Carnahan v. State, 79A02-9605-CR-304

• Decision Date: 26 June 1997
• Docket Number: No. 79A02-9605-CR-304,79A02-9605-CR-304
• Citation: 681 N.E.2d 1164
• Parties: Paul CARNAHAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1164

681 N.E.2d 1164

Paul CARNAHAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A02-9605-CR-304.

Court of Appeals of Indiana.

June 26, 1997.

Charles R. Deets, III, Linda L. Cory, Hide Sandy Deets & Kennedy, Lafayette, for appellant.

Jeffrey A. Modisett, Attorney General, Rafal Ofierski, Deputy Attorney General, Indianapolis, for appellee.

OPINION

BAKER, Judge.

Appellant-defendant Paul Carnahan appeals his conviction for Battery, ¹ a Class A misdemeanor. Specifically, he claims that the trial court erred by admitting expert testimony regarding Battered Women's Syndrome (BWS) to explain why his wife recanted her prior allegations of abuse.

FACTS

On the evening of November 10, 1995, Carnahan and his wife, Carla, had an argument regarding some over-due payments on their property, during which Carnahan struck Carla's face, causing her injuries. After the altercation, Carla filed a report with the Tippecanoe County Police Department. In her report, Carla indicated that Carnahan had punched her in the stomach, struck her in the face and threatened to kill her. Record at 145-46, 196-97. The following day, a police officer spoke with Carnahan regarding the altercation and took pictures of Carla's injuries. As a result of the investigation, Carnahan was charged with battery, a class A misdemeanor and Intimidation, ² a Class D felony.

At trial, the State called Carla to testify regarding the alleged incident. However, Carla recanted her earlier allegation and instead testified that although she and Carnahan had argued on November 10, 1995, he never hit her or threatened her. R. at 145, 150, 198-200. Carla further testified that a family member had pressured her into filing a false report of abuse and that her injuries occurred when an old car radio fell out of a closet and struck her in the face. R. at 148, 179.

In response to Carla's testimony, the State called an expert on domestic violence, Carrie Costello, Director of the YWCA Domestic Violence Intervention and Prevention Program, to explain why Carla changed her story. Specifically, Costello testified, over Carnahan's objections, that abusers and their victims go through a three-part cycle of violence, which includes a tension building phase, a battering phase and finally, a reconciliation phase in which the batterer promises never to strike the victim again. R. at 236-37. Costello then explained that battered women often remain with their husbands, because of financial concerns, lack of housing, fear of physical harm in retaliation for leaving, emotional attachment and religious mandates which discourage divorce or separation. R. at 240-41.

Following the jury trial, Carnahan was convicted of battery, a class A misdemeanor and sentenced to one year imprisonment. However, the court suspended Carnahan's sentence and placed him on probation for one year, on the condition that he, among other things, participate in a domestic violence counseling program. Carnahan now appeals.

DISCUSSION AND DECISION

Carnahan contends that the trial court erred by permitting expert testimony regarding BWS, particularly involving the cycle of violence and the reasons battered women do not leave their husbands, to explain why Carla recanted her earlier allegation of abuse. Specifically, Carnahan claims this evidence was irrelevant to the proceeding since there were no facts showing that Carla was a battered woman. Alternatively, Carnahan argues that even if the evidence was relevant, it was misleading and should have been excluded under Ind. Evidence Rule 403.

A trial court is accorded discretion in ruling on the relevancy and admissibility of expert testimony. Henson v. State, 535 N.E.2d 1189, 1192 (Ind.1989); Bates v. State, 650 N.E.2d 754, 756 (Ind.Ct.App.1995). We will not reverse a trial court's decision absent an abuse of discretion, that is, where the decision is clearly against the logic and effect of the facts and circumstances before it. Shaffer v. State, 453 N.E.2d 1182, 1186 (Ind.Ct.App.1983).

Relevant evidence is that which makes the "existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ind. Evidence Rule 401. All relevant evidence is admissible, even if only marginally relevant. Evid.R. 402; Bates, 650 N.E.2d at 756. Thus, in determining whether evidence is relevant and admissible, this court must determine whether the evidence tends to prove or disprove a material fact in the case or sheds any light on the guilt or innocence of the accused. Tynes v. State, 650 N.E.2d 685, 687 (Ind.1995).

Although our research reveals no case which addresses the admissibility of BWS to explain why a woman recants her prior allegations of abuse, our courts have recently discussed the relevancy of BWS in other contexts. For example, in Isaacs v. State, 659 N.E.2d 1036, 1040 (Ind.1995), cert. denied, --- U.S. ----, 117 S.Ct. 205, 136 L.Ed.2d 140 (1996), our supreme court held that expert testimony regarding BWS was relevant to refute the claim of a defendant, on trial for the murder of his wife, that he had an amicable relationship with his wife prior to her death. The supreme court explained that evidence of BWS was properly admitted to refute the defendant's characterization of their relationship and to cast doubt on his assertion that he did not intend to kill his wife. Id. at 1041. Because the evidence had a direct bearing on the defendant's guilt or innocence, it was relevant. Id.

Similarly, in Barrett v. State, 675 N.E.2d 1112, 1116 (Ind.Ct.App.1996), trans. denied, this court held that evidence of BWS was relevant to the question of whether a defendant charged with neglect of a dependant, knowingly or intentionally neglected her child. In making our determination, we specifically rejected the State's contention that the admission of evidence of BWS was only relevant in cases in which the defendant argued self-defense and concluded that evidence of BWS is admissible if it is relevant to an issue before the court. Id. at 1117 (citing Isaacs, 659 N.E.2d at 1041).

In light of these opinions, we now consider the facts of this case. Here, the State offered evidence of the cycle of violence and the reasons victims stay with their abusers to explain why Carla, who had previously filed a written report claiming that Carnahan had abused her, recanted her allegations at trial. This evidence, if accepted by the jury, could show that at the time Carla testified, she was in a stage of reconciliation with Carnahan or was apprehensive about leaving him. Thus, the BWS evidence makes her prior allegations more credible. As a result, the BWS evidence was directly relevant to Carla's credibility which, because she testified, was an issue at trial.

However, even if evidence is relevant, where an expert testifies, a proper foundation must be laid before the evidence is ruled admissible. Henson, 535 N.E.2d at 1191. A proper foundation includes a showing that the expert has the requisite knowledge, skill, education and experience on which to base her opinion and that the facts upon which the expert testifies have already been placed into evidence. Id. 1191-92. It is upon this latter part of the foundation that Carnahan predicates error. Specifically, he contends that Costello's testimony regarding BWS was irrelevant because there were no facts presented prior to her testimony which would suggest that Carla was a battered woman. Notwithstanding Carnahan's assertion, the record reveals that the State had introduced evidence which sufficiently demonstrated that Carla was a battered woman. Specifically, the State offered Carla's testimony that she had previously stayed at a battered women's shelter, police reports of Carla's alleged abuse and the police photos showing the injuries on Carla's face. R. at 155-59, 188, 196-97. Thus, a proper foundation was laid for Costello's testimony.

Even assuming the testimony was relevant, Carnahan,...