MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 21 2019, 10:17 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
Brian A. Karle                                          Curtis T. Hill, Jr.
Ball Eggleston, PC                                      Attorney General
Lafayette, Indiana
                                                        Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert W. Glenn,                                        November 21, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-727
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
State of Indiana,                                       The Honorable Sean M. Persin,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        79C01-1810-F5-188



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019                Page 1 of 8
                                             Case Summary
[1]   Robert W. Glenn was convicted of level 6 felony domestic battery. He now

      appeals, challenging the trial court’s admission of a portion of a recorded 911

      call. Finding no abuse of discretion, we affirm.


                                 Facts and Procedural History
[2]   In October 2018, Glenn was engaged to J.M., and the two were living with a

      roommate in a ground-floor apartment inside a house. At that time, Glenn was

      aware that J.M. was approximately eight months pregnant, and he had agreed

      to help her raise the child even though he knew it was not his. On October 18,

      2018, J.M. and Glenn were alone in the living room. A verbal argument

      ensued concerning a piece of paper that J.M. was holding that Glenn believed

      to contain his credit card information. Glenn demanded that she give him the

      paper, and she refused. The argument escalated when Glenn pushed J.M. The

      two continued to push each other, and J.M. later recounted, Glenn “grabbed

      me and had choked me and I was telling him to let me go because I couldn’t

      breathe.” Tr. Vol. 2 at 44. Glenn did not let go. Id. at 47. At some point

      during the incident, J.M. dropped the paper, and both of them fell to the floor.

      Glenn was on top of her momentarily, with his knee in her back and side, as

      they both struggled to retrieve the paper. J.M. believed that she was having an

      anxiety attack because she could not breathe, and she was worried “[t]hat there

      was something wrong with the baby.” Id. at 40.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019   Page 2 of 8
[3]   Meanwhile, the upstairs neighbor (“Neighbor”) heard screams and cries for

      help and called 911. Shortly thereafter, Lafayette Police Department Officer

      Alvin Cudworth came to the door. By that time, J.M.’s roommate had entered

      the room and opened the door for police. J.M. hurried outside to the porch and

      exclaimed that Glenn had grabbed her by the neck, that she could not breathe,

      and that she was anxious for the condition of her baby. Officer Cudworth

      observed red marks on J.M.’s neck and right arm. Emergency medical

      personnel arrived and took J.M. to a nearby hospital. While en route,

      Emergency Medical Technician (“EMT”) Jim Merida observed red marks on

      the left side of J.M.’s neck, bruising on the left side of her lower abdomen, and

      an abrasion. J.M. reported to him and to the treating physician that she had

      been choked/strangled and kicked in her back and side. During treatment,

      J.M. complained of blurred vision and pain all over her body, and the baby was

      monitored for fetal heart tones.


[4]   The State charged Glenn with level 5 felony criminal confinement, level 5

      felony strangulation of a pregnant woman, level 5 felony domestic battery

      resulting in bodily injury to a pregnant woman, level 6 felony domestic battery,

      and a habitual offender count. A jury convicted Glenn of class A misdemeanor

      domestic battery, and Glenn admitted to having a prior domestic battery

      conviction, thus enhancing his conviction to level 6 felony domestic battery.

      The jury acquitted Glenn on the remaining charges. The trial court sentenced

      him to two and a half years, with two years executed in community corrections




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019   Page 3 of 8
      and six months on supervised probation. Glenn now appeals. Additional facts

      will be provided as necessary.


                                        Discussion and Decision
[5]   Glenn challenges the trial court’s admission of a particular statement included

      in the audio recording of Neighbor’s 911 call. We review evidentiary rulings

      for an abuse of discretion resulting in prejudicial error. Williams v. State, 43

      N.E.3d 578, 581 (Ind. 2015). An abuse of discretion occurs when the trial

      court’s ruling is either clearly against the logic and effect of the facts and

      circumstances before it or the court misinterprets the law. Id. In determining

      whether improperly admitted evidence has prejudiced the defendant, we assess

      the probable impact of that evidence on the jury in light of all the other properly

      admitted evidence. Id. If independent, properly admitted evidence of guilt

      supports the conviction, the error is harmless. Id.


[6]   At trial, Glenn objected to the 911 tape on grounds of unfair prejudice and/or

      jury confusion under Indiana Evidence Rule 403. 1 Evidence Rule 403 states,

      “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 trial court has wide latitude in weighing the

      probative value of the evidence against possible unfair prejudice resulting from




      1
          Glenn also objected on hearsay grounds below but does not raise hearsay on appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019         Page 4 of 8
      its admission. Luke v. State, 51 N.E.3d 401, 416 (Ind. Ct. App. 2016), trans.

      denied. “[A]ll evidence is ‘inherently prejudicial’ and, therefore, the Rule 403

      analysis ‘boils down to a balance of the probative value of the proffered

      evidence against the likely unfair prejudicial impact of that evidence.’” Rasnick

      v. State, 2 N.E.3d 17, 810 (Ind. Ct. App. 2013) (quoting Duvall v. State, 978

      N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. denied (2013)), trans. denied (2014).

      “Unfair prejudice ... looks to the capacity of the evidence to persuade by

      illegitimate means, or the tendency of the evidence to suggest decision on an

      improper basis.” Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009) (quoting

      Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)).


