                                                                         FILED
                                                                     Sep 20 2016, 9:02 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Valerie K. Boots                                           Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Justin F. Roebel
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Christina Schermerhorn,                                   September 20, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1510-CR-1643
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Christina R.
State of Indiana,                                         Klineman, Judge.
Appellee-Plaintiff.                                       Cause No. 49G17-1311-FD-73120




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016                Page 1 of 17
                                              Statement of the Case
[1]   Christina Schermerhorn appeals her convictions of criminal recklessness, a
                                          1                                             2
      Class A misdemeanor, and domestic battery, a Class A misdemeanor. We

      affirm.


                                                     Issues
[2]   Schermerhorn raises two issues, which we restate as:

                 I.       Whether the trial court erred in refusing to admit
                          Schermerhorn’s proposed evidence; and
                 II.      Whether the trial court abused its discretion in the course
                          of instructing the jury.

                                   Facts and Procedural History
[3]   Schermerhorn and her husband, Stanley, lived with their three young children

      in Marion County. On the morning of November 10, 2013, Stanley woke up

      because the children were crying. He found Schermerhorn doing the dishes.

      She appeared to be intoxicated, but when Stanley asked her about it, she denied

      drinking. Next, Stanley found a two-thirds empty bottle of vodka in the diaper

      box. Stanley showed it to Schermerhorn, and an argument ensued.


[4]   As Stanley poured out the bottle in the sink, Schermerhorn hit him in the back

      of the head with her fist. He turned around, and Schermerhorn tried to hit him




      1
          Ind. Code § 35-42-2-2 (2006).

      2
          Ind. Code § 35-42-2-1 (2012).

      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016     Page 2 of 17
      several more times. Next, she picked up a knife and slashed him on the left

      arm. Schermerhorn dropped the knife, ran into the bathroom, and locked the

      door.


[5]   The cut on Stanley’s arm bled profusely. He went to the bathroom door to ask

      for help, but Schermerhorn cursed at him and refused to come out. Next, he

      called his mother, who called his sister-in-law to come look after the children.

      Stanley drove to the hospital after his sister-in-law arrived, and hospital staff

      reported his injury to the police.


[6]   Officers were dispatched to the house to investigate the report. They arrived at

      9:30 a.m., and Schermerhorn answered the door and allowed them to enter.

      Stanley’s sister-in-law was not present. Schermerhorn was alone with the

      children and appeared to the officers to be intoxicated, exhibiting slurred speech

      and unsteady balance. In the kitchen, officers found blood on a knife and on

      the floor.


[7]   One of the officers went to the hospital to interview Stanley, where he was

      being treated for a one to two inch long cut on his left arm. The officer returned

      to the house, and Schermerhorn was placed in custody. Later, the State

      charged Schermerhorn with criminal recklessness, a Class D felony; two counts

      of domestic battery, one as a Class D felony and the other as a Class A

      misdemeanor; and two counts of battery, one as a Class D felony and the other

      as a Class A misdemeanor.




      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 3 of 17
[8]    Prior to trial, Schermerhorn asserted a defense under Indiana Code section 35-

       41-3-11 (1997), known as the “effects of battery statute.” Schermerhorn also

       filed a notice of intent to offer evidence of alleged prior misconduct by Stanley,

       including: (1) many instances of physical, sexual, and emotional abuse of her,

       (2) an incident of physical abuse of his teenage son from a prior relationship,

       and (3) use of controlled substances. The State filed a response. After a

       hearing, the court determined Schermerhorn was entitled to introduce evidence

       pertaining to Stanley’s alleged physical abuse of her on the night before the

       incident in question but rejected all of her other proposed evidence. The court

       later reconsidered its decision and ruled that Schermerhorn could present

       evidence as to any prior incidents of Stanley’s alleged abuse against her, but

       Schermerhorn could not present to the jury evidence of Stanley’s alleged

       physical abuse of his son or Stanley’s alleged use of controlled substances.


[9]    At trial, Stanley testified as described above. By contrast, Schermerhorn

       testified that she was under the influence of alcohol and prescription medication

       that morning, and, as a result, she could not remember anything that happened

       after Stanley asked her if she had been drinking. Schermerhorn described for

       the jury several prior occasions when Stanley had physically, sexually, and

       emotionally abused her, including verbal and physical abuse on the night of

       November 9, 2013.


