MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Feb 14 2020, 7:55 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana                                      J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Willie Steverson,                                        February 14, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2286
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Gary Schutte,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1905-F5-3719



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020                 Page 1 of 15
[1]   Willie Steverson appeals his conviction for battery as a level 5 felony. He raises

      two issues:


        I.    Whether the trial court abused its discretion in excluding evidence of
              the victim’s pending CHINS case; and

       II.    Whether the court abused its discretion in instructing the jury.

      We affirm.


                                      Facts and Procedural History

[2]   On May 17, 2019, B.C. was walking home and encountered Steverson, whom

      she had been dating on and off for three years. Steverson was hostile at first

      and called her a “b----,” and B.C. went with him inside an apartment located

      near the intersection where they had met. Inside, “[e]veryone was getting

      high,” Steverson immediately pulled out a pipe, and he and B.C. began

      smoking methamphetamine. Transcript Volume II at 41. At some point,

      Steverson requested that he and B.C. go for a walk, and as they left, she did not

      have her cellphone. The pair walked down an alley, Steverson “kept saying,

      baby you know I love you right, you know I love you,” and B.C. “just got a sick

      feeling” in her stomach. Id. at 43. Upon entering a side door of an abandoned

      residence, “[i]t just turned all bad,” Steverson became angry and told B.C. that

      he saw messages on her phone and thought she was cheating on him, and B.C.

      grew frantic. Id. at 44. Steverson dragged her to a hallway, hit her, called her a

      “wh---” and a maggot, and stated that he should kill her. Id. He pulled her

      hair, dragged her into a bedroom, and smacked her with an open fist. She saw

      someone in the neighbor’s yard, and when she fell into a closet, Steverson said,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 2 of 15
      “B----, if you do not, if you don’t be quite [sic],” and “I’m going to lock you in

      this closet and catch this house on fire.” Id. at 45-46. He entered the closet,

      closed the door, and hit her again with an open fist. She pled with him that she

      could not breathe, they exited the closet, and he hit her with a closed fist

      because she told him she did not cheat on him. Steverson then accused B.C. of

      stealing a pipe, she explained she did not have anything of his on her, and for

      the subsequent thirty to forty-five minutes, he smoked while she searched for

      the pipe. At some point, he choked her with his hands and “kept hitting” her

      head with a metal flashlight. Id. at 49. Giving up on searching for the pipe,

      they exited the house from the back door, and Steverson said, “B----, don’t

      make a scene.” Id. at 47.


[3]   After cutting through the backyard and alley, B.C. saw some people down the

      street, screamed, and “made a scene hollering about [her] cellphone and took

      off” to her house. Id. at 49. When she arrived, her roommate noticed her

      demeanor and stopped her, and B.C. broke down, explained what had

      happened, and called the police. Evansville Police Officer Jeff Worthington

      responded to the dispatch, found B.C. distraught, crying, and hyperventilating,

      and called an ambulance, which took her to the hospital. Evansville Police

      Detective Brian Turpin met with her at the hospital, and the police took

      photographs of her injuries. Detective Turpin later interviewed Steverson at the

      police department after advising him of his Miranda rights, and the interview

      was recorded.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 3 of 15
[4]   On May 28, 2019, the State charged Steverson with battery as a level 5 felony,

      and the information explained that the charge was enhanced to a level 5 felony

      because he was convicted and sentenced for domestic battery with moderate

      bodily injury on January 16, 2019, in cause number 82C01-1808-F6-5815. On

      June 15, 2019, the State added a count of attempted invasion of privacy as a

      level 6 felony, to which Steverson later pled guilty.


[5]   On July 24, 2019, the State filed several motions in limine, including one that

      moved the court to prevent Steverson from offering into evidence, or making

      reference to any evidence of, B.C.’s “illicit drug use prior to [] May 17, 2019,

      and any evidence of pending or closed CHINS matters” involving her.

      Appellant’s Appendix Volume II at 39. Following a hearing and argument, the

      court took the motion under advisement and indicated concern and preference

      that, “before going into anything with the CHINS case” or “anything gets

      slippery or out of control,” a hearing outside the presence of the jury would be

      held to clarify the direction of the testimony. Transcript Volume II at 22-23. A

      chronological case summary administrative event entry for July 29, 2019, states:

      “State[’]s Motions in Limine are granted pending testimony given.” Appellant’s

      Appendix Volume II at 11.


