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
