MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                 Feb 22 2017, 6:02 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David L. Joley                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Asia Marshall,                                           February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1607-CR-1700
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John Surbeck,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable David Zent,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         02D06-1501-CM-132



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017   Page 1 of 9
                               Case Summary and Issues
[1]   Following a jury trial, Asia Marshall was convicted of domestic battery, a Class

      A misdemeanor, and disorderly conduct by fighting or tumultuous conduct, a

      Class B misdemeanor. Marshall appeals her convictions, raising two issues for

      our review: 1) whether the State presented sufficient evidence to support her

      conviction of domestic battery, and 2) whether her two convictions constitute

      double jeopardy. Concluding sufficient evidence supports Marshall’s

      conviction of domestic battery but the disorderly conduct conviction must be

      vacated due to a double jeopardy violation, we affirm in part and reverse and

      remand in part.



                            Facts and Procedural History
[2]   On December 9, 2014, Marshall and her live-in boyfriend of several years,

      Antonio Chacon, had an argument at their home that resulted in Chacon

      calling 911. Chacon reported to the 911 operator that Marshall hit him in the

      face with a remote control and his face was cut and bleeding. Two Fort Wayne

      police officers responded to the home within approximately ten minutes of the

      911 call and encountered Chacon, who was bleeding from a cut above his right

      eye and announced he wanted Marshall to be arrested. Officer Robert Abels

      spoke with Chacon, who related that he and Marshall had been arguing and she

      “stabbed him in one of his eyes with the remote control[.]” Transcript, Volume

      I at 77. Officer Abels also spoke with Marshall, who admitted she threw a

      remote at Chacon, but said Chacon’s eye was injured when he fell down the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017   Page 2 of 9
      stairs. When the officers placed Marshall under arrest, however, Chacon

      objected and indicated he did not want her to be arrested and did not wish to

      cooperate further.


[3]   The State charged Marshall with domestic battery, a Class A misdemeanor, and

      disorderly conduct, a Class B misdemeanor.1 At Marshall’s jury trial, the State

      called Chacon as a witness and played the audio of the 911 call for the jury

      without objection from Marshall. Chacon acknowledged it was his voice on the

      tape, but testified, “I don’t remember a lot that happened” on December 9,

      2014. Tr., Vol. I at 62. “It’s vague. Very vague. I remember just trying to just

      sleep off my hangover, and you know, [Marshall] was trying to kick me out,

      and next thing I know I’m trying to get out [of] the bed. I fall and I wake up

      and I’m bleeding everywhere.” Id. at 64. He explained telling 911 that

      Marshall hit him with a remote by stating, “when I hit my head, I thought

      maybe she had did [sic] it but I hit my head on the ground.” Id. at 68. On

      cross-examination by Marshall’s counsel, Chacon categorically stated that

      Marshall did not touch him the morning of December 9, 2014. The two officers

      testified without objection Chacon told them at the scene Marshall threw a

      remote at him causing his injuries.




      1
       The State originally filed the disorderly conduct charge pursuant to Indiana Code section 35-45-1-3(a)(2) for
      making unreasonable noise after being asked to stop. The charge was later amended to disorderly conduct
      pursuant to Indiana Code section 35-45-1-3(a)(1) for engaging in fighting or tumultuous conduct.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017           Page 3 of 9
[4]   The jury found Marshall guilty as charged and the trial court entered judgment

      of conviction on both counts and sentenced her to 365 days with 335 days

      suspended for the domestic battery conviction to be served concurrently with

      180 days with 150 days suspended for the disorderly conduct conviction.

      Marshall now appeals her convictions.



                                 Discussion and Decision
                                       I. Domestic Battery
[5]   Marshall claims the evidence is insufficient to support her conviction for

      domestic battery. Our standard of reviewing a sufficiency of the evidence claim

      is well-settled:


              First, we neither reweigh the evidence nor judge the credibility of
              witnesses. Second, we consider only the evidence supporting the
              judgment and any reasonable inferences that can be drawn from
              such evidence. A conviction will be affirmed if there is
              substantial evidence of probative value supporting each element
              of the offense such that a reasonable trier of fact could have
              found the defendant guilty beyond a reasonable doubt. . . . [W]e
              consider conflicting evidence most favorably to the [verdict].


      Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotations

      omitted).


[6]   Domestic battery as a Class A misdemeanor is defined by statute as knowingly

      or intentionally touching a person who is or was living as if a spouse in a rude,

      insolent, or angry manner that results in bodily injury. Ind. Code § 35-42-2-

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017   Page 4 of 9
      1.3(a) (2014). Marshall’s specific challenge to the sufficiency of the evidence is

      that the State produced only impeachment and circumstantial evidence of such

      a crime and not substantial direct evidence of probative value.


[7]   Although Marshall frames her issue in terms of a challenge to the sufficiency of

      the evidence, it appears she may actually be challenging the admission of

      evidence. We review the admission of evidence for an abuse of discretion.

      King v. State, 61 N.E.3d 1275, 1282 (Ind. Ct. App. 2016), trans. denied.

      However, Marshall did not object to the admission of any of the State’s

      evidence at trial. A failure to make a contemporaneous objection at trial will

      foreclose the raising of such error on appeal unless fundamental error occurred.

      Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Marshall makes no claim of

      fundamental error. We also note, however, that even if an objection had been

      made, there was no error in the admission of the officers’ testimony or of the

      911 call.


