MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                              FILED
Memorandum Decision shall not be regarded as             May 05 2017, 9:01 am
precedent or cited before any court except for the
                                                              CLERK
purpose of establishing the defense of res judicata,      Indiana Supreme Court
                                                             Court of Appeals
collateral estoppel, or the law of the case.                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                     Curtis T. Hill, Jr.
Warsaw, Indiana                                          Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General of Indiana
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Buddy J. Livesay,                                       May 5, 2017

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        85A02-1610-CR-2462
        v.                                              Appeal from the Wabash Circuit
                                                        Court.
                                                        The Honorable Robert R. McCallen
State of Indiana,                                       III, Judge.
Appellee-Plaintiff.                                     Trial Court Cause No. 85C01-1607-
                                                        F5-777




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017       Page 1 of 13
                                             Statement of the Case
[1]   Buddy J. Livesay appeals from his convictions after a jury trial of one count of
                                                     1
      Level 5 felony criminal confinement, and one count of Level 6 felony domestic
                   2
      battery. We affirm.


                                                    Issues
[2]   Livesay presents the following issues for our review:

                 I.       Whether the trial court abused its discretion by allowing
                          the State to present the testimony of a rebuttal witness who
                          was not included on the State’s witness list before trial.
                 II.      Whether the trial court abused its discretion by denying
                          Livesay’s motion for a mistrial when the victim interrupted
                          closing arguments with an emotional outburst, instead
                          choosing to admonish the jury.

                                   Facts and Procedural History
[3]   In July of 2016, Livesay, who was twenty-seven years old and unemployed at

      the time, lived with his mother, Rebecca, in her single-story home located in

      Urbana, Indiana. Gladys Kain, who was twenty-five years old, had been

      Livesay’s girlfriend for almost five years by that time. She and her six-year-old

      son, Michael, lived with Livesay and Rebecca for approximately two years

      prior to the incident at issue.




      1
          Ind. Code § 35-42-3-3(b) (2013).
      2
          Ind. Code § 35-42-2-1.3(b) (2016).


      Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 2 of 13
[4]   Gladys testified and described Livesay’s behavior as controlling. According to

      her, he did not allow her to work and she was not allowed to have her own cell

      phone. If she purchased a phone, he would destroy it. He would not allow her

      to visit with her family and did not allow her to have her own personal friends.

      He also had issues with the type of clothing she wore. Gladys summed up his

      behavior as the result of having an insecure personality, which was revealed in

      episodes displaying his jealousy of others.


[5]   At around 5:00 p.m. on July 7, 2016, Livesay, Gladys, and Michael got into

      Livesay’s 1987 white Ford Ranger truck to visit Livesay’s friends, Dave Shankle

      and John Garrett. The front seat of the truck had a bench seat. Livesay drove,

      Gladys sat in the passenger seat, and Michael sat between the two. The three

      frequently visited these friends who lived in Wabash, Indiana.


[6]   After arriving at the house, the group stayed outside, playing basketball with

      Michael. The adults drank beer that John had purchased. At some point, Dave

      may have gone inside the house. Gladys, at some point, had to use the

      restroom after having been there for more than an hour and a half and

      consuming one beer. When she came out of the house, she found Livesay

      sitting in a chair next to the garage, while John and Michael played basketball.

      She could tell that he was unhappy.


[7]   Upon seeing her, Livesay appeared angry and started yelling at Gladys. He

      shouted for all to hear that Gladys was a whore and that she was “probably in

      there f***ing him,” meaning Dave. Tr. Vol. II, p. 70. He took a can of beer


      Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 3 of 13
       that Gladys had intended to drink, squished the can, and poured the beer all

       over her shirt. Id. at 94. After that tirade, Livesay told Gladys that they needed

       to leave. Complying, she and Michael took their customary places on the front

       seat of Livesay’s truck.


[8]    As Livesay drove away from the gathering, several times he reached over young

       Michael’s head to punch his mother Gladys’ face with a closed fist. Gladys

       repeatedly begged Livesay to stop the truck to let her and Michael get out. She

       also opened the passenger door and screamed for help. Livesay responded by

       speeding up and driving through stop lights and stop signs to prevent them from

       getting out of the truck.


