MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                      Aug 17 2017, 8:08 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Frew                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Emmett L. Waltz, III,                                    August 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1702-CR-263
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1609-F6-1061



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017         Page 1 of 14
                                         Statement of the Case
[1]   Emmett Waltz, III (“Waltz”) appeals his conviction, following a jury trial, for

      Level 6 felony Strangulation.1 At Waltz’s jury trial, the victim—his girlfriend—

      recanted her original report to police that Waltz had hit her multiple times and

      had shoved his two fingers, up to his knuckles, into her mouth and down her

      throat. Waltz argues that the trial court abused its discretion in admitting a

      detective’s testimony regarding the cycles of domestic violence and the

      percentage of victims who recant in domestic abuse cases. Specifically, he

      contends on appeal that these two portions of the detective’s testimony were

      inadmissible under Indiana Evidence Rule 702. Waltz also contends that there

      was insufficient evidence to support his strangulation conviction.


[2]   We conclude that Waltz has waived his appellate challenge to the detective’s

      testimony. Specifically, he waived his challenge to the detective’s testimony

      regarding the cycles of violence because he failed to object based on the same

      grounds he now raises on appeal, and he waived his challenge to the testimony

      regarding the percentage of recanting victims because he failed to object to that

      testimony at trial. Additionally, we conclude that Waltz’s sufficiency argument

      is merely a request to reweigh the inferences made by the jury and its




      1
       IND. CODE § 35-42-2-9, the strangulation statute, was recently amended effective July 1, 2017. Because
      Waltz committed his offense in 2016, we will apply the statute in effect at that time. Waltz was also
      convicted of Level 6 felony domestic battery under INDIANA CODE § 35-42-2-1.3 but does not appeal that
      conviction.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017           Page 2 of 14
      determination of witness credibility, and we deny this request and affirm his

      challenged strangulation conviction.


[3]   We affirm.


                                                    Issues
          1. Whether Waltz waived his appellate challenge to the admission of the
             police detective’s testimony.

          2. Whether sufficient evidence supports Waltz’s Level 6 felony
             strangulation conviction.

                                                     Facts
[4]   In September 2016, Waltz and Melanie Bell (“Bell”) had been in a relationship

      for two years and had a child together. Following an argument via text

      message, Bell took her daughter to Waltz’s house so that Bell could speak with

      him. Bell sat her five-month-old daughter in the living room and went into the

      bathroom where Waltz was in the bathtub. The two argued, and Bell threw a

      comb or a toothbrush at him. Waltz told Bell that she “better be scared[,]” (Tr.

      Vol. 2 at 178), and he “grabbed her wrist and pushed it towards the side[.]” (Tr.

      Vol. 3 at 23). Bell then ran out of the bathroom to leave the house. Waltz

      caught up with Bell at the front door and again grabbed her wrist. Waltz then

      shoved his two fingers, up to his knuckles, into her mouth and down her throat.

      He also hit her in the ribs, on her arm, and on her head. Bell broke away and

      retreated to her car in the driveway, leaving her daughter inside the house.


[5]   Waltz went to Bell’s car to ask her to come back inside. Bell told Waltz to

      bring their daughter outside to her, and Waltz refused. Bell then called 911 and

      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 3 of 14
      told the operator that Waltz “was inside with [her] daughter and that he

      wouldn’t bring her outside.” (State’s Ex. 1). Bell also “told them that there was

      some violence that had happened[.]” (Tr. Vol. 2 at 151). She told the 911

      operator that she did not want to stay in the driveway because she was scared

      and that she was going to drive down the street and away from Waltz’s house.

      A few minutes later, Bell again called 911 in an attempt to cancel her previous

      call, and the operator informed her that the police were on the way. Minutes

      later, the police responded and met Bell on a cross street near Waltz’s home.


[6]   When the police arrived, Fort Wayne Police Officer Scott Wilson (“Officer

      Wilson”) noticed that Bell appeared “afraid” and “ha[d] been crying.” (Tr.

      Vol. 2 at 176). Bell told Officer Wilson that, after Waltz had gotten

      “aggravated with her[,]” he “grabbed her[,]” “shoved his fingers down into her

      throat or into her mouth[,]” and asked her “how d[id] she like that or how did

      that feel.” (Tr. Vol. 2 at 179). Bell also told the officer that Waltz had hit her

      ribs and head. Officer Wilson saw that Bell had a “red mark” on her arm and

      “some skin fluffing from the arm like an abrasion.” (Tr. Vol. 2 at 180).


[7]   The police told Bell to follow them back to Waltz’s house so she could get her

      daughter. Bell was “apprehensive” and “said she was too scared to go back[.]”

