MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                      FILED
regarded as precedent or cited before any                                            Aug 24 2020, 10:05 am

court except for the purpose of establishing                                               CLERK
the defense of res judicata, collateral                                                Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Prosecuting Attorney
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deiandre Bailey,                                         August 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-176
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         The Honorable Hugh Patrick
                                                         Murphy, Magistrate
                                                         Trial Court Cause No.
                                                         49G16-1907-F6-29211



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020         Page 1 of 6
                                       Statement of the Case
[1]   Deiandre Bailey (“Bailey”) appeals his convictions, following a jury trial, for

      Level 6 felony domestic battery1 and two counts of Class A misdemeanor

      domestic battery.2 Bailey argues that the State failed to provide sufficient

      evidence to prove that venue was in Marion County. Concluding that Bailey

      has waived his argument because he did not challenge venue at trial, and that,

      waiver notwithstanding, the State presented sufficient evidence to prove venue

      by a preponderance of the evidence, we affirm Bailey’s convictions.


[2]   We affirm.


                                                     Issue
                 Whether the State provided sufficient evidence to prove venue.


                                                     Facts
[3]   After midnight on July 6, 2019, Bailey was at his girlfriend Dominique Daye’s

      (“Daye”) apartment along with Daye’s four-year-old son (“Daye’s son”) and

      Bailey’s sister (“Bailey’s sister”). After the group had spent some time eating

      and conversing, Bailey stated that he was going upstairs and told Daye that he

      wanted her to also go upstairs. Daye refused, and Bailey slapped her face with

      his open hand. Over the course of that early morning, Bailey continued to ask




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


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020   Page 2 of 6
      Daye to go upstairs. Daye continued to refuse his requests, causing tensions to

      escalate. Bailey threatened Daye with a kitchen knife and “whack[ed]” her

      with a towel used to clean up dog urine. (Tr. Vol. 2 at 59, 60). When Daye

      threw the towel at Bailey, he punched her face with a closed fist. Bailey’s sister

      attempted to intervene, but then Bailey again slapped Daye’s face.


[4]   Eventually, following prolonged arguing at the apartment, Daye took her son

      and walked to a nearby park. Bailey followed Daye to the park. An

      “aggravated” Bailey “kept asking” Daye to go back to the apartment. (Tr. Vol.

      2 at 69). Daye repeatedly refused. After another period of arguing, Bailey

      grabbed a rock and threatened to hit Daye with it. He then grabbed a larger

      rock, which was the size of his hand. When Daye again refused to go home

      with him, Bailey used the rock to strike the left side of Daye’s face, causing her

      glasses to fly off her face. Bailey then ran away from the scene. Daye called

      out for help to some people who were outside, and she asked them to call the

      police.


[5]   Indianapolis Metropolitan Police Department (“IMPD”) Officer Darius Clark

      (“Officer Clark”) was dispatched to the scene. When he arrived, he saw that

      Daye’s eye was “puffy[,]” bruised, and “actively bleeding.” (Tr. Vol. 2 at 92).

      The police took photographs of Daye’s injuries. An ambulance transported

      Daye to Community Hospital, where a nurse took additional photographs of

      Daye’s injuries, which included a fractured left eye socket.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020   Page 3 of 6
[6]   The State charged Bailey with two counts of Level 6 felony domestic battery

      and two counts of Class A misdemeanor domestic battery. Counts 1 and 3

      related to Bailey’s act of striking Daye with his hand while at the apartment,

      and Counts 2 and 4 related to his act of striking Daye with a rock while at the

      park.


[7]   The trial court held a jury trial in December 2019. During the trial, Daye

      testified that after Bailey had hit her multiple times at her apartment, she and

      her son had walked to a nearby park. Daye also testified that after Bailey had

      struck her face with the rock, she had asked bystanders to call the police.

      IMPD Officer Clark testified that he had been dispatched to the 3600 block of

      Bunker Hill Drive and confirmed that the address was in Marion County.

      Bailey did not object to the State’s establishment of venue at trial or otherwise

      challenge it in any way to the trial court. The jury found Bailey guilty of the

      Level 6 felony and Class A misdemeanor domestic battery counts relating to the

      park and the Class A misdemeanor domestic battery relating to the apartment.

      The jury found him not guilty of the Level 6 felony count relating to the

      apartment.


[8]   At a subsequent sentencing hearing, the trial court merged Bailey’s park-related

      misdemeanor conviction into his felony conviction and imposed a 545-day

      sentence for Bailey’s Level 6 felony conviction and a concurrent 365-day

      sentence for his misdemeanor conviction. Bailey now appeals.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020   Page 4 of 6
                                                       Decision
[9]    Bailey raises a sole issue, arguing that the State failed to provide sufficient

       evidence to prove that venue was in Marion County. The State argues that

       Bailey has waived this claim for appellate review, and we agree.


[10]   “‘A defendant waives error relating to venue when he fails to make an objection

       at the appropriate time in the trial court.’” Peacock v. State, 126 N.E.3d 892, 896

       (Ind. Ct. App. 2019) (quoting Harkrader v. State, 553 N.E.2d 1231, 1234 (Ind.

       Ct. App. 1990), trans. denied).3 Here, Bailey did not challenge the State’s

       establishment of venue at any time or in any manner to the trial court. As a

       result, he has waived his appellate review of his challenge to venue. See, e.g.,

       Peacock, 126 N.E.3d at 896-97 (holding that the defendant had waived appellate

       review of his venue claim where he had failed to challenge venue at trial, such

       as moving for directed verdict); Harkrader, 553 N.E.2d at 1234 (explaining that

       the defendant’s failure to challenge venue at trial resulted in waiver of his

       appellate challenge to venue).4


[11]   Waiver notwithstanding, we conclude that the State sufficiently proved venue.

       A defendant has a constitutional and a statutory right to be tried in the county




       3
        We direct Bailey’s attention to the fact that Peacock v. State, 126 N.E.3d 892 (Ind. Ct. App. 2019) is a
       published opinion and not, as incorrectly asserted by Bailey, an unpublished memorandum decision.
       4
         In his Reply Brief, Bailey contends that he should be allowed to raise his venue challenge for the first time
       on appeal pursuant to Indiana Trial Rule 50(A)(5). We disagree. See Scalf v. State, 424 N.E.2d 1084, 1086
       (Ind. Ct. App. 1981) (explaining that a venue challenge is not within the purview of Trial Rule 50(A)(5)
       because venue is a “collateral matter” and not an element of a crime).

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020                       Page 5 of 6
       where the offense was committed. Peacock, 126 N.E.3d at 897 (citing IND.

       CONST. Art 1, § 13 and IND. CODE § 35-32-2-1(a)). While the State is required

       to prove venue, it is not an element of an offense. Peacock, 126 N.E.3d at 897.

       The State is required to prove venue by only a preponderance of the evidence,

       and “[c]ircumstantial evidence may be sufficient to establish proper venue.” Id.

       Our Court will “neither weigh the evidence nor resolve questions of

       credibility,” and we will “look to the evidence and reasonable inferences drawn

       therefrom that support the conclusion of requisite venue.” Id.


[12]   Here, after Bailey hit Daye at their apartment, she walked to nearby park where

       Bailey hit her again. Bystanders at the park called for the police, and IMPD

       Officer Clark was dispatched to scene, which he testified was in Marion

       County. The circumstantial evidence, including the reasonable inferences

       drawn therefrom, is sufficient to show by a preponderance of the evidence that

       Bailey committed his offenses in Marion County. Accordingly, the State

       provided sufficient evidence of venue.


[13]   Affirmed.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-176 | August 24, 2020   Page 6 of 6
