MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Sep 27 2018, 5:25 am

this Memorandum Decision shall not be                                         CLERK
regarded as precedent or cited before any                                 Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
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
David Shircliff                                          Curtis T. Hill, Jr.
Lawrence County Public Defender                          Attorney General of Indiana
Agency
                                                         Katherine Cooper
Bedford, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jermaine Thornton,                                       September 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         47A01-1706-CR-1266
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff.                                      Robbins, Judge
                                                         Trial Court Cause No.
                                                         47D01-1612-F5-1619



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018         Page 1 of 16
                                       Statement of the Case
[1]   Jermaine Thornton (“Thornton”) appeals his conviction, following a jury trial,

      for Level 6 felony domestic battery resulting in moderate bodily injury.1

      Thornton contends that the trial court abused its discretion by admitting

      testimony from an expert witness in domestic violence. Thornton, however,

      raises a different basis to support his appellate argument than he raised to

      support his trial objection and, as a result, has waived appellate review of his

      challenge to the admission of this evidence. Waiver notwithstanding, the trial

      court did not abuse its discretion by admitting the testimony. Moreover, even if

      it had, we affirm Thornton’s conviction because we conclude that any error was

      harmless in light of the independent evidence of his guilt.


[2]   We affirm.


                                                     Issue
               Whether the trial court abused its discretion by admitting testimony
               from an expert witness.

                                                     Facts
[3]   In December 2016, Thornton was living with his girlfriend, Misty Daniels

      (“Daniels”). Thornton had dated Daniels for seven years, and they had a child

      together. Between December 10 and 18, 2016, Thornton hit Daniels multiple




      1
          IND. CODE § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 2 of 16
      times, causing her pain. Specifically, Thornton hit Daniels on her back, ear,

      and face.


[4]   On December 19, 2016, when Daniels was in the locker room at her work, she

      showed her injuries to a co-worker, Crystal Stailey (“Stailey”). Stailey saw that

      Daniels had a “whole bunch of really red marks” on her back and saw that

      Daniels had some injuries on her ear and face. (Tr. Vol. 4 at 87). Stailey used

      her cell phone and took photographs of Daniels’ injuries. Daniels “was scared”

      and did not file a report with the police. (Tr. Vol. 3 at 185). She looked into

      going to a women’s shelter, but she ended up returning home.


[5]   On December 28, 2016, Daniels went to work and told Stailey that Thornton

      had beat her with a belt the previous evening. Daniels alleged that Thornton

      put a belt around her neck, choked her, “made [her] perform oral sex on him[,]”

      and threatened to kill her. (Tr. Vol. 3 at 191). Additionally, Daniels alleged

      that Thornton hit her on the chest with the belt while he had sex with her, and

      she showed Stailey a mark on her breast. Stailey took photographs of Daniels’

      injuries and told Daniels that she “needed to get out of that relationship, out of

      that situation.” (Tr. Vol. 3 at 195). After work, Stailey took Daniels to the

      sheriff’s department, and Daniels reported what Thornton had done.


[6]   The State charged Thornton with: Count 1, Level 5 felony intimidation; Count

      2, Level 5 felony criminal confinement; Count 3, Level 6 felony sexual battery;

      Count 4, Level 6 felony strangulation; Count 5, Level 6 felony intimidation;

      Count 6, Class A misdemeanor domestic battery; Count 7, Level 4 felony


      Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 3 of 16
      sexual battery; Count 8, Level 6 felony domestic battery resulting in moderate

      bodily injury; and Count 9, Level 6 felony domestic battery resulting in

      moderate bodily injury. All counts, except for Count 8, related to allegations

      that occurred on December 27. The battery allegation in Count 8 related to

      events occurring between December 10 and December 18.


[7]   Prior to trial, the State and Thornton filed numerous pre-trial motions. Among

      the State’s motions was its notice of its intent to present Rule 404(b) evidence at

      trial. Specifically, the State sought to introduce testimony from Daniels

      regarding Thornton’s “repeated acts of domestic violence” against her during

      their seven-year relationship and regarding his threats to kill her if she left him

      or reported him to the police. (App. Vol. 2 at 36). The State argued that it

      wanted to present this evidence to show motive and the nature of the

      relationship between Thornton and Daniels.


