MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Apr 06 2020, 8:51 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Megan A. Rosenbaum                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Courtney Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Megan A. Rosenbaum,                                       April 6, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2971
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Barbara Crawford,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          49G09-1706-F6-21437



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020                 Page 1 of 15
[1]   Megan A. Rosenbaum, pro se, appeals her convictions for Level 6 felony

      battery against a public safety official, Class B misdemeanor battery, and Class

      B misdemeanor disorderly conduct. Rosenbaum enumerates thirteen issues in

      her appellate brief that we consolidate to the following four: 1) whether the

      incomplete transcript available on appeal violates her due process rights; 2)

      whether the trial court abused its discretion regarding the admission of

      evidence; 3) whether Rosenbaum’s trial counsel was ineffective; and 4) whether

      the State presented sufficient evidence to support the battery convictions.


[2]   We affirm.


                                          Facts & Procedural History


[3]   The facts favorable to the convictions follow. 1 On June 6, 2017, Jennifer

      Cromwell lived in a subdivision with her husband and two children. She had

      worked third shift and was in bed winding down before going to sleep when she

      heard a series of loud banging noises around 10:00 a.m. Shortly thereafter,

      Rosenbaum, Cromwell’s neighbor from across the street and the mother of her

      nine-year-old daughter’s friend, was standing in the doorway of her bedroom.

      Rosenbaum stared at Cromwell with a blank look and eventually mumbled




      1
        Like other sections of her brief, Rosenbaum’s statement of case and statement of facts sections do not
      comply with Ind. Appellate Rule 46 and are wholly inappropriate. Most notably, she provides little to no
      citations to the record and relies on her own version of the facts. We remind Rosenbaum that “it has long
      been the rule in Indiana that pro se litigants without legal training are held to the same standard as trained
      counsel and are required to follow procedural rules.” Receveur v. Buss, 919 N.E.2d 1235, 1238 (Ind. Ct. App.
      2010) (quoting Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020                      Page 2 of 15
      something. Cromwell then escorted Rosenbaum down the stairs and out of the

      house. After locking the door, she watched Rosenbaum from a window.

      Rosenbaum went into Cromwell’s open garage and came out with fragrance

      body sprays that were inside. When Cromwell yelled to give the sprays back,

      Rosenbaum accused Cromwell and Cromwell’s daughter of stealing them from

      her. As she walked back to her house yelling, Rosenbaum smashed the sprays

      against her van and then threw them across the street. Cromwell collected the

      sprays, spoke with another neighbor about the incident, and then called the

      police.


[4]   Indianapolis Metropolitan Police Department (IMPD) Officer Jeffrey Goode

      responded to the dispatch and spoke with both parties. He advised Rosenbaum

      that Cromwell did not want her to come back over to her house and that they

      should stay away from each other. He left after about ten minutes.


[5]   Later that morning, Rosenbaum returned, yelling and knocking on Cromwell’s

      front door. She was acting erratic and trying to get Cromwell to come outside.

      She then began pulling flowers out of Cromwell’s planter. Cromwell armed

      herself with a child’s aluminum baseball bat and stepped outside to demand

      that Rosenbaum leave. Cromwell was also calling 911 again. Rosenbaum

      charged at Cromwell when she came out, and Cromwell stuck Rosenbaum with

      the bat. The two then struggled over the bat, and Rosenbaum grabbed

      Cromwell by the hair. The fight moved toward the street and the commotion

      drew the attention of neighbors and Cromwell’s children.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 3 of 15
[6]   Cromwell’s thirteen-year-old son J.M. ran outside and started yelling at

      Rosenbaum to stop and let go of his mom. Rosenbaum eventually turned her

      attention to J.M. She ran toward J.M. and angrily shoved him to the ground.

      J.M. got back up and continued to try to distract Rosenbaum, along with other

      neighbors, so that his mom could get away. In the meantime, Cromwell called

      911 again and ran into her house with J.M.


[7]   Lisa Claxton, Cromwell’s next-door neighbor, stood on her own porch yelling

      at Rosenbaum to go home, while also calling 911. When Rosenbaum started

      walking toward Claxton in an aggressive manner, Claxton went inside with her

      son N.C. and locked the door.