[6]   During the jury trial, the State called B.C. as a witness, and she recounted the

      incident of May 17, 2019. She answered affirmatively when asked if she smoked

      meth while in the apartment and stated that she smoked once while in the

      abandoned residence before being accused of stealing from Steverson. After the

      court admitted pictures of B.C. and her injuries as State’s Exhibits 1-28 and the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 4 of 15
      State ended its direct examination, Steverson’s counsel made an offer of proof

      and examined B.C. outside of the jury’s presence. B.C. answered affirmatively

      when asked whether, at the time of the incident, she had a pending CHINS

      matter related to one of her children, whether she was participating in CHINS

      drug court, and whether there were rules about testing positive or using illicit

      drugs. She indicated that she was in court sometime before May 17th and that

      the court held her in contempt but suspended the executed sentence. When

      asked if that was for a violation, she answered affirmatively, and when asked

      further about the violation, she stated: “I wasn’t doing what I was supposed to be

      doing” and “wasn’t doing my drops,” or her drug tests. Transcript Volume II at

      53. She agreed with statements of Steverson’s counsel that “smoking

      methamphetamine would have triggered another violation report” and that, from

      her perspective, when “the CHINS court says, I’m going to hold you in contempt

      for not doing, not following the rules, was it kind of I’m going to give you one

      last chance.” Id. When Steverson’s counsel added, “Before I put you in jail,”

      B.C. stated, “Yeah, I’ve been on thin ice for awhile with them.” Id. She agreed

      further with his counsel’s statements that she had a “pretty big” interest to not

      test positive and that she believed that she was “probably going to go to jail.” Id.

      at 54. When asked if she believed that she would lose custody of her children,

      she stated, “No.” Id.


[7]   When the prosecutor was asked to respond to the offer of proof, the following

      exchange occurred:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 5 of 15
        THE STATE[]: [B.C.], what the result, so that’s in April, May
        17th happens, you admittedly smoke meth, what happens at your
        next appearance in CHINS Drug Court?

        A Their exact words were they put me in jail to get me off the
        street, to get me clean and for my safety.

        THE STATE[]: And how long were you in jail for that sanction?

        A One week, and then I went to Stepping Stone.

        THE STATE[]: And, when you say you went to Stepping Stone,
        was that inpatient treatment or outpatient treatment?

        A Inpatient.

        THE STATE[]: Inpatient treatment. At the time of the staying
        the executed sentence for contempt to the time of this incident,
        you did not believe that you were going to lose your kids if you
        dropped dirty, is that correct?

        A No.

        THE STATE[]: Okay. Did you make any of this story up to
        avoid the CHINS Drug Court sanction?

        A No.

        THE STATE[]: Did they ask you, did they drug test you and you
        drop dirty, or did you just say, I smoked?

        A I told them.

        THE STATE[]: You told them?

        A Yeah. I didn’t fail any drops.


Id. at 54-55. B.C. answered “90 days” when Steverson’s counsel asked if she

remembered the amount of jail time she faced when they held her in contempt


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 6 of 15
      but then suspended it. Id. at 56. When asked if, after she “disclosed all these

      events, the [c]ourt did not impose the full amount of the sentence,” she answered

      in the negative and stated: “I had a choice.” Id. She indicated that she did not

      ever deny to anyone that she had smoked meth. She answered affirmatively

      when Steverson’s counsel asked if she told Detective Turpin on May 17th she

      was forced to smoke meth and whether she told hospital staff she was forced to

      smoke meth, and she answered in the negative when asked if she told her case

      manager that she was forced to smoke meth.