[9]    David Harrell and his wife, Mary Beth, were outside their house watering

       flowers in the yard when they observed Livesay’s truck drive past. The truck

       appeared to be moving at a high rate of speed, and they noted that the

       passenger door was somewhat open. Harrell heard a female voice from inside

       the truck screaming, “Help. Help. I need help.” Id. at 40. Harrell ran inside the

       house to grab his cell phone and called 911 to report what he had seen and

       heard. He also provided a description of the vehicle and the direction it was

       traveling.


[10]   Next, Harrell got into his car and drove several miles north of his house in the

       direction he saw the truck being driven. He was concerned that the passenger

       or passengers of the truck might have fallen out or had been allowed to exit the




       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 4 of 13
       truck without means of transportation. Harrell never saw Livesay’s truck again

       and did not find anyone on the side of the road. He then returned home.


[11]   Harrell shared with his wife his amazement that the passenger or passengers

       had not fallen out of the truck. He then decided to investigate to determine

       whether an object had fallen out of the truck through the open door. He walked

       to the intersection and found a white piece of paper in the center of the road

       along the path the truck had traveled. The paper was an old paystub bearing

       both a name and address.


[12]   Harrell called the Wabash County Sheriff’s Department to give them this new

       information and identified himself as the person who had called 911 earlier

       about the incident he had witnessed. An officer was sent to retrieve the

       evidence. The paystub exhibited Livesay’s name and personal information.


[13]   Meanwhile, Livesay had driven Gladys and Michael to Rebecca’s house. Once

       they were inside, Livesay head-butted Gladys several times in front of Michael,

       who was upset and crying. Attempting to defend herself from Livesay, she

       picked up a candle holder—a sconce or a votive—and threw it at Livesay.

       Rebecca, who worked two jobs, one full-time and one part-time, was present

       during this incident and had been relaxing before the three arrived home.


[14]   Gladys testified that she did not have a telephone and Rebecca would only

       allow her to use her cell phone when Livesay was away from the house. After

       the outburst, Livesay left the house at Rebecca’s urging or insistence. Rebecca

       then allowed Gladys to call 911. Because Gladys was out of breath and crying,

       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 5 of 13
       she terminated the call due to her inability to speak. The 911 dispatcher called

       the number to follow up on the terminated call and spoke with Rebecca, who

       answered the phone.


[15]   When Livesay left the house, he left in his truck. Deputy Eric Riggs of the

       Wabash County Sheriff’s Department, who had responded to Harrell’s 911 call,

       observed a truck matching the description given to him by Harrell. The officer

       pulled Livesay’s truck over. Another deputy proceeded to Rebecca’s home and

       spoke with Gladys. Gladys had sustained a black eye and other injuries to her

       head and face. Photographs were taken of her injuries and admitted in

       evidence at trial.


[16]   Livesay was arrested and charged with criminal confinement and domestic

       battery, and the charge was enhanced due to the allegation that it was

       committed in the presence of a child. At the conclusion of the two-day jury

       trial, Livesay was found guilty as charged. The trial court sentenced him to five

       years in the Department of Correction for the criminal confinement conviction

       to be served concurrently with the conviction for domestic battery, for which

       Livesay received a two-year sentence. This appeal ensued.


                                    Discussion and Decision
                         I. Rebuttal Witness and 911 Recordings
[17]   Livesay challenges the admissibility of the testimony of the State’s rebuttal

       witness and the admissibility of the 911 recordings for which a foundation was

       laid during the rebuttal witness’ testimony. He claims that the rebuttal witness’

       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 6 of 13
       testimony should have been excluded because she was not named on the State’s

       pretrial witness list. If her testimony had been excluded, no foundation could

       have been laid for the admissibility of the recordings.


[18]   A trial court has broad discretion to rule on the admissibility of evidence.

       Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). Appellate review focuses on

       whether there was an abuse of that discretion. Id. We will reverse the trial

       court’s decision only when admission of the evidence is clearly against the logic

       and effect of the facts and circumstances and the error affects a party’s

       substantial rights. Id.


[19]   Additionally, a trial court is granted wide discretion in deciding whether to

       allow testimony from a witness not listed on a pretrial discovery witness list.

       Liddell v. State, 948 N.E.2d 367, 370 (Ind. Ct. App. 2011). “Although discovery

       matters are generally discretionary with the trial court it is ordinarily considered

       improper for a trial court to allow a witness who was not listed in discovery to

       testify unless the remedy of a continuance is granted to the other party to meet

       such testimony.” Mauricio v. State, 476 N.E.2d 88, 94 (Ind. 1985). The

       exception to this rule is where a witness is brought in on rebuttal. Id.


