MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 01 2018, 5:52 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brendan K. Lahey Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana
Chandra K. Hein Michael G. Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Reginald Blackburn, August 1, 2018 Appellant-Defendant, Court of Appeals Case No. 71A03-1709-CR-2056 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Julie Verheye, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D04-1705-CM-2067
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 1 of 14 Case Summary [1] Reginald Blackburn appeals his conviction and sentence for Class A
misdemeanor domestic battery. We affirm.
Issues [2] The issues before us are as follows:
I. whether the trial court erred in admitting evidence over Blackburn’s hearsay objections; and
II. whether sufficient evidence supports Blackburn’s conviction.
Facts [3] During the relevant period, Blackburn and C.W. were in a romantic
relationship and lived together in Mishawaka. On April 29, 2017, C.W.’s sister
called the Mishawaka Police Department to request a welfare check on C.W.
Officer Andrew Silveus was the first officer at the scene, and he observed
Blackburn and C.W. arguing. Officer Glenn Roach arrived at the scene. He
spoke with C.W. in the couple’s apartment and observed a small lump behind
her ear. C.W. told Officer Roach that she was five months pregnant and that
Blackburn had beaten and choked her. Officer Paul Robinson observed and
photographed C.W.’s injuries.1
1 Due to a technical issue, Officer Robinson’s photographs were unusable.
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 2 of 14 [4] On May 4, 2017, the State charged Blackburn with Class A misdemeanor
domestic battery. On August 10, 2017, he was tried to the bench. At trial,
C.W. testified that she was “exaggerat[ing]” when she told the officers, medical
responders, and an emergency room nurse that Blackburn had beaten and
choked her. Tr. Vol. I p. 5. She attributed a bruise or mark on her arm to
“wrestling over the phone or whatever” with Blackburn. Id. at 7.
[5] During the State’s case-in-chief, Officer Roach testified, over defense counsel’s
hearsay objection, that “[C.W.] said she got choked [by Blackburn] and that her
stomach hurt and that she was pregnant.” Id. at 30. The trial court overruled
Blackburn’s hearsay objection pursuant to Indiana Evidence Rule 801(D)(1)(C).
[6] Next, Officer Robinson testified that he observed and photographed “a slight
bump behind [C.W.’s] left ear toward the top of it,” but that the pictures “were
blurry or didn’t turn out.” Id. at 33.
[7] Emergency room nurse Nicole Hostetler testified that C.W. “was brought by
ambulance to [St. Joe Medical Center]” for medical treatment. Id. at 40.
When Nurse Hostetler met with C.W., Nurse Hostetler identified herself as a
registered nurse, asked questions of a medical nature, was wearing a “blue
scrub top and scrub pants,” and performed CAT scan and ultrasound imaging.
Id.
[8] During the State’s case-in-chief, the prosecutor asked Nurse Hostetler what
C.W. had told her about the incident. Defense counsel objected on hearsay
grounds, challenging whether Nurse Hostetler’s testimony fit within the Indiana
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 3 of 14 Evidence Rule 803(4) hearsay exception—as the State argued—and arguing
that Nurse Hostetler’s questioning of C.W. had been conducted for police
investigative purposes. After the trial court overruled the objection, Nurse
Hostetler testified as follows:
[C.W. said] [t]hat her and her baby’s daddy had been fighting. She thought – he had thought she was cheating on him and pretended to be someone else or a guy on Facebook and instant messaged her and they had been fighting all week. He kicked in her door and took her car and her keys – her car and her phone, excuse me. And she didn’t – she had said that she didn’t think that he was ever going to stop hitting her and he choked her to where she thought she was being choked for approximately three minutes.
Id. at 42. A physical examination of C.W. revealed “abrasions to her left arm,
the back of her neck on the right side,” “an abrasion, bump behind her left ear,”
and “hair that looked like it had been pulled.” Id. at 43. C.W.’s statements to
Nurse Hostetler prompted a CAT scan for permanent damage to the choroidal
arteries and an ultrasound to confirm and assess the pregnancy.
[9] At the close of the evidence, the trial court found Blackburn guilty as charged
and made the following sentencing remarks:
THE COURT: . . . I am going to find Mr. Blackburn guilty. I do believe that the testimony that was offered through [C.W.] today represents somewhat of a backtracking, actually quite a bit of backtracking from what she originally told the police and the other medical personnel on this particular evening.
