Myron D. Killebrew v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 27 2015, 9:59 am
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Myron D. Killebrew, February 27, 2015
Appellant-Defendant, Court of Appeals Case No.
34A05-1407-CR-318
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C. Menges,
Jr., Judge
Appellee-Plaintiff.
Cause No. 34D01-1308-FD-663
Brown, Judge.
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[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:
I. Whether the trial court abused its discretion in admitting certain
photographs into evidence; and
II. Whether the evidence is sufficient to sustain his conviction for invasion
of privacy.1
We affirm.
Facts and Procedural History
[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
1
Killebrew also attempts to challenge his sentence and suggests that the court either abused its discretion in
sentencing him or that his sentence is inappropriate. As observed by the State in its brief, however, Killebrew
does not formulate any argument with regard to either issue and instead merely recites the relevant standards
of review. Indeed, the only statement regarding these issues in his brief that might be considered argument is
the final statement of the argument section which states: “Killebrew argues that his convictions should be
overturned; however, if this Court rules otherwise, [he] argues that all acts would have occurred in the space
of seconds. All sentences imposed should be concurrent not consecutive.” Appellant’s Brief at 13. We find
that Killebrew has waived his challenges to his sentence. See, e.g., Gentry v. State, 835 N.E.2d 569, 575-576
(Ind. Ct. App. 2005) (holding that the defendant’s “failure to offer more than a mere conclusory statement
that his sentence should be reduced waives his opportunity for appellate review”) (footnote omitted); see also
Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived
because it was “supported neither by cogent argument nor citation to authority”); Shane v. State, 716 N.E.2d
391, 398 n.3 (Ind. 1999) (holding that the defendant waived argument on appeal by failing to develop a
cogent argument); Smith v. State, 822 N.E.2d 193, 202–203 (Ind. Ct. App. 2005) (“Generally, a party waives
any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record.”), trans. denied. Moreover, even were we to address the issue, we would
not conclude that the court abused its discretion in sentencing Killebrew or that his sentence was
inappropriate.
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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
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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
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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 “never knew
actually when the protective order was on me. I’d say after the first case, they
told me that it was all dropped.” 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
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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: “I imagine so but I cannot recall. I guess because I, if I as [sic]
incarcerated, I must have been so heated that I just signed the paper that they
put in front of me.” 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.
Discussion
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
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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
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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 accurately represented her blood on her face,”
instead testifying “that it was Killebrew’s blood that dripped on her face . . . .”
Appellant’s Brief at 7. Regarding State’s Exhibit 4, which depicts the marks on
Moore’s neck, Killebrew notes that the State asked Moore if the picture
“accurately represents you on the night of these events” and that she replied
“[y]eah.” Id. at 8. In addition, he “asks this Court to do a very simple exercise.
Lower your chin. Look down. And see if you can see your neck. And you are
not drunk. Moore couldn’t see her neck either.” Id. He argues: “Why didn’t
the State wait until the Officer who took the photographs could authentic [sic]
them?” Id. He also argues that the admission of the photographs was not
harmless error because, without the photographs, the evidence was insufficient
to convict him on Count I, strangulation as a class D felony.
[12] The State argues that the photographs were properly admitted as Moore
testified that they “were photographs of her taken on the night in question.”
Appellee’s Brief at 9. The State asserts that “Killebrew tacitly concedes that the
officer who took the photographs later laid adequate foundation when he
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testified that the photographs were a true and accurate depiction of the scene as
he witnessed it.” Id. at 9-10. The State contends that “Killebrew incorrectly
attempts to apply a silent witness level of authentication to these photographs,
which were admitted for demonstration purposes.” Id. at 10. It further argues
that, even if the court erred in admitting the photographs, the error was
harmless because “an accurate foundation was laid for the photographs, at the
very least, by the officer” and “the photographs were merely cumulative of the
testimony of the witnesses.” Id.
[13] Regarding State’s Exhibit 4, the record reveals that when presented with the
photograph Moore indicated that she recognized it, that it was of her, and that
it was taken on the night in question. Moore specifically indicated that the
photograph “truly and accurately represent[ed her] on the night of these
events.” Transcript at 39. To the extent Killebrew suggests that Moore could
not authenticate State’s Exhibit 4 because she could not view her neck injuries
by looking down, we note that she recognized herself in the photograph and
further testified that she sought medical attention for her neck injuries.
Accordingly, we conclude that the court did not abuse its discretion in
admitting State’s Exhibit 4.
[14] Second, when presented with State’s Exhibit 3, which depicted Moore wrapped
in a blanket with some blood on her face and marked State’s Exhibit 3, 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. To the extent that Killebrew argues that the photograph
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did not accurately depict her blood on her face, we note that Moore testified
that the blood was Killebrew’s. Thus, Moore placed the photograph in context
and explained what it depicted, which was that she was found wearing only a
blanket and with Killebrew’s blood on her face. We cannot say that the court
abused its discretion in admitting State’s Exhibit 3.
[15] Even if it was an abuse of discretion for the court to admit State’s Exhibit 3
because Moore did not testify that it was a true and accurate representation of
what it was intended to portray, we find such error to be harmless. An error
will be found harmless if its probable impact on the jury, in light of all of the
evidence in the case, is sufficiently minor so as not to affect the substantial
rights of the parties. Gault v. State, 878 N.E.2d 1260, 1267-1268 (Ind. 2008).
The record reveals that, following Moore’s testimony, the State called Officer
Spicer who 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.” Transcript at 60.
