MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Mar 10 2017, 10:22 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
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Anthony S. Churchward, P.C.                              Attorney General of Indiana
Fort Wayne, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Scott A. Estep,                                          March 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1608-CR-1916
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1605-F5-139



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017            Page 1 of 10
                                             Case Summary
[1]   A jury found Scott A. Estep guilty of committing level 5 felony battery against

      his girlfriend. Estep now appeals, claiming that the trial court erred in

      admitting evidence of a prior battery against his girlfriend. He also claims that

      his six-year sentence is inappropriate in light of the nature of the offense and his

      character. We conclude that the trial court did not err in admitting the evidence

      and that Estep has failed to establish that his sentence is inappropriate.

      Therefore, we affirm.


                                 Facts and Procedural History
[2]   Estep lived with his girlfriend Maria Nieves in an upstairs apartment in Fort

      Wayne. They had dated for two or three years, and they drank and argued a

      lot. On May 3, 2016, Estep and Nieves drank beer all day in their apartment

      with their downstairs neighbor, Dianna Buchwald. Estep and Nieves started

      arguing and pushing and shoving each other. Buchwald said that she was going

      to leave and picked up her cell phone. Estep said, “[Y]ou’re not gonna be

      calling the cops,” and slammed the phone down, breaking the screen. Tr. at 46.

      Buchwald went downstairs to her apartment. Nieves called 911. Officer Sage

      Kopp arrived and observed that Nieves was crying and upset but had no visible

      injuries. The officer left.


[3]   Less than half an hour later, Buchwald heard a “tussle upstairs.” Id. at 43.

      Nieves came down to Buchwald’s apartment and was crying and “having a

      hard time breathing.” Id. at 44. According to Buchwald, Nieves was “[r]eally


      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 2 of 10
      super upset” and “had red marks on her.” Id. Buchwald called 911. Officer

      Kopp arrived and observed that Nieves was “much more upset” and had “some

      marks on her that […] looked fresh and were starting to become more

      noticeable.” Id. at 55. Nieves was also crying “uncontrollably.” Id. Officer

      Kopp took photos of Nieves’s injuries. Officer Randy Miller arrested Estep.


[4]   The State charged Estep with battery, resisting law enforcement, and

      interference with the reporting of a crime. The State filed a notice of intent to

      introduce evidence of Estep’s prior batteries against Nieves in April 2013 and

      June 2015 pursuant to Indiana Evidence Rule 404(b), asserting that the

      evidence was “relevant and material” to the issues of “[k]knowledge, motive,

      intent, preparation, plan, identity, relationship between the parties, and/or

      absence of mistake.” Appellant’s App. at 21. After a hearing, the trial court

      ruled that evidence regarding the June 2015 battery would be admissible “on

      the issue of the nature of the relationship between” Estep and Nieves and that

      evidence regarding the April 2013 battery would not be admissible because the

      incident was too remote. Id. at 25.


[5]   A jury trial was held on June 30, 2016. Estep raised a continuing objection to

      any evidence of prior batteries. Nieves testified that she and Estep were

      “drunk” and “arguing” and “shov[ed] each other back and forth” during the

      May 3 incident. Tr. at 25, 26. She also testified that Estep “wouldn’t

      intentionally hurt [her] per se” and that he did not punch or slap or choke her

      on May 3. Id. at 28, 39. Over Estep’s hearsay objection, Buchwald testified

      that Nieves told her that Estep “was throwing her around and hitting her” on

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 3 of 10
      May 3. Id. at 46. Over another hearsay objection, Officer Miller testified that

      Nieves told him that Estep had “grabbed [her] by the shirt and hit [her] in the

      chest[.]” Id. at 71.1 Without objection, the State offered into evidence Officer

      Kopp’s photos of Nieves’s injuries.


[6]   Finally, Officer Trevon Brown testified that he was dispatched to Estep and

      Nieves’s apartment on June 24, 2015. According to the officer, Nieves was

      “crying, upset, and injured” and told him that Estep “had assaulted her in the

      home and then he had left.” Id. at 85, 86. Officer Brown testified that Nieves

      “had various bruises in various stages of healing across her body” and “some

      very recent injury to her mouth,” which was bleeding. Id. at 87. The trial court

      instructed the jury that the evidence of the prior battery “has been admitted

      solely on the issue of the relationship of the parties. It should be considered by

      you only for the limited purpose for which it was received and should not be

      considered on the ultimate issue of guilt or innocence of [Estep] on these

      charges.” Id. at 91-92.