[10]   Outside the presence of the jury, Schermerhorn made an offer of proof as to an

       audio recording. According to Schermerhorn, who described the events

       presented in the recording as it played for the trial court, the recording captured

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 4 of 17
       Stanley choking his teenage son in her presence in August 2011. The trial court

       did not allow Schermerhorn to present that evidence to the jury. The jury

       determined Schermerhorn was guilty of felony criminal recklessness,

       misdemeanor domestic battery, and misdemeanor battery, but not guilty of

       felony domestic battery and felony battery.


[11]   The court imposed alternative misdemeanor sentencing for the criminal

       recklessness charge. In addition, the court dismissed the Class A misdemeanor

       battery verdict. As a result, the court entered a judgment of conviction and

       sentence for Class A misdemeanor criminal recklessness and Class A

       misdemeanor domestic battery. This appeal followed.


                                     Discussion and Decision
                                  A. Schermerhorn’s Recording
[12]   Schermerhorn argues the trial court should have allowed her to present to the

       jury the August 2011 audio recording of Stanley choking his teenage son in her

       presence, along with her testimony about the incident. She further contends the

       court’s error deprived her of her right to present a defense under the federal and

       state constitutions. The State responds that Schermerhorn’s evidence was

       inadmissible under Indiana’s Rules of Evidence and, as a result, her

       constitutional rights were not violated.


[13]   In general, a trial court has broad discretion in ruling on the admissibility of

       evidence and we will disturb its rulings only where it is shown that the court

       abused its discretion. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 5 of 17
       Where, as here, an evidentiary claim raises constitutional issues, our standard

       of review is de novo. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013),

       trans. denied.


[14]   Schermerhorn argues the trial court’s exclusion of her evidence violated her

       right to present a defense under the Fifth, Sixth, and Fourteenth Amendments
                                                       3
       to the United States Constitution. The constitution guarantees criminal

       defendants “a meaningful opportunity to present a complete defense.” Crane v.

       Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636 (1986)

       (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L.

       Ed. 2d 413 (1984)). An essential component of procedural fairness is an

       opportunity to be heard. Id. at 2146-47.


[15]   Nevertheless, the right to present a defense is not absolute. “The accused does

       not have an unfettered right to offer testimony that is incompetent, privileged,

       or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois,

       484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798 (1988). Thus, both a

       defendant and the prosecutor “must comply with established rules of procedure

       and evidence designed to assure both fairness and reliability in the

       ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284,

       302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973). In Indiana, evidence must



       3
        She also argues the trial court’s decision violated her right to present a defense under Article one, sections
       twelve and thirteen of the Indiana Constitution, but she does not present a separate analysis or citations to
       authority specific to her state constitutional claims. As a result, those claims are waived. See Wilkins v. State,
       946 N.E.2d 1144, 1147 (Ind. 2011) (failure to provide separate state constitutional analysis results in waiver).

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016                        Page 6 of 17
       be relevant to be admissible. Ind. Evid. Rule 402. “Evidence is relevant if . . . it

       has any tendency to make a fact more or less probable than it would be without

       the evidence; and . . . the fact is of consequence in determining the action.”

       Ind. Evid. Rule 401.


[16]   We must consider Schermerhorn’s proposed evidence in the context of the

       claim she presented at trial. She asserted she was not criminally liable for her

       attack on Stanley pursuant to the “effects of battery” statute, Indiana Code

       section 35-41-3-11. That statute provides, in relevant part:

               (b) This section applies under the following circumstances when
               the defendant in a prosecution raises the issue that the defendant
               was at the time of the alleged crime suffering from the effects of
               battery as a result of the past course of conduct of the individual
               who is the victim of the alleged crime:
               *****
               (2) The defendant claims to have used justifiable reasonable force
               under section 2 of this chapter. The defendant has the burden of
               going forward to produce evidence from which a trier of fact
               could find support for the reasonableness of the defendant’s belief
               in the imminence of the use of unlawful force or, when deadly
               force is employed, the imminence of serious bodily injury to the
               defendant or a third person or the commission of a forcible
               felony.
       Id.


[17]   “Effects of battery” is defined, in relevant part, as “a psychological condition of

       an individual who has suffered repeated physical or sexual abuse inflicted by

       another individual who is the . . . victim of an alleged crime for which the

       abused individual is charged in a pending prosecution; and . . . abused


       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 7 of 17
       individual’s . . . spouse or former spouse.” Ind. Code § 35-31.5-2-109 (2012).

