Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                           FILED
establishing the defense of res judicata,                   Sep 26 2012, 9:00 am
collateral estoppel, or the law of the case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

STANLEY F. WRUBLE III                             GREGORY F. ZOELLER
South Bend, Indiana                               Attorney General of Indiana

                                                  J.T. WHITEHEAD
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BARON D. McCLUNG,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 71A03-1202-CR-80
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Roland W. Chamblee, Jr., Judge
                              Cause No. 71D08-1108-FD-688



                                      September 26, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
      Appellant-Defendant Baron D. McClung appeals his conviction for domestic

battery, a Class D felony.1 McClung argues that the trial court abused its discretion by

limiting his cross-examination on matters that he claims established the victim’s motive

to falsely accuse him. We affirm.

                          FACTS AND PROCEDURAL HISTORY

      McClung resides at a homeless shelter. His wife, Diane McClung, kicked him out

of their home one month prior to the incident in question because the couple frequently

argued. Diane was considering a divorce. On August 3, 2011, Diane picked up McClung

at the homeless shelter, and the two drove in Diane’s van to a local laundromat. While

there doing laundry, Diane made a telephone call to her sister, and the two discussed an

upcoming trip to Michigan City to visit a casino. McClung overheard this conversation

and asked Diane how much money she had in her wallet. Diane thought McClung was

asking for money, which she did not want to give him. The couple began to argue about

money with their voices raised, attracting the attention of the five or six customers and

one employee inside the laundromat at the time.

      Diane exited the laundromat in order to get away from McClung. McClung

followed her outside. Diane headed for her van, which was parked just outside the

laundromat door, but McClung grabbed her by the shirt and flung her back against the

laundromat’s brick wall. Diane was able to escape to her van, but McClung climbed in

its passenger side. Inside the van, McClung hit Diane with a closed fist and then grabbed

Diane’s neck with both hands, squeezed, and told Diane he was going to kill her.


      1
          Ind. Code § 35-42-2-1.3(b) (2011).

                                               2
       After the attack, a scared Diane drove McClung back to the homeless shelter.

Once he was inside, she called 911. One of the other laundromat patrons also called 911.

Officer Nicholas Pogotis, a patrolman with the South Bend Police Department, was

dispatched to the homeless shelter, where he encountered an “upset” and “angry”

McClung. Tr. p. 125. Before Officer Pogotis disclosed to McClung the nature of his

investigation, McClung stated, “I did not touch her.” Tr. p. 125. Officer Pogotis then

found Diane a half block away with scratches on her face and neck, including one “pretty

decent size scratch” on her neck that had started to bleed. Tr. p. 128. Diane also had a

swollen lip. Officer Pogotis photographed these injuries, and the images were admitted

into evidence at trial. Officer Pogotis also testified that Diane “had some finger marks

around her neck from where she had some hands around her neck,” Tr. pp 127, but these

injuries were not visible in the photograph taken of them.

       On August 5, 2011, McClung was charged with Class D felony strangulation,

Class A misdemeanor domestic battery, and Class D felony domestic battery. At trial,

during cross-examination of Diane by McClung, the State objected to McClung’s

question, “And he accused you of not giving him money because you were using it on

drugs?”2 Tr. p. 152. The trial court sustained the objection and then admonished the jury:

“Folks, I’m going to suggest that you should ignore the comment about being mad about

using drugs. They were mad apparently, okay. Thank you.” Tr. p. 154.

       On December 8, the jury found McClung not guilty of Class D felony

strangulation but guilty of Class A misdemeanor domestic battery. Because of a prior

       2
          Amid the State’s objection, the record reflects that Diane answered this question in the
affirmative, adding that this accusation “upset” her. Tr. pp. 152-52.

                                                3
misdemeanor conviction for an unrelated domestic battery, McClung was also convicted

of Class D felony domestic battery. McClung’s two convictions in this case merged, and

ultimately, he received an eighteen-month sentence. Where appropriate, additional facts

will be supplied below.

