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                           Jun 23 2020, 9:48 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
Samuel J. Beasley                                        Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles F. Carmen,                                       June 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-166
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Mary G. Willis,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         18C01-1804-F6-236



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020                     Page 1 of 6
                                          Case Summary
[1]   On October 4, 2019, Charles Carmen was convicted of Level 6 felony domestic

      battery resulting in moderate bodily injury and ultimately sentenced to one year

      suspended to probation. Carmen contends that the trial court erred by denying

      him the opportunity to cross-examine Elizabeth Riggs regarding her pending

      criminal charges. We affirm.



                            Facts and Procedural History
[2]   Early in the morning on April 15, 2018, Carmen punched Riggs, with whom he

      was romantically involved, in the nose, breaking it. On April 20, 2018, the State

      charged Carmen with Level 6 felony domestic battery resulting in moderate

      bodily injury. On September 26, 2019, a bench trial was held, at which the State

      called Riggs as a witness. During direct examination, the State asked Riggs if

      she was going to receive any benefit from testifying, stating


              [STATE:] Do you still have cases pending here in Delaware
              County?

              [RIGGS:] Yeah.

              [STATE:] And as a result of your testimony here today in Court,
              have you been offered any leniency or breaks in any of the cases
              that you currently have pending in our county?

              [RIGGS:] No, none at all.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020   Page 2 of 6
        [STATE:] Has any mention been made of that?

        [RIGGS:] No.

        [STATE:] Is it your understanding that you’re getting any
        leniency for your testimony today.

        [RIGGS:] No, not at all.


Tr. Vol. II pp. 63–64. During cross-examination, Carmen’s counsel did not

question Riggs regarding her pending charges; however, after Riggs testified

that she did not consider herself to be a violent person, Carmen’s counsel

attempted to question her regarding her criminal history, prompting an

objection from the State. Carmen’s counsel argued that


        once [Riggs] has said she doesn’t consider herself to be a violent
        person, I can inquire as to specific instances of bad conduct and
        ask her whether she thinks that that constitutes her being a
        violent person. (Inaudible) either change her opinion or stand by
        her opinion that she’s not violent in light of this evidence. She
        says her opinion is she’s not a violent person. I then get to inquire
        as to specific bad acts to find out if her opinion considers those
        bad acts.


Tr. Vol. II p. 79. The trial court sustained the State’s objection, and Carmen’s

counsel made the following offer of proof:


        All right. Judge, the State provided in discovery a criminal
        background check of [Riggs] so this is nothing of surprise. It was
        also discussed previously with counsel. And as an offer of proof,
        I would present evidence to the Court indicating that [Riggs] has
        been found – been charged and found guilty of intimidation. In
        the same cause, there was a battery by bodily waste. There was
        also a resisting law enforcement which were each dismissed.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020   Page 3 of 6
              I would also present evidence that she was charged with
              domestic – with a disorderly conduct, as well as, a public
              intoxication. Additionally, there was a separate disorderly
              conduct charge. Then in another instance, she was charged with
              battery and disorderly conduct. Again, a subsequent charge –
              arrest and charge battery – domestic battery. Again, a subsequent
              charge, domestic battery. Another arrest and charge for battery
              with injury. Another charge for battery with injury to law – or a
              battery with no injury to a law enforcement officer, as well as,
              resisting law enforcement. And that’s in addition obviously to the
              attempted robbery that already been put into evidence.

              I think it’s absolutely germane to her credibility as a witness if
              she’s going to maintain that she’s not a violent person, it’s
              absolutely pertinent that this Court consider those facts and that
              she doesn’t consider those to be the acts of a person who is a
              violent person.


      Tr. Vol. II pp. 79–80. Following trial, the court took the matter under

      advisement. On October 4, 2019, the trial court found Carmen guilty as charged

      and ultimately sentenced him to one year suspended to probation.



                                 Discussion and Decision
[3]   Carmen contends that the trial court erroneously denied him the opportunity to

      cross-examine Riggs regarding her pending criminal charges in order to

      demonstrate that her testimony was biased in order to curry favor with the State

      regarding the resolution of her pending criminal charges. At trial, however,

      Carmen’s arguments and offer of proof only indicate that he sought to question

      Riggs regarding her prior convictions and/or charges. Because Carmen makes

      his bias argument regarding Rigg’s pending charges for the first time on appeal,

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020   Page 4 of 6
      it is waived for appellate review. See Washington v. State, 808 N.E.2d 617, 625

      (Ind. 2004) (noting that an argument or issue that is not raised by a party at the

      trial court level is waived on appellate review). Moreover, while Riggs testified

      on direct examination that she was not receiving any benefit or leniency in the

      resolution of her pending charges in exchange for her testimony, Carmen never

      attempted to cross-examine Riggs regarding her pending charges. Carmen’s

      entire argument is based on a false premise, which is that the trial court denied

      him the opportunity to ask certain questions even though he never attempted to

      ask the questions. Put another way, Carmen cannot argue that the trial court

      denied him the opportunity to question Riggs about her pending criminal

      charges when he never sought to question her regarding her pending criminal

      charges.

[4]   Waiver notwithstanding, even assuming, arguendo, that the trial court erred, it

      could only be considered harmless error. The United States Supreme Court has

      held that “some constitutional errors … are so unimportant and insignificant

      that they may, consistent with the Federal Constitution, be deemed harmless.”

      Brecht v. Abrahamson, 507 U.S. 619, 630 (1993) (internal quotations omitted).

      Errors under the Sixth Amendment are subject to harmless error analysis.

      Collins v. State, 822 N.E.2d 214, 221 (Ind. Ct. App. 2005), trans. denied. “Error is

      deemed harmless when there is no substantial likelihood the error contributed

      to the verdict, or, in other words, that the error was unimportant.” Id. (internal

      quotations omitted).




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020   Page 5 of 6
[5]   Here, the record is devoid of any physical evidence indicating an alternative

      cause of Riggs’s injury other than Carmen punching her in the nose. In fact,

      when Carmen asked Dr. Douglas Kuxhausen if the type of injury that Riggs

      sustained could have been inflicted by falling, he stated that “[w]e usually do

      not see facial injuries from a person that is awake and falls, because that’s the

      first thing they usually block is their face[.]” Tr. Vol. II p. 23. The only evidence

      that supports an alternative cause of Riggs’s injury is Carmen’s self-serving

      testimony, which the trial court was not entitled to believe and did not. Carmen

      has failed to establish that the trial court abused its discretion.


[6]   The judgment of the trial court is affirmed.


      Baker, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020   Page 6 of 6