       Furthermore, Indiana Code section 35-41-3-11(b)(2) refers to “section 2 of this

       chapter,” which is the statute that governs claims of self defense. That statute

       provides, in relevant part: “A person is justified in using reasonable force

       against any other person to protect the person or a third person from what the

       person reasonably believes to be the imminent use of unlawful force.” Indiana

       Code section 35-41-3-2(c) (2013).


[18]   Thus, a defense under Indiana Code section 35-41-3-11(b)(2) is a particular

       form of self defense in which the reasonableness of the belief of the defendant

       that the victim’s use of unlawful force against the defendant was imminent is

       affected by “the effects of battery.” The defendant has the burden of producing

       evidence to support the reasonableness of the defendant’s belief that use of

       unlawful force by the victim was imminent.


[19]   The parties dispute whether the recording of Stanley purportedly choking his

       teenage son in Schermerhorn’s presence, as interpreted by Schermerhorn’s

       testimony, is relevant to Schermerhorn’s defense. To be clear, the parties agree

       that, as a general rule, evidence that a victim battered a third party can be

       relevant to demonstrate the defendant’s reasonable fear of the victim for

       purposes of self defense. The parties disagree as to whether a victim’s use of

       force against a third party is relevant when a defendant raises a claim under the

       effects of battery statute. This is an issue of first impression.




       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 8 of 17
[20]   Schermerhorn cites several cases to argue that the recording was relevant to her

       effects of battery defense, but those cases involve general self defense rather

       than an effects of battery defense. See Littler v. State, 871 N.E.2d 276 (Ind.

       2007); Russell v. State, 577 N.E.2d 567 (Ind. 1991); Holder v. State, 571 N.E.2d

       1250 (Ind. 1991); Brand v. State, 766 N.E.2d 772 (Ind. Ct. App. 2002), trans.

       denied.


[21]   We are left with the plain language of the governing statutes. Indiana Code

       section 35-41-3-11 requires the defendant to produce evidence that he or she

       was “suffering from the effects of battery as a result of the past course of

       conduct” of the victim. Pursuant to Indiana Code section 35-31.5-2-109, the

       “past course of conduct” is limited to “repeated physical or sexual abuse” of the

       defendant by the victim. The statutes do not address acts by the victim against

       third parties in the defendant’s presence.


[22]   Based on the statutory language, we cannot conclude that the recording of

       Stanley purportedly choking his teenage son two years before the crimes at issue

       was relevant to Schermerhorn’s effects of battery defense. The proposed

       evidence was irrelevant pursuant to Indiana Evidence Rule 401 and thus

       inadmissible under Indiana Evidence Rule 402. Schermerhorn’s right to

       present a defense does not include the right to admit evidence that fails to




       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 9 of 17
       comply with Indiana’s evidentiary rules, and as a result the trial court did not
                                                                                       4
       violate her constitutional rights by excluding the recording.


[23]   In any event, even if the recording should have been admitted, the error was

       harmless. An error in the exclusion of evidence is harmless if its probable

       impact on the jury, in light of all of the evidence in the case, is sufficiently

       minor so as not to affect the defendant’s substantial rights. Barnhart v. State, 15

       N.E.3d 138, 143 (Ind. Ct. App. 2014). Here, Schermerhorn testified about four

       incidents where Stanley hit her or otherwise physically abused her over the

       course of their marriage, including an incident on the night before the crimes at

       issue. She presented to the jury photographs of facial injuries from one of the

       incidents. In addition, Schermerhorn told the jury about two occasions where

       Stanley had punched a door or wall in her presence during an argument. She

       also testified that Stanley coerced her into sexual activity on an almost daily

       basis and raped her twice in the summer of 2013. Finally, a clinical

       psychologist who treated Schermerhorn noted that she exhibited many of the

       characteristics of victims of domestic violence, including the use of denial as a

       coping mechanism for emotional turmoil, very low self esteem, emotional

       dependency on others, and learned helplessness in the face of stress. Based on

       this evidence that Schermerhorn offered in support of her effects of battery

       defense, the trial court’s exclusion of a recording of Stanley allegedly choking




       4
        The State argues the recording was also inadmissible pursuant to Indiana Evidence Rule 403. We need not
       address this claim.

