Pursuant to Ind. Appellate Rule 65(D), this                                      Dec 23 2013, 5:48 am
Memorandum Decision shall not be
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:

VALERIE K. BOOTS                                   GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana
                                                   ANGELA N. SANCHEZ
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DJOMON N. TITO,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A02-1304-CR-315
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Rebekah F. Pierson-Treacy, Judge
                             Cause No. 49F19-1210-CM-68987



                                       December 23, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Djomon N. Tito (“Tito”) appeals his conviction, following a bench trial, for battery1

as a Class B misdemeanor. Tito presents one issue for review, namely, whether the trial

court abused its discretion in admitting certain evidence.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       During the early morning hours of July 18, 2012, Courtney Tarter (“Tarter”) went

into an Indianapolis gas station to buy a cup of coffee on her way to work. A man, who

was later identified as Tito, exited the glass cashier’s booth and watched Tarter. As Tarter

approached the booth to pay for her coffee, Tito “came up on [Tarter] and grabbed [her]

behind and said ‘that’s nice.”’ Tr. at 9, 14. Tarter left the store and went to work. Later

that day, after speaking with coworkers about how to report the incident, Tarter called the

police to report the incident. Officer Thomas Goodwin, of the Indianapolis Metropolitan

Police Department (“IMPD”) took Tarter’s incident report.

       IMPD Detective Tanya Terry (“Detective Terry”) was placed in charge of the

investigation, which was delayed somewhat due to conflicts between Tarter’s and

Detective Terry’s work schedules. When the two finally connected, Tarter recalled her

version of the events. Detective Terry went to the gas station, spoke with the manager,

and, based on their conversation, Detective Terry concluded that Tito was the clerk on duty

on the morning in question. Detective Terry left her “contact information” with the

manager, but made no contact with Tito. Id. at 24. However, upon returning to her office,




       1
           See Ind. Code § 35-42-2-1.

                                             2
Detective Terry had a voicemail from Tito. “He said that he was calling to tell [Detective

Terry] that he didn’t harass that girl. He said that he just gave her a hug, and she had hot

coffee in her hand.”2 Id. at 25.

        Detective Terry prepared a photo array and included Tito as one of the six men. On

August 13, 2012, Detective Terry showed Tarter the array, and Tarter “identified [] Tito as

the person that grabbed her butt on July 18th.” Id. Detective Terry asked Tarter to sign her

name and the date under the photo of the person that grabbed her at the gas station, and

Tarter signed under Tito’s photo. The State charged Tito with battery as a Class B

misdemeanor.

        During the bench trial, Tarter described the person who touched her on the morning

in question as being about six feet six inches tall with fairly dark skin. Id. at 12. She also

testified that “[h]is English wasn’t that good.” Id. at 14. When asked if she could recognize

the person who touched her that morning as being in the courtroom, Tarter said, “Yes,”

and pointed to Tito. Id. at 13. Tarter testified that when Tito touched her it made her feel

“violated,” “uncomfortable and unsafe.” Id. at 32.

        Also during the trial, Detective Terry testified that she met with the manager of the

gas station and asked him who was working on the morning in question. When Detective

Terry attempted to testify as to what the gas station manager told her, Tito objected on

hearsay grounds, and the objection was sustained. Id. at 21. Later, however, and over

Tito’s objection, Detective Terry named Tito as the person she believed was working that


        2
          Tito made a second call to Detective Terry. During that call, Tito said that he “didn’t remember
the lady.” Tr. at 27. “He told Detective Terry “that he was thinking of a different lady, and that lady never
made a police report.” Id.

                                                     3
morning. Detective Terry supplied Tito’s name in response to the State’s question as to

whether her conversation with the manager had led her to any conclusions about who was

working on the morning in question.

       Tito testified on his own behalf. During his testimony he said that he was from

Chad and spoke French, but that during his telephone calls with Detective Terry he had

spoken English. Tito admitted that, at six feet eight inches tall, he was the tallest employee

at the gas station—saying “the other employees may reach to my shoulder.” Id. at 43. He

said that he called Detective Terry because the gas station manager told him to call because

“a lady” “had complained about him.” Id. at 45. Tito testified that he thought the complaint

came from “a lady going to Ohio” because she “pretended to look upset that . . . [Tito]

touch[ed] her buttocks by hugging her.” Id. at 46.

