MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Apr 24 2018, 8:40 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
Valerie K. Boots                                         James B. Martin
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tiara Peoples,                                           April 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1707-CR-1672
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa Borges, Judge
Appellee-Plaintiff.                                      The Honorable Anne Flannelly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1607-F5-27047



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018            Page 1 of 15
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Tiara Peoples (Peoples), appeals her conviction for

      battery resulting in bodily injury, a Level 5 felony, Ind. Code, § 35-42-2-1(c)(1).


[2]   We affirm.


                                                   ISSUES
[3]   Peoples presents us with two issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by excluding evidence of the

              child victim’s panic attack, suffered six months prior to the charged

              criminal conduct; and

          (2) Whether the State committed prosecutorial misconduct which placed

              Peoples in a position of grave peril.


                      FACTS AND PROCEDURAL HISTORY
[4]   In the late evening on July 12, 2016, Warren McDowell (McDowell) noticed a

      woman, holding a baby, and a little boy enter apartment J, which was across

      the hall from his own apartment, at Hosbrook Street in Fountain Square,

      Indianapolis, Indiana. The woman was later identified as Peoples, and the little

      boy was her eight-year-old son, M.Q. M.Q. was staying with Peoples for the

      summer but lived with his father, Martise Quiller (Quiller), in Georgia for most

      of the year. Peoples and M.Q. had just returned from having dinner at a local

      restaurant, and Peoples was talking to M.Q. in a “mean” tone of voice.

      (Transcript Vol. II, p. 131). M.Q. testified that Peoples bit M.Q. on his eyes,

      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 2 of 15
      his hands, and his nose and the bite wounds “hurted [sic] pretty bad.” (Tr. Vol.

      II, p. 131).


[5]   A little after McDowell had observed Peoples and M.Q. enter the apartment,

      McDowell heard a sound like “somebody busted the door open,” and looked

      across the hall. (Tr. Vol. II, pp. 116-17). He saw M.Q. knocking on a

      neighbor’s door, crying and pleading that his “mam’s trying to kill [him].” (Tr.

      Vol. II, p. 132). Before McDowell could put on his shoes and go outside to

      inquire what was going on, M.Q. had run down to the parking lot. As

      McDowell was walking down, he noticed Peoples “hollering” at M.Q. to “get

      his butt upstairs[.]” (Tr. pp. 119-20).


[6]   M.Q. continued running and ran towards a police car at the intersection of

      Shelby Sreet and Hosbrook. Indianapolis Metropolitan Police Officer Joshua

      Kreutzberger (Officer Kreutzberger) was heading back to roll call at

      approximately 9:30 p.m., when he observed M.Q. standing at the northwest

      corner of the intersection. Initially, Officer Kreutzberger thought M.Q. was just

      trying to say “hello” but then he noticed him to be upset, crying, and shaking.

      (Tr. Vol. II, p. 164). M.Q. told the officer that “his mother [had] assaulted

      him.” (Tr. Vol. II, p. 165). Officer Kreutzberger “turned on the dome light in

      [his] car and [M.Q.] stuck his hands inside [his] window and repeated what he

      said, and that’s when [the officer] saw all the little marks and, you know, the

      blood on all the – all of his knuckles.” (Tr. Vol. II, p. 165). The officer also

      observed a cut underneath M.Q.’s right eye, a cut between his nose and his left

      eye, and his left eye and bottom part of his right eye were slightly swollen. (Tr.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 3 of 15
      Vol. II, p. 175). Because of M.Q.’s visible injuries, Officer Kreutzberger

      requested emergency medical assistance. The fire department, the emergency

      medical technicians, and three other officers responded to Officer

      Kreutzberger’s call. M.Q. was transported to Riley Children’s Hospital by

      ambulance.


[7]   Indianapolis Metropolitan Police Officer Frank Vanek (Officer Vanek) arrived

      on the scene and talked to McDowell. Officer Vanek also knocked on Peoples’

      apartment door, but no one responded. Approximately one hour later, Peoples

      called in a missing person report and Officer Vanek was advised that Peoples

      was on her way to Riley Children’s Hospital. Peoples did not arrive at the

      hospital until 11:30 p.m. Officer Vanek spoke with Peoples upon her arrival.

