MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                          Dec 20 2018, 8:33 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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kevin Wild                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General

                                                        Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devon Gaines,                                           December 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1731
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Peggy Ryan Hart,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G05-1710-F5-38956



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018                Page 1 of 4
[1]   Devon Gaines appeals his class A misdemeanor domestic battery conviction,

      arguing that the trial court committed reversible error in admitting testimony

      from his victim that he claims is unfairly prejudicial. Because that testimony is

      cumulative of testimony that Gaines did not object to, any error is harmless.

      Therefore, we affirm.


[2]   Gaines and Ra’zsaveh Richardson had an intimate relationship. He lived with

      her off and on and kept personal items at her apartment. Richardson became

      pregnant with Gaines’s child. Their relationship soured, and on October 4,

      2017, Richardson told Gaines “to come and get his stuff.” Tr. Vol. 2 at 57. She

      let him into her apartment, and they got into an argument after she refused his

      request to get an abortion. Gaines pushed and punched Richardson, tased her

      stomach with her taser, and tried to throw her in the shower. He broke her

      phones and told her that she was “going to learn to stop f’ing with [him].” Id.

      at 62. As Gaines was “trying to get his stuff … out of the apartment[,]”

      Richardson knocked on her neighbors’ doors and begged for help. Id. at 64.

      The police arrived, and Richardson told them what had happened.


[3]   The State charged Gaines with six counts, including class A misdemeanor

      domestic battery. At trial, Richardson testified that Gaines “wanted [her] to get

      an abortion[.]” Id. at 55. Gaines objected and requested a bench conference.

      The transcript indicates that much of the conference, including the specific basis

      for Gaines’s objection, was inaudible and therefore was not transcribed by the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018   Page 2 of 4
      court reporter.1 The trial court overruled the objection. Shortly thereafter,

      Richardson again testified that Gaines “wanted [her] to get an abortion.” Id. at

      58. Gaines did not object to this statement. The jury found him guilty of

      domestic battery, and the trial court sentenced him to 365 days, with 229 days

      suspended to probation.


[4]   On appeal, Gaines asserts that the trial court committed reversible error in

      admitting Richardson’s statement that he wanted her to have an abortion. We

      disagree. Our supreme court has stated on more than one occasion that “[e]ven

      the erroneous admission of evidence which is cumulative of other evidence

      admitted without objection does not constitute reversible error.” Hoglund v.

      State, 962 N.E.2d 1230, 1240 (Ind. 2012) (quoting Wolfe v. State, 562 N.E.2d

      414, 421 (Ind. 1990)); see also Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct.

      App. 2005) (“[T]o preserve a challenge to the admission of evidence, the

      defendant must object each time the evidence is offered.”). Thus, assuming for

      argument’s sake that the trial court erred in admitting Richardson’s first

      statement regarding abortion, that error is harmless because Gaines did not

      object to Richardson’s second, cumulative statement regarding abortion.

      Therefore, we affirm.




      1
        The State notes that Gaines could have utilized Indiana Appellate Rules 31 through 33 “to attempt to
      clarify the record” but did not do so. Appellee’s Br. at 9 n.1. The trial court’s response to Gaines’s inaudible
      objection strongly suggests that Gaines’s argument at trial is not the same as the argument he makes on
      appeal, which is that Richardson’s statement was unfairly prejudicial and inadmissible under Indiana
      Evidence Rules 401 and 403. “[A] defendant may not argue one ground for an objection to the admission of
      evidence at trial and then raise new grounds on appeal.” Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018                    Page 3 of 4
[5]   Affirmed.


      Vaidik, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018   Page 4 of 4
