MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Nov 27 2019, 9:22 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                     Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Sierra A. Murray
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Weston Anakin Swanson,                                  November 27, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1281
        v.                                              Appeal from the
                                                        St. Joseph Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Julie P. Verheye, Magistrate
                                                        Trial Court Cause No.
                                                        71D08-1807-CM-2714



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019                 Page 1 of 8
[1]   Weston Anakin Swanson (“Swanson”) appeals his conviction for criminal

      mischief1 as a Class B misdemeanor, contending that the trial court abused its

      discretion when it denied the admission of evidence to prove Swanson acted in

      defense of another.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Christopher Matsey, Sr. (“Matsey”) and Jolene Harwood (“Harwood”) are the

      biological parents of a son (“Son”). Pursuant to a court order, parenting-time

      exchanges of Son took place at the downtown public library in South Bend,

      Indiana. Prior to meeting with Harwood for a parenting exchange on May 4,

      2018, Matsey had agreed to give her $300.00, over and above what he normally

      paid in child support, to pay for Son’s school clothes and supplies. Tr. Vol. 2 at

      18. While driving to the meeting point, Matsey received a call from Harwood

      who said that her then-fiancé, Swanson, “might be there in the corner” and

      “just to be easy about it.” Id. at 16.


[4]   Matsey arrived at the library parking lot and saw that Harwood and Swanson

      were already there but in different vehicles. Id. at 16-17. Swanson’s pick-up

      truck was parked about forty yards behind Harwood’s car. Id. Matsey had seen

      Swanson with Harwood at prior custody exchanges; however, all other times




      1
          See Ind. Code § 35-43-1-2(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019   Page 2 of 8
      Swanson and Harwood had been in the same vehicle. Id. at 16. Matsey exited

      his car, approached Harwood’s car, and gave her the cash. Id. at 17-18.

      Meanwhile, Son stepped out of Harwood’s car. Having seen the exchange of

      money, Swanson drove up behind Harwood’s vehicle and got out of his truck.

      Id. at 18-19. The two men began shoving and yelling at each other.2 Id. at 21-

      23, 43, 51. Matsey told Son to get into his car and walked over to the front

      passenger seat to “mak[e] sure [S]on [was] okay.” Id. at 22-24. Swanson then

      approached the front of Matsey’s car and “start[ed] belligerently banging” on

      the hood with his fists causing multiple dents. Id. at 24-25. Swanson stopped

      banging on the car only after “concerned citizens came over and let him know

      that the police were on their way.” Id. at 26. Swanson returned to his truck

      and sped away, traveling over a barricade that was meant to stop traffic. Id. at

      26, 27.


[5]   Before the police arrived, bystanders made sure that Matsey was “all right.” Id.

      at 28. Meanwhile, city workers drove after Swanson in an effort to get his

      license plate information. Id. at 27-28. Matsey and Harwood talked about the

      incident. Harwood told Matsey to relax, and she apologized to Matsey for the

      incident. Id. at 28. South Bend Police Officer Andrew Ream (“Officer Ream”)

      arrived at the scene and found Matsey, Harwood, and a bystander who had

      witnessed the incident. Id. at 10. Officer Ream observed “several dents in the



      2
        Matsey testified that the altercation stemmed from Swanson attempting to take the money from Harwood.
      Tr. Vol. 2 at 20-23. Swanson testified that he intervened because Matsey exited his vehicle and aggressively
      threw the money at Harwood. Id. at 42.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019                 Page 3 of 8
      hood” of Matsey’s car. Id. Matsey and Harwood identified Swanson as the

      individual who had damaged Matsey’s car. Id. at 10-11. Officer Ream noted

      that the dents “were approximately the size that would indicate that it was

      feasible that they came from punches.” Id. at 10.