      (Tr. Vol. 2 at 180). After Officer Wilson assured Bell that Waltz was “not

      going to do anything with [the police] there[,]” Bell went back to Waltz’s house

      with the police. The police officers knocked several times on Waltz’s door, but

      he refused to answer. The officers, who noticed that Bell was texting Waltz,



      Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 4 of 14
       told her to tell him to come outside. Waltz then opened the door and came

       outside with Bell’s daughter, and the police arrested Waltz.


[8]    Thereafter, Bell drove to the police station to give a statement to Detective

       Michelle Brown (“Detective Brown”), who is a detective in the domestic

       violence unit. Bell told Detective Brown that Waltz had “shoved his first two

       fingers down her throat . . . all the way down to . . . the knuckle” and that he

       had “struck her on her left side in [her] ribs . . . and punched her with a closed

       fist on the left side of her head.” (Tr. Vol. 2 at 228). While Bell was at the

       police station, another officer took photographs of her side and arm.


[9]    The State charged Waltz with Count I, Level 6 felony strangulation; Count II,

       Level 6 felony domestic battery based on prior conviction for battery; and

       Count III, Level 6 felony domestic battery committed in the presence of a child.

       The trial court also issued a no-contact order between Waltz and Bell.


[10]   Despite the no-contact order, Waltz called Bell multiple times while he was in

       jail, and all of these calls were recorded. On the day of his arrest, Waltz called

       Bell for the first time. During this phone call, Waltz cautioned Bell to stop

       making statements. He also told Bell, “when you go to court, tell them that you

       made it up,” and he emphasized that he was “dead fucking serious” about it.

       (State’s Ex. 9). Waltz also asked Bell why she had called the police, and she

       responded that she had been “scared.” (State’s Ex. 9). He then warned her that

       if “[she] d[id] this, then [she was] gonna regret it . . . regret it every time.”

       (State’s Ex. 9). Later during the phone call, Waltz questioned Bell about why


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 5 of 14
       she had told the police that he had strangled her, and she responded that she

       had told the police that he had put his hands down her throat. Waltz told Bell

       that she was not helping him by saying that “stupid shit” and that she needed to

       “quit thinking honestly.” (State’s Ex. 9).


[11]   Two days later, Bell wrote a letter to the trial court. In the letter, Bell stated

       that she “want[ed] to recant [her] statement” made to police on September 16.

       (App. Vol. 2 at 25). She also stated that she did not want the police to arrest

       Waltz and that she did not want to press any charges against him. In the letter,

       Bell stated that she had a mark on her arm because it had been sunburnt and

       was peeling. Additionally, she wrote that she “c[ould] assure that there had

       been no domestic violence[,]” that she did not fear Waltz, and that “no one

       ha[d] pressured [her] into the writing of this letter.” (App. Vol. 2 at 26). On the

       day that Bell wrote the letter, Waltz phoned Bell from the jail. After Bell read

       part of the letter to Waltz, he told her that she needed to make it sound like the

       police had “coached [her] and like changed [her] words” and “manipulated

       charges that weren’t fuckin’ true.” (State’s Ex. 13). Waltz instructed Bell to

       make a copy of the letter for both the trial court and the prosecutor’s office.

       Bell told Waltz that “they had nothing to build a case off of without [her]

       statement.” (State’s Ex. 9). Waltz said that the strangulation charge should get

       dropped because there were no photos of Bell’s throat.


[12]   On October 19, 2016, Waltz again called Bell from jail. During the phone call,

       Waltz told Bell how to avoid being served with a subpoena, such as refusing to

       answer the door or moving from her house and staying with her grandmother

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 6 of 14
       for a month or two. Waltz told Bell that her “showing up is going to fuck

       everything up.” (State’s Ex. 14).


[13]   In December 2016, the trial court held a jury trial. When the State called Bell

       as a witness, she admitted that she had told the police that Waltz had hit her

       multiple times and had shoved his fingers down her throat. She, however,

       recanted those prior reports to police and testified that “in all actuality it didn’t

       happen.” (Tr. Vol. 2 at 155). Instead, Bell testified that she had marks on her

       because she had run into the refrigerator when leaving Waltz’s house and was

       sunburnt. She also admitted that she had written the trial court a letter in which

       she had stated that she did not want Bell to be arrested and did not want

       charges filed against him, and she testified that she had written the letter all by

       herself. After Bell testified that she was never scared of Waltz and continued to

       deny that he had shoved his fingers down her throat, the State asked her “[h]ow

       would someone having their fingers down your throat impact you?” (Tr. Vol. 2

       at 159-60). Bell responded that “[i]t could affect your breathing or make you

       sick or something[.]” (Tr. Vol. 2 at 160). The State then verified that Bell had

       testified that “someone having their fingers down your throat . . . can impact

       your breathing[,]” and Bell responded, “Yes.” (Tr. Vol. 2 at 160).


