McMillen v. State
| Decision Date | 01 June 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1822 |
| Parties | Michael Lee MCMILLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Chad A. Montgomery, Lafayette, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General Indianapolis, Indiana
[1] Michael McMillen was convicted in Tippecanoe Superior Court of Level 5 felony battery and Class C misdemeanor possession of paraphernalia. McMillen appeals his battery conviction, arguing that the trial court abused its discretion when it admitted hearsay evidence over McMillen's objection at trial. Concluding that the trial court properly admitted the challenged evidence, we affirm.
[2] On February 3, 2020, McMillen was involved in an altercation with his mother, Leshia Beers ("Beers"), at their home in Lafayette, Indiana. McMillen punched and choked her. Beers and McMillen were the only two persons inside the home at the time of the altercation. Fearing Beers would call the police, McMillen fled the house. Within minutes of the attack, Beers saw a police officer outside her home, and she knocked on her window to get the officer's attention.
[3] Officer Neal Cain saw Beers in the window and approached the home. When Beers opened the door, she was crying and had several visible injuries: a large bump on her forehead with a bleeding cut in the middle of the bump; a bruised and bloody nose; heavy bruising under her left eye and cheek; significant bruising on her rib cage, one shoulder blade, her back, and her right bicep. Beers told Officer Cain that she and her son "got into it" and that he "abused" her. Ex. Vol., State's Ex. 19R. She also told the officer that McMillen hit her with his fist and choked her. Officer Cain recorded his conversation with Beers on his body camera. Officer Cain photographed blood stains he observed in the home, which included blood stains on Beers's bed pillows and sheets and on her couch. Ex. Vol., State's Exs. 7–13.
[4] Later that day, Officer Cain returned to Beers's home to continue his investigation. The officer spoke to Beers and McMillen, who had returned to the home. The officer noticed that Beers had more bruising than he had observed earlier that day. When Beers spoke to Officer Cain for this second time, she changed her explanation of how she was injured. Tr. p. 42. Beers did not dispute McMillen's claim that he did not hit her. McMillen stated that he and his mother argued because she wanted him to leave the house. Id. at 52. McMillen told the officer that Beers fell in the bathtub but also claimed she fell the front porch. Id. at 51.
[5] During their conversation, Officer Cain saw a pipe in McMillen's pocket that the officer knew was commonly used to smoke illegal substances. The officer also observed that the inside of the pipe contained a white powdery residue.
[6] On February 7, the State charged McMillen with Level 5 felony battery, Class A misdemeanor battery, and Class C misdemeanor possession of paraphernalia. McMillen was charged with both Level 5 felony battery and misdemeanor battery because he had a prior battery conviction against Beers in 2018.
[7] McMillen's bifurcated jury trial commenced on August 6. Beers acknowledged that she and McMillen argued on the date she was injured, but she maintained that he did not hit her. Id. at 23–24. She stated she was injured because she had trouble maintaining her balance and ran into walls. Id. She remembered Officer Cain and that she spoke to him, but she had no independent recollection of the statement she gave to the officer.1 Id. at 24–25.
[8] The State introduced State's Exhibit 19, which was the recording from Officer Cain's body camera. Beers recognized the exhibit and testified that she had both previously watched the footage and signed the disc containing the recording. Id. at 29–30. The State offered the exhibit into evidence, and the trial court admitted it over McMillen's hearsay objection. The recording was played for the jury and, at McMillen's request, the trial court instructed the jury that it should not consider Officer Cain's statements as evidence.
[9] The jury found McMillen guilty of Class A misdemeanor battery and Class C misdemeanor possession of paraphernalia and proceeded to the second phase of trial—elevation of the Class A misdemeanor to a Level 5 felony based on McMillen's prior battery conviction. In support of the felony charge, the State offered into evidence documents establishing McMillen's prior conviction. McMillen objected, but the trial court admitted the documents because they were certified by the Tippecanoe County Court Clerk. McMillen testified and admitted that he had previously been convicted of battery against Beers. Id. at 103–05. The jury found McMillen guilty of Level 5 felony battery. McMillen was subsequently sentenced to an aggregate term of five years, with two years executed in the Department of Correction, two years in community corrections, and one year of supervised probation.
[10] McMillen now appeals, challenging the admission of (1) Beers's statements to Officer Cain and (2) the exhibit used to prove his prior battery conviction.
[11] Our standard of reviewing claims of alleged evidentiary error is well settled: the decision to admit or exclude evidence is committed to the sound discretion of the trial court and will be reviewed only for an abuse of that discretion. Ballard v. State , 877 N.E.2d 860, 861–62 (Ind. Ct. App. 2007). "An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Housand v. State , 162 N.E.3d 508, 513 (Ind. Ct. App. 2020), trans. denied.
[12] However, "errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party." Hoglund v. State , 962 N.E.2d 1230, 1238 (Ind. 2012) ; Ind. Trial Rule 61. To determine whether an error in the admission of evidence affected the defendant's substantial rights, we consider the probable impact the evidence had on the jury. Shepherd v. State , 902 N.E.2d 360, 364 (Ind. Ct. App. 2009), trans. denied.
[13] McMillen argues that the trial court abused its discretion when, over his hearsay objection, it admitted into evidence Officer Cain's body-camera recording that included Beers's statements implicating her son. Hearsay is "a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Evidence including hearsay is generally inadmissible, subject to a handful of specific and limited exceptions. Cornell v. State , 139 N.E.3d 1135, 1143 (Ind. Ct. App. 2020), trans. denied ; Evid. R. 802 - 804. And we will affirm the trial court's hearsay ruling on any legal basis apparent in the record. Robinson v. State , 730 N.E.2d 185, 194 (Ind. Ct. App. 2000).
The State does not dispute that Beers's statements to Officer Cain were hearsay; rather, the State first contends that the trial court properly admitted Beers's recorded statements under the recorded recollection exception. Under this exception, the trial court can admit "[a] record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge." Ind. Evid. R. 803(5). While the recorded recollection exception applies when a witness has insufficient memory of the recorded event, the witness must still be able to "vouch for the accuracy of the prior statement." Kubsch v. State , 866 N.E.2d 726, 734 (Ind. 2007) (cleaned up); see also Williams v. State , 698 N.E.2d 848, 851 n.4 (Ind. Ct. App. 1998) ().
[14] Here, Beers testified that she remembered Officer Cain coming to her home immediately after her altercation with McMillen and that she spoke to him. Tr. p. 20. But she stated that she did not remember anything she said to the officer until viewing the body-camera footage. Yet, even after watching the recording, Beers testified that she had no "independent recollection of the statements [she] gave to Officer Cain on that day." Tr. p. 25. Thus, Beers did not vouch for the accuracy of her statement to the officer; therefore, the recording cannot be properly admitted under the recorded recollection exception to the hearsay rule.2
Hurt v. State , 151 N.E.3d 809, 813–14 (Ind. Ct. App. 2020) (cleaned up).
[16] Here, Beers's statements to Officer Cain identifying McMillen as her assailant were admissible...
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