[8]   Thornton’s motions included a motion objecting to the State’s use of Rule

      404(b) evidence and a motion to exclude a State’s witness, Caryn Burton

      (“Burton”). Burton worked as a training coordinator at the Indiana Coalition

      Against Domestic Violence, and the State planned on calling her as an expert

      witness to discuss domestic violence. In his motion to exclude, Thornton

      alleged that Burton’s proposed testimony—"to ‘educate the jury’ on why a

      victim of domestic battery might remain in a relationship with an abuser for a

      period of years—constituted “vouching testimony . . . in violation of Ind. Evid.

      R. 704(b).” (App. Vol. 2 at 54, 55). Additionally, Thornton filed a motion in



      Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 4 of 16
       limine, seeking to prohibit Burton from testifying that “there is a very high

       statistical probability that [Daniels] is telling the truth.” (App. Vol. 2 at 63).


[9]    The trial court held a hearing on both parties’ motions. During the hearing, the

       trial court heard Daniels’ proposed testimony regarding the prior bad acts, and

       it heard testimony from Burton to determine whether her proposed trial

       testimony would be instructive for the jury. Thereafter, the trial court issued an

       order, “provisionally, and with a limited scope, grant[ing]” the State’s 404(b)

       motion and granting, in part, Thornton’s objection to the 404(b) evidence.

       (App. Vol. 2 at 76). Specifically, the trial court ruled that Daniels would be

       allowed to, “in general terms, describe the length and nature of her

       relationship” with Thornton but that she would not be allowed to testify to any

       prior bad acts. (App. Vol. 2 at 76).


[10]   In regard to Burton’s testimony, the trial court noted that Burton was “an

       alleged expert in matters of domestic violence and the behavior of those

       involved in such acts, both as victims and perpetrators.” (App. Vol. 2 at 77).

       The trial court ruled that the State would be allowed to call Burton as a witness

       and that her testimony would be instructive for the jury given the lengthy,

       seven-year relationship between Thornton and Daniels. The trial court,

       however, granted Thornton’s motion to limit Burton’s testimony to a “broad

       and general analysis of victims of domestic violence.” (App. Vol. 2 at 77).

       More specifically, the trial court ruled that Burton would be allowed to provide

       testimony “advising why alleged victims might choose to stay in longer term

       relationships with an alleged perpetrator” but that she could not testify or be

       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 5 of 16
       questioned about specific facts of this case. (App. Vol. 2 at 77). The trial court

       also granted Thornton’s motion in limine precluding Burton from giving

       vouching testimony or specific opinion testimony that Daniels’ testimony was

       truthful.


[11]   In April 2017, the trial court held a three-day jury trial. Prior to the trial, the

       parties discussed the limitations on Daniels’ testimony regarding the nature of

       her seven-year relationship with Thornton. The trial court clarified that Daniels

       could not discuss any prior abuse by Thornton and that the State should not ask

       her why she did not leave Thornton before the alleged abuse at issue in this

       case. The parties also discussed the trial court’s rulings on Burton’s testimony,

       and the trial court explained that the jury had a “right to understand in very

       general terms this, this whole dynamic of, of domestic violence.” (Tr. Vol. 3 at

       137).


[12]   During the State’s opening statement, the prosecutor told the jury that the case

       involved charges of domestic violence and that it was sometimes difficult to

       understand the behavior of people involved in a relationship with domestic

       violence. The prosecutor told the jury that the State would provide testimony

       that would help “explain the general principles of domestic violence and what

       goes on.” (Tr. Vol. 3 at 162). Thornton’s defense was that victim had made up

       the allegations against him. In his opening statement, Thornton’s counsel

       stated that Thornton “didn’t do what [Daniels] said he did.” (Tr. Vol. 3 at 163).




