Tamika Ballance v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
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 FILED
the defense of res judicata, collateral Dec 16 2020, 9:15 am
estoppel, or the law of the case.
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Frederick Vaiana Megan M. Smith
Voyles Vaiana Lukemeyer Baldwin & Deputy Attorney General
Webb Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tamika Ballance, December 16, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CR-1312
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela D. Davis,
Appellee-Defendant. Judge
The Honorable H. Patrick
Murphy, Magistrate
Trial Court Cause No.
49G16-2001-F6-1290
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1312| December 16, 2020 Page 1 of 6
Case Summary
[1] Tamika Ballance was involved in an altercation at the IndyGo bus terminal,
during which she bit Diane Ford. Though Ford was not present at trial, a
security officer who observed the incident, testified as to the victim’s identity
and Ballance was convicted of Class B misdemeanor battery. On appeal,
Ballance claims that the in-court identification of the victim constituted a
fundamental error and that there was insufficient evidence to sustain the
conviction. Because we disagree, we affirm.
Facts and Procedural History
[2] On January 10, 2020, Ballance and Ford were involved in an altercation at the
IndyGo bus terminal (Tr. 4-5). During that altercation, Ballance bit Ford on
the wrist and attempted to pull a phone from Ford’s hands. Ballance was
charged with Level 6 felony domestic battery and Class A misdemeanor theft
(App. Vol. II, 31). Ford was not present at Balance’s trial which was held on
June 22, 2020. Isiah Hagemeyer, a security officer who observed the altercation
and Ballance bite Ford, was the only witness to testify (Tr. 3). While testifying,
Hagemeyer could not initially recall the name of the victim (Tr. 6). The State
entered a photo of the alleged victim, taken at the IndyGo bus terminal on the
day of the incident, which Hagemeyer identified to be the victim (Tr. 6).
Hagemeyer testified that he would have written up a report about the incident
and asked for the victim’s name before writing the report (Tr. 7). The State
then introduced Ford’s certified driver’s record from the Bureau of Motor
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Vehicles (“BMV”), which contained a photograph of Ford. (Tr. 7-8; State’s Ex.
2). After reviewing Ford’s driver’s record, Hagemeyer identified Ford as the
same woman Ballance bit and stated he recognized Ford’s name as the name of
the victim (Tr. 8). Ballance made no objections to Hagemeyer’s identification
or to the State’s exhibits (Tr. 7-8). The trial court found that the State had failed
to provide any evidence of a domestic relationship between Ballance and Ford
or sufficient evidence of theft. However, the trial court found that the State had
proven that Ballance had committed the lesser-included offense of Class B
misdemeanor battery (Tr. 14-16).
Discussion and Decision
I. Fundamental Error
[3] “The decision to admit or exclude evidence at trial is squarely within a trial
court’s discretion and should be afforded great deference on appeal.” Carpenter
v. State, 786 N.E.2d 696, 702 (Ind. 2003). We will only “disturb [a trial court’s]
rulings only where it is shown that the court abused its discretion.” Camm v.
State, 908 N.E.2d 215, 225 (Ind. 2009). “A claim that has been waived by a
defendant’s failure to raise a contemporaneous objection can be reviewed on
appeal if the reviewing court determines that a fundamental error has
occurred.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). “The ‘fundamental
error’ exception is extremely narrow and applies only when the error constitutes
a blatant violation of basic principles, the harm or potential harm is substantial,
and the resulting error denies the defendant fundamental due process.”
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Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (quoting Boesch v. State, 778
N.E.2d 1276, 1279 (Ind. 2002)). The error may also be fundamental when it
“make[s] a fair trial impossible.” Brown, 929 N.E.2d at 207 (quoting Clark v.
State, 915 N.E.2d 126, 131 (Ind. 2009) (internal quotations omitted).
[4] No fundamental error occurred during Ballance’s trial. “[A] degree of
suggestiveness is inherent in all in court identifications;” however, “[w]hether a
particular identification procedure rises to a level of suggestiveness that
constitutes reversible error must be determined from the context of the case.”
Emerson v. State, 724 N.E.2d 605, 609 (Ind. 2000). There is no fundamental
error simply because Hagemeyer could not initially recall the victim’s name or
because the evidence introduced to identify the victim was supplied by the
prosecutor. Ballance also argues that this method of in-court identification is
too suggestive, due in part to the limited amount of exhibits upon which the
prosecution relied in making their case. We disagree. Despite Ford not being
present at trial, Hagemeyer was able to use a photo of the victim taken at the
IndyGo bus station on the day of the altercation, Ford’s certified driver’s record
from the BMV, and identify that Ford was the victim he saw Ballance bite.
Hagemeyer’s identification of Ford was proper, and did not constitute error, let
alone a fundamental error.
II. Sufficiency of the Evidence
[5] “When reviewing the sufficiency of the evidence to support a conviction,
‘appellate courts must consider only the probative evidence and the reasonable
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inferences supporting the verdict.’” Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)) (emphasis in
original). A conviction will be affirmed unless, after considering all the
evidence and reasonable inferences favorable to the judgement, we conclude
that no reasonable fact finder could find the elements of the crime proven
beyond a reasonable doubt. See Abney v. State, 858 N.E.2d 226, 228 (Ind. Ct.
App. 2006). Further, “[a] verdict will be sustained based on circumstantial
evidence alone if the circumstantial evidence supports a reasonable inference of
guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000). This standard of review
does not permit us to reweigh the evidence or allow us to judge the credibility of
the witnesses. McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018).
[6] The trial court found that the State’s evidence was insufficient to convict
Balance of either theft or domestic battery. However, the trial court did find
sufficient evidence supported Ballance’s conviction for Class B misdemeanor
battery.1 Indiana Code section 35-42-2-1 states “a person who knowingly or
intentionally: touches another person in a rude, insolent, or angry manner[,]”
commits battery. Hagemeyer testified that he observed Ballance bite Ford –
identifying both during his testimony. “Testimony of a single eyewitness is
sufficient to sustain a conviction.” Hubbard v. State, 719 N.E.2d 1219, 1219
(Ind. 1999). We view Ballance’s argument that Hagemeyer’s testimony alone is
1
See Jones v. State, 976 N.E.2d 1271, 1276–1277 (Ind. Ct. App. 2012) (stating that battery is a lesser included
offense of domestic battery).
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insufficient as an invitation to reweigh the evidence, which we will not do. See
McCallister, 91 N.E.3d at 558.
[7] The judgment of the trial court is affirmed.
Kirsch, J., and Mathias, J., concur.
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