Tamika Ballance v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 16, 2020
• Docket: 20A-CR-1312
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing FILED the defense of res judicata, collateral Dec 16 2020, 9:15 am estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Frederick Vaiana Megan M. Smith Voyles Vaiana Lukemeyer Baldwin & Deputy Attorney General Webb Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tamika Ballance, December 16, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-CR-1312 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela D. Davis, Appellee-Defendant. Judge The Honorable H. Patrick Murphy, Magistrate Trial Court Cause No. 49G16-2001-F6-1290

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 1 of 6 Case Summary [1] Tamika Ballance was involved in an altercation at the IndyGo bus terminal,

during which she bit Diane Ford. Though Ford was not present at trial, a

security officer who observed the incident, testified as to the victim’s identity

and Ballance was convicted of Class B misdemeanor battery. On appeal,

Ballance claims that the in-court identification of the victim constituted a

fundamental error and that there was insufficient evidence to sustain the

conviction. Because we disagree, we affirm.

Facts and Procedural History [2] On January 10, 2020, Ballance and Ford were involved in an altercation at the

IndyGo bus terminal (Tr. 4-5). During that altercation, Ballance bit Ford on

the wrist and attempted to pull a phone from Ford’s hands. Ballance was

charged with Level 6 felony domestic battery and Class A misdemeanor theft

(App. Vol. II, 31). Ford was not present at Balance’s trial which was held on

June 22, 2020. Isiah Hagemeyer, a security officer who observed the altercation

and Ballance bite Ford, was the only witness to testify (Tr. 3). While testifying,

Hagemeyer could not initially recall the name of the victim (Tr. 6). The State

entered a photo of the alleged victim, taken at the IndyGo bus terminal on the

day of the incident, which Hagemeyer identified to be the victim (Tr. 6).

Hagemeyer testified that he would have written up a report about the incident

and asked for the victim’s name before writing the report (Tr. 7). The State

then introduced Ford’s certified driver’s record from the Bureau of Motor

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 2 of 6 Vehicles (“BMV”), which contained a photograph of Ford. (Tr. 7-8; State’s Ex.

2). After reviewing Ford’s driver’s record, Hagemeyer identified Ford as the

same woman Ballance bit and stated he recognized Ford’s name as the name of

the victim (Tr. 8). Ballance made no objections to Hagemeyer’s identification

or to the State’s exhibits (Tr. 7-8). The trial court found that the State had failed

to provide any evidence of a domestic relationship between Ballance and Ford

or sufficient evidence of theft. However, the trial court found that the State had

proven that Ballance had committed the lesser-included offense of Class B

misdemeanor battery (Tr. 14-16).

Discussion and Decision I. Fundamental Error [3] “The decision to admit or exclude evidence at trial is squarely within a trial

court’s discretion and should be afforded great deference on appeal.” Carpenter

v. State, 786 N.E.2d 696, 702 (Ind. 2003). We will only “disturb [a trial court’s]

rulings only where it is shown that the court abused its discretion.” Camm v.

State, 908 N.E.2d 215, 225 (Ind. 2009). “A claim that has been waived by a

defendant’s failure to raise a contemporaneous objection can be reviewed on

appeal if the reviewing court determines that a fundamental error has

occurred.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). “The ‘fundamental

error’ exception is extremely narrow and applies only when the error constitutes

a blatant violation of basic principles, the harm or potential harm is substantial,

and the resulting error denies the defendant fundamental due process.”

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 3 of 6 Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (quoting Boesch v. State, 778

N.E.2d 1276, 1279 (Ind. 2002)). The error may also be fundamental when it

“make[s] a fair trial impossible.” Brown, 929 N.E.2d at 207 (quoting Clark v.

State, 915 N.E.2d 126, 131 (Ind. 2009) (internal quotations omitted).

[4] No fundamental error occurred during Ballance’s trial. “[A] degree of

suggestiveness is inherent in all in court identifications;” however, “[w]hether a

particular identification procedure rises to a level of suggestiveness that

constitutes reversible error must be determined from the context of the case.”

Emerson v. State, 724 N.E.2d 605, 609 (Ind. 2000). There is no fundamental

error simply because Hagemeyer could not initially recall the victim’s name or

because the evidence introduced to identify the victim was supplied by the

prosecutor. Ballance also argues that this method of in-court identification is

too suggestive, due in part to the limited amount of exhibits upon which the

prosecution relied in making their case. We disagree. Despite Ford not being

present at trial, Hagemeyer was able to use a photo of the victim taken at the

IndyGo bus station on the day of the altercation, Ford’s certified driver’s record

from the BMV, and identify that Ford was the victim he saw Ballance bite.

Hagemeyer’s identification of Ford was proper, and did not constitute error, let

alone a fundamental error.

II. Sufficiency of the Evidence [5] “When reviewing the sufficiency of the evidence to support a conviction,

‘appellate courts must consider only the probative evidence and the reasonable

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 4 of 6 inferences supporting the verdict.’” Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)) (emphasis in

original). A conviction will be affirmed unless, after considering all the

evidence and reasonable inferences favorable to the judgement, we conclude

that no reasonable fact finder could find the elements of the crime proven

beyond a reasonable doubt. See Abney v. State, 858 N.E.2d 226, 228 (Ind. Ct.

App. 2006). Further, “[a] verdict will be sustained based on circumstantial

evidence alone if the circumstantial evidence supports a reasonable inference of

guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000). This standard of review

does not permit us to reweigh the evidence or allow us to judge the credibility of

the witnesses. McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018).

[6] The trial court found that the State’s evidence was insufficient to convict

Balance of either theft or domestic battery. However, the trial court did find

sufficient evidence supported Ballance’s conviction for Class B misdemeanor

battery.1 Indiana Code section 35-42-2-1 states “a person who knowingly or

intentionally: touches another person in a rude, insolent, or angry manner[,]”

commits battery. Hagemeyer testified that he observed Ballance bite Ford –

identifying both during his testimony. “Testimony of a single eyewitness is

sufficient to sustain a conviction.” Hubbard v. State, 719 N.E.2d 1219, 1219

(Ind. 1999). We view Ballance’s argument that Hagemeyer’s testimony alone is

1 See Jones v. State, 976 N.E.2d 1271, 1276–1277 (Ind. Ct. App. 2012) (stating that battery is a lesser included offense of domestic battery).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 5 of 6 insufficient as an invitation to reweigh the evidence, which we will not do. See

McCallister, 91 N.E.3d at 558.

[7] The judgment of the trial court is affirmed.

Kirsch, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 6 of 6