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
                                                                   Mar 21 2013, 9:35 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

CHRIS M. TEAGLE                                   GREGORY F. ZOELLER
Muncie, Indiana                                   Attorney General of Indiana

                                                  JONATHAN R. SICHTERMANN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CHRISTINA J. EPPS,                                )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 05A02-1207-CR-673
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE BLACKFORD SUPERIOR COURT
                           The Honorable J. Nicholas Barry, Judge
                              Cause No. 05D01-1112-FD-471



                                        March 21, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE

       Christina Epps appeals her convictions for two counts of battery, as Class A

misdemeanors, and battery, as a Class B misdemeanor, following a jury trial.                     She

presents three issues for our review:

       1.      Whether the trial court abused its discretion when it granted the
               State’s motion to reopen its case in chief after the court had granted
               judgment on the evidence1 on Count One;

       2.      Whether the State committed a Doyle violation when it questioned
               Epps on cross-examination.

       3.      Whether her sentence is inappropriate in light of the nature of the
               offenses and her character.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       On November 26, 2011, nine-year-old J.W. and his minor cousin were walking

their grandmother’s puppy around J.W.’s neighborhood in Blackford County. Epps, who

was a neighbor of J.W. and his mother, Megan West, became upset after the boys and the

puppy walked past her house a third time.2 Accordingly, Epps walked over to West’s

house to confront her.

       West was outside in her front yard when she saw Epps approaching.                        West

immediately called the police, but was placed on hold. In the meantime, Epps stood

nose-to-nose with West and yelled at her, complaining about the boys and the puppy


       1
          The parties and trial court refer to a directed verdict on Count One, but the proper term is
judgment on the evidence. See Ind. Trial Rule 50.
       2
          Epps had previously complained to J.W.’s mother, Megan West, that J.W. had permitted the
puppy to urinate and defecate in her front yard without cleaning it up. The police had ultimately
intervened and encouraged Epps and West to stay away from each other’s property.
                                                  2
walking in front of her house. Then Epps “busted [West] as hard as she could with her

chest and sent [West] flying backwards.” Transcript at 25. Epps tried to punch West, but

West evaded the punch. Epps then punched West’s mother, who was standing next to

them. Epps proceeded to punch West on various parts of her body. West was yelling at

Epps to leave her property, but Epps refused. At some point, J.W. approached the two

women, and Epps pushed him and “slammed him down in the gravel.” Id. at 64. Epps

then “stepped on [J.W.] and the dog[.]” Id. at 65.

         West then went inside her house to retrieve a baseball bat, but she could not find

one.     Epps tried to make her way into the house, but West’s mother stopped her.

Eventually, the police arrived and questioned Epps, West, and several eyewitnesses.3

         The State charged Epps with battery, as a Class D felony, and two counts of

battery, as Class A misdemeanors. A jury found Epps guilty of two counts of battery, as

Class A misdemeanors; and one count of battery, as a Class B misdemeanor. The trial

court entered judgment of conviction accordingly and sentenced Epps as follows: one

year each for the Class A misdemeanor convictions, to run consecutively, and 180 days

for the Class B misdemeanor conviction, to run concurrent with the other two sentences,

for an aggregate sentence of two years, all suspended to probation. This appeal ensued.

                                 DISCUSSION AND DECISION

                      Issue One: Motion to Reopen State’s Case in Chief

         Epps first contends that the trial court abused its discretion when it granted the

State’s motion to reopen its case in chief after the court had granted Epps’ motion for


         3
             Members of Epps’ family had accompanied her to West’s yard but did not participate in the
melee.
                                                   3
judgment on the evidence on Count One, battery, as a Class D felony. A party should

generally be afforded the opportunity to reopen its case to submit evidence that could

have been part of its case in chief. Saunders v. State, 807 N.E.2d 122, 126 (Ind. Ct. App.

2004). Whether to grant a party’s motion to reopen its case after having rested is a matter

committed to the sound discretion of the trial judge. Id. The factors that weigh in the

exercise of discretion include whether there is prejudice to the opposing party, whether

the party seeking to reopen appears to have rested inadvertently or purposely, the stage of

the proceedings at which the request is made, and whether any real confusion or

inconvenience would result from granting the request. Id.

        Here, during the State’s case in chief, the Prosecutor forgot to present evidence of

Epps’ age, which is an element of the offense of battery, as a Class D felony, as charged

in the information.4 Accordingly, after the State rested, Epps moved for judgment on the

evidence on that count. The trial court granted Epps’ motion and entered judgment on

the evidence in favor of Epps on Count One. Moments later, the State moved to reopen

its case in chief to present evidence of Epps’ age. The trial court granted that motion, and

the State recalled Grant County Sheriff’s Deputy Stephen Hurd to testify regarding Epps’

age.   Deputy Hurd had been the State’s final witness, so he had just finished his

testimony prior to Epps’ motion for judgment on the evidence.