[7]   In a bifurcated proceeding, the jury found Estep guilty of battery and not guilty

      of the other charges. The jury then found that Estep had a prior conviction for

      battering Nieves, which elevated the offense to a level 5 felony. The trial court

      sentenced Estep to six years executed. This appeal followed.




      1
       Nieves’s statements to Buchanan and Officer Miller were admitted as excited utterances under Indiana
      Evidence Rule 803(2). Estep does not challenge their admissibility on appeal.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017         Page 4 of 10
                                     Discussion and Decision

         Section 1 – The trial court did not abuse its discretion in
       admitting evidence regarding Estep’s prior battery of Nieves.
[8]   Estep first contends that the trial court erred in admitting Officer Brown’s

      testimony regarding his June 2015 battery of Nieves. The admission of

      evidence is within the trial court’s discretion. Scisney v. State, 55 N.E.3d 321,

      323 (Ind. Ct. App. 2016), trans. denied. “We will reverse a ruling on the

      admission of evidence only for an abuse of that discretion, which occurs only

      when the ruling is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights.” Id.


[9]   The challenged testimony was admitted pursuant to Evidence Rule 404(b),

      which provides in pertinent part that “[e]vidence of a crime, wrong, or other act

      is not admissible to prove a person’s character in order to show that on a

      particular occasion the person acted in accordance with the character” but

      “may be admissible for another purpose, such as proving motive, opportunity,

      intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

      accident.” The rule’s “list of permissible purposes is illustrative but not

      exhaustive.” Vermillion v. State, 978 N.E.2d 459, 463 (Ind. Ct. App. 2012). In

      assessing the admissibility of Rule 404(b) evidence, the court must determine

      that it is relevant to a matter at issue other than the defendant’s propensity to

      commit the charged act and then balance its probative value against its

      prejudicial effect pursuant to Evidence Rule 403. Ortiz v. State, 716 N.E.2d 345,

      350 (Ind. 1999). Evidence Rule 401 provides that evidence is relevant if it “has

      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 5 of 10
       any tendency to make a fact more or less probable than it would be without the

       evidence” and “the fact is of consequence in determining the action.” Evidence

       Rule 403 provides that the court “may exclude relevant evidence if its probative

       value is substantially outweighed by a danger of … unfair prejudice[.]”


[10]   Our supreme court has stated that evidence of a defendant’s prior actions with

       respect to the victim is “usually admissible to show the relationship between the

       two[,]” id., which was the basis for the admission of the prior battery evidence

       in this case. Estep first contends that the relevance of the prior battery is

       “insignificant” because it “occurred almost a full year before the charged

       offense.” Appellant’s Br. at 14. Estep cites no authority to support this

       contention. In any event, the relevance of the June 2015 battery was far more

       significant than that of the April 2013 battery, which the trial court excluded as

       being too remote.


[11]   Estep also suggests that the prior battery evidence was irrelevant because “there

       was no dispute that [he] and Ms. Nieves were in an intimate relationship.” Id.

       at 15. Although the existence of their intimate relationship was undisputed, the

       nature of the relationship was another matter entirely. Nieves acknowledged

       that she and Estep drank and argued frequently and engaged in mutual pushing

       and shoving, but she claimed that he “wouldn’t intentionally hurt [her] per se.”

       Tr. at 28. This left a false impression with the jury, and the evidence of the

       prior battery was relevant to rebut this falsehood. Cf. Davis v. State, 907 N.E.2d

       1043, 1055 (Ind. Ct. App. 2009) (noting that otherwise inadmissible evidence

       may become admissible where defendant “opens the door” to questioning on

       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 6 of 10
       that evidence by leaving trier of fact with false or misleading impression of

       facts).


[12]   Finally, Estep complains that the evidence regarding the prior battery “had

       great prejudicial effect” because Nieves was “the only person who had personal

       knowledge of what occurred to her” and the other witnesses “all testified to

       statements given to them by [her].” Appellant’s Br. at 15. We have stated that

       “[a]ll evidence that is relevant to a criminal prosecution is inherently

       prejudicial; thus proper inquiry under Evidence Rule 403 boils down to a

       balance of the probative value of the proffered evidence against the likely unfair

       prejudicial impact of that evidence.” Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct.

