                                                                        FILED
                                                                    Jun 24 2020, 5:44 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Flynn                                         Curtis T. Hill, Jr.
Michigan City, Indiana                                     Attorney General of Indiana
                                                           Myriam Serrano
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Armann Jamal Johnson,                                      June 24, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-2849
        v.                                                 Appeal from the LaPorte Superior
                                                           Court
State of Indiana,                                          The Honorable Michael S.
Appellee-Plaintiff.                                        Bergerson, Judge
                                                           Trial Court Cause No.
                                                           46D01-1812-F3-1318




Tavitas, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                           Page 1 of 14
                                                 Case Summary

[1]   Armann Johnson appeals his conviction for battery with a deadly weapon, a

      Level 5 felony. We reverse and vacate Johnson’s conviction.


                                                        Issues

[2]   Johnson raises three issues on appeal; however, we revise and restate as the two

      following issues.


              I.       Whether the trial court abused its discretion in admitting
                       Johnson’s out-of-court statement.


              II.      Whether the evidence was sufficient to support Johnson’s
                       conviction.


                                                        Facts

[3]   From August 2018 to October 2018, a series of incidents occurred between

      Johnson and his on-again-off-again girlfriend, M.W. 1 Detective Arwen

      LaMotte, with the Michigan City Police Department, became involved with the

      investigation of the events beginning in August 2018. In the early stages of her

      interactions with M.W., M.W. was not cooperative with Detective LaMotte

      and did not want to file charges against Johnson. Ultimately, on October 15,

      2018, Detective LaMotte was investigating a fire at M.W.’s apartment that



      1
       Although several incidents occurred that resulted in multiple charges against Johnson, this appeal focuses
      on the facts in Johnson’s battery charge and subsequent conviction. Importantly, during the trial, testimony
      was elicited regarding a physical altercation between M.W. and Johnson in August 2018; however, the
      charging information on the battery charge in this case was based on the battery that occurred on October 7,
      2018.

      Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                                Page 2 of 14
      occurred earlier that day, which was determined to be intentionally set. In the

      course of her investigation, Detective LaMotte interviewed M.W.


[4]   During the interview, M.W. was much more cooperative than in the past. In

      the course of discussing M.W.’s past history with Johnson, M.W. advised

      Detective LaMotte that Johnson had battered her one week prior to the fire. As

      a result of the investigation, Detective LaMotte took photographs of bruises on

      M.W.’s body and took a security stick from M.W.’s apartment. 2 As a result of

      the interview, Detective LaMotte prepared a police report regarding “domestic

      battery and strangulation.” Tr. Vol. III p. 105.


[5]   On November 30, 2018, Johnson was charged with battery with a deadly

      weapon, a Level 5 felony, based on the October 2018 battery, and several other

      charges. 3 After Johnson’s arrest, Detective LaMotte interviewed Johnson.

      During the interview, Johnson admitted that he was angry with M.W. and hit

      M.W. with his fists while at her apartment. See State’s Ex. 11. In the interview,

      Johnson told Detective LaMotte that he recalled picking up the security stick

      and hitting his own hand with the stick; however, Johnson did not recall hitting

      M.W. with the security stick. When asked by Detective LaMotte if it was



      2
          The security stick was used as reinforcement for a sliding glass door in the apartment.
      3
        As a result of the Detective LaMotte’s ongoing investigation, the entirety of Johnson’s convictions included:
      Count I, robbery, a Level 3 felony; Count II, stalking, a Level 4 felony; Count III, battery, a Level 5 felony;
      Count IV, strangulation, a Level 6 felony; Count V, arson, a Level 4 felony; and Count VI, intimidation, a
      Level 5 felony. All these charges involved M.W. and came about as a result of Detective LaMotte’s
      investigation of the time period from August to October 2018. After the State’s presentation of the evidence,
      the State moved to dismiss Counts IV and VI, which the trial court granted. The jury found Johnson not
      guilty of Counts I, II, and V. The jury found Johnson guilty only of the battery with a deadly weapon charge.

      Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                                 Page 3 of 14
      “possible” if he did so, Johnson responded, “probably.” Id. In the interview,

      Johnson also did not recall the security stick being damaged.


[6]   Johnson’s jury trial began on October 7, 2019, and after a jury was empaneled,

      Johnson made an oral motion in limine. In that motion, Johnson sought to

      prevent the State from discussing in its opening statement certain portions of

      Johnson’s out-of-court interview with police. Johnson argued the confession

      may be inadmissible based on principles of corpus delicti if M.W. did not

      appear to testify. The trial court denied Johnson’s motion.


