MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Aug 01 2018, 5:52 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brendan K. Lahey                                         Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Michael G. Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Reginald Blackburn,                                      August 1, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1709-CR-2056
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Julie Verheye,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         71D04-1705-CM-2067



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018       Page 1 of 14
                                                 Case Summary
[1]   Reginald Blackburn appeals his conviction and sentence for Class A

      misdemeanor domestic battery. We affirm.


                                                         Issues
[2]   The issues before us are as follows:


                 I.       whether the trial court erred in admitting evidence over
                          Blackburn’s hearsay objections; and


                 II.      whether sufficient evidence supports Blackburn’s
                          conviction.


                                                         Facts
[3]   During the relevant period, Blackburn and C.W. were in a romantic

      relationship and lived together in Mishawaka. On April 29, 2017, C.W.’s sister

      called the Mishawaka Police Department to request a welfare check on C.W.

      Officer Andrew Silveus was the first officer at the scene, and he observed

      Blackburn and C.W. arguing. Officer Glenn Roach arrived at the scene. He

      spoke with C.W. in the couple’s apartment and observed a small lump behind

      her ear. C.W. told Officer Roach that she was five months pregnant and that

      Blackburn had beaten and choked her. Officer Paul Robinson observed and

      photographed C.W.’s injuries.1




      1
          Due to a technical issue, Officer Robinson’s photographs were unusable.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 2 of 14
[4]   On May 4, 2017, the State charged Blackburn with Class A misdemeanor

      domestic battery. On August 10, 2017, he was tried to the bench. At trial,

      C.W. testified that she was “exaggerat[ing]” when she told the officers, medical

      responders, and an emergency room nurse that Blackburn had beaten and

      choked her. Tr. Vol. I p. 5. She attributed a bruise or mark on her arm to

      “wrestling over the phone or whatever” with Blackburn. Id. at 7.


[5]   During the State’s case-in-chief, Officer Roach testified, over defense counsel’s

      hearsay objection, that “[C.W.] said she got choked [by Blackburn] and that her

      stomach hurt and that she was pregnant.” Id. at 30. The trial court overruled

      Blackburn’s hearsay objection pursuant to Indiana Evidence Rule 801(D)(1)(C).


[6]   Next, Officer Robinson testified that he observed and photographed “a slight

      bump behind [C.W.’s] left ear toward the top of it,” but that the pictures “were

      blurry or didn’t turn out.” Id. at 33.


[7]   Emergency room nurse Nicole Hostetler testified that C.W. “was brought by

      ambulance to [St. Joe Medical Center]” for medical treatment. Id. at 40.

      When Nurse Hostetler met with C.W., Nurse Hostetler identified herself as a

      registered nurse, asked questions of a medical nature, was wearing a “blue

      scrub top and scrub pants,” and performed CAT scan and ultrasound imaging.

      Id.


[8]   During the State’s case-in-chief, the prosecutor asked Nurse Hostetler what

      C.W. had told her about the incident. Defense counsel objected on hearsay

      grounds, challenging whether Nurse Hostetler’s testimony fit within the Indiana

      Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 3 of 14
      Evidence Rule 803(4) hearsay exception—as the State argued—and arguing

      that Nurse Hostetler’s questioning of C.W. had been conducted for police

      investigative purposes. After the trial court overruled the objection, Nurse

      Hostetler testified as follows:


              [C.W. said] [t]hat her and her baby’s daddy had been fighting.
              She thought – he had thought she was cheating on him and
              pretended to be someone else or a guy on Facebook and instant
              messaged her and they had been fighting all week. He kicked in
              her door and took her car and her keys – her car and her phone,
              excuse me. And she didn’t – she had said that she didn’t think
              that he was ever going to stop hitting her and he choked her to
              where she thought she was being choked for approximately three
              minutes.


