Scott A. Estep v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 10 2017, 10:22 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Anthony S. Churchward, P.C. Attorney General of Indiana
Fort Wayne, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott A. Estep, March 10, 2017
Appellant-Defendant, Court of Appeals Case No.
02A04-1608-CR-1916
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-1605-F5-139
Crone, Judge.
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Case Summary
[1] A jury found Scott A. Estep guilty of committing level 5 felony battery against
his girlfriend. Estep now appeals, claiming that the trial court erred in
admitting evidence of a prior battery against his girlfriend. He also claims that
his six-year sentence is inappropriate in light of the nature of the offense and his
character. We conclude that the trial court did not err in admitting the evidence
and that Estep has failed to establish that his sentence is inappropriate.
Therefore, we affirm.
Facts and Procedural History
[2] Estep lived with his girlfriend Maria Nieves in an upstairs apartment in Fort
Wayne. They had dated for two or three years, and they drank and argued a
lot. On May 3, 2016, Estep and Nieves drank beer all day in their apartment
with their downstairs neighbor, Dianna Buchwald. Estep and Nieves started
arguing and pushing and shoving each other. Buchwald said that she was going
to leave and picked up her cell phone. Estep said, “[Y]ou’re not gonna be
calling the cops,” and slammed the phone down, breaking the screen. Tr. at 46.
Buchwald went downstairs to her apartment. Nieves called 911. Officer Sage
Kopp arrived and observed that Nieves was crying and upset but had no visible
injuries. The officer left.
[3] Less than half an hour later, Buchwald heard a “tussle upstairs.” Id. at 43.
Nieves came down to Buchwald’s apartment and was crying and “having a
hard time breathing.” Id. at 44. According to Buchwald, Nieves was “[r]eally
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super upset” and “had red marks on her.” Id. Buchwald called 911. Officer
Kopp arrived and observed that Nieves was “much more upset” and had “some
marks on her that […] looked fresh and were starting to become more
noticeable.” Id. at 55. Nieves was also crying “uncontrollably.” Id. Officer
Kopp took photos of Nieves’s injuries. Officer Randy Miller arrested Estep.
[4] The State charged Estep with battery, resisting law enforcement, and
interference with the reporting of a crime. The State filed a notice of intent to
introduce evidence of Estep’s prior batteries against Nieves in April 2013 and
June 2015 pursuant to Indiana Evidence Rule 404(b), asserting that the
evidence was “relevant and material” to the issues of “[k]knowledge, motive,
intent, preparation, plan, identity, relationship between the parties, and/or
absence of mistake.” Appellant’s App. at 21. After a hearing, the trial court
ruled that evidence regarding the June 2015 battery would be admissible “on
the issue of the nature of the relationship between” Estep and Nieves and that
evidence regarding the April 2013 battery would not be admissible because the
incident was too remote. Id. at 25.
[5] A jury trial was held on June 30, 2016. Estep raised a continuing objection to
any evidence of prior batteries. Nieves testified that she and Estep were
“drunk” and “arguing” and “shov[ed] each other back and forth” during the
May 3 incident. Tr. at 25, 26. She also testified that Estep “wouldn’t
intentionally hurt [her] per se” and that he did not punch or slap or choke her
on May 3. Id. at 28, 39. Over Estep’s hearsay objection, Buchwald testified
that Nieves told her that Estep “was throwing her around and hitting her” on
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May 3. Id. at 46. Over another hearsay objection, Officer Miller testified that
Nieves told him that Estep had “grabbed [her] by the shirt and hit [her] in the
chest[.]” Id. at 71.1 Without objection, the State offered into evidence Officer
Kopp’s photos of Nieves’s injuries.
