FOR PUBLICATION FILED May 17 2012, 9:18 am
CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC K. KOSELKE GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BRIAN OTTE, ) ) Appellant-Defendant, ) ) vs. ) No. 84A01-1108-CR-356 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT The Honorable Michael R. Rader, Judge Cause No. 84D05-1011-FD-3756
May 17, 2012
OPINION - FOR PUBLICATION
BRADFORD, Judge Following a jury trial, Appellant-Defendant Brian Otte appeals his convictions for
Class D felony Residential Entry (Count 1);1 three counts of Class B misdemeanor
Battery (Counts 2, 3, 5);2 Class A misdemeanor Criminal Mischief (Count 6);3 Class A
misdemeanor Operating a Vehicle While Intoxicated (Count 7);4 Class B misdemeanor
Failure to Stop after Accident Resulting in Damage to Unattended Vehicle (Count 8); 5
and the finding that he is a Habitual Offender (Count 9).6 Upon appeal, Otte argues that
he was tried in violation of Indiana Rule of Criminal Procedure 4 and that the trial court
abused its discretion in permitting witness testimony that victims of domestic violence
had a certain propensity to recant. We affirm.
FACTS AND PROCEDURAL HISTORY
On the night of November 11, 2010, Colleen Amos, her boyfriend Justin Shaffer,
and her infant child were at her residence on McKinley Boulevard in Terre Haute. At
approximately 9:30 p.m. Amos received a call from Otte, her former boyfriend, asking
to come over, which request Amos refused. At some point, Amos heard a person break
into her house though the back door. Moments later, Otte, who did not have a key to the
residence, appeared in Amos’s living room, lunged at Shaffer, and began hitting him.
Amos attempted to leave for help, at which point Otte forced his way in her direction,
1 Ind. Code § 35-43-2-1.5 (2010). 2 Ind. Code § 35-42-2-1(a) (2010). 3 Ind. Code § 35-43-1-2 (2010). 4 Ind. Code § 9-30-5-2 (2010). 5 Ind. Code §§ 9-26-1-3; 9-26-1-8 (2010). 6 Ind. Code § 35-50-2-8 (2010).
2 upsetting the car seat holding her sleeping infant, and punched her on the right side of
her body. This knocked Amos to the ground on her hands and knees and caused her to
feel pain. After Otte turned his attention once more to Shaffer, Amos escaped the house
and sought help. As Amos spoke to a neighbor, she saw Otte leave the home. Amos
reentered the home and locked it, whereupon she noticed her sleeping infant lying in the
tipped car seat. Upon hearing crashing noises, Amos looked outside to see Otte
repeatedly ramming her car with his truck. Otte subsequently broke into the house
again, and fought with Shaffer. Scared for her life, Amos hid in the sunroom and called
for help.
Terre Haute Police Officer William Ellerman responded to the scene, where he
found that the back door to Amos’s home was “all busted out,” and the door jamb was
destroyed. Tr. p. 91. Seelyville Town Marshall James Halley subsequently apprehended
Otte following a traffic stop. Otte smelled of alcohol and admitted that he was drunk. A
subsequent certified breath test, administered by Terre Haute Police Officer Theodore
Lemke, revealed that Otte’s blood-alcohol content was .14.
On November 15, 2010, the State charged Otte with seven charges arising out of
the November 11-12 incidents. These charges included Class D felony residential entry
(Count 1), Class A misdemeanor domestic battery (Count 2), Class A misdemeanor
battery (Count 3), Class A misdemeanor invasion of privacy (Count 4), Class A
misdemeanor criminal mischief (Count 5), Class A misdemeanor operating a vehicle
while intoxicated endangering a person (Count 6) and Class B misdemeanor failure to
3 stop after an accident resulting in vehicle damage (Count 7). On March 10, the State
filed an additional count alleging Otte to be a habitual offender (Count 8).
On March 15, 2011, Otte moved for a speedy trial pursuant to Indiana Criminal
Rule 4(B)(1). On April 21, 2011, the State filed an amended information alleging ten
counts, which included new Counts 9 and 10, two counts of Class A misdemeanor
battery. On April 29, the State moved for a continuance of Otte’s speedy trial, over
Otte’s objection, on the grounds that Officers Ellerman and Lemke would be on vacation
outside of Indiana and unavailable as witnesses for the May 19, 2011 trial date.