      Id. at 42. A physical examination of C.W. revealed “abrasions to her left arm,

      the back of her neck on the right side,” “an abrasion, bump behind her left ear,”

      and “hair that looked like it had been pulled.” Id. at 43. C.W.’s statements to

      Nurse Hostetler prompted a CAT scan for permanent damage to the choroidal

      arteries and an ultrasound to confirm and assess the pregnancy.


[9]   At the close of the evidence, the trial court found Blackburn guilty as charged

      and made the following sentencing remarks:


              THE COURT: . . . I am going to find Mr. Blackburn guilty. I do
              believe that the testimony that was offered through [C.W.] today
              represents somewhat of a backtracking, actually quite a bit of
              backtracking from what she originally told the police and the
              other medical personnel on this particular evening.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 4 of 14
               We do have, you know, the testimony from those witnesses
               regarding the visibly [sic] physical injuries that they observed.
               She told the nurse that she was choked, and the nurse observed
               abrasions on her arm, back of her neck, bump above her ear
               which the officer . . . testified . . . that he attempted to
               photograph as well. And based upon the information that she
               gave to the nurse, that’s why the CT scan was done, that’s why
               the ultrasound was done.


               And even if I take her at what she said as being the description of
               what happened, certainly I think, you know, she had a cell phone
               in her hand, [Blackburn] was trying to take it away from her.
               She obviously didn’t want her cell phone taken away from her.
               So regardless of which set of circumstances, and I believe it’s
               quite frankly what she told the police and the emergency
               responders on April 29th is that she was touched, she was
               touched in a rude, insolent or angry manner, and Mr. Blackburn
               was a family or household member based upon [C.W.]’s
               testimony as well that they lived together at this apartment.


       Id. at 52-53. The trial court then sentenced Blackburn to ninety days in jail, all

       suspended to probation, ordered his participation in a batterers’ intervention

       program, and entered a domestic violence determination against him.

       Blackburn now appeals.


                                                   Analysis
                                        I.      Admissibility of Evidence

[10]   Blackburn argues that the trial court erred in allowing “multiple [instances] of

       inadmissible hearsay” evidence over his objections. Appellant’s Br. p. 15. A

       trial court’s decision to admit or exclude evidence is reviewed for an abuse of

       discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010), trans. denied
       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 5 of 14
       (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)). An abuse of

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

       effect of the facts and circumstances before the court, or if the court has

       misinterpreted the law.” Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App.

       2010).


[11]   Hearsay is an out-of-court statement offered in court to prove the truth of the

       matter asserted. Jones v. State, 800 N.E.2d 624, 627-28 (Ind. Ct. App. 2003)

       (citing Ind. Evidence Rule 801(c)). As a general rule, hearsay evidence is

       inadmissible. Id. (citing Evid. R. 802). Hearsay is not admissible in evidence

       unless a recognized exception applies. Evid. R. 802. These exceptions are

       enumerated by Indiana Rule of Evidence 803. Statements not admitted to

       prove the truth of the matter do not run afoul of the hearsay rule—they are not

       hearsay. Evid. R. 802.


                         1. Prior Identification Made Shortly After Perceiving

[12]   Blackburn argues that the trial court abused its discretion in admitting C.W.’s

       statement to Officer Roach identifying him as the person who caused her

       injuries. The statement was made as follows on direct examination of Office

       Roach:


                Q       * * * * * And did [C.W.] say who caused her injuries?


                [Defense counsel]:               Objection, Your Honor. Hearsay.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 6 of 14
               [Prosecutor]:        Your Honor, it’s not hearsay under 801
               (D)(1)(C), a prior identification of a person made shortly after
               perceiving. The declarant testified at trial and was subject to
               cross-examination.


               THE COURT:                Objection is overruled.


               Q        Did she state who caused her injuries?


               A        Mr. Blackburn.


       Tr. p. 30.


