MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Nov 08 2018, 7:10 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
Kristin A. Mulholland                                   Curtis T. Hill, Jr.
Crown Point, Indiana                                    Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cornell Louis Roberson,                                 November 8, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-752
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G01-1703-F3-13



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018                Page 1 of 15
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Cornell Roberson (Roberson), appeals his conviction for

      one Count of criminal confinement, a Level 3 felony, Ind. Code § 35-42-3-

      3(a)(2); one Count of criminal confinement, a Level 5 felony, I.C. § 35-42-3-

      3(a)(1); one Count of domestic battery, a Level 5 felony, I.C. § 35-42-2-

      1.3(c)(2); theft, a Class A misdemeanor, I.C. § 35-43-4-2(a); and one Count of

      interference with reporting of a crime, a Class A misdemeanor, I.C. § 35-45-2-5.


[2]   We affirm.


                                                   ISSUE
[3]   Roberson presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion by admitting certain evidence.


                      FACTS AND PROCEDURAL HISTORY
[4]   In January 2017, Shavonne Anthony (Anthony) and Roberson met and began

      dating. After a few days of dating, Roberson moved into Anthony’s apartment

      in Gary, Indiana. Within a week of Roberson living in Anthony’s apartment,

      Roberson’s brother (Brother) moved in. Anthony’s apartment was on the

      second floor of a two-story apartment building. The apartment had two

      entrances, one in the front and one in the back. The front door, which was up a

      set of stairs, had a metal gate in front of it that was locked by a padlock which

      needed a key to enter or exit the apartment.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 2 of 15
[5]   On the morning of January 19, 2017, Roberson accused Anthony of having a

      relationship with Brother. Anthony refuted the claims and an argument

      ensued. During the altercation, Roberson pinned Anthony on the ground using

      his legs. Roberson then tried to strike Anthony’s face with his gun, but

      Anthony successfully blocked the blow. Then using his closed fist, Roberson

      punched Anthony in her right eye. Before leaving the apartment, Roberson

      took Anthony’s cellphone to prevent her from calling the police. Anthony

      found an old phone she once had, and she used it to contact the police.


[6]   At approximately 11:00 a.m., Officer Anthony Boleware (Officer Boleware) of

      the Gary Police Department arrived at Anthony’s apartment. Anthony

      informed Officer Boleware what had happened. Using Roberson’s description,

      Officer Boleware circled the “midtown area” to find Roberson but was

      unsuccessful. (Transcript Vol. II, p. 240). Later that day, Anthony used

      Brother’s cellphone to talk to Roberson. Roberson assured Anthony that he

      would never hit her again, and he returned to Anthony’s apartment.


[7]   A week after the battery incident, Roberson evicted Brother from Anthony’s

      apartment. Even with Brother’s departure, Roberson’s and Anthony’s

      relationship “was kind of rocky.” (Tr. Vol. II, p. 78). One time while arguing,

      Roberson hit Anthony “with a belt buckle.” (Tr. Vol. II, p. 79). Roberson

      afterward threatened Anthony that he would “kill” her if she reported him to

      the police. (Tr. Vol. II, p. 79). Sometime after battering Anthony with the belt

      buckle, Roberson boarded up the back door to Anthony’s apartment and



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 3 of 15
      explained to Anthony that someone had attempted to breakin. The only way to

      exit Anthony’s apartment was now through the front door.


[8]   On the evening of January 31, 2017, Roberson ordered Anthony to go out on

      the streets to prostitute herself in order to get money for “drugs.” (Tr. Vol. II, p.

