MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Jan 31 2020, 9:34 am
the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher J. Evans                                     Curtis T. Hill, Jr.
Dollard Evans Whalin LLP                                 Attorney General of Indiana
Noblesville, Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jada Nichole Russell,                                    January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1941
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Dennis D. Carroll,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         29D04-1811-CM-8285



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020              Page 1 of 8
                                          Case Summary
[1]   On November 19, 2018, Jada Russell initiated a physical altercation with

      Sevynith Carter and Meg Roberts. She was subsequently charged with Class A

      misdemeanor battery and Class B misdemeanor battery. Steve Dillon testified

      during Russell’s bench trial that he observed Russell fighting with Roberts. On

      cross-examination, Russell attempted to impeach Dillon’s credibility by

      questioning him about a prior inconsistent statement that he allegedly made to

      police. After the parties had rested and the evidentiary portion of the case had

      been closed, Russell requested that the trial court reopen the case so that she

      could recall Dillon and attempt to further impeach his credibility. The trial

      court denied this request, found Russell guilty as charged, and imposed an

      aggregate 545-day sentence. Russell contends that the trial court abused its

      discretion in denying her request to reopen the case. We affirm.



                            Facts and Procedural History
[2]   On November 19, 2018, Carter and Roberts were students at the Excel Center,

      an alternative high school for teenagers and adults, in Noblesville. The Excel

      Center shared a building with the Noblesville branch of Ivy Tech Community

      College. On that day, Carter and Roberts were sitting in Carter’s vehicle in the

      school’s parking lot. The two friends sat “talking for about an hour” before

      interacting with anyone else. Tr. p. 12.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 2 of 8
[3]   Russell was a student at Ivy Tech and an acquaintance of Roberts. At some

      point, Russell approached the passenger side of Carter’s vehicle and initiated a

      heated conversation with Roberts through the slightly-opened window. Russell

      “was really irritated and angry” at Roberts. Tr. p. 61.


[4]   As Russell continued yelling at Roberts, Carter told Russell that she “need[ed]

      to leave.” Tr. p. 13. Russell continued yelling as Carter “stepped out of [her]

      vehicle” and repeated that Russell “need[ed] to leave.” Tr. p. 13. Russell did

      not leave, but rather “walk[ed] around to the driver’s side of [Carter’s] vehicle”

      and attempted to enter Carter’s vehicle headfirst, “like she was going to crawl

      over [the] driver’s seat to the passenger side.” Tr. p. 14. Carter “wedged”

      herself between the vehicle and Russell, pushed Russell away from the vehicle,

      told Russel not to touch her vehicle, and again indicated that Russell “need[ed]

      to leave.” Tr. p. 14. Russell did not leave but went back around to the

      passenger side of the vehicle after Roberts got out of the vehicle. Russell

      “reached out and grabbed [Roberts] by the hair and was pushing her against

      [Carter’s] car door.” Tr. p. 14.


[5]   In an attempt to protect her friend, Carter tried to stop the fight, grabbing

      Russell and telling her to “let go” of Roberts. Tr. p. 14. Russell responded by

      “reach[ing] her other hand around and grabb[ing] [Carter] by the hair.” Tr. p.

      14. Roberts eventually “got away” after the three women fell to the ground and

      Russell got “on top of” Carter. Tr. p. 14. After Carter and Russell “managed

      to get back up,” Russell held onto Carter “by the hair and started hitting [her] in

      the face … between five and eight times.” Tr. p. 15. While Russell was

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 3 of 8
      “beating the sh[**] out of” Carter, Carter removed her shoe and hit Russell with

      it. Tr. p. 41. Russell eventually let go of Carter and “went back after” Roberts.

      Tr. p. 15.


[6]   Russell “aggressively [swung Roberts] around trying to pull her one direction,

      pull her another direction.” Tr. p. 15. Carter again tried to separate Russell

      and Roberts. Russell “reached into [Carter’s] car and pulled [her] phone out of

      [her] car and slammed it to the ground and shattered the whole backside of

      [the] phone.” Tr. pp. 15–16. Russell grabbed Carter but released her and “went

      after [Roberts] again.” Tr. p. 16.


[7]   After being informed by a teacher that there was a fight occurring in the parking

      lot, Dillon, the director of the Excel Center, “went out to the parking lot” and

      observed Russell and Roberts “engaged in a fight.” Tr. p. 101. He opined that

      “[i]t wasn’t much of a fight because [Russell] was doing most of the fighting,

      most of the hitting at that time” as Roberts “was on the ground and [Russell]

      was striking her while she was on the ground.” Tr. pp. 101–02. Carter was “off

      to the side” standing “very close to the fight” but was not engaged in the fight.

      Tr. p. 102. The fight ended soon after Dillon “called out for them to stop

      fighting.” Tr. p. 102.


[8]   The police arrived and took statements from Carter and Roberts. An EMT was

      called to examine Carter, who had “scrapes and bruises and a little bit of

      bleeding on [her] knees from falling and then there was a chunk of [her] hair

      missing that had been ripped out while [Russell] was holding [her] hair.” Tr. p.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 4 of 8
       18. Carter suffered “pain in the side of [her] head from where [her] hair had

       been ripped out and then [her] eyes from where [Russell] had hit [her] directly

       in the eye socket.” Tr. p. 18. Roberts suffered pain from Russell pulling her

       hair.