[6] Finally, Officer Trevon Brown testified that he was dispatched to Estep and
Nieves’s apartment on June 24, 2015. According to the officer, Nieves was
“crying, upset, and injured” and told him that Estep “had assaulted her in the
home and then he had left.” Id. at 85, 86. Officer Brown testified that Nieves
“had various bruises in various stages of healing across her body” and “some
very recent injury to her mouth,” which was bleeding. Id. at 87. The trial court
instructed the jury that the evidence of the prior battery “has been admitted
solely on the issue of the relationship of the parties. It should be considered by
you only for the limited purpose for which it was received and should not be
considered on the ultimate issue of guilt or innocence of [Estep] on these
charges.” Id. at 91-92.
[7] In a bifurcated proceeding, the jury found Estep guilty of battery and not guilty
of the other charges. The jury then found that Estep had a prior conviction for
battering Nieves, which elevated the offense to a level 5 felony. The trial court
sentenced Estep to six years executed. This appeal followed.
1
Nieves’s statements to Buchanan and Officer Miller were admitted as excited utterances under Indiana
Evidence Rule 803(2). Estep does not challenge their admissibility on appeal.
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Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
admitting evidence regarding Estep’s prior battery of Nieves.
[8] Estep first contends that the trial court erred in admitting Officer Brown’s
testimony regarding his June 2015 battery of Nieves. The admission of
evidence is within the trial court’s discretion. Scisney v. State, 55 N.E.3d 321,
323 (Ind. Ct. App. 2016), trans. denied. “We will reverse a ruling on the
admission of evidence only for an abuse of that discretion, which occurs only
when the ruling is clearly against the logic and effect of the facts and
circumstances and the error affects a party’s substantial rights.” Id.
[9] The challenged testimony was admitted pursuant to Evidence Rule 404(b),
which provides in pertinent part that “[e]vidence of a crime, wrong, or other act
is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character” but
“may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” The rule’s “list of permissible purposes is illustrative but not
exhaustive.” Vermillion v. State, 978 N.E.2d 459, 463 (Ind. Ct. App. 2012). In
assessing the admissibility of Rule 404(b) evidence, the court must determine
that it is relevant to a matter at issue other than the defendant’s propensity to
commit the charged act and then balance its probative value against its
prejudicial effect pursuant to Evidence Rule 403. Ortiz v. State, 716 N.E.2d 345,
350 (Ind. 1999). Evidence Rule 401 provides that evidence is relevant if it “has
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any tendency to make a fact more or less probable than it would be without the
evidence” and “the fact is of consequence in determining the action.” Evidence
Rule 403 provides that the court “may exclude relevant evidence if its probative
value is substantially outweighed by a danger of … unfair prejudice[.]”
[10] Our supreme court has stated that evidence of a defendant’s prior actions with
respect to the victim is “usually admissible to show the relationship between the
two[,]” id., which was the basis for the admission of the prior battery evidence
in this case. Estep first contends that the relevance of the prior battery is
“insignificant” because it “occurred almost a full year before the charged
offense.” Appellant’s Br. at 14. Estep cites no authority to support this
contention. In any event, the relevance of the June 2015 battery was far more
significant than that of the April 2013 battery, which the trial court excluded as
being too remote.
[11] Estep also suggests that the prior battery evidence was irrelevant because “there
was no dispute that [he] and Ms. Nieves were in an intimate relationship.” Id.
at 15. Although the existence of their intimate relationship was undisputed, the
nature of the relationship was another matter entirely. Nieves acknowledged
that she and Estep drank and argued frequently and engaged in mutual pushing
and shoving, but she claimed that he “wouldn’t intentionally hurt [her] per se.”
Tr. at 28. This left a false impression with the jury, and the evidence of the
prior battery was relevant to rebut this falsehood. Cf. Davis v. State, 907 N.E.2d
1043, 1055 (Ind. Ct. App. 2009) (noting that otherwise inadmissible evidence
may become admissible where defendant “opens the door” to questioning on
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that evidence by leaving trier of fact with false or misleading impression of
facts).