      Peoples explained to the officer that M.Q. had become upset and had run out of

      the apartment because she had contacted his father to come get his son “right

      now” after M.Q. misbehaved. (Tr. Vol. II, p. 214). Peoples said that she ran

      after M.Q. to find him.


[8]   On July 15, 2016, the State filed an Information, charging Peoples with Count

      I, battery resulting in injury to a person less than 14 years of age, a Level 5

      felony, I.C. § 35-42-2-1(c); and Count II, neglect of a dependent resulting in

      bodily injury, a Level 5 felony, I.C. § 35-46-1-4(a). Two days prior to trial, the

      trial court conducted a final pretrial conference at which the parties’ motions in

      limine were addressed and decided upon. The trial court granted the State’s

      motion in limine pertaining to any questions, comments, testimony, references,

      or opinions regarding M.Q.’s behavior and/or mental issues. The trial court

      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 4 of 15
       granted Peoples’ motion as it concerned any evidence of allegations of prior

       violence or neglect involving Peoples and her children, and as it pertained to

       “photos of the alleged victim that show scars or marks on the alleged victims

       [sic] body that appear older, healed, and not possibly related to these

       allegations.” (Appellant’s Conf. App. pp. 81-82).


[9]    On June 17, 2017, the trial court conducted a one-day jury trial. Prior to

       presenting evidence, the State moved to dismiss Count II, Level 5 felony

       neglect of a dependent, which was granted by the trial court. At the close of the

       evidence, the jury returned a guilty verdict on Count I, Level 5 felony battery

       resulting in injury to a person less than 14 years of age. On June 30, 2017, the

       trial court held a sentencing hearing and sentenced Peoples to six years on

       Count I.


[10]   Peoples now appeals. Additional facts will be provided if necessary.


                       FACTS AND PROCEDURAL HISTORY
                                            I. Admission of Evidence


[11]   Peoples contends that the trial court abused its discretion by excluding evidence

       of an anxienty attack suffered by M.Q. six months prior to the instant charges.

       Maintaining that this evidence was relevant to the jury’s assessment of M.Q.’s

       credibility, she asserts that its exclusion affected her ability to present a

       complete defense.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 5 of 15
[12]   The admission or exclusion of evidence is a matter that is generally entrusted to

       the discretion of the trial court. See Pribie v. State, 46 N.E.3d 1241, 1246 (Ind.

       Ct. App. 2015), trans. denied. Therefore, a trial court’s ruling excluding

       evidence is reviewed on appeal for an abuse of discretion. Tibbs v. State, 59

       N.E.3d 1005, 1011 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion

       occurs where the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before the court. Id. Moreover, the trial court’s

       ruling will be upheld on appeal if it is sustainable on any legal reason supported

       by the record, even if it is not the reason used by the trial court. Id.


[13]   During the testimony of Quiller, M.Q.’s father, Peoples requested the trial

       court’s permission to “ask a question about [M.Q.’s] ability to perceive.” (Tr.

       Vol. II, p. 217). She wanted to elicit testimony from Quiller about a nightmare

       M.Q. had experienced approximately six months prior to the charged incident.

       Peoples represented that “M.Q. had previously (inaudible) for hallucinations so

       I believe that that is relevant, just ask him about that.” (Tr. Vol. II, p. 217).

       The trial court denied the request as being “irrelevant” and disallowed the line

       of questioning. (Tr. Vol. II, p. 218).


[14]   During her offer to prove, Peoples questioned Quiller about the incident as

       follows:


               [Peoples]: Mr. Quiller, in January of 2016, you took your son
               M.Q. to the hospital, correct?
               [Quiller]: Well –
               [Peoples]: For hallucinations?


       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 6 of 15
               [Quiller]: No. My son, he had a bad migraine and he had a[n]
               anxiety attack and they gave us anxiety medicine. That’s about
               it. He had a dream that he had spiders on him, and I took him to
               the hospital because he was acting like they was on him.
               [Peoples]: Even when he was awake?
               [Quiller]: Yes, ma’am.
               [Peoples]: And it was long after he had woken up?
               [Quiller]: Right.
               [Peoples]: And it was sustained [sic] believing that the spiders
               were on him?
               [Quiller]: Well, I mean, well, anything that touched him, that’s
               what he was freaking out about. If his clothes rubbing against
               him, you do like that, that’s the only reason, you know, but --
               [Peoples]: And –
               [Quiller]: -- it’s not hallucinations.
               [Peoples]: Okay. But you had called [Peoples] and told her that
               he was hallucinating?
               [Quiller]: No, I didn’t say he was hallucinating. That’s not –
               that’s not – that’s not what I said. He ha[d] a[n] anxiety attack.

