MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 31 2019, 9:41 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                     Curtis T. Hill, Jr.
Elkhart, Indiana                                        Attorney General of Indiana

                                                        Evan M. Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jamie R. Green,                                         May 31, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2188
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Kristine A.
Appellee-Plaintiff                                      Osterday, Judge
                                                        Trial Court Cause No.
                                                        20D01-1803-F5-49



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019                   Page 1 of 7
[1]   Jamie R. Green appeals his conviction of Level 5 felony domestic battery

      resulting in injury to a pregnant woman. 1 Green raises one issue on appeal,

      which we restate as whether the trial court abused its discretion in admitting the

      victim’s prior out-of-court statements during the responding officer’s testimony

      and the victim’s direct examination. We affirm.



                                Facts and Procedural History
[2]   K.B. and Green began a romantic relationship in 2017. During their

      relationship, Green impregnated K.B, and K.B. notified Green of her

      pregnancy. K.B. and Green discussed topics related to the baby, including the

      baby’s gender, items that needed to be purchased for the baby, and pregnancy-

      related doctor appointments.


[3]   K.B. was at Green’s house during the early morning hours of January 10, 2018.

      While Green was asleep, a female sent several text messages to him asking for

      sexual favors. K.B. read the text messages, and she woke Green and asked him

      about the text messages. Green then put his hand behind K.B’s neck and

      started “smashing” the side of her head with his elbow. (Tr. Vol. II at 91.)

      K.B. experienced extreme pain and fell to the floor. Green punched K.B. in the

      mouth and hit her right eye.




      1
          Ind. Code § 35-42-2-1.3(c).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019   Page 2 of 7
[4]   After the assault, K.B. left Green’s house and called 911 on her way to a gas

      station. Officer Tyler Kruse responded to K.B.’s 911 call and met her at the gas

      station. He observed K.B. was crying, her lip was swollen with dried blood on

      it, the right side of her face was swollen and red, and her right ear and the area

      behind the ear were bright red. K.B. told Officer Kruse that she was 19 weeks

      pregnant, Green was the father, and Green had battered her. Officer Kruse

      recorded his interactions with K.B. using his bodycam.


[5]   The State charged Green with Level 5 felony domestic battery resulting in

      injury to a pregnant woman and Class A misdemeanor domestic battery. 2 The

      court held a jury trial on July 24 and 25, 2018. Both Officer Kruse and K.B.

      testified at the trial. Officer Kruse testified:


                 [K.B.] told me that her boyfriend, Jamie Green, had received a
                 text. She said that she opened the phone and saw the text was
                 from another girl. She accused Jamie of cheating on her and
                 then Jaime immediately hit her. She said Jamie hit her twice on
                 the side of—in the side of the head with his elbow. She said
                 Jamie continued to hit her. He grabbed her neck, punched her in
                 her lip, mouth, and then finally Jamie grabbed her hair and hit
                 her head on his knee and then she said she was able to get away.
                 That’s when she drove away and called the police and met us at
                 the gas station.


      (Id. at 47.) K.B. testified on the second day of trial. During K.B.’s testimony,

      the State published to the jury portions of K.B.’s 911 call and Officer Kruse’s




      2
          Ind. Code § 35-42-2-1.3(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019   Page 3 of 7
      bodycam footage. The jury returned a verdict of guilty on both counts. The

      trial court merged the misdemeanor charge with the felony count, entered the

      felony conviction, and sentenced Green to five years in the Indiana Department

      of Correction, with one year suspended to probation.



                                Discussion and Decision
[6]   The decision to admit or exclude evidence rests within the sound discretion of

      the trial court, and we afford the trial court great deference on appeal. Norris v.

      State, 53 N.E.3d 512, 525 (Ind. Ct. App. 2016). “An abuse of discretion occurs

      when the trial court’s decision is clearly erroneous and against the logic and

      effect of the facts and circumstances before it or it misinterprets the law.” Id.

      Similarly, the number of witnesses that may be called to prove a fact is within

      the trial court’s sound discretion. Id.


[7]   A contemporaneous objection is required at the time evidence is introduced at

      trial in order to preserve the issue for appeal. Rhodes v. State, 996 N.E.2d 450,

      454 (Ind. Ct. App. 2013). Green failed to contemporaneously object to

      admission of the evidence he now contends was erroneously allowed.