The trial court held two hearings on the State’s motion. At a May 4, 2011,
hearing, the prosecutor indicated that, upon subpoenaing the State’s witnesses, he had
learned that Officers Ellerman and Lemke had made unrefundable out-of-state vacation
plans which they wished to keep. The prosecutor argued that, pursuant to Indiana
Criminal Rule 4(D), the State was permitted a continuance of up to ninety additional
days when evidence, such as these officers’ testimony, would not otherwise be available.
The trial court asked the prosecutor to inform the officers that the county would
reimburse them for the cost of moving their vacations, and it took the matter under
advisement.
At the May 9, 2011, hearing, the prosecutor confirmed that at least one of the
witnesses, Officer Ellerman, would be in Florida and was not inclined to change his
vacation plans, even with reimbursement by the county. The trial court concluded that a
two-week extension of the trial date was reasonable, granted the State’s continuance on
May 9, 2011, and reset the trial for June 2, 2011.
4 On May 11, 2011, the State filed a third amended information, replacing the
habitual offender charge in Count 8 with a Class A misdemeanor battery charge and
renaming the habitual offender allegation as Count 11. On June 2, 2011, the State filed a
fourth amended information alleging the following nine counts: Class D felony
residential entry (Count 1); Class A misdemeanor battery (Count 2); Class B
misdemeanor battery (Counts 3-5); Class A misdemeanor criminal mischief (Count 6);
Class A misdemeanor operating a vehicle while intoxicated endangering a person (Count
7); Class B misdemeanor failure to stop after accident resulting in damage to unattended
vehicle (Count 8); and that Otte was a habitual offender (Count 9).
During the June 2-3, 2011 jury trial, defense counsel asked Amos on cross-
examination about allegations she had made against Otte in October 2009 which she had
subsequently recanted. Amos admitted having claimed three months after making the
allegations that she had made them up after Otte began dating another woman. Amos
testified at the instant trial that her true basis for recanting was that she had not wanted
to go to trial. On redirect examination the prosecutor confirmed with Amos that, despite
her recantation, Otte had ultimately been convicted of charges arising out of her
allegations.
Following Amos’s testimony, the State introduced testimony from domestic
violence expert Yvonne Creekbaum, over defense counsel’s objection, that victims of
domestic violence routinely recant their stories. According to Creekbaum, whose
testimony was not based upon the facts of the instant case, domestic violence victims
may recant out of fear for their abuser or financial considerations, among other reasons.
5 Following trial, Otte was convicted of Count 1, Count 2 as a lesser-included Class
B misdemeanor, Counts 3, 5, and 6-8, and he was found to be a habitual offender. At a
July 13, 2011 sentencing hearing, the trial court imposed an aggregate sentence of eight
and one-half years in the Department of Correction. Specifically, Otte received three
years in the Department of Correction for Count 1; 180 days for each of Counts 2, 3, and
5, all to be served concurrent with each other and with Count 1; one year on Count 6, to
be served concurrent with Count 1; and concurrent sentences of one year in the
Department of Correction for Count 7 and 180 days for Count 8, with the sentence in
Count 7 to be served consecutive to the sentence in Count 1. The trial court imposed an
additional term of four and one-half years for Count 9, to run consecutive to the
sentences in Counts 1 and 7.7 This appeal follows.
DISCUSSION AND DECISION
Upon appeal, Otte contends that his right to a speedy trial pursuant to Indiana
Criminal Rule 4 was violated and that the trial court abused its discretion in admitting
Creekbaum’s testimony.
I. Criminal Rule 4
A. Waiver
The State’s first response to Otte’s Rule 4 challenge is that it is waived. The
State argues that Otte was required to move for discharge in addition to his objection in
7 Notably, Count 9 alleged Otte’s habitual offender status, so the accompanying finding and sentence should have been imposed as an enhancement to the felony conviction in Count 1 rather than as a separate conviction with a separate sentence. See Ind. Code § 35-50-2-8 (2010). Otte does not seek redress for this error.
6 order to preserve this claim for appellate review. The State cites Brown v. State, 725
N.E.2d 823, 825 (Ind. 2000) in support of this proposition. While Brown references “the
requirement that a defendant object to a trial date set after a Criminal Rule 4 deadline
and move for discharge,” it later references these two requirements in the disjunctive,
suggesting that either is adequate to preserve a Rule 4 challenge. Id. (finding waiver
where defendant “neither objected” to the trial date “nor moved the trial court for
discharge[.]”). As the Brown court emphasizes, the purpose of Rule 4 is to permit a
defendant a timely trial, not a mechanism for avoiding one. Id. A defendant therefore
cannot sit idly by and wait for a deadline to pass before complaining about it. Here,
there is no suggestion that Otte sat idly by and waited for deadlines to pass, only that he
used a single means, namely timely objections, to bring it to the court’s attention. We
are satisfied that this was enough to preserve the claim and decline the State’s invitation
to resolve this appeal on waiver grounds. See id. (additionally observing that defendant
who does not make timely Rule 4 objection waives his right to discharge).
