Green v. State, 84A01-1107-CR-320

• Decision Date: 24 April 2012
• Docket Number: No. 84A01-1107-CR-320,84A01-1107-CR-320
• Parties: RELFORD GREEN, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff
• Court: Indiana Appellate Court

RELFORD GREEN, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff

No. 84A01-1107-CR-320

COURT OF APPEALS OF INDIANA

April 24, 2012

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

KIMBERLY A. JACKSON

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

GEORGE P. SHERMAN

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE VIGO SUPERIOR COURT

The Honorable Michael Rader, Judge

Cause No. 84D05-1103-FD-703

MEMORANDUM DECISION - NOT FOR PUBLICATION

MATHIAS, Judge Relford Green ("Green") was convicted in Vigo Superior Court of Class D felony domestic battery and Class A misdemeanor battery. Green appeals and presents five issues, which we restate as:

I. Whether the trial court abused its discretion in excluding evidence Green proffered concerning the victim's bad acts and reputation;

II. Whether the trial court abused its discretion in denying Green's motions for mistrial based on the victim's testimony;

III. Whether the State presented sufficient evidence to support Green's conviction for domestic battery;

IV. Whether the trial court abused its discretion in denying Green's tendered instruction on self-defense; and

V. Whether the trial court's imposition of sentence on both of Green's convictions constitutes impermissible double jeopardy.

We affirm Green's conviction for Class D felony domestic battery but reverse his conviction for Class A misdemeanor battery on double jeopardy grounds and remand with instruction that the trial court vacate the conviction and sentence on this count.

Facts and Procedural History

At the time relevant to this appeal, Green lived in Terre Haute, Indiana with Marva Ball ("Ball") and her fifteen-year-old daughter, J.M. Green and Ball were in a romantic relationship and had lived together for approximately five years. On the morning of February 27, 2011, Ball was in the kitchen cooking breakfast when she heard Green yell that someone had taken his wallet. Ball told Green that he had mostly likely mislaid his wallet and that he would find it if he continued to look for it. She also told him to stop accusing others of taking his belongings. As Green searched for his wallet, he angrily picked up items and threw them. Ball again told Green that she did not like beingaccused of stealing. Green then stated that he found his wallet and that "everything [wa]s okay." Tr. p. 137. Ball replied, "no, it's not," and indicated that she planned on leaving Green. Tr. pp. 137-38. Green then came into the kitchen, smacked Ball in the area of her face and neck, and stated, "I'll show you what I do to bitches like you." Tr. p. 139.

J.M. had been trying to sleep on the couch in the next room when she heard Green and her mother arguing. When she heard Green strike Ball, she came into the kitchen and asked if Green had struck Ball. J.M could see that her mother had a red handprint on her face and had tears in her eyes. Ball told J.M to call the police, and J.M. retrieved her mobile phone to do so. Green grabbed the phone from J.M.'s hand, broke it in half, and threw it aside. Ball and J.M both tried to leave through the front door, but Green pushed J.M. out of the way and grabbed Ball and slammed her to the ground. As Ball got up, Green went into the kitchen and retrieved a knife. Ball followed Green into the kitchen and grabbed a pan that contained hot grease, positioning herself between Green and J.M. thereby allowing J.M. to leave the house safely. Ball threatened to throw the hot pan of grease on Green, but Green knocked the pan out of her hand. Green then backed Ball up to the couch with the knife in his hand. Ball asked him, "Are you . . . really going to do that to me?" Tr. p. 142. Green stated, "no." Id. When Green turned around, Ball fled the home, went to a neighbor's house, and called the police.

The police soon arrived at the scene. One of the responding officers, Terre Haute Police Officer Rex Mix ("Officer Mix"), exited his patrol car and approached the house. As he did, Green came out of the house with a suitcase and spontaneously stated, "[Y]es, this time I did hit her." Tr. p. 191. Green did not claim that Ball had attacked him.