       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 6 of 16
[13]   During Daniels’ direct examination, the State questioned Daniels about the

       nature of her relationship with Thornton, and she testified that they “had [their]

       ups and downs.” (Tr. Vol. 3 at 172). She also testified that she threw away the

       belt that Thornton had used to choke her. Also, during direct examination, the

       State asked Daniels “[w]hy didn’t [she] leave [Thornton] before December

       28th?” (Tr. Vol. 3 at 199). Thornton objected to the question before Daniels

       answered, and the trial court sustained the objection. The State then asked

       Daniels why she left Thornton on December 28, and she testified that she left

       him because she feared for her life and her child’s life. (Tr. Vol. 3 at 199).


[14]   Following Daniels’ direct examination, Thornton moved for a mistrial based on

       the State’s question of why she did not leave Thornton, arguing that it was

       contrary to the trial court’s pre-trial ruling. The trial court agreed that the

       question posed was in violation of the trial court’s order and the previous

       discussions between the court and the parties. The trial court stated that the

       question did not, however, rise to the level of sustaining Thornton’s mistrial

       motion. Thus, the trial court denied Thornton’s motion and informed

       Thornton that it would give an admonishment if he desired. Thornton stated

       that he would consider whether he wanted an admonishment.


[15]   After the completion of Daniels’ testimony, Thornton told the trial court that he

       was ready to have the trial court admonish the jury. The parties disagreed




       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 7 of 16
       regarding the scope of the admonishment.2 The trial court ultimately

       admonished the jury that it was “to disregard the question by the Chief Deputy

       Prosecutor . . . that [was] ‘why didn’t you leave the Defendant before December

       28th?’ that was a question propounded to Misty Daniels[.]” (Tr. Vol. 4 at 17).

       The trial court instructed the jury “to disregard that question and any answer

       related there to.” (Tr. Vol. 4 at 17).


[16]   Prior to the State calling Burton as a witness, Thornton’s counsel argued that

       Burton should be excluded and conducted a voir dire of her. Burton

       acknowledged that she did not have any personal knowledge of the facts of the

       offense and that her testimony was to provide information regarding domestic

       violence relationships. Thornton argued that Burton should be excluded as a

       witness, contending Burton’s potential testimony regarding victims feeling

       shame and blame “could be misused” and could “go to vouching” for Daniels.

       (Tr. Vol. 4 at 16). The State responded that it had already made Thornton

       “well aware” that it was going to elicit only “general testimony” from Burton

       and that there would be “no vouching” testimony. (Tr. Vol. 4 at 16). The trial

       court again denied Thornton’s objection to Burton’s testimony and noted that

       “we have been over this . . . the pretrial pleadings, we’ve been over it this

       morning, we’re over it again[.] I’m going to allow this witness to testify




       2
        Thornton wanted the trial court to admonish the jury to disregard both the State’s questions regarding
       Daniels leaving Thornton (i.e., why Daniels did not leave Thornton before December 28 and why she left
       him on December 28) as well as her response that she left because she feared for her life, while the State
       contended that the admonishment should cover only the first question.

       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018        Page 8 of 16
       pursuant to the prior orders of the Court.” (Tr. Vol. 4 at 17). Thornton then

       renewed his motion for mistrial, and the trial court denied it.


[17]   Thereafter, the State called Burton as a witness. Shortly after Burton started to

       testify, Thornton’s counsel stated, “just for the record we would object and

       [would like to] show a continuing objection[.]” (Tr. Vol. 4 at 18). The trial

       court overruled the objection and stated that the “[c]ontinuing objection

       w[ould] be continued.” (Tr. Vol. 4 at 18). Burton then testified and generally

       described domestic violence, its common misconceptions, and how victims’

       experiences could affect their ability to process memories and recall events.

       Burton also testified that she had not interviewed Daniels and did not know any

       details about the facts of the alleged offenses.


[18]   The State also presented testimony from Stailey, who corroborated Daniels’

       testimony that she had injuries on her back, ear, and face in December 2016

       and that she had shown those injuries to Stailey while the two women were at

       work on December 19. Stailey testified that she saw and took photographs of

       Daniels’ injuries, and the State introduced the photographs as exhibits.


[19]   After the State rested, Thornton testified on his own behalf. He denied hitting

       Daniels, putting a belt around her neck and choking her, and forcing her to

       have nonconsensual sex with him. He acknowledged that the State’s exhibits

       showed that Daniels had some injury marks, but he denied causing any of the

       injuries.