       In finding Tito guilty, the trial court made the following statements:

       Defendant admit[ed] to be able to speak English so when the victim said that
       the defendant said “that’s nice” in English, that is plausible. That the
       defendant said that the other coworkers were much shorter than he is. And
       that the victim identified the defendant in the photo array accurately and in
       court. And a reasonable inference why the defendant did call police is
       because he was working that . . . morning. I find the State has proven beyond
       a reasonable doubt that the defendant committed a B Misdemeanor Battery.

Id. at 50. Tito was sentenced to ninety days with all but time served suspended. Tito now

appeals.

                             DISCUSSION AND DECISION

       The admission and exclusion of evidence falls within the sound discretion of the

trial court, and we review the admission of evidence only for abuse of discretion. Bradford

v. State, 960 N.E.2d 871, 873 (Ind. Ct. App. 2012) (citing Wilson v. State, 765 N.E.2d 1265,

                                              4
1272 (Ind. 2002)). “An abuse of discretion occurs ‘where the decision is clearly against

the logic and effect of the facts and circumstances.’” Id. (quoting Smith v. State, 754

N.E.2d 502, 504 (Ind. 2001)). Even if the trial court’s decision was an abuse of discretion,

we will not reverse if the admission of evidence constituted harmless error. Combs v. State,

895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008), trans. denied.

       Tito contends that the trial court abused its discretion in admitting, over Tito’s

objection, Detective Terry’s conclusion that Tito was the clerk working at the gas station

on the morning in question. He contends that Detective Terry’s “opinion” was “hearsay

disguised as ‘course of investigation’ testimony,” because the evidence had “no relevance

apart from proving the fact asserted in the statement,” i.e., that Tito was working when the

incident occurred. Appellant’s Br. at 4.

       Assuming without deciding that the trial court abused its discretion when it admitted

Detective Terry’s testimony that Tito was working on the morning in question, we

conclude that the error was harmless and does not warrant reversal. “Errors in the

admission or exclusion of evidence are to be disregarded as harmless error unless they

affect the substantial rights of the party.” Corbett v. State, 764 N.E.2d 622, 628 (Ind. 2002).

Here, Tito makes no argument, as is required for reversal, that the inclusion of this evidence

affected his substantial rights. The effect on a defendant’s substantial rights is assessed by

considering the probable impact of the evidence upon the trier of fact. Id. The admission

of evidence that is merely cumulative of other properly admitted evidence is harmless and

does not constitute reversible error. Bryant v. State, 802 N.E.2d 486, 494 (Ind. Ct. App.

2004), trans. denied.

                                              5
       Battery as a Class B misdemeanor is defined as knowingly or intentionally touching

another person in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1(a). “Evidence

of touching, however slight, is sufficient to support a conviction for battery.” Ball v. State,

945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied. Here, the challenged testimony

at most, allowed the trial judge to infer that the gas station manager told Detective Terry

that Tito was the clerk on duty at the gas station at the time of the crime. The issue at trial

was the identity of the person who committed the battery. There was substantial other

evidence presented on this point. Tarter identified Tito in a photo array and again in court

as the gas station clerk who grabbed her on the morning in question. Tr. at 12-13, 25-26;

State’s Ex. 1. While Tito admitted that he worked at the gas station, he denied that he was

working on the morning in question. Tarter, however, testified that the perpetrator was six

feet six inches tall, tr. at 12, and Tito admitted that he is actually six feet eight inches tall,

and that “the other employees may reach to [his] shoulder.” Id. at 42-44. Finally, after

Detective Terry spoke to the gas station manager, but before she had contacted Tito, Tito

left a telephone message stating that he had not harassed but only hugged the lady who had

the coffee. Id. at 24. The trial court explained that this was, in fact, the evidence upon

which the court relied in reaching its verdict. Id. at 50. In light of the substantial evidence

of identity, any possible error in admitting Detective Terry’s statement regarding Tito being

on duty on the morning in question, is harmless. Accordingly, we affirm Tito’s conviction.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.



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