MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 17 2019, 10:11 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                 Curtis T. Hill, Jr.
Austin & Jones, P.C.                                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Barnes,                                      January 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1715
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clark Rogers,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Stanley Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1705-F5-17234



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019                Page 1 of 13
[1]   Christopher Barnes appeals his convictions for battery resulting in serious

      bodily injury as level 5 felonies. We affirm.


                                      Facts and Procedural History

[2]   On May 2, 2017, Barnes and T.G. started to fight when T.G. received a

      message from another man. T.G. entered the shower with Barnes, and Barnes

      asked her about the message and “started . . . choking [her] and stuff.”

      Transcript Volume 2 at 62. T.G. fell over and hit her head on the tub. At some

      point Barnes and T.G. moved to the bedroom, and Barnes closed the door.

      Barnes struck T.G. with a belt, and T.G. tried to pull the covers up because it

      hurt. Barnes turned the belt and started hitting T.G. with the buckle, she kept

      trying to pull the covers up, and Barnes picked up a hanger and started to hit

      her with it. Barnes took T.G. to Community North because she was in pain.

      At Barnes’s direction, T.G. told the hospital staff that she “got jumped.” Id. at

      66. The next day, Barnes was in the driver’s seat and T.G. was in the passenger

      seat of a vehicle, and Barnes hit T.G.’s left side and pushed her head against the

      window using a lot of force. T.G. was in pain, and it hurt her side to breathe.


[3]   On May 4, 2017, Barnes brought T.G. to a health clinic for an unrelated follow-

      up visit. Barnes did not come in with T.G. but was still on the grounds. T.G.

      told the clinic staff what had happened to her. A nurse practitioner observed

      that T.G. appeared to be in acute pain and very upset and scared, became

      concerned for T.G.’s safety based on T.G.’s statements to her, and moved T.G.

      to a more secure location in the clinic. The nurse practitioner walked to the

      waiting area and observed Barnes enter the waiting room and walk quickly in
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 2 of 13
      her direction. Barnes asked where T.G. was located, the nurse practitioner

      asked Barnes for his name, Barnes said “Frank,” the nurse practitioner told him

      “[i]f you are Christopher Barnes, you need to leave because the police have

      been called,” and Barnes turned around and exited through the door. Id. at 95-

      96. The nurse practitioner observed that T.G.’s heart rate was very fast and she

      had a low-grade fever and extensive bruising all over her. T.G. was transported

      to Eskenazi Hospital by ambulance. Barnes entered T.G.’s hospital room and

      stayed the night. At some point, a person who T.G. thought was a counselor

      for the hospital came into her room with a clipboard, Barnes took the clipboard

      from the person, and T.G. “just tried to basically have her, like, just be quiet,

      uhm, because he was in there.” Id. at 74.


[4]   On May 10, 2017, the State charged Barnes with: Count I, battery resulting in

      serious bodily injury as a level 5 felony for striking T.G. with his hands and/or

      belt and/or hanger on or about May 2nd; Count II, battery by means of a

      deadly weapon as a level 5 felony; Count III, battery resulting in moderate

      bodily injury as a level 6 felony; Count IV, battery resulting in serious bodily

      injury as a level 5 felony for striking T.G. with his hands on May 3rd; Count V,

      battery resulting in moderate bodily injury as a level 6 felony; Count VI,

      intimidation as a class A misdemeanor; and Count VII, domestic battery as a

      class A misdemeanor.


[5]   Prior to Barnes’s trial, T.G. wrote a letter to the court and two letters to the

      prosecutor. She wrote to the prosecutor that Barnes is innocent and that she

      objected to the State filing charges and seeking her medical records. In the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 3 of 13
      letter to the court, she wrote “Christopher Barnes is not liable for my physical

      injuries,” “I was involved in a noisy argument that resulted in me to be striked

      several times by several females,” “Because of the intentions of my boyfriend

      Christopher Barnes . . . cutting his ties with me were coming about I became

      very emotional with worry, nervousness, and fear that he would leave me,” “I

      wildly and unthinkingly connected him to my injury,” and “I only spoke falsely

      to connect him to my injury because I fully understand that connecting

      Christopher Barnes to my injury was unwise and lacking good sense of

      judgement because Christopher Barnes was not connected to my injury in no

      shape or form.” State’s Exhibit 29.


[6]   Barnes filed a motion in limine which requested in paragraph 2 that the court

      exclude any expert testimony by domestic violence nurses or others and argued

      that such testimony is improper vouching and bolstering and only serves to bias

      and prejudice the jury. At a hearing, the prosecutor stated that the State

      planned to present the expert testimony of Dawn Higgins regarding why a

      person might recant after a crime, and Barnes’s counsel argued that the

      testimony reeks of bolstering and vouching, the person had no specific

      knowledge of this particular case, there was no reason for an expert witness,

      and the testimony was of no relevance. The court took paragraph 2 of the

      motion under advisement.


