Tommy Lee Weir v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 15 2020, 8:41 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Peru, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tommy Lee Weir, October 15, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-184
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable Hans S. Pate,
Appellee-Plaintiff, Judge
Trial Court Cause No.
34D04-1903-F5-701
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Tommy Lee Weir was convicted of domestic battery
resulting in bodily injury to a pregnant woman, a Level 5 felony, and the trial
court sentenced him to serve four years. Weir appeals and raises one issue for
our review which we restate as whether the admission of certain evidence
denied him a fair trial. Concluding it did not, we affirm.
Facts and Procedural History
[2] Weir and his wife, Angel, began experiencing marital problems in early 2019.
Angel had an affair with another man, which she later disclosed to Weir,
causing him to be extremely upset. On February 14, 2019, Angel learned that
she was pregnant and, sometime thereafter, told Weir she was pregnant. At the
time, Weir and Angel shared an apartment and children1 together.
[3] On February 26, Angel was lying in her bed when Weir walked in with her
phone and began yelling at her. Weir had hacked into Angel’s Facebook
account and sent a message to someone using her account. Angel wanted to
read the message, so she grabbed the phone. Weir began acting “very strange[,]
kicking the bed, looking down at his hands, kicking the bed again,” and then
“forcefully grab[bed]” the phone from her. Transcript, Volume I at 58. Weir
then placed the phone on the windowsill, got into a “boxer stance[,]” and
1
It is unclear from the record how many children the couple shares.
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stated, “come on, let’s go, let’s go” while staring at Angel’s stomach. Id. at 58,
60. Weir hit Angel in the mouth, picked her up, and threw her to the ground.
Angel “had to use [her] arm to shield the baby.” Id. at 59. As Angel tried to get
up, Weir ran out of the bedroom with her cell phone. Frustrated, angry and
scared, Angel walked into the living room, picked up a vase, and threw it, but
away from Weir. She then went into the kitchen. Weir was “standing there
looking at [her,]” so she grabbed a knife and told him, “you need to go.” Id. at
63. Weir gave Angel her cell phone back and left the apartment. Weir and
Angel continued to live together following the incident. During that time, they
both worked at Red Lobster.
[4] On March 1, Officer Zachary Griffith of the Kokomo Police Department was
dispatched to investigate an alleged domestic incident involving Weir and
Angel that occurred outside of Red Lobster. After work, the two had begun
arguing and shouting and an altercation over keys ensued. Angel decided to
call the police because she “felt that [Weir] was getting too comfortable with
putting his hands on [her].” Id. at 49. When Angel met with Officer Griffith,
she disclosed the February 26 incident that occurred at her apartment. Angel
completed a domestic violence affidavit detailing the circumstances of the
February 26 incident.
[5] On March 6, the State charged Weir with domestic battery resulting in bodily
injury to a pregnant woman, a Level 5 felony, for the February 26 incident. A
jury trial was held on September 13. During direct examination, the State
questioned Angel about reporting the incident:
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[State]: When did you call the police?
***
[Angel]: March 1st.
[State]: Where were you at that time?
[Angel]: I was at Red Lobster.
[State]: Why were you there?
[Angel]: I worked there.
[State]: Did [Weir] work there?
[Angel]: Yes.
[State]: And there was an incident after work. Is that fair?
[Angel]: Yes.
[State]: A shouting match?
[Angel]: Yes.
[State]: Eventually the police were called.
[Angel]: Right.
[State]: When, and you had an opportunity to talk to
Officer Griffith right here, correct?
[Angel]: Correct.
[State]: Where did you talk to him?
[Angel]: I had called him. I decided to, me and my friend
decided to involve the police because we felt that he
was getting too comfortable with putting his hands
on me. I called, I waited for dispatch across from
his mom’s house.
[State]: Okay. Why did you choose that place?
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[Angel]: Because at the same time after work, although I was
crying and I was upset, I was thinking about my
kids. I tried to go to his aunt’s house to get my
children, but he already had my kids. I figured that
he would probably drive by his mom’s house with
my children.
[State]: And you had a conversation with this officer there?
[Angel]: Yes.
[State]: And do you recall what you told him?
[Angel]: Yes. I told him that [Weir] grabbed me up at work. It
was over-
[Defense] Judge, I am going to object to incidents that are not
charged.
[Court]: Okay. Response?
[State]: I’m fine with moving to strike that . . . answer.
[Court]: Okay. I’m going to sustain the objection and strike
the answer. Next question.
Id. at 48-50 (emphasis added). Later, when answering another question, Angel
again referenced the events on February 26 and March 1. Weir objected and
moved for a mistrial. The trial court denied the motion, struck the references
from the record, and admonished the jury to disregard Angel’s answer.
[6] During cross-examination, defense counsel questioned Angel about the
information she disclosed to Officer Griffith:
[Defense]: . . . Did you ever tell Officer Griffith you were
worried about the children [being] with [Weir]?
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[Angel]: Yes
***
[Defense]: When did you tell him that?