B. The Merits
1. Applicable Law and Standard of Review
The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to
the United States Constitution and by Article I, Section 12 of the Indiana Constitution.
Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). This “‘fundamental principle of
constitutional law’” has long been zealously guarded by the Indiana Supreme Court. Id.
(quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572 (1957)). To this end, the
provisions of Indiana Criminal Rule 4 implement the defendant’s speedy trial right. Id.
7 Indiana Criminal Rule 4(B)(1) provides in pertinent part as follows:
If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.
Indiana Criminal Rule 4(B) specifically requires that, upon a motion for a speedy
trial, a defendant must be tried within seventy days unless the defendant caused the
delay or the court’s calendar is congested. Chambers v. State, 848 N.E.2d 298, 301 (Ind.
Ct. App. 2006), trans. denied.
In addition, Criminal Rule 4(D) states as follows:
If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.
Criminal Rule 4(D) provides that a trial court may grant the State a continuance when it
is satisfied that (1) there is evidence for the State that cannot then be had; (2) reasonable
effort has been made by the State to procure the evidence; and (3) there is just ground to
believe that such evidence can be had within ninety days. Chambers, 848 N.E.2d at
8 303-04. This court has previously stated that any exigent circumstances may warrant a
reasonable delay beyond the limitations of Criminal Rule 4. Id. “‘The reasonableness of
such delay must be judged in the context of the particular case[.]’” Id. (quoting Smith v.
State, 802 N.E.2d 948, 951 (Ind. Ct. App. 2004)). In reviewing Criminal Rule 4 appeals,
we employ two standards of review: we review the trial court’s legal conclusions de
novo but exercise deference with respect to its factual findings. See Feuston v. State,
953 N.E.2d 545, 548 (Ind. Ct. App. 2011) (resolving differing standards of review in
Criminal Rule 4 cases).
2. Analysis
There is no dispute that Otte was charged on November 15, 2010; that he moved
for a speedy trial on March 15, 2011; that the trial court granted the motion, setting the
trial for May 19, 2011; that on April 29, 2011, the State moved to continue the trial, over
Otte’s objection, on the basis of allegedly unavailable witnesses; and that the trial court
granted the continuance, setting the trial for June 2, 2011, which fell outside the seventy-
day speedy trial period. In granting the State a continuance, the trial court found that a
“short continuance of two weeks [was] reasonable.” May 9, 2011 Hearing Tr. p. 8.
The State argues that Criminal Rule 4(D) permits the trial court to extend the trial
date beyond the seventy-day period. “The absence of a key witness through no fault of
the State is good cause for extending the time period requirements.” Wooley v. State,
716 N.E.2d 919, 925 (Ind. 1999) (internal quotation omitted). Such absence may be due
to a long-planned vacation. See id. (citing Sims v. State, 267 Ind. 215, 220, 368 N.E.2d
1352, 1354-55 (1977) (witness out of country on vacation)).
9 In Wooley, the State moved for a Rule 4(D) continuance on the basis that one of its
witnesses was not in Indiana despite her assurances that she would be. 716 N.E.2d at
925. State police officers had spoken to the witness, who had indicated that she would
return, and they had made arrangements for her return flight, which the witness
ultimately did not board. Id. Based upon these efforts and what the Wooley court
deemed to be reasonable reliance on the witness’s assurances, the Rule 4(D) extension
was justified. Id. This was so despite the fact that the witness was in Indiana on the
actual date set out in her subpoena, which, as the Wooley court observed, there was no
evidence to show the State could have known. Id.
Here, the State made multiple efforts to secure the witnesses, including offering
to reimburse them for rescheduling their vacations. Yet at least one of the witnesses,
who had long-planned to be in Florida, was not amenable to the State’s requests. The
trial court concluded that a short extension of the trial was reasonable and justified under
Criminal Rule 4(D). The testimony at issue, which included that of the first officer to
arrive on the scene and the officer to perform Otte’s certified breath test, would have
been essential to the State’s case. Given the above precedent permitting Rule 4(D)
extensions for witnesses who are out of State and/or on long-planned vacations, we too
are satisfied that a Rule 4(D) extension was justified here.