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016              Page 10 of 17
       his teenage child two years prior to the crimes at issue here was sufficiently

       minor so as not to affect Schermerhorn’s right to present a defense.


                                             B. Jury Instructions
[24]   Schermerhorn argues the trial court should have given her proposed jury

       instructions on the effects of battery. The State claims in response that the

       court’s instructions correctly stated the law.


[25]   Instructing a jury is left to the sound discretion of the trial court and we review

       its decision only for an abuse of discretion. Washington v. State, 997 N.E.2d

       342, 345 (Ind. 2013). When the court refuses a tendered jury instruction, we

       undertake a three-part analysis in determining whether a trial court has abused

       its discretion. Id. Specifically, we consider: (1) whether the tendered

       instruction is a correct statement of the law; (2) whether there was evidence to

       support the tendered instruction; and (3) whether the substance of the tendered

       instruction was covered by another instruction or instructions. Id. at 345-46.

       Preliminary and final instructions are considered as a whole, not in isolation.

       Price v. State, 765 N.E.2d 1245, 1252 (Ind. 2002). We will reverse only when

       the jury instructions, considered in their entirety, misstate the law or otherwise
                              5
       mislead the jury. Id.




       5
        Schermerhorn argues in passing that the trial court’s refusal to give her tendered instructions “deprived [her]
       of the due process and fair trial to which she was entitled under the Fifth, Sixth, and Fourteenth
       Amendments to the United States Constitution and Article One, Sections 12 and 13 of the Indiana
       Constitution.” Appellant’s Br. pp. 27-28. Schermerhorn cites to no authorities in support of any of her


       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016                     Page 11 of 17
[26]   The trial court’s instructions on self defense and effects of battery were as

       follows:

                Final Instruction No. 6
                It is an issue whether the Defendant acted in self-defense. A
                person may use reasonable force against another person to
                protect himself from what the Defendant reasonably believes to
                be the imminent use of unlawful force. However, a person may
                not use force if:
                he/she is committing a crime that is directly and immediately
                connected to the confrontation
                (or)
                he/she is escaping after the commission of a crime that is directly
                and immediately connected to the confrontation
                (or)
                he/she provokes a fight with another person with intent to cause
                bodily injury to that person
                (or)
                he/she has willingly entered into a fight with another person or
                started the fight, unless he withdraws from the fight and
                communicates to the other person his intent to withdraw and the
                other person continues or threatens to continue the fight) [sic].
                The State has the burden of proving beyond a reasonable doubt
                that the Defendant did not act in self-defense.


                Final Instruction No. 7




       constitutional claims and offers no constitutional analysis, unlike in her discussion of her claim that the trial
       court should have admitted her recording. In the absence of any discussion or citation to authority, the
       claims are waived. See Sandleben v. State, 29 N.E.3d 126, 132 (Ind. Ct. App. 2015) (federal constitutional
       claims waived due to failure to provide argument), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016                       Page 12 of 17
               The defendant has raised the issue that the defendant was at the
               time of the alleged crime suffering from the effects of battery as a
               result of the past course of conduct of the individual who is the
               victim of the alleged crime.
               The defendant claims to have used justifiable reasonable force.
               The defendant has the burden of producing evidence from which
               a reasonable trier of fact could find support for the
               reasonableness of the defendant’s belief in the imminence of the
               use of unlawful force or, when deadly force is employed, the
               imminence of serious bodily injury to the defendant or a third
               person or the commission of a forcible felony.

       Appellant’s App. pp. 237-38. Final Instruction 6 was based on a pattern jury

       instruction. The trial court told the parties that it did not find a pattern jury

       instruction on the effects of battery defense, so the court used the statutory

       language to draft Final Instruction 7.


[27]   Schermerhorn offered a number of proposed jury instructions, including the

       following on the effects of battery defense:

               Battered Person Syndrome – Sensitivity
               A person who suffers from the effects of battery, or battered
               person syndrome, has a greater sensitivity to danger than does
               the ordinary person. As a result, a person who suffers from
               battered person syndrome is justified in acting more quickly and
               taking harsher measures for her protection in the event of assault,
               either actual or threatened, than would a person who is not
               subject to battered person syndrome.
               Evidence has been received in this case that the accused suffers
               from battered person syndrome and has a greater sensitivity to
               danger. If you believe that the accused has a greater sensitivity to
               danger and, because of such sensitivity, had reasonable cause to
               fear greater peril in the event of an altercation with alleged

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 13 of 17
               victim, you are to consider such sensitivity in determining
               whether the accused acted reasonably in protecting her life or
               bodily safety.


