Kyle L. Combs v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 27, 2020
• Docket: 19A-CR-2231
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 27 2020, 7:40 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 Ronald K. Smith Curtis T. Hill, Jr. Public Defender Attorney General Muncie, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kyle L. Combs, February 27, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2231 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne L. Appellee-Plaintiff Vorhees, Judge Trial Court Cause No. 18C01-1902-F4-7

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 1 of 8 Case Summary [1] Kyle L. Combs appeals his convictions, following a jury trial, for level 4 felony

burglary, level 5 felony domestic battery, and class A misdemeanor invasion of

privacy. He asserts that the trial court violated his constitutional rights and

abused its discretion in admitting certain evidence, and that the State presented

insufficient evidence to support his burglary conviction. Finding no

constitutional violation or abuse of discretion, and finding sufficient evidence to

support the burglary conviction, we affirm.

Facts and Procedural History [2] On February 10, 2019, Combs, who was drunk and high, went to the apartment

where his former girlfriend, C.S., lived with the couple’s two children. C.S. was

also pregnant with Combs’s third child. C.S.’s neighbors heard arguing coming

from the apartment and recognized the voices as belonging to Combs and C.S.

After a period of time, C.S. came to the neighbors’ door. She told them that she

had gotten into a fight with Combs. She left one of her children with the

neighbors and returned to her apartment. The neighbors then heard more

yelling coming from the apartment and decided to call 911.

[3] Approximately five minutes later, C.S. pounded on the neighbors’ window, and

they let her in their apartment. C.S. told them that she had climbed out her

bedroom window to escape from Combs. C.S. was now “crying, upset, frantic,

even more so than before.” Tr. Vol. 2 at 112. C.S. had visible injuries on her

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 2 of 8 head and back, and she told the neighbors that Combs had caused those

injuries.

[4] The neighbors locked their door as they waited for the police to arrive. They

could hear Combs yelling C.S.’s name through a shared wall from the other

apartment, and they could hear Combs kicking or hitting the wall, causing

things to fall from their shelves. Combs exited C.S.’s apartment and began

pounding on the neighbors’ apartment door and yelling for C.S. He then

“kick[ed] in” the door, damaging the door frame. Id. at 116. Combs “walk[ed]

in” the apartment “holding the [door] frame” and “stepped on the linoleum.”

Id. One of the neighbors pulled out a weapon and told Combs “to get out.” Id.

Combs stepped out of the neighbors’ apartment and went into C.S.’s apartment.

The neighbors made a second call to 911. Officers located Combs passed out in

C.S.’s apartment.

[5] The State charged Combs with level 4 felony burglary, level 5 felony domestic

battery, level 6 felony domestic battery, class A misdemeanor invasion of

privacy, and class B misdemeanor criminal mischief. The State subsequently

dismissed the class B misdemeanor charge. A two-day jury trial began on

August 5, 2019. The jury found Combs guilty on the remaining four charges.

During sentencing, the trial court vacated the level 6 felony domestic battery

conviction for double jeopardy purposes. The court sentenced Combs to

consecutive sentences of seven years for level 4 felony burglary and four years

for level 5 felony domestic battery, and a concurrent sentence of one year for

the class A misdemeanor invasion of privacy. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 3 of 8 Discussion and Decision

Section 1 – The trial court did not violate Combs’s Sixth Amendment Rights. [6] We initially note that with regard to each issue raised, Combs fails to make a

cogent argument. Indiana Appellate Rule 46(A)(8)(a) requires that an

appellant’s argument be supported by cogent reasoning and each contention

must be supported by citations to the authorities and the parts of the appellate

record relied upon. Combs’s argument section of his brief contains only a

single citation to the record on appeal, and other than a perfunctory assertion of

each issue raised and citation to minimal legal authority, Combs does nothing

to explain to this Court how the cited authority specifically supports his claims.

Although Combs’s failure has substantially impeded our appellate

consideration of the alleged errors and surely rises to the level of warranting the

waiver of his claims, see Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (waiver

warranted when noncompliance with appellate rules substantially impedes

consideration of issues), we choose instead to briefly address the merits of each

of his claims.

[7] Combs first argues that the trial court violated his Sixth Amendment right to

confrontation in permitting certain hearsay testimony 1 from two medical

1 Hearsay is an out-of-court statement offered for “the truth of the matter asserted[,]” Ind. Evidence Rule 801(c)(2), and is generally not admissible. Combs makes no argument regarding the admissibility of the hearsay statements pursuant to our rules of evidence.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 4 of 8 providers who treated C.S. for her injuries following the domestic battery. 2

Specifically, Combs appears to complain that those providers were permitted to

testify that, in the course of medical treatment, C.S. identified Combs as her

attacker. Our supreme court has acknowledged that the federal constitution

bars only “testimonial” hearsay statements, while statements made primarily

for a “non-testimonial” purpose do not violate the Confrontation Clause. Ward

v. State, 50 N.E.3d 752, 757 (Ind. 2016). In determining whether a statement is

testimonial, the court applies the “primary purpose test,” which involves a

determination of “whether, in light of all the circumstances, viewed objectively,

the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court

substitute for trial testimony.’” Id. at 759 (quoting Ohio v. Clark, 135 S. Ct. 2173,

2180 (2015)).