On March 3, 2011, the State charged Green with Class A misdemeanor domestic battery against Ball, Class B misdemeanor battery against J.M., Class A misdemeanor interfering with reporting a crime, and Class D felony criminal recklessness. The State also alleged that Green had a prior conviction for domestic battery, which would act to elevate the charge of domestic battery against Ball to a Class D felony. The State later dismissed the charge of criminal recklessness.

A bifurcated trial was held on May 26 and 27, 2011. In the first phase of the trial, the jury found Green guilty of Class A misdemeanor domestic battery, but not guilty of the remaining charges. During the second phase of the trial, the jury found that Green had previously been convicted of domestic battery and was therefore guilty of Class D felony domestic battery. At a sentencing hearing held on June 15, 2011, the trial court sentenced Green to a "merged sentence of 1 year and 3 years on both counts." Appellant's App. p. 11; Sentencing Tr. p. 23-24. The trial court ordered all but 180 days suspended, with credit for ninety days actually served. The court also placed Green on two and one-half years probation. Green now appeals. Additional facts will be provided as necessary.

I. Exclusion of Evidence

Green first claims that the trial court erred in excluding certain evidence he sought to admit. Questions regarding the admission or exclusion of evidence are within the discretion of the trial judge and are reviewed on appeal only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied. Thetrial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id.

The evidence Green sought to admit falls into the following categories: (1) evidence of pending charges against Ball for battery against Green, (2) testimony concerning an incident where Ball attempted to hit Green with a piece of lumber, (3) evidence that Ball, without Green's permission, may have cashed Green's Social Security checks while Green was incarcerated on the instant charges, and (4) evidence regarding Ball's character for truthfulness. Green now claims that, for various reasons, such evidence was admissible and that the trial court erred in excluding such evidence.

A. Evidence of Victim's Character

Green's main claim is that the evidence he sought to admit was properly admissible under certain evidentiary rules and that the trial court erred in concluding otherwise. Specifically, he claims that evidence regarding Ball's prior acts of violence toward Green, as indicated by her past behavior and the pending battery charges, supported his claim of self-defense and were properly admissible pursuant to Evidence Rules 404(a) and 608. The first of these rules provides:

(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

Indiana Evidence Rule 404(a) (emphasis added).

As the emphasized portion of this rule demonstrates, evidence of the victim's character may, under certain circumstances, be admitted into evidence by a defendant. Although the general rule is that evidence of a person's character is inadmissible to prove action in conformity therewith on a particular occasion, if a defendant claims that he acted in self-defense in the face of the victim's aggression, he may offer evidence of a pertinent trait of the victim's character. See, e.g., Brooks v. State, 683 N.E.2d 574, 576 (Ind. 1997); Zachary v. State, 888 N.E.2d 343, 347 (Ind. Ct. App. 2008); Brand v. State, 766 N.E.2d 772, 779 (Ind. Ct. App. 2002).

"'Indiana Evidence Rule 405 permits proof of the violent character of the victim by reputation or opinion testimony.'"¹ Price v. State, 765 N.E.2d 1245, 1250 (Ind. 2002) (citing Brooks, 683 N.E.2d at 576). Here, however, Green did not seek to introduce reputation or opinion testimony regarding Ball's violent character. Instead, he sought to introduce evidence regarding specific acts of violence by Ball against Green. Specificinstances of conduct are admissible only on cross-examination of a witness who has already given reputation or opinion testimony about a person's character, or in cases in which character or a trait of character of a person is an essential element of the charge, claim, or defense. Brooks, 683 N.E.2d at 577, 577 n.4.

Here, Ball did not testify regarding her character and therefore cross-examination regarding specific acts of conduct was not permissible. See id. at 577 n.4 (concluding that, where prosecution witness offered no character reputation or opinion testimony, she could not be cross-examined as to specific acts).² Nor was Ball's character an essential element of Green's claim of self-defense. See id. (victim's character is not an essential element of claim of self-defense).

Although the...