984 N.E.2d 725 (Ind.App. 2013), 49A02-1207-CR-560, Aka v. State
Judge | NAJAM, J., and FRIEDLANDER, J., concur. |
Citation | 984 N.E.2d 725 |
Date | 08 March 2013 |
Docket Number | 49A02-1207-CR-560. |
Court | Court of Appeals of Indiana |
Parties | Oo AKA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Page 725
Appeal from the Marion Superior Court; The Honorable Kimberly J. Brown, Judge; Cause No. 49G16-1108-FD-61186.
MEMORANDUM DECISION— NOT FOR PUBLICATION
On August 27, 2011, Oo Aka hit his wife, C.C. (hereinafter " the victim" ), in the hand and head with a children's bicycle. As a result of being hit with the bicycle, the victim sustained injuries on both her hand and her head. On August 30, 2011, the State charged Aka with Count I, Class D felony domestic battery; Count II, Class A misdemeanor domestic battery; Count III, Class D felony battery; and Count IV, Class A misdemeanor battery. Following a jury trial, Aka was found guilty of Counts I through IV. The trial court found that the Counts III and IV merged into Counts I and II. On appeal, Aka challenges his convictions by claiming that the trial court abused its discretion on numerous grounds including: (1) allowing the jury to begin deliberations at 11:15 p.m., (2) finding he and the victim's twelve-year-old daughter competent to testify at trial, (3) limiting the scope of a certain witness's testimony, and (4) allowing an emergency room nurse who treated the victim to testify about certain statements made by the victim during the nurse's evaluation of the victim. Finding no abuse of the trial court's discretion, we affirm.
FACTS AND PROCEDURAL HISTORY
Aka and the victim are a Burmese couple who have been married for fifteen years and have seven children together. The victim was home with the children in their apartment on the evening of August 27, 2011. When Aka arrived home late that evening, he appeared to be drunk.
At some point, Aka and the victim began arguing. Their argument awoke their twelve-year-old daughter, M.N.F., who had been asleep in one of the bedrooms. Upon hearing her parents arguing, M.N.F. left the bedroom and went to the living room. As M.N.F. entered the living room, she saw Aka pick up a small children's bicycle and strike the victim. The victim put her hand up to prevent the blow and the bicycle cut her hand. Aka then struck the victim with the bicycle a second time. The second blow struck the victim on the back of her head, leaving a six centimeter laceration.
Hurt and bleeding, the victim attempted to flee the apartment. As she fled, Aka chased after the victim and indicated that he wanted to kill her. The victim ran to the home of Naw Htoo, a neighbor who helps Burmese refugees. Naw Htoo eventually opened the door, let the victim into her apartment, and called the police.
When the police arrived, the responding officers found Aka " banging" on Naw Htoo's door. Tr. p. 224. Inside, the officers found the victim. The victim was bleeding, and she pointed at Aka, saying, " he did it." Tr. p. 225. Aka was subsequently arrested.
On August 30, 2011, the State charged Aka with Count I, Class D felony domestic battery; 1 Count II, Class A misdemeanor domestic battery; 2 Count III, Class D felony battery; 3 and Count IV, Class A misdemeanor battery.4 The State subsequently amended the charging information to include Count V, Class D felony criminal recklessness.5
In January of 2012, Aka requested a competency hearing to determine whether M.N.F. was competent to testify at trial. The trial court conducted a competency hearing on January 31, 2012, after which it determined that M.N.F. was competent to testify.
A jury trial was conducted on May 31, 2012. After a full day of trial, jury deliberations began at approximately 11:15 p.m. Aka moved for a mistrial due to the lateness of the hour, and this motion was denied by the trial court. The jury returned guilty verdicts on Counts I through IV and an acquittal on Count V. The trial court found that Counts III and IV merged into Counts I and II, and sentenced Aka to an aggregate term of 545 days of incarceration. This appeal follows.
DISCUSSION AND DECISION
I. Whether the Trial Court Abused its Discretion in Allowing the Jury to Begin Deliberations Late in the Evening
Aka contends that the trial court abused its discretion in allowing the jury to begin deliberating at 11:15 p.m., after having worked for nearly thirteen-and-a half to fourteen hours. The Indiana Supreme Court has previously held that " the trial judge is in the best position to determine whether or not to adjourn the trial." Peck v. State, 563 N.E.2d 554, 559 (Ind.1990). The rationale behind this position was set forth by the Indiana Supreme Court in King v. State, in which the Court stated:
The trial judge was also a participant in the trial and was in a better situation to assess fatigue and state of mind tha[n] this court. The decision to continue into the night was one of those undoubtedly made after considering all of the negative aspects whether raised by appellant or not. The judge had the unique ability to weigh the pros and cons of an adjournment and his determination will not be disturbed. That is not to say that all decisions of this type will be met with approval. Rather, it means that a clear showing of abuse of discretion coupled with prejudice to the defendant must be shown.