[8] Here, we have little difficulty concluding that the primary purpose of the

identification statements made during C.S.’s medical treatment was non-

testimonial. Indeed, this Court has recognized that due to the unique nature of

cases involving child abuse, sexual assault, and/or domestic violence,

identifying the attacker serves a primarily medical, not testimonial, purpose

because a “physician generally must know who the abuser was in order to

render proper treatment because the physician’s treatment will necessarily differ

2 The Confrontation Clause of the Sixth Amendment to the United States Constitution, which is made applicable to the States by the Fourteenth Amendment, provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....” U.S. CONST. amend. VI.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 5 of 8 when the abuser is a member of the victim’s family or household.” Id. (citing

Nash v. State, 754 N.E.2d 1021, 1025 (Ind. Ct. App. 2001)). Under the

circumstances presented, we conclude that C.S.’s statements to the medical

providers were non-testimonial and therefore did not run afoul of the

Confrontation Clause. 3

Section 2 – The trial court did not abuse its discretion in admitting C.S.’s prior sworn written statement. [9] Combs next asserts that the trial court abused its discretion in admitting a prior

sworn statement C.S. gave to police shortly after the attack in which she

identified him as her attacker. The trial court has broad discretion to rule on

the admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).

Generally, evidentiary rulings are reviewed for an abuse of discretion and

reversed when admission is clearly against the logic and effect of the facts and

circumstances. Id.

[10] Combs argues that C.S.’s prior sworn statement constituted inadmissible

hearsay. However, Indiana Evidence Rule 801(d)(1)(C) provides that a

statement is not hearsay if the declarant testifies and is subject to cross-

examination about a prior statement, and the statement is an identification of a

person shortly after perceiving the person. C.S.’s prior sworn statement was a

3 Combs mentions the Indiana Constitution but fails to set forth a separate argument on that basis. Consequently, the issue is waived. See Jackson v. State, 925 N.E.2d 369, 372 n.1 (Ind. 2010) (holding that defendant’s state constitutional claim was waived for failure to make a separate argument).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 6 of 8 statement of identification given to officers at the scene almost immediately

after perceiving Combs, and C.S. was available for cross-examination

concerning the statement during trial. The trial court did not abuse its

discretion in admitting the statement.

Section 2 – The State presented sufficient evidence to support the burglary conviction. [11] Combs challenges the sufficiency of the evidence supporting his level 4 felony

burglary conviction. When reviewing a claim of insufficient evidence, we

neither reweigh the evidence nor assess witness credibility. Bell v. State, 31

N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable

inferences drawn therefrom that support the conviction, and will affirm if there

is probative evidence from which a reasonable factfinder could have found the

defendant guilty beyond a reasonable doubt. Id. In short, if the testimony

believed by the trier of fact is enough to support the conviction, then the

reviewing court will not disturb it. Id. at 500.

[12] Indiana Code Section 35-43-2-1(1) provides that a person who breaks and enters

the dwelling of another person with intent to commit a felony therein commits

level 4 felony burglary. The State presented evidence to establish that after

Combs battered C.S., she climbed out her bedroom window and escaped to the

neighbors’ apartment. Combs then went to the neighbors’ apartment and

pounded on the locked door while yelling for C.S. Both neighbors testified that

Combs kicked in their door and then stepped inside the apartment onto their

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 7 of 8 linoleum floor. Combs did not have permission to enter the apartment and left

only after one of the neighbors confronted him with a weapon.

[13] Combs argues that the State failed to prove that he actually entered the

neighbors’ apartment, and he points to testimony from C.S. indicating that she

did not see him step inside. This is merely an invitation for this Court to

reweigh the evidence and reassess witness credibility on appeal, and we will

not. As noted above, both neighbors testified that Combs stepped inside, and it

was the jury’s prerogative to weigh any conflicting evidence on this issue.

[14] Combs further asserts that the State failed to prove that he entered the

neighbors’ apartment with the intent to commit a felony therein. It is well

settled that the “intent to commit a felony” element of burglary may be inferred

from the circumstances. Timmons v. State, 500 N.E.2d 1212, 1216 (Ind. 1986).

Here, Combs had just battered C.S., went searching for her, and then kicked in

the neighbors’ door while yelling her name. It was reasonable for the jury to

infer that Combs intended to enter the apartment and commit felony battery

against C.S. once inside. The State presented sufficient evidence to sustain

Combs’s conviction for level 4 felony burglary.

[15] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2231 | February 27, 2020 Page 8 of 8