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 4 of 14 We do have, you know, the testimony from those witnesses regarding the visibly [sic] physical injuries that they observed. She told the nurse that she was choked, and the nurse observed abrasions on her arm, back of her neck, bump above her ear which the officer . . . testified . . . that he attempted to photograph as well. And based upon the information that she gave to the nurse, that’s why the CT scan was done, that’s why the ultrasound was done.
And even if I take her at what she said as being the description of what happened, certainly I think, you know, she had a cell phone in her hand, [Blackburn] was trying to take it away from her. She obviously didn’t want her cell phone taken away from her. So regardless of which set of circumstances, and I believe it’s quite frankly what she told the police and the emergency responders on April 29th is that she was touched, she was touched in a rude, insolent or angry manner, and Mr. Blackburn was a family or household member based upon [C.W.]’s testimony as well that they lived together at this apartment.
Id. at 52-53. The trial court then sentenced Blackburn to ninety days in jail, all
suspended to probation, ordered his participation in a batterers’ intervention
program, and entered a domestic violence determination against him.
Blackburn now appeals.
Analysis I. Admissibility of Evidence
[10] Blackburn argues that the trial court erred in allowing “multiple [instances] of
inadmissible hearsay” evidence over his objections. Appellant’s Br. p. 15. A
trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010), trans. denied Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 5 of 14 (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)). An abuse of
discretion occurs if the trial court’s decision is “clearly against the logic and
effect of the facts and circumstances before the court, or if the court has
misinterpreted the law.” Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App.
2010).
[11] Hearsay is an out-of-court statement offered in court to prove the truth of the
matter asserted. Jones v. State, 800 N.E.2d 624, 627-28 (Ind. Ct. App. 2003)
(citing Ind. Evidence Rule 801(c)). As a general rule, hearsay evidence is
inadmissible. Id. (citing Evid. R. 802). Hearsay is not admissible in evidence
unless a recognized exception applies. Evid. R. 802. These exceptions are
enumerated by Indiana Rule of Evidence 803. Statements not admitted to
prove the truth of the matter do not run afoul of the hearsay rule—they are not
hearsay. Evid. R. 802.
1. Prior Identification Made Shortly After Perceiving
[12] Blackburn argues that the trial court abused its discretion in admitting C.W.’s
statement to Officer Roach identifying him as the person who caused her
injuries. The statement was made as follows on direct examination of Office
Roach:
Q * * * * * And did [C.W.] say who caused her injuries?
[Defense counsel]: Objection, Your Honor. Hearsay.
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 6 of 14 [Prosecutor]: Your Honor, it’s not hearsay under 801 (D)(1)(C), a prior identification of a person made shortly after perceiving. The declarant testified at trial and was subject to cross-examination.
THE COURT: Objection is overruled.
Q Did she state who caused her injuries?
A Mr. Blackburn.
Tr. p. 30.
[13] Evidence Rule 801(d)(1)(C) provides that “a statement is not hearsay if the
declarant testifies in court, is subject to cross-examination about a prior
statement, and the statement ‘is an identification of a person shortly after
perceiving the person.’” See Kendall v. State, 790 N.E.2d 122, 127-28 (Ind. Ct.
App. 2003) (witness’s prior statement to police identifying defendant as driver
of car used in crime was admissible as substantive evidence under Evidence
Rule 801(d)(1)(C) where witness recanted her prior identification statement at
trial identifying defendant); see also Robinson v. State, 682 N.E.2d 806, 810 (Ind.
Ct. App. 1997) (no error in allowing police detective to testify regarding
witness’s identification of defendant where witness testified at trial and recanted
his prior identification statement and claimed that his prior statement to police
was a fabrication).
[14] Here, the record reveals that, on arriving at the scene, Officer Roach
interviewed C.W., who identified Blackburn as the person who battered her.
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 7 of 14 Because C.W. made the statement after Officer Roach arrived and before she
was transported to the hospital, we find that the statement was an identification
made shortly after C.W. perceived Blackburn. Because C.W. testified at trial—
albeit to recant—and was available for cross-examination by defense counsel,
the court did not abuse its discretion in admitting into evidence her prior
identification of Blackburn as her batterer.