      83). Anthony agreed because she “didn’t want to get hit on no more,” and she

      thought complying with Roberson’s commands was the only solution to their

      already strained relationship. (Tr. Vol. II, pp. 81-82). Anthony was only gone

      for a short time because a patrolling officer stopped her and ordered her to

      return home. After Anthony explained to Roberson what had happened,

      Roberson refused to believe Anthony because another woman, who was

      visiting, gave information that contradicted Anthony’s version of events. When

      the woman left, Roberson and Anthony began arguing. At some point,

      Roberson armed himself with a hammer. Using the handle-side of the hammer,

      Roberson repeatedly hit Anthony’s arms. To avoid further beating, Anthony

      moved to the bedroom. Roberson followed Anthony and continued to hit

      Anthony’s arms. Roberson stopped hitting Anthony with the hammer, and he

      began choking her with his hands. As Anthony struggled to remove Roberson’s

      hands from her neck, the two fell on the floor. Roberson continued choking

      Anthony, and she lost consciousness for approximately five minutes. When

      Anthony regained consciousness, she saw Roberson walking “back and forth

      from the living room to the kitchen.” (Tr. Vol. II, p. 88). Roberson returned

      with a “half of a pool stick” which he had wrapped tape around. (Tr. Vol. II, p.

      87). After greasing the pool stick, Roberson “jammed it” several times into


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 4 of 15
       Anthony’s “butt.” (Tr. Vol. II, p. 88). Anthony told Roberson to “stop”

       because his actions were hurting her. (Tr. Vol. II, p. 89). Eventually, Roberson

       stopped.


[9]    Roberson thereafter ordered Anthony to go with him to his friend’s house that

       was two blocks away. At the friend’s house, Roberson instructed Anthony to

       offer the friend some of her pain medication or food stamps in exchange for

       drugs. Anthony successfully executed the transaction. When they returned to

       Anthony’s apartment, Roberson ordered Anthony to take a bath and go to bed.

       Before leaving Anthony’s apartment, Roberson took Anthony’s cellphone and

       house keys, and locked the apartment. At approximately 9:49 p.m., Officer

       John Artibey (Officer Artibey) encountered Roberson and arrested him for an

       offense unrelated to him battering Anthony. When Roberson was arrested, he

       had Anthony’s cellphone on his person. Roberson was detained in jail from

       January 31, 2017, through February 2, 2017.


[10]   The following morning, February 1, 2017, Anthony woke up with aching pains

       from the previous night’s battery. Anthony feared for her life and all she

       wanted to do was to escape from her own apartment. Anthony could not exit

       through the back door since it was boarded up . She also could not exit through

       the front door since she did not have a key. Anthony resolved to exit her

       apartment through a window. As she tried to crawl out of the window and

       onto a window ledge, she fell to the ground and injured herself. Anthony

       crawled to the apartment of her neighbor, Tannette McKinney (McKinney) and

       McKinney called 911. Anthony was then transported to the ER. Due to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 5 of 15
       impact of the fall, one of Anthony’s lumber vertebrae “burst” and “five portions

       of her spine” were injured. (Tr. Vol. II, p. 81). Also, Anthony “fractured” her

       “left ankle.” (Tr. Vol. II, p. 212). Due to the severity of her injuries, Anthony

       was subsequently transported from the Gary hospital to an Indianapolis

       hospital, where she underwent multiple surgeries and treatment.


[11]   On March 23, 2017, the State filed an Information, charging Roberson with

       criminal confinement as a Level 3 felony; two Counts of criminal confinement,

       as Level 5 felonies; two Counts of criminal confinement, as Level 6 felonies;

       domestic battery resulting in serious bodily injury as a Level 5 felony; domestic

       battery by means of a deadly weapon as a Level 5 felony; two Counts of

       domestic battery resulting in moderate bodily injury as Level 6 felonies;

       strangulation as a Level 6 felony; theft as a Class A misdemeanor; and

       interference with the reporting of a crime as a Class A misdemeanor.


[12]   A week before trial, pursuant to Indiana Rule of Evidence 404(b), Roberson

       filed a motion in limine, requesting the exclusion of a specific prior bad act, i.e.,

       his arrest on January 31, 2017, since it was for an unrelated offense. On

       September 18, 2017, through September 21, 2017, a jury trial was conducted.

