MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Aug 29 2017, 8:56 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                            IN THE
      COURT OF APPEALS OF INDIANA

Ali B. McGraw,                                           August 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1611-CR-2515
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina Klineman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G17-1607-F6-28836




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017       Page 1 of 12
[1]   Ali B. McGraw1 appeals his conviction for torturing or mutilating a vertebrate

      animal as a level 6 felony. McGraw raises one issue which we revise and

      restate as whether the trial court erred in admitting the testimony of a

      veterinarian. We affirm.


                                           Facts and Procedural History

[2]   Sometime after 5:30 p.m. on July 25, 2016, N.G., who was eleven years old

      and had spent the summer with her grandmother, was dropped off, together

      with her dog Diamond, at the house of her aunt Tassawa Martin in

      Indianapolis to wait for her mother to pick her up the following morning after

      she was off work. Diamond, a female pitbull puppy, was about four months

      old and weighed about twenty-five pounds. McGraw, Martin’s boyfriend,

      Martin’s son, and their dog Titan lived in the house.2


[3]   At the time N.G. arrived at the house, McGraw was on his way to work, and

      he typically worked from 6:30 p.m. to 5:00 a.m. At about 12:10 a.m., McGraw

      called Martin and asked her to pick him up because he was off work early. At

      that time, N.G. was asleep on the couch and Diamond was in a cage in the

      utility room. Martin drove to pick up McGraw, and when McGraw entered

      Martin’s vehicle she noticed that it smelled like McGraw had been drinking and




      1
        At the start of trial, the trial court stated “we’re on the record in . . . Sidney Spruill aka Ali McGraw for the
      purpose of this jury trial we’re going to use Sidney Spruill . . . .” Transcript Volume 2 at 4. McGraw was
      also referred to as Kamine at trial.
      2
          Martin testified that Titan is an American Staffordshire Terrier and is about ninety pounds.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017                  Page 2 of 12
      that he was irritated. Martin asked McGraw why he was off work so early, and

      he said “[s]crew that job.” Transcript Volume II at 123.


[4]   Upon arriving at the house, McGraw saw Diamond in her cage, pointed at

      Diamond, and in an angry voice said “what is this.” Id. at 141. He also stated

      he “lives here too and he has say and the dog’s not supposed to be here.” Id. at

      110. Martin told McGraw that N.G. was there and that Diamond was N.G.’s

      dog and would be picked up. McGraw picked up the cage with Diamond

      inside it and moved toward an outside door, and Martin told McGraw that he

      had been drinking and needed to lie down. Diamond was “getting shook

      around in the cage because she’s small,” and Martin attempted to prevent

      McGraw from exiting the house. Id. at 111. McGraw exited the house with the

      cage, walked down the driveway, and “slammed her in the middle of the street.

      In the cage.” Id. at 114. N.G. watched McGraw throw the cage in the street

      from the living room window, and then she ran into the bathroom and called

      her mother and the police. N.G. told her mother that McGraw “killed the

      dog.” Id. at 195.


[5]   McGraw returned to the house, and Martin went to check on Diamond.

      Because the cage was bent or broken and its door latch was inoperative, Martin

      pulled off the back part of the cage in order to remove Diamond. Martin

      brought Diamond back into the house and then let both Diamond and Titan

      into the backyard. McGraw said “the dog had to go,” went out the back door,

      picked up Diamond, lifted Diamond over his head, and then “slammed her

      over the top” of a fence, which was six or seven feet high, onto an asphalt

      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017   Page 3 of 12
      driveway. Transcript at 116, 118. Martin heard Diamond cry and “thought she

      was gone,” and Diamond “scooted up” under Martin’s vehicle and was

      whining and whimpering. Id. at 118. The police arrived, and one of the officers

      observed that McGraw was sweating heavily, that Diamond was under a

      vehicle, and that part of a dog cage was in the street, and another officer

      observed that Diamond “looked hurt” and was whining. Id. at 165. The

      vehicle was gradually moved until Diamond could be removed from beneath it.


[6]   Jacqueline Nowinski, who worked for Indianapolis Animal Care Services,

      responded to the scene where she found Diamond on the grass near the

      driveway, and observed that Diamond “wasn’t trying to get up, it was just

      laying there, so [she] could tell it was injured.” Id. at 209. Nowinski

      transported Diamond to the Airport Animal Emergency Center (“AAEC”)

      where the dog was treated by Dr. Gal3 and x-rays were performed which

      showed that Diamond had two fresh fractures of the right humerus.