        In essence, Epps maintains that because the trial court had already granted her

motion for judgment on the evidence on Count One, the court could not exercise its

discretion to reverse the judgment on the evidence and permit the State to reopen its case


        4
         Indiana Code Section 35-42-2-1 provides in relevant part that battery is a Class D felony if it is
committed by a person at least eighteen years old against a person less than fourteen years old.
                                                    4
in chief. Epps contends that she was prejudiced in that, had the trial court not reversed

the judgment on the evidence, she would not have been convicted of battery, as a Class B

misdemeanor. Epps also contends that the State should not have been permitted to

reopen its case in chief because it “did not rest inadvertently” but “rested purposefully.”

Brief of Appellant at 11. We cannot agree.

         In Sanders v. Ryan, 112 Ind. App. 470, 41 N.E.2d 833, 836 (1942), we reversed

the trial court’s denial of the plaintiff’s motion to reopen the evidence after the court had

granted the defendant’s motion for judgment on the evidence. We observed that

         “[w]hile a trial judge has some discretion in refusing a request to reopen the
         case to supply testimony adequate to avoid a nonsuit, yet this discretion
         should be liberally exercised in behalf of allowing the whole case to be
         presented. It is the usual course to allow the additional evidence, and,
         whenever the trial judge refuses to allow it, some good reason should
         appear for such exercise of his discretion. The trial of a case is not a mere
         game for testing the skills and vigilance of contesting lawyers, but is an
         investigation instituted for the purpose of ascertaining truth.”

Id. (quoting Ellenberg v. Southern Ry. Co., 5 Ga. App. 389, 63 S.E. 240, 241 (1908)).

And in Quigg Trucking v. Nagy, 770 N.E.2d 408, 412 (Ind. Ct. App. 2002), after citing

Sanders with approval, this court observed that the purpose of a judgment on the

evidence is to “assure the full presentation of evidence, not to penalize trial counsel or a

party when an important piece of evidence has been overlooked in the presentation of a

case.”

         Here, each of the factors set out in Saunders mitigates in favor of the trial court’s

decision to permit the State to reopen its case in chief. First, that the defendant was over

the age of eighteen was very likely obvious to the jurors, given that she was thirty-six

years old at the time of trial. Second, there was hardly any delay between the time that
                                               5
Epps moved for judgment on the evidence and the State moved to reopen its case. Third,

the trial court expressly found that the State had inadvertently rested its case without

having proved Epps’ age. Finally, given that Deputy Hurd had just finished testifying

and immediately retook the stand for a matter of minutes in order to establish Epps’ age,

there is no apparent confusion or inconvenience as a result of the trial court’s grant of the

State’s motion to reopen its case. Epps has not shown that the trial court abused its

discretion on this issue.

                            Issue Two: Alleged Doyle Violation

       Epps next contends that the trial court “fundamentally erred in allowing the State

to question [Epps] over objection about the fact that post-detention and/or post-arrest, she

did not engage in conversation with the police about the injuries she sustained in the

altercation.” Brief of Appellant at 12. She maintains that the State committed a Doyle

violation when it engaged in that questioning on cross-examination. We cannot agree.

       In Morgan v. State, 755 N.E.2d 1070, 1074 (Ind. 2001), our supreme court

explained as follows:

       A person in custody who is questioned by the police has the right to remain
       silent, Miranda v. Arizona, 384 U.S. 436, 445 (1966), and, in general, a
       criminal defendant may not be penalized at trial for invoking the right to
       remain silent. See Doyle v. Ohio, 426 U.S. 610, 620 (1976). Using a
       defendant’s post-Miranda silence to impeach a defendant at trial violates
       the Due Process Clause of the Fourteenth Amendment. See Doyle, 426
       U.S. at 619;[] Miranda, 384 U.S. at 445.

However,

       Although evidence of a defendant’s post-Miranda silence is generally not
       admissible, the defendant may open the door to its admission. The Doyle
       Court acknowledged this in its decision, stating[,] “[I]t goes almost without
       saying that the fact of post-arrest silence could be used by the prosecution
                                             6
      to contradict a defendant who testifies to an exculpatory version of events
      and claims to have told the police the same version upon arrest.” Doyle,
      426 U.S. at 619. As we explained in Willsey v. State:

             [T]he central constitutional inquiry is the ‘particular use to
             which the post-arrest silence is being put. . . . Doyle does not
             impose a prima facie bar against any mention whatsoever of a
             defendant’s right to request counsel, but instead guards
             against the exploitation of that constitutional right by the
             prosecutor.’

