MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                            FILED
court except for the purpose of establishing                    Mar 09 2017, 8:45 am
the defense of res judicata, collateral
                                                                     CLERK
estoppel, or the law of the case.                                Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robin Dalekilgore Peppers,                               March 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1610-CR-2493
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jenny Pitts Manier,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D05-1408-CM-3095



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017     Page 1 of 9
                                          Case Summary
[1]   On the evening of August 2, 2014, Appellant-Defendant Robin D. Peppers

      became involved in a disagreement with Anastazia Troup, with whom Peppers

      had been living and was involved in a romantic relationship. During this

      disagreement, Peppers called Troup derogatory names, physically assaulted her,

      and smashed her cellular phone on the ground. Peppers was subsequently

      arrested and charged with Class A misdemeanor domestic battery and Class B

      misdemeanor battery. Peppers was found guilty of these charges following a

      September 14, 2016 jury trial. On October 14, 2016, the trial court merged the

      Class B misdemeanor battery charge into the Class A misdemeanor domestic

      battery charged and sentenced Peppers to a suspended 365-day sentence and six

      months of probation.


[2]   On appeal, Peppers contends that the trial court abused its discretion in

      instructing the jury. Specifically, Peppers argues that the trial court should not

      have instructed the jury as to certain statutory factors which the jury could

      consider in determining whether Peppers and Troup were “living as if spouses.”

      In making this argument, Peppers asserts that the instruction setting forth these

      statutory factors unduly emphasized certain evidence. Concluding that the trial

      court did not abuse its discretion in instructing the jury, we affirm.



                            Facts and Procedural History


      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 2 of 9
[3]   As of August 2, 2014, Troup had been living with Peppers at his residence on

      North Olive Street in South Bend for approximately four months. At the time,

      Troup and Peppers were dating and had a sexual relationship. Troup regularly

      cleaned the house while she and Peppers lived together. She also paid the

      monthly rent and water bill because Peppers was unemployed at the time.


[4]   During the evening of August 2, 2014, Peppers and Troup began to argue after

      Peppers received text messages containing inappropriate pictures of nude

      women. Troup initially attempted to diffuse the situation by going into the

      parties’ shared home. Peppers, however, followed Troup into the home,

      grabbed onto her arms and yelled at her. Peppers “hit the back of the chair” in

      which Troup was sitting, sending her “flying backwards.” Tr. p. 56. Peppers’s

      actions caused Troup to feel pain and although she was “trying not to cry, …

      [she] had tears running down [her] face because [Peppers] was in [her] face

      screaming at [her].” Tr. p. 59.


[5]   Troup then proceeded to the couple’s shared bedroom and began placing her

      belongings in plastic trash bags. Peppers followed, “came storming through the

      house, slammed the bedroom door open and then slammed it shut behind

      him.” Tr. p. 57. Peppers proceeded to yell at Troup, calling her a “wh[***]”

      and “a useless piece of s[***].” Tr. p. 57. Peppers then grabbed Troup by the

      arms, pushed her up against the wall, wrapped his hand around her throat,

      picked her up off the ground, and “proceeded to yell at [her] while [she] was

      gasping for air.” Tr. p. 58. Peppers threw Troup onto the bed, grabbed her

      phone, and threw it to the other side of the bed “so [that she] could not reach

      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 3 of 9
      it.” Tr. p. 58. At some point during the parties’ dispute, Peppers slapped Troup

      across the face with an open hand, causing her pain.


[6]   Eventually, Troup managed to collect her phone and free herself from Peppers

      and get outside of the home. Peppers “proceeded to follow [Troup] outside,”

      “grabbed [her] phone out of [her] pocket,” and “ran back in the house and

      locked the dead bolt … so that [Troup] could not get back into the house.” Tr.

      pp. 58-59. When Troup was eventually able to enter the home, Peppers “took

      [Troup’s] phone, took the SD card out of [the] phone, and then smashed [the]

      phone on the ground.” Tr. p. 59.


[7]   Troup drove to a nearby Family Dollar store and called 911. South Bend

      Police Officers Michael Norby and Joseph Mitchell responded to Troup’s call.

      Upon arriving at the Family Dollar, Officer Norby found Troup “crying and

      kind of distraught.” Tr. p. 25. Troup indicated that she had been assaulted by

      Peppers and complained of pain. Officer Norby observed “slight red markings

      on her cheek.” Tr. p. 25. Officers Mitchell and Norby then drove to Peppers’s

      home and placed him under arrest.


[8]   On August 7, 2014, Appellee-Plaintiff the State of Indiana (“the State”) charged

      Peppers with one count of Class A misdemeanor domestic battery and one

      count of Class B misdemeanor battery. The case proceeded to a jury trial on

      September 14, 2016, after which Peppers was found guilty as charged. At

      sentencing, the trial court merged the Class B misdemeanor battery conviction

      into the Class A misdemeanor domestic battery conviction and sentenced


      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 4 of 9
       Peppers to a suspended term of 365 days and six months on probation. This

       appeal follows.



                                 Discussion and Decision
[9]    Peppers contends that the trial court abused its discretion in instructing the jury.

       Specifically, Peppers argues that the trial court should not have instructed the

       jury as to certain statutory factors which the jury could consider in determining

       whether Peppers and Troup were “living as if spouses.” In making this

       argument, Peppers asserts that the instruction setting forth these statutory

       factors unduly emphasized certain evidence.

