MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jul 17 2018, 9:00 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
Kristin A. Mulholland                                     Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles A. McMichael, Jr.,                                July 17, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-394
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45G01-1703-F3-11



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018                       Page 1 of 13
                                           Case Summary
[1]   Charles A. McMichael (“McMichael”) appeals his convictions, following a jury

      trial, for burglary, as a Level 4 felony;1 kidnapping, as a Level 6 felony;2

      residential entry, a Level 6 felony;3 three counts of invasion of privacy, as Class

      A misdemeanors;4 domestic battery, as a Class A misdemeanor;5 and a habitual

      offender enhancement.6


[2]   We affirm.



                                                    Issues
[3]   We restate the issues on appeal as follows:


                 I.       Whether McMichael waived his challenge to the
                          admissibility of testimony regarding the credibility of the
                          victim’s statement to police by failing to state specific
                          grounds for his objection.




      1
          Ind. Code § 35-43-2-1.
      2
          I.C. § 35-42-3-1.
      3
          I.C. § 35-43-2-1.5.
      4
          I.C. § 35-46-1-15.1(1).
      5
          I.C. § 35-42-2-1.3(a)(1).
      6
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018      Page 2 of 13
              II.      Whether the trial court committed fundamental error
                       when it admitted testimony regarding the credibility of the
                       victim’s statement to police.


                            Facts and Procedural History
[4]   A.S. and McMichael were married for eight years and lived together in a

      residence located in Hammond. Three of A.S.’s children from her prior

      relationships lived in the residence as well. By January of 2017, A.S.’s and

      McMichael’s relationship had deteriorated, and McMichael left the marital

      residence while A.S continued to reside there with her children. However, at

      some point during the first week of March of 2017, McMichael called A.S. and

      informed her that he was coming “home” and that “it was going to be a

      problem” if her children “said anything.” Tr. Vol. I at 53. Fearing for her and

      her children’s safety, A.S. and her children went to a hotel.


[5]   On March 6, 2017, A.S. obtained an ex parte order for protection against

      McMichael, and it was served on him on March 7, 2017. The protective order

      prohibited McMichael from contacting A.S. and her children directly and

      indirectly and ordered him to stay away from A.S.’s residence and place of

      employment. However, A.S. was still afraid to return to her residence.

      Therefore, she and McMichael arranged to meet at A.S.’s residence on the

      morning of March 8 in order to exchange McMichael’s house key for the title to

      A.S.’s vehicle—which McMichael was driving—with the understanding that

      McMichael would then leave A.S. alone and allow her to return to her home.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 3 of 13
[6]   On March 8, at A.S.’s residence, McMichael gave A.S. his house key and they

      both went inside the house to search for the title to the car. Once inside,

      McMichael began to choke A.S. and threatened to kill her and himself.

      Eventually, McMichael released his grip on A.S.’s neck, but he continued to

      threaten her and accuse her of accessing a dating website. McMichael

      brandished a pair of scissors at A.S. and demanded that that she give him her

      password for the dating website. A.S. typed the password into McMichael’s

      cellular telephone, and McMichael accessed A.S.’s account and looked at all

      her messages on the dating website. After approximately three to four hours,

      McMichael and A.S. walked out of the house and McMichael began to

      apologize to A.S. Then they both went back into the house where A.S. found

      the title to the car and gave it to McMichael. McMichael then left.


[7]   The next morning, March 9, McMichael called A.S. and once again demanded

      her password to the dating website because he could no longer access it. A.S.

      refused to give him the password, and McMichael informed her that he was

      “on [his] way” over to her house. Tr. Vol. I at 81. A.S., whose children were

      at school, immediately collected her belongings and drove away from the

      house. When she was a few houses away, she observed McMichael “come out

      of nowhere.” Id. McMichael sped up to drive behind A.S.’s vehicle and was

      driving so fast that he almost hit her. When McMichael then pulled in front of

      A.S. and stopped his vehicle, A.S. parked and waited as she tried to figure out

      how to escape McMichael.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 4 of 13
[8]    A.S. then observed Mercedes Martin (“Martin”) and Damon Musgrave

       (“Musgrave”) standing outside their house. A.S. exited her vehicle and

       screamed at McMichael that she had already sent him the password in a text

       message. A.S. then yelled to Martin and Musgrave to call the police because

       her husband was trying to kill her. A.S. ran up to Martin’s and Musgrave’s

       house, and McMichael quickly turned his vehicle around and drove into the

       front yard, where he almost ran over Martin. Inside the house, A.S. told

       Martin’s boyfriend and Courtney Kelley (“Kelley”), Musgrave’s girlfriend,

       “Call the police. My husband’s trying to kill me, someone call the police.” Id.

       at 166.