[7]   At Barnes’s trial, the State presented the testimony of T.G., photographs of her

      injuries, and medical records. T.G. testified as to Barnes’s actions on May 2nd

      and 3rd and her visits to the hospitals on May 2nd and 4th. With respect to her

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 4 of 13
      letters, T.G. indicated that Barnes had written the letters originally, that he told

      her to rewrite them in her own handwriting, and that she felt she had to write

      the letters. T.G. testified as to her injuries, and a nurse practitioner described

      her observations of T.G. at the clinic including bruising below her left eye, a

      contusion on her forehead, a bite mark on her upper back and other bite marks

      on her body, bruising on her arm and ankle, and severe bruising on her legs, all

      as depicted in the photographs.


[8]   The State also presented the testimony of Dawn Higgins as a domestic violence

      expert. The prosecutor, outside the presence of the jury, stated:

              I essentially have the hypothetical with two questions. Assume a
              woman is in an intimate relationship with a man with whom she
              lives [], who was also provided transportation by him. Now,
              assume the man physically attacked the wom[a]n over several days
              because he was angry about her not telling him what he wanted her
              to tell him, or not doing what he wanted her to do. Ultimately, he
              took her to a hospital and was with her in the hospital while she
              spoke with staff. Why might she initially give a different
              explanation about where she received her injuries? The next
              question. Now, assume she is alone at the hospital and she
              explained her intimate partner abused her. Why might she later
              recant those statements[?]


      Transcript Volume 2 at 162. Barnes’s counsel objected to “the first question”

      and stated “I think it is so specific that it’s almost an opinion on the open issue

      here, uhm, and would invade the province of the jury.” Id. Defense counsel

      also stated “I’m objecting, Judge to the -- just that there are so many facts that

      it’s almost not even a hypothetical anymore, it’s the exact situation” and “I

      would say, I think if the State wants to ask it in a different way where there are
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 5 of 13
      less . . . specifics and more focus on just what the issue is at the tail-end and not

      with the un-necessary specific facts.” Id. at 163. The prosecutor replied “[s]o -

      and the reason the I was - in the Odom case,[1] they are very specific and they

      give very specific details. And the reason I am specific with this hypothetical is

      because she has not met [T.G.],” “[s]he is going off of what I’m giving her, and

      I need to give her the facts that are - that [T.G.] got out on the stand, because

      we need to specifically tailor the hypothetical and her responses to the facts that

      we have in evidence,” and “what I read are all things that we have in

      evidence.” Id. Barnes’s counsel stated: “I would say my main issue is the why

      in front, because he was angry and so the word ‘ultimate.’ I think if that

      portion’s cut out, that’s my biggest complaint.” Id. at 164. The prosecutor

      stated “[c]an I say -- okay, so assume the man physically attacked the woman

      over several days. Ultimately, he took her to a hospital.” Id. The court stated

      “I think that’s fair.” Id. The court also asked “I’m assuming you want the

      Court to recognize your continuing objection based on our previous hearings,”

      and Barnes’s counsel replied affirmatively. Id. at 165.


[9]   Later, in the presence of the jury, the prosecutor questioned Higgins as follows:

                 Q.       Okay. Now, at this point I want to just give you a
                          hypothetical situation and I’m going to ask you a question
                          about it. Okay?

                 A.       Okay.




      1
          Odom v. State, 711 N.E.2d 71, 77 (Ind. Ct. App. 1999), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 6 of 13
        Q.       You were not involved in the case that we are here today
                 about; is that correct?

        A.       As far as I know I’ve not had any association with it
                 whatsoever.

        Q.       Okay. Now, I want you to assume there’s a woman who is
                 in a intimate relationship with a man. Sh [sic] was with that
                 man and she is provided transportation by him. Now,
                 assume that he physically attacked her over several days and
                 ultimately took her to a hospital and he was with her while
                 she was in the hospital, while she spoke with staff. Why
                 might she initially give a different explanation about why --
                 how she received those injuries?

        A.       She’s actually in the room with the person who caused the
                 injuries and if that fear level is extremely high, which one
                 would assume that it is, then it would likely be in her best
                 interest to – it’s almost safer to go ahead and tell the lie, if
                 you will, than to deal with the consequences of what could
                 happen if you did not -- if you did not cover for that
                 situation. Uhm, it’s oddly safer, believe it or not because
                 that person that caused the injury is right there in the room
                 with you and it would be almost like defying someone who’s
                 -- you’re in an armed robbery and you’re becoming defiant
                 toward that person, they’ve got the tool and the weaponry to
                 cause you further injury.