[12] Finally, Estep complains that the evidence regarding the prior battery “had
great prejudicial effect” because Nieves was “the only person who had personal
knowledge of what occurred to her” and the other witnesses “all testified to
statements given to them by [her].” Appellant’s Br. at 15. We have stated that
“[a]ll evidence that is relevant to a criminal prosecution is inherently
prejudicial; thus proper inquiry under Evidence Rule 403 boils down to a
balance of the probative value of the proffered evidence against the likely unfair
prejudicial impact of that evidence.” Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct.
App. 2014), trans. denied. “When determining the likely unfair prejudicial
impact, courts will look for the dangers that the jury will substantially
overestimate the value of the evidence or that the evidence will arouse or
inflame the passions or sympathies of the jury.” Id. In this case, the trial court
minimized those dangers by giving the aforementioned limiting instruction to
the jury. “When a limiting instruction is given that certain evidence may be
considered for only a particular purpose, the law will presume that the jury will
follow the trial court’s admonitions.” Ware v. State, 816 N.E.2d 1167, 1176
(Ind. Ct. App. 2004). Under these circumstances, we cannot conclude that the
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trial court abused its discretion in admitting the prior battery evidence.2
Therefore, we affirm Estep’s conviction.
Section 2 – Estep has failed to establish that his sentence is
inappropriate.
[13] Estep also asks us to reduce his sentence pursuant to Indiana Appellate Rule
7(B), which provides that this Court “may revise a sentence authorized by
statute if, after due consideration of the trial court's decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” The principal role of appellate review is to leaven
the outliers, not to achieve the perceived correct result in each case. Kunberger
v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The question is not whether
another sentence is more appropriate but whether the sentence imposed is
inappropriate. Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). The defendant
bears the burden of persuading us that his sentence is inappropriate. Prater v.
State, 59 N.E.3d 314, 318 (Ind. Ct. App. 2016).
[14] “The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed.” Blair v. State, 62 N.E.3d 424,
430 (Ind. Ct. App. 2016). Estep committed battery with a prior battery
conviction against the same person, which is a level 5 felony. Ind. Code § 35-
2
Notwithstanding, any error in admitting the evidence could only be considered harmless given Nieves’s
statements to Buchanan and Officer Miller that Estep battered her, Officer Kopp’s photos of Nieves’s
injuries, and Officer Kopp’s testimony that no such injuries were visible during her first visit to the
apartment.
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42-2-1(g)(4)(A). The sentencing range for a level 5 felony is one to six years,
with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). Battery is
the knowing or intentional touching of another person in a rude, insolent, or
angry manner. Ind. Code § 35-42-2-1(c)(1). At trial and at the sentencing
hearing, the State presented evidence that a drunk and argumentative Estep
grabbed and hit Nieves approximately one month after he finished serving his
sentence for battering her in June 2015. Nieves’s injuries may not have been
serious, but the timing of the offense certainly supports a sentence above the
advisory term.
[15] The timing of the offense is also indicative of Estep’s character as a career
criminal who has made no efforts to reform his behavior after numerous
encounters with the justice system in five Indiana counties. Since 1985, fifty-
one-year-old Estep has accumulated a staggering twenty-seven misdemeanor
convictions (including criminal conversion, criminal mischief, criminal trespass,
battery, marijuana possession, public intoxication, operating while intoxicated,
and resisting law enforcement) as well as five felony convictions (including
cocaine possession, escape, failure to return to lawful detention, and battery).
He has had three suspended sentence modifications and one probation
revocation, and he has received substance abuse evaluation and counseling that
obviously failed to have an impact on him. This is his third conviction for
battering Nieves, and at the time of his arrest a 2011 warrant remained pending
for failure to appear for a pretrial conference on three misdemeanor charges.
Estep notes that his most serious prior offense was a level 6 felony, and he
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argues that he is not “the ‘worst of the worst’ of offenders deserving of the
maximum sentence.” Appellant’s Br. at 17. The sheer number of his prior
convictions, his serial battering of his girlfriend, and his failure to respond to
judicial leniency all demonstrate otherwise. Estep has failed to persuade us that
his sentence is inappropriate, and therefore we affirm it.
[16] Affirmed.
Riley, J., and Altice, J., concur.
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