       (Tr. Vol. II, pp. 224-25). After receiving additional argument from the parties,

       the trial court concluded that “the anxiety attack, the bad nightmare that was

       testified to by [Quiller], in January of 2016, is irrelevant as to the allegations

       regarding July 12, 2016.” (Tr. Vol. II, p. 228).


[15]   “Relevant evidence” is evidence that “has any tendency to make a fact more or

       less probable than it would be without the evidence.” Ind. Evidence Rule

       401(a). Relevant evidence may be excluded if its probative value is

       substantially outweighed by the danger of unfair prejudice, confusion of the

       issues, or misleading the jury. See Evid. R. 403.


[16]   The credibility of a witness may be challenged by evidence “showing a defect of

       capacity in the witness to observe, remember or recount the matters testified

       about.” Lusher v. State, 390 N.E.2d 702, 704 (Ind. Ct. App. 1979). In Lusher,
       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 7 of 15
       we reversed a conviction where the trial court excluded evidence that the main

       witness experienced problems with flashbacks or hallucinations due to a drug

       addiction. Id. When experiencing an hallucination, the witness could

       hallucinate anything he wanted to and it would happen. Id. Because it was

       apparent that this could have cast serious doubt on the witness’s ability to recall

       and perceive the instant events, the appellate court reversed the trial court’s

       decision to exclude the evidence. Id. On the other hand, in Denny v. State, 524

       N.E.2d 1301, 1303 (Ind. Ct. App. 1988), we noted that two isolated incidents of

       hallucinating occurring six months and one month prior to the incident and

       without a showing of the cause for the witness’s problem was not sufficient to

       admit this evidence.


[17]   Here, the evidence belied Peoples’ characterization of the incident as

       “hallucinations” suffered by M.Q. Rather, M.Q.’s father described the incident

       as a single anxiety attack as a result of a bad dream. In Lusher, the

       hallucinations were frequent, incapacitating, and unpredictable. In the present

       case, the evidence only showed one isolated incident, which was chracterized as

       an anxiety attack, not even an hallucination. There was no showing for the

       cause of M.Q.’s problems, nor was there any showing of a pattern of similar

       incidents which would cast doubt on his ability to perceive and remember. A

       child’s short-term emotional reaction to the powerful images of a dream is not

       unusual or indicative of an inability to distinguish reality from illusion, or to

       have illusions about being beaten. Thus, we conclude that the trial court did




       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 8 of 15
       not abuse its discretion in excluding the proffered evidence as it was not

       relevant to make the instant offense more or less probable. 1


                                             II. Prosecutorial Misconduct


[18]   Next, Peoples contends that she was placed in grave peril due to the State’s

       introduction of inadmissible and prejudicial evidence, as well as by the State’s

       misrepresentations to the jury. In reviewing a claim of prosecutorial

       misconduct raised in the trial court, we must determine (1) whether misconduct

       occurred, and if so, (2) “whether the misconduct, under all the circumstances,

       placed the defendant in a position of grave peril to which he or she would not

       have been subjected” otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)

       (citing Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). The gravity of peril is

       measured by the probable persuasive effect of the misconduct on the jury’s

       decision rather than the degree of the impropriety of the conduct. Id. To

       preserve a claim of prosecutorial misconduct, the defendant must—at the time

       the alleged misconduct occurs—request an admonishment to the jury, and if

       further relief is desired, move for a mistrial. Id. Because Peoples identified two




       1
         Peoples also claims that the trial court’s exclusion of the evidence deprived her of her constitutional right to
       present a defense. Nevertheless, the right to present a defense is not absolute. “The accused does not have
       an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under
       standard rules of evidence.” Schermerhorn v. State, 61 N.E.3d 375, 379 (Ind. Ct. App. 2016), trans. denied. In
       Indiana, evidence must be relevant to be admissible. Id. As we already determined that evidence of M.Q.’s
       single anxiety attack was irrelevant to the instant offense, Peoples’ constitutional right to present a defense
       was not violated.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018                Page 9 of 15
       instances of purported prosecutorial misconduct, we will discuss each incident

       in turn.