[6]   On August 3, 2018, the State charged Swanson with battery and criminal

      mischief, each as a Class B misdemeanor. The trial court held a bifurcated

      bench trial; on February 7, 2019, the State presented the testimony of Officer

      Ream and Matsey, and on May 9, 2019, the defense presented Swanson’s

      testimony. During the trial, Matsey testified that there have been domestic

      disputes between himself and Harwood in the past. Id. at 30. Swanson said he

      attended 80% of the parenting-time exchanges, saying that, “because of past

      history,” Harwood wanted him to attend. Id. at 36, 42. When defense counsel

      asked Swanson why Harwood wanted him to be present at the parenting

      exchanges, Swanson responded that there had been a couple of incidents

      between Harwood and Matsey, and Harwood “has a restraining order placed

      against him so she never really feels safe.” Id. at 28. The State objected, saying

      that the question required Swanson to speculate as to Harwood’s “state of

      mind, her way of thinking.” Id. The trial court sustained the objection. Id.


[7]   Defense counsel then asked Swanson what type of incidents had taken place

      between Matsey and Harwood. Id. The State objected on the ground of

      relevancy, and the trial court sustained the objection on the basis that “incidents

      in the past between Ms. Harwood and Mr. Matsey aren’t relevant or germane

      to the issues of what happened on this particular date in the library parking lot.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019   Page 4 of 8
      Id. at 39. At the conclusion of the bench trial, the trial court found Swanson

      not guilty of battery but guilty of criminal mischief. The trial court ordered

      Swanson to pay Matsey restitution in the amount of $1,571.25, for the repair of

      Matsey’s car.3 Swanson now appeals.


                                         Discussion and Decision
[8]   Although Swanson did not provide the applicable standard of review on

      appeal,4 the essence of his argument is that the trial court abused its discretion

      when it excluded evidence offered by Swanson to prove that he acted in defense

      of another. In other words, Swanson claims that the trial court should have

      allowed him to testify that his actions arose from his fear of Matsey and in

      defense of Harwood (“the Defense”). “‘A trial court has broad discretion in

      ruling on the admissibility of evidence, and we will disturb the court’s rulings

      only where the petitioner has shown an abuse of that discretion.’” Heckard v.

      State, 118 N.E.3d 823, 827-28 (Ind. Ct. App. 2019) (quoting Bowman v. State, 51

      N.E.3d 1174, 1180 (Ind. 2016)), trans. denied. “An abuse of discretion occurs

      only if a ruling is clearly against the logic and effect of the facts and

      circumstances, and the error affects a party’s substantial rights.” Id. at 828.

      “‘Errors in the admission or exclusion of evidence are to be disregarded as

      harmless error unless they affect the substantial rights of the party.’” Id.




      3
          Swanson does not appeal the amount of the ordered restitution.
      4
       Indiana Appellate Rule 46(A)(8)(b) in pertinent part provides: “The argument must include for each issue a
      concise statement of the applicable standard of review.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019               Page 5 of 8
       (quoting Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015)). “To determine

       whether an error in the introduction of evidence affected the appellant’s

       substantial rights, this Court must assess the probable impact of that evidence

       upon the [trier of fact].” Id. Our court does not reweigh the evidence on

       appeal; instead, we consider any conflicting evidence in favor of the trial court’s

       ruling. Wilson v. State, 973 N.E.2d 1211, 1214 (Ind. Ct. App. 2012).


[9]    We begin by noting that Swanson has waived review of the issue of whether the

       trial court erred when it excluded testimony concerning the Defense because he

       failed to make an offer of proof. “[A]n offer of proof is required to preserve an

       error in the exclusion of a witness’s testimony.” Heckard, 118 N.E.2d at 828.

       “If the ruling excludes evidence, a party informs the court of its substance by an

       offer of proof, unless the substance was apparent from the context.” Id. (citing

       Ind. Evidence Rule 103(a)(2)). “An offer of proof allows the trial and appellate

       courts to determine the admissibility of the testimony, as well as the potential

       for prejudice if it is excluded.” Id. Here, Swanson does not cite the specific

       language that was excluded. Likewise, Swanson made no offer of proof to the

       trial court. As such, Swanson has failed to preserve review of his claim that the

       trial court erred in excluding the Defense. Id. Waiver notwithstanding, we

       address Swanson’s issue on the merits.


