Devon Gaines v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 20, 2018
• Docket: 18A-CR-1731
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 20 2018, 8:33 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Wild Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General

Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Devon Gaines, December 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1731 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Ryan Hart, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G05-1710-F5-38956

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018 Page 1 of 4 [1] Devon Gaines appeals his class A misdemeanor domestic battery conviction,

arguing that the trial court committed reversible error in admitting testimony

from his victim that he claims is unfairly prejudicial. Because that testimony is

cumulative of testimony that Gaines did not object to, any error is harmless.

Therefore, we affirm.

[2] Gaines and Ra’zsaveh Richardson had an intimate relationship. He lived with

her off and on and kept personal items at her apartment. Richardson became

pregnant with Gaines’s child. Their relationship soured, and on October 4,

2017, Richardson told Gaines “to come and get his stuff.” Tr. Vol. 2 at 57. She

let him into her apartment, and they got into an argument after she refused his

request to get an abortion. Gaines pushed and punched Richardson, tased her

stomach with her taser, and tried to throw her in the shower. He broke her

phones and told her that she was “going to learn to stop f’ing with [him].” Id.

at 62. As Gaines was “trying to get his stuff … out of the apartment[,]”

Richardson knocked on her neighbors’ doors and begged for help. Id. at 64.

The police arrived, and Richardson told them what had happened.

[3] The State charged Gaines with six counts, including class A misdemeanor

domestic battery. At trial, Richardson testified that Gaines “wanted [her] to get

an abortion[.]” Id. at 55. Gaines objected and requested a bench conference.

The transcript indicates that much of the conference, including the specific basis

for Gaines’s objection, was inaudible and therefore was not transcribed by the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018 Page 2 of 4 court reporter.1 The trial court overruled the objection. Shortly thereafter,

Richardson again testified that Gaines “wanted [her] to get an abortion.” Id. at

58. Gaines did not object to this statement. The jury found him guilty of

domestic battery, and the trial court sentenced him to 365 days, with 229 days

suspended to probation.

[4] On appeal, Gaines asserts that the trial court committed reversible error in

admitting Richardson’s statement that he wanted her to have an abortion. We

disagree. Our supreme court has stated on more than one occasion that “[e]ven

the erroneous admission of evidence which is cumulative of other evidence

admitted without objection does not constitute reversible error.” Hoglund v.

State, 962 N.E.2d 1230, 1240 (Ind. 2012) (quoting Wolfe v. State, 562 N.E.2d

414, 421 (Ind. 1990)); see also Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct.

App. 2005) (“[T]o preserve a challenge to the admission of evidence, the

defendant must object each time the evidence is offered.”). Thus, assuming for

argument’s sake that the trial court erred in admitting Richardson’s first

statement regarding abortion, that error is harmless because Gaines did not

object to Richardson’s second, cumulative statement regarding abortion.

1 The State notes that Gaines could have utilized Indiana Appellate Rules 31 through 33 “to attempt to clarify the record” but did not do so. Appellee’s Br. at 9 n.1. The trial court’s response to Gaines’s inaudible objection strongly suggests that Gaines’s argument at trial is not the same as the argument he makes on appeal, which is that Richardson’s statement was unfairly prejudicial and inadmissible under Indiana Evidence Rules 401 and 403. “[A] defendant may not argue one ground for an objection to the admission of evidence at trial and then raise new grounds on appeal.” Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018 Page 3 of 4 [5] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018 Page 4 of 4