531 N.E.2d 1154, 1161 (Ind.1988).
Generally, a showing of prejudice requires more that an allegation of a long jury work day and an unfavorable result. See generally Farrell v. State, 622 N.E.2d 488, 492-93 (Ind.1993) (providing that where defendants have been unable to show more than late hours and an adverse verdict, courts have been reluctant to reverse a conviction); Peck, 563 N.E.2d at 559 (providing that the trial court did not abuse its discretion in handing the case over to the jury at approximately 9:30 p.m. and letting the jury deliberate for nearly four hours when the jury had a number of breaks during the day and did not appear exhausted); Evans v. State, 563 N.E.2d 1251, 1258 (Ind.1990) (providing that the trial court did not abuse its discretion in subjecting the jury to allegedly " overbearing" trial hours when final argument on the penalty phase began at 10:00 p.m.), reh'g granted on other gnds.; Morris v. State, 266 Ind. 473, 484-85, 364 N.E.2d 132, 139 (1977) (providing trial court did not abuse its discretion in denying the jury's request for sleep and/or coffee at 3:30 a.m. when there were no motels or restaurants open and there was no showing in the record that the denial in any way influenced the jury in their decision); Moore v. State, 569 N.E.2d 695, 702 (Ind.Ct.App.1991) (providing that the trial court did not abuse its discretion in having the jury work continuously for seventeen hours). In Moore, the appellant raised an argument similar to that raised by Aka in the instant matter. Specifically, the appellant argued that the trial court abused its discretion in having the jury work continuously for seventeen hours, with the jury returning a verdict at 2:05 a.m. 569 N.E.2d at 702. The appellant, however, did not make a showing of prejudice or juror fatigue, and this court concluded that his challenge appeared to be based on an unfavorable result, rather than on a bona-fide concern for the jury's ability to function with mental acuity after a long day. Id.
In the instant matter, Aka argues that the trial court abused its discretion in allowing the jury to begin deliberations at 11:15 p.m., after an approximately thirteen-and-a-half to fourteen hours of work. Aka acknowledges that the jury was given " a lot of breaks" during the day, Tr. p. 279, but argues that fourteen hours is " too long to expect jurors to work and still be mentally sharp enough to fairly consider all the evidence and render a reliable and just verdict." Appellant's Br. p. 12. Aka, however, does not point to anything in the record that would demonstrate juror fatigue such that would impact the jury's ability to consider the evidence and render a reliable verdict. Again, Aka's claim relating to the long hours put in by the jury, without more, is insufficient to prove prejudice. See generally Farrell, 622 N.E.2d at 493; Peck, 563 N.E.2d at 559; Evans, 563 N.E.2d at 1258; Morris, 266 Ind. at 484-85, 364 N.E.2d at 139; Moore, 569 N.E.2d at 702.
In light of the lack of evidence tending to demonstrate juror fatigue or prejudice, we conclude that Aka's argument, like the appellant's argument in Moore, appears to be based on an unfavorable result, rather than on a bona-fide concern for the jury's ability to function with mental acuity after a long day. 569 N.E.2d at 702. The jurors were given many breaks during the day and nothing indicates that the long hours on the single day of trial rendered them unable to reach a just and reliable verdict. As such, we conclude that the trial court did not abuse its discretion in this regard.
II. Whether the Trial Court Abused its Discretion in Finding Aka and the Victim's Twelve-Year-Old Daughter to be a Competent Witness
Aka next contends that the trial court abused its discretion in finding that he and the victim's twelve-year-old daughter, M.N.F., was competent to testify at trial. Specifically, Aka claims that the record does not demonstrate that M.N.F. understood the difference between telling a lie and telling the truth, knew that she was required to tell the truth, or actually understood what a true statement was. The State, for its part, argues that Aka has waived the instant challenge on appeal, and, alternatively, that the trial court acted within its discretion in determining that M.N.F. was competent to testify at trial.
In Kochersperger v. State, 725 N.E.2d 918, 922 (Ind.Ct.App.2000), this court determined that the defendant had waived his challenge to...
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