[8]   The officers’ testimony about Chacon’s statements when they arrived at the

      residence was admissible as an excited utterance under Indiana Rule of

      Evidence 803(2). To qualify as an excited utterance, a statement must have

      been made after a startling event has occurred, while under the stress or

      excitement caused by the event, and it must relate to the event. Young v. State,

      980 N.E.2d 412, 421 (Ind. Ct. App. 2012). Within ten minutes of making a

      phone call to 911, Chacon, bleeding from a cut above his eye, stepped outside

      his residence and immediately told the responding officers he wanted Marshall

      arrested because she had caused his injury by throwing a remote control at him.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017   Page 5 of 9
      There was no error in the admission of this evidence. See Fowler v. State, 829

      N.E.2d 459, 463-64 (Ind. 2005) (officer’s account of alleged victim’s statements

      to him when he responded to a call was properly admitted as an excited

      utterance after victim took the stand and refused to answer questions by either

      the State or defense), cert. denied, 547 U.S. 1193 (2006);2 see also Gordon v. State,

      743 N.E.2d 376, 379 (Ind. Ct. App. 2001) (affirming defendant’s battery

      conviction, even though victim did not testify, because responding officer did

      testify to his interaction with the victim: “Crimes that may be characterized as

      domestic violence offenses sometimes lend themselves to complaining witnesses

      recanting [or] failing to appear . . . . Indiana Evidence Rule 803(2) is the

      vehicle by which competent, admissible evidence comes to our trial courts in

      many of these situations.”).


[9]   As for the 911 call, a recording is not admissible unless the voices contained

      thereon are identified. Johnson v. State, 699 N.E.2d 746, 749 (Ind. Ct. App.

      1998). A caller’s identity must be established as a foundation for the admission

      of the content of a telephone call. King v. State, 560 N.E.2d 491, 494 (Ind.

      1990). The identity of the caller need not be proved beyond a reasonable doubt;

      identity may be established by circumstantial evidence, and any conflicts in the




      2
        Further, Chacon testified as a witness and was available for cross-examination, so there is no Confrontation
      Clause issue with using the officers’ testimony reporting his statements. See Fowler, 829 N.E.2d at 464
      (noting an excited utterance is not necessarily immune from attack under the Confrontation Clause, but also
      noting that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no
      constraints at all on the use of his prior testimonial statements.”) (quoting Crawford v. Washington, 541 U.S.
      36, 59 n .9 (2004)).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017           Page 6 of 9
       proof of identity go to the weight of the evidence and not the admissibility. Id.

       at 494-95. Here, the Fort Wayne/Allen County Communication Records

       Division certified the recording of the 911 call was a true and complete

       reproduction of the original recording. See State’s Exhibit 4. Although Chacon

       said he could only “vaguely” remember the phone call with 911, he affirmed it

       was his voice on the recording. Tr., Vol. I at 66. The veracity of the recording

       and the caller’s identity were therefore confirmed, and there was no error in

       playing the audio of the call for the jury.


[10]   With regard to the sufficiency of this evidence to prove Marshall committed

       domestic battery, Marshall does not challenge the element that she and Chacon

       were living as if spouses at the time of the incident. With respect to the

       remaining elements, the jury heard Chacon report to a 911 operator that he had

       been hit in the face with a remote and was bleeding, and it heard the responding

       officers testify they observed a fresh injury to Chacon’s face upon their arrival

       and that he told them Marshall had caused the injury. Although Chacon

       testified differently at trial, his credibility on the stand was a matter for the jury

       to assess, as was determining whether the evidence presented by the State in

       this particular case sufficiently proved the elements of the offense. See Willis, 27

       N.E.3d at 1066-67. Considering only the evidence most favorable to the

       verdict, we conclude there was substantial evidence of probative value

       supporting the jury’s determination that Marshall was guilty beyond a

       reasonable doubt of domestic battery. See Gordon, 743 N.E.2d at 379 (arresting

       officer’s testimony that victim, who was visibly shaking and had redness around


       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017   Page 7 of 9
       her neck, told him defendant had struck her in the face and chest with his fists

       and that defendant himself acknowledged that victim bruises easily was “more

       than sufficient” evidence to sustain conviction for battery).


                                         II. Double Jeopardy
[11]   Marshall also claims her convictions and sentences for both domestic battery

       and disorderly conduct by fighting constitute double jeopardy. The State agrees

       the two convictions cannot stand. On review, we also agree, as the evidence

       supporting both convictions is that Marshall threw a remote at Chacon,3 and

       therefore, that fact was necessarily used by the jury as the basis for both

       convictions. See Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999) (explaining

       that under the actual evidence test of the Indiana double jeopardy analysis, “the

       actual evidence presented at trial is examined to determine whether each

       challenged offense was established by separate and distinct facts”). When we

       find two convictions contravene double jeopardy principles, we may remedy

       the violation by reducing either conviction to a less serious form of the same

       offense if doing so will eliminate the violation. Id. at 54. That is not possible in

       this case because neither crime exists in a less serious form. Therefore,

       Marshall’s disorderly conduct conviction must be vacated.




       3
         As noted above, Marshall’s Class A misdemeanor domestic battery conviction required proof that she
       touched Chacon in a rude, insolent or angry manner. Ind. Code § 35-42-2-1.3(a)(2). The Class B disorderly
       conduct conviction required proof she engaged in fighting. Ind. Code § 35-45-1-3(a)(1).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017       Page 8 of 9
                                               Conclusion
[12]   The State presented sufficient evidence to support Marshall’s conviction of

       domestic battery. However, her convictions of both domestic battery and

       disorderly conduct violate the Double Jeopardy Clause of the Indiana

       Constitution. We therefore affirm Marshall’s conviction of domestic battery

       and remand to the trial court to vacate the conviction and sentence for

       disorderly conduct.


[13]   Affirmed in part, reversed and remanded in part.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017   Page 9 of 9