[20]   Prior to trial, the State provided the defense with copies of the 911 recordings.

       The recordings, which were later admitted during rebuttal as Exhibit 11,

       contained the first call that was terminated, and the dispatcher’s call-back, re-

       establishing communication, this time with Rebecca. In the ensuing




       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 7 of 13
       conversation between Rebecca and the dispatcher, Rebecca can be heard saying

       the following:

               Rebecca:         My son..My son and his girlfriend I guess. I am not
                                sure exactly what happened other than it is apparent
                                he must have smacked her and then he came in here
                                and they’re arguing and the next thing I know
                                sconces are flying through the air. . .
               Dispatcher: Is she injured?
               Rebecca:         Her eye. She said he hit her in the eye before she
                                got in the house.
               Dispatcher: Does she need an ambulance?
               Rebecca:         No.
               Dispatcher: Do you want officers?
               Rebecca:         Do you want an officer here or do you want me to
                                take you to your sister’s. That’s up to you dear.
       Exhibit 11, 00:51-01:32. The dispatcher, Darcy Corn, asked Rebecca if Livesay

       was still at the house. Rebecca replied that he was not and that he must have,

       as she put it, run off again. Corn indicated that Rebecca and Gladys should

       remain there and an officer would be sent to the address because a 911 call had

       been placed.


[21]   The only witness to testify for the defense was Rebecca. During her testimony,

       however, which was just two months after the altercation, she testified factually

       different about the incident. She testified that on the day of the incident she

       had to work only one of her two jobs, and that her shift ended between 2:30 and

       3:00 p.m. After coming home, she took a forty-five minute nap, did a few

       things around the house, talked with her employer at her part-time job about

       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 8 of 13
       future scheduling, and took a shower. She testified that Gladys was standing in

       the kitchen when she got out of the shower and that Gladys was yelling at her.

       She asked Gladys why her shirt was wet, and Gladys explained that Livesay

       had poured beer on her because he was upset that she was bringing an open

       container in his truck.


[22]   Rebecca said that Livesay entered the house to contact a cousin in order to

       avoid arguing with Gladys any more. She testified that Livesay told Gladys not

       to argue with his mother. After that, he left the house. She stated that Gladys

       changed from her beer-drenched clothes and then made a couple of phone calls,

       or used the cell phone to send messages on Facebook. Rebecca testified that

       afterward, she and Gladys went out of the house to smoke a cigarette, at which

       time she told Gladys that she needed to find somewhere else to stay that night.


[23]   Rebecca then testified that Livesay returned after being gone for thirty to thirty-

       five minutes. She stated that Gladys was still screaming and that Livesay was

       trying to keep his distance from Gladys. Rebecca was not scheduled to work

       her part-time job that evening. However, she claimed that Gladys was upset

       because both she (Rebecca) and Livesay were going to be gone from the house.

       She testified that she considered Michael to be her grandson; although she had

       other grandchildren, she spent more money supporting him since he lived with

       her. Rebecca further testified that she offered to take Gladys to the Sheriff’s

       Department in order to obtain assistance at a shelter.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 9 of 13
[24]   Rebecca testified that as she was getting her keys to give Gladys a ride

       somewhere, she received a call on her cell phone, which she claimed she did

       not realize had been returned to her purse. She stated that she handed the

       phone to Gladys, who declined to take it. Subsequently, Rebecca answered the

       second telephone call and discovered it was a 911 dispatcher returning a

       terminated call. She denied telling an officer that Gladys asked to use the

       phone to call 911.


[25]   When asked if there was any physical contact between Gladys and Livesay on

       July 7th, Rebecca testified that Livesay had acted like he was going to head-butt

       Gladys, but she believed he had not done so since Gladys did not move in

       response to his action. Rebecca then testified that the next thing that happened

       was Gladys throwing the candle holders at Livesay.


[26]   Therefore, at the conclusion of Rebecca’s testimony, her credibility became a

       critical issue because it contradicted not only the 911 recordings, which were

       previously disclosed to the defense, but Gladys’ testimony as well.