[10]           The manner of instructing a jury lies largely within the discretion
               of the trial court, and we will reverse only for abuse of discretion.
               Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), cert. denied, 531
               U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000). To constitute an
               abuse of discretion, the instruction given must be erroneous, and
               the instruction taken as a whole must misstate the law or
               otherwise mislead the jury. Id. When determining whether a
               trial court erroneously gave or refused to give a tendered
               instruction, we consider the following: (1) whether the tendered
               instruction correctly states the law; (2) whether there was
               evidence presented at trial to support giving the instruction; and,
               (3) whether the substance of the instruction was covered by other
               instructions that were given. Fields v. State, 679 N.E.2d 1315,
               1322 (Ind. 1997).


       Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001).


[11]   There is no question in this case that the tendered jury instruction correctly

       stated the law in effect at the time Peppers committed the alleged domestic
       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 5 of 9
       battery. The version of the domestic battery statute that was in effect on the

       date in question provided as follows:


               (a) A person who knowingly or intentionally touches an
               individual who:
                       (1) is or was a spouse of the other person;
                       (2) is or was living as if a spouse of the other person
                       as provided in subsection (c); or
                       (3) has a child in common with the other person;
               in a rude, insolent, or angry manner that results in bodily injury
               to the person described in subdivision (1), (2), or (3) commits
               domestic battery, a Class A misdemeanor.
                                                 ****
               (c) In considering whether a person is or was living as a spouse of
               another individual for purposes of subsection (a)(2), the court
               shall review:
                       (1) the duration of the relationship;
                       (2) the frequency of contact;
                       (3) the financial interdependence;
                       (4) whether the two (2) individuals are raising
                       children together;
                       (5) whether the two (2) individuals have engaged in
                       tasks directed toward maintaining a common
                       household; and
                       (6) other factors the court considers relevant.


       Ind. Code § 35-42-2-1.3.


[12]   The trial court’s final jury instruction mirrored the language of Indiana Code

       section 35-42-2-1.3(c), reading as follows:


               In determining whether Anastazia Troup was living as the spouse
               of the defendant at the time the incident is alleged to have
               occurred, you may consider factors such as:

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 6 of 9
                 1. the duration of the relationship;
                 2. the frequency of contact;
                 3. the financial interdependence;
                 4. whether the two (2) individuals were raising children together;
                 5. whether the two (2) individuals had engaged in tasks directed
                 toward maintaining a common household; and
                 6. other factors the jury considers relevant.


       Appellant’s App. Vol. II, pp. 56-57. As the Indiana Supreme Court has held,

       “[i]t is of course the case that an instruction which tracks verbatim the language

       of a statute is presumptively correct.” Campbell v. State, 19 N.E.3d 271, 277

       (Ind. 2014).


[13]   In addition, the language of the trial court’s tendered instruction followed the

       language set forth in Indiana Pattern Jury Instruction 3.19. “The Indiana

       Pattern Jury Instructions are prepared under the auspices of the Indiana Judges

       Association in conjunction with the Indiana Judicial Conference Criminal and

       Civil Instruction Committees. Although they are not formally approved for

       use, they are tacitly recognized by Indiana Trial Rule 51(E).” Id. at 275 n.3

       (citing Halliburton v. State, 1 N.E.3d 670, 684 n.9 (Ind. 2013)). This court has

       previously observed that the preferred practice is to use the pattern jury

       instructions. See R.T. v. State, 848 N.E.2d 326, 332 (Ind. Ct. App. 2006), trans.

       denied.


[14]   Peppers does not dispute that the tendered jury instruction mirrored Indiana’s

       Pattern Jury Instruction 3.19, was a correct statement of the law, or was not

       covered by other instructions. Nor does he claim that the evidence presented


       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 7 of 9
       during trial did not support the giving of the instruction. In challenging the

       giving of the instruction, Peppers instead claims that the tendered instruction

       unduly emphasized certain evidence in violation of Ludy v. State, which

       indicated that “[i]nstructions that unnecessarily emphasize one particular

       evidentiary fact, witness, or phase of the case have long been disapproved.”

       784 N.E.2d 459, 461 (Ind. 2003).


[15]   Upon review, however, we agree with the State’s position that the tendered

       instruction did not emphasize a specific piece of evidence or invade the jury’s

       province to consider all of the evidence. One of the elements of the Class A

       misdemeanor charge alleged that on August 2, 2014, Troup was living as if she

       were Peppers’s spouse. Thus, in order to determine whether Peppers was guilty

       of the charged offense, the jury was required to make a determination as to

       whether Troup was living as his spouse. The trial court’s tendered instruction

       instructed the jury to not only consider the statutory factors approved by the

       Indiana General Assembly for making such a determination but also any other

       evidence that the jury “consider[ed] relevant.” Appellant’s App. Vol. II, p. 57.

       The tendered instruction did not emphasize any one evidentiary fact. Rather it

       informed the jury as to what type of information could be considered in order to

       determine whether Troup was living as Peppers’s spouse at the time the alleged

       battery occurred.


[16]   Because the tendered jury instruction (1) informed the jury as to what type of

       general information could be considered in determining whether the State

       proved all elements of the charged offense; (2) was a correct statement of the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 8 of 9
       law which mirrored both the applicable statute in effect at the time and the

       relevant Pattern Jury Instruction; (3) was not covered by other instructions; and

       (4) was supported by the evidence presented during trial, we conclude that the

       trial court did not abuse its discretion in giving the tendered instruction to the

       jury. Accordingly, we affirm the judgment of the trial court.


[17]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-CR-2493 | March 9, 2017   Page 9 of 9