[8]   Steverson’s counsel offered her testimony under Ind. Evidence Rule 616 and

      argued it was relevant and admissible, he believed a valid theory of defense to

      be that “she smokes meth, she knows that she’s on thin ice, she knows that

      she’s probably going to go to jail if she gets caught, and so as the [c]ourt is

      aware, when people have PTR’s, they’re going to try to come in with some

      reason, some excuse,” he was “sort of hamstrung to present a full theory of

      defense” if the jury was not informed that there was a penalty or a consequence

      to her smoking meth, and that she received “some benefit to the version she

      presented to the CHINS [c]ourt.” Id. at 60. In denying Steverson’s motion, the

      court stated that it did not know that “we’ve established that she has a particular

      bias” against Steverson, that “what drives the day” was that she was honest with

      the CHINS manager and still did receive executed time, and that “she didn’t get

      the full 90 days, but I don’t know that we can attribute that to anything.” Id. at

      61-62. After pointing to B.C.’s testimony that “she never thought she was going

      to lose her children,” it stated: “There’s a difference between irrelevant and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 7 of 15
      admissible evidence, it may be relevant, as [the State] touched on, there’s a lot of

      relevant information, it does open up a pandora’s box of issues.” Id. at 62.


[9]   During testimony from Detective Turpin, clips from his interview with

      Steverson were admitted as State’s Exhibits 86 and 87. When it was published

      to the jury, State’s Exhibit 86 consisted of the following:


              [Steverson]: I’m telling you the truth man, we got, okay we got
              (inaudible) each other though, it wasn’t nothing like that, she
              (inaudible) she’s going to do that (inaudible).

              DETECTIVE TURPIN: So, what happened, what happened,
              what did she do to you that caused you to do that?

              [Steverson]: Well, I don’t know man, got in this argument and
              got in a f---ing fight man, you know what I’m saying.

              DETECTIVE TURPIN: So, where are your injuries?

              [Steverson]: What do you mean?

              DETECTIVE TURPIN: Where are your injuries?

              [Steverson]: Injuries.

              DETECTIVE TURPIN: Injuries, yeah, what did she do to you,
              so if you have a mutual, if you and I, if we take the cuffs off, I’m
              not going to do this, this is not a threat in any way, if we take the
              cuffs off, even though I’m seriously old, when we leave here, if
              we decide to go at it, even though I’m seriously old, you’re going
              to have injuries, I’m going to have injuries. You’re a lot younger
              than me and probably in a lot better shape, so I’m probably going
              to have more injuries, but you’re going to have some injuries, I
              guarantee you, because that’s what a mutual fight does, that’s
              what I’m trying to tell you. I keep telling you I know this story
              inside and out and I need you to understand I get it man, you
              found out she’s cheating on you, you get fired up about that,
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 8 of 15
        people do all the time, it’s understandable. I’m not saying that
        that makes you an awful person.

        [Steverson]: She got (inaudible), so I told her, she’s got to run,
        (inaudible) and I’m like listen man, (inaudible), stop hitting me
        man, you know, get the f--- off of me and stop hitting me, but it
        wasn’t until she had, it wasn’t until she had (inaudible).


Id. at 103-104. State’s Exhibit 87 was published to the jury and contained

Steverson’s statement that “(Inaudible) some little small domestic a-- b---s---.”

Id. At the end of the trial, Steverson’s counsel proposed a final instruction on

the use of force to protect person or property based on “IN Pattern Instruction

No. 10.0300, I.C. 35-41-3-2,” Appellant’s Appendix Volume II at 64, stated

that, in the interview shown in State’s Exhibit 86, Steverson “says you know,

well she gets rowdy, she jumped on me and I just sort of, and did like a hand

motion of pushing her off,” and argued that there was evidence, “if she jumps

on him first, despite the lack of injuries,” that pushing B.C. off was acting in

self-defense. Transcript Volume II at 114. The State objected and argued that

allowing the self-defense instruction and permitting him to argue self-defense in

closing “opens the door to [Ind. Evidence Rule] 404(b).” Id. The court

declined to give the instruction, stating in part:


        I think that the measuring stick is the evidence that was heard in
        the case. The only evidence that is arguably or questionably
        could be construed as in favor of self-defense was his own
        statement which he said he pushed her away from him. I don’t
        think that that indicates that she was an initial aggressor. There’s
        no evidence he had any injuries . . . .



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 9 of 15
       Id. at 115.


[10]   The jury found Steverson guilty of battery as a class B misdemeanor, he

       admitted to the enhancement to a level 5 felony, and the court sentenced him to

       five years for the level 5 felony to be served concurrently with a one-year

       sentence for the level 6 felony for attempted invasion of privacy.


