MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 24 2020, 10:05 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 Timothy J. O’Connor Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Prosecuting Attorney Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Deiandre Bailey, August 24, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-176 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff. Davis, Judge The Honorable Hugh Patrick Murphy, Magistrate Trial Court Cause No. 49G16-1907-F6-29211
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 1 of 6 Statement of the Case [1] Deiandre Bailey (“Bailey”) appeals his convictions, following a jury trial, for
Level 6 felony domestic battery1 and two counts of Class A misdemeanor
domestic battery.2 Bailey argues that the State failed to provide sufficient
evidence to prove that venue was in Marion County. Concluding that Bailey
has waived his argument because he did not challenge venue at trial, and that,
waiver notwithstanding, the State presented sufficient evidence to prove venue
by a preponderance of the evidence, we affirm Bailey’s convictions.
[2] We affirm.
Issue Whether the State provided sufficient evidence to prove venue.
Facts [3] After midnight on July 6, 2019, Bailey was at his girlfriend Dominique Daye’s
(“Daye”) apartment along with Daye’s four-year-old son (“Daye’s son”) and
Bailey’s sister (“Bailey’s sister”). After the group had spent some time eating
and conversing, Bailey stated that he was going upstairs and told Daye that he
wanted her to also go upstairs. Daye refused, and Bailey slapped her face with
his open hand. Over the course of that early morning, Bailey continued to ask
1 IND. CODE § 35-42-2-1.3. 2 I.C. § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 2 of 6 Daye to go upstairs. Daye continued to refuse his requests, causing tensions to
escalate. Bailey threatened Daye with a kitchen knife and “whack[ed]” her
with a towel used to clean up dog urine. (Tr. Vol. 2 at 59, 60). When Daye
threw the towel at Bailey, he punched her face with a closed fist. Bailey’s sister
attempted to intervene, but then Bailey again slapped Daye’s face.
[4] Eventually, following prolonged arguing at the apartment, Daye took her son
and walked to a nearby park. Bailey followed Daye to the park. An
“aggravated” Bailey “kept asking” Daye to go back to the apartment. (Tr. Vol.
2 at 69). Daye repeatedly refused. After another period of arguing, Bailey
grabbed a rock and threatened to hit Daye with it. He then grabbed a larger
rock, which was the size of his hand. When Daye again refused to go home
with him, Bailey used the rock to strike the left side of Daye’s face, causing her
glasses to fly off her face. Bailey then ran away from the scene. Daye called
out for help to some people who were outside, and she asked them to call the
police.
[5] Indianapolis Metropolitan Police Department (“IMPD”) Officer Darius Clark
(“Officer Clark”) was dispatched to the scene. When he arrived, he saw that
Daye’s eye was “puffy[,]” bruised, and “actively bleeding.” (Tr. Vol. 2 at 92).
The police took photographs of Daye’s injuries. An ambulance transported
Daye to Community Hospital, where a nurse took additional photographs of
Daye’s injuries, which included a fractured left eye socket.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 3 of 6 [6] The State charged Bailey with two counts of Level 6 felony domestic battery
and two counts of Class A misdemeanor domestic battery. Counts 1 and 3
related to Bailey’s act of striking Daye with his hand while at the apartment,
and Counts 2 and 4 related to his act of striking Daye with a rock while at the
park.
[7] The trial court held a jury trial in December 2019. During the trial, Daye
testified that after Bailey had hit her multiple times at her apartment, she and
her son had walked to a nearby park. Daye also testified that after Bailey had
struck her face with the rock, she had asked bystanders to call the police.
IMPD Officer Clark testified that he had been dispatched to the 3600 block of
Bunker Hill Drive and confirmed that the address was in Marion County.
Bailey did not object to the State’s establishment of venue at trial or otherwise
challenge it in any way to the trial court. The jury found Bailey guilty of the
Level 6 felony and Class A misdemeanor domestic battery counts relating to the
park and the Class A misdemeanor domestic battery relating to the apartment.
The jury found him not guilty of the Level 6 felony count relating to the
apartment.
[8] At a subsequent sentencing hearing, the trial court merged Bailey’s park-related
misdemeanor conviction into his felony conviction and imposed a 545-day
sentence for Bailey’s Level 6 felony conviction and a concurrent 365-day
sentence for his misdemeanor conviction. Bailey now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 4 of 6 Decision [9] Bailey raises a sole issue, arguing that the State failed to provide sufficient
evidence to prove that venue was in Marion County. The State argues that
Bailey has waived this claim for appellate review, and we agree.
