpretation.
[5] After a bench trial, the trial court found Roberson guilty of one count of Class
A misdemeanor battery resulting in bodily injury. He was sentenced to 365
days in jail with 335 days suspended and thirty days credit. The trial court also
sentenced Roberson to 335 days of probation, ordered Roberson to have no
contact with Patel, and ordered Roberson to stay away from the Royal Inn.
Discussion and Decision
2 Ind. Code § 35-43-2-2 (2014). 3 For example, Roberson objected to Goradia’s translation of Patel’s answer to a question because Roberson felt Goradia was summarizing Patel’s words instead of translating Patel’s words verbatim.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 3 of 8 Abuse of Discretion [6] “On appeal, because we have noted that the manner in which an examination
of an interpreter occurs is discretionary, we will review the trial court’s
examination under an abuse of discretion standard.” Tesfamariam v.
Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011). An abuse of
discretion occurs if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances presented to the court. Gomez v. Gomez,
887 N.E.2d 977, 982 (Ind. Ct. App. 2008). If the trial court’s decision to admit
evidence is sustainable on any ground, we will not reverse its decision. Id.
[7] Roberson argues the court abused its discretion in allowing Goradia to translate
because the court “failed to make but a cursory inquiry as to Mr. Goradia’s
qualifications.” (Appellant’s Br. at 8.) As an initial matter, we note Roberson
did not object to Goradia’s qualifications as a translator or to the trial court’s
acceptance of Goradia as a translator, and thus the issue is waived for our
review. See Tesfamariam, 956 N.E.2d at 122 (when complaining party does not
object to the qualification of the interpreter during trial, the issue is waived for
appellate consideration).
[8] An exception to the doctrine of waiver arises when errors are so blatant and
serious that to ignore them would constitute a denial of fundamental due
process, i.e., when fundamental error has occurred. Madden v. State, 656 N.E.2d
524, 526 (Ind. Ct. App. 1995), trans. denied. The fundamental error doctrine
permits us to consider the merits of a waived error if the error was so prejudicial
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 4 of 8 to the rights of the appellant that he could not have had a fair trial. Id. To be
“fundamental,” error must be “a clearly blatant violation of basic and
elementary principles, and the harm or potential for harm therefrom must be
substantial and apparent.” James v. State, 613 N.E.2d 15, 25 (Ind. 1993). This
means irremediable prejudice to a defendant’s fundamental right to a fair trial
must be immediately apparent in the disputed evidence or argument. Allen v.
State, 686 N.E.2d 760, 775 n.3 (Ind. 1997), reh’g denied, cert. denied sub nom Allen
v. Indiana, 525 U.S. 1073 (1999).
[9] At the beginning of Roberson’s trial, the court identified Goradia as the
interpreter for Patel. The court then asked, “you are the court appointed
interpreter translating what language, sir?” (Tr. at 4.) Goradia answered the
language was “Gujarati,” (id.), and the State’s witness Patel spoke Gujarati.
The court then administered an oath to Goradia. Roberson did not object to
any of these processes.
[10] Roberson objected thereafter when he suspected Goradia was not properly
translating Patel’s testimony. Goradia admitted he was “summarizing . . .
[what Patel said] . . . sometimes.” (Id. at 10.) The trial court reminded Goradia
to “tell us exactly what [Patel] said.” (Id. at 12.) After a subsequent objection
to the way Goradia translated Patel’s words, the trial court told Roberson:
I understand your objection but I can’t help that right now because -- I understand that this -- it sounds like the interpreter is saying -- is not translating it as if in the words of the [witness] exactly. . . . I think based on this language that is the way this
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 5 of 8 interpretation is going to happen. . . And, I promise you, I will give it the proper weight, okay?
(Id. at 13.)
[11] This case was not tried before a jury, but instead was tried before the bench.
“[I]n criminal bench trials, we presume that the court disregard[s] inadmissible
testimony and render[s] its decision solely on the basis of relevant and probative
evidence.” Griffin v. State, 698 N.E.2d 1261, 1267 (Ind. Ct. App. 1998), trans.
denied. Further, generally valid issues with regard to fundamental error such as
“unfair prejudice, confusion of the issues, or potential to mislead the jury” are
relevant only in jury trials. Ruiz v. State, 926 N.E.2d 532, 535 (Ind. Ct. App.
2010), reh’g denied, trans. denied. The trial court assured Roberson he would give
Patel’s testimony proper weight, and the trial court asked Goradia if he spoke
the language he was in court to translate. As we have no other standard by
which to measure the trial court’s actions, 4 we conclude the trial court did not
commit fundamental error when it allowed Goradia to translate for Patel.
Sufficiency of the Evidence [12] When reviewing sufficiency of the evidence in support of a conviction, we do
not reweigh evidence or assess credibility of witnesses. Walker v. State, 998
4 In Cruz Angeles v. State, we suggested a non-exhaustive list of questions a trial court could pose to a potential interpreter to ensure that individual is qualified to provide courtroom translation. 751 N.E.2d 790, 795 (Ind. Ct. App. 2001), trans. denied. As the question of how to properly qualify interpreters for trial is a recurring issue, we respectfully request the Indiana Supreme Court provide additional guidance regarding interpreter qualification.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 6 of 8 N.E.2d 724, 726 (Ind. 2013). We consider only the probative evidence and
reasonable inferences drawn therefrom in the light most favorable to the
judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The decision comes
before us with a presumption of legitimacy, and we will not substitute our
judgment for that of the fact-finder. Binkley v. State, 654 N.E.2d 736, 737 (Ind.
1995), reh’g denied. Conflicting evidence is considered most favorably to the
verdict. Drane, 867 N.E.2d at 146. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
inference reasonably may be drawn from it to support the verdict. Id. at 147.
[13] To prove Roberson committed Class A misdemeanor battery resulting in bodily
injury, the State had to prove beyond a reasonable doubt: (1) Roberson (2)
knowingly or intentionally (3) touched Patel (4) in a rude, insolent, or angry
manner, and (5) that conduct resulted in bodily injury to Patel. See Ind. Code §
35-42-2-1 (2014).
[14] Roberson argues the State failed to present sufficient evidence beyond a
reasonable doubt that he committed battery because Patel’s testimony was
inconsistent and vague. Specifically, he argues that the testimony did not prove
he touched Patel in a rude, insolent or angry manner beyond a reasonable
doubt. To support his argument, Roberson points to parts of Patel’s testimony
that were unclear. One part Roberson asserts is inconsistent was whether Patel
fell down from Roberson pushing the bathroom door at him or if Roberson
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 7 of 8 pushed Patel down using his hands. This question was cleared up when Patel
was asked whether it was the door or Roberson’s hands, and Patel responded
Roberson pushed him with hands. There was also confusion in the testimony
about whether Patel’s first action after being pushed down was to call the front
office or to go to the office. However, even if Patel’s testimony was confusing
or unclear at times, “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,” and we decline Roberson’s invitation to
invade the fact-finder’s role. See Drane, 868 N.E.2d at 146. Thus, we conclude
the evidence was sufficient to convict Roberson of battery.
Conclusion [15] The trial court did not create fundamental error by allowing Goradia to
translate Patel’s testimony, and the State presented sufficient evidence to
convict Roberson of Class A misdemeanor battery. Accordingly, we affirm.
[16] Affirmed.
Brown, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017 Page 8 of 8