[7]   Here, Glenn objected to only one statement in Neighbor’s 911 call: “It sounds

      like he’s really attacking her.” State’s Ex. 2R (emphasis added). He asserts that

      the probative value of the statement was substantially outweighed by the danger

      of unfair prejudice and juror confusion, namely, that the jury might believe

      Neighbor to be an eyewitness and give her statement undue credence. We do

      not believe that the challenged statement supports an inference that Neighbor

      was an eyewitness. At trial, J.M. testified that she had been screaming very

      loudly and that she believed a next-door neighbor had called the police. Tr.

      Vol. 2 at 51-52. She also confirmed that the neighbor was not present in the

      apartment during the altercation. Id. at 52. We believe that the challenged

      statement supports a common sense, reasonable inference that Neighbor, who

      lived immediately above J.M. and Glenn, relayed to the dispatcher that she

      heard what she perceived to be an attack occurring in the apartment below.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019   Page 5 of 8
      The challenged statement is highly probative evidence in a domestic battery

      case and clearly indicates that Neighbor relied on her sense of hearing before

      and during her conversation with the dispatcher.


[8]   Moreover, Glenn does not challenge any other statements made by Neighbor

      during her 911 call. The unchallenged statements include: (1) “a woman is

      screaming for her life”; (2) “she’s saying, ‘please get off me’”; and (3) “I heard

      her say, ‘someone call the cops.’” State’s Ex. 2R. Each of these unchallenged

      statements supports a common sense, reasonable inference that the caller was

      relying on her sense of hearing and was simply relaying her auditory

      observations to the dispatcher.


[9]   The trial court admitted the 911 recording in full and, in the interest of avoiding

      juror confusion, directed the State to reinforce to the jury that Neighbor’s

      perspective was limited to what she heard. The State did not directly do so

      during its principal closing argument. See Tr. Vol. 2 at 137 (“[Y]ou heard the

      911 caller say somebody is screaming get off of me”). However, defense

      counsel clarified the matter during his closing argument, stating, “The 911 call

      you heard mentioned that yes there was screaming. There is an individual

      yelling get off of me. We’re not debating that happened.… there was yelling,

      there was this commotion. The caller wasn’t in the room okay.… we have two

      people in [the] room.” Id. at 145. During rebuttal, the State addressed the issue

      as follows:


              [J.M.] was screaming so loud that the upstairs neighbors called
              police. And you heard the 911 call. (911 call played during

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019   Page 6 of 8
               closing). The 911 call a woman screaming for her life saying
               please get off of me, heard someone say call the cops, why do
               you need police involved if there is not a physical altercation
               going on? Why do you need police involvement to get away
               from if he is not touching you? And most importantly sounds
               like he is really attacking her. That is what she is hearing. She is
               relating to the police, to the dispatcher, what is ongoing ….
               There was something going on in that house, something so bad
               that the neighbor had to call police.


       Id. at 149-50 (emphasis added). We find these statements sufficient to clarify

       the limited perspective of the caller, so as to cure any potential juror confusion.


[10]   We categorically reject Glenn’s assertion that the challenged portion of the 911

       recording is unfairly prejudicial because it is the only evidence, other than

       J.M.’s testimony, that supports J.M.’s version of the incident. In addition to

       the unchallenged statements on the 911 recording, which are also probative of

       whether J.M. was screaming for help and asking a person to get off her, the

       photographic exhibits and trial testimony of Officer Cudworth and EMT

       Merida support J.M.’s battery claims. Officer Cudworth testified that J.M. ran

       out of the residence toward him, saying that she could not breathe and that she

       had been choked. He also recounted that “[s]he was crying, her eyes were full

       of tears, and I could see that her neck was read [sic] and so was her right arm.”

       Id. at 59. Photographic exhibits confirmed the red marks. State’s Exs. 3-6.

       Officer Cudworth asked J.M. “specifically who had choked her and she pointed

       in the house saying him [Glenn].” Tr. Vol. 2 at 60. EMT Merida testified that

       J.M had reported to him that Glenn had grabbed her by the sweatshirt around

       her neck and that she was struggling to breathe. He observed red marks on her
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019   Page 7 of 8
       neck and abrasions on her lower left side and abdomen consistent with her

       report. Thus, independent, properly admitted evidence supports Glenn’s

       conviction. 2


[11]   In sum, the probative value of the challenged statement in Neighbor’s 911 call

       is not substantially outweighed by the danger of unfair prejudice or jury

       confusion. The trial court therefore acted within its discretion in admitting the

       statement. Accordingly, we affirm.


[12]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       2
         Glenn also asserts that because the State neither called Neighbor to testify at trial nor established her
       unavailability as a witness, he was denied his Sixth Amendment right to confront and cross-examine her
       concerning her statements on the 911 recording. However, he has waived review of this claim for failure to
       present a cogent argument with citations to authority as required by Indiana Appellate Rule 46(A)(8). See
       Sheckles v. State, 24 N.E.3d 978, 985 (Ind. Ct. App. 2015) (defendant waived confrontation claim for failure to
       develop argument on appeal), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-727 | November 21, 2019                    Page 8 of 8
