MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Jul 30 2018, 10:39 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
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Litale Zavier Kendall,                                   July 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1708-CR-1717
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1609-F5-37922



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018              Page 1 of 11
                                        Statement of the Case
[1]   Litale Zavier Kendall (“Kendall”) appeals his convictions for Level 5 felony

      battery by means of a deadly weapon,1 Level 6 felony criminal recklessness,2

      and Class A misdemeanor domestic battery.3 He argues that the trial court

      abused its discretion and violated Indiana Evidence Rule 404(b) when it

      admitted evidence regarding a prior bad act, i.e., a witness’s testimony alluding

      to Kendall’s prior physical acts against the victim. Even assuming that the

      admission of the evidence was erroneous, we affirm Kendall’s convictions

      because we conclude that any error was harmless in light of the independent

      evidence of his guilt.


[2]   We affirm.


                                                      Issue
                 Whether the trial court’s admission of evidence was harmless
                 error.

                                                     Facts
[3]   In mid-August 2016, Kendall and his girlfriend, Tracy Washington

      (“Washington”), ended their more than one-year relationship. Thereafter,

      Washington began dating Dewayne Fletcher (“Fletcher”). After Kendall and




      1
          IND. CODE § 35-42-2-1.
      2
          I.C. § 35-42-2-2.
      3
          I.C. § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 2 of 11
      Washington broke up, Kendall did not know where Washington was staying

      and tried to find her. At that time, Washington was staying with Fletcher and

      his family, including his mother (“Fletcher’s mother”) and sister (“Fletcher’s

      sister”).


[4]   In the early morning hours of August 28, 2016, Kendall showed up

      unexpectedly at Fletcher’s house. Washington, who was upstairs when Kendall

      arrived, heard Kendall saying negative things about her to Fletcher. Kendall

      told Fletcher that Washington was “a whore, that [she] was nasty, [and] that

      [she] would sleep with anybody.” (Tr. Vol. 2 at 18). Washington went

      downstairs and told Kendall to leave. Kendall told her to “shut up[,]” raised

      his fist, and “flinched” at or moved towards her. (Tr. Vol. 2 at 18, 19).

      Washington “went into defense mode[,]” pulled a knife out of her bra, and told

      Kendall to “get back.” (Tr. Vol. 2 at 20). When Kendall “flinched” at

      Washington again, Fletcher separated them. (Tr. Vol. 2 at 20). Washington

      then went back upstairs, and she heard Kendall saying, “That’s my girl. I have

      her name tattooed on my arm. She has my name tattooed on her leg. I love

      her.” (Tr. Vol. 2 at 21).


[5]   When Fletcher’s mother and sister came home, they went into the room with

      Kendall. He told them not to trust Washington, said that she was a whore and

      would get Fletcher killed, and tried to convince them to throw Washington out

      of the house. Fletcher’s mother went upstairs to get Washington and saw that

      Washington was crying and “was scared out of her mind.” (Tr. Vol. 2 at 105).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 3 of 11
      Washington eventually went downstairs, where Kendall continued to say

      negative things about her. Fletcher’s sister told Washington to leave the house.


[6]   Washington walked onto the front porch, where Fletcher sat next to her.

      Kendall stayed inside and talked to Fletcher’s mother and sister for a little

      while. Kendall then went outside on the porch, and Fletcher’s mother stood in

      the doorway looking out on the porch. Washington stood up and said she was

      going to leave. Kendall then told Washington to “shut up” and “hauled off and

      smacked” her face. (Tr. Vol. 2 at 30). Washington, who fell to the ground,

      pulled a knife out of her bra and said, “I’m done. I’m tired. . . [Y]ou, are not

      about to keep doing this to me.” (Tr. Vol. 2 at 31). Kendall then pulled out his

      gun, pointed it at Washington’s head, and demanded that she give him the

      knife. He also said, “Bitch, I’ll kill you.” (Tr. Vol. 2 at 118). Washington then

      told Kendall, “If you’re going to shoot me, then shoot me.” (Tr. Vol. 2 at 31).

      Kendall took the knife from Washington, and Fletcher stepped in and grabbed

      Kendall. Kendall then reached around Fletcher and stabbed Washington in her

      right shoulder. Washington screamed that Kendall had stabbed her, and

      Kendall ran away. Fletcher’s mother and sister put a towel and peroxide on

      Washington’s shoulder to stop the bleeding, and Washington fell asleep. After

      Washington woke up, she went to the hospital and reported the incident to the

      police.