[10] “‘A defendant waives error relating to venue when he fails to make an objection
at the appropriate time in the trial court.’” Peacock v. State, 126 N.E.3d 892, 896
(Ind. Ct. App. 2019) (quoting Harkrader v. State, 553 N.E.2d 1231, 1234 (Ind.
Ct. App. 1990), trans. denied).3 Here, Bailey did not challenge the State’s
establishment of venue at any time or in any manner to the trial court. As a
result, he has waived his appellate review of his challenge to venue. See, e.g.,
Peacock, 126 N.E.3d at 896-97 (holding that the defendant had waived appellate
review of his venue claim where he had failed to challenge venue at trial, such
as moving for directed verdict); Harkrader, 553 N.E.2d at 1234 (explaining that
the defendant’s failure to challenge venue at trial resulted in waiver of his
appellate challenge to venue).4
[11] Waiver notwithstanding, we conclude that the State sufficiently proved venue.
A defendant has a constitutional and a statutory right to be tried in the county
3 We direct Bailey’s attention to the fact that Peacock v. State, 126 N.E.3d 892 (Ind. Ct. App. 2019) is a published opinion and not, as incorrectly asserted by Bailey, an unpublished memorandum decision. 4 In his Reply Brief, Bailey contends that he should be allowed to raise his venue challenge for the first time on appeal pursuant to Indiana Trial Rule 50(A)(5). We disagree. See Scalf v. State, 424 N.E.2d 1084, 1086 (Ind. Ct. App.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 24 2020, 10:05 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 Timothy J. O’Connor Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jodi Kathryn Stein Deputy Prosecuting Attorney Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Deiandre Bailey, August 24, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-176 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff. Davis, Judge The Honorable Hugh Patrick Murphy, Magistrate Trial Court Cause No. 49G16-1907-F6-29211
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 1 of 6 Statement of the Case [1] Deiandre Bailey (“Bailey”) appeals his convictions, following a jury trial, for
Level 6 felony domestic battery1 and two counts of Class A misdemeanor
domestic battery.2 Bailey argues that the State failed to provide sufficient
evidence to prove that venue was in Marion County. Concluding that Bailey
has waived his argument because he did not challenge venue at trial, and that,
waiver notwithstanding, the State presented sufficient evidence to prove venue
by a preponderance of the evidence, we affirm Bailey’s convictions.
[2] We affirm.
Issue Whether the State provided sufficient evidence to prove venue.
Facts [3] After midnight on July 6, 2019, Bailey was at his girlfriend Dominique Daye’s
(“Daye”) apartment along with Daye’s four-year-old son (“Daye’s son”) and
Bailey’s sister (“Bailey’s sister”). After the group had spent some time eating
and conversing, Bailey stated that he was going upstairs and told Daye that he
wanted her to also go upstairs. Daye refused, and Bailey slapped her face with
his open hand. Over the course of that early morning, Bailey continued to ask
1 IND. CODE § 35-42-2-1.3. 2 I.C. § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 2 of 6 Daye to go upstairs. Daye continued to refuse his requests, causing tensions to
escalate. Bailey threatened Daye with a kitchen knife and “whack[ed]” her
with a towel used to clean up dog urine. (Tr. Vol. 2 at 59, 60). When Daye
threw the towel at Bailey, he punched her face with a closed fist. Bailey’s sister
attempted to intervene, but then Bailey again slapped Daye’s face.
[4] Eventually, following prolonged arguing at the apartment, Daye took her son
and walked to a nearby park. Bailey followed Daye to the park. An
“aggravated” Bailey “kept asking” Daye to go back to the apartment. (Tr. Vol.
2 at 69). Daye repeatedly refused. After another period of arguing, Bailey
grabbed a rock and threatened to hit Daye with it. He then grabbed a larger
rock, which was the size of his hand. When Daye again refused to go home
with him, Bailey used the rock to strike the left side of Daye’s face, causing her
glasses to fly off her face. Bailey then ran away from the scene. Daye called
out for help to some people who were outside, and she asked them to call the
police.
[5] Indianapolis Metropolitan Police Department (“IMPD”) Officer Darius Clark
(“Officer Clark”) was dispatched to the scene. When he arrived, he saw that
Daye’s eye was “puffy[,]” bruised, and “actively bleeding.” (Tr. Vol. 2 at 92).