[9]    McMichael forced his way into the house through the front door, grabbed A.S.

       by her hair, called her derogatory names, and told her, “let’s go.” Id. at 89.

       McMichael looked very angry, violent, and “dangerous.” Id. at 229. A.S. tried

       to fight off McMichael, but he grabbed her by her hair and shirt and dragged

       her back outside. McMichael then attempted to force A.S. into his vehicle, but

       A.S. resisted and fought against him. A.S. repeatedly told McMichael to stop

       and stated that she had given him the password he wanted. Someone in the

       house said, “call the police, get his license plate number.” Id. at 91. When

       McMichael heard that, he told A.S., “see what happens next,” and then entered

       his vehicle and drove off. Id. A.S. then called 9-1-1.


[10]   Several officers, including Officer David Hornyak (“Officer Hornyak”) with the

       Hammond Police Department, responded to the scene at approximately 8:15

       a.m. The officers obtained statements from A.S. and the four occupants of the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 5 of 13
       house into which A.S. had run. A.S., who was “crying” and “scared, frantic,

       [and] hysterical,” told the officers that her husband was trying to kill her over a

       password that she had given him via a text message, that she had run into the

       house for safety before he dragged her out, and that McMichael had been at her

       house the day before, choking her and threatening her life. Tr. Vol. II at 12, 26.

       A.S. also showed the officers the protective order that she had against

       McMichael and informed them that McMichael had told her that he wanted the

       police to kill him. The officers took photographs of the injuries A.S. had

       sustained the previous day, and Officer Hornyak created an incident report

       based on the information A.S. provided to him.


[11]   After March 9, McMichael continued to send A.S. voice messages that stated,

       “this is what you wanted. You got the police after me. You got the restraining

       order. Nothing’s going to stop me. No paperwork. No anything is going to

       stop me from doing anything.” Id. at 97. On March 12, McMichael sent A.S.

       multiple text messages, asking her where she was. A.S. left work at 10:00 p.m.

       and, as she drove toward her home, she encountered McMichael waiting for

       her a block away from her house. A.S. tried to maneuver her vehicle away

       from McMichael, but he turned his vehicle to block her from leaving.


[12]   As McMichael approached A.S.’s vehicle, he was crying and telling her to just

       talk to him. A.S. tried to calm him and urged him to go back to the front of her

       house because she was on a corner where no one could see her. McMichael

       followed A.S. to the front of her house as he continued to cry and tell her how

       sorry he was. McMichael told A.S., “let’s work this marriage out. Let’s meet

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 6 of 13
       up somewhere. Let’s talk.” Id. at 100. In order to calm McMichael, A.S.

       agreed to meet him in an “open space” where “everybody can see [them].” Id.

       at 101, 115. A.S.’s children were inside the house, and when they saw

       McMichael, they called the police. The police arrived shortly thereafter and

       spoke to A.S. and McMichael. A.S. asked the officers to tell McMichael to

       leave and never return. McMichael left.


[13]   At approximately 6:58 a.m. the next morning, March 13, McMichael sent a text

       message to A.S. stating, “I can’t f---ing sleep, my mind is so driving me nuts,”

       but A.S. did not reply. Id. at 114. At 9:15 a.m., he sent a second text message

       to A.S. asking her if they were “still going to meet up later,” to which A.S.

       responded that she could not. Id. at 108-09. McMichael continued to send

       A.S. text messages, but she would not respond. Finally, McMichael sent a text

       message to A.S. stating, “I’m coming to your job, f--- it. It’s going to happen

       there with the police since you won’t answer me,” and he then informed her

       that he was on his way to her. Id. at 116.