[8]   Officer Goode responded to this second incident, followed shortly thereafter by

      IMPD Officer Brian Burnett. While Officer Goode spoke with Cromwell

      outside her house, Officer Burnett stayed across the street with Rosenbaum,

      who was vacillating between yelling and being calm. Officer Goode also spoke

      with J.M. and two witnesses. Officer Goode had to instruct Rosenbaum to stay

      away on several occasions as she tried to yell her side of the story from across

      the street. Other neighbors came out during the commotion.


[9]   When Officer Goode walked over to Rosenbaum, he arrested her for battery

      and disorderly conduct and placed her in handcuffs. The officers assisted her in

      obtaining shoes from inside her house and then had her sit in the lawn to wait

      for transport to jail. She was disruptive at times and had to be told often to sit

      back down. Once she calmed, the officers allowed her to call her father to care


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 4 of 15
       for her dog. Officer Burnett ended the call when Rosenbaum began yelling and

       moving around, making things “very difficult.” Transcript at 174.


[10]   Thereafter, Rosenbaum rolled onto her back and tried to maneuver her

       handcuffed hands from behind her back to the front by going “underneath her

       butt.” Id. Officer Burnett demanded that she stop, and he bent down over her.

       Rosenbaum then began kicking him in the upper thigh and yelling. She struck

       him with her kicks at least once, causing pain. Officer Burnett stepped to the

       side and turned her onto her stomach as she kicked him one or two more times.

       At that point, Officer Goode stepped in and held down her legs until she

       calmed down and was taken to jail.


[11]   On June 9, 2017, the State charged Rosenbaum with four counts: Count 1,

       Level 6 felony battery against a public safety official; Count 2, Class A

       misdemeanor battery resulting in bodily injury (involving Cromwell); Count 3,

       Class B misdemeanor battery (involving J.M.); and Count 4, Class B

       misdemeanor disorderly conduct. On July 11, 2018, a jury found Rosenbaum

       guilty of Counts 1, 3, and 4 but not guilty of Count 2, for which Rosenbaum

       argued self-defense. The trial court sentenced Rosenbaum, on November 15,

       2018, to 730 days in jail with all but time served suspended to probation on

       Count 1, along with concurrent, suspended sentences of 180 days on Counts 3

       and 4. Rosenbaum timely appealed.


                                            Discussion & Decision


                                          1. Incomplete Transcript

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 5 of 15
[12]   During the appeals process, it was discovered that the recording software used

       during the trial malfunctioned and the closing arguments of the parties were not

       recorded. On May 8, 2019, after learning that this portion of the trial was

       unable to be transcribed, Rosenbaum filed a motion to vacate her convictions

       and for a new trial. This court denied the motion and directed her to proceed

       pursuant to Ind. Appellate Rule 31, which provides:


               A. Party’s Statement of Evidence. If no Transcript of all or part
               of the evidence is available, a party … may prepare a verified
               statement of the evidence from the best available sources, which
               may include the party’s … recollection. The party shall then file
               a motion to certify the statement of evidence with the trial
               court….


               B. Response. Any party may file a verified response to the
               proposed statement of evidence within fifteen (15) days after
               service.


               C. Certification by Trial Court or Administrative
               Agency. Except as provided in Section D below, the trial court
               … shall, after a hearing, if necessary, certify a statement of the
               evidence, making any necessary modifications to statements
               proposed by the parties. The certified statement of the evidence
               shall become part of the Clerk’s Record.


               D. Controversy Regarding Action of Trial Court Judge or
               Administrative Officer. If the statements or conduct of the trial
               court judge … are in controversy, and the trial court judge …
               refuses to certify the moving party’s statement of evidence, the
               trial court judge … shall file an affidavit setting forth his or her
               recollection of the disputed statements or conduct. All verified



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 6 of 15
               statements of the evidence and affidavits shall become part of the
               Clerk’s Record.