      698 N.E.2d 784, 793 (Ind. 1998) (quoting Lindgren v. Lane, 925 F.2d 198,
      202 (7th Cir. 1991)).

             It follows that the prosecutor may comment on a defendant’s post-
      Miranda silence in limited circumstances as long as it is not used to exploit
      a defendant’s constitutional rights. See Vitek v. State, 750 N.E.2d 346, 350
      (Ind. 2001).

Id. at 1075 (emphasis added).

      Here, on direct examination, Epps testified that West had grabbed Epps’ arm

during the altercation and that she had sustained bruising and scratches as a result. Epps

also testified that West had punched her. On cross-examination, the Prosecutor asked

Epps whether she had told Deputy Hurd about her injuries, and Epps replied:

      Yes, I did actually. I told him that she had hit me in the upper chest area.
      That she had a hold of my arm. The only thing [Deputy Hurd] was
      interested in finding out from me at that point in time was did you leave her
      property when you were told [to.] I told him that I got punched in the
      upper area up here. It was sore. It hurt. . . . He wasn’t interested. Didn’t
      look. Didn’t physically view me at all. Everything was one-sided on what
      [West] wanted.

Transcript at 127-28 (emphasis added). Then, on re-direct examination, Epps reiterated

that West had grabbed her arm and caused injury to Epps. And on re-cross examination,

the Prosecutor asked Epps “at what point” she went to the police officers to “show them

these injuries that [she had] sustained[.]” Id. at 133. Defense counsel objected and
                                            7
suggested that the question implicated her right to remain silent under the Fifth

Amendment to the United States Constitution. The trial court overruled the objection.

       We hold that there was no Doyle violation here. Epps testified that she told

Deputy Hurd about her injuries, but that he “wasn’t interested.”         Id. at 128. That

testimony opened the door to the Prosecutor’s question about whether Epps had

attempted to show Deputy Hurd or any other Sheriff’s deputy the bruising or scratches

she had claimed she sustained in the altercation with West. See Morgan, 755 N.E.2d at

1075 (holding defendant’s testimony suggesting police “were not interested in hearing

Defendant’s version of events” opened the door to the prosecutor’s comments that

nothing had prevented the defendant from contacting police to tell his version of events).

Because there was no Doyle violation, Epps’ reliance on Bevis v. State, 614 N.E.2d 599

(Ind. Ct. App. 1993), is misplaced.

                                 Issue Three: Sentence

       Epps next contends that her sentence is inappropriate in light of the nature of the

offenses and her character. Although a trial court may have acted within its lawful

discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana

Constitution “authorize [ ] independent appellate review and revision of a sentence

imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007)

(alteration original). This appellate authority is implemented through Indiana Appellate

Rule 7(B). Id. Revision of a sentence under Appellate Rule 7(B) requires the appellant

to demonstrate that his sentence is inappropriate in light of the nature of his offenses and

his character. See App. R. 7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.


                                             8
2007). We assess the trial court’s recognition or non-recognition of aggravators and

mitigators as an initial guide to determining whether the sentence imposed was

inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). However, “a

defendant must persuade the appellate court that his or her sentence has met th[e]

inappropriateness standard of review.” Roush, 875 N.E.2d at 812 (alteration original).

       The Indiana Supreme Court more recently stated that “sentencing is principally a

discretionary function in which the trial court’s judgment should receive considerable

deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented. See id. at 1224. The principal role of appellate review is to

attempt to “leaven the outliers.”      Id. at 1225.   Whether we regard a sentence as

inappropriate at the end of the day turns on “our sense of the culpability of the defendant,

the severity of the crime, the damage done to others, and myriad other facts that come to

light in a given case.” Id. at 1224.

       Epps first contends that her sentence is inappropriate in light of the nature of the

offenses. She asserts that West shared culpability in that both of them had “contributed

to the events leading to the altercation” at issue here. Brief of Appellant at 15. Further,

Epps maintains that she was a victim of West’s physical attack and that “none of the

victims suffered injuries which required medical treatment.” Id. But the evidence shows

that Epps pushed J.W., a nine-year-old boy, and “slammed him down in the gravel.”

Transcript at 64. Epps then “stepped on [J.W.] and the dog[.]” Id. at 65. Epps also




                                             9
punched West’s mother. We cannot say that Epps’ two-year suspended sentence is

inappropriate in light of the nature of the offenses.

       Epps also contends that her sentence is inappropriate in light of her character. In

support of that contention, Epps asserts that: she has no criminal history; she and West

no longer live near each other so “another altercation is less likely”; and she is a “mother

with children living with her.” Brief of Appellant at 15. But the evidence shows that

Epps’ character is poor. In particular, in response to two young boys walking a dog in

front of her house, Epps immediately confronted West with verbal and physical

aggression. Epps initiated the altercation knowing that children were present, and she

physically assaulted a nine-year-old boy and his grandmother. We cannot say that Epps’

sentence is inappropriate in light of her character.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                              10