[14]   A.S. called the police and, shortly thereafter, she received another text message

       from McMichael that stated “you have the state trooper calling my phone. I

       told him I’m on my way and I’m going to make them kill me. You asked for

       it.” Id. at 118. A.S. did not respond, and McMichael continued to send her

       additional text messages. Officers came to A.S.’s place of employment,

       questioned her, and, for her own safety and the safety of others at her

       workplace, took her with them to the police station until McMichael could be

       found. Later that day the police found McMichael inside his vehicle at a CVS

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 7 of 13
       Pharmacy in Highland. McMichael threatened to kill himself, so he was taken

       to the hospital. After his apprehension, McMichael continued to call A.S.

       repeatedly from the hospital and, later, the jail.


[15]   McMichael was arrested and ultimately charged with twelve different counts in

       relation to the incidents in March. His jury trial took place from December 11

       through 13, 2017. A.S. testified regarding all of the incidents in March, and

       Martin, Musgrave, and Kelley also testified about the events they witnessed on

       March 9. The State entered into evidence the protective order against

       McMichael, pictures of the scene in front of Martin’s and Musgrave’s house on

       March 9, pictures of the injuries A.S. sustained on March 8, transcripts of text

       messages McMichael sent to A.S. on March 13, and recordings of the 9-1-1

       calls on March 9 and March 13.


[16]   In addition, Officer Hornyak testified that he created an incident report on

       March 9 with the information A.S. provided to him because he “found [A.S.]

       credible.” Tr. Vol. II at 28. McMichael objected to this testimony stating,

       “Objection to this officer’s testimony that he found her credible. That’s the

       reason he wrote a report.” Id. at 29. The trial court overruled the objection,

       and Officer Hornyak explained that he found A.S. credible because he “didn’t

       believe she had any reason to be lying about the incident. She appeared to be

       scared, hysterical.” Id.


[17]   The jury found McMichael guilty of burglary, as a Level 4 felony; kidnapping,

       as a Level 6 felony; residential entry, a Level 6 felony; three counts of invasion


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 8 of 13
       of privacy, as Class A misdemeanors; and domestic battery, as a Class A

       misdemeanor. They found him not guilty of the other counts. Thereafter,

       McMichael admitted his status as a habitual offender. The court held a

       sentencing hearing on January 17, 2018, and, after merging the residential entry

       count with the burglary count, the court entered judgments of conviction as to

       the remaining counts and sentenced McMichael to a total of of eighteen years

       in the Department of Correction. This appeal ensued.



                                  Discussion and Decision
                                                    Waiver
[18]   McMichael contends that the trial court erred in admitting Officer Hornyak’s

       testimony that he found A.S. credible when he interviewed her at the scene on

       March 9. At trial, McMichael objected to that testimony, but he did not state a

       legal basis for his objection. To preserve an error in the admission of evidence

       for appeal, a party must timely object and state “the specific ground [for the

       objection], unless it was apparent from the context.” Ind. Evidence Rule 103(a)

       (emphasis added). “The overriding purpose of the requirement for a specific

       and timely objection is to alert the trial court so that it may avoid error or

       promptly minimize harm from an error that might otherwise require reversal,

       result in a miscarriage of justice, or waste time and resources.” Camm v. State,

       908 N.E.2d 215, 223 (Ind. 2009) (citation omitted). Thus, “‘[a] mere general

       objection … is ineffective to preserve an issue for appellate review.’” Reed v.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 9 of 13
       Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App. 2014) (quoting Raess v. Doescher, 883

       N.E.2d 790, 797 (Ind. 2008)).


[19]   Here, McMichael’s attorney stated, “Objection to this officer’s testimony that

       he found her credible.” Tr. Vol. II at 29. Although McMichael did not cite to

       any specific rule of evidence or case law as the reason for his objection, it is

       apparent from the context that he made an objection to a witness’s “vouching”

       testimony pursuant to Evid. R. 704(b). That is, he objected because he believed

       Officer Hornyak testified as to the truth of the allegations against McMichael,

       in violation of Rule 704(b). Thus, he has not waived our review of that claim.