[7]   The State ultimately charged Kendall with: Count 1, Level 5 felony battery by

      means of a deadly weapon (knife); Count 2, Level 6 felony criminal

      recklessness (pointing a gun at Washington); Count 3, Class A misdemeanor

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 4 of 11
      domestic battery; and Count 4, Class A misdemeanor battery resulting in bodily

      injury.4


[8]   The trial court held a jury trial on June 21, 2017. On the morning of trial, the

      State filed a notice of intent to offer Rule 404(b) evidence at trial to show,

      among other things, motive and the nature of the relationship between Kendall

      and Washington. Specifically, the State sought to introduce evidence that “for

      the weeks leading up to this incident, Defendant Kendall was trying to

      determine the whereabouts of Trac[]y Washington because he did not want her

      to leave him and/or the relationship.” (App. Vol. 2 at 61). Before the trial

      commenced, the parties discussed the notice with the judge. Kendall’s counsel

      objected, based on prejudice and lack of relevancy, to the admission of any

      testimony regarding that act. The State responded that it went to Kendall’s

      “motive” and that the victim would testify that Kendall “had been trying to find

      her . . . on several occasions.” (Tr. Vol. 2 at 7). The trial court ruled that the

      evidence would be admissible but left the issue open depending on what would

      transpire during the trial.


[9]   During the trial, the State called Washington, Fletcher’s sister, and Fletcher’s

      mother among other witnesses. Washington testified to the facts above. When

      Fletcher’s sister and mother testified, they both made a reference to Kendall

      beating Washington. Fletcher’s sister testified that when she and Fletcher’s




      4
        Initially, the State also charged with Level 6 felony intimidation and Class A misdemeanor pointing a
      firearm at another person but later dismissed these charges.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018             Page 5 of 11
mother were in the house with Kendall, they talked to him about why he

wanted Washington back. The State asked Fletcher’s sister about the

conversation, and she responded, “That he wanted her back[,] and we was

asking why. He was like cause I got her name tattooed on him and -- And we

was like, well, she doesn’t want to go back to you because you always beat her

and all that type of stuff.” (Tr. Vol. 2 at 92-93) (improper grammar unchanged).

Kendall objected, and the following conversation occurred between the parties

and the trial court at the bench:


        [KENDALL’S COUNSEL]: Judge, the State is getting into, it
        seems to be (indiscernible) accusations that are not related to this
        case. I don’t know if this witness is going to continue down that
        path, but it seems like they are going into history.

        THE COURT: Well, I haven’t heard anything necessarily that
        is. But obviously the State needs to tread carefully and you need
        to be ready with objections. But right now I haven’t heard
        anything objectionable.

        [KENDALL’S COUNSEL]: I think she just testified that he is
        always beating her.

        [THE STATE]: That’s not what she testified to. She testified to
        what the Defendant was saying and she was (indiscernible).
        She’s asking him (indiscernible).

        [KENDALL’S COUNSEL]: But she said it in her response
        (indiscernible). I’m objecting to that it is highly prejudicial and is
        not (indiscernible) to this cause.

        [THE STATE]: (indiscernible)

        THE COURT: I’m going to overrule the objection. But we will
        tread carefully.

Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 6 of 11
                [THE STATE]: Yes, Judge.

                THE COURT: And be ready for additional objections. Okay.

                [KENDALL’S COUNSEL]: Thank you, Judge.

                THE COURT: Thank you.

       (Tr. Vol. 2 at 93-94).


[10]   When Fletcher’s mother testified, she also talked about how Kendall had stated

       that he wanted Washington back because he had her name tattooed on him,

       and she made a reference to Kendall beating Washington. (Tr. Vol. 2 at 108).

       Specifically, she stated, “When he kept telling me the same old story, how he

       loved her and all this[,] I said, he just wants her money. And I said, ‘You just

       want to keep doing, beating on her like you been doing.” (Tr. Vol. 2 at 108).

       Kendall objected, and the trial court sustained the objection, struck the

       testimony, and instructed the jury not to consider it.


[11]   Fletcher’s mother also provided testimony that corroborated Washington’s

       testimony regarding Kendall’s acts of hitting, pointing a gun at, and stabbing

       Washington. More specifically, Fletcher’s mother testified that she was

       standing in the doorway when she heard Kendall slap Washington on the face.5

       Additionally, she testified that she saw Kendall pull out a gun and point it

       Washington’s head and that she heard him say, “Bitch, I’ll kill you.” (Tr. Vol.