[14]   The State introduced into evidence Bell’s 911 phone calls and the jail phone

       calls between Waltz and Bell. The State also presented testimony from Officer

       Wilson and Detective Brown regarding Bell’s initial statements that Waltz had

       hit her and shoved his fingers down her throat. During Detective Brown’s

       direct examination, she testified that she had experience and training in

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 7 of 14
       domestic violence cases and was familiar with how some domestic violence

       victims behave, including recanting prior statements. She then, without

       objection, explained the definition of recanting. Specifically, Detective Brown

       testified that “[r]ecanting is when a victim will formally take back what they

       [sic] had initially reported and said.” (Tr. Vol. 2 at 223). When the State asked

       the detective to talk about the cycles of violence, Waltz objected to the

       testimony based on relevancy. The trial court overruled the objection, and

       Detective Brown then testified about the three cycles of violence. The State

       then asked Detective Brown about the percentage of victims who had recanted

       in her cases, and the detective testified—without objection—that “about 80 to

       90 percent will go back and say it never happened.” (Tr. Vol. 2 at 225).


[15]   Waltz testified at trial on his own behalf. He admitted that he had argued with

       Bell and that he had grabbed Bell’s wrist in the bathroom and in the living room

       as she was running out of the house. He, however, denied that he had hit her.

       During closing argument, his counsel argued that Waltz had grabbed Bell’s

       wrist out of self-defense, and the trial court granted his request to include a self-

       defense instruction.


[16]   The jury returned a verdict of guilty on Count I, Level 6 felony strangulation

       and Count II, Level 6 felony domestic battery, and it found Waltz not guilty of

       Count III, Level 6 felony domestic battery. The trial court sentenced Waltz to

       two (2) years’ imprisonment for both Count I and Count II and ordered that

       these sentences be served concurrently. Waltz now appeals.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 8 of 14
                                                   Decision
[17]   Waltz argues that: (1) the trial court abused its discretion in admitting

       Detective Brown’s testimony, and (2) there was not sufficient evidence to

       support his Level 6 felony strangulation conviction. We will address each of

       these arguments in turn.


       1. Admission of Evidence


[18]   Waltz argues that the trial court abused its discretion in admitting Detective

       Brown’s testimony regarding the cycles of violence and the percentage of

       victims who recant. He contends that these two portions of testimony were

       inadmissible under Indiana Evidence Rule 702(a).


[19]   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

       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.


[20]   “A claim of evidentiary error may not be raised for the first time on appeal but

       rather must first be presented at trial[.]” Hunter v. State, 72 N.E.3d 928, 932

       (Ind. Ct. App. 2017), trans. denied. “The failure to make a contemporaneous

       objection to the admission of evidence at trial, so as to provide the trial court an

       opportunity to make a final ruling on the matter in the context in which the

       evidence is introduced, results in waiver of the error on appeal.” Brown v. State,
       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 9 of 14
       783 N.E.2d 1121, 1125 (Ind. 2003). Additionally, “[a]ny grounds for objections

       not raised at trial are not available on appeal, and a party may not add to or

       change his grounds in the reviewing court.” Hunter, 72 N.E.3d at 932.


[21]   Here, Waltz has waived his appellate challenge to the two portions of Detective

       Brown’s testimony. First, Waltz has waived his challenge to the detective’s

       testimony regarding the cycles of violence because his objection was based only

       on the relevance of this testimony and not based on Indiana Evidence Rule 702,

       which he now attempts to raise on appeal. Because he objected based on a

       ground other than he now attempts to raise on appeal, he has waived review of

       his appellate argument regarding this testimony. See, e.g., Brown, 783 N.E.2d at

       1125-26 (holding that the defendant had waived his argument regarding the

       admission of evidence where his objection at trial was based on grounds

       different than those on appeal). Second, in regard to Waltz’s challenge to the

       detective’s testimony about the percentage of victims who recant, Waltz failed

       to raise an objection, let alone a contemporaneous objection, to this testimony.

       As a result, he has waived his appellate argument regarding this testimony. See,

       e.g., Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996) (explaining that a defendant

       waives a claim on appeal when he does not object to the introduction of

       evidence, makes only a general objection, or objects only on other grounds),

       reh’g denied.2



       2
        We recognize that “[a] claim that has been waived by a defendant’s failure to raise a contemporaneous
       objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred.”
       Brown, 929 N.E.2d at 207. See also Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011) (“Failure to object to the
       admission of evidence at trial normally results in waiver and precludes appellate review unless its admission

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017             Page 10 of 14
       2. Insufficient Evidence


[22]   Waltz also argues that the evidence was insufficient to support his conviction

       for Level 6 felony strangulation.

