MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 04 2017, 9:04 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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Vaughn L. Reid                                           Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Vaughn L. Reid,                                          August 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1606-CR-1286
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Evan S. Roberts,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D01-1502-F6-130



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017            Page 1 of 7
                                             Case Summary
[1]   Vaughn Reid appeals his conviction for Level 6 felony domestic battery. We

      affirm.


                                                     Issue
[2]   The sole issue before us is whether the trial court committed fundamental error

      in sustaining the State’s objection to hearsay evidence Reid wished to

      introduce.


                                                     Facts
[3]   On December 22, 2014, at around noon, L.F. called her mother, Sara

      Gonzalez, to say that she was having an argument with Reid. Reid was L.F.’s

      live-in boyfriend and the father of their one-year-old child. Gonzalez

      sometimes referred to Reid as L.F.’s “husband,” even though they were not

      married. Tr. p. 156. Foster’s actual ex-husband was living in Philadelphia in

      December 2014.


[4]   Gonzalez went to L.F. and Reid’s home in Elkhart in response to the call. L.F.

      let Gonzalez inside the house when she arrived. Gonzalez observed L.F. and

      Reid arguing and pushing each other; L.F. was pushing Reid away to keep him

      from hitting her. When Gonzalez told Reid to stop, he said “Get the f*** out

      of my house.” Id. at 163. Gonzalez then picked up L.F. and Reid’s child and

      began leaving the house. As L.F. was following Gonzalez out of the house,

      Reid began hitting her on the face with a plastic clothes hanger, causing


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017   Page 2 of 7
      lacerations to L.F.’s face. Gonzalez then called 911 and reported that L.F.’s

      “husband” had hit her in the face and that she was bleeding. Ex. 201.


[5]   The State charged Reid with Level 6 felony domestic battery committed in the

      presence of a child. L.F. originally gave a statement to police that Reid had

      battered her. About a month after the offense, L.F. moved back in with Reid,

      and she did not cooperate with investigators. On June 19, 2015, L.F. wrote a

      letter to the prosecutor stating that she had falsely accused Reid of battering her.

      Rather, the letter claimed, another male friend who had spent the night at the

      home in Reid’s absence had battered her. The letter also claimed that Gonzalez

      arrived at the home shortly after the incident and that L.F. had falsely told her

      that Reid battered her because she did not want her mother to know she had

      spent the night with another man.


[6]   Reid’s jury trial was held on April 13, 2016. L.F. did not testify during trial.

      However, Gonzalez testified that she witnessed the incident and described it in

      detail. During cross-examination of Gonzalez, defense counsel asked her, “you

      recall when [L.F.] told you that this actually didn’t happen?” Tr. pp. 205-06.

      The State objected on hearsay grounds before Gonzalez answered, and during a

      bench conference, defense counsel referred to L.F.’s written recantation of her

      accusation of Reid. The trial court asked defense counsel what hearsay

      exception would allow introduction of L.F.’s recantation, and counsel

      responded, “At this point I can’t think of any so I’ll withdraw the question.” Id.

      at 206-07. The trial court then instructed the jury to disregard the last question.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017   Page 3 of 7
      The jury found Reid guilty as charged and the trial court convicted and

      sentenced him accordingly. Reid now appeals. 1


                                                     Analysis
[7]   Reid’s sole argument is that the trial court improperly prohibited him from

      questioning Gonzalez about L.F.’s recantation. Generally, we will reverse a

      conviction based on an erroneous evidentiary ruling only if the trial court has

      abused its discretion and the error was prejudicial. Williams v. State, 43 N.E.3d

      578, 581 (Ind. 2015). “A trial court abuses its discretion when its ruling is either

      clearly against the logic and effect of the facts and circumstances before the

      court, or when the court misinterprets the law.” Id. The erroneous exclusion of

      evidence does not require reversal of a conviction if the error was sufficiently

      minor so as not to affect the defendant’s substantial rights. Rohr v. State, 866

      N.E.2d 242, 246 (Ind. 2007).


