Hitch v. State, 49S02–1506–CR–376.

CourtSupreme Court of Indiana
Citation51 N.E.3d 216
Docket NumberNo. 49S02–1506–CR–376.,49S02–1506–CR–376.
Parties Scott HITCH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date12 April 2016

51 N.E.3d 216

Scott HITCH, Appellant (Defendant below)
STATE of Indiana, Appellee (Plaintiff below).

No. 49S02–1506–CR–376.

Supreme Court of Indiana.

April 12, 2016.

51 N.E.3d 218

Ruth Ann Johnson, Marion County Public Defender, Suzy Danielle St. John, Deputy Public Defender, Victoria L. Bailey, Deputy Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Stephen Richard Creason, Deputy Attorney General, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02–1404–CR–295

RUCKER, Justice.

Scott Hitch appeals the trial court's determination declaring he committed a crime of domestic violence. Concluding there was no violation of Hitch's Sixth Amendment right to trial by jury, and further concluding the evidence was sufficient to sustain the determination, we affirm the judgment of the trial court.

Facts and Procedural History

Scott Hitch and Erica Bruce lived together between January and August 2013. When their relationship ended Bruce moved out of the shared apartment to live with the father of her two children. Several weeks later, after Bruce's relationship with her children's father deteriorated, Bruce temporarily moved back in with Hitch. She had arranged for an apartment in the same complex and was staying with Hitch until it was ready. Bruce did not unpack her bags because she planned to move shortly thereafter. Hitch testified at trial that he did not have a “romantic relationship” with Bruce after she moved out in August. See Tr. at 163–64. Describing Hitch as her “ex-boyfriend” Bruce testified their relationship ended the night Hitch attacked her. Tr. at 69.

On October 2, 2013, joining his boss for drinks, Hitch along with Bruce visited a downtown Indianapolis pub. Later that evening the couple proceeded to a local restaurant where they got into an argument when Bruce began comparing Hitch to her children's father. During the course of the argument Hitch flicked hot chili onto Bruce's face. Embarrassed, Bruce walked out of the restaurant. However, because she did not have money for a taxi, Bruce rode back to the apartment with Hitch.

Once inside, the argument escalated when Bruce sent a text message to the children's father to come pick her up. According to Bruce, Hitch demanded that she “get the f* * * out right now.” Tr. at 76. Bruce testified that she asked Hitch if she could stay the night because she did not have transportation. In response, according to Bruce, Hitch grabbed her by the neck and positioned himself on top of her. Eventually Bruce managed to push Hitch away and call 911. The responding officer found Bruce outside the apartment with some of her belongings. He examined Bruce and noted her neck was red and sensitive to the touch. Bruce spent the night under observation at a local hospital where she reported neck pain and tenderness. According to Hitch, he “never touched [Bruce]” Tr. at 162, 176.

The State charged Hitch with Count I strangulation as a class D felony, Count II intimidation as a class A misdemeanor, and Count III battery as a class A misdemeanor.

51 N.E.3d 219

Prior to the jury trial on March 27, 2014 the State dismissed the intimidation charge, and the jury found Hitch guilty of battery only.1 Thereafter the trial court sentenced Hitch to the maximum term of 365 days imprisonment2 with twelve days executed and 353 days suspended to probation. Under provisions of Indiana Code section 35–38–1–7.7(a), the trial court also determined Hitch committed a crime of “domestic violence.”3 Hitch objected on grounds his relationship with Bruce did not satisfy the statutory requirements for domestic violence. The trial court disagreed and pursuant to Indiana Code section 35–38–1–7.7(c) advised Hitch that this determination rendered him ineligible to possess a firearm.4

Hitch appealed raising the following restated claims: (1) the firearm restriction amounted to additional punishment above the statutory maximum for misdemeanor battery, and because the facts supporting the enhancement were not submitted to a jury the determination ran afoul of the Sixth Amendment; and (2) the evidence was not sufficient to support a finding that he committed a crime of domestic violence. The Court of Appeals reversed the judgment of the trial court based on Hitch's first claim and finding it dispositive did not address his sufficiency claim. Hitch v. State, 24 N.E.3d 974 (Ind.Ct.App.2015), vacated. Having previously granted transfer, we now affirm the trial court's judgment. Additional facts are set forth below.



We first observe and Hitch concedes he did not object at trial to the domestic violence determination on the grounds of a Sixth Amendment violation. Instead he objected on sufficiency grounds. “It is well-settled law in Indiana that a defendant may not argue one ground for objection at trial and then raise new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind.2000). The issue is waived. Thus we must review this claim through the lens of fundamental error. The doctrine of fundamental error provides an exception to the general rule that the “failure to object at trial constitutes procedural default precluding consideration of the issue on appeal.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind.2013). This “exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006) ). “The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and

51 N.E.3d 220

elementary principles of due process.” Id. (quoting Brown v. State, 929 N.E.2d 204, 207 (Ind.2010) (internal quotation omitted)).

In Blakely v. Washington, the United States Supreme Court held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). The Court has also made clear that “[i]n stating Apprendi's rule, [it had] never distinguished one form of punishment from another. Instead, [the Court's] decisions broadly prohibit judicial factfinding that increases maximum criminal sentence[s], penalties, or punishment[s.]” S. Union Co. v. United States, 576 U.S. ––––, 132 S.Ct. 2344, 2351, 183 L.Ed.2d 318 (2012) (internal quotation omitted).

According to Hitch the firearm prohibition constitutes punishment within the meaning of the Sixth Amendment and thus the underlying facts supporting the prohibition—a determination of domestic violence—must be found by a jury and proven beyond a reasonable doubt. Otherwise, Hitch contends, the prohibition is in violation of his Sixth Amendment right to trial by jury as explicated in Apprendi, Blakely and Southern Union. The State counters the firearm prohibition is not a punishment at all, but instead “the intent and effect of a domestic violence determination in Indiana is to facilitate compliance with the pre-existing federal law that prohibits domestic violence offenders from possessing firearms.”5 Br. of Appellee at 11–12 (citations omitted).

Although disagreeing the statute is punitive in nature, the State nonetheless implicates what is commonly referred to as the “intent-effects” test, which provides a useful analytical framework for examining whether the statute here is constitutionally infirm. Under this test a court first determines whether the legislature meant the statute to establish a civil regulatory regime or impose criminal punishment. Wallace v. State, 905 N.E.2d 371, 378 (Ind.2009) (citation omitted). “If the intention of the legislature was to impose punishment, then that ends the inquiry, because punishment results.” Id. On the other hand, if a court concludes the legislature intended a non-punitive regulatory regime, then the inquiry focuses on whether the scheme is so punitive in effect that it transforms what was intended as a civil and regulatory regime into a criminal penalty. Id. With this framework in mind we examine Indiana Code section 35–38–1–7.7 (which we will refer to for convenience as the “firearm prohibition statute”).


It is difficult to determine legislative intent in this case because as with most

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Indiana statutes there is no available legislative history and the statute does not contain a purpose statement. However we have noted that “[i]n the absence of a stated purpose, one way to determine legislative intent is to examine where the statute is located within the Code.” Jensen v. State, 905 N.E.2d 384, 390 (Ind.2009) (citation omitted). And as the Court of Appeals has pointed out, “Section 35–38–1–7.7, which directs the trial court to determine whether a...

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