        Q.       Now, I want to give you another question. Uhm, the same
                 initial circumstances, but now assume she’s at the hospital
                 alone and she explains that it was her intimate person who
                 abused her. Why might she at a later date recant those
                 statements?

        A.       Well, primarily because it’s hard for a lot of people to
                 understand if they haven’t had this experience in their life,
                 but they do have natural intimate relationships, so there are
                 feelings and emotions attached to that relationship.
                 Likewise, it’s – it’s actually almost a fear of the unknown
                 versus -- versus what I know. Know[n] versus unknown
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 7 of 13
                        circumstances. So if I’m in a situation where I can actually
                        predict and almost prepare for what might happen, as
                        opposed to if I leave, or if I exit and especially if I don’t have,
                        like, tools or resources, then I’m wondering [sic] out into the
                        unknown where I may not even have housing. And, uhm,
                        there’s a reliance and a codependence and a dependence on
                        that -- in that situation that is often seen, where there’s just a
                        lack of an ability to separate from that for dozens and dozens
                        of reasons, just because it doesn’t happen in a vacuum. But
                        the other thing is the lethality of these situations
                        expedientially [sic] goes up when, uh, a person who tries to
                        flee, because the danger level just increases beyond measure
                        almost. It’s -- the majority of the time an individual that is
                        going to be killed in a relationship such as that --


       Id. at 176-178. At that point, defense counsel objected, stating “I think this is

       beyond --,” and the court sustained the objection. Id. at 178. On cross-

       examination, Higgins indicated that every intimate relationship is different, that

       some of the generalizations she discussed may not apply to every situation or to

       this situation, there are many reasons why a person would accuse another

       person of domestic violence, and she had seen situations where an alleged

       victim made up a story of domestic violence or lied about who committed the

       violence. The jury found Barnes guilty on Counts I through V and VII, and the

       court vacated Counts II, III, V, and VII and sentenced Barnes to consecutive

       terms of four years on Count I and three years on Count IV.


                                                    Discussion

[10]   The issue is whether the trial court abused its discretion in admitting Higgins’s

       testimony. The trial court has broad discretion to rule on the admissibility of

       evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 8 of 13
       on the admission of evidence is generally accorded a great deal of deference on

       appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. “We do not

       reweigh the evidence; rather, ‘we consider only evidence that is either favorable

       to the ruling or unrefuted and favorable to the defendant.’” Beasley v. State, 46

       N.E.3d 1232, 1235 (Ind. 2016) (quoting Pierce v. State, 29 N.E.3d 1258, 1264

       (Ind. 2015)). However, we will not reverse an error in the admission of

       evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind.

       2011). In determining the effect of the evidentiary ruling on a defendant’s

       substantial rights, we look to the probable effect on the fact finder. Id. at 1059.

       An improper admission is harmless if the conviction is supported by substantial

       independent evidence of guilt satisfying the reviewing court that there is no

       substantial likelihood the challenged evidence contributed to the conviction. Id.


[11]   Barnes asserts the trial court abused its discretion in allowing Higgins to testify.

       He argues that Higgins’s opinions were irrelevant because the hypotheticals did

       not contain facts supporting her opinion. He argues, with respect to the first

       hypothetical, that no facts were alleged regarding the degree of fear of being

       with the alleged assailant in the hospital and that the second hypothetical did

       not present facts of dependence and no such facts were adduced during trial.

       He argues that Higgins’s testimony likely had substantial impact upon the jury

       because it was presented by an “expert.” Appellant’s Brief at 12.


[12]   The State asserts that Barnes has waived the issue and that he argues for the

       first time on appeal that Higgins’s testimony was irrelevant. It argues that

       Higgins’s testimony was relevant to show T.G.’s motive in not reporting the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 9 of 13
       battery sooner and her potential reasons for recanting. The State argues that the

       hypotheticals posed to Higgins were similar to the facts presented at trial, that

       even defense counsel acknowledged the factual similarities, and that Higgins’s

       testimony was relevant because it was based on circumstances similar to those

       faced by T.G. The State further argues that Higgins had no personal knowledge

       of the case, the jury was able to accept or reject her testimony as it applied to

       the case, Higgins did not vouch in any way for T.G. and did not comment on

       whether T.G.’s reactions were appropriate or she behaved as someone who had

       been a victim of domestic abuse, the probative value of the testimony was not

       outweighed by its prejudicial effect, and in any event any error in admitting the

       testimony was harmless.