                            Admission of Officer’s Testimony
[20]   Assuming—without deciding—that the admission of Officer Hornyak’s

       testimony was erroneous as impermissible vouching testimony under Indiana

       Rule of Evidence 704(b), any such error was harmless.


               In evaluating whether erroneously admitted evidence was
               prejudicial, we assess its “probable impact ... upon the jury in
               light of all of the other evidence that was properly presented. If
               we are satisfied the conviction is supported by independent
               evidence of guilt[,] ... the error is harmless.” [Blount v. State, 22
               N.E.3d 559, 564 (Ind. 2014)]. Put another way, “we judge
               whether the jury’s verdict was substantially swayed. If the error
               had substantial influence, or if one is left in grave doubt, the
               conviction cannot stand[.]” Lafayette v. State, 917 N.E.2d 660,
               666–67 (Ind. 2009) (citation omitted).


       Williams v. State, 43 N.E.3d 578, 583 (Ind. 2015). Thus, in Palilonis v. State, 970

       N.E.2d 713, 731 (Ind. Ct. App. 2012), trans. denied, for example, we held the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 10 of 13
       error in admitting vouching testimony was harmless where that testimony

       “dealt with information that was already in evidence from other witnesses’

       testimony” and was supported by other evidence, such as medical evidence.

       Furthermore, we have generally held that a defendant is not denied a fair trial

       where he is given an opportunity to cross-examine the victim and other

       witnesses concerning the victim’s credibility. See, e.g., Edgin v. State, 657 N.E.2d

       445, 447 (Ind. Ct. App. 1995), trans. denied. “Even when the victim’s testimony

       is central to the issue of the defendant’s guilt or innocence, the defendant is not

       prejudiced so long as the finder of fact does not receive a one-sided view of the

       victim’s credibility.” Id.


[21]   Here, the challenged testimony is Officer Hornyak’s statement that he created a

       report documenting A.S.’s March 9 statements about the events that happened

       on March 9 because he “found her credible.” Tr. Vol. II at 28. However, three

       other eyewitnesses to the events on March 9—Martin, Musgrave, and Kelley—

       also testified as to those events and related the same information A.S. had

       related to Officer Hornyak on March 9 and to which she testified at trial. And

       the State presented additional evidence supporting A.S.’s trial testimony and

       her statement to Officer Hornyak, namely: the protective order against

       McMichael; pictures of the scene in front of Martin’s and Musgrave’s house on

       March 9; pictures of the injuries A.S. sustained on March 8; transcripts of text

       messages McMichael sent to A.S. on March 13; and recordings of the 9-1-1

       calls A.S. made on March 9 and March 13. Thus, McMichael’s convictions

       were supported by evidence of his guilt independent of A.S.’s testimony or the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 11 of 13
       statements she made to Officer Hornyak on March 9, making the admission of

       the alleged vouching testimony harmless error. Williams, 43 N.E.3d at 583.


[22]   Moreover, McMichael had the opportunity to—and did—cross-examine both

       Officer Hornyak and A.S. as to the statements A.S. made on March 9 and the

       testimony she gave at trial regarding the events of March 9. Given that

       McMichael had the opportunity to challenge A.S.’s credibility, the admission of

       the alleged vouching testimony did not deprive him of a fair trial. See Okuly v.

       State, 574 N.E.2d 315 (Ind. Ct. App. 1991) (finding no fundamental error in

       admission of vouching testimony where the defendant was “permitted to

       repeatedly assail the impression that [the victim] was truthful”).


[23]   Because McMichael’s convictions were supported by evidence independent of

       Officer Hornyak’s alleged vouching testimony, and because McMichael had

       sufficient opportunity to attack A.S.’s credibility, any error in the admission of

       Officer Hornyak’s testimony as to A.S.’s credibility regarding her March 9

       statement was harmless.



                                               Conclusion
[24]   McMichael’s objection to Officer Hornyak’s testimony was sufficient to

       preserve the issue of admissibility on appeal. However, even if the admission of

       the challenged testimony was impermissible, the error was harmless because

       McMichael’s convictions were supported by evidence independent of the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 12 of 13
       challenged testimony, and he had sufficient opportunity to challenge A.S.’s

       credibility.


[25]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-394 | July 17, 2018   Page 13 of 13
