                                                                                    FILED
MEMORANDUM DECISION                                                            09/12/2017, 10:38 am
                                                                                    CLERK
Pursuant to Ind. Appellate Rule 65(D),                                          Indiana Supreme Court
                                                                                   Court of Appeals
this Memorandum Decision shall not be                                                and Tax Court


regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
William T. Myers                                         Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Quinyatte Jarmaine Harrell,                              September 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1702-CR-248
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         Trial Court Cause No.
                                                         27D02-1608-F6-321



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1702-CR-248 | Setpember 12, 2017          Page 1 of 6
                                       Statement of the Case
[1]   Quinyatte Harrell appeals his conviction for domestic battery, as a Level 6

      felony, following a jury trial. Harrell presents a single issue for our review,

      namely, whether the trial court abused its discretion when it admitted into

      evidence text messages between him and his wife. We affirm.


                                 Facts and Procedural History
[2]   On August 11, 2016, after Harrell drove his wife, J.H., to work, he and J.H.

      engaged in a conversation by text message about whether J.H. had deactivated

      her old Facebook account. J.H. assured him that she had deactivated the

      account after he had asked her to, but he accused J.H. of lying and stated that it

      appeared as though she had reactivated the account. Harrell told J.H. that she

      could “go to hell.” State’s Ex. 6. Harrell then asked J.H. for money and

      threatened to “bring[] the cops” with him to her office to “make sure” he got his

      money. Id. Harrell then told J.H. that he got a restraining order against J.H. so

      that she could not see her ex-husband or daughter again.


[3]   In the meantime, Harrell went to the Grant County Sheriff’s Department and

      asked to file a complaint against J.H.’s ex-husband, who was a deputy. Harrell

      told Chief Deputy Tim Holtzleiter that he and his wife, J.H., both wanted to

      file complaints against her ex-husband. Chief Deputy Holtzleiter gave Harrell a

      form to fill out.


[4]   At approximately noon that same day, Harrell picked up J.H. for her lunch

      break, and he drove her to the Sheriff’s Department. Harrell did not tell J.H.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1702-CR-248 | Setpember 12, 2017   Page 2 of 6
      why they were going there, but J.H.’s stepfather had told her about Harrell’s

      earlier visit to the Department and Harrell’s claim that he and J.H. wanted to

      file a complaint. J.H. did not understand what was going on, as she did not

      want to file a complaint, but she went inside and spoke to Chief Deputy

      Holtzleiter. Before J.H. left, she felt “scared” and almost called a friend to

      come pick her up, but she eventually got back in the car with Harrell. Tr. Vol. 2

      at 82.


[5]   Harrell drove J.H. back to her office. While parked in the parking lot at J.H.’s

      office, Harrell told J.H. that he planned to take his things out of a storage locker

      they shared. J.H. was worried that he would take some of her things, too, so

      she grabbed for the keys to the storage locker. Harrell then struck J.H. twice in

      the back of her head. J.H. screamed out for a friend, C.Z., who was parked

      nearby. Harrell put J.H. in a headlock and grabbed J.H.’s hair and threatened

      to pull it out. J.H. screamed for C.Z. again. J.H. then reached for the keys to

      her car, and Harrell head-butted her twice. C.Z. heard J.H.’s screams and

      walked up to the car.


[6]   C.Z. could see that Harrell “had a hold of” J.H., and C.Z. yelled, “What’s

      going on?” Id. at 207. C.Z. ran to J.H.’s side of the car, and Harrell got out

      and approached C.Z. and J.H. C.Z. saw that J.H.’s hair was “a mess,” she was

      crying “hysterically,” and her face was “beet red.” Id. at 207-08. C.Z. asked

      them what was going on. Harrell replied, “she’s a f***ing b****. She’s crazy.”

      Id. at 209. J.H. said that Harrell had threatened to crash her car and destroy her

      personal belongings. C.Z. asked J.H. what she wanted to do, and she

      Court of Appeals of Indiana | Memorandum Decision 27A02-1702-CR-248 | Setpember 12, 2017   Page 3 of 6
      eventually convinced J.H. to go inside the office with her. Harrell refused to

      leave. C.Z.’s husband was on the phone with her and she told him to call 9-1-1.

      Harrell said to C.Z., “You haven’t seen the last of me, you f***ing b****.” Id.

      at 210.