[13]   Rosenbaum prepared a brief verified statement regarding her recollection of the

       closing arguments and filed it with the trial court for certification on August 15,

       2019. Relevant here, she contended that the prosecutor argued that a simple

       unwanted touching was sufficient to establish battery and that her defense

       counsel failed to explain to the jury the mens rea element of battery.

       Additionally, Rosenbaum indicated that defense counsel failed to mention that

       two witnesses, Cromwell and Claxton, did not see Rosenbaum touch J.M.


[14]   On September 4, 2019, the trial court refused to certify Rosenbaum’s statement

       and, instead, filed an affidavit pursuant to App. R. 31(D). The trial court

       observed that the complete testimonial evidence of each witness was included

       in the transcript and that the missing portion did not involve evidence, only the

       closing arguments. The court further stated in its affidavit:


               8. During the closing, each attorney presented
               comments/arguments about the burden of proof of the state, the
               evidence presented, and the credibility of the witnesses. The
               comments were appropriate statements about the evidence
               presented during the trial and the reasonable inferences that
               could be drawn from that evidence. While the attorney
               arguments were intended to persuade, there were no statements
               that were improper or prohibited by law or the constitutions of
               the State of Indiana or the United States of America.


               9. I do not recall the arguments of counsel being as Defendant
               describes them. I cannot certify the representations of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 7 of 15
               content of the closing arguments of counsel as provided by
               defendant as being [] accurate and complete.


       Appellant’s Appendix Vol. II at 63-64.


[15]   Rosenbaum argues that her due process rights are being violated because she

       cannot effectively “challenge the sufficiency nor accuracy of the evidence

       supporting the judgment by the jury when there is not a complete transcript of

       the oral proceedings of the trial court.” Appellant’s Brief at 14. But, as the trial

       court recognized, all of the oral evidence presented to the jury has been

       transcribed for this appeal. It is well established, as the jury was so instructed in

       this case, that statements made by counsel do not constitute evidence. See e.g.,

       Perkins v. State, 483 N.E.2d 1379, 1387 (Ind. 1985) (“Opening and closing

       statements are not evidence.”); see also Appellant’s Appendix Vol. II at 53 (final

       instruction number 6 in this case: “STATEMENTS MADE BY THE

       ATTORNEYS ARE NOT EVIDENCE”).


[16]   This is not an instance where there is no transcript available or where

       reconstruction of the record is impossible. Cf. Gallagher v. State, 410 N.E.2d

       1290, 1293 (Ind. 1980) (granting new trial because appellant was

       “unconstitutionally deprived of his right to adequate review, where there has

       been a considerable lapse of time (now 12 years), where there is no transcript

       available, and no reconstruction of the record is possible”). Here, “any and all

       oral evidence and testimony” has been transcribed. Ind. Criminal Rule 5.

       Further, pursuant to App. R. 31, Rosenbaum filed a verified statement

       regarding her recollection of the closing statements provided by the attorneys
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 8 of 15
       and the trial court filed an affidavit, both of which are before this court.

       Because Rosenbaum has not been deprived of an adequate transcript and

       reconstruction is not impossible, she has not been deprived of due process. See

       Gallagher, 410 N.E.2d at 1293 (observing that “reconstruction of the evidence

       on appeal is not a denial of a defendant’s due process rights”) (citing Ruetz v.

       State, 373 N.E.2d 152, 154-55 (Ind. 1978)); Groff v. State, 415 N.E.2d 721, 724

       (Ind. Ct. App. 1981) (“When a closing argument is not recorded, a party

       seeking to assign some error to the content of the argument must attempt to

       reconstruct the argument in statement form under [App. R. 31].”). The record

       before us allows for meaningful appellate review.


                                           2. Evidentiary Rulings


[17]   Rosenbaum’s remaining issues on appeal are comingled and difficult to

       untangle. We will do our best. One issue appears to be whether the trial court

       abused its discretion regarding the admission or exclusion of evidence.


[18]   The admission or exclusion of evidence is a determination entrusted to the

       discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App.

       2004), trans. denied. Further, the trial court has wide discretion to control the

       manner and mode of the presentation of evidence at trial. S.E. v. Indiana Dep’t

       of Child Servs., 15 N.E.3d 37, 44 (Ind. Ct. App. 2014), trans. denied; see also Ind.