[7]   The State charged McGraw with domestic battery and torturing or mutilating a

      vertebrate animal as level 6 felonies and domestic battery and interference with

      the reporting of a crime as class A misdemeanors.4 At McGraw’s jury trial, the




      3
          Dr. Gal did not testify at trial and was living in Hungary.
      4
        Ind. Code § 35-46-3-12(c) provides: “A person who knowingly or intentionally tortures or mutilates a
      vertebrate animal commits torturing or mutilating a vertebrate animal, a Level 6 felony.” Ind. Code § 35-46-
      3-0.5 provides that “‘[m]utilate’ means to wound, injure, maim, or disfigure an animal by irreparably
      damaging the animal’s body parts or to render any part of the animal’s body useless” and that “[t]he term
      includes bodily injury involving: (A) serious permanent disfigurement; (B) serious temporary disfigurement;
      (C) permanent or protracted loss or impairment of the function of a bodily part or organ; or (D) a fracture.”
      The statute also provides that “‘[t]orture’ means: (A) to inflict extreme physical pain or injury on an animal

      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017             Page 4 of 12
      court admitted into evidence x-rays taken and a medical report prepared at

      AAEC, and the jury heard the testimony of Martin, N.G., N.G.’s mother,

      police officers who responded to the scene, Officer Nowinski, and Dr. Jon

      Sheff, a veterinarian and the Hospital Director and President of the Board of

      Directors at AAEC. The jury found McGraw guilty of torturing or mutilating a

      vertebrate animal as a level 6 felony and not guilty on the other charges. The

      court sentenced McGraw to 270 days in Marion County Community

      Corrections work release and, in its sentencing order, stated that McGraw “may

      receive AMS upon successful completion of MCCC.” Appellant’s Appendix

      Volume II at 14.


                                                      Discussion

[8]   The issue is whether the trial court erred in admitting the testimony of Dr.

      Sheff. We generally review the trial court’s ruling on the admission of evidence

      for an abuse of discretion. Brittain v. State, 68 N.E.3d 611, 616-617 (Ind. Ct.

      App. 2017), trans. denied. However, constitutional claims are reviewed de novo.

      See id. A failure to timely object to the erroneous admission of evidence at trial

      will procedurally foreclose the raising of such error on appeal unless the

      admission constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111,

      118 (Ind. 2015). Fundamental error is an extremely narrow exception that

      allows a defendant to avoid waiver of an issue and is error that makes a fair trial




      with the intent of increasing or prolonging the animal’s pain; or (B) to administer poison to a domestic
      animal . . . .” The State also initially charged McGraw with identity deception, but that count was later
      dismissed.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017             Page 5 of 12
       impossible or constitutes clearly blatant violations of basic and elementary

       principles of due process presenting an undeniable and substantial potential for

       harm. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).


[9]    McGraw contends that the only evidence Diamond suffered injuries sufficient

       to meet the definition of “mutilate” came from Dr. Sheff’s testimony, the State

       used this testimony to prove Diamond was a vertebrate animal, Dr. Sheff’s

       testimony regarding Diamond’s injuries violated his Sixth Amendment right to

       confrontation, and although he did not object to this testimony, its admission

       was fundamental error and not harmless beyond a reasonable doubt. The State

       responds that McGraw does not contend on appeal and never asserted below

       that the medical report and x-rays were inadmissible. It also argues that the

       medical report and x-rays were not testimonial, Dr. Sheff’s testimony did not

       violate McGraw’s confrontation right as he did not testify about Dr. Gal’s

       opinions or observations but rather testified in his own independent expertise

       regarding his observations of Diamond’s x-rays, and that any error in admission

       of Dr. Sheff’s testimony is harmless.


[10]   The Confrontation Clause of the Sixth Amendment provides: “In all criminal

       prosecutions, the accused shall enjoy the right . . . to be confronted with the

       witnesses against him . . . .” U.S. CONST. amend. VI. The Confrontation

       Clause applies to an out-of-court statement if it is testimonial in nature, the

       declarant is not unavailable, and the defendant has had no opportunity to cross-

       examine the declarant. Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013) (citing

       Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354 (2004)), cert. denied, 134

       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017   Page 6 of 12
       S. Ct. 2299 (2014). “[T]estimonial statements are those that are substitutes for

       live testimony, that is ‘they do precisely what a witness does on direct testimony

       . . . .’” Lehman v. State, 926 N.E.2d 35, 40 (Ind. Ct. App. 2010) (citing Davis v.

       Washington, 547 U.S. 813, 830, 126 S. Ct. 2266 (2006)), reh’g denied, trans.

       denied. Violations of the right to confrontation do not require reversal if the

       State can show beyond a reasonable doubt that the error did not contribute to

       the verdict. Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010).


