MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                   Nov 08 2018, 7:02 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                  Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Evan Matthew Comer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Muhammad A. Stewart,                                    November 8, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1303
        v.                                              Appeal from the
                                                        Allen Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Wendy W. Davis, Judge
                                                        Trial Court Cause No.
                                                        02D04-1708-F6-881



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018                Page 1 of 8
[1]   Muhammad A. Stewart (“Stewart”) was convicted after a jury trial of criminal

      confinement1 as a Level 6 felony and domestic battery2 as a Level 6 felony and

      was ordered to serve a three-year executed sentence. Stewart raises the

      following issue for our review: whether the State presented sufficient evidence

      to support his convictions.


[2]   We reverse.


                                         Facts and Procedural History
[3]   In July 2017, J.J. and Stewart had been involved in a three-year relationship

      and had been living together for six or seven months. On July 25, 2017, the

      couple had a verbal confrontation, and as a result, J.J. left the home they shared

      in Fort Wayne, Allen County, Indiana to stay with a friend, Danyelle Austin

      (“Austin”). Tr. Vol. II at 122-23. After two days of staying with Austin, J.J. ran

      out of clean clothing and other basic necessities. Therefore, on the evening of

      July 27, 2017, J.J. told Austin that she was going to return to her house to

      collect some of her belongings. Id. at 123, 147. Although Austin told J.J. not

      to go, J.J. insisted she needed to get her belongings. Id. at 147. Together, the

      two women came up with a safety plan, where J.J. told Austin to wait

      approximately ten minutes, then to call her cell phone. Id. at 126, 148. If J.J.

      did not answer, Austin was instructed to immediately call the police. Id.




      1
          See Ind. Code § 35-42-3-3(a).
      2
          See Ind. Code § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 2 of 8
[4]   J.J. arrived at the residence, entered, and began to collect clothing out of her

      dresser drawer when Stewart entered the bedroom and started yelling at her. Id.

      at 127. Stewart demanded to know where J.J. had been, and J.J. attempted to

      leave the room as he approached her. Id. A loud argument between J.J. and

      Stewart ensued, during which, J.J.’s cell phone rang, and J.J. answered the

      incoming phone call from Austin. Id. at 129. When J.J. answered the call, all

      that Austin could hear on J.J.’s end of the call was J.J. arguing with Stewart.

      Id. at 148. After approximately one minute and thirty seconds of listening to

      the argument between Stewart and J.J., Austin hung up the phone. Id.; State’s

      Ex. 1. As soon as she hung up, however, Austin felt that she should call J.J.

      back because she was worried that something might happen to J.J. Tr. Vol. II at

      149, 151-52. Austin attempted to call J.J. four more times, but each time the

      calls went to J.J.’s voicemail. Id. After the fourth unsuccessful attempt to reach

      J.J., Austin called 911 and alerted the police. Id. at 149.


[5]   Fort Wayne Police Department Officers Heather Hoffmann (“Officer

      Hoffman”) and Darrell Caudill (“Officer Caudill”) were dispatched to the

      residence at approximately 8:30 p.m. Id. at 156. The officers parked their

      vehicle a couple of houses down from J.J.’s residence and approached the

      house on foot. As they got near the house, Officer Hoffmann and Officer

      Caudill could hear yelling coming from inside. Id. The screen door of the

      residence was closed, but the interior door was open, and the officers could see

      inside of the house and observed Stewart standing in the back hallway in front

      of the bedroom doors. Id. at 156, 176. Stewart saw the two officers approach

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 3 of 8
      the house and met them at the front door. Id. at 156. Officer Caudill made

      contact with Stewart and asked if J.J. was there. Id. at 157, 176. Stewart called

      J.J., and she emerged from the bedroom. As soon as J.J. saw the officers, she

      moved quickly toward them. Id. at 177. Officer Caudill observed that “[s]he

      appeared to be in quite a bit of a hurry to get out of there.” Id. Officer

      Hoffmann’s observation was that J.J. seemed “very afraid . . . very nervous and

      frightened” and did not make eye contact with Stewart as she exited the

      residence. Id. at 157.


[6]   Officer Hoffmann walked J.J. away from the home while Officer Caudill kept

      Stewart inside the house. Officer Caudill observed that Stewart was also very

      nervous, breathing rapidly, sweating heavily, and shaking. Id. at 177. J.J. told

      Officer Hoffmann that, while she was attempting to remove some of her

      belongings from the house, Stewart confronted her, pushed her down onto the

      bed, placed his hand on her neck, balled up his other fist, and told her that she

      was not leaving and that he would hit her again if she tried to leave. Id. at 159.

      J.J. stated to Officer Hoffman that, as she struggled to get free, Stewart slapped

      her across the left side of her face. Id. J.J. continued to struggle, and Stewart

      grabbed J.J.’s hair weave, which was sewn into her hair, and ripped it out. Id.

      at 159, 173. Stewart then got up and stood in the doorway of the bedroom,

      refusing to let J.J. leave. Id. at 155, 162-63. The incident occurred less than a

      minute before Officer Hoffmann and Officer Caudill arrived at the scene. Id. at

      158. As a result, J.J. told Officer Hoffmann that her back was hurting, that the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 4 of 8
      left side of her face hurt, and that she felt pain along her scalp, but she refused

      medical treatment. Id. at 163, 170.