       At the start of trial, the parties litigated the motion in limine. Roberson’s

       attorney argued that he wanted the date of Roberson’s arrest to be excluded at

       his trial since Roberson was “arrested on [January] 31st and [Anthony] didn’t

       call 911” until February 1, 2017. (Tr. Vol. II, p. 45). Roberson’s attorney

       contended that the jury would presume that Roberson had been “arrested for

       something else,” and he suggested that the State only needed to say that “at

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 6 of 15
       some point in time [Roberson] was arrested and [Anthony’s] cellphone was in

       his possession.” (Tr. Vol. II, p. 44). The trial court granted Roberson’s motion

       in limine.


[13]   During trial, the State called McKinney, the neighbor who lived in the

       apartment where Anthony crawled to after she fell out of her apartment.

       During her testimony, McKinney stated that Anthony sent her a picture

       depicting Anthony’s black eye. On cross examination, when asked to clarify

       when she purportedly received the photo of the black eye from Anthony,

       McKinney testified that she received the picture the day before Anthony came

       crawling to her door, i.e., January 31, 2017. McKinney also claimed that she

       no longer owned the cellphone which had the picture. Further, McKinney

       testified that on February 1, 2017, at approximately 3:00 a.m., she heard and

       saw Anthony outside her apartment claiming that she had been locked out.

       After McKinney’s testimony, the trial court recessed for the day.


[14]   At the beginning of the third day, the State requested the trial court to revisit its

       ruling on the motion in limine, arguing that McKinney’s testimony was factually

       impossible. The State alleged that it was not feasible that Anthony sent the

       photo of the black eye to McKinney on January 31, 2017 since Roberson had

       been arrested on that same day and Roberson had Anthony’s cellphone on his

       person. Further, the State theorized that McKinney’s testimony that Roberson

       had ejected Anthony from her apartment at 3:00 a.m. on February 1, 2017, was

       also factually impossible since Roberson was detained in jail from January 31,

       2017 through February 2, 2017. The State argued that it should be allowed to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 7 of 15
       set up “a timeline that [Roberson] was detained” in jail from January 31, 2017

       through February 2, 2017, in order to “prove every element of each crime

       beyond a reasonable doubt” as the facts pertaining to Roberson’s detainment

       “go to the crime of theft, [] confinement[,] and interference with reporting a

       crime.” (Tr. Vol. III, p. 55).


[15]   In explaining the importance of withholding the date and period when

       Roberson was detained in jail, Roberson’s attorney argued, “the jury is gonna

       know that [Roberson] was in jail for another offense, and they’re gonna have

       the inference that he is guilty of another crime.” (Tr. Vol. III, p. 58).


[16]   After the parties’ arguments, the trial court reversed its earlier ruling and

       concluded that the State


               should have every opportunity to prove [its case] to the jury
               beyond a reasonable doubt standard. . . . The State has made
               sufficient ground to allow this information to go before the jury.
               Now, do I think the word arrest [] should be eliminated?
               Absolutely, yes. . . . Can [the State] say detained? Absolutely,
               yes, as well. . . . And—[] of course, it would be improper for the
               State to make any [] further inference, let alone a suggestion, that
               it was an arrest of any type. It was simply a detention.


       (Tr. Vol. III, pp. 59-60). Roberson’s attorney subsequently expressed that he

       was “okay” with the trial court’s ruling, and the trial court noted Roberson’s

       continuing objection on the disputed evidence.


[17]   Thereafter, the State elicited the following testimony from Officer Artibey:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 8 of 15
        Q. Okay. Now I want to draw your attention to January 31st of
        this year. Were you working that day, do you remember?