Otte suggests that the State should have issued subpoenas compelling the
witnesses to appear. The May 4, 2011, hearing transcript indicates that the prosecutor
did issue subpoenas, which led to his discovery that the officers would be out of state on
the date of trial. Whether the officers would have ultimately ignored the subpoenas is a
10 different question; in requesting a continuance, the State was entitled to rely upon their
representations that they would be unable to comply. See id. (permitting Rule 4(D)
continuance based in part on State’s reliance on witness representations). We find no
error.
II. Creekbaum’s Testimony
Otte additionally challenges the trial court’s admission of Creekbaum’s testimony
attesting to the propensity of domestic abuse victims to recant. The State introduced this
testimony after Amos admitted during cross-examination that she had recanted her 2009
allegations against Otte. Otte claims that Creekbaum was not qualified under Indiana
Evidence Rule 701 to give lay testimony; that Creekbaum was not qualified to be an
expert witness under Rule 702; that Creekbaum’s testimony constituted impermissible
vouching testimony pursuant to Rule 704(b); and that it was overly prejudicial pursuant
to Rule 403.
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 that discretion.
Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012). 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. Id.
A. Indiana Evidence Rule 701
Otte first contends that Creekbaum, who had made no personal observations of
Amos, was not qualified to give lay testimony relating to the facts of this case. The
State did not argue below, nor does it argue on appeal, that Creekbaum’s testimony was
11 admissible as lay testimony. The State has always qualified Creekbaum’s testimony as
expert testimony. Otte’s reliance on Rule 701, therefore, is misplaced.
B. Indiana Evidence Rule 702
Indiana Evidence Rule 702 provides as follows:
(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.
Under this rule, a witness may be qualified as an expert by virtue of “‘knowledge, skill,
experience, training, or education.’” Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003)
(citing Ind. Evid. R. 702(a)). Only one characteristic is necessary to qualify an individual
as an expert. Id. As such, an individual may qualify as an expert based upon practical
experience alone. Id. Expert testimony regarding “specialized knowledge” need not
involve scientific principles and therefore need not comply with Rule 702(b). See
Malinski v. State, 794 N.E.2d 1071, 1085 (Ind. 2003) (observing that expert testimony
based upon specialized knowledge is not a matter of scientific principles governed by
Rule 702(b)).
Otte’s challenge under Rule 702 is that Creekbaum’s testimony was not based
upon demonstrably reliable scientific principles. But it need not have been; her status as
an expert witness was due to her specialized knowledge about victims of domestic
violence. As the Malinski court observed, “specialized knowledge” as referenced by
12 Rule 702(a) is not a matter of scientific principles. Creekbaum’s qualification as an
expert witness was instead based upon her twenty-three-year history of experience,
training, and education in the area of domestic violence. Otte does not claim that this
experience is inadequate to qualify her as an expert witness with specialized knowledge.
Accordingly, we find no error on this ground.
C. Indiana Evidence Rule 704
Otte also claims that Creekbaum’s testimony constituted impermissible vouching
testimony in violation of Indiana Evidence Rule 704(b). Rule 704(b) states as follows:
“Witnesses may not testify to opinions concerning intent, guilt, or innocence in a
criminal case; the truth or falsity of allegations; whether a witness has testified
truthfully; or legal conclusions.”
The State claims that Creekbaum’s testimony was not vouching testimony
because she never directly referred to the truthfulness of Amos’s testimony.
Creekbaum’s testimony was introduced to provide an explanation for the phenomenon
of recantation, after defense counsel opened the door to that issue, rather than to reflect
upon the actual truth or falsity of either of Amos’s 2009 or instant allegations.
Significantly, Creekbaum’s testimony was not directly tied to Amos; Creekbaum had not
observed or examined Amos and was making non-specific statements about how victims
of domestic abuse behave in general. This court has previously observed that expert
testimony explaining the behavior of victims of domestic violence which is not based
upon personal knowledge does not cross the line into impermissible vouching. Iqbal v.
State, 805 N.E.2d 401, 409-10 (Ind. Ct. App. 2004).
