MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        FILED
Memorandum Decision shall not be regarded as                  Mar 29 2017, 9:32 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,               CLERK
                                                               Indiana Supreme Court
collateral estoppel, or the law of the case.                      Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Josiah Keyes,                                            March 29, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1604-CR-828
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Lisa F. Borges,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No. 49G04-1509-
                                                         F3-32384




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 1 of 12
                                            Statement of the Case
                                                                                                   1
[1]   Josiah Keyes appeals his conviction of aggravated battery, a Level 3 felony.

      We affirm.


                                                    Issues
[2]   Keyes raises two issues, which we restate as:

                 I.       Whether the trial court abused its discretion in denying
                          Keyes’s request to reopen the case after both parties rested.
                 II.      Whether the trial court abused its discretion in prohibiting
                          Keyes from testifying about possible bias by one of the
                          State’s witnesses.

                                   Facts and Procedural History
[3]   Keyes and Davine Harding began dating in 2015, and he moved into her home

      in Indianapolis. They lived a few blocks away from Davine’s mother, Kim

      Mathes. Davine’s sister, Diamond, lived with their mother.


[4]   Shortly before midnight on September 8, 2015, Davine was sitting on Mathes’s

      front porch with Diamond when Keyes approached. He was angry and

      grabbed Davine by her shirt. Keyes and Davine walked away while Diamond

      asked what was wrong. She followed Davine and Keyes and saw Keyes hit

      Davine, knocking her to the ground.




      1
          Ind. Code § 35-42-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 2 of 12
[5]   Diamond ran to them and attempted to push Keyes away from Davine with her

      hands. Keyes pulled out a handgun and hit Diamond in the jaw with the butt

      of the gun. She fell to the ground, feeling intense pain in her mouth. Diamond

      got up and ran home, where she found her mother. They went to a neighbor,

      who called the police.


[6]   Officer Jeffery Newlin of the Indianapolis Metropolitan Police Department was

      dispatched to the scene. He encountered Mathes and Diamond, who was very

      upset and had “extensive injuries” to her jaw and teeth in the upper left portion

      of her mouth. Tr. Vol. I, p. 49. Her mouth was bleeding profusely and she had

      difficulty talking. Diamond identified Keyes as her assailant, claiming he hit
                                                               2
      her in the face with the butt of a handgun. Officers were dispatched to

      Davine’s residence. Davine refused to let the officers enter and told them

      Keyes was not there.


[7]   Meanwhile, Diamond was taken to a hospital. Her jaw was broken and doctors

      inserted wires to hold her damaged teeth in place. Diamond had recently had

      braces implanted, and they were damaged. Dr. Carrie Klene examined

      Diamond and reviewed her file. Dr. Klene estimated that Diamond would

      have had to have been struck with a force of four or more tons to cause the




      2
        Keyes claims it is incorrect to say that he hit Diamond with a gun because the jury found him not guilty of
      charges where the use or possession of a weapon was an element of the offense, and aggravated battery, the
      charge of which he was found guilty, does not require the use of a weapon. We disagree. Diamond testified
      that Keyes hit her with a handgun, and Officer Newlin testified that Diamond told him Keyes hit her with a
      handgun. We do not know the reasons for the jury’s decisions, but the not guilty verdicts do not preclude a
      conclusion that Keyes used a gun to commit aggravated battery against Diamond.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017             Page 3 of 12
       damage to her jaw and teeth. Diamond had to keep the wires in her mouth for

       a month, during which time she was limited to a liquid diet because she was

       unable to chew.


[8]    On September 10, 2015, Diamond and Mathes went to Davine’s home and

       discovered Keyes was there. They called the police. The police surrounded the

       residence and demanded that Keyes come out. He came out an hour later,

       smiling as he surrendered. He told Mathes to “go to hell.” Id. at 87. A

       detective examined Keyes and determined he did not have any injuries or

       marks on his hands. During post-arrest questioning by police, Keyes denied

       hitting anyone. He also asked a detective what would happen if a witness did

       not show up to testify at trial.