                                                    Discussion

                                                          I.


[11]   The first issue is whether the trial court abused its discretion in excluding

       evidence of B.C.’s pending CHINS case. The admission and exclusion of

       evidence falls within the sound discretion of the trial court, and we review the

       admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d

       1265, 1272 (Ind. 2002). An abuse of discretion occurs “where the decision is

       clearly against the logic and effect of the facts and circumstances.” Smith v.

       State, 754 N.E.2d 502, 504 (Ind. 2001).


[12]   Steverson argues that the trial court erred in failing to admit evidence of the

       “potential consequences that smoking methamphetamine would have in [B.C.’s]

       pending CHINS case,” Appellant’s Brief at 11, under a theory that B.C. had a

       motive to lie to obtain a leaner consequence; that is, she “had reason to make

       herself look sympathetic to avoid jail time.” Appellant’s Reply Brief at 5. In

       support, he points to the fact that she did not receive the executed sentence she

       anticipated after admitting to smoking methamphetamine but was offered the

       option of completing an inpatient program instead. He argues the trial court

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 10 of 15
       erred in making a factual determination about B.C.’s credibility rather than

       leaving that matter for the jury, and he contends that the State, in failing to argue

       that the testimony does not demonstrate an interest of B.C. to pin her “decision

       to smoke methamphetamine on pressure from Steve[r]son, rather than her own

       personal choice,” concedes the consideration of relevancy. Appellant’s Brief at

       12.


[13]   He relies upon Mitchell v. State, in which this Court stated in a footnote:


                “A witness’s bias, prejudice or ulterior motives are always
                relevant at trial in that they may discredit her or affect the weight
                of her testimony.” Dyson v. State, 692 N.E.2d 1374, 1376 (Ind.
                Ct. App. 1998) (interpreting Ind. Evidence Rule 616). However,
                Mitchell concedes on appeal that he did not offer the CHINS
                evidence for the purposes identified in Evidence Rule 616.[ 1]


       730 N.E.2d 197, 197 n.4 (Ind. Ct. App. 2000), trans. denied. He claims that, had

       Mitchell’s counsel offered the evidence in question under Ind. Evidence Rule

       616, the testimony would have been admissible and that Mitchell’s motives are

       no different than those presented here; i.e., B.C.’s motive to identify Steverson as

       the aggressor to receive more lenient treatment in the CHINS matter.


[14]   The State maintains that the facts do not support Steverson’s defense theory. It

       argues that she was completely honest and admitted to her methamphetamine




       1
        Ind. Evidence Rule 616 specifies that “[e]vidence that a witness has a bias, prejudice, or interest for or against
       any party may be used to attack the credibility of the witness.”



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020                     Page 11 of 15
       use and that it did not give rise to a motive for dishonesty “in the case of B.C.’s

       relationship with CHINS,” where “she admitted her drug use to CHINS and

       did not expect parent-time repercussions.” Appellee’s Brief at 12. It further

       argues that the drug use, which had nothing to do with the injuries Steverson

       inflicted on B.C., was irrelevant and inadmissible.


[15]   We note that Ind. Evidence Rule 616 provides for the admission of evidence

       showing bias or prejudice of a witness without any qualifications. See Ingram v.

       State, 715 N.E.2d 405, 407 (Ind. 1999). However, it “should be read in

       conjunction with Rule 403’s required balancing of probative value against the

       danger of unfair prejudice.” Id. Ind. Evidence Rule 403 provides that

       “[a]lthough 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, or by considerations of undue delay, or needless

       presentation of cumulative evidence.”


[16]   The record reveals that, during the offer of proof, B.C. indicated that, at the time

       of the incident, she had a pending CHINS matter relating to one child and was

       participating in CHINS drug court. She indicated a court held her in contempt

       for a violation sometime before May 17th but suspended the executed sentence.