2. Statement for Medical Diagnosis or Treatment
[15] Next, Blackburn contends the trial court erred in admitting, over his hearsay
objection, Nurse Hostetler’s testimony regarding the events that brought C.W.
to the emergency room. Tr. Vol. I p. 42 (“[C.W. said] she didn’t think that
[Blackburn] was ever going to stop hitting her and he choked her to where she
thought she was being choked for approximately three minutes.”). Defense
counsel argued that C.W. believed that Nurse Hostetler was a law enforcement
officer, and that Nurse Hostetler was questioning her for investigative law
enforcement, rather than medical, purposes. Counsel for the State countered
that C.W.’s statement fell within Indiana Evidence Rule 803(4).
[16] Indiana Evidence Rule 803(4) generally permits statements made for the
purpose of medical diagnosis or treatment to be admitted into evidence, even
when the declarant is available. The statements must be “made by persons who
are seeking medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent
to diagnosis or treatment.” Id. Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 8 of 14 [17] Rule 803(4)’s exception is grounded in a belief that the declarant’s self-interest
in obtaining proper medical treatment makes such a statement reliable enough
for admission at trial; stated differently, Rule 803(4) reflects the idea that people
are unlikely to lie to their doctors as doing so might jeopardize their health. See
White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (“a statement made in
the course of procuring medical services, where the declarant knows that a false
statement may cause misdiagnosis or mistreatment, carries special guarantees of
credibility”). We employ a two-step test for purposes of admission under Rule
803(4): First, “is the declarant motivated to provide truthful information . . . to
promote diagnosis and treatment,” and second, “is the content of the statement
such that an expert in the field would reasonably rely on it in rendering
diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).
[18] Here, Nurse Hostetler testified that C.W. was transported to the St. Joe Medical
Center emergency room because she was reportedly pregnant and had just been
involved in a physical altercation. Applying the two-step McClain test, we find
that C.W. was likely anxious after she was transported to the hospital and,
further, that her desire to seek and receive treatment may certainly be inferred
under the circumstances. Moreover, the information that C.W. provided about
being struck repeatedly and choked for approximately three minutes is
information that a medical expert would reasonably rely upon in diagnosing or
treating a pregnant battery victim.
[19] As with C.W.’s “backtracking” at trial, it was the province of the trial court to
assess the credibility of her testimony that she believed, at the time of their
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 9 of 14 meeting, that Nurse Hostetler was a police officer who was “just taking
ultrasound.” Tr. p. 7. The record reveals that when they met, Hostetler wore
blue scrubs, identified herself to C.W. as a registered nurse, questioned C.W.
regarding her physical health, performed a “head to toe” physical exam of
C.W., and administered a CAT scan and an ultrasound upon being advised by
C.W. that she was pregnant and that she had been choked for approximately
three minutes. Based on the foregoing, we conclude that the trial court did not
abuse its discretion in admitting C.W.’s statement to Nurse Hostetler.
3. Declarant’s Then-Existing State of Mind
[20] Lastly, Blackburn argues that the trial court erred in admitting, over his hearsay
objections, Officer Roach’s response to the prosecutor’s question, “Did [C.W.]
make any statements concerning her physical condition?” Id. at 29. Officer
Roach responded that “[C.W.] said she got choked [by Blackburn] and that her
stomach hurt and that she was pregnant.” Id. at 30. Counsel for the State
argued, and the trial court agreed, that C.W.’s statement to Officer Roach fell
within hearsay exception Indiana Evidence Rule 803(3). 2
2 In his brief, Blackburn contends that admission of C.W.’s hearsay statement to Officer Roach violated his Sixth Amendment right to confront the witness against him. In Crawford v. Washington, 541 U.S. 36, 124 S. Ct 1354 (2004), the United States Supreme Court considered whether an out-of-court statement, which was admitted pursuant to a hearsay exception or because it met some other guarantee of trustworthiness, violated a criminal defendant’s Sixth Amendment right to confront witnesses against him when the declarant is unavailable. Blackburn’s reliance on Crawford is misplaced here because C.W. testified at trial. Id. at 59 n.9, 1369 n.9 (holding that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements”).
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 10 of 14 [21] Our Supreme Court has recognized that a statement of a declarant’s then-
existing state of mind is admissible as an exception to the hearsay rule. Evid.
R. 803(3); see Ford v. State, 704 N.E.2d 457, 459-60 (Ind. 1998). However, when
the statement is not a direct assertion of the declarant’s then-existing state of
mind but circumstantial evidence of it, it is being offered not to prove the truth
of the matter asserted, but for some other purpose; thus, the statement by
definition is not hearsay. See Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997);
13, Robert Lowell Miller, Jr., INDIANA PRACTICE § 803.103A at 613-14
(noting that when a declarant’s statement is offered as circumstantial evidence
of the victim’s state of mind, it is offered for a purpose other than to prove the
truth of the matter asserted, and therefore, is not hearsay). Accordingly, in such
circumstance, the evidence need not be shown to be within an exception to the
hearsay rule.