[9]    The State charged Keyes with aggravated battery, a Level 3 felony; battery by

       means of a deadly weapon, a Level 5 felony; pointing a firearm, a Level 6

       felony; and carrying a handgun without a license, a Class A misdemeanor.

       Prior to trial, Davine gave a recorded statement during which she was

       interviewed under oath by the State and Keyes. Davine claimed that Keyes

       pushed her to the ground, but only after she hit him first. In addition, she

       claimed Keyes hit Diamond in the face with his fist, but only after Diamond

       attacked him first. Davine also stated that she and Keyes were arguing that day

       because her mother had told her that Keyes was cheating on her.


[10]   Davine did not appear at trial, as we discuss in more detail below. Diamond

       testified as described above. Keyes testified that Davine hit him and then


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 4 of 12
       Diamond jumped on his back, causing him to hit Diamond with his fist in self-

       defense. The jury determined Keyes was guilty of aggravated battery and not

       guilty of the remaining charges. The court entered a sentence, and this appeal

       followed.


                                    Discussion and Decision
                          I. Denial of Request to Reopen Record
[11]   Keyes argues that the trial court should have reopened the record to allow him

       to present the transcript of Davine’s pretrial statement because she failed to

       appear at trial. The State responds that the court acted well within its discretion

       in denying Keyes’s request because he could have offered the transcript during

       his case in chief.


[12]   The decision to reopen a case is within the discretion of the trial court, and the

       decision will be reviewed only to determine whether there has been an abuse of

       discretion. Moss v. State, 13 N.E.3d 440, 446 (Ind. Ct. App. 2014), trans. denied.

       We will not set aside the trial court’s ruling unless we find that it was

       unreasonable considering all of the attendant circumstances. Walker v. State,

       587 N.E.2d 675, 677 (Ind. 1992).


[13]   Among the factors to weigh in the exercise of discretion are whether there is

       any prejudice to the opposing party, whether the party seeking to reopen

       appears to have rested inadvertently or purposely, the stage of the proceedings

       at which the request is made, and whether any real confusion or inconvenience

       would result from granting the request. Flynn v. State, 497 N.E.2d 912, 914

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 5 of 12
       (Ind. 1986). A prime consideration, as part of the concept of prejudice to the

       opposing party, is whether the opposing party has had adequate opportunity to

       prepare to rebut the evidence offered. Lee v. State, 439 N.E.2d 603, 604 (Ind.

       1982).


[14]   The State, but not Keyes, subpoenaed Davine to appear at trial. On the first

       day of trial, before the jury was selected, Keyes asked for a continuance,

       claiming he had reason to believe Davine would not appear in court that day.

       Keyes further stated that he had requested a subpoena for Davine that morning.

       The State objected to Keyes’s request for a continuance, noting that he could

       have subpoenaed Davine well before trial. The court denied the motion for

       continuance.


[15]   On the second day of trial, Davine did not appear. After the State rested, Keyes

       asked the court to issue a body attachment for Davine. The court denied

       Keyes’s request, determining that although counsel for Keyes had attempted to

       serve Davine with the subpoena multiple times, there was no proof she was

       aware of the subpoena. Keyes then asked for a continuance or recess, which

       the court denied.


[16]   Next, Keyes testified in his own defense. While he reviewed an exhibit, the

       court called the attorneys to the bench. Out of the jury’s hearing, the court told

       the parties a paralegal had called to say he had found Davine, but she refused to

       come to court even though court staff told her she had to testify.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 6 of 12
[17]   After the parties rested but before closing arguments or final instructions were

       given to the jury, Keyes asked that the transcript of Davine’s recorded statement

       be admitted as evidence. The trial court declined to reopen the case, stating:

               Okay. I appreciate your argument. And here’s - here’s what I’m
               thinking. I called counsel to the bench during the Defendant's
               testimony while he was reading this - the transcript of his
               conversation with the detective. So he was reviewing that and I
               called you all up to the bench and show you this note, which
               says: D, meaning Davine, is not coming and will not get in
               Dan’s, paralegal’s car. He did say she’s smoking week [sic], all
               right. So I shared that with you all. And then from then [sic],
               you finished cross and redirect and questions from the jury. And
               at no time did you - and I saw Mr. Bailey come into the court
               before that was - before you rested. At no time did you ask me
               then for a bench warrant for her explaining to me that she had
               been at this point subpoenaed. I might have been concerned
               about her ability to testify knowing that she was smoking week
               [sic] apparently. But at that point I think might have been when I
               could have allowed a bench warrant, and then if you could get
               her here fine. But you’ve rested. We went on with rebuttal and
               we’re done, okay.
       Tr. Vol. II, p. 312.

[18]   Applying the law to these facts, we cannot conclude the trial court abused its

       discretion in denying Keyes’s request to reopen the case. The court correctly

       noted Keyes was notified before ending his case-in-chief that Davine would not

       come to trial, but waited until after he had rested, the State had presented its

       rebuttal evidence and rested, and the jury was sent to lunch, to ask to reopen

       the case and submit the transcript to the jury. It thus appears Keyes rested his

       case purposefully rather than inadvertently. In addition, Keyes had not

       subpoenaed Davine prior to trial, which might have provided earlier notice that

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 7 of 12
       she did not intend to come to court and would have allowed the court to

       address her defiance in a more efficient manner.


[19]   Further, the State would have been unduly prejudiced by reopening the case to

       admit the transcript of the statement as evidence because Davine was not

       present to be questioned about her assertions in the statement. The State

       questioned Davine during her statement, but there are obvious differences in the

       questions a party might ask during discovery and the questions to be asked at

       trial. In addition, it was unclear whether Diamond, the State’s key witness, was

       present on the second day of trial to challenge Davine’s statement. It would

       have been inconvenient to ask her to return to rebut the statement.


[20]   Keyes correctly states that, in general, a party should be afforded the

       opportunity to reopen its case to submit evidence which could have been part of

       its case-in-chief. Gorman v. State, 463 N.E.2d 254, 257 (Ind. 1984). In this case,

       Davine’s statement could not have been part of Keyes’s case-in-chief because

       the statement contains hearsay. Hearsay is an out-of-court statement offered in

       evidence to prove the truth of the matter asserted. Ind. Evid. R. 801(c). In

       general, hearsay is not admissible as evidence. Ind. Evid. R. 802.


[21]   In the statement, Davine explained her mother told her that Keyes was cheating

       on her and that her mother did not like Keyes because Keyes told her mother’s

       boyfriend that her mother was cheating on him, both of which are hearsay. At

       trial, Keyes argued these statements could be admitted, not for the truth of the

       matter asserted, but instead to show Davine’s motive to fight with Keyes.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 8 of 12
       Davine and Mathes did not testify at trial, so those statements are irrelevant to

       prove motive as to them. Diamond testified at trial, but there is no indication in

       Davine’s statement that Diamond was aware of any allegations of cheating and

       thus it would not have been probative of Diamond’s motives. We cannot

       conclude the statement could have been admitted into evidence as part of

       Keyes’s case-in-chief. The trial court did not abuse its discretion in denying

       Keyes’s request to reopen its case. See Flynn, 497 N.E.2d at 915 (no abuse of

       discretion in denying defendant’s motion to reopen case; defendant

       purposefully rather than inadvertently rested its case and reopening the case

       could have inconvenienced State’s witnesses); Owen v. State, 269 Ind. 513, 523,

       381 N.E.2d 1235, 1241 (1978) (no abuse of discretion in denying defendant’s

       motion to reopen case where evidence defendant sought to present was

       inadmissible hearsay).


                            II. Limitation of Keyes’s Testimony
[22]   Keyes argues the court should have allowed him to testify that Mathes told

       Diamond and Davine that he was cheating on Davine. The State responds that

       such testimony was inadmissible and properly excluded.