       5
        Fletcher’s mother testified that she did not see the slap because she had turned her head to talk to neighbors
       who were on their own porch.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018               Page 7 of 11
       2 at 118). Fletcher’s mother also testified that she saw Fletcher intervene and

       push Kendall away from Washington and that she saw Kendall pull out a

       “silver object.” (Tr. Vol. 2 at 115). Lastly, Fletcher’s mother testified that she

       saw Kendall behind Washington and that she then saw “blood all over”

       Washington and a “real bloody hole” on Washington’s shoulder. (Tr. Vol. 2 at

       122, 124).


[12]   The jury found Kendall guilty as charged. The trial court imposed a three (3)

       year sentence for Kendall’s Level 5 felony battery conviction, a one (1) year

       sentence for his Level 6 felony criminal recklessness conviction, and one (1)

       year sentence for his Class A misdemeanor domestic battery conviction, and it

       ordered these sentences to be served concurrently. The trial court did not enter

       judgment of conviction on Kendall’s Class A misdemeanor battery conviction.

       Kendall now appeals.


                                                   Decision
[13]   Kendall argues that the trial court abused its discretion by admitting Fletcher’s

       sister’s testimony suggesting that Kendall had previously beaten Washington.

       Specifically, he contends that this evidence was inadmissible under Indiana

       Evidence Rule 404(b) because it was a prior bad act and under Evidence Rule

       403 because it was unfairly prejudicial.


[14]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 8 of 11
       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[15]   Indiana Evidence Rule 404(b) provides as follows:


               (b) Crimes, Wrongs, or Other Acts.

               (1) Prohibited Uses. 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.

               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:

                    (A) provide reasonable notice of the general nature of any
                    such evidence that the prosecutor intends to offer at trial; and

                    (B) do so before trial--or during trial if the court, for good
                    cause, excuses lack of pretrial notice.

       Ind. R. Evid. 404. Evidence Rule 403 provides that a “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.”


[16]   While the parties have presented specific arguments regarding whether or not

       there was any error in the admission of Fletcher’s sister’s testimony, we need

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 9 of 11
       not address these arguments. Assuming without deciding that the trial court

       abused its discretion by admitting the evidence, the error was harmless. 6 “Even

       when a trial court abuses its discretion in admitting evidence under Rule 404(b),

       we will only reverse for that error if the error is inconsistent with substantial

       justice or if a substantial right of the party is affected. Stettler v. State, 70 N.E.3d

       874, 881 (Ind. Ct. App. 2017) (internal quotation marks and citations

       omitted), trans. denied. “The improper admission of evidence is harmless error

       when the conviction is supported by substantial independent evidence of guilt

       as to satisfy the reviewing court that there is no substantial likelihood that the

       questioned evidence contributed to the conviction.” Cook v. State, 734 N.E.2d

       563, 569 (Ind. 2000), reh’g denied. See also Blount v. State, 22 N.E.3d 559, 564

       (Ind. 2014) (“If we are satisfied the conviction is supported by independent

       evidence of guilt such that there is little likelihood the challenged evidence

       contributed to the verdict, the error is harmless.”).


[17]   Here, there was substantial independent evidence that Kendall smacked

       Washington in the face, pointed a gun at her, and stabbed her with a knife.

       Washington testified about Kendall’s acts against her, and her testimony was

       corroborated by Fletcher’s mother’s testimony, who heard and/or saw Kendall

       commit some of these acts as well as his actions leading up to them and




       6
        We note, however, that “where a relationship between parties is characterized by frequent conflict, evidence
       of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship
       between the parties and motive for committing the crime.” Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App.
       2004).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018           Page 10 of 11
       Washington’s resulting injury. Furthermore, Washington’s testimony regarding

       the stabbing was corroborated by evidence showing her physical injury. Based

       on our review of the record and the evidence supporting Kendall’s convictions,

       we are satisfied that there is no substantial likelihood that the challenged

       evidence contributed to the jury’s verdicts and, therefore, conclude that the

       admission of the evidence was harmless error. See, e.g., Cook, 734 N.E.2d at 569

       (holding that the erroneous admission of Rule 404(b) evidence was harmless

       error); Stettler, 70 N.E.3d at 881 (holding that the trial court’s erroneous

       admission of evidence concerning prior bad acts was harmless error).


[18]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1717 | July 30, 2018   Page 11 of 11
