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
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                    Mar 08 2013, 9:22 am

ATTORNEYS FOR APPELLANT:

ROBERT M. OAKLEY
DANIEL K. DILLEY
Dilley & Oakley, P.C.
Carmel, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVION PETERSON,                                   )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )      No. 49A02-1207-PO-596
                                                   )
SANDRA OWEN,                                       )
                                                   )
       Appellee-Petitioner.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Barbara Cook Crawford, Judge
                         The Honorable Anne Flannelly, Commissioner
                              Cause No. 49G21-1204-PO-17307



                                          March 8, 2013


                 MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                          Case Summary and Issues

       Davion Peterson appeals from the trial court’s order for protection in favor of Sandra

Owen. Peterson raises multiple issues, but we find the following restated issues dispositive:

1) whether the trial court erred in admitting photographic evidence without preserving the

photos; 2) whether the evidence was sufficient to prove an act of family violence occurred;

and 3) whether the evidence was sufficient to rebut the claim of self-defense made by

Peterson. Concluding that any error in not preserving the photos was harmless and that there

was sufficient evidence to prove an act of family violence and to rebut the claim of self-

defense, we affirm.

                                        Facts and Procedural History

       Peterson and Owen had an on-and-off relationship over a period of more than two

years. They were in contact through most of April 2012, but after an incident in which her

tires were slashed on April 28, 2012, Owen stopped contacting Peterson and filed a petition

for a protective order the next day. Owen alleged, in part, that Peterson committed an act of

domestic or family violence against her based on one physical altercation that took place in

March 2012.1 The trial court issued an ex parte order for protection and set the matter for a

hearing on June 1, 2012.

       During the hearing, Owen testified that during the physical altercation, Peterson

attacked her, choked her, and held her down and that she had bruises and scratches on her

arms as a result. She also called her mother as a witness and presented photos that


       1
           She also alleged that he was the one who had slashed her tires and that he stalked her.


                                                           2
purportedly showed bruises and marks on her arms and hands. Peterson’s counsel objected

to the photos on the basis that he had not seen them prior to the hearing, despite requesting

copies of the evidence from opposing counsel. The trial court overruled the objection,

viewed the photos on Owen’s phone, and returned her phone to her.

         Peterson also testified at the hearing. He did not deny that the physical altercation had

taken place. He disputed, however, the extent of the physical contact Owen alleged he

committed and claimed that any physical contact on his part was merely an act of self-

defense. He testified that he grabbed her wrists to stop her from hitting him and so that he

could exit her apartment. He called two friends to the stand to testify, in relevant part, that he

had a bruise and looked ruffled on the day the alleged altercation took place. Peterson also

submitted a photo he argued showed a black eye he suffered as a result of the physical

altercation.

         The trial court found Owen to be very credible. Based on that finding, it concluded

that an act of family violence had indeed taken place, and issued a protective order in favor

of Owen.2 Peterson now appeals.3




         2
          The trial court also concluded that Owen did not prove by a preponderance of the evidence that Peterson
slashed her tires. The trial court did not make an explicit ruling on the record one way or the other as to what it found
with regards to the stalking allegation.
         3
           On appeal, Peterson raises a number of issues, including some of which deal with the stalking allegation.
Owen requested and the trial court entered its order under Indiana Code chapter 34-26-5. Under the statute, either an act
of family violence or stalking is a sufficient basis for an order for protection. Ind. Code § 34-26-5-2(a). Thus, because
we affirm the trial court order based on its finding of an act of domestic or family violence, we need not address
Peterson’s arguments regarding the stalking allegation.

                                                           3
                                  Discussion and Decision

                              I. Preservation of Evidence

                                 A.     Standard of Review


       A trial court has broad discretion in ruling on the admissibility of evidence. Packer v.

State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied. We will reverse a trial court’s

ruling on the admissibility of evidence only when the trial court abused its discretion. Id. An

abuse of discretion occurs where the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court. Id.

       We also note that because Owen did not file an appellee’s brief, Peterson’s burden is

relaxed to the standard of demonstrating prima facie error. Santana v. Santana, 708 N.E.2d

886, 887 (Ind. Ct. App. 1999). Prima facie error is defined as “at first sight, on first

appearance, or on the face of it.” Id. However, this rule is not intended to benefit the

appellant, but rather to relieve this court of the burden of developing arguments on the

appellee’s behalf. State v. Moriarity, 832 N.E.2d 555, 558 (Ind. Ct. App. 2005). The burden

of demonstrating trial court error remains with the appellant. State v. Combs, 921 N.E.2d

846, 850 (Ind. Ct. App. 2010).

                                        B. Photographs


       Peterson argues that it was error for the court to view the photos of Owen’s injuries on

her phone without preserving them and that this was contrary to Indiana Rules of Evidence

1002 and 1003. First, we note that while Peterson objected to the admission of the photos

during the hearing, that objection was based on him not having been given the opportunity to

                                              4
view the photos during discovery, prior to the hearing. At no time during the hearing did

Peterson object to the photos on the grounds of a violation of Indiana Rules of Evidence

1002 or 1003. Thus, this issue was not properly preserved for purposes of appeal. See Payne

v. Mundaca Inv. Corp., 562 N.E.2d 51, 57-58 (Ind. Ct. App. 1990). Waiver notwithstanding,

we will address it briefly.