[7]   After speaking with J.J., Officer Hoffmann signaled to Officer Caudill to take

      Stewart into custody. Id. at 157. Officer Caudill handcuffed Stewart and

      placed him in the back of the parked police car. After being arrested, Stewart

      began shouting that J.J. was “acting.” Id. at 178. Officer Caudill, who was

      wearing a microphone on his lapel, then approached Officer Hoffmann and J.J.

      to take pictures of J.J.’s injuries. He photographed J.J.’s face and hair and of

      J.J.’s hair weave, which had been retrieved from the bedroom and placed on the

      back of a nearby vehicle. Id. at 161-162; State’s Exs. 2-7. While Officer Caudill

      was taking these photographs, J.J. told him that Stewart “just grabbed me by

      the neck.” State’s Ex. 9 at 00:00:21-00:00:22. She also stated that Stewart had

      told her “you aren’t going nowhere” and that he had pushed her down on the

      bed and told her that he would not allow her to leave their house again. Id. at

      00:0021-00:00:22, 00:01:59-00:02:02. J.J. agreed to talk to a detective and,

      during a phone call with the detective approximately one hour later, recounted

      the same allegations against Stewart. Tr. Vol. II at 189, 191.


[8]   The State charged Stewart with Level 6 felony criminal confinement and Level

      6 felony domestic battery. The trial court issued a no contact order prohibiting

      Stewart from contacting J.J. Appellant’s App. Vol. 2 at 4. However, sometime

      after Stewart was released from jail, Austin saw Stewart and J.J. together. Tr.

      Vol. II at 153. After Stewart’s release from jail, J.J. stopped talking to Austin

      altogether. Id. at 153-54.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 5 of 8
[9]    A jury trial was conducted on April 10, 2018, and during her testimony, J.J.

       recanted the allegations she had made against Stewart on July 27, 2017. Id. at

       128, 130-32. At trial, she claimed that she had tried to push Stewart out of the

       way while the two were arguing, causing him to stumble and strike her face

       with his hand as he tried to catch himself. Id. at 128. J.J. denied that he

       intentionally slapped her and maintained that her statements to Officer

       Hoffman and Officer Caudill were “exaggerated” and that she did not tell the

       detective that Stewart battered her and if his report said so, he was “mistaken.”

       Id. at 128, 140, 143. She also stated that she wanted to reconcile with Stewart

       after the trial. Id. at 136-37. At the conclusion of the trial, the jury found

       Stewart guilty as charged, and he was sentenced to an aggregate sentence of

       three years executed. Stewart now appeals.


                                      Discussion and Decision
[10]   The deferential standard of review for sufficiency claims is well settled. When

       we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

       928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We also consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

       App. 2013), trans. denied. We will not disturb the verdict if there is substantial

       evidence of probative value to support it. Fuentes, 10 N.E.3d at 75. We will

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 6 of 8
       affirm unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind.

       2014). A conviction can be sustained on only the uncorroborated testimony of

       a single witness, even when that witness is the victim. Dalton v. State, 56 N.E.3d

       644, 648 (Ind. Ct. App. 2016), trans. denied.


[11]   Stewart argues that the State failed to present sufficient evidence to support his

       convictions for Level 6 felony criminal confinement and Level 6 felony

       domestic battery. Specifically, he contends that his convictions were not

       supported by sufficient evidence because they were based on repudiated out-of-

       court statements. Stewart asserts that his convictions were solely based on J.J.’s

       statements made to the police at the scene, which she later recanted, and that

       no other substantial evidence of probative value was presented from which the

       jury could infer that the prior, recanted statement was credible.


[12]   In order to find Stewart guilty of Level 6 felony domestic battery, the State was

       required to prove beyond a reasonable doubt that Stewart knowingly or

       intentionally touched J.J., a member of his household, in a rude, insolent, or

       angry manner and that Stewart had a prior conviction for battery. Ind. Code §

       35-42-2-1.3 (a)(1), (b)(1)(A). To find him guilty of Level 6 felony criminal

       confinement, the State was required to prove beyond a reasonable doubt that he

       knowingly or intentionally confined J.J. without her consent. Ind. Code § 35-

       42-3-3(a). It is well settled that a conviction may not be predicated upon a

       repudiated out-of-court statement unless there is substantial evidence of

       probative value from which the trier of fact could infer the repudiated statement

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 7 of 8
       is credible. Peckinpaugh v. State, 447 N.E.2d 576, 581 (Ind. 1983). It is also

       clear that a repudiated statement cannot be rendered credible by another

       repudiated statement, or by the repudiated statement itself. Laswell v. State, 494

       N.E.2d 981, 982 (Ind. Ct. App. 1986). Rather, the corroborative evidence must

       be evidence independent of the statement itself. Id.


[13]   Here, no such independent corroborative evidence was presented. J.J.

       repudiated her statements to police and denied making them when she testified

       under oath at trial, and there was no independent evidence of a battery or of

       confinement. There were no eyewitnesses to the altercation between Stewart

       and J.J., and J.J. suffered no documented injuries as a result of the alleged

       battery. Stewart did not admit to any wrongdoing or attempt to flee when the

       officers arrived at the residence. Other than the testimony of the officers

       regarding J.J.’s recanted statements, there is nothing in the record that

       corroborates J.J.’s out-of-court statements or that makes them more credible

       than her testimony given under oath at trial. We, therefore, conclude that,

       because no substantial evidence of probative value was presented from which

       the jury could infer J.J.’s recanted statements were credible, insufficient

       evidence was presented to support Stewart’s convictions. We reverse his

       convictions for Level 6 felony criminal confinement and Level 6 felony

       domestic battery.


[14]   Reversed.


       Vaidik, C.J., and Riley, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1303 | November 8, 2018   Page 8 of 8