       Evidence Rule 611(a) (“The court shall exercise reasonable control over the

       mode and order of interrogating witnesses and presenting evidence so as to (1)

       make the interrogation and presentation effective for the ascertainment of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 9 of 15
       truth, (2) avoid needless consumption of time, and (3) protect witnesses from

       harassment or undue embarrassment.”). We will reverse only for an abuse of

       discretion, which occurs when the trial court’s action is clearly erroneous and

       against the logic and effect of the facts and circumstances before it. Farris, 818

       N.E.2d at 67. “When evidence is erroneously excluded, reversal is only

       required if the error relates to a material matter or substantially affects the rights

       of the parties.” Id.


[19]   Here, Rosenbaum complains that the trial court did not allow her to reenact

       with her nephew (acting as the officer) the incident involving Officer Burnett,

       did not allow her father to testify regarding what he overheard Officer Burnett

       say during the phone call, and did not permit her to continue testifying in

       narrative form. Because she offers no authority or cogent argument regarding

       how the trial court abused its discretion in any of these respects, Rosenbaum

       has waived review of these alleged errors. See Whitfield v. State, 127 N.E.3d

       1260, 1268 n.5 (Ind. Ct. App. 2019), trans. denied; App. R. 46(A)(8) (appellant’s

       brief must contain contentions on issues presented and each contention must be

       supported by cogent reasoning and citations to authorities).


[20]   Waiver notwithstanding, we conclude that the trial court did not abuse its

       discretion regarding the evidentiary rulings at issue. With respect to the

       reenactment, the trial court properly exercised its discretion pursuant to Evid.

       R. 611(a) when it indicated that it would allow defense counsel to perform the

       reenactment with Rosenbaum rather than her nephew, who had no police

       training and was “not associated with the case at all.” Transcript at 31. The

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 10 of 15
       trial court also properly limited Rosenbaum’s father’s testimony by not allowing

       him to testify as to what he heard the officer say. This was hearsay for which

       Rosenbaum suggests no exception to the hearsay rule for its admissibility. See

       Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011) (“Hearsay is an out-of-court

       statement offered in court to prove the truth of the matter asserted” and “subject

       to certain limited and specific exceptions, hearsay is generally not admissible at

       trial.”) (citing Ind. Evidence Rules 801(c) and 802). Finally, the trial court did

       not abuse its discretion by interrupting Rosenbaum’s narrative testimony and

       directing her to answer the questions posed by her counsel. 2 Hedges v. State, 443

       N.E.2d 62, 66 (Ind. 1982) (“To permit testimony in narrative form rather than

       by question and answer is within the sound discretion of the trial court.”).

       Contrary to her assertion on appeal, Rosenbaum was able to tell her version of

       events and defend herself; she just had to do it through orderly questions and

       answers.


                                  3. Ineffective Assistance of Counsel


[21]   Rosenbaum asserts that her trial counsel was ineffective in certain ways, though

       she acknowledges that counsel was “very effective in showing the jury that [she]

       acted in self-defense” with respect to the battery count involving Cromwell.

       Appellant’s Brief at 32. In addition to the evidentiary issues raised above, she

       alleges that counsel was ineffective for failing, during his closing statement, to



       2
        In fact, Rosenbaum’s own attorney had already asked her to answer the questions that he was asking and
       “don’t go on rambling.” Transcript at 189.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020               Page 11 of 15
       “point out the tremendous differences in the testimonies of the witnesses” and

       to explain that the State was required to prove the mens rea element for battery,

       not just an unwanted touching. Id. at 30.


[22]   Rosenbaum does not apply or even mention the well-established standard of

       review for ineffective assistance of counsel claims. See e.g., Jervis v. State, 28

       N.E.3d 361, 365 (Ind. Ct. App. 2015) (“In order to prevail on a claim of this

       nature, a defendant must satisfy a two-pronged test, showing that: (1) his

       counsel’s performance fell below an objective standard of reasonableness based

       on prevailing professional norms; and (2) there is a reasonable probability that,

       but for counsel’s errors, the result of the proceeding would have been

       different.”) (citing Strickland v. Washington, 466 U.S. 668 (1984)), trans. denied.