        A. Yes.


        Q. Okay. At approximately 9:49 p.m. on January 31st, did you
        come into contact with [] Roberson?


        A. Yes, sir.


        Q. Okay. Subsequent to that interaction, did you end up
        detaining [] Roberson for approximately 48 hours?


        A. Yes, sir.


(Tr. Vol. III, p. 191). Officer Artibey also confirmed that Roberson had

Anthony’s cellphone during his arrest, that the cellphone was “placed into the

evidence locker,” and that the cellphone was returned to Anthony on February

27, 2017. (Tr. Vol. III, p. 191). While the trial court had specifically instructed

the State to refrain from using the word ‘arrest’ and simply infer that Roberson

had been ‘detained,’ the State asked Officer Artibey, without any objection, the

following questions:


        Q. Did you make a report as to the incident on [January] 3lst?


        A. Yes, sir.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 9 of 15
                 Q. I’m going to show you what’s been marked for identification
                 purposes as State’s 24. (Tendered). Do you recognize State’s
                 [Exhibit] 24? 1


                 A. Yes, sir.


                 Q. And what do you recognize that to be?


                 A. My arrest report (indicating).


                 Q. And that’s from January 3lst?


                 A. Yes, sir.


       (Tr. Vol. III, p. 192). At the close of the evidence, the jury found Roberson

       guilty on all Counts.


[18]   On February 26, 2018, at the sentencing hearing, the trial court imposed

       judgment of conviction for the Level 3 felony criminal confinement, Level 5

       felony criminal confinement, Level 5 felony domestic battery, Class A

       misdemeanor theft, and Class A misdemeanor interference with reporting of a

       crime. Due to double jeopardy concerns, the trial court declined to enter

       judgment of conviction for the other remaining guilty verdicts. Consequently,

       the trial court sentenced Roberson to fourteen years for the Level 3 felony

       criminal confinement conviction. For the two Level 5 felony convictions—




       1
           Although it was tendered, this exhibit was not enclosed for our review.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 10 of 15
       domestic battery by means of a deadly weapon and criminal confinement—the

       trial court imposed three-year sentences on each Count. Lastly, for the Class A

       misdemeanor convictions—theft and interreference with reporting of a crime—

       the trial court imposed one-year sentences on each Count. The two criminal

       confinement sentences were to be served consecutively, and the remaining

       sentences were to be served concurrently, resulting in an aggregate sentence of

       seventeen years.


[19]   Roberson now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[20]   The admission or exclusion of evidence is a determination entrusted to the

       discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App.

       2004), trans. denied. We will reverse a trial court’s decision only for an abuse of

       discretion. Id. An abuse of discretion occurs when the trial court’s action is

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

       before it. Id.


[21]   Roberson contends that the evidence relating to the date he was arrested and

       the period of his detainment in jail was inadmissible pursuant to Indiana

       Evidence Rule 404(b). The State argues that Roberson did not preserve his

       issue for appeal.


[22]   During the State’s case-in-chief, McKinney testified, and following her

       testimony, the State asked the trial court to revisit its ruling on the motion in

       limine. After the parties’ arguments, the trial court lifted its prior motion in
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 11 of 15
       limine ruling, and Roberson’s attorney conceded to the reversal, as long as the

       State did not allude to the fact that Roberson was arrested on January 31, 2017

       for an unrelated offense. Also, Roberson’s attorney articulated that he would

       object when the State introduced the evidence, but the trial court told him that

       it was not necessary.


[23]   In Hayworth v. State, 904 N.E.2d 684 (Ind. Ct. App. 2009), this court addressed

       the proper procedure for using continuing objections. We cautioned that if “the

       trial court does not specifically grant the right to a continuing objection, it is

       counsel’s duty to object to the evidence as it is offered in order to preserve the

       issue for appeal.” Id. at 692. Because the trial court informed Roberson’s

       counsel that it was not necessary to make an objection when the State sought to

       elicit testimony on the contested evidence, we find the trial court’s comment

       was sufficient to establish the showing of an ongoing objection. Thus,

       Roberson preserved his claim for appellate review.