[7]   M.W. had moved out of state and did not appear to testify at trial after the State

      subpoenaed M.W. to testify. 4 All evidence regarding the battery offense was

      presented through Detective LaMotte’s testimony of what M.W. reported to

      Detective LaMotte during the course of her investigation. Prior to the

      presentation of any evidence on the battery charge, the parties and trial court

      discussed the admission of Johnson’s prior out-of-court statement, which the

      State anticipated presenting. Johnson argued that the evidence was

      inadmissible because the State had “to show in some way that a crime was

      committed before [Johnson’s] confession becomes relevant.” Tr. Vol. III p. 71.

      The trial court took the matter under advisement until the trial court had an

      opportunity to review the parties’ arguments. The trial court did not ultimately




      4
          In preparation for trial, on September 18, 2019, the trial court certified an interstate subpoena for M.W.


      Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                                     Page 4 of 14
      rule on the motion until the State sought admission of the out-of-court

      statement.


[8]   Detective LaMotte testified that she and M.W. discussed three incidents

      between Johnson and M.W. when they met on October 15, 2018, involving

      arson, robbery, and a “prior unreported battery.” Id. at 88. During Detective

      LaMotte’s testimony, the State sought admission of photographs of M.W. that

      Detective LaMotte took while interviewing M.W. after M.W. reported to

      Detective LaMotte that Johnson “battered her.” Id. at 94. Johnson objected to

      Detective LaMotte’s statement as hearsay, which the trial court overruled. The

      deputy prosecutor then asked Detective LaMotte what was “significant” about

      the photos, to which Detective LaMotte testified that M.W. was “bruised.” Id.

      at 95.


[9]   The State then sought to admit the photographs, and Johnson objected to their

      admission. Johnson argued the photos were not relevant because Detective

      LaMotte was investigating an arson, and the “bruises that [Detective LaMotte]

      saw are not relevant to what’s been presented so far.” Id. at 96. The trial court

      overruled the objection saying: “[t]hat is the other (inaudible) the multiple other

      complaints regarding battery.” 5 Id. The trial court, however, gave a limiting

      instruction to the jury as follows:




      5
        There was other evidence presented at trial of a physical altercation between M.W. and Johnson. That
      altercation, however, was related to the allegations that Johnson robbed M.W. in August 2018.

      Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                              Page 5 of 14
               I’m going to give you a limiting instruction at this point
               regarding some of the evidence that you may have just heard.
               And sometimes evidence is admitted for a limited purpose. Uh,
               you may, [ ], read or will have heard possibly statements made by
               [M.W.] to the police in the course of their investigation. The
               statements allegedly made by [M.W.] are not being offered for
               the truth of the matters being asserted in these statements, but
               only to provide context for the statements being attributed to the
               Defendant. You shall not consider the alleged statements of
               [M.W.] as substantive evidence on the issue of whether the State
               of Indiana has satisfied its burden of proof. However, you may
               consider the statements made by the Defendant for any purpose
               you see fit and give the same weight to which you think they are
               entitled. Without the in-court testimony of [M.W.], you shall not
               consider such evidence for any other purpose. Specifically, you
               shall not consider the purported statements of [M.W.] in arriving
               at your verdict.


       Id. at 97. The photographs were then admitted and published to the jury as

       Detective LaMotte described the photographs. Detective LaMotte testified

       M.W.’s bruises appeared to be in the “healing stages[.]” Id. at 100.


[10]   The deputy prosecutor then asked Detective LaMotte if, after the conversation

       with M.W., “an item of evidence [was] collected at the apartment[.]” Id. at

       101. Detective LaMotte responded affirmatively. The deputy prosecutor

       directed Detective LaMotte to identify State’s Exhibit 24, which Detective

       LaMotte identified as a “security stick for a sliding glass door” taken from

       M.W.’s home. Id. at 102. The State then sought to admit the security stick.

       Johnson objected that the security stick was irrelevant, that the prejudicial effect

       outweighed the probative value, and that there had yet to be any connection


       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020         Page 6 of 14
       between the security stick and the alleged battery. The trial court overruled the

       objection, concluding that, in view of the photographs of M.W.’s injuries, it

       appeared the “type of object” that caused the markings was a “lengthy one.”

       Id. at 104. The trial court concluded, therefore, it would let the jury determine

       whether the security stick caused the injuries. 6 Id. at 104. Detective LaMotte

       provided no testimony to connect the security stick to the marks on M.W.’s

       body other than the general assertion that one side of the security stick was

       “damaged.” Id. at 105.


[11]   Detective LaMotte testified that, a few days after she interviewed M.W.,

       Johnson was arrested on October 23, 2018. Detective LaMotte interviewed

       Johnson on the day of his arrest about all the events that occurred between

       August and October 2018. At trial, the State sought to introduce the video

       recording of Johnson’s interview. Johnson objected to the admission of his out-

       of-court statements regarding the battery, arguing the State failed to establish

       the corpus delicti on that charge. The trial court overruled Johnson’s objection

       and Johnson’s out-of-court interview was played for the jury.