                                               A. State’s Exhibit 1


[19]   At the outset of trial, the trial court discussed State’s Exhibit 1 with the parties

       outside the presence of the jury. State’s Exhibit 1 is a photo of M.Q. showing

       the injuries to his face. Peoples expressed a concern that “while it shows the

       boy’s face, it also shows the boy’s chest, which has several scars. Our position

       would be if we could crop the photo, that we would have no objection to it, just

       to show just the chin and above.” (Tr. Vol. II, pp. 9-10). The trial court agreed

       and instructed the State to crop the portion of the photo below a small scar that

       can be detected just under M.Q.’s right collarbone.


[20]   During M.Q.’s testimony, the trial court granted the State’s permission to

       publish State’s Exhibits 1 through 8, depicting M.Q.’s injuries. When the State

       started to display the photographs digitally via Powerpoint, the unredacted

       photo was momentarily displayed on the screen. Peoples immediately

       requested the photo to be taken down, contending that it violated the trial

       court’s ruling in limine. The State represented that they had cropped the photo

       and mistakenly believed that the cropped photo had been integrated in the

       Powerpoint display. Peoples moved for a mistrial. The trial court stated:


               By showing the [E]xhibit that’s been modified, they will walk in
               and think that that’s what was flashed. That was a very quick
               view. Personally, I don’t think that it was long enough for
               anybody to see what you’re concerned about. I’ll give you an

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 10 of 15
               opportunity to make your motion. It will be outside the presence
               of the jury. And at this time I think it’s showing, that [E]xhibit –
               and show me all eight exhibits right now. Show me – show them
               to me right now.


       (Tr. Vol. II, p. 139). The trial court allowed the State to change the manner of

       publication to passing the photos one by one to the jury. Upon counsels’ return

       to their seats, the State again for a second or two published the unredacted

       Exhibit 1 on the screen. “Both counsel scrambled. [The State] tried to

       physically cover the screen[.]” (Tr. Vol. II, p. 154). After taking the digital

       photo down again, the trial court admonished the jury:


               The [c]ourt now directs the jury that you’re only to consider
               State’s Exhibits 1 through 8 that have been personally distributed
               to you to view, and you are to disregard and not consider any
               picture that you may have seen on the screen.


       (Tr. Vol. II, p. 140).


[21]   During recess, the trial court heard Peoples’ argument on her motion for

       mistrial. Arguing in support of a mistrial, Peoples asserted that, in her estimate,

       “the [E]xhibit was only up for a second;” however, even if only one juror saw

       the uncropped exhibit, “there’s the potential that he’ll tell the eleven other

       jurors about the other injuries he saw.” (Tr. Vol. II, pp. 153-54). After hearing

       the State’s arguments, the trial court ruled, in pertinent part, that:


               With respect to the flashing of the original exhibit by the State,
               Exhibit No. 1, which showed a scar on the alleged victim’s right
               chest area, it is the [c]ourt’s view that it truly was a very quick
               flash, that from the distance from the TV to the jury box, that I
       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 11 of 15
        don’t think they could have detected that scar. Which was not
        easily detected. And it was on the screen so quickly and then off
        the screen that I don’t think that there was any peril that
        [Peoples] suffered.


        With respect to the size of State’s Exhibit No. 1 as compared to
        the other [E]xhibits, 2 through 8, first, [Peoples] did not object to
        State’s Exhibits 1 through 8. And State’s Exhibit 1 was
        examined by [Peoples] at the time that they did not object to its
        admissibility.


        I did note that when I told the State that in lieu of the TV we
        were going to the pictures, I did note that that picture was a
        different size, and that’s why I said they go around one at a time,
        not as a group to emphasize the difference in size.


        I also don’t think even if they were distributed as a group that the
        fact that State’s Exhibit No. 1 is shortened, necessarily poses any
        problem to the defense.


        I also admonished the jury to only consider those exhibits that
        they saw that were personally distributed to them and they were
        not to consider anything that they may have viewed on the
        screen, and I don’t think that that quick view of that picture from
        that distance—first, I don’t think it was seen. I don’t think – I
        disagree with the statement that it was likely that at least one
        juror noticed that scar because I don’t think it was noticeable.