       Further, she does not include necessary citations to the record or to any relevant

       case law in support of this claim. Rosenbaum has, therefore, waived her claim

       of ineffective assistance of trial counsel. See App. R. 46(A)(8).


[23]   Waiver notwithstanding, we choose to briefly address Rosenbaum’s unfounded

       assertion that the jury was not made aware of the mens rea element. The

       record indicates that the jury was fully instructed on the elements for each

       alleged battery, including that the touching must be done “KNOWINGLY OR

       INTENTIONALLY”. Appellee’s Appendix Vol. 2 at 8-10 (preliminary instruction

       number 4). The jury was also instructed on the legal definitions of

       “KNOWINGLY” and “INTENTIONALLY”. Id. at 12-13 (preliminary

       instructions number 5 and 6). Moreover, by Rosenbaum’s own account, her



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 12 of 15
       trial counsel argued to the jury that her kicking of the officer was accidental – in

       other words, not knowing or intentional. 3


                                        4. Sufficiency of the Evidence


[24]   Finally, Rosenbaum appears to challenge the sufficiency of the evidence with

       respect to her two battery convictions. When reviewing the sufficiency of the

       evidence, we do not reweigh the evidence or assess the credibility of the

       witnesses. Kelley v. State, 2 N.E.3d 777, 786 (Ind. Ct. App. 2014). “Rather, we

       look to the evidence and reasonable inferences drawn therefrom that support

       the verdict and will affirm the conviction if there is probative evidence from

       which a reasonable trier-of-fact could have found the defendant guilty beyond a

       reasonable doubt.” Id.


[25]   Rosenbaum first argues that although she clearly kicked Officer Burnett, the

       State failed to establish that the kick was done knowingly or intentionally. We

       reject the invitation to reweigh the evidence. Rosenbaum testified that the

       contact was incidental and that she would “never intentionally hurt an officer.”

       Transcript at 195. Her testimony, however, was contrary to other witness

       testimony. Cromwell testified that from across the street she observed

       Rosenbaum roll around on the ground and “bicycle kick the cop repeatedly.”




       3
        With respect to the alleged battery involving J.M., Rosenbaum testified that she did not actually touch him,
       which counsel noted in closing.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020                   Page 13 of 15
       Id. at 66. Officer Goode similarly testified that he saw Rosenbaum bicycle kick

       Officer Burnett three times in the thigh, which resulted in Officer Goode

       stepping in to hold Rosenbaum’s legs until she calmed down. Officer Burnett

       testified that Rosenbaum kicked him in the thigh, near the groin area, as she

       became upset, rolled on her back, and ignored his commands to sit up. After

       being kicked, he turned her onto her stomach so that it would be more difficult

       for her to kick him. Despite this, he testified that Rosenbaum continued to kick

       him one or two more times before Officer Goode came to assist. The evidence

       amply supports a finding that Rosenbaum knowingly or intentionally kicked

       Officer Burnett, a public safety official engaged in his official duty, in a rude,

       insolent, or angry manner. See Ind. Code § 35-42-2-1.


[26]   The State also presented sufficient evidence that Rosenbaum battered J.M.

       J.M. unequivocally testified that Rosenbaum turned her attention to him and

       then ran towards him and shoved him to the ground. N.C. corroborated this

       testimony by indicating that he saw Rosenbaum quickly and angrily approach

       J.M. and then push him. 4 On appeal, Rosenbaum focuses on her own

       testimony – that she did not touch J.M. – and notes that Cromwell and Claxton

       did not testify regarding any battery of J.M. Again, we reject the invitation to

       reweigh the evidence, which was more than sufficient to support the conviction.




       4
        Rosenbaum asserts that J.M.’s and N.C.’s accounts were “totally divergent stories”. Appellant’s Brief at 29.
       They were not.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020                    Page 14 of 15
[27]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2971 | April 6, 2020   Page 15 of 15
