Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                        Apr 24 2014, 9:46 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARK SMALL                                       GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 KARL SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CHARLES K.CORN,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 84A01-1304-CR-161
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable John T. Roach, Judge
                              Cause No. 84D01-1209-FB-2978




                                       April 24, 2014



                MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                       Case Summary and Issues

        Following a jury trial, Charles Corn was convicted of aggravated battery, a Class

B felony. Corn raises two issues on appeal which we restate as: 1) whether comments at

trial on Corn’s invocation of his right to an attorney and subsequent silence amounted to

fundamental error, and 2) whether the State presented sufficient evidence to disprove

Corn’s claim of self-defense. Concluding any reference to Corn’s silence was harmless

and the State sufficiently disproved Corn’s claim of self-defense, we affirm.

                                    Facts and Procedural History1

        Corn resided on Donald Clark’s property in Terre Haute. Clark allowed Corn to

pitch a tent against the backside of Clark’s house and use the kitchen, utensils, and

bathroom in the house as needed. Corn, without Clark’s permission, connected a jump

wire to route electricity to his tent. On September 8, 2012, Clark asked James Brown to

talk to Corn about removing the wire. Around 4 p.m. that day, Brown confronted Corn

about the wire. Corn, who had been drinking from a gallon-sized jug of vodka all day,

started yelling profanities at Brown for getting involved. The altercation soon became

physical, and Brown “knocked the crap” out of Corn. Transcript at 319. Another man

interceded and convinced Brown to stop. As Corn was walking back to his tent, he

continued to yell profanities at Brown and called Brown a “bastard,” id. at 449, at which

point Brown knocked Corn to the ground and kicked him at least once or twice. The

fight ended, and the two shook hands then went their separate ways.




          1
            We held oral argument on this matter on March 27, 2014, at Indiana State University. We thank the
faculty, staff, and students for their hospitality and commend counsel for the quality of their oral advocacy.
                                                      2
      About four hours later, around 8:30 p.m., Clark and Brown were sitting in Clark’s

parked van in the driveway. Corn approached Clark to talk and then saw that Brown was

seated in the passenger seat. Corn asked to speak to Brown, and Brown made a comment

to the effect of, “[W]ell, you want some more of what you got earlier,” id. at 321, while

approaching Corn very quickly. Brown did not have his fists up or any weapons on him

when he approached Corn. Corn had an eight inch kitchen knife in his hand and stabbed

Brown in the stomach before anyone could react. After he was stabbed, Brown grabbed a

gun from the van but switched to a sledge hammer when he realized the gun was

unloaded. Brown tried to swing the sledge hammer a couple times but dropped it as he

walked towards his sister’s house across the alley.                           Corn and Robert King, an

acquaintance who happened to be at Clark’s house, got into Clark’s van, and Clark drove

the two men to Taylorsville before returning home.2 Clark only drove the men because

Corn still was holding the jug of vodka and the knife, and Clark was concerned about

what Corn would do if he refused.                    Police found Corn walking down a street in

Taylorsville with the bloody kitchen knife stuck in his front pocket. Corn was arrested,

and reported no physical injuries or pain from either the afternoon or evening fight that

needed to be evaluated by medical staff when he was booked at the jail.

      On September 11, 2012, the State charged Corn with aggravated battery. Corn

was tried before a jury on February 25-27, 2013, and he was found guilty as charged.

Corn now appeals. Additional facts will be provided as necessary.




      2
          King was trying to get Clark to take him to Taylorsville before the stabbing occurred.
                                                         3
                                 Discussion and Decision

                                   I. Doyle Violation

                                 A. Standard of Review

      Corn argues statements by Detective Long, defense counsel, and the prosecutor

during direct examination, cross-examination, and closing argument, respectively,

improperly commented on his right to silence in violation of Doyle v. Ohio, 426 U.S. 610

(1976), and were so prejudicial as to warrant relief. In Doyle, the Supreme Court held

that “the use for impeachment purposes of petitioners’ silence, at the time of arrest and

after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth

Amendment.” Id. at 619. However, it is not an error when the jury is aware of the

defendant’s invocation of his right to remain silent when that knowledge is not used to

subvert the defense. Mendenhall v. State, 963 N.E.2d 553, 565 (Ind. Ct. App. 2012),

trans. denied. Since Corn did not object at trial, he relies on the extremely narrow

doctrine of fundamental error.