       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018   Page 9 of 16
[20]   During closing arguments, Thornton’s counsel argued that the jury should find

       Thornton not guilty of eight charges relating to the allegations of December 27

       because Thornton had testified that he did not do them and because there was

       no physical evidence to support them. In regard to the domestic battery charge

       stemming from injuries Daniels had sustained between December 10 and

       December 18, Thornton’s counsel acknowledged that the photograph in the

       State’s exhibits showed that Daniels had injuries, but he argued that Daniels

       could have been injured at work.


[21]   The jury found Thornton guilty of Count 8, the Level 6 felony domestic battery

       resulting in moderate bodily injury charge occurring between December 10 and

       December 18, and not guilty of the remaining charges. The trial court imposed

       a sentence of two and one-half (2½) years in the county jail.3 Thornton now

       appeals.


                                                      Decision
[22]   Thornton argues that the trial court abused its discretion by admitting Burton’s

       testimony regarding domestic violence. Specifically, Thornton contends that

       Burton’s testimony was inadmissible under Indiana Evidence Rules 702,

       404(b), and 403.




       3
         During Thornton’s sentencing hearing, he pled guilty to Class A misdemeanor invasion of privacy from a
       separate cause, and the trial court imposed a one (1) year sentence for this conviction and ordered it to be
       served consecutive to his sentence in this cause.

       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 10 of 16
[23]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

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

       effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[24]   The State argues that Thornton has waived appellate review of his admission of

       evidence issue because he did not object below on the same grounds that he

       raises on appeal. We agree.


[25]   “A claim of evidentiary error may not be raised for the first time on appeal but

       rather must first be presented at trial[.]” Hunter v. State, 72 N.E.3d 928, 932

       (Ind. Ct. App. 2017), trans. denied. “The failure to make a contemporaneous

       objection to the admission of evidence at trial, so as to provide the trial court an

       opportunity to make a final ruling on the matter in the context in which the

       evidence is introduced, results in waiver of the error on appeal.” Brown v. State,

       783 N.E.2d 1121, 1125 (Ind. 2003). Additionally, “[a]ny grounds for objections

       not raised at trial are not available on appeal, and a party may not add to or

       change his grounds in the reviewing court.” Hunter, 72 N.E.3d at 932.


[26]   Here, Thornton has waived his appellate challenge to Burton’s testimony

       because his trial objection was based on only vouching under Evidence Rule

       704 and not based on Evidence Rules 702, 404(b), and 403 that he now

       attempts to raise on appeal. Because he objected based on a ground other than


       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 11 of 16
       what he now attempts to raise on appeal, he has waived review of his appellate

       argument regarding this testimony. See, e.g., Brown, 783 N.E.2d at 1125-26

       (holding that the defendant had waived his argument regarding the admission

       of evidence where his objection at trial was based on grounds different than

       those on appeal).


[27]   Waiver notwithstanding, we disagree with Thornton’s argument that Burton’s

       testimony was inadmissible under Evidence Rule 702. Specifically, he contends

       that the testimony was inadmissible under this evidentiary rule because there

       was no evidence presented “outside the realm of the jury’s own knowledge and

       experience.” (Thornton’s Br. 26).


[28]   Indiana Evidence Rule 702 provides as follows:


               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert's scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.

               (b) Expert scientific testimony is admissible only if the court is
               satisfied that the expert testimony rests upon reliable scientific
               principles.


       Under Evidence Rule 702, a witness may be qualified as an expert based on

       knowledge, skill, experience, training, or education, and “[o]nly one

       characteristic is necessary to qualify an individual as an expert.” Otte v. State,

       967 N.E.2d 540, 547 (Ind. Ct. App. 2012), trans. denied. “As such, an individual

       may qualify as an expert based upon practical experience alone.” Id.

       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 12 of 16
       Additionally, “[e]xpert testimony regarding ‘specialized knowledge’ need not

       involve scientific principles and therefore need not comply with Rule 702(b).”

       Id. (citing Malinski v. State, 794 N.E.2d 1071, 1085 (Ind. 2003)).