[24]   Proceeding to the merits, Indiana Evidence Rule 404(b) provides that evidence

       of a crime, wrong, or other act “is not admissible to prove a person’s character

       in order to show that on a particular occasion the person acted in accordance

       with the character,” but it “may be admissible for another purpose, such as

       proving motive, opportunity, intent, preparation, plan, knowledge, identity,

       absence of mistake, or lack of accident.” Evidence Rule 403 provides, in turn,

       that evidence, even if relevant, should be excluded “if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 12 of 15
       presenting cumulative evidence.” Therefore, when the State seeks to use

       evidence of a crime, wrong, or other act, the court must (1) determine whether

       the evidence is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act and, if so, (2) balance the probative value

       of the evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221

       (Ind. 1997). We review a trial court’s ruling for an abuse of discretion. Spencer

       v. State, 703 N.E.2d 1053, 1057 (Ind. 1999).


[25]   Turning to the record, on the third day of Roberson’s trial, the State requested

       the trial court to lift its order on the motion in limine. In arguing its claim, the

       State sought to use the date when Roberson was detained in jail to prove at

       least the theft charge. For the theft allegation, the State had to prove Roberson

       (1) knowingly or intentionally; (2) exerted unauthorized control over property

       of another person; (3) with intent to deprive the other person of any part of its

       value or use. I.C. § 35-43-4-2(a). Accordingly, the State planned to introduce

       evidence of Anthony’s cellphone being in Roberson’s possession after he was

       booked in jail as the ground for that charge. While reversing its prior ruling on

       the motion in limine, the trial court reasoned that the “State should have every

       opportunity to prove [its case] to the jury beyond a reasonable doubt standard.”

       (Tr. Vol. III, p. 59).


[26]   Officer Artibey later testified that when he “encountered” Roberson on January

       31, 2017, he had Anthony’s cellphone on his person, and that Roberson was

       detained “for approximately 48 hours.” (Tr. Vol. III, p. 191). Officer Artibey

       added that Anthony’s cellphone was stored in the evidence locker and returned

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 13 of 15
       to Anthony on February 27, 2017. While the trial court had specifically

       instructed the State not to mention the word arrest, the State asked Officer

       Artibey what State’s Exhibit 24 related to, and Officer Artibey stated that it was

       the “arrest report” he prepared after arresting Roberson on January 31, 2017.

       (Tr. Vol. III, p. 192).


[27]   Roberson then cites to the many questions the jury asked Officer Artibey

       regarding why and how long he was detained in jail; however, after our review of

       the record, we find that the trial court did not allow these jury questions to be

       made to Officer Artibey in open court. Moreover, we find unpersuasive

       Roberson’s assertion that the jury overestimated the value of the evidence

       relating to the date and period of his detainment to imply that that he was

       arrested on unrelated charges on January 31, thereby painting him as a generic

       criminal with bad character. Roberson’s argument that the jury was left no

       choice but to infer that the detention was based on unrelated charges lacks

       merit. Roberson did not ask for a limiting instruction at the time the evidence

       was entered, and the jury members were specifically instructed that Roberson

       could not be convicted on speculation. “When the jury is properly instructed,

       we will presume they followed such instructions.” Weisheit v. State, 26 N.E.3d

       3, 20 (Ind. 2015).


[28]   Here, we find that the risk of unfair prejudice was severely limited by the

       paucity of details about the reason or manner of Roberson’s detention. No facts

       about the underlying motive for the arrest were elicited, and no further

       development about the arrest occurred outside of what was needed to show

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 14 of 15
       Anthony’s cellphone was in Roberson’s possession. Therefore, the admission

       of that evidence went to a permissible purpose, to prove the theft charge, and

       the risk of unfair prejudice did not substantially outweigh the probative value of

       that evidence. Accordingly, we conclude that the trial court did not abuse its

       discretion in admitting the challenged evidence.


                                            CONCLUSION
[29]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by permitting the State to present evidence of Roberson’s detainment.


[30]   Affirmed.


[31]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-752 | November 8, 2018   Page 15 of 15
