FEH v. State, 49A02-9809-JV-726.

• Decision Date: 17 September 1999
• Docket Number: No. 49A02-9809-JV-726.,49A02-9809-JV-726.
• Citation: 715 N.E.2d 1272
• Parties: F.E.H., JR., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

715 N.E.2d 1272

F.E.H., JR., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.

No. 49A02-9809-JV-726.

Court of Appeals of Indiana.

September 17, 1999.

Janice E. Smith, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATTINGLY, Judge.

F.E.H. was adjudged to be a delinquent after the trial court made a true finding that he committed the offense of battery, a Class B misdemeanor if committed by an adult. On appeal, F.E.H. raises issues that we consolidate and restate as follows:

1. Whether the trial court erred in admitting particular witness testimony.

2. Whether sufficient evidence supports the trial court's true finding that F.E.H. committed the offense of battery.

3. Whether the trial court erred by failing to issue Trial Rule 52 findings of fact along with its true finding as to battery, where F.E.H. timely requested findings of fact pursuant to the Rule.

4. Whether the trial court erred in denying two of F.E.H.'s motions requesting that the record be prepared.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the State show that, on May 23, 1998, 16-year-old F.E.H., his sister Nicole, and Nicole's friend Amber were at the property of Kathie Rottler. Nine-year-old Wesley Hurless, accompanied by his 11-year-old friend Justin Shoegate, approached the Rottler property by bicycle and stopped. After Hurless called Nicole a name, F.E.H. approached Hurless and threw him off of his bicycle. F.E.H. then chased Hurless down the street and hit Hurless' leg three times with a belt.

On May 28, 1998, the State filed a petition which charged F.E.H. with Class A misdemeanor battery and which alleged that F.E.H. "did knowingly or intentionally, in a rude, insolent or angry manner touch Wesley Harless [sic], which resulted in bodily injury." R. at 16. F.E.H. denied the allegations of the State's petition. A denial hearing¹ was held on July 29, 1998. After the hearing, the trial court entered a true finding as to Class B misdemeanor battery, a lesser-included offense of Class A misdemeanor battery. On September 2, 1998, the trial court, in an order containing findings of fact and conclusions of law, set forth its finding that F.E.H. committed the offense of battery, a Class B misdemeanor if committed by an adult. On October 22, 1998, the trial court entered a dispositional order that stated in part: "the Court now adjudicates [F.E.H.] a delinquent...." Id. at 72.

DISCUSSION AND DECISION

1. Admission of Testimony

On July 9, 1998, F.E.H. filed a "Request for Discovery" through which he asked the county prosecuting attorney to disclose, "[i]n writing, the names and last known addresses and telephone numbers of all persons whom the State of Indiana intends to use in the prosecution of this cause...." Id. at 30. On the same date, F.E.H. filed a "Notice of Request for Discovery" through which he informed the trial court that his request for discovery had been made. It appears undisputed that the State failed to provide F.E.H. with a list of witnesses and thus did not respond to his discovery request.

At the denial hearing, Hurless, Vasity Bolton, and Officer Howard Grunden testified as State's witnesses. F.E.H. objected to the testimony of these witnesses on the basis of the State's failure to respond to his discovery request. The trial court admitted the testimony of these witnesses over F.E.H.'s objection. F.E.H. argues that the admission of this testimony was error, claiming that "[t]he State breached its obligation to respond to the Defense's request for a witness list, its b[r]each was purposeful and intentional and as a result [F.E.H.] was substantially prejudiced." Brief of Respondent-Appellant at 15.

There seems to be no dispute that F.E.H. made a proper discovery request with which the State did not reasonably comply. We therefore disapprove of the State's failure to provide F.E.H. with a list of witnesses, inasmuch as our supreme court "takes a dim view of the State's use of witnesses not disclosed in response to a proper discovery request, and without seeking leave of court or providing a reasonable explanation for this failure." Mers v. State, 496 N.E.2d 75, 83 (Ind.1986). Nevertheless, we conclude that in the instant case the trial court was not required to exclude the testimony of the State's witnesses. Exclusion of evidence as a discovery abuse sanction is proper only where there is a showing that the State engaged in deliberate or other reprehensible conduct which prevents the defendant from receiving a fair trial. Taylor v. State, 676 N.E.2d 1044, 1046 (Ind.1997). Here, F.E.H. has not clearly shown that the State's failure to respond to his discovery request was the result of reprehensible conduct. Because such a showing is necessary to warrant exclusion of testimony, see id., and because a trial court is granted wide discretion in determining whether to allow testimony from witnesses not listed on the pre-trial discovery witness list, see McDonald v. State, 511 N.E.2d 1066, 1069 (Ind.1987),

we cannot say that the trial court abused its discretion by admitting the testimony of the State's witnesses. However, we urge both parties to strictly comply with discovery guidelines in the future.

2. Sufficiency of the Evidence

F.E.H. claims that insufficient evidence supports the trial court's true finding that he committed the offense of battery. Our test for sufficiency of the evidence requires that we neither weigh the evidence nor resolve credibility questions. J.H. v. State, 655 N.E.2d 624, 626 (Ind.Ct.App.1995). We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom. See id.

Ind.Code § 35-42-2-1(a) provides that "[a] person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery...." The evidence most favorable to the State shows that F.E.H. threw Hurless off of his bicycle, chased Hurless down the street, and hit Hurless' leg three times with a belt. As such, the evidence sufficiently supports the finding that F.E.H. committed battery. F.E.H.'s argument to the contrary essentially invites us to reweigh the evidence and judge witness credibility. We decline this invitation and, accordingly, reject F.E.H.'s insufficiency of the evidence claim.

3. Issuance of Trial Rule 52 Findings of Fact

On July 9, 1998, F.E.H. filed, pursuant to Trial Rule 52, a written request for findings of fact and conclusions of law. On July 29, 1998, the trial court entered a true finding as to battery, but failed to enter the requested findings of fact and conclusions of law. Then, on September 2, 1998, the trial court issued an order which not only set forth the finding that F.E.H. committed battery, but which also contained findings of fact and conclusions of law. F.E.H. apparently claims that the trial court erred by failing to issue Trial Rule 52 findings of fact along with the true finding it entered on July 29, 1998.

The purpose of making findings of fact and conclusions of law is to provide the parties and the reviewing courts with the theory upon which the case was decided. Heiligenstein v. Matney, 691 N.E.2d 1297, 1300 (Ind.Ct.App.1998). Here, even though the trial court's findings of fact and conclusions of law were not contemporaneous with its true finding, they were entered before this appeal...