[22] Here, it is difficult to imagine how Officer Roach’s testimony that C.W. said
that “she got choked [by Blackburn] and that her stomach hurt and that she was
pregnant” could be admitted for some purpose other than the truth of the
matter asserted. Although the argument may reasonably be made that the
statement was offered to explain physical injuries suffered at Blackburn’s hands,
see Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000), we are not persuaded
here, in part, due to C.W.’s backtracking at trial. We find instead that the State
offered C.W.’s statement for the truth of the matter asserted; thus, C.W.’s
utterance to Officer Roach is hearsay. Although Blackburn’s hearsay objection
should have been sustained in this regard, the erroneous admission of this
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 11 of 14 utterance was nonetheless harmless because the State presented independent
evidence that Blackburn battered C.W. through Nurse Hostetler’s testimony
and circumstantial evidence of C.W.’s injury/injuries as observed by three
testifying witnesses. See Fleener v. State, 656 N.E.2d 1140 (Ind. 1995); Ind. Trial
Rule 61.
II. Sufficiency of Evidence
[23] Blackburn argues that the evidence was insufficient to support his conviction.
Specifically, he argues that “there was testimony offered which directly
contradicted several essential elements of the charge, but which was still noted
by the trial court as supporting a conviction.” Appellant’s Br. p. 6.
When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence— even if conflicting—and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. We affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (citations and quotation
omitted). “The factfinder is obliged to determine not only whom to believe, but
also what portions of conflicting testimony to believe, and is not required to
believe a witness’[s] testimony even when it is uncontradicted.” Wood v. State,
999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013) (citation omitted).
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 12 of 14 [24] “The State need not present direct evidence to support each element of a crime,
and it has long been held that circumstantial evidence will support a
conviction.” Semenick v. State, 977 N.E.2d 7, 15 (Ind. Ct. App. 2012) (emphasis
removed). Direct evidence has been defined as “[e]vidence that is based on
personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” BLACK’S LAW DICTIONARY (10th ed. 2014).
Circumstantial evidence has been defined as “[e]vidence based on inference and
not on personal knowledge or observation” or as “[a]ll evidence that is not
given by eyewitness testimony.” Id. A conviction may rest on circumstantial
evidence alone. Peters v. State, 959 N.E.2d 347, 355 (Ind. Ct. App. 2011).
Circumstantial evidence need not overcome every reasonable hypothesis of
innocence; it is sufficient if an inference drawn from the circumstantial evidence
reasonably tends to support the conviction. Id.
[25] To convict Blackburn of Class A misdemeanor domestic battery, the State was
required to prove that he knowingly or intentionally touched C.W. in a rude,
insolent, or angry manner resulting in bodily injury, and that C.W. was living
with Blackburn as if she were his spouse. Ind. Code § 35-42-2-1.3.
[26] Here, when the police responded to the scene, Blackburn and C.W. were
arguing heatedly. Officers Roach and Robinson each observed a bump behind
C.W.’s ear. Attending ER Nurse Hostetler saw “abrasions to [C.W.’s] left arm,
the back of her neck on the right side,” the “bump behind her left ear,” and
“hair that looked like it had been pulled.” Tr. p. 42. At trial, the court
admitted, as substantive evidence, C.W.’s statement to Nurse Hostetler that
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 13 of 14 “she didn’t think that [Blackburn] was ever going to stop hitting her and he
choked her to where she thought she was being choked for approximately three
minutes.” Id.
[27] Based upon C.W.’s account to Nurse Hostetler and her injuries as observed by
Officers Roach and Robinson and Nurse Hostetler, a reasonable factfinder
could find beyond a reasonable doubt that Blackburn knowingly or
intentionally touched C.W. in a rude, insolent, or angry manner by hitting and
choking her, which resulted in physical pain. Blackburn’s arguments that C.W.
later denied being battered, recanted her accusations, and offered an alternate
explanation for her injuries amount to an invitation to reweigh conflicting
evidence, which we cannot do. See Bailey, 979 N.E.2d at 135.
Conclusion [28] The trial court did not abuse its discretion in admitting evidence. Sufficient
evidence supports Blackburn’s conviction. We affirm.
[29] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018 Page 14 of 14