[12]   The jury found Johnson guilty of battery. Johnson was sentenced to three years

       at the Indiana Department of Correction with 508 days to be served in the




       6
        The State made a similar argument to the trial court prior to the evidence’s admission outside the presence
       of the jury.

       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                                Page 7 of 14
       LaPorte County Jail 7 and 587 days suspended to probation. Johnson now

       appeals his conviction.


                                                         Analysis

                            I.       Admission of Johnson’s Out-of-Court Statement

[13]   Johnson argues that the trial court abused its discretion in admitting: (1)

       M.W.’s statement that Johnson battered her to Detective LaMotte; (2)

       photographs of M.W.; (3) the security stick; and (4) Johnson’s confession.

       “The trial court has discretionary power on the admission of evidence, and its

       decisions are reviewed only for an abuse of that discretion.” Lewis v. State, 34

       N.E.3d 240, 247 (Ind. 2015). An abuse of discretion occurs when the decision

       is clearly against the logic and effect of the facts and circumstances. Nicholson v.

       State, 963 N.E.2d 1096, 1099 (Ind. 2012). We find it necessary to address only

       Johnson’s argument regarding his confession because our determination of this

       issue is dispositive.


[14]   Johnson argues the trial court abused its discretion in admitting Johnson’s out-

       of-court confession regarding the battery with the security stick because there

       was insufficient corpus delicti to establish the crime of battery with a deadly

       weapon prior to the admission of the confession.


                  In Indiana, a person may not be convicted of a crime based solely
                  on a nonjudicial confession of guilt. Rather, independent proof




       7
           Johnson was given credit for 381 days served and 127 days of good time credit, totaling 508 days served.


       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                                  Page 8 of 14
               of the corpus delicti is required before the defendant may be
               convicted upon a nonjudicial confession. Proof of the corpus
               delicti means proof that the specific crime charged has actually
               been committed by someone. Thus, admission of a confession
               requires some independent evidence of commission of the crime
               charged. The independent evidence need not prove that a crime
               was committed beyond a reasonable doubt, but merely provide
               an inference that the crime charged was committed. This
               inference may be created by circumstantial evidence.


       Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017). Importantly, “[t]he corpus

       delicti evidence required to have a confession admitted is not the same as the

       corpus delicti evidence required to sustain a conviction.” Shinnock, 76 N.E.3d

       at 843. In establishing sufficient corpus delicti for the purpose of admitting a

       confession into evidence, our Supreme Court “has required independent

       evidence of (1) the occurrence of the specific kind of injury . . . , and (2)

       somebody’s criminal act as the cause of the injury.” Cambron v. State, 322

       N.E.2d 712, 715 (Ind. 1975). This evidence may be circumstantial, and “there

       is no requirement that all of the elements of the crime [must be] proven prior to

       introduction of the confessions.” Shinnock, 76 N.E.3d at 844.


[15]   During trial, after the parties argued whether the confession was admissible, the

       trial court here overruled Johnson’s objection citing support from Scott v. State,

       632 N.E.2d 761 (Ind. Ct. App. 1994), and Groves v. State, 479 N.E.2d 626 (Ind.

       Ct. App. 1985). In Scott, a panel of this Court found sufficient corpus delicti of

       the defendant’s presence at the scene of the crime to support admission of the

       defendant’s confession. The independent evidence presented at trial to support


       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020           Page 9 of 14
       admission of the defendant’s confession included: (1) the victim’s testimony

       that he was hit by an individual seen with the defendant that night; (2)

       overwhelming evidence demonstrated the victim’s injuries; (3) the victim’s

       report to another individual who assisted the victim following the battery that

       two men beat him up; (4) physical evidence supported the victim’s account of

       battery; and (5) testimony from the doctor that the victim’s injuries were

       consistent with a battery. See Scott, 632 N.E.2d at 766. Similarly, in Groves, a

       panel of this Court found sufficient corpus delicti was presented regarding the

       operating while intoxicated charge to support admission of the defendant’s out-

       of-court statement because the defendant was found near the vehicle soon after

       the accident and he was the owner of the vehicle. See Groves, 479 N.E.2d at

       628.


[16]   Scott and Groves, however, are distinguishable from the facts in the instant case.

       Here, unlike in Groves, there is no evidence that connects Johnson to ownership

       or use of the security stick. Moreover, unlike in Scott, neither M.W. nor any

       other witness provided substantive evidence connecting M.W.’s bruises to a

       battery. At the time Johnson’s statement was admitted, the only evidence

       presented regarding the battery was: (1) Detective LaMotte’s statement that she

       was investigating an unreported battery and prepared a police report regarding

       domestic battery and strangulation as a result of her interview with M.W.; (2)

       the photographs of M.W. showing bruises; and (3) the security stick.