                            DISCUSSION AND DECISION

       McClung argues that the trial court denied him his Sixth Amendment right of

confrontation by excluding questions regarding his public accusation that Diane was

spending money on drugs. “‘[A] primary interest’ secured by the Confrontation Clause is

the right of cross-examination.” Standifer v. State, 718 N.E.2d 1107, 1110-11 (Ind. 1999)

(quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)). This includes the ability to attack a

witness’ credibility through questions aimed at “revealing possible biases, prejudices, or

ulterior motives of the witness as they may relate directly to issues or personalities in the

case at hand.” Beaty v. State, 856 N.E.2d 1264, 1269 (Ind. Ct. App. 2006) (quoting

Davis, 415 U.S. at 316). “The partiality of a witness…is ‘always relevant as discrediting

the witness and affecting the weight of his testimony.’” Standifer, 718 N.E.2d at 1110

(quoting Davis, 415 U.S. at 316). However, “‘trial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only

marginally relevant.’” McQuay v. State, 566 N.E.2d 542, 543 (Ind. 1991) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

       McClung claims that questions regarding his accusation that Diane was spending


                                             4
money on drugs would have revealed Diane’s anger at having her “dirty laundry” aired in

public at the laundromat, McClung’s theory being that this anger motivated Diane to

falsely accuse McClung of strangulation and domestic battery. However, a trial court

does not abuse its discretion in excluding such evidence if the jury has been made aware

of the witness’ bias and the defendant had sufficient opportunity to explore it. Beaty, 856

N.E.2d at 1269-70 (citing Hatchett v. State, 503 N.E.2d 398, 404 (Ind. 1987)).

       Here, McClung elicited numerous statements on cross-examination that Diane was

angry at McClung for asking for and taking her money and for publicly chastising her for

gambling.

       [Counsel]:    McClung often asked you for money…[and] that upset you,
       didn’t it?
       [Diane]:      Yes.
       [Counsel]:    Made you angry?
       [Diane]:      Yes.
       [Counsel]:    Made you resentful?
       [Diane]:      Yes.

Tr. p. 152.

       [Counsel]:    Your husband said some things that upset you, right?
       [Diane]:      Yes.
       [Counsel]:    And it was essentially about money?
       [Diane]:      Yes.
       [Counsel]:    About you going to the casino?
       [Diane]:      Yes.
       [Counsel]:    He said it was unchristian to spend money at a casino…?
       [Diane]:      Yes.
       [Counsel]:    And that upset you?
       [Diane]:      Yes.
       [Counsel]:    It got heated?
       [Diane]:      Yeah.
       [Counsel]:    You got angry?
       [Diane]:      Yes.

Tr. pp. 154-55. There was ample evidence presented to the jury that Diane was angry at

                                            5
McClung. Moreover, McClung had sufficient opportunity to explore Diane’s ulterior

motive, but he chose not to do so in any detail beyond the questions listed above.

Therefore, we cannot say that the jury would have received a significantly different

impression of Diane or her motive to accuse McClung had he been permitted to cross-

examine Diane regarding his public accusation that she was spending money on drugs.

We conclude that the trial court did not abuse its discretion in prohibiting this line of

questioning.

        We further conclude that, had the trial court abused its discretion in limiting the

scope of McClung’s cross-examination, it would not constitute reversible error.

        Whether the trial court’s error is harmless depends on several factors
        including “the importance of the witness’ testimony in the prosecution’s
        case, whether the testimony was cumulative, the presence or absence of
        evidence corroborating or contradicting the testimony of the witness on
        material points, the extent of cross-examination otherwise permitted, and,
        of course, the overall strength of the prosecution’s case.”

Standifer, 718 N.E.2d at 1111 (quoting Van Arsdall, 475 U.S. at 684). Here, there was no

indication that Diane falsely accused McClung of domestic battery. Although Officer

Pogotis admitted that someone could “possibly fall” and sustain a swollen lip like

Diane’s, McClung presented no evidence tending to show that Diane sustained her

injuries in this manner. In fact, he proposed his “accident” theory to Diane when

questioning her on cross-examination, and it was adamantly denied. 3

        [Counsel]: And he reached out to grab your shirt to stop you from
        keeping going, isn’t that right?
        [Diane]:     No.

        3
         The trial judge came to the same conclusion in denying McClung’s proposed jury instruction on
an accident defense: “While it’s a theory you posed in questions there is no evidence it occurred in that
fashion.” Tr. p. 162.

                                                   6
       [Counsel]: And when he grabbed your shirt the momentum caused you
       to kind of pull back, right?
       [Diane]:       No.
       [Counsel]: In fact, it was the momentum of you following forward that
       pulled your shirt around your neck?
       [Diane]:       No.
       [Counsel]: In fact, that momentum that caused you to swing around and
       hit the building is how you got the hurt lip, is that right?
       [Diane]:       No. It’s not right at all…. He hit my lip when we got in the
       van with his fist.

Tr. pp. 157-58.

       Having concluded that the trial court did not abuse its discretion in limiting

McClung’s cross-examination and, alternatively, that McClung’s claimed error would not

warrant reversal, we affirm the judgment of the trial court.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BAKER, J., concur.




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