MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  FILED
court except for the purpose of establishing                           Aug 30 2017, 9:22 am
the defense of res judicata, collateral
                                                                           CLERK
estoppel, or the law of the case.                                      Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Tyler G. Banks
                                                         Deputy Attorney General
Barbara J. Simmons                                       Indianapolis, Indiana
Oldenburg, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Roberson,                                        August 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1612-CR-2761
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G10-1512-CM-45870



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017         Page 1 of 8
[1]   Anthony Roberson appeals his conviction of Class A misdemeanor battery

      resulting in bodily injury. 1 He argues the trial court abused its discretion when

      it allowed an interpreter to translate the victim’s statements, and the State did

      not present sufficient evidence to support his conviction. We affirm.



                                Facts and Procedural History
[2]   On December 27, 2015, Govindbhai Patel was working at the Royal Inn motel.

      Patel was cleaning on the second floor of the motel when he noticed an open

      window on a vacant room. Through the window, Patel could see Roberson

      sleeping inside the room. Patel recognized him because Roberson “used to

      sleep right on the staircase in their motel.” (Tr. at 7.) When Patel went into the

      room, he did not see anyone, but he saw a pair of shoes on the floor. Patel

      noticed, through a crack in the door, that Roberson was hiding in the

      bathroom. Patel went to the bathroom, and Roberson “opened the door very

      quickly on [Patel], and it hurt him and he fell down.” (Id. at 8.) Patel clarified

      by explaining Roberson pushed him with his hands. Patel’s back was injured

      from his fall, and Roberson ran away after pushing Patel down.


[3]   Patel tried calling the front office from the motel room phone. Patel then went

      to the front office, as he suspected Roberson might be hiding there. He saw

      Roberson run toward Walgreens. Patel and the motel manager pursued




      1
          Ind. Code §§ 35-42-2-1(b)(1) & 35-42-2-1(c)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017   Page 2 of 8
      Roberson and called the police from the Walgreens. Police subsequently

      located Roberson at a nearby gas station and arrested him. The State charged

      Roberson with Class A misdemeanor battery resulting in bodily injury and

      Class A misdemeanor criminal trespass. 2


[4]   At a one-day bench trial, the State used an interpreter, Depak Goradia, to

      translate Patel’s testimony from the Indian language of Gujarati to English.

      The trial court asked Goradia what language he would be translating, and

      Goradia was administered an oath in which he swore he would properly

      translate Patel’s testimony. During Patel’s testimony, Roberson objected

      repeatedly to the manner 3 in which Goradia was translating, and eventually the

      court acknowledged Roberson’s standing objection to the interpretation.


[5]   After a bench trial, the trial court found Roberson guilty of one count of Class

      A misdemeanor battery resulting in bodily injury. He was sentenced to 365

      days in jail with 335 days suspended and thirty days credit. The trial court also

      sentenced Roberson to 335 days of probation, ordered Roberson to have no

      contact with Patel, and ordered Roberson to stay away from the Royal Inn.



                                    Discussion and Decision



      2
          Ind. Code § 35-43-2-2 (2014).
      3
        For example, Roberson objected to Goradia’s translation of Patel’s answer to a question because Roberson
      felt Goradia was summarizing Patel’s words instead of translating Patel’s words verbatim.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017          Page 3 of 8
                                         Abuse of Discretion
[6]   “On appeal, because we have noted that the manner in which an examination

      of an interpreter occurs is discretionary, we will review the trial court’s

      examination under an abuse of discretion standard.” Tesfamariam v.

      Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011). An abuse of

      discretion occurs if the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances presented to the court. Gomez v. Gomez,

      887 N.E.2d 977, 982 (Ind. Ct. App. 2008). If the trial court’s decision to admit

      evidence is sustainable on any ground, we will not reverse its decision. Id.


[7]   Roberson argues the court abused its discretion in allowing Goradia to translate

      because the court “failed to make but a cursory inquiry as to Mr. Goradia’s

      qualifications.” (Appellant’s Br. at 8.) As an initial matter, we note Roberson

      did not object to Goradia’s qualifications as a translator or to the trial court’s

      acceptance of Goradia as a translator, and thus the issue is waived for our

      review. See Tesfamariam, 956 N.E.2d at 122 (when complaining party does not

      object to the qualification of the interpreter during trial, the issue is waived for

      appellate consideration).


[8]   An exception to the doctrine of waiver arises when errors are so blatant and

      serious that to ignore them would constitute a denial of fundamental due

      process, i.e., when fundamental error has occurred. Madden v. State, 656 N.E.2d

      524, 526 (Ind. Ct. App. 1995), trans. denied. The fundamental error doctrine

      permits us to consider the merits of a waived error if the error was so prejudicial


      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017   Page 4 of 8
       to the rights of the appellant that he could not have had a fair trial. Id. To be

       “fundamental,” error must be “a clearly blatant violation of basic and

       elementary principles, and the harm or potential for harm therefrom must be

       substantial and apparent.” James v. State, 613 N.E.2d 15, 25 (Ind. 1993). This

       means irremediable prejudice to a defendant’s fundamental right to a fair trial

       must be immediately apparent in the disputed evidence or argument. Allen v.

       State, 686 N.E.2d 760, 775 n.3 (Ind. 1997), reh’g denied, cert. denied sub nom Allen

       v. Indiana, 525 U.S. 1073 (1999).