       When asked about the violation, she stated that she was not doing what she was

       supposed to be doing and was not participating in drug tests. B.C. testified that

       she served seven days and then received inpatient treatment.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 12 of 15
[17]   While B.C. stated she had been on “thin ice for awhile” and agreed with various

       statements of Steverson’s counsel regarding an interest to not obtain a positive

       drug test because, as he suggested, it would trigger an additional violation report,

       she indicated she had not believed she would lose custody of her children, had

       not fabricated a story to avoid the sanction of the CHINS drug court, and had

       never denied smoking methamphetamine to anyone. When asked whether she

       tested positive or whether she “just sa[id], I smoked,” she answered: “I told

       them.” Transcript Volume II at 55.


[18]   To the extent Steverson argues that the testimony about the potential

       consequences in B.C.’s pending CHINS case is relevant to the charge facing him,

       we note the court found that he had not established a particular bias that B.C.

       held against him and that it could not attribute her receipt of less than the full

       ninety-day sanction to anything. We further observe that, while B.C. indicated

       she told Detective Turpin and the hospital staff at an earlier time that she was

       forced to smoke meth, Steverson does not point to the record to indicate that

       B.C. told persons involved in the CHINS case that he forced her to smoke. We

       conclude under these circumstances that the court did not err or abuse its

       discretion in excluding the evidence of B.C.’s CHINS case.


                                                         II.


[19]   The next issue is whether the trial court abused its discretion by rejecting the

       proposed jury instruction on the use of force to protect person or property.

       Steverson maintains the evidence supported the tendering of the instruction. He


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 13 of 15
       asserts defense counsel based the request “from a video clip in which Steverson

       told the detective he was pushing B.C. off of him.” Appellant’s Brief at 18 (citing

       Transcript Volume II at 113). He argues that the court made an erroneous

       factual determination in deciding his statement during the interview did not

       indicate B.C. was the initial aggressor. He further argues: the “court concedes”

       that the instruction was supported by the evidence; the court did not address

       whether the instruction was a correct statement of the law or whether it was

       repeated by another instruction; and the prosecutor did not object that the

       defense failed to meet the required elements for tendering a jury instruction. Id.

       at 19.


[20]   The State responds the record lacks evidence that B.C. was an initial aggressor

       or that Steverson feared for his life, safety, or health. It contends the evidence

       demonstrates that “the victim’s injuries were visible, and [Steverson] showed no

       signs of injury.” Appellee’s Brief at 15 (citing State’s Exhibits 1-28, 86-87). It

       further maintains that the decision to reject the instruction was harmless and

       did not affect Steverson’s rights “given the large bulk of evidence rebutting any

       false claim to self-defense.” Id. at 16.


[21]   The purpose of an instruction is “to inform the jury of the law applicable to the

       facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict.” Overstreet v. State, 783

       N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150, 124 S. Ct. 1145

       (2004). Instruction of the jury is generally within the discretion of the trial court

       and is reviewed only for an abuse of that discretion. Id. at 1163-1164. A trial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 14 of 15
       court erroneously refuses to give a tendered instruction, or part of one, if: (1) the

       instruction correctly sets out the law; (2) evidence supports the giving of the

       instruction; and (3) the substance of the tendered instruction is not covered by

       the other instructions given. See id. at 1164. Before a defendant is entitled to a

       reversal, he must affirmatively show that the erroneous instruction prejudiced

       his substantial rights. Lee v. State, 964 N.E.2d 859, 862 (Ind. Ct. App. 2012)

       (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind. Ct. App. 2005)), trans. denied.


[22]   As set out above, it is Steverson’s burden to demonstrate that the evidence

       supported giving the instruction. Steverson points only to his response to

       Detective Turpin’s inquiry into his injuries. We agree with the trial court that

       his statement does not indicate that B.C. was the initial aggressor. Based on the

       record, we cannot say that Steverson has demonstrated he was protecting

       himself from what he reasonably believed to be the imminent use of unlawful

       force. See Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014) (“When a

       case does not involve deadly force, a defendant claiming self-defense must show

       that he was protecting himself from what he ‘reasonably believe[d] to be the

       imminent use of unlawful force.’”) (quoting Ind. Code § 35-41-3-2(c)), trans.

       denied. We find that the trial court did not err or abuse its discretion in

       declining to give the proposed instruction.


[23]   For the foregoing reasons, we affirm Steverson’s conviction.


[24]   Affirmed.


       Baker, J., and Riley, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2286 | February 14, 2020   Page 15 of 15