               Appearance of Danger – Effects of Battery
               The effects of battery, or battered spouse syndrome, applies
               where an accused raises the issue that the accused at the time of
               the alleged crime, was suffering from the effects of battery as a
               result of the past course of conduct of the individual who is the
               injured person of the alleged crime.
               If you find from the evidence that the accused suffers from
               battered person syndrome or the effects of battery, you may
               consider that evidence in connection with the accused’s claim of
               self-defense. Such evidence relates to the issue of the
               reasonableness of the accused’s belief that the use of force was
               immediately necessary, even though no use of force against the
               accused may have been, in fact, imminent. The standard is
               whether the circumstances were such as would excite the fears of
               a reasonable person possessing the same or similar psychological
               and physical characteristics of the accused and faced with the
               same circumstances surrounding the accused at the time the
               accused used force.

[28]   Appellant’s App. pp. 190, 192. The trial court effectively rejected both

       instructions.


[29]   Schermerhorn argues Final Instructions 6 and 7 were erroneous as a matter of

       law. Specifically, she claims Final Instruction 6 should have instructed the jury

       to consider from her subjective standpoint whether she had a reasonable belief

       that the use of unlawful force against her was imminent.


[30]   Schermerhorn is correct that a claim of self defense has both subjective and

       objective components, as follows: (1) a defendant must have actually believed
       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 14 of 17
       that the use of force was necessary to protect himself or herself; and (2) the

       belief must have been one that a reasonable person would have held under the

       circumstances. Washington, 997 N.E.2d at 349. In Washington, our Supreme

       Court determined the jury instruction on self defense in that case, which tracked

       the pattern jury instruction, sufficiently instructed the jury on both components.

       In this case, Final Instruction 6 is also based on the pattern jury instruction, and

       the final instruction’s language tracks the instruction in Washington with respect

       to a defendant’s reasonable belief in the imminent use of unlawful force. See id.

       at 345. Final Instruction 6 adequately defines a reasonable belief and is not

       erroneous.


[31]   Schermerhorn further argues Final Instructions 6 and 7 were inadequate

       because they did not inform the jury that the “effects of battery is part of self-

       defense” and did not sufficiently address the “interplay” between the two

       concepts. Appellant’s Br. pp. 29-30. She thus claims the court should have also

       given her instructions on the effects of battery to sufficiently explain her defense

       to the jury. We disagree. We are obligated to read Final Instructions 6 and 7

       together. They address the same concepts, specifically the use of reasonable

       force in self defense and the reasonableness of a defendant’s belief that the use

       of unlawful force was imminent, using the same language. The plain language

       of the instructions establishes that the concepts of self defense and the effects of

       battery are related. As a result, the final instructions adequately covered the

       substance of the legal issues, and Schermerhorn’s proposed instructions were

       unnecessary.


       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 15 of 17
[32]   Finally, Schermerhorn claims Final Instruction 7 misstated the law because it

       told the jurors that she bore the burden of producing evidence to establish the

       reasonableness of her belief that the use of unlawful force against her was

       imminent. She concedes the instruction tracks the language of the governing

       statute, Indiana Code section 35-41-3-11, but she claims the jury could have

       confused the burden of producing evidence with the overall burden of proof as

       to her defense of the effects of battery, which rested with the State.


[33]   We disagree. We have already determined Final Instructions 6 and 7, read

       together, adequately informed the jury of the relationship between self defense

       in general and the effects of battery defense. Final Instruction 6 instructed the

       jury that the State bears the “burden of proving beyond a reasonable doubt that

       the Defendant did not act in self-defense.” Appellant’s App. p. 237. The

       instructions, read together, adequately informed the jury the State bore the
                                         6
       ultimate burden of proof. See Marley v. State 747 N.E.2d 1123, 1129 (Ind. 2001)

       (noting the effects of battery defense does not “impermissibly shift the burden of

       proof” to the defendant).


                                                  Conclusion
[34]   For the reasons stated above, we affirm the judgment of the trial court.




       6
        The State argues Schermerhorn’s proposed instructions on her effects of battery defense misstated the law.
       We need not address this claim.

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016                  Page 16 of 17
[35]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1643 | September 20, 2016   Page 17 of 17