      A fundamental error is a substantial, blatant violation of basic principles of
      due process rendering the trial unfair to the defendant. It applies only when
      the actual or potential harm cannot be denied. The error must be so
      prejudicial to the rights of a defendant as to make a fair trial impossible.


Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002) (citations and internal quotations

omitted). A Doyle violation is inherently prejudicial, so reversal is the norm rather than

the exception. Teague v. State, 891 N.E.2d 1121, 1126 (Ind. Ct. App. 2008). “An error

of this type is harmless only when the court, after assessing the record to determine the

probable impact of the improper evidence on the jury, can conclude beyond a reasonable

doubt that the error did not influence the jury’s verdict.” Id. Our supreme court has
                                            4
adopted a non-exclusive, five-factor test to determine whether the Doyle violation is

harmless: 1) the use to which the prosecution puts the post-arrest silence; 2) who elected

to pursue the line of questioning; 3) the quantum of other evidence indicative of guilt; 4)

the intensity and frequency of the reference; and 5) the availability to the trial judge of an

opportunity to grant a motion for mistrial or to give curative instructions. Bieghler v.

State, 481 N.E.2d 78, 92 (Ind.1985), cert. denied, 475 U.S. 1031 (1986).

              B. Comments on Corn’s Post-Arrest Silence During Case-in-Chief

        During the State’s case-in-chief, the State had the following exchange with

Detective Long:

        Q:       Did you also interview the defendant Charles Corn and see him after
                 he was arrested?
        A:       I did not have the opportunity to interview him. I went in and spoke
                 to him and he advised me at that point he wanted an attorney, so I
                 wasn’t allowed to ask him any further questions, but yes I did
                 observe him and speak to him in that manner.

Tr. at 570-71. Defense counsel followed up on those questions on cross-examination with

the following:3

        Q:       You were not the one that interviewed [Corn]?
        A:       No, I said I did attempt to interview him, but –
        Q:       But he asked for an attorney.
        A:       That’s correct.

Tr. at 575. Corn contends that as a whole, this was an improper line of questioning and

the prejudice was great because the court failed to give curative jury instructions

regarding the right to remain silent. The State argues it was not using this comment to



        3
          The State argues that these statements on cross-examination were invited error, and that invited error is
not a fundamental error. Brief of the Appellee at 9. In the context of this case, we decline to find the curative
statements made by defense counsel on cross-examination after the State had commented on Corn’s silence, with the
same witness, as invited error.
                                                        5
impeach Corn; rather, this line of questioning was elicited to show Corn had no visible

injuries from the afternoon fight, and thus discredit his claim of self-defense:

       Q:     Did you inspect him, see him, examine him from the standpoint of
              looking at him at that time?
       A:     Yes. I was in the same small room with him.
       Q:     Tell me whether he showed any outward signs of injury on his face,
              arms, hands, anything you could see that indicated there was any
              evidence of an injury that was visible to you.
       A:     I did not see any visible injuries at all.

Tr. at 571. We agree with Corn that the State’s question constituted a Doyle violation.

Despite the State’s argument that the question was actually if the detective had seen Corn

and was able to observe any injury, that is not what was asked.              The error was

compounded by defense counsel’s follow up question. We now must consider these

statements in the context of the Bieghler factors to determine whether the admission of

such statements was harmless.

                                           1. Use

       The comments were not used to impeach Corn’s exculpatory testimony. Detective

Long’s testimony was to explain his knowledge that Corn was not injured or complaining

of injury when he was booked into jail, and defense counsel’s cross-examination was a

follow-up to the State’s question.

                          2. Who Elected to Pursue Questioning

       The statements made during Detective Long’s examination were made by both the

State and defense, and each side made the statements once.




                                              6
                          3. Quantum of Other Evidence of Guilt

       It is undisputed that Corn stabbed Brown; the case was simply a matter of self-

defense. There was ample other evidence of Corn’s guilt, including testimony from

several witnesses.

                       4. Intensity and Frequency of the Reference

       The references to Corn’s silence were brief and made in passing. Both sides, in

questioning Detective Long, made one reference to Corn asking for an attorney, and then

moved on with their questioning without revisiting the topic. In the context of a three-

day trial, the references were infrequent and very slight.