[23]   A trial court has broad discretion to admit or exclude evidence. Wilson v. State,

       39 N.E.3d 705, 712 (Ind. Ct. App. 2015), trans. denied. We will disturb the trial

       court’s ruling only if the ruling amounts to an abuse of discretion, meaning the

       court’s decision is clearly against the logic and effect of the facts and

       circumstances or if it is a misinterpretation of the law. Id.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 9 of 12
[24]   Prior to trial, the State filed a motion in limine asking the court to forbid Keyes

       or his witnesses from mentioning, among other topics: “That prior to [the]

       incident in question the victim Diamond Harding and defense witness Davine

       Hardin’s [sic] mother Kim Mathes told Diamond and/or Davine Harding that

       the Defendant was cheating on Davine Harding.” Appellant’s App. p. 45.


[25]   The court granted the State’s motion without a hearing, but on the first day of

       trial, Keyes and the State presented argument on the motion. The court

       reaffirmed its decision to grant the State’s motion. On the second day of trial,

       Keyes filed a motion to reconsider the granting of the State’s motion in limine,

       and the court denied the motion to reconsider.


[26]   During Keyes’s testimony, he was asked why he and Davine were arguing on

       September 8, 2015. The State objected, and the trial court sustained the

       objection, determining that the basis of the dispute was “not relevant.” Tr. Vol

       II, p. 279. Keyes did not make an offer of proof to present his view of why he

       and Davine were fighting, but based on Keyes’s prior arguments to the trial

       court related to the motion in limine, he apparently would have testified they

       were fighting because Mathes had told Davine and Diamond that Keyes was

       cheating on Davine.


[27]   Keyes argues the evidence that Mathes told Davine and Diamond that he had

       cheated on Davine was relevant to show Diamond’s motive or bias. “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. The State


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 10 of 12
       responds that the evidence was irrelevant and was also hearsay. Keyes rejects

       the State’s hearsay claim, arguing that he would not have testified to what

       Mathes said to prove the truth of the statement. Instead, Keyes says his

       testimony about her statement would have been offered to show the effect it had

       on Davine and Diamond, that is, that they became angry and attacked him

       without provocation. An out-of-court statement that is offered to show its effect

       on the hearer’s state of mind is not hearsay. Whited v. State, 645 N.E.2d 1138,

       1140 (Ind. Ct. App. 1995).


[28]   We conclude the exclusion of Keyes’s testimony was at best harmless error.

       Even if the trial court’s decision to admit or exclude evidence was an abuse of

       discretion, we will not reverse if the admission constituted harmless error.

       Wilson, 39 N.E.3d at 712. An error will be found harmless if its probable

       impact on the jury, considering all the evidence in the case, is sufficiently minor

       so as not to affect the substantial rights of the parties. Id.


[29]   Here, the evidence supported the State’s case. Diamond described Keyes’s

       attack in detail. In addition, the medical evidence and the photographs of her

       injuries support Diamond’s version of events rather than Keyes’s claim that he

       reached around and hit her with his fist while she was on his back. The amount

       of force needed to inflict Diamond’s injuries was substantial – equivalent to four

       or more tons. Also, Keyes defied police orders to leave Davine’s home for over

       an hour and laughed as he was arrested. At the time of his arrest, he had no

       marks on his hands. Later, Keyes told a detective that he had not hit anyone,

       contradicting his subsequent claim of self-defense. Furthermore, Keyes

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 11 of 12
       described his version of the altercation to the jury. He claims he should have

       been allowed to fully discuss the circumstances of the incident, but Diamond

       did not attempt to explain why Keyes was angry on the night in question.

       Instead, she merely described the attack. The exclusion of Keyes’s testimony

       was harmless error. See Whited, 645 N.E.2d at 1140 (exclusion of witness

       statements was harmless error; the victim’s testimony, with additional medical

       evidence, supported her version of the attack and defendant presented his

       theory of the case).


                                                 Conclusion
[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-828 | March 29, 2017   Page 12 of 12