[9]    On November 29, 2018, the State charged Russell with Class A misdemeanor

       battery resulting in bodily injury and Class B misdemeanor battery. The trial

       court conducted a bench trial on July 22, 2019. Dillon testified during direct-

       examination that he witnessed Russell and Roberts fighting. He was

       questioned on cross-examination by Russell about an allegedly inconsistent

       prior statement that he made to Officer Matt Foley that he did not see any of

       the fight. After the parties had rested and the evidentiary portion of the trial

       closed, Russell requested that the trial court reopen the case and allow her to

       recall Dillon for impeachment purposes, stating that she wished to question him

       about the allegedly prior inconsistent statement that he made to Officer Foley.

       The trial court denied Russell’s request. The trial court subsequently found

       Russell guilty as charged and imposed an aggregate 545-day sentence, with

       twenty days executed in the Hamilton County Jail and the remaining 525 days

       suspended to probation.



                                  Discussion and Decision
[10]   Russell contends that the trial court abused its discretion in denying her request

       to reopen the case to allow her to recall Dillon.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 5 of 8
               Whether to grant a party’s motion to reopen [her] case after
               having rested is a matter committed to the sound discretion of the
               trial judge. The decision will be set aside only when it appears
               that this discretion has been abused. Among the factors which
               weigh in the exercise of discretion are whether there is any
               prejudice to the opposing party, whether the party seeking to
               reopen appears to have rested inadvertently or purposely, the
               stage of the proceedings at which the request is made, and
               whether any real confusion or inconvenience would result from
               granting the request.


       Flynn v. State, 497 N.E.2d 912, 914 (Ind. 1986) (internal citation omitted).

       “Reversal must be predicated upon an actual abuse of discretion, i.e., a decision

       that was clearly untenable or unreasonable, and a showing of prejudice to the

       substantial rights of the complaining party.” Alvarado v. State, 89 N.E.3d 442,

       447 (Ind. Ct. App. 2017) (internal quotations and brackets omitted).


[11]   In Moss v. State, 13 N.E.3d 440, 446–47 (Ind. Ct. App. 2014), we considered

       whether the trial court abused its discretion in denying Moss’s request to reopen

       the case for the purpose of allowing him to admit the transcript of a witness’s

       prior statement to law enforcement. Like in this case, the witness testified and

       was subjected to cross-examination and the statement at issue was admissible

       only to impeach him, not as substantive evidence. Id. (citing Young v. State, 746

       N.E.2d 920, 926 (Ind. 2001) (“Ordinarily, prior inconsistent statements are used

       to impeach, not as substantive evidence of the matter reported.”)). Also like in

       this case, the allegedly prior inconsistent statement was discussed during the

       witness’s trial testimony in an attempt to impeach him. Id. Upon review, we

       concluded that “[b]ecause the statement was used during Moss’s case-in-chief

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 6 of 8
       for the only purpose it could have been used—impeachment—it was not error

       for the trial court to refuse to reopen the case after the defense rested.” Id. at

       447.


[12]   In considering Russell’s contention that the trial court abused its discretion in

       denying her request to reopen the case, we find our conclusion in Moss to be

       instructive. The record reveals that like in Moss, Russell’s defense counsel,

       without admitting the allegedly prior inconsistent statement into evidence,

       questioned Dillon about the statement on cross-examination. Specifically,

       counsel engaged Dillon in the following exchange regarding the statement:


               Q      Steve, isn’t it true that you told the officer during the
               investigation that you didn’t see the physical altercation at all?
               A      That is not correct.
               Q      So, it is your testimony today that you never told the
               officer that you didn’t see any of the fight at all?
               A      That’s correct.
               Q      Okay. Do you remember talking with Officer Foley and
               another officer during the interview … do you remember having
               some conversation with the officers?
               A      Yes.
               Q      Okay. Would it refresh your memory if I showed you
               your comments that you made to Officer Foley?
               ****
               Q      Well, do you remember ever making that statement?
               A      As I told you a couple of times already, no, I did not make
               that statement.
               Q      Would it refresh your recollection if I showed you
               documents –
               ****
               Q      So your testimony today is that you saw [Russell] fighting


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 7 of 8
               [Roberts]?
               A     As previously stated, yes.


       Tr. pp. 106–07. This exchange reveals that Russell attempted to impeach

       Dillon’s credibility by questioning him about his prior allegedly inconsistent

       statement during her case-in-chief. Like in Moss, the statement was used during

       Russell’s case-in-chief for the only purpose it could have been used—

       impeachment. Russell was given a full opportunity to impeach Dillon to the

       extent possible with his alleged prior statement. We fail to see how recalling

       Dillon for further questioning about his alleged prior statement would be

       anything other than repetitive. The trial court did not abuse its discretion by

       denying Russell’s request to reopen the case to recall Dillon and attempt to

       further impeach his credibility by asking him additional questions about the

       alleged statement. Moss, 13 N.E.3d at 447.


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


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1941 | January 31, 2020   Page 8 of 8