[10]   Swanson contends that the trial court’s exclusion of evidence that supported the

       Defense was an abuse of discretion. Here, even if he could show that the trial

       court abused its discretion, Swanson is not entitled to relief because such error

       is harmless. Swanson was charged with battery and criminal mischief. At the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019   Page 6 of 8
close of the evidence, the trial judge found Swanson not guilty of battery but

guilty of criminal mischief, explaining:


        [A]fter listening to the three witnesses that I’ve heard in the case,
        you know one of the things that I also can take into account as [ ]
        the finder of fact in the case is, you know, the witness[es]’
        demeanor and manner of conduct while testifying, and one of the
        things that came kind of through loud and clear to me was that
        Mr. Matsey certainly seems to be an angry individual. . . . And
        so insofar as . . . Count I, the battery is concerned, . . . I’m not
        persuaded beyond a reasonable doubt as to who is the aggressor .
        . . because everybody has acknowledged that there was some
        yelling going on back and forth between the two men. Each has
        claimed that the other was the aggressor in terms of initiating the
        pushes. I’m not convinced beyond a reasonable doubt based on .
        . . Mr. Matsey’s testimony, like I say in light of his demeanor and
        conduct while he was testifying in the case.


        On the other hand, when it comes to the issue of the [criminal]
        mischief, I do have testimony from Mr. Matsey that says, and
        while like I say I’m not convinced beyond a reasonable doubt as
        to who is the aggressor here because obviously there was some
        bad thing or bad feelings going on, whatever the reason that day.
        And there was yelling and screaming going on. I do have the
        testimony from Officer Ream and his testimony was that there
        were six dents on the hood of the vehicle, he observed that.


        And I think, [the prosecutor] made some pretty reasonable points
        in his cross examination of Mr. Swanson if you really thought
        that your fiancé [sic] was in that much danger, why would you
        leave in the way that you did. I understand your comments, but
        I think he probably did decide to leave, but decided to get in a
        few licks before he left and did that courtesy of the vehicle that
        Mr. Matsey was driving. And so I am going to find him guilty
        on Count II, which is the criminal mischief.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019   Page 7 of 8
       Tr. Vol. 2 at 62-63. Notwithstanding Swanson’s claim that he was prevented

       from presenting evidence of Matsey’s temperament, the trial court observed that

       Matsey “seem[ed] to be an angry individual.” Id. at 62.


[11]   The trial court convicted Swanson of criminal mischief. Id. at 63. To prove

       that Swanson committed criminal mischief, the State had to establish that he

       “recklessly, knowingly, or intentionally damage[d] or deface[d]” Matsey’s

       vehicle without Matsey’s consent. Ind. Code § 35-43-1-2(a). The evidence

       showed that during the parenting exchange Swanson and Matsey engaged in a

       dispute, yelling at and shoving each other. Tr. Vol. 2 at 21-23, 43, 51. While

       Matsey was checking on Son’s well-being, Swanson approached the front of

       Matsey’s parked car and “start[ed] belligerently banging” on the hood with his

       fists, causing multiple dents. Id. at 24-25. When bystanders told Swanson and

       Matsey that police were on their way, Swanson jumped into his truck and sped

       away, leaving Harwood at the scene. Id. at 26, 27. Officer Ream testified that

       Matsey and Harwood each reported that Swanson damaged Matsey’s car. Id.

       at 28. Officer Ream observed the dents and testified that they “were

       approximately the size that would indicate that it was feasible that they came

       from punches.” Id. at 10. We find sufficient evidence to support Swanson’s

       conviction for criminal mischief, and Swanson has provided no theory to show

       how the Defense could have undermined that conviction.


[12]   Affirmed.


       Baker, J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1281 | November 27, 2019   Page 8 of 8