[9]    At the beginning of Roberson’s trial, the court identified Goradia as the

       interpreter for Patel. The court then asked, “you are the court appointed

       interpreter translating what language, sir?” (Tr. at 4.) Goradia answered the

       language was “Gujarati,” (id.), and the State’s witness Patel spoke Gujarati.

       The court then administered an oath to Goradia. Roberson did not object to

       any of these processes.


[10]   Roberson objected thereafter when he suspected Goradia was not properly

       translating Patel’s testimony. Goradia admitted he was “summarizing . . .

       [what Patel said] . . . sometimes.” (Id. at 10.) The trial court reminded Goradia

       to “tell us exactly what [Patel] said.” (Id. at 12.) After a subsequent objection

       to the way Goradia translated Patel’s words, the trial court told Roberson:


               I understand your objection but I can’t help that right now
               because -- I understand that this -- it sounds like the interpreter is
               saying -- is not translating it as if in the words of the [witness]
               exactly. . . . I think based on this language that is the way this


       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017   Page 5 of 8
                interpretation is going to happen. . . And, I promise you, I will
                give it the proper weight, okay?


       (Id. at 13.)


[11]   This case was not tried before a jury, but instead was tried before the bench.

       “[I]n criminal bench trials, we presume that the court disregard[s] inadmissible

       testimony and render[s] its decision solely on the basis of relevant and probative

       evidence.” Griffin v. State, 698 N.E.2d 1261, 1267 (Ind. Ct. App. 1998), trans.

       denied. Further, generally valid issues with regard to fundamental error such as

       “unfair prejudice, confusion of the issues, or potential to mislead the jury” are

       relevant only in jury trials. Ruiz v. State, 926 N.E.2d 532, 535 (Ind. Ct. App.

       2010), reh’g denied, trans. denied. The trial court assured Roberson he would give

       Patel’s testimony proper weight, and the trial court asked Goradia if he spoke

       the language he was in court to translate. As we have no other standard by

       which to measure the trial court’s actions, 4 we conclude the trial court did not

       commit fundamental error when it allowed Goradia to translate for Patel.


                                       Sufficiency of the Evidence
[12]   When reviewing sufficiency of the evidence in support of a conviction, we do

       not reweigh evidence or assess credibility of witnesses. Walker v. State, 998




       4
         In Cruz Angeles v. State, we suggested a non-exhaustive list of questions a trial court could pose to a potential
       interpreter to ensure that individual is qualified to provide courtroom translation. 751 N.E.2d 790, 795 (Ind.
       Ct. App. 2001), trans. denied. As the question of how to properly qualify interpreters for trial is a recurring
       issue, we respectfully request the Indiana Supreme Court provide additional guidance regarding interpreter
       qualification.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017                 Page 6 of 8
       N.E.2d 724, 726 (Ind. 2013). We consider only the probative evidence and

       reasonable inferences drawn therefrom in the light most favorable to the

       judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). The decision comes

       before us with a presumption of legitimacy, and we will not substitute our

       judgment for that of the fact-finder. Binkley v. State, 654 N.E.2d 736, 737 (Ind.

       1995), reh’g denied. Conflicting evidence is considered most favorably to the

       verdict. Drane, 867 N.E.2d at 146. We affirm a conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id. It is therefore not necessary that the evidence overcome

       every reasonable hypothesis of innocence; rather, the evidence is sufficient if an

       inference reasonably may be drawn from it to support the verdict. Id. at 147.


[13]   To prove Roberson committed Class A misdemeanor battery resulting in bodily

       injury, the State had to prove beyond a reasonable doubt: (1) Roberson (2)

       knowingly or intentionally (3) touched Patel (4) in a rude, insolent, or angry

       manner, and (5) that conduct resulted in bodily injury to Patel. See Ind. Code §

       35-42-2-1 (2014).


[14]   Roberson argues the State failed to present sufficient evidence beyond a

       reasonable doubt that he committed battery because Patel’s testimony was

       inconsistent and vague. Specifically, he argues that the testimony did not prove

       he touched Patel in a rude, insolent or angry manner beyond a reasonable

       doubt. To support his argument, Roberson points to parts of Patel’s testimony

       that were unclear. One part Roberson asserts is inconsistent was whether Patel

       fell down from Roberson pushing the bathroom door at him or if Roberson

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017   Page 7 of 8
       pushed Patel down using his hands. This question was cleared up when Patel

       was asked whether it was the door or Roberson’s hands, and Patel responded

       Roberson pushed him with hands. There was also confusion in the testimony

       about whether Patel’s first action after being pushed down was to call the front

       office or to go to the office. However, even if Patel’s testimony was confusing

       or unclear at times, “it is the fact-finder’s role, not that of appellate courts, to

       assess witness credibility and weigh the evidence to determine whether it is

       sufficient to support a conviction,” and we decline Roberson’s invitation to

       invade the fact-finder’s role. See Drane, 868 N.E.2d at 146. Thus, we conclude

       the evidence was sufficient to convict Roberson of battery.



                                               Conclusion
[15]   The trial court did not create fundamental error by allowing Goradia to

       translate Patel’s testimony, and the State presented sufficient evidence to

       convict Roberson of Class A misdemeanor battery. Accordingly, we affirm.


[16]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2761 | August 30, 2017   Page 8 of 8
