Killebrew v. State
| Decision Date | 27 February 2015 |
| Docket Number | No. 34A05–1407–CR–318.,34A05–1407–CR–318. |
| Citation | 29 N.E.3d 821 (Table) |
| Parties | Myron D. KILLEBREW, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Donald E.C. Leicht Kokomo, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
BROWN
, Judge.
[1] Myron D. Killebrew appeals his convictions for strangulation as a class D felony, invasion of privacy as a class A misdemeanor, and domestic battery as a class A misdemeanor. Killebrew raises three issues which we revise and restate as:
We affirm.
[2] Killebrew and Ena Moore dated for approximately two or two and a half years, and during two periods of “a month or two at two different times” they lived together “as if [they] were married ....“ Transcript at 25. On August 2, 2012, after multiple violent altercations between Killebrew and Moore, Moore received an ex parte protective order against Killebrew stating in part that Killebrew “is prohibited from harassing, annoying, telephoning, contacting or directly or indirectly communicating with” Moore. State's Exhibit 1. The protective order was valid for two years through August 2, 2014, and was served on Killebrew the same day it was issued.
[3] On August 24, 2013, Moore visited with some friends at a bar and played pool, and afterwards at around 9:00 p.m., she walked to Killebrew's home and he let her inside. They started drinking and at one point began to argue with each other in his bedroom. Killebrew shoved Moore onto the bed and grabbed her throat, and she was unable to breathe, was in pain, and thought she was going to die. While continuing to strangle her, Killebrew moved her in front of a mirror and stated “today was a good day to die.” Id. at 34. Moore grabbed a drinking glass and hit Killebrew in the head with the glass, cutting his head. He then released her from his grasp, and, at that moment, someone knocked on the door to the home. Thinking the knock was the police, Killebrew had Moore, who was nude, cover up using a blanket and go to answer the door. Moore asked the person at the door to call the police, but that person refused, and she then ran out of the house to a neighbor's home to call the police.
[4] Kokomo Police Department Officers Dustin Spicer and Cameron Cunningham were dispatched to Killebrew's home and observed Moore, who was crying, walking down the front steps toward the road wearing only a blanket. Moore told the officers that Killebrew had strangled her and punched her in the face, and the officers observed dried blood on her face and arms, scratches on her right shoulder, bruises on her left arm, and marks on her neck. The officers then noted the protective order in place prohibiting Killebrew's contact with Moore. Moore was treated by paramedics at the scene for her injuries, and four days later she went to the hospital due to the injuries to her throat
. Killebrew was transported to the hospital for treatment to the cut on his head, and at the hospital he became aggressive with officers after he had been advised that he would be arrested. When the officers attempted to restrain him, he fought with them and attempted to bite one of them.
[5] On August 26, 2013, the State charged Killebrew with Count I, strangulation as a class D felony; Count II, invasion of privacy as a class A misdemeanor; and Count III, domestic battery as a class A misdemeanor. On May 9, 2014, the court held a jury trial at which evidence consistent with the foregoing was presented. At the trial, Moore indicated that she had previously asked for the protective order and agreed that it was issued on August 2, 2012, and did not expire until August 2, 2014. The State presented Moore with a photograph depicting her wrapped in a blanket with some blood on her face and marked State's Exhibit 3, and she indicated that the photograph was taken on the night in question. When asked if she had an injury depicted in the photograph, Moore testified: “I know that's his blood.” Id. at 36. When the State offered the photograph into evidence, Killebrew's counsel asked preliminary questions and objected due to lack of proper foundation. The court overruled the objection and admitted the photograph. The State then handed Moore another photograph depicting marks on her neck and marked as State's Exhibit 4, and Moore indicated that she recognized the photograph, that the photograph was of her, and that it was taken on the night in question. She specifically indicated that the photograph “truly and accurately represent[ed her] on the night of these events.” Id. at 39. When offered, Killebrew again objected due to lack of proper foundation, and the court admitted State's Exhibit 4 over his objection. On cross-examination, Moore testified that she “thought [the protective order] had been dropped” but found out following the incident that “it wasn't.” Id. at 45. She testified that she “told him [she] thought it was dropped but it was a different one ....“ Id. at 46.
[6] Officer Spicer testified that he recognized the photograph admitted as State's Exhibit 3, that he took the photograph, and that the photograph was “a true and accurate representation of the injuries [he] witnessed.” Id. at 60. Officer Spicer similarly testified that he took the photograph admitted as State's Exhibit 4 and that the photograph depicted “[t]he redness around, surrounding her neck, her throat area,” which he observed with his naked eye. Id. at 61.
[7] When asked about the protective order, Killebrew testified that he Id. at 89. He testified that he “knew about a no contact order” but “never knew about a protection order.” Id. at 90. He further testified that he believed the order was dropped “[b]ecause [he] completed the classes that [the court] had [him] do and just say [sic] at the end of the classes, you're pretty much, everything gets dropped.” Id. at 90–91. He testified that he also believed the order had been dropped because “the police have already brought her to my house” after Moore “got in some kind of altercation with her son-in-law or something ... two, three months prior to this incident ....“ Id. at 91. On cross-examination, Killebrew testified that due to a previous altercation, he was ordered to take a series of twenty-seven domestic violence classes over a period of six months, and when asked if it was “possible there was another protective order out there,” he responded: “I guess it's possible because that's pretty much what's going on.” Id. at 105. When asked if he was served the protective order while in jail on August 2, 2012, Killebrew stated: Id. at 106.
[8] On May 13, 2014, the jury found Killebrew guilty as charged. On June 11, 2014, the court sentenced him to three years executed in the Department of Correction on Count I, one year suspended on Count II, and one year suspended on Count III, and the court ordered that Counts II and III be served concurrently on supervised probation and consecutive to Count I.
[9] The first issue is whether the trial court abused its discretion in admitting certain photographs into evidence. The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002)
. An abuse of discretion occurs “where the decision is clearly against the logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), reh'g denied, trans. denied.
[10] As a general rule, photographs are admissible as demonstrative evidence if they illustrate a matter about which a witness has been permitted to testify. Timberlake v. State, 679 N.E.2d 1337, 1341 (Ind.Ct.App.1997)
. The proponent of the evidence must first authenticate the photograph. Id. The sponsoring witness must establish that the photograph is a true and accurate representation of the things that it is intended to portray. Id. The photograph must also be relevant. Id. “ ‘Relevant evidence’ means evidence having any tendency to make 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. A photograph is relevant if it depicts a scene that a witness would be permitted to describe verbally. Timberlake, 679 N.E.2d at 1341. Relevant evidence is generally admissible; evidence that is not relevant is not admissible. Ind. Evidence Rule 402. Also, “[t]he photographer need not be called to authenticate it, rather, anyone familiar with the material in the picture may testify as to its accuracy.” McPherson v. State, 178 Ind.App. 539, 552, 383 N.E.2d 403, 412 (1978) (citing Boone v. State, 267 Ind. 493, 494–495, 371 N.E.2d 708, 709 (1978) ).
[11] Killebrew argues that two photographs admitted into evidence as State's Exhibits 3 and 4 lacked a proper foundation. He asserts that Moore testified she could not remember what she had written in the domestic violence affidavit and that she did not take either photograph. He argues that she testified she had not seen State's Exhibit 3 depicting blood on her face until the trial and “never even testified that it...
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