[8]   The State notes that Reid’s attorney expressly withdrew questioning about

      L.F.’s recantation when asked by the trial court to explain why that questioning




      1
        After briefing was completed in this case, we granted Reid’s appointed attorney’s motion to withdraw his
      appearance, which was made at Reid’s request. Reid subsequently filed conflicting representations to this
      court, one of which stated he wanted to proceed pro se, and one of which stated he did not want to proceed
      pro se and wanted to be appointed counsel from “down state.” Reid also filed a motion to “Stop Briefing
      and Appendix.” By separate order we have denied Reid’s motions for appointment of a new attorney and to
      suspend consideration of this appeal on the authority of Denton v. State, 455 N.E.2d 905, 909-10 (Ind. 1983)
      (denying defendant’s motion to withdraw brief filed by appointed attorney and to replace it with pro se brief,
      observing that granting motion “would permit parties to repudiate at will their express request for
      appointment of appellate counsel” and “would result in substantial disruption of the administration of the
      courts”). We also note that, although an indigent defendant has a right to an attorney, he or she has no right
      to court-appointed counsel of his or her choice. Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017              Page 4 of 7
       would not elicit inadmissible hearsay. Reid attempts to come up with such

       explanations on appeal. However, a defendant cannot raise new issues or

       arguments on appeal that were not presented to the trial court. Hitch v. State, 51

       N.E.3d 216, 219 (Ind. 2016). Thus, the issue is waived, and Reid can obtain

       reversal of his conviction only if he can establish fundamental error. See id.

       The fundamental error rule allows for reversal of a conviction only under

       extremely narrow circumstances, i.e. when the error amounts to 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.


[9]    Indiana Evidence Rule 801(c) defines “hearsay” as a statement that “(1) is not

       made by the declarant while testifying at the trial or hearing; and (2) is offered

       in evidence to prove the truth of the matter asserted.” Reid contends evidence

       regarding L.F.’s recantation would not have been introduced for the truth of the

       matter asserted, but either to show Gonzalez’s bias, prejudice, or interest for or

       against a party, or to impeach Gonzalez’s credibility.


[10]   A prior inconsistent statement used to impeach a witness is not hearsay if the

       declarant testifies and is subject to cross-examination about the prior statement,

       and the prior statement was given under penalty of perjury at a trial, hearing, or

       other proceeding, or in a deposition. Ind. Evidence Rule 801(d)(1)(A).

       Additionally, the witness must be given an opportunity to explain or deny the

       prior inconsistent statement. Ind. Evid. R. 613(b). Clearly, it is evident that in

       order to use a prior inconsistent statement as impeachment of a witness, the

       statement must be the witness’s own statement. Reid cites no authority for the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017   Page 5 of 7
       proposition that one witness’s testimony can be “impeached” by out-of-court

       statements made by a different person.


[11]   As for the bias issue, “Evidence that a witness has a bias, prejudice, or interest

       for or against any party may be used to attack the credibility of the witness.”

       Ind. Evid. R. 616. However, Reid fails to explain how L.F.’s recantation shows

       a bias or prejudice against him on Gonzalez’s part. The only way in which it

       could possibly have done so would be if L.F.’s out-of-court assertion that Reid

       was not her assailant was found to be true—thus leading to the inference that

       Gonzalez was lying about the incident because of some improper motive. But,

       “if to establish a collateral issue the statements must first prove the truth of the

       matter asserted, it remains hearsay.” Smith v. State, 721 N.E.2d 213, 218 (Ind.

       1999). Reid has failed to establish that he intended to use L.F.’s recantation at

       trial for any permissible non-hearsay purpose; rather, it appears he wanted to

       have L.F.’s recantation “testimony” in the record without her having to

       actually testify and be subject to cross-examination about it.


[12]   In any event, the jury was well aware that L.F. did not testify in support of the

       prosecution, and also was informed that she did not cooperate with

       investigators. The jury clearly could have, and likely did, infer that L.F. for

       whatever reason did not want Reid to be found guilty of this offense, as is often

       the case in domestic violence situations, and yet it found him guilty anyway.

       Gonzalez’s testimony was very clear that she personally witnessed the incident

       and that Reid, not some other man, was the assailant. In sum, the trial court’s



       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017   Page 6 of 7
       refusal to allow Reid to present evidence of L.F.’s recantation through

       Gonzalez’s cross-examination was not fundamental error.


                                                 Conclusion
[13]   The trial court did not commit fundamental error in denying Reid permission to

       present evidence of L.F.’s out-of-court recantation of her accusation of Reid.

       We affirm his conviction for Level 6 felony domestic battery.


[14]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1286 | August 4, 2017   Page 7 of 7