[13]   Evidence Rule 801(d)(1)(C) provides that “a statement is not hearsay if the

       declarant testifies in court, is subject to cross-examination about a prior

       statement, and the statement ‘is an identification of a person shortly after

       perceiving the person.’” See Kendall v. State, 790 N.E.2d 122, 127-28 (Ind. Ct.

       App. 2003) (witness’s prior statement to police identifying defendant as driver

       of car used in crime was admissible as substantive evidence under Evidence

       Rule 801(d)(1)(C) where witness recanted her prior identification statement at

       trial identifying defendant); see also Robinson v. State, 682 N.E.2d 806, 810 (Ind.

       Ct. App. 1997) (no error in allowing police detective to testify regarding

       witness’s identification of defendant where witness testified at trial and recanted

       his prior identification statement and claimed that his prior statement to police

       was a fabrication).


[14]   Here, the record reveals that, on arriving at the scene, Officer Roach

       interviewed C.W., who identified Blackburn as the person who battered her.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 7 of 14
       Because C.W. made the statement after Officer Roach arrived and before she

       was transported to the hospital, we find that the statement was an identification

       made shortly after C.W. perceived Blackburn. Because C.W. testified at trial—

       albeit to recant—and was available for cross-examination by defense counsel,

       the court did not abuse its discretion in admitting into evidence her prior

       identification of Blackburn as her batterer.


                          2. Statement for Medical Diagnosis or Treatment

[15]   Next, Blackburn contends the trial court erred in admitting, over his hearsay

       objection, Nurse Hostetler’s testimony regarding the events that brought C.W.

       to the emergency room. Tr. Vol. I p. 42 (“[C.W. said] she didn’t think that

       [Blackburn] was ever going to stop hitting her and he choked her to where she

       thought she was being choked for approximately three minutes.”). Defense

       counsel argued that C.W. believed that Nurse Hostetler was a law enforcement

       officer, and that Nurse Hostetler was questioning her for investigative law

       enforcement, rather than medical, purposes. Counsel for the State countered

       that C.W.’s statement fell within Indiana Evidence Rule 803(4).


[16]   Indiana Evidence Rule 803(4) generally permits statements made for the

       purpose of medical diagnosis or treatment to be admitted into evidence, even

       when the declarant is available. The statements must be “made by persons who

       are seeking medical diagnosis or treatment and describing medical history, or

       past or present symptoms, pain, or sensations, or the inception or general

       character of the cause or external source thereof insofar as reasonably pertinent

       to diagnosis or treatment.” Id.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 8 of 14
[17]   Rule 803(4)’s exception is grounded in a belief that the declarant’s self-interest

       in obtaining proper medical treatment makes such a statement reliable enough

       for admission at trial; stated differently, Rule 803(4) reflects the idea that people

       are unlikely to lie to their doctors as doing so might jeopardize their health. See

       White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992) (“a statement made in

       the course of procuring medical services, where the declarant knows that a false

       statement may cause misdiagnosis or mistreatment, carries special guarantees of

       credibility”). We employ a two-step test for purposes of admission under Rule

       803(4): First, “is the declarant motivated to provide truthful information . . . to

       promote diagnosis and treatment,” and second, “is the content of the statement

       such that an expert in the field would reasonably rely on it in rendering

       diagnosis or treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).


[18]   Here, Nurse Hostetler testified that C.W. was transported to the St. Joe Medical

       Center emergency room because she was reportedly pregnant and had just been

       involved in a physical altercation. Applying the two-step McClain test, we find

       that C.W. was likely anxious after she was transported to the hospital and,

       further, that her desire to seek and receive treatment may certainly be inferred

       under the circumstances. Moreover, the information that C.W. provided about

       being struck repeatedly and choked for approximately three minutes is

       information that a medical expert would reasonably rely upon in diagnosing or

       treating a pregnant battery victim.