                       5. Opportunity to Give Curative Instructions

       Corn did not request a mistrial based on these statements. He had the opportunity

to present curative final instructions to the jury. Corn raised his concerns about the

statements to the trial court and asked if there was a pattern jury instruction that an

inference of guilt could not be made from the fact that the defendant asked for an

attorney. The court was willing to offer an instruction but found no such pattern in its

own search. The court also offered to give an appropriate instruction supported by case

law if Corn provided one. The State agreed that such an instruction would be appropriate

and that if Corn wanted to argue that position during closing arguments, the State would

not argue the contrary position. Corn did not present any such instruction for the court’s

review, nor did he make any statements during closing arguments to this effect. The

instruction was therefore not given.

       Given the infrequency of the statements, the relatively minor references, the

opportunity for Corn to give curative instructions to the jury and opportunity to advance
                                              7
any argument in closing argument on the topic, the Doyle violation during the State’s

case-in-chief, compounded by defense counsel’s follow up, question was harmless.

                           C. Comments During Closing Arguments

       Corn also makes an argument that part of the prosecutor’s closing argument

amounted to a Doyle violation. In closing, the prosecutor stated:

       [Corn] wants your sympathy. He wants you to think that he was hurt so
       bad, it justifies virtually killing somebody. He, he’s a fraud. He’s made
       this up as a defense saying, I was so injured that I couldn’t do anything but
       stab the guy back. That’s the defense argument in this case. Said I
       couldn’t possibly defend myself because I was so impaired I couldn’t do
       anything but kill him or stab him. . . . He’s saying, I’m going to get him.
       I’m going to kill him. That’s what he was saying. And he just about did.

Tr. at 786. These statements do not amount to a Doyle violation. The references to

Corn’s defense are based on Corn’s theory of the case: that Corn was beat up earlier in

the day by Brown, so he reasonably feared great bodily injury during the confrontation at

night; this then justified Corn’s use of self-defense. Further, the comment of “I’m going

to get him. I’m going to kill him,” was a recap of Robert King’s testimony at trial, though

inartfully worded since it did not attribute the statements to the witness. Since neither of

these statements improperly commented on Corn’s silence for impeachment purposes,

there was no Doyle violation.

                                      II. Self-Defense

                                  A. Standard of Review

       Corn next argues the State failed to rebut his claim of self-defense. Our standard

of review is as follows:

       The standard of review for a challenge to the sufficiency of the evidence to
       rebut a claim of self defense is the same as the standard for any sufficiency
       of the evidence claim. We do not reweigh the evidence or judge the
                                             8
         credibility of the witnesses. We consider only the probative evidence and
         reasonable inferences drawn from the evidence that support the verdict. If a
         defendant is convicted despite a claim of self defense, we reverse only if no
         reasonable person could say that self defense was negated by the State
         beyond a reasonable doubt.

Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013) (citations omitted), trans.

denied.

                               B. Corn’s Self-Defense Claim

         To prevail on a claim of self-defense, Corn had to present evidence that he: (1)

was in a place he had a right to be; (2) did not provoke, instigate, or participate willingly

in the violence; and (3) had a reasonable fear of death or great bodily harm. Id. The

State then had the burden of disproving at least one of the elements beyond a reasonable

doubt. Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012), trans. denied.

         It is undisputed that Corn had the right to be on Clark’s property that night. Corn

argues that he did not provoke, instigate, or participate willingly in the violence because

Corn simply stated he wanted to talk to Brown, and Brown instigated by saying

something like “[W]ell, you want some more of what you got earlier.” Tr. at 321. Corn

also argues that he had a reasonable fear of death or great bodily harm because Brown is

much larger, Corn has a number of health issues, and Brown had already beaten him up

that day.

         Corn has not met the high burden of proving no reasonable person could say the

State failed to disprove at least one of the elements of self-defense beyond a reasonable

doubt.      A reasonable person could have determined Corn provoked, instigated, or

willingly participated in the evening fight. The State offered several witnesses who

testified about the stabbing and Corn calling Brown out of the van. Witnesses also
                                              9
testified about seeing no physical threat from Brown before Corn stabbed him.           A

reasonable person could also have concluded the State proved beyond a reasonable doubt

it was unreasonable for Corn to fear great bodily harm or death, because even if Brown

did intend to give Corn “some more of what [he] got earlier,” tr. at 321, the fight, like

those in the afternoon, would not be so severe as for Corn to need medical attention or be

motivated to call the police.

                                       Conclusion

       Concluding any reference to Corn’s silence was harmless and the State sufficiently

disproved Corn’s claim of self-defense, we affirm.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




                                           10