[11]   To the extent McGraw asserts the admission of the medical report and the x-

       rays into evidence was error, we observe that the trial court stated that the

       exhibits were admitted without objection and McGraw does not point to the

       record to show he argued at trial that the admission of the report and the x-rays

       violated his right to confrontation. Accordingly, McGraw has waived any

       argument regarding the admission of the medical report and x-rays into

       evidence. See Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (holding, where

       the defendant argued his right to confront witnesses was violated, that the

       defendant did not object on confrontation grounds at trial and that the claim of

       error was waived). We further observe that, waiver notwithstanding, the

       medical report and x-rays prepared by AAEC were created for the purpose of

       diagnosing and treating Diamond and not for the purpose of proving some fact

       at trial,5 the records were not testimonial in nature, and thus the admission of




       5
        While the medical report, under the heading “Description of Animal (To be completed by ACO)” and in a
       space for “Type,” where the options included “Stray,” “Owner Surrender,” “Investigation,” “Law
       Enforcement,” and “Quarantine,” the word “Investigation” was circled, State’s Exhibit 25, the report also

       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017         Page 7 of 12
       the records did not violate McGraw’s right to confrontation. See Richardson v.

       State, 856 N.E.2d 1222, 1230 (Ind. Ct. App. 2006) (holding, where the

       defendant argued that admission of certain medical records violated his right to

       confrontation, that the medical records were by their nature not testimonial and

       that the trial court did not abuse its discretion in admitting the records), trans.

       denied; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S. Ct. 2527,

       2539-2540 (2009) (“Business and public records are generally admissible absent

       confrontation not because they qualify under an exception to the hearsay rules,

       but because—having been created for the administration of an entity’s affairs

       and not for the purpose of establishing or proving some fact at trial—they are

       not testimonial.”); Montgomery v. State, 22 N.E.3d 768, 775 (Ind. Ct. App. 2014)

       (holding that the main purpose of certain records was not to establish or prove

       some fact at trial, citing Melendez-Diaz, and concluding that the records were not

       testimonial and their admission did not violate the defendant’s Confrontation

       Clause rights), trans. denied.


[12]   We next turn to the admission of Dr. Sheff’s testimony. We note that “[a]n

       expert may base an opinion on facts or data in the case that the expert has been

       made aware of or personally observed” and “[e]xperts may testify to opinions

       based on inadmissible evidence, provided that it is of the type reasonably relied

       upon by experts in the field.” Ind. Evidence Rule 703; see Ackerman v. State, 51




       included a description of Diamond’s injuries and health, the treatment provided, and notes regarding follow
       up care, and Dr. Sheff testified that Diamond’s records, which included x-rays, were kept in the ordinary
       course of business at AAEC and done for every animal through the animal’s treatment. (Tr. II 230-233)

       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017           Page 8 of 12
N.E.3d 171, 189 (Ind. 2016), cert. denied, 137 S. Ct. 475 (2016). Dr. Sheff

testified regarding the general practice when an animal is admitted to AAEC

including how an animal is assessed, diagnostic notes are prepared, and x-rays

are performed. Dr. Sheff testified that he did not observe Diamond and that

Diamond was treated by Dr. Gal, that to his knowledge Diamond’s records

were kept in the ordinary course of business at AAEC, which is done for every

animal at or near the time the animal is presented and through the animal’s

treatment, and that x-rays were performed on Diamond and kept as part of her

medical record. The medical report in the record, under the headings “Main

Problem” and “Results of Examination,” states “Fractured right humerus

(medial condyle).” State’s Exhibit 25. The prosecutor asked Dr. Sheff “what is

a humerus,” and he replied “[t]he first appendage of the arm.” Transcript

Volume II at 235. The prosecutor asked “what is a fracture,” and Dr. Sheff

answered “[a] fracture means broken.” Id. When asked “what is a medial

condial [sic],” Dr. Sheff replied “[i]t’s the distal part of the arm.” Id. When

asked “[s]o, was it fractured to two (2) different bones,” Dr. Sheff testified: “It’s

the same bone, but there were fractures in two (2) different parts.” Id. Dr. Sheff

then testified that a dog has vertebrae and that Diamond had vertebrae. When

asked to describe the x-ray images, Dr. Sheff explained that one of the images

was a lateral view of the thorax and two front limbs and another image was a

“VD view of the thorax.” Id. at 236. The prosecutor asked if Dr. Sheff saw a

fracture in the image, and Dr. Sheff offered to point it out. The prosecutor

asked Dr. Sheff “[i]f you’d like to approach and point it out to us laypeople,”

and Dr. Sheff testified: “Sure. So, what they’re, what they’re pointing to over
Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017   Page 9 of 12
       here, is there’s a fracture line right here. So there’s a fracture line right there.