[Angel]: That same night.
[Defense]: And you were worried because he would hurt them
or because he would keep them?
[Angel]: Hurt and I . . . have been physically and mentally-
***
[Defense]: [Y]ou believe that [Weir] was going to hurt the
children, yes or no?
[Angel]: I have two daughters. [Weir]-
[Defense]: Yes or no. Do you believe he was going to hurt the
children?
[Angel]: -in a sexual possible way.
***
[Defense]: You never told Officer Griffith you were worried
about any sexual contact, were you?
[Angel]: I mentioned that-
[Defense]: Did you say sexual contact?
[Angel]: -not him touching my kids. I’m giving up the fact
that even though he picked me up and slammed me,
there was also sexual abuse towards me-
[Defense]: Hold on.
[Angel]: -I have two daughters.
[Defense]: Judge, I am going to ask that that be stricken as
unresponsive. These are yes or no questions.
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[Court]: I’m going to . . . order that . . . the last response be
stricken from the evidence. It’s not responsive. . . .
Id. at 76-77 (emphasis added). Later, during the State’s redirect examination,
Angel testified that she became concerned about her children’s safety on
February 26 and March 1 and stated that “[a]s a mom, you gotta defend your
kids.” Id. at 83. Weir did not object.
[7] Following the presentation of evidence, the jury found Weir guilty as charged
and the trial court entered judgment of conviction. The trial court sentenced
Weir to four years, nine days of which to be served in the Department of
Correction with the remaining days to be served on supervised probation. Weir
now appeals.
Discussion and Decision
I. Standard of Review
[8] Our standard of review in this area is well settled. We review the admission or
exclusion of evidence for an abuse of discretion. Troutner v. State, 951 N.E.2d
603, 611 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs when
a trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App.
2004).
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II. Admission of Evidence
[9] Weir argues that the admission of testimony concerning the alleged March 1
altercation at Red Lobster and Angel’s reasons for keeping her children from
Weir violated Indiana Evidence Rule 404(b) and denied him a fair trial. We
disagree.
[10] Rule 404(b)(1) prohibits the admission of evidence “of a crime, wrong, or other
act . . . to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
[11] On direct examination, Angel testified that she contacted the police on March
1. When asked by the State whether she recalled what she told Officer Griffith,
she stated, “Yes. I told him that [Weir] grabbed me up at work.” Tr., Vol. I at
49. Weir objected on the basis that the statement concerned an alleged incident
for which he was not charged. The State agreed and the trial court sustained
the objection and struck the reference. After Angel again referenced the March
1 events, Weir objected, and the trial court struck the reference and admonished
the jury to disregard the statement. Later, the trial court also struck Angel’s
reference regarding her alleged sexual abuse. Our supreme court has held that
“[a] timely and accurate admonition is presumed to cure any error in the
admission of evidence.” Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002). Here,
because the trial court struck the statements and immediately admonished the
jury to not consider Angel’s answer, any error in these admissions was cured.
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[12] Although Weir acknowledges that the trial court struck these statements, he
argues that the cumulative effect of their admission, as well as other statements,
denied him a fair trial. Weir also takes issue with Angel’s testimony that she
was concerned Weir may harm the children “in a sexual possible way.” Tr.,
Vol. I at 76. However, Weir did not object to this reference or request an
admonishment to the jury. Therefore, the issue is waived unless he can show
fundamental error. Hyppolite v. State, 774 N.E.2d 584, 594 (Ind. Ct. App. 2002),
trans. denied. “The fundamental error doctrine applies only when the actual or
potential harm cannot be denied and the error is so prejudicial to the rights of
the defendant that a fair trial is impossible.” Id. Moreover, the “improper
admission of evidence is harmless error when the conviction is supported by
such substantial independent evidence of guilt as to satisfy the reviewing court
that there is no substantial likelihood that the questioned evidence contributed
to the conviction.” Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009).
[13] In this case, the testimony concerning the alleged altercation at Red Lobster
and Angel’s reasons for keeping Weir from the children were brief, vague, and
ultimately struck from the record, with the exception of Angel’s concern that
Weir may sexually abuse the children. We do not believe that any error in the
admission of this evidence was so highly prejudicial to Weir as to render a fair
trial on battery charges impossible. And given the substantial evidence of
Weir’s guilt, any error in its admission was harmless. Angel testified that, on
February 26, she was in her bed when Weir came in to the room, started
yelling, and ultimately hit her in the face and picked her up and slammed her to
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the ground, which caused her pain. See Ind. Code § 35-42-2-1.3(a)(1), (c)(3)
(2016). This is substantial independent evidence of Weir’s guilt and therefore, it
is unlikely that the admission of the challenged testimony contributed to Weir’s
conviction.
Conclusion
[14] We conclude that the admission of Rule 404(b) evidence, most of which was
struck by the trial court, did not deprive Weir of a fair trial and any error was
harmless. Accordingly, we affirm.
[15] Affirmed.
Crone, J., and Brown, J., concur.
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