[17]   We conclude, based on the record before us, there was insufficient evidence to

       support the inference that a crime had been committed with regard to the

       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020          Page 10 of 14
       battery with a deadly weapon charge before Johnson’s out-of-court confession

       regarding the battery with a deadly weapon was admitted into evidence. The

       photographs merely demonstrated that M.W. had bruises. The State presented

       no evidence establishing a connection between the security stick and the alleged

       crime. M.W.’s statement to Detective LaMotte that Johnson battered her was

       not admitted as substantive evidence and was subject to the trial court’s limiting

       instruction. See, e.g. Humphrey v. State, 680 N.E.2d 836, 838 (Ind. 1997)

       (discussing that “classic hearsay” is not ordinarily admissible as substantive

       evidence); see also Blount v. State, 22 N.E.3d 559, 566 (Ind. 2014) (“There is a

       risk the jury will rely upon the out-of-court assertion as substantive evidence of

       guilt—rather than for the limited purpose of explaining police investigation—

       and the defendant will have no chance to challenge that evidence through cross-

       examination.”).


[18]   Alone, this evidence is insufficient to support the inference that a crime was

       committed. Even assuming that the photographs, security stick, and M.W.’s

       statement to Detective LaMotte were properly admitted, the State presented no

       evidence that Johnson committed battery by means of a deadly weapon against

       M.W. Accordingly, the State presented insufficient evidence to support the

       requirement of the corpus delicti before admission of Johnson’s confession.

       The trial court abused its discretion in admitting Johnson’s confession regarding

       the battery with a deadly weapon.




       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020        Page 11 of 14
                                            II.      Insufficient Evidence

[19]   Johnson argues that the evidence was insufficient to convict him of battery with

       a deadly weapon. When a challenge to the sufficiency of the evidence is raised,

       “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State,

       51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind.

       1985), cert. denied), cert. denied. Instead, “we ‘consider only that evidence most

       favorable to the judgment together with all reasonable inferences drawn

       therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the

       judgment if it is supported by ‘substantial evidence of probative value even if

       there is some conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at

       84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that,

       even though there was conflicting evidence, it was “beside the point” because

       that argument “misapprehend[s] our limited role as a reviewing court”). “We

       will affirm the conviction unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt.” Love v. State, 73

       N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007)).


[20]   Indiana Code Section 35-42-2-1(c)(1) describes battery as “knowingly or

       intentionally: . . . (1) touch[ing] another person in a rude, insolent, or angry

       manner; . . .” The offense is a Level 5 felony, pursuant to Indiana Code Section

       35-42-2-1(g)(2) if the “offense is committed with a deadly weapon.” Indiana

       Code Section 35-31.5-2-86(a)(2) defines “deadly weapon,” in part, as:



       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020          Page 12 of 14
               (2) A destructive device, weapon, device, taser (as defined in IC
               35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1),
               equipment, chemical substance, or other material that in the
               manner it:


                        (A) is used;


                        (B) could ordinarily be used; or


                        (C) is intended to be used;


               is readily capable of causing serious bodily injury.


       Here, the State alleged that Johnson touched M.W. in a rude, insolent, or angry

       manner with the security stick, a deadly weapon.


[21]   Without M.W.’s testimony and without Johnson’s confession, the only

       evidence remaining regarding the battery charge was M.W.’s statement to

       Detective LaMotte, the photographs, and the security stick. As discussed

       above, M.W.’s statement to Detective LaMotte was admitted as non-

       substantive evidence, and the photographs and security stick do not prove the

       offense on their own. The evidence presented did not connect the security stick

       to M.W.’s injuries, and none of the evidence connected Johnson to M.W.’s




       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020       Page 13 of 14
       injuries. Accordingly, the evidence was insufficient to convict Johnson of

       battery with a deadly weapon, and we reverse the conviction. 8


                                                    Conclusion

[22]   The trial court abused its discretion in admitting Johnson’s confession and the

       remaining evidence is insufficient to sustain Johnson’s conviction for battery

       with a deadly weapon. We reverse and vacate Johnson’s conviction.


[23]   Reversed and vacated.


       Riley, J., and Mathias, J., concur.




       8
         Because the evidence is insufficient to sustain Johnson’s conviction even with admission of M.W.’s
       statement to Detective LaMotte, the photographs, and the security stick, we need not address the
       admissibility of that evidence.

       Court of Appeals of Indiana | Opinion 19A-CR-2849 | June 24, 2020                              Page 14 of 14