       App. 2014), trans. denied. “When determining the likely unfair prejudicial

       impact, courts will look for the dangers that the jury will substantially

       overestimate the value of the evidence or that the evidence will arouse or

       inflame the passions or sympathies of the jury.” Id. In this case, the trial court

       minimized those dangers by giving the aforementioned limiting instruction to

       the jury. “When a limiting instruction is given that certain evidence may be

       considered for only a particular purpose, the law will presume that the jury will

       follow the trial court’s admonitions.” Ware v. State, 816 N.E.2d 1167, 1176

       (Ind. Ct. App. 2004). Under these circumstances, we cannot conclude that the




       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 7 of 10
       trial court abused its discretion in admitting the prior battery evidence.2

       Therefore, we affirm Estep’s conviction.


           Section 2 – Estep has failed to establish that his sentence is
                                  inappropriate.
[13]   Estep also asks us to reduce his sentence pursuant to Indiana Appellate Rule

       7(B), which provides that this Court “may revise a sentence authorized by

       statute if, after due consideration of the trial court's decision, the Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” The principal role of appellate review is to leaven

       the outliers, not to achieve the perceived correct result in each case. Kunberger

       v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The question is not whether

       another sentence is more appropriate but whether the sentence imposed is

       inappropriate. Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). The defendant

       bears the burden of persuading us that his sentence is inappropriate. Prater v.

       State, 59 N.E.3d 314, 318 (Ind. Ct. App. 2016).


[14]   “The advisory sentence is the starting point the legislature selected as an

       appropriate sentence for the crime committed.” Blair v. State, 62 N.E.3d 424,

       430 (Ind. Ct. App. 2016). Estep committed battery with a prior battery

       conviction against the same person, which is a level 5 felony. Ind. Code § 35-



       2
         Notwithstanding, any error in admitting the evidence could only be considered harmless given Nieves’s
       statements to Buchanan and Officer Miller that Estep battered her, Officer Kopp’s photos of Nieves’s
       injuries, and Officer Kopp’s testimony that no such injuries were visible during her first visit to the
       apartment.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017          Page 8 of 10
       42-2-1(g)(4)(A). The sentencing range for a level 5 felony is one to six years,

       with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). Battery is

       the knowing or intentional touching of another person in a rude, insolent, or

       angry manner. Ind. Code § 35-42-2-1(c)(1). At trial and at the sentencing

       hearing, the State presented evidence that a drunk and argumentative Estep

       grabbed and hit Nieves approximately one month after he finished serving his

       sentence for battering her in June 2015. Nieves’s injuries may not have been

       serious, but the timing of the offense certainly supports a sentence above the

       advisory term.


[15]   The timing of the offense is also indicative of Estep’s character as a career

       criminal who has made no efforts to reform his behavior after numerous

       encounters with the justice system in five Indiana counties. Since 1985, fifty-

       one-year-old Estep has accumulated a staggering twenty-seven misdemeanor

       convictions (including criminal conversion, criminal mischief, criminal trespass,

       battery, marijuana possession, public intoxication, operating while intoxicated,

       and resisting law enforcement) as well as five felony convictions (including

       cocaine possession, escape, failure to return to lawful detention, and battery).

       He has had three suspended sentence modifications and one probation

       revocation, and he has received substance abuse evaluation and counseling that

       obviously failed to have an impact on him. This is his third conviction for

       battering Nieves, and at the time of his arrest a 2011 warrant remained pending

       for failure to appear for a pretrial conference on three misdemeanor charges.

       Estep notes that his most serious prior offense was a level 6 felony, and he


       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 9 of 10
       argues that he is not “the ‘worst of the worst’ of offenders deserving of the

       maximum sentence.” Appellant’s Br. at 17. The sheer number of his prior

       convictions, his serial battering of his girlfriend, and his failure to respond to

       judicial leniency all demonstrate otherwise. Estep has failed to persuade us that

       his sentence is inappropriate, and therefore we affirm it.


[16]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017   Page 10 of 10