[16] Moreover, we find that the photographs admitted as State’s Exhibits 3 and 4
were cumulative of other evidence properly admitted. See Helsley v. State, 809
N.E.2d 292, 296 (Ind. 2004) (holding that admission of cumulative evidence
alone is insufficient to warrant a new trial (citing Kubsch v. State, 784 N.E.2d
905, 923 (Ind. 2003))). Moore testified that when she encountered police she
was wearing only a blanket, and she explained that when she struck Killebrew
with a glass she caused him to bleed. Officer Spicer gave similar testimony
regarding the condition of Moore when he found her. He also testified
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regarding his observations of “redness around, surrounding her neck, her throat
area,” which he observed with his naked eye. Transcript at 61. Reversal on
this basis is not warranted.
II.
[17] The next issue is whether the evidence is sufficient to sustain Killebrew’s
conviction for invasion of privacy. When reviewing claims of insufficiency of
the evidence, we do not reweigh the evidence or judge the credibility of
witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather,
we look to the evidence and the reasonable inferences therefrom that support
the verdict. Id. We will affirm the conviction if there exists evidence of
probative value from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. Id.[18] Ind. Code § 35-46-1-15.1 governs the crime of invasion of privacy and provided
in relevant part at the time of the offense as follows: “A person who knowingly
or intentionally violates: . . . (2) an ex parte protective order issued under IC 34-
26-5 . . . commits invasion of privacy, a Class A misdemeanor. . . .” Ind. Code
§ 35-46-1-15.1 (West 2010) (subsequently amended by Pub. L. No. 158-2013, §
557 (eff. July 1, 2014)). The State alleged, under Count II, that “on or about
August 24, 2013 at or near 931 E. Richmond in Howard County, State of
Indiana, Myron Dale Killebrew, did knowingly or intentionally violate an ex
parte protective order issued under I.C. 34-26-5 . . . to protect Ena Moore . . . .”
Appellant’s Appendix at 15.
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[19] Killebrew argues that “[a]ll of the evidence in this case is that [he] did not
‘knowingly or intentionally’ violate anything.” Appellant’s Brief at 5. He
maintains that “Moore believed that she didn’t have a protective order and that
the protective order she has obtained was no longer in effect,” and that she told
Killebrew that the order was no longer in effect. Id. (internal citation omitted).
Killebrew asserts that he “believed the protective order had been vacated by his
complying with the Court’s order to successfully complete classes.” Id. He also
argues that “the State showed him there was no protective order when the
police brought an intoxicated Moore to him just months before.” Id. He
further asserts without citation to authority that “at a minimum, the State
should be estopped from acting that there is no protective order in April, 2013,
and charging a violation of one mere months later.” Id. at 6.
[20] The State argues that “Killebrew admitted that a protective order was in place
against him, and that he was served with the order the day it was issued.”
Appellee’s Brief at 7. It asserts that there was “no dispute that Moore was
inside Killebrew’s house, and that his contact with her was a violation of the
protective order.” Id. The State contends that Killebrew’s argument is a
request to “reweigh the evidence and credit his self-serving statements that he
was unaware of the order . . . .” Id. at 8.
[21] The record reveals that on August 2, 2012, 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 exhibit of the protective
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order admitted into evidence indicates that it was served on Killebrew that
same day. Although Killebrew initially testified that he believed the protective
order had been dropped, during cross-examination he admitted that it was
“possible” that the order was separate from a no contact order he had received
previously for which he had attended domestic violence classes. Transcript at
105. He was also asked about whether he had been served the protective order
on August 2, 2012, and he testified: “I imagine so but I cannot recall. I guess
because I, if I as [sic] incarcerated, I must have been so heated that I just signed
the paper that they put in front of me.” Id. at 106. Moore testified that she
“told him [she] thought it was dropped but it was a different one . . . .” Id. at
46. On August 24, 2013, while the protective order was in effect, Moore
knocked on Killebrew’s door and Killebrew let Moore inside.
[22] We conclude that the State presented evidence of probative value from which a
reasonable jury could have found that Killebrew knowingly violated the
protective order, and his arguments amount to an invitation to reweigh the
evidence or judge the credibility of witnesses, which we cannot do. See Jordan,
656 N.E.2d at 817. In so concluding, we observe, regarding the potential
impact of Moore’s decision to visit Killebrew’s home, that the “lack of consent
is not an element of invasion of privacy, and there is no element of that offense
that [the victim’s] consent would negate.” Dixon v. State, 869 N.E.2d 516, 520
(Ind. Ct. App. 2007). This court in Dixon observed specifically that “[w]hen
determining whether a party committed the act of invasion of privacy . . . we do
not consider whether the victim knowingly ignored the protective order but,
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rather, whether the defendant knowingly violated the protective order,” and
that a protective order is between the defendant and the State, not the defendant
and the victim. Id. (citing Ind. Code § 34-26-5-11 (“If a respondent is excluded
from the residence of a petitioner or ordered to stay away from a petitioner, an
invitation by the petitioner to do so does not waive or nullify an order for
protection.”)). It was incumbent upon Killebrew, not Moore, to see that a
violation of the protective order did not occur. See also Patterson v. State, 979
N.E.2d 1066, 1069 (Ind. Ct. App. 2012) (noting that “our General Assembly
has determined that where a protected person invites the subject of a protective
order to violate the terms of the order, such is irrelevant to the subject’s guilt,”
that “Protection orders are about the behavior of the respondent and nothing
else,” and that “[h]ow or why a respondent finds himself at the petitioner’s
doorstep is irrelevant”) (quoting State v. Lucas, 795 N.E.2d 642, 648 (Ohio
2003)).
Conclusion
[23] For the foregoing reasons, we affirm Killebrew’s convictions and sentences for
strangulation as a class D felony, invasion of privacy as a class A misdemeanor,
and domestic battery as a class A misdemeanor.
[24] Affirmed.
Bailey, J., and Robb, J., concur.
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