The police took photographs of Daye’s injuries. An ambulance transported
Daye to Community Hospital, where a nurse took additional photographs of
Daye’s injuries, which included a fractured left eye socket.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 3 of 6 [6] The State charged Bailey with two counts of Level 6 felony domestic battery
and two counts of Class A misdemeanor domestic battery. Counts 1 and 3
related to Bailey’s act of striking Daye with his hand while at the apartment,
and Counts 2 and 4 related to his act of striking Daye with a rock while at the
park.
[7] The trial court held a jury trial in December 2019. During the trial, Daye
testified that after Bailey had hit her multiple times at her apartment, she and
her son had walked to a nearby park. Daye also testified that after Bailey had
struck her face with the rock, she had asked bystanders to call the police.
IMPD Officer Clark testified that he had been dispatched to the 3600 block of
Bunker Hill Drive and confirmed that the address was in Marion County.
Bailey did not object to the State’s establishment of venue at trial or otherwise
challenge it in any way to the trial court. The jury found Bailey guilty of the
Level 6 felony and Class A misdemeanor domestic battery counts relating to the
park and the Class A misdemeanor domestic battery relating to the apartment.
The jury found him not guilty of the Level 6 felony count relating to the
apartment.
[8] At a subsequent sentencing hearing, the trial court merged Bailey’s park-related
misdemeanor conviction into his felony conviction and imposed a 545-day
sentence for Bailey’s Level 6 felony conviction and a concurrent 365-day
sentence for his misdemeanor conviction. Bailey now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 4 of 6 Decision [9] Bailey raises a sole issue, arguing that the State failed to provide sufficient
evidence to prove that venue was in Marion County. The State argues that
Bailey has waived this claim for appellate review, and we agree.
[10] “‘A defendant waives error relating to venue when he fails to make an objection
at the appropriate time in the trial court.’” Peacock v. State, 126 N.E.3d 892, 896
(Ind. Ct. App. 2019) (quoting Harkrader v. State, 553 N.E.2d 1231, 1234 (Ind.
Ct. App. 1990), trans. denied).3 Here, Bailey did not challenge the State’s
establishment of venue at any time or in any manner to the trial court. As a
result, he has waived his appellate review of his challenge to venue. See, e.g.,
Peacock, 126 N.E.3d at 896-97 (holding that the defendant had waived appellate
review of his venue claim where he had failed to challenge venue at trial, such
as moving for directed verdict); Harkrader, 553 N.E.2d at 1234 (explaining that
the defendant’s failure to challenge venue at trial resulted in waiver of his
appellate challenge to venue).4
[11] Waiver notwithstanding, we conclude that the State sufficiently proved venue.
A defendant has a constitutional and a statutory right to be tried in the county
3 We direct Bailey’s attention to the fact that Peacock v. State, 126 N.E.3d 892 (Ind. Ct. App. 2019) is a published opinion and not, as incorrectly asserted by Bailey, an unpublished memorandum decision. 4 In his Reply Brief, Bailey contends that he should be allowed to raise his venue challenge for the first time on appeal pursuant to Indiana Trial Rule 50(A)(5). We disagree. See Scalf v. State, 424 N.E.2d 1084, 1086 (Ind. Ct. App. 1981) (explaining that a venue challenge is not within the purview of Trial Rule 50(A)(5) because venue is a “collateral matter” and not an element of a crime).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 5 of 6 where the offense was committed. Peacock, 126 N.E.3d at 897 (citing IND.
CONST. Art 1, § 13 and IND. CODE § 35-32-2-1(a)). While the State is required
to prove venue, it is not an element of an offense. Peacock, 126 N.E.3d at 897.
The State is required to prove venue by only a preponderance of the evidence,
and “[c]ircumstantial evidence may be sufficient to establish proper venue.” Id.
Our Court will “neither weigh the evidence nor resolve questions of
credibility,” and we will “look to the evidence and reasonable inferences drawn
therefrom that support the conclusion of requisite venue.” Id.
[12] Here, after Bailey hit Daye at their apartment, she walked to nearby park where
Bailey hit her again. Bystanders at the park called for the police, and IMPD
Officer Clark was dispatched to scene, which he testified was in Marion
County. The circumstantial evidence, including the reasonable inferences
drawn therefrom, is sufficient to show by a preponderance of the evidence that
Bailey committed his offenses in Marion County. Accordingly, the State
provided sufficient evidence of venue.
[13] Affirmed.
Kirsch, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020 Page 6 of 6