        And then we went to the next scene, the next part of the screen
        and we had a series of photographs that were small around the
        screen, I don’t think it was – I don’t think they could have
        observed this.




Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 12 of 15
       (Tr. Vol. II, pp. 156-57). Accordingly, the trial court denied Peoples’ request

       for a mistrial.


[22]   Peoples now contends that the State imposed an evidentiary harpoon by

       introducing inadmissible evidence with the deliberate purpose of prejudicing the

       jury against her. See Perez v. State, 728 N.E.2d 234, 237 (Ind. Ct. App. 2000)

       (“An evidentiary harpoon is the placing of inadmissible evidence before the jury

       so as to prejudice the jurors against the defendant.”), trans. denied. Despite the

       State publishing the unredacted Exhibit 1 twice, we cannot conclude that the

       State’s publication was intentional. Prior to trial, the State had conceded that

       the old scars were not related to the instant incident and agreed to crop Exhibit

       1. Unfortunately, the State did not update its digital display of the Exhibits and

       the unredacted version was momentarily displayed. This happened not once

       but twice. Based on the limited duration of the appearance of the unredacted

       Exhibit on the screen and the non-prominent visibility of the scar itself, we

       agree with the trial court that the State’s behavior was careless to say the least,

       but did not amount to the deliberate conduct necessary to raise to an

       evidentiary harpoon which would have placed Peoples in grave peril.

       Moreover, the trial court admonished the jury and we must “presume the jury

       followed the trial court’s admonishment and that the excluded testimony played

       no part in the jury’s deliberation.” Street v. State, 30 N.E.3d 41, 50 (Ind. Ct.

       App. 2015), trans. denied.


                                           2. Credibility of Witnesses



       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 13 of 15
[23]   As a second instance of prosecutorial misconduct, Peoples points to the State’s

       rebuttal argument. During rebuttal, the State presented that:


               What I’m saying is this, you heard the evidence today. You
               know you have your gut feeling, the common sense that we
               discussed earlier. In order for you to believe [Peoples], that
               means you don’t believe M.Q.


       (Tr. Vol. III, pp. 49-50). Peoples now maintains that the State’s comment

       amounted to misconduct as it “improperly suggested that [Peoples] needed to

       present evidence contradicting M.Q.’s testimony when the State has the burden

       of proof.” (Appellant’s Br. p. 26).


[24]   “A prosecutor must confine closing argument to comments based upon the

       evidence in the record, though he may argue both law and facts and propound

       conclusions based upon his analysis of the evidence.” Lambert v. State, 743

       N.E.2d 719, 734 (Ind. 2001). It is not improper for the prosecutor to focus on

       the uncontradicted nature of the State’s case. Harrison v. State, 901 N.E.2d 635,

       645 (Ind. Ct. App. 2009). However, weighing the credibility of the witnesses is

       within the province of the jury. Gantt v. State, 825 N.E.2d 874, 878 (Ind. Ct.

       App. 2005). Nevertheless, we cannot agree with Peoples that the State’s

       statement amounted to a mischaracterization of the evidence. The entire case

       revolves around two individuals: M.Q. and Peoples. Both testified and their

       testimonies were diametrically opposed. Accordingly, believing one witness

       would necessarily amount to disbelieving the other. It is well settled that a

       prosecutor may properly comment on the credibility of a witness as long as the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 14 of 15
       assertions are based on reasons arising from the evidence. Cooper v. State, 854

       N.E.2d 831, 836 (Ind. 2006). Here, the State did not inform the jury which

       witness to believe, rather its observation was a direct consequence of the

       testimonies of both witnesses. Accordingly, the State did not commit

       prosecutorial misconduct.


[25]   Continuing her argument, Peoples suggests that a combination of the accidental

       display of the unredacted Exhibit 1 together with the State’s closing argument

       cumulatively placed her in a position of grave peril. We disagree. As we did

       not find a single instance of prosecutorial error, there is no cumulative effect

       which would have resulted in an unfair trial.


                                             CONCLUSION
[26]   Based on the foregoing, we hold that the trial court properly excluded evidence

       of the child victim’s panic attack, suffered six months prior to the charged

       criminal conduct; and the State did not commit prosecutorial misconduct.


[27]   Affirmed.


[28]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1672 | April 24, 2018   Page 15 of 15