[13]   Even assuming that Barnes did not waive his arguments on appeal, reversal is

       not warranted. Ind. Evidence Rule 401 provides that evidence is relevant if it

       has any tendency to make a fact more or less probable than it would be without

       the evidence and the fact is of consequence in determining the action. Evidence

       Rule 403 provides that the court may exclude relevant evidence 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 presenting cumulative evidence. The court may admit expert

       testimony under Ind. Evidence Rule 702. It is within the trial court’s sound

       discretion to decide whether a person is qualified as an expert. Iqbal v. State,

       805 N.E.2d 401, 409 (Ind. Ct. App. 2004). Ind. Evidence Rule 704(b) provides

       that witnesses may not testify to opinions concerning intent, guilt, or innocence


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 10 of 13
in a criminal case; the truth or falsity of allegations; whether a witness has

testified truthfully; or legal conclusions. However, expert testimony explaining

the behavior of domestic violence victims which is not based upon personal

knowledge does not constitute impermissible vouching. See Otte v. State, 967

N.E.2d 540, 548 (Ind. Ct. App. 2012) (citing Iqbal, 805 N.E.2d at 409-410),

trans. denied.

        As this court has previously observed, the reactions and behaviors
        of domestic violence victims are not commonly understood by
        laypersons. Odom v. State, 711 N.E.2d 71, 75 (Ind. Ct. App. 1999),
        trans. denied. Consistent with this view, this court has endorsed the
        use of expert testimony about domestic abuse/battered woman
        syndrome to explain witness recantation. See id. at 72 n.2, 77
        (domestic abuse); Carnahan v. State, 681 N.E.2d 1164, 1166-68 (Ind.
        Ct. App. 1997) (battered woman syndrome); see also Iqbal, 805
        N.E.2d at 409-10 (affirming use of expert testimony to “educate[]
        the jury on the complexity of behavior of domestic violence
        victims”)[.] [T]estimony regarding a victim’s propensity to recant
        in this context simply provides the jury with information outside its
        experience, permitting it to assess credibility based upon a more
        complete understanding of all potential factors at issue.


Id. Further, this Court observed in Odom that the State’s domestic violence

expert “did not have personal knowledge of the case and had not counseled”

the victim and that, “[t]herefore, the State properly presented the expert with

and sought a response based upon a hypothetical question supported by facts

which had been adduced at trial.” 711 N.E.2d at 77 (citing Henson v. State, 535

N.E.2d 1189, 1192 (Ind. 1989) (hypothetical question proper if it embraces facts

that have been placed into evidence); Ashby v. State, 486 N.E.2d 469, 475 (Ind.

1985) (hypothetical question may be used to obtain expert’s opinion when
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 11 of 13
       expert has no personal knowledge of the facts), reh’g denied). The Court held

       that an expert’s testimony is relevant if it is “based upon some fact presented in

       the hypothetical or some reasonable inference drawn therefrom.” See id.


[14]   The record reveals that at the hospital on May 2, 2017, T.G. said that she “was

       jumped” and, later by letter, stated that she was attacked by a group of women

       and not Barnes. Transcript Volume 2 at 66. However, T.G. indicated to the

       staff at the clinic on May 4, 2017, what had happened to her and later testified

       at Barnes’s trial that Barnes was the person who attacked her and caused her

       injuries. Higgins indicated that she did not have personal knowledge of the

       case, and the State then presented Higgins with and sought a response based

       upon hypothetical questions supported by facts which had been adduced during

       the trial including that a woman had a relationship with a man, she was

       provided transportation by him, he physically attacked her over several days,

       and he was with her while she was in the hospital and spoke with staff. Higgins’s

       testimony related to the reasons a person who has been the victim of domestic

       violence may not disclose the actions of the perpetrator at certain times or

       under certain circumstances. Higgins did not give her opinion regarding

       whether T.G. had testified truthfully.


[15]   Based upon the record, we cannot say that Higgins’s testimony was not relevant

       or that its probative value was substantially outweighed by the danger of unfair

       prejudice. The trial court did not abuse its discretion in admitting the

       challenged testimony. See Iqbal, 805 N.E.2d at 409-410 (noting that the State

       offered expert testimony to explain a victim’s reason for allowing the defendant

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 12 of 13
       to enter her home despite testimony he previously assaulted her and that the

       expert did not have personal knowledge of the case and merely educated the

       jury on the complexity of behavior of domestic violence victims, and holding

       the expert’s testimony did not constitute impermissible vouching and was

       relevant and its probative value was not substantially outweighed by the danger

       of unfair prejudice).


[16]   Further, the record reveals that T.G. testified in detail regarding Barnes’s

       actions of striking her using a belt, a belt buckle, and a hanger on May 2, 2017,

       and striking her on May 3, 2017. The State presented testimony from medical

       personnel who provided care for T.G., photographic evidence of T.G.’s

       injuries, and her medical records. We conclude based upon our review of the

       evidence as set forth above and in the record that any alleged error in the

       admission of the challenged testimony was harmless in light of the other

       substantial independent evidence of Barnes’s guilt.


[17]   For the foregoing reasons, we affirm Barnes’s convictions.


[18]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1715 | January 17, 2019   Page 13 of 13