      Therefore, we may reverse only upon a showing of fundamental error. Brown v.

      State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. “The fundamental error

      exception is extremely narrow, and [it] applies only when the error constitutes a

      blatant violation of basic principles, the harm or potential for harm is

      substantial, and the resulting error denies the defendant fundamental due

      process.” Id. (internal quotation marks omitted). The claimed error must be so

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019   Page 4 of 7
       egregious it renders a fair trial impossible or constitutes a blatant violation of

       basic and elementary principles of due process. Id.


[8]    Green argues the trial court abused its discretion in allowing Officer Kruse to

       testify as to K.B.’s out-of-court statements and in admitting portions of K.B.’s

       call to 911 and Officer Kruse’s bodycam footage. Green contends these out-of-

       court statements improperly bolstered the victim’s credibility, amounting to

       drumbeat repetition making meaningful cross-examination impossible. We

       disagree.


[9]    Green’s argument principally relies on two cases, Modesitt v. State, 578 N.E.2d

       649 (Ind. 1991), and Stone v. State, 536 N.E.2d 534 (Ind. Ct. App. 1989), trans.

       denied. In Modesitt, the defendant was charged with molesting an 11-year-old

       girl. 578 N.E.2d at 650. The victim’s mother, a welfare caseworker, and a

       psychologist testified as to what the victim told each of them about the

       defendant’s conduct before the State called the victim to testify. Id. Our

       Indiana Supreme Court held that the drumbeat repetition of the victim’s

       statements by other witnesses before the victim was called to testify “precluded

       direct, immediate cross examination of the statements and constitutes error

       requiring reversal.” Id. at 652.


[10]   Similarly, in Stone, the defendant was charged with two counts of child

       molesting. 536 N.E.2d at 535. The victim, the victim’s sister, and four adults

       testified as to the victim’s report of what transpired between the defendant and

       the victim. Id. at 537. We determined the trial court abused its discretion in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019   Page 5 of 7
       allowing each witness to recount the victim’s version of events because the

       victim’s “credibility became increasingly unimpeachable as each adult added

       his or her personal eloquence, maturity, emotion, and professionalism to [the

       victim’s] out-of-court statements.” Id. at 540.


[11]   However, this case differs significantly from Modesitt and Stone. In both the 911

       call and the recording from Officer Kruse’s body cam, K.B. herself is the one

       recounting the same events to which she was testifying at trial. So, unlike Stone,

       multiple witnesses are not using their “eloquence, maturity, emotion, and

       professionalism” to boost K.B.’s credibility. Id. K.B. is the only one speaking.

       Additionally, the State played the portions of K.B.’s 911 call and Officer

       Kruse’s bodycam footage during K.B.’s testimony, and Green cross-examined

       K.B. after this testimony. Thus, Green had the opportunity to immediately

       address K.B.’s statements and the exhibits.


[12]   Finally, Officer Kruse’s statement was, at most, harmlessly cumulative. We do

       not reverse when repetitive testimony is “brief, consistent with, and [does] not

       elaborate” upon the victim’s allegations. Surber v. State, 884 N.E.2d 856, 864

       (Ind. Ct. App. 2008), trans. denied. The State asked Officer Kruse what K.B.

       told him, and Officer Kruse merely summarized her statement. His testimony

       was consistent with K.B.’s version of events as relayed in her 911 call, her

       statement captured on Officer’s Kruse’s bodycam, and her testimony.

       Therefore, we cannot say it was fundamental error to admit his statement. See

       Norris, 53 N.E.3d at 526 (holding it was not error for trial court to allow



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019   Page 6 of 7
       testimony of two witnesses that merely provided an overview of the situation

       and a summary of the victim’s accusations).



                                               Conclusion
[13]   Green cross-examined K.B. immediately after portions of her 911 call and

       Officer Kruse’s bodycam footage were published to the jury. Additionally,

       Officer Kruse’s brief summary of K.B.’s report to him and evidence of K.B.

       explaining what happened do not amount to impermissible drumbeat

       repetition. Accordingly, we affirm.


       Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2188 | May 31, 2019   Page 7 of 7