       And then it’s possible to have a compression fracture right over here. See how

       this angle comes up? It’s in that part right there.” Id. at 237. He further

       testified “[b]oth of those fractures are . . . on the humerus,” and when asked

       “did those fractures appear to be healing to you at all,” he testified “[n]o.

       Those are fresh.” Id. at 238.


[13]   The record reveals that Dr. Sheff testified, in his own expertise, that dogs have

       vertebrae and that the x-ray images which were part of Diamond’s record at

       AAEC showed that Diamond had fresh fractures to her humerus. His opinions

       as to whether there were fractures to Diamond’s humerus and whether they had

       recently occurred were based on Diamond’s x-rays. Dr. Sheff did not testify as

       to Dr. Gal’s observations of Diamond or her injuries and did not express the

       opinion of Dr. Gal regarding Diamond’s injuries, and McGraw’s defense

       counsel cross-examined Dr. Sheff. Dr. Sheff specifically testified that he did not

       treat or observe Diamond at AAEC, and his testimony was based on

       Diamond’s x-rays and his experience as a veterinarian. McGraw has not

       established that he was denied his right of confrontation by the admission into

       evidence of Dr. Sheff’s testimony regarding the definition of words in the

       medical report, that dogs have vertebrae, or that Diamond’s x-rays showed

       fractures. See Ackerman, 51 N.E.3d at 189, 195 (holding that an autopsy report

       was nontestimonial for confrontation purposes and its admission did not violate

       the defendant’s confrontation rights, that the testimony of a pathologist who

       was not present for the autopsy regarding the autopsy report similarly did not


       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017   Page 10 of 12
       violate the defendant’s confrontation rights, and noting that, even if the autopsy

       report was inadmissible, the pathologist could have still testified to his own

       independent opinion based upon his review of the autopsy report, that while the

       rule would not allow the pathologist to merely recite facts and conclusions that

       were stated in the autopsy report, the pathologist would have been allowed to

       testify that his review of the autopsy reports and photographs led him to the

       conclusion that the manner of a victim’s death was homicide among other

       opinions he formed independently).


[14]   Even if the admission of Dr. Sheff’s testimony was improper, we conclude that

       any error is harmless beyond a reasonable doubt. Violations of the right to

       confrontation do not require reversal if the State can show beyond a reasonable

       doubt that the error did not contribute to the verdict, and a harmless error

       analysis turns on a number of factors available to the reviewing court including

       the importance of the witness’ testimony in the prosecution’s case, whether the

       testimony was cumulative, the presence or absence of evidence corroborating or

       contradicting the testimony of the witness on material points, the extent of

       cross-examination otherwise permitted, and the overall strength of the

       prosecution’s case. Koenig, 933 N.E.2d at 1273. The evidence establishes that

       McGraw threw Diamond, and witnesses heard Diamond cry, whine, and

       whimper, observed that she would not move, and believed she was injured.

       Martin and N.G. testified that McGraw threw Diamond’s cage with Diamond

       in it onto the street, and N.G. believed McGraw had killed her dog. Martin

       testified that she observed McGraw lift Diamond over his head and throw her


       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017   Page 11 of 12
       over a fence which was six or seven feet tall onto an asphalt driveway. Martin

       heard Diamond cry and “thought she was gone,” and Diamond “scooted up”

       under Martin’s vehicle and was whining and whimpering. Transcript Volume

       II at 118. One of the responding police officers testified that Diamond “looked

       hurt” and was whining. Id. at 165. Officer Nowinski testified that she could

       tell Diamond was injured. The medical report stated Diamond had a

       “[f]ractured right humerus (medial condyle),” State’s Exhibit 25, and

       Diamond’s x-rays were admitted into evidence. Dr. Sheff’s testimony that

       Diamond had sustained a fracture was cumulative of the information contained

       in the admitted medical report and x-rays and the testimony of those who

       observed McGraw’s actions and Diamond’s behavior at the scene of the offense

       demonstrated that Diamond had been injured. Any error in admitting the

       evidence challenged by McGraw, given that the evidence is cumulative of other

       evidence and the strength of the prosecution’s case, is harmless beyond a

       reasonable doubt and did not make a fair trial impossible or constitute clearly

       blatant violations of basic and elementary principles of due process presenting

       an undeniable and substantial potential for harm. We do not disturb the jury’s

       verdict.

                                                   Conclusion

[15]   For the foregoing reasons, we affirm McGraw’s conviction for torturing or

       mutilating a vertebrate animal as a level 6 felony.


[16]   Affirmed.


       Najam, J., and Kirsch, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1611-CR-2515 |August 29, 2017   Page 12 of 12