[19]   As with C.W.’s “backtracking” at trial, it was the province of the trial court to

       assess the credibility of her testimony that she believed, at the time of their

       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 9 of 14
       meeting, that Nurse Hostetler was a police officer who was “just taking

       ultrasound.” Tr. p. 7. The record reveals that when they met, Hostetler wore

       blue scrubs, identified herself to C.W. as a registered nurse, questioned C.W.

       regarding her physical health, performed a “head to toe” physical exam of

       C.W., and administered a CAT scan and an ultrasound upon being advised by

       C.W. that she was pregnant and that she had been choked for approximately

       three minutes. Based on the foregoing, we conclude that the trial court did not

       abuse its discretion in admitting C.W.’s statement to Nurse Hostetler.


                                  3. Declarant’s Then-Existing State of Mind

[20]   Lastly, Blackburn argues that the trial court erred in admitting, over his hearsay

       objections, Officer Roach’s response to the prosecutor’s question, “Did [C.W.]

       make any statements concerning her physical condition?” Id. at 29. Officer

       Roach responded that “[C.W.] said she got choked [by Blackburn] and that her

       stomach hurt and that she was pregnant.” Id. at 30. Counsel for the State

       argued, and the trial court agreed, that C.W.’s statement to Officer Roach fell

       within hearsay exception Indiana Evidence Rule 803(3). 2




       2
        In his brief, Blackburn contends that admission of C.W.’s hearsay statement to Officer Roach violated his
       Sixth Amendment right to confront the witness against him. In Crawford v. Washington, 541 U.S. 36, 124 S.
       Ct 1354 (2004), the United States Supreme Court considered whether an out-of-court statement, which was
       admitted pursuant to a hearsay exception or because it met some other guarantee of trustworthiness, violated
       a criminal defendant’s Sixth Amendment right to confront witnesses against him when the declarant is
       unavailable. Blackburn’s reliance on Crawford is misplaced here because C.W. testified at trial. Id. at 59 n.9,
       1369 n.9 (holding that “when the declarant appears for cross-examination at trial, the Confrontation Clause
       places no constraints at all on the use of his [or her] prior testimonial statements”).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018             Page 10 of 14
[21]   Our Supreme Court has recognized that a statement of a declarant’s then-

       existing state of mind is admissible as an exception to the hearsay rule. Evid.

       R. 803(3); see Ford v. State, 704 N.E.2d 457, 459-60 (Ind. 1998). However, when

       the statement is not a direct assertion of the declarant’s then-existing state of

       mind but circumstantial evidence of it, it is being offered not to prove the truth

       of the matter asserted, but for some other purpose; thus, the statement by

       definition is not hearsay. See Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997);

       13, Robert Lowell Miller, Jr., INDIANA PRACTICE § 803.103A at 613-14

       (noting that when a declarant’s statement is offered as circumstantial evidence

       of the victim’s state of mind, it is offered for a purpose other than to prove the

       truth of the matter asserted, and therefore, is not hearsay). Accordingly, in such

       circumstance, the evidence need not be shown to be within an exception to the

       hearsay rule.


[22]   Here, it is difficult to imagine how Officer Roach’s testimony that C.W. said

       that “she got choked [by Blackburn] and that her stomach hurt and that she was

       pregnant” could be admitted for some purpose other than the truth of the

       matter asserted. Although the argument may reasonably be made that the

       statement was offered to explain physical injuries suffered at Blackburn’s hands,

       see Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000), we are not persuaded

       here, in part, due to C.W.’s backtracking at trial. We find instead that the State

       offered C.W.’s statement for the truth of the matter asserted; thus, C.W.’s

       utterance to Officer Roach is hearsay. Although Blackburn’s hearsay objection

       should have been sustained in this regard, the erroneous admission of this


       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 11 of 14
       utterance was nonetheless harmless because the State presented independent

       evidence that Blackburn battered C.W. through Nurse Hostetler’s testimony

       and circumstantial evidence of C.W.’s injury/injuries as observed by three

       testifying witnesses. See Fleener v. State, 656 N.E.2d 1140 (Ind. 1995); Ind. Trial

       Rule 61.


