MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Oct 30 2015, 8:51 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Frew                                           Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Willie J. Herman, Jr.,                                   October 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1504-CR-146
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1411-F6-398



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-146 | October 30, 2015     Page 1 of 6
[1]   Willie J. Herman, Jr. appeals his convictions of domestic battery 1 and invasion

      of privacy, 2 both as Level 6 felonies. 3 As the trial court’s limitation of Herman’s

      closing argument was not an abuse of discretion, we affirm.


                                      Facts and Procedural History
[2]   In October 2014, Fort Wayne police were called to an apartment where

      Herman lived with Mendy Rothgeb. Herman had been ordered not to have

      contact with Rothgeb. Herman hit Rothgeb and she called 911. Herman was

      charged with domestic battery and invasion of privacy.


[3]   About a week before his jury trial on these charges, Rothgeb had been

      subpoenaed to testify at another trial in which Herman was the defendant, and

      she did not appear. She was found in contempt and a warrant was issued for

      her arrest.


[4]   On the first day of trial on these charges, Rothgeb appeared to testify, but she

      was intoxicated. She was taken into custody and the trial court told counsel

      that if they wished to call her as a witness, her testimony could be reset for the

      next day: “by tomorrow she’ll be sobered up and we continue the trial.” (Tr. at

      10.) The court told Rothgeb about the possible sanctions for contempt. She




      1
          Ind. Code § 35-42-2-1.3.
      2
          Ind. Code § 35-46-1-15.1.
      3
        Both offenses are Class A misdemeanors but become Level 6 felonies if the person who committed the
      offense has a previous, unrelated conviction of the same offense. Herman stipulated he did.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-146 | October 30, 2015        Page 2 of 6
      responded: “If I knew that I would have came. . . . Can I testify? Can I testify?

      I’ll testify. I’ll testify. I’m – not want to go to jail. Can I testify, please?” (Tr.

      at 139) (errors in original).


[5]   The next day, the State called Rothgeb. She testified she knew Herman, he hit

      her and injured her, she called 911, and Herman was in violation of a no-

      contact order. Herman’s counsel cross-examined Rothgeb and elicited

      testimony that she was in custody, she would be subject to contempt

      proceedings after the trial was finished because she had not appeared to testify

      at an earlier trial, and she had arrived at court intoxicated the day before. On

      redirect, she testified the prosecutor told her to tell the truth and she had not

      been promised anything for her testimony.


[6]   At closing argument Herman’s counsel reminded the jury that Rothgeb had not

      testified on the first day of trial because she was intoxicated and held in

      contempt. Counsel then said: “We’re going to have a hearing later on for Ms.

      Rothgeb to see what that penalty will be. I suspect Ms. Rothgeb . . . .” (Tr. at

      206.) The State then objected, moved to strike, and asked the court to

      admonish the jury. The court sustained the objection, 4 then told the jury “any

      other hearing that is collateral with this and has no bearing on this particular

      trial or any comments from counsel, I would ask you to strike those.” (Id.) The




      4
       The State did not indicate the basis for its objection. Herman did not respond to the objection or the
      motion to strike or for an admonition.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-146 | October 30, 2015             Page 3 of 6
       court reminded the jury that “these are just arguments of counsel and I will

       instruct you that arguments of counsel is [sic] not evidence.” (Id. at 206-07.)


[7]    The jury found Herman guilty of both charges against him.


                                         Discussion and Decision
[8]    Control of final argument is assigned to the discretion of the trial judge. Unless

       there is an abuse of this discretion clearly prejudicial to the rights of the

       accused, the ruling of the trial court will not be disturbed. Rouster v. State, 600

       N.E.2d 1342, 1347 (Ind. 1992), reh’g denied.


[9]    Herman cross-examined Rothgeb about her contempt hearing and any potential

       benefit she might receive from her testimony. But he now argues he should

       have “had the right to argue bias to the jury and not have the court tell them

       [the contempt proceedings] had no bearing on this case.” (Br. of Appellant at

       7.)


[10]   The limitation of Herman’s closing argument was not error. 5 Herman relies on

       decisions holding the exposure of a witness’s motivation in testifying is a proper




       5
         Nor was Herman prejudiced by the trial court’s action even if there was an error. Harmless error is an
       error that does not affect a party’s substantial rights. Littler v. State, 871 N.E.2d 276, 278 (Ind. 2007).
       Harmlessness is ultimately a question of the likely impact on the jury. Id. The harmless error analysis
       applies to restriction on closing argument. Nelson v. State, 792 N.E.2d 588, 594 (Ind. Ct. App. 2003), trans.
       denied.
       The jury heard Rothgeb’s testimony about the contempt proceedings and its effect on her testimony, and
       nothing in her testimony suggested Rothgeb believed testifying would help her obtain a more lenient sanction
       in the contempt proceeding. The jury was told closing arguments by counsel were not evidence. Because
       any error in the limitation of Herman’s closing argument had little to no probable impact on the jury, it was
       harmless.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-146 | October 30, 2015               Page 4 of 6
       and important function of the constitutionally protected right of cross-

       examination. E.g., Jarrett v. State, 498 N.E.2d 967, 968 (Ind. 1986). But the

       record does not reflect Herman’s cross-examination of Rothgeb was limited,

       and Herman concedes he “was permitted to cross examine Ms. Rothgeb

       regarding the contempt hearing and any potential benefit to be received from

       her testimony.” (Br. of Appellant at 7.) Nothing in the testimony Herman

       elicited from Rothgeb suggested Rothgeb believed testifying would help her

       obtain a more lenient sanction in the contempt proceeding.


[11]   In closing argument, Herman’s counsel noted Rothgeb had been found in

       contempt, then said: “We’re going to have a hearing later on for Ms. Rothgeb

       to see what that penalty will be. I suspect Ms. Rothgeb . . . .” (Tr. at 206.) The

       State then objected, moved to strike, and asked the court to admonish the jury.

       Herman did not respond to the objection or to the State’s motion to strike or for

       an admonition. The court sustained the objection and admonished the jury.


[12]   Because Herman did not respond to the State’s objection, we cannot know

       what he would have said in closing argument had he been able to continue.

       Assuming, as his brief on appeal suggests, he would have argued Rothgeb was

       motivated to lie because she thought that would result in leniency in the

       contempt proceedings, such argument would not have been supported by the

       evidence; Rothgeb had testified to the contrary. See generally 75A Am. Jur. 2d

       Trial § 532 (attorneys may argue reasonable deductions and inferences from the

       evidence properly before the jury as long as such inferences are based on the

       conclusions fairly deducible from the evidence in the case and do not involve

       Court of Appeals of Indiana | Memorandum Decision 02A03-1504-CR-146 | October 30, 2015   Page 5 of 6
       the presentation of new evidence or rely on evidence that has not been

       presented.).


[13]   Our Supreme Court has long recognized “[t]he presumption in favor of correct

       action on the part of a trial court is one of the strongest presumptions applicable

       to the consideration of a cause on an appeal.” Ferrara v. Genduso, 216 Ind. 346,

       348, 24 N.E.2d 692, 693 (1940). Herman directs us to nothing in the record

       that rebuts that presumption. We therefore cannot say the trial court abused its

       discretion in limiting Herman’s closing argument.


[14]   Affirmed.


       Crone, J., and Bradford, J., concur.




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