13 Admittedly, Creekbaum’s testimony operated to explain away Amos’s
recantation, arguably attesting to the truth of her past allegations and, consequently, the
credibility of her testimony. Nevertheless, we cannot find a Rule 704(b) violation. In
Carter v. State, 754 N.E.2d 877, 882-83 (Ind. 2001), the Supreme Court permitted, in a
case involving an autistic child witness, expert testimony regarding autistic children’s
general inability to deliberately deceive others. While the Indiana Supreme Court
recently overturned longstanding precedent permitting “indirect” vouching in child
cases, see Hogland, 962 N.E.2d at 1237, it left Carter intact, reasoning that the child’s
autism “compounded the issues,” confronting the jury with evidence which fell “‘outside
common experience,’” and that the expert testimony was necessary to “‘supplement the
jurors’ insight.’” Hoglund, 962 N.E.2d at 1237 n.9 (quoting Carter, 754 N.E. 2d at 882-
83).
The domestic abuse at issue in the instant case compounds the issue in the same
way that autism compounded the issue in Carter. As this court has previously observed,
the reactions and behaviors of domestic violence victims are not commonly understood
by laypersons. Odom v. State, 711 N.E.2d 71, 75 (Ind. Ct. App. 1999), trans. denied.
Consistent with this view, this court has endorsed the use of expert testimony about
domestic abuse/battered woman syndrome to explain witness recantation. See id. at 72
n.2, 77 (domestic abuse); Carnahan v. State, 681 N.E.2d 1164, 1166-68 (Ind. Ct. App.
1997) (battered woman syndrome); see also Iqbal, 805 N.E.2d at 409-10 (affirming use
of expert testimony to “educate[] the jury on the complexity of behavior of domestic
violence victims”); Like in Carter, testimony regarding a victim’s propensity to recant
14 in this context simply provides the jury with information outside its experience,
permitting it to assess credibility based upon a more complete understanding of all
potential factors at issue. We find no Rule 704 violation.
D. Indiana Evidence Rule 403
Otte finally claims that Creekbaum’s testimony was more prejudicial than
probative, in violation of Indiana Evidence Rule 403. Rule 403 states as follows:
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.”
We have already concluded that Creekbaum’s testimony had significant probative
value by providing the jury a more complete picture of the potential circumstances at
issue. As for the prejudicial effect of such testimony, Creekbaum specifically indicated
that she had not examined Amos and knew nothing about her case. The jury was free to
accept or dismiss Creekbaum’s testimony as applicable or inapplicable to the instant
case. We cannot conclude that this testimony was overly prejudicial.
III. Conclusion
Having found no error in the trial court’s Criminal Rule 4(D) continuance or its
admission of Creekbaum’s testimony, we affirm the trial court on both grounds.
The judgment of the trial court is affirmed.
VAIDIK, concurs in result with opinion.
CRONE, concurs.
15 IN THE COURT OF APPEALS OF INDIANA
BRIAN OTTE, ) ) Appellant-Defendant, ) ) vs. ) No. 84A01-1108-CR-356 ) STATE OF INDIANA ) ) Appellee-Plaintiff. ) )
VAIDIK, Judge, concurring in result.
I concur in full with the majority opinion that the trial court did not err in granting
a continuance or in admitting the testimony of Creekbaum, a domestic violence expert.
I write separately because I believe Creekbaum’s testimony was admissible under
Indiana Evidence Rule 702 as syndrome evidence to help the jury understand why
Colleen Amos recanted certain allegations she had made against Otte. Battered Women’s
Syndrome (“BWS”) helps to explain why a victim of domestic violence may recant
allegations of violence against her abuser. Such syndrome evidence is admissible to
counter the inference that the victim’s behavior or statement is inconsistent with the event
having occurred.
Otte challenges the admission of Creekbaum’s testimony not because she was not
qualified to give her expert opinion on the matter, she was, but, among other reasons,
16 because the scientific principles upon which Creekbaum’s testimony rested were not
reliable. I disagree. We have already held that BWS is a valid scientific theory under
Rule 702. Carnahan v. State, 681 N.E.2d 1164, 1167 (Ind. Ct. App. 1997). And once a
particular type of scientific evidence is admitted into evidence in Indiana courts, a trial
court should take judicial notice of that fact. McGrew v. State, 682 N.E.2d 1289, 1291
(Ind. 1997).
I understand that Creekbaum, a non-lawyer, did not believe that evidence of BWS
was admissible in Indiana. See Tr. p. 352. But, the reality is that it is. As such, her
expert testimony regarding BWS, which we have previously found to be based on reliable
scientific principles, is admissible. The trial court did not abuse its discretion by
admitting this evidence.