                                         II.      Sufficiency of Evidence

[23]   Blackburn argues that the evidence was insufficient to support his conviction.

       Specifically, he argues that “there was testimony offered which directly

       contradicted several essential elements of the charge, but which was still noted

       by the trial court as supporting a conviction.” Appellant’s Br. p. 6.


               When reviewing a challenge to the sufficiency of the evidence
               underlying a criminal conviction, we neither reweigh the
               evidence nor assess the credibility of witnesses. The evidence—
               even if conflicting—and all reasonable inferences drawn from it
               are viewed in a light most favorable to the conviction. We affirm
               if there is substantial evidence of probative value supporting each
               element of the crime from which a reasonable trier of fact could
               have found the defendant guilty beyond a reasonable doubt.


       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (citations and quotation

       omitted). “The factfinder is obliged to determine not only whom to believe, but

       also what portions of conflicting testimony to believe, and is not required to

       believe a witness’[s] testimony even when it is uncontradicted.” Wood v. State,

       999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013) (citation omitted).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 12 of 14
[24]   “The State need not present direct evidence to support each element of a crime,

       and it has long been held that circumstantial evidence will support a

       conviction.” Semenick v. State, 977 N.E.2d 7, 15 (Ind. Ct. App. 2012) (emphasis

       removed). Direct evidence has been defined as “[e]vidence that is based on

       personal knowledge or observation and that, if true, proves a fact without

       inference or presumption.” BLACK’S LAW DICTIONARY (10th ed. 2014).

       Circumstantial evidence has been defined as “[e]vidence based on inference and

       not on personal knowledge or observation” or as “[a]ll evidence that is not

       given by eyewitness testimony.” Id. A conviction may rest on circumstantial

       evidence alone. Peters v. State, 959 N.E.2d 347, 355 (Ind. Ct. App. 2011).

       Circumstantial evidence need not overcome every reasonable hypothesis of

       innocence; it is sufficient if an inference drawn from the circumstantial evidence

       reasonably tends to support the conviction. Id.


[25]   To convict Blackburn of Class A misdemeanor domestic battery, the State was

       required to prove that he knowingly or intentionally touched C.W. in a rude,

       insolent, or angry manner resulting in bodily injury, and that C.W. was living

       with Blackburn as if she were his spouse. Ind. Code § 35-42-2-1.3.


[26]   Here, when the police responded to the scene, Blackburn and C.W. were

       arguing heatedly. Officers Roach and Robinson each observed a bump behind

       C.W.’s ear. Attending ER Nurse Hostetler saw “abrasions to [C.W.’s] left arm,

       the back of her neck on the right side,” the “bump behind her left ear,” and

       “hair that looked like it had been pulled.” Tr. p. 42. At trial, the court

       admitted, as substantive evidence, C.W.’s statement to Nurse Hostetler that

       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 13 of 14
       “she didn’t think that [Blackburn] was ever going to stop hitting her and he

       choked her to where she thought she was being choked for approximately three

       minutes.” Id.


[27]   Based upon C.W.’s account to Nurse Hostetler and her injuries as observed by

       Officers Roach and Robinson and Nurse Hostetler, a reasonable factfinder

       could find beyond a reasonable doubt that Blackburn knowingly or

       intentionally touched C.W. in a rude, insolent, or angry manner by hitting and

       choking her, which resulted in physical pain. Blackburn’s arguments that C.W.

       later denied being battered, recanted her accusations, and offered an alternate

       explanation for her injuries amount to an invitation to reweigh conflicting

       evidence, which we cannot do. See Bailey, 979 N.E.2d at 135.


                                                 Conclusion
[28]   The trial court did not abuse its discretion in admitting evidence. Sufficient

       evidence supports Blackburn’s conviction.                We affirm.


[29]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1709-CR-2056 | August 1, 2018   Page 14 of 14