               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder would find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original).


[23]   The strangulation statute in effect at the time of Waltz’s crime, INDIANA CODE

       § 35-42-2-9, provided, in relevant part, that “[a] person who, in a rude, angry, or

       insolent manner, knowingly or intentionally . . . obstructs the nose or mouth of

       . . . another person . . . in a manner that impedes the normal breathing or the

       blood circulation of the other person commits strangulation, a Level 6 felony.”



       constitutes fundamental error.”). Here, however, Waltz does not raise a fundamental error claim on appeal.
       Therefore, we will not address it.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017         Page 11 of 14
       I.C. § 35-42-2-9(b)(2). To convict Waltz as charged, the State was required to

       prove beyond a reasonable doubt that Waltz knowingly or intentionally

       obstructed Bell’s nose or mouth in a manner that impeded her normal breathing

       or blood circulation.


[24]   Waltz contends that there was insufficient evidence to support his strangulation

       conviction because the State did not provide direct testimony that Bell’s normal

       breathing was impeded. In support, he points to Bell’s testimony at trial that

       she had lied to the officers about Waltz putting his fingers down her throat and

       then claimed that her breathing was, therefore, not affected. The State, on the

       other hand, argues that the probative evidence presented and the reasonable

       inferences drawn therefrom were sufficient to allow the jury to find that Bell’s

       breathing was impeded. We agree.


[25]   “Triers-of-fact are charged with making common sense inferences” regarding

       evidence presented. Davis v. State, 796 N.E.2d 798, 806 (Ind. Ct. App. 2003),

       trans. denied. Indeed, we will determine that “evidence is sufficient if an

       inference may reasonably be drawn from it to support the verdict.” Drane, 867

       N.E.2d at 147.


[26]   Here, despite Bell’s recantation, the jury heard testimony from police officers

       that Waltz had shoved his two fingers, up to his knuckles, into Bell’s mouth and

       down her throat. Specifically, Bell told Officer Wilson that, after Waltz had

       gotten “aggravated with her[,]” he “grabbed her[,]” “shoved his fingers down

       into her throat or into her mouth[,]” and asked her “how d[id] she like that or


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 12 of 14
       how did that feel.” (Tr. Vol. 2 at 179). Bell told Detective Brown that Waltz

       had “shoved his first two fingers down her throat . . . all the way down to . . .

       the knuckle[.]” (Tr. Vol. 2 at 228). From this evidence, the jury could have

       reasonably inferred that Bell’s breathing was impeded. See, e.g., Saxton v.

       State, 790 N.E.2d 98, 99 (Ind. 2003) (explaining that the trier-of-fact could infer

       from evidence that defendant was standing on air conditioning unit at 5 a.m.

       peering into woman’s bathroom window that defendant did so without

       woman’s permission). Indeed, even Bell acknowledged that the impact of

       someone placing his fingers down her throat was that “[i]t could affect your

       breathing or make you sick or something[.]” (Tr. Vol. 2 at 160).


[27]   Based on the jury’s verdict, it is evident that it did not believe Bell’s testimony

       that Waltz had never put his fingers down her throat or that her breathing had

       not been affected. “The factfinder is obliged to determine not only whom to

       believe, but also what portions of conflicting testimony to believe, and is not

       required to believe a witness’ testimony even when it is uncontradicted.” Wood

       v. State, 999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013) (internal citations

       omitted), trans. denied, cert. denied. The evidence presented at trial and the

       inferences drawn therefrom were sufficient for a reasonable jury to conclude

       that Waltz impeded Bell’s breathing when he shoved his fingers down her

       throat. Waltz’s challenge to the State’s evidence is merely a request to reweigh

       the inferences made by the jury and its determination of witness credibility. We

       deny this request and affirm his Level 6 felony strangulation conviction. See

       Ferrell v. State, 746 N.E.2d 48, 50 (Ind. 2001) (explaining that “we look to the


       Court of Appeals of Indiana | Memorandum Decision 02A03-1702-CR-263 | August 17, 2017   Page 13 of 14
       evidence and reasonable inferences drawn therefrom that support the verdict

       and will affirm the conviction if there is probative evidence from which a

       reasonable jury could have found the defendant guilty beyond a reasonable

       doubt”).


[28]   Affirmed.


       May, J., and Brown, J., concur.




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