[27]   Before Corn’s rebuttal testimony, the defense objected to her testimony on the

       basis that her name did not appear on the pre-trial witness list. In particular,

       the defense argued that the State had already cross-examined Rebecca and that

       “this goes more towards challenging her credibility than refuting any defense in

       this matter.” Tr. Vol. II, p. 225. The trial court overruled the objection to

       Corn’s testimony noting that, “She’s not offering anything of substance. It’s the

       content of the 911 calls, particularly the third one.” Id. at 226.


       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 10 of 13
[28]   Corn testified and laid the foundation for the admission of Exhibit 11, the

       recording of the two 911 conversations. Livesay did not object to the admission

       of the recordings. The recordings were played for the jury and the State rested.


[29]   In Mauricio, a rebuttal witness, who had not been revealed in discovery, was

       called to testify solely for the purpose of refuting the testimony of the defense’s

       alibi witnesses. On appeal, Mauricio claimed that the State was aware of the

       rebuttal witness well before trial and wrongly failed to disclose her potential

       testimony to the defense. As is pertinent to the present appeal, the defense

       argued that a request for continuance would not have aided the defense because

       the specific purpose of the witness’ testimony was to discredit the testimony of

       the alibi witnesses. The Supreme Court held that the trial court did not abuse

       its discretion by allowing this testimony because the purpose of calling a

       rebuttal witness is to respond to testimony presented by the defense. 476

       N.E.2d at 94.


[30]   In the present appeal, prior to trial, the State and the defense were aware of the

       substance of the 911 calls. Exhibit 11 was admitted into evidence without

       objection. Corn’s rebuttal testimony primarily was limited to laying a

       foundation for the admission of the contents of the 911 calls. Further, to the

       extent she testified about the substance of those calls, her testimony was

       cumulative of the recordings, which were admitted without objection. The trial

       court did not abuse its discretion.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 11 of 13
                                       II. Motion for Mistrial
[31]   Next, Livesay argues that the trial court abused its discretion by denying his

       motion for mistrial, instead choosing to admonish the jury.


[32]   The decision to grant or deny a motion for mistrial lies within the sound

       discretion of the trial court. Isom v. State, 31 N.E.3d 469, 480 (Ind. 2015).

       Upon review of the trial court’s decision, we afford great deference to the trial

       court and review the decision solely for an abuse of that discretion. Id. The

       trial court is in the best position to assess the overall circumstances of an error

       and its probable impact on the jury. Lucio v. State, 907 N.E.2d 1008, 1010 (Ind.

       2009). “The overriding concern is whether the defendant ‘was so prejudiced

       that he was placed in a position of grave peril.’” Id. (quoting Gill v. State, 730

       N.E.2d 709, 712 (Ind. 2000)). “The remedy of mistrial is extreme, strong

       medicine that should be prescribed only when no other action can be expected

       to remedy the situation at the trial level.” Id. at 1010-11(citations and quotation

       omitted).


[33]   During the State’s rebuttal closing argument, the following

       statements/comments were made by the prosecuting attorney and Gladys:

               STATE:           Bring your common sense in when you go back and
                                start your deliberation and as you talk about this
                                case. [Defense Counsel] said this case is important
                                to Buddy Livesay. Sure it is. But it’s also important
                                for Gladys Kain.
               GLADYS: And my six-year-old son.


       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 12 of 13
       Tr. Vol. III, p. 11. At that point, the parties approached the bench and

       discussed the defense’s requests that Gladys be removed from the court room

       and that a mistrial, or at least an admonishment be given. The trial court did

       not declare a mistrial, but admonished the jury to disregard Gladys’ statement

       when reaching a verdict and removed Gladys from the court room.


[34]   A defendant is entitled to a fair trial, not a perfect one. Inman v. State, 4 N.E.3d

       190 (Ind. 2014). A properly submitted admonition of the jury is presumed to

       cure any error in the admission of evidence. Isom, 31 N.E.3d at 481. Further,

       on review, we must presume that the jury obeyed the trial court’s instructions in

       reaching its verdict. Id. While the arguments of counsel are not evidence,

       Gladys, who had testified at trial, interrupted the State’s rebuttal closing with

       an emotional outburst. However, the jury had already heard Gladys’ testimony

       that her son witnessed both incidents. The removal of Gladys from the court

       room and admonishment to the jury was sufficiently curative and not an abuse

       of discretion.


                                                Conclusion
[35]   In light of the foregoing we affirm the trial court’s judgment.


[36]   Affirmed.


       Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1610-CR-2462 May 5, 2017   Page 13 of 13