[7]   Harrell left J.H.’s office and returned to the residence he and J.H. shared with

      J.H.’s stepfather, D.P., and her mother. Harrell saw D.P. and told him that he

      and J.H. had “gotten into it” and that he had “head-butted” J.H. Id. at 225.

      Harrell told D.P. that “he was going to do three years.” Id. Harrell asked D.P.

      for a key to a house that D.P. owned nearby so that he could “hide from the

      cops.” Id. at 228. D.P. walked with Harrell and let him into the other house.

      Thereafter, D.P. contacted an officer with the Marion Police Department and

      gave him a key to the house where Harrell was hiding.


[8]   The State charged Harrell with domestic battery, as a Level 6 felony, and

      intimidation, as a Class A misdemeanor. A jury found Harrell guilty of

      domestic battery, but acquitted him on the intimidation charge. The trial court

      entered judgment and sentence accordingly. This appeal ensued.


                                     Discussion and Decision
[9]   Harrell contends that the trial court abused its discretion when it admitted into

      evidence State’s Exhibit 6, which consisted of copies of text messages between

      Harrell and J.H. during the morning of August 11, 2016. The trial court has

      “inherent discretionary power on the admission of evidence, and its decisions

      are reviewed only for an abuse of that discretion.” McManus v. State, 814

      Court of Appeals of Indiana | Memorandum Decision 27A02-1702-CR-248 | Setpember 12, 2017   Page 4 of 6
       N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An abuse of

       discretion occurs when the trial court’s judgment “is clearly against the logic

       and effect of the facts and circumstances and the error affects a party’s

       substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


[10]   At trial, on direct examination, J.H. testified that she and Harrell had been

       texting each other the morning of August 11, and she proceeded to describe, in

       detail, what they discussed in those messages. Harrell did not object to that

       testimony. But when the State subsequently moved to admit into evidence

       copies of the text messages, Harrell objected on the basis that the text messages

       contained hearsay. The trial court admitted the text messages over Harrell’s

       objection.


[11]   On appeal, Harrell maintains that the text messages were inadmissible hearsay

       under Indiana Evidence Rule 801(c) because “they were being offered to prove

       the truth of the matter asserted, specifically his intent to commit battery.” 1

       Appellant’s Br. at 8. But, to the extent Harrell asserts that J.H.’s statements in

       the text message exchange were hearsay, he does not support that assertion

       with cogent argument. Indeed, as the State correctly points out, J.H.’s text

       messages were not offered to prove the truth of the matter asserted but were

       offered to give context to the events that occurred after Harrell picked up J.H.




       1
         For the first time on appeal, Harrell argues that State’s Exhibit 6 was inadmissible under Evidence Rule
       704. It is well-settled that a defendant may not raise one ground for objection at trial and argue a different
       ground on appeal. Howard v. State, 818 N.E.2d 469 (Ind. Ct. App. 2004), trans. denied. The issue is waived.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1702-CR-248 | Setpember 12, 2017             Page 5 of 6
       for lunch that day. Thus, J.H.’s statements in the exchange were not hearsay.

       See, e.g., Williams v. State, 930 N.E.2d 602, 609 (Ind. Ct. App. 2010), trans.

       denied. And Harrell’s statements in the text messages were not hearsay because

       they were made by Harrell and were offered against him at trial. As such, they

       were admissible as non-hearsay statements by a party-opponent. See Ind.

       Evidence Rule 801(d)(2)(A); Pavlovich v. State, 6 N.E.3d 969, 979 (Ind. Ct. App.

       2014), trans. denied. The trial court did not abuse its discretion when it admitted

       into evidence State’s Exhibit 6.


[12]   In any event, any error in the admission of the text messages would have been

       harmless. It is well settled that reversible error cannot be predicated upon the

       erroneous admission of evidence that is merely cumulative of other evidence

       that has already been properly admitted. Sibbing v. Cave, 922 N.E.2d 594, 598

       (Ind. 2010). Here, prior to the admission of Exhibit 6 at trial, J.H. had testified,

       in detail, to the substance of the text message exchange without objection by

       Harrell. Thus, State’s Exhibit 6 was merely cumulative of J.H.’s testimony, and

       Harrell cannot show reversible error by its admission. Finally, given the

       substantial evidence against Harrell, including his confession to D.P. and

       attempt to evade arrest, Harrell cannot show that any error in the admission of

       the text messages affected his substantial rights. Ind. Appellate Rule 66(A).


[13]   Affirmed.


       Kirsch, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1702-CR-248 | Setpember 12, 2017   Page 6 of 6