[29]   Burton worked for approximately twenty years in the domestic violence field, as

       both a victim advocate and a training coordinator. She testified that in her

       current position as a training coordinator for Indiana Coalition Against

       Domestic Violence, she has educated various groups on the dynamics of

       domestic violence. Burton’s qualification under Rule 702 was based on her

       years of experience, training, and education in the area of domestic violence.

       Thornton does not argue that Burton’s experience is insufficient to qualify her

       as an expert with specialized knowledge; instead, he contends that her

       experience did not assist the jury to understand the evidence. He also asserts

       that the jury already had its own knowledge and experience about domestic

       violence and that Burton’s testimony “deprived the trier of fact of its

       opportunity to assess the weight of the evidence on its own.” (Thornton’s Br.

       26).


[30]   Here, Thornton faced a charge of domestic battery against Daniels. The trial

       court explained that it was allowing Burton’s testimony because the jury had a

       “right to understand in very general terms this, this whole dynamic of, of

       domestic violence.” (Tr. Vol. 3 at 137). Our Court has explained that an expert

       witness’s testimony regarding the complexity of behavior in domestic violence

       cases is relevant for educating the jury on the subject. See Iqbal v. State, 805

       N.E.2d 401, 409-10 (Ind. Ct. App. 2004). When Burton testified, she generally

       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 13 of 16
       described domestic violence, its common misconceptions, and how victims’

       experiences could affect their ability to process memories and recall events.

       Burton also testified that she had not interviewed Daniels and did not know any

       details about the facts of the alleged offenses. Because Burton was qualified

       under Rule 702 to testify about domestic violence and because her testimony

       educated the jury and did not deprive the jury of its ability to assess the

       evidence, we conclude that the trial court did not abuse its discretion by

       admitting Burton’s testimony. See, e.g., Otte, 967 N.E.2d at 547 (holding that an

       expert witness’s testimony regarding domestic violence was admissible under

       Evidence Rule 702); Iqbal, 805 N.E.2d at 410 (holding that an expert witness’s

       testimony regarding domestic violence was admissible under Evidence Rule 702

       and furthermore explaining that the witness’s testimony “did not cross the line

       into impermissible vouching” were the witness had no personal knowledge of

       the case and had not counseled the victim).


[31]   Moreover, even if the trial court had erred by admitting Burton’s testimony, any

       error in the admission of this evidence was harmless.4 “The improper

       admission of evidence is harmless error when the conviction is supported by

       substantial independent evidence of guilt as to satisfy the reviewing court that

       there is no substantial likelihood that the questioned evidence contributed to the

       conviction.” Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000), reh’g denied. See




       4
        This harmless error analysis applies to Thornton’s arguments regarding admissibility under Evidence Rules
       702, 404(b), and 403.

       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 14 of 16
       also Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014) (“If we are satisfied the

       conviction is supported by independent evidence of guilt such that there is little

       likelihood the challenged evidence contributed to the verdict, the error is

       harmless.”).


[32]   Here, the jury convicted Thornton of domestic battery against Daniels that had

       occurred between December 10 and 18, 2016, and there was substantial

       independent evidence that Thornton had hit Daniels during that period as

       alleged in Count 8. Daniels testified that her relationship with Thornton was

       “very strained” between December 10 and 18 and that he had hit her multiple

       times. (Tr. Vol. 3 at 175). She testified that Thornton had specifically hit her

       on her back, face, and ear, causing her pain and leaving her with marks or

       bruises from these injuries. Daniels’ testimony regarding her sustained injuries

       was corroborated by Daniels’ co-worker, Stailey, who saw and photographed

       Daniels’ injuries and by the State’s exhibits of those photographs depicting

       those injuries. Additionally, when Burton testified, she specified that she had

       not interviewed Daniels and did not know any details about the facts of the

       alleged offenses. Based on our review of the record and the evidence

       supporting Thornton’s conviction, we are satisfied that the conviction is

       supported by substantial independent evidence of guilt and that there is no

       substantial likelihood that the challenged evidence contributed to the jury’s

       verdicts and, therefore, conclude that waiver notwithstanding, even if the

       admission of the evidence was error, the error was harmless.




       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 15 of 16
[33]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A02-1706-CR-1266 | September 27, 2018 Page 16 of 16