       Indiana Evidence Rule 1002 is known as the “best evidence rule” and requires that an

original photograph be produced to prove the content of that photograph. Jones v. State, 780

N.E.2d 373, 378 (Ind. 2002). Because the trial court was the trier of fact in this case and it

viewed the original photos, the purpose of the best evidence rule was satisfied. And even if it

was preferable to preserve the actual photos for the record, this error was harmless. The

improper admission of evidence is harmless if the erroneously admitted evidence is “merely

cumulative of other evidence in the record.” Bryant v. State, 802 N.E.2d 486, 494 (Ind. Ct.

App. 2004), trans. denied. Here, there was testimony regarding the bruises that Owen

suffered due to the physical altercation with Peterson. Thus, the photos were merely

cumulative of other evidence in the record and any error in admission of the photos was

harmless.

                               II. Sufficiency of Evidence


                                 A.     Standard of Review


       When reviewing a sufficiency claim, we do not reweigh the evidence or assess witness

credibility for ourselves. B.E.I., Inc. v. Newcomer Lumber & Supply Co., Inc., 745 N.E.2d

233, 236 (Ind. Ct. App. 2001). We consider only the probative evidence and reasonable

                                              5
inferences drawn therefrom which support the judgment. Id. The standard of review for a

challenge to the sufficiency of the evidence that rebuts a claim of self-defense is the same as

the standard of review for any sufficiency of the evidence claim. Kimbrough v. State, 911

N.E.2d 621, 635 (Ind. Ct. App. 2009).4 Again, as noted above, because Owen did not file an

appellee’s brief, Peterson’s burden is relaxed to the standard of demonstrating prima facie

error. Santana, 708 N.E.2d at 887.

                                         B.       Act of Family Violence


         Peterson challenges, very briefly, the sufficiency of the evidence that supports the

court’s finding that an act of family violence took place. Domestic or family violence is

defined, in part, as:

         except for an act of self-defense, the occurrence of at least one (1) of the
         following acts committed by a family or household member:
         (1)    Attempting to cause, threatening to cause, or causing physical harm to
             another family or household member.

         (2)        Placing a family or household member in fear of physical harm . . . .5


Ind. Code § 34-6-2-34.5. Owen’s testimony provided a sufficient basis from which the trial

court could have concluded that Peterson caused her physical harm or put her in fear of

physical harm. The trial court found Owen very credible. We will not reweigh the evidence

or assess Owen’s credibility for ourselves. There was sufficient evidence in the record from

which the court could have concluded that an act of family violence occurred.


         4
             The same standards apply in civil and criminal cases. Travis v. Hall, 431 N.E.2d 519, 521 n.2 (Ind. Ct. App.
1982).
         5
             A family or household member includes a person who “is dating or has dated the other person.” Ind. Code §

                                                            6
                                      C.     Self-Defense


        Peterson also argues that the trial court erred in its application of the burden of proof

in light of the claim of self-defense. More specifically, Peterson argues that because he

presented evidence to support his claim of self-defense, the burden then shifted back to Owen

to disprove at least one of the elements of self-defense and that she failed to do so. This

amounts to a challenge to the sufficiency of the evidence that rebuts the claim of self-

defense.

        Peterson is correct that the trial court did not explicitly address the self-defense claim

in its findings and conclusions. However, it was not required to do so. Also, while it is true

that Owen had the burden of negating at least one of the elements of self-defense, she could

rely on her case-in-chief to do so. See Kimbrough, 911 N.E.2d at 635. Thus, when Peterson

testified that he was acting in self-defense, Owen was not required to rebut that testimony,

but could rely upon the sufficiency of her testimony, which was opposed to Peterson’s

testimony on the issue. See Nelson v State, 259 Ind. 339, 287 N.E.2d 336, 343 (1972).

        Self-defense requires proving that Peterson used reasonable force against Owen to

protect himself from what he reasonably believed to be the imminent use of unlawful force.

See Ind. Code § 35-41-3-2(c). Owen’s testimony provided sufficient evidence from which

the trial court could have concluded that Peterson was the aggressor and did not have a

reasonable basis to believe Owen was going to use unlawful force against him. See Travis,

431 N.E.2d at 521 (self-defense requires proving that the person claiming self-defense was in


34-6-2-44.8(2).

                                                7
peril and immediate danger of serious bodily injury).6 Owen’s testimony as well as her

mother’s testimony also provided a basis from which the trial court could have concluded

that the amount of force used by Peterson was not reasonable under the circumstances.

        The trial court found Owen very credible. We will not reweigh the evidence or assess

the credibility of the witnesses for ourselves. There was sufficient evidence in the record to

disprove self-defense, and, thus, the trial court did not commit prima facie error in finding

that an act of family violence had taken place.

                                                  Conclusion

        Any error the trial court committed when it admitted photographic evidence without

preserving it was harmless and there was sufficient evidence in the record to prove an act of

family violence and to rebut the claim of self-defense. We therefore affirm the trial court’s

order for protection based on its finding that an act of family violence occurred.

        Affirmed.

MAY, J., and PYLE, J., concur.




        6
           In fact, Peterson never alleged that he feared serious bodily injury; only that Owen was hitting him and
blocking the doorway.

                                                        8
