Bradley E. Kennedy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
May 26 2015, 8:40 am
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 the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana
Huntington, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley E. Kennedy, May 26, 2015
Appellant-Defendant, Court of Appeals Case No.
35A04-1412-CR-570
v. Appeal from the Huntington
Superior Court
State of Indiana, The Honorable Jeffrey R.
Heffelfinger, Judge
Appellee-Plaintiff.
Case No. 35D01-1409-CM-655
Vaidik, Chief Judge.
Case Summary
[1] Bradley E. Kennedy appeals his conviction for Class A misdemeanor domestic
battery. Kennedy argues that the trial court abused its discretion in admitting
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evidence that he was a member of a motorcycle gang because it violates Indiana
Evidence Rule 404(b) and the evidence is insufficient to prove that the victim
suffered bodily injury. We find that Kennedy has waived his Evidence Rule
404(b) argument because he objected on only relevancy grounds at trial and, in
any event, the evidence of Kennedy’s motorcycle-gang membership is harmless
error in light of the overwhelming evidence that he kicked the victim. Also, we
conclude that, although the victim testified on behalf of Kennedy at trial, the
police officers’ testimony describing her injury is sufficient to prove that she
suffered bodily injury. We therefore affirm the trial court.
Facts and Procedural History
[2] Around 7:00 p.m. on September 16, 2014, Everett Carroll, Chief of Police of
the Huntington Police Department, was off-duty and in an unmarked police car
driving west on Etna Avenue when he saw a man, later identified as Kennedy,
“standing out near the sidewalk” acting “erratic” and “flailing” his arms in the
air. Tr. p. 52. As Chief Carroll continued to drive, he saw Kennedy “go over
and kick a female,” later identified as Melisse Brosamer, who was sitting on a
swing in front of 1146 Etna Avenue. Id. at 53. Kennedy kicked Melisse “[i]n
the shin or lower leg area.” Id. Chief Carroll observed that Kennedy was
“upset” and “angry.” Id. Chief Carroll was forced to slow down to about ten
miles per hour because the car in front of him was turning. Chief Carroll could
see Melisse “flinch[]” in response to Kennedy’s kick. Id. at 54. He also
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observed that Melisse was “visibly upset.” Id. at 55. Chief Carroll pulled over
and called on-duty officers.
[3] Sergeant Christopher McCutcheon and Officer Benjamin Spurgeon responded
to the scene within a couple of minutes of Chief Carroll’s call. After speaking
with Chief Carroll, they approached 1146 Etna Avenue and heard yelling and
screaming coming from inside. When they knocked on the door, Melisse came
outside. Officer Spurgeon began talking to Melisse while Sergeant
McCutcheon yelled through the door for Kennedy to come outside. When
Kennedy came outside, he immediately said, “I can’t believe you called the
fu**ing police, bit**.” Id. at 89. Kennedy was “not happy” to see the police
and “angry” at Melisse. Id.
[4] Kennedy told Sergeant McCutcheon that he and Melisse had been arguing
about text messages she found on his phone. Kennedy admitting kicking
Melisse but claimed he did so “to de[-]escalate the situation.” Id. at 91.
Kennedy said that he and Melisse had been off-and-on for the past eight or nine
years but together for the past two or three years, and they lived together at
1146 Etna Avenue. While Kennedy and Sergeant McCutcheon spoke,
Kennedy looked toward Melisse and “star[ed] her down.” Id. at 89.
[5] Meanwhile, Officer Spurgeon and Chief Carroll spoke with Melisse, who was
“[c]rying and upset.” Id. at 172. Melisse said that Kennedy had kicked her
“but didn’t mean to hurt her.” Id. When they asked Melisse to show them
where Kennedy had kicked her, Melisse—without hesitation—lifted up her
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right pant leg, exposing a “fresh” injury. Id. at 172, 173. Officer Spurgeon
described the injury as “[f]resh redness. It would be an abrasion or a scuff from
the friction of a shoe and jean,” and said there was “fresh welting or swelling.”
Id. at 111. According to Officer Spurgeon, Melisse said that her injury was
painful. Id. at 175 (“STATE: Did she acknowledge that it was painful or that
there was an injury? WITNESS: Yes.”). Chief Carroll said that Melisse’s shin
was beginning to swell, it was red, and the skin was coming off like a rug burn.
Id. at 59. Melisse told police that Kennedy was cheating on her based on text
messages she found on his phone. When Officer Spurgeon asked Melisse if he
could take photographs of her injury, she declined. Id. He also asked Melisse
multiple times to give a statement, but she again declined, saying “she didn’t
want anything to be done because he didn’t mean to hurt her.” Id. When the
officers were speaking to Melisse, the woman Kennedy had been texting drove
by several times.
[6] Chief Carroll, Sergeant McCutcheon, and Officer Spurgeon then met and
concluded that Kennedy should be arrested. Kennedy became irate when the
officers handcuffed him. He yelled for his cell phone, and Melisse went to get
it. However, instead of giving the phone to Kennedy, she threw it in the grass.
Kennedy demanded that the officers arrest Melisse for destruction of property.
While the officers were putting Kennedy in the police car, the same woman
who had driven by several times “pulled up right up on the sidewalk where
[they] were standing” and said, “It’s [my] fault. . . . He didn’t do anything.”
Id. at 63.
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[7] Sergeant McCutcheon drove Kennedy to the Huntington County Jail. During
the drive, Kennedy told Sergeant McCutcheon he was in a motorcycle gang
called the One Percenters and the officers “had made the wrong decision.” Id.
at 96. Also, Kennedy said the officers needed to watch the house “very closely”
and “watch what [they] were doing.” Id. at 96, 97. Kennedy did not elaborate
on what he meant by these statements. Kennedy continued to talk about his
motorcycle gang once they arrived at the jail.
[8] The State charged Kennedy with Class A misdemeanor domestic battery for
knowingly touching Melisse, with whom he was living as if a spouse, in a rude,
insolent, or angry manner resulting in bodily injury to Melisse. Appellant’s
App. p. 7; see also Ind. Code § 35-42-2-1.3(a)(2). At Kennedy’s jury trial,
defense counsel objected on relevancy grounds only when Sergeant
McCutcheon began testifying about Kennedy’s statements regarding his
motorcycle-gang membership. Tr. p. 95. The judge quickly overruled defense
counsel’s objection without any discussion of the matter. Id. at 96. Melisse
testified on behalf of Kennedy at trial. Specifically, she testified that Kennedy
“acted like he was getting ready to kick me but . . . I guess I felt contact but I
really didn’t feel anything.” Id. at 127. She claimed he kicked her left calf and
described the kick as a “nudge” or “tap.” Id. at 127, 128. Melisse said she was
never in any pain and that there was no injury from Kennedy’s kick. Id. at 128.
Instead, Melisse explained that when she walked outside her house, the door
swung open and hit her right leg. She admitted, however, showing the officers
her right leg—and not her leg left that she claimed Kennedy kicked.
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[9] The jury found Kennedy guilty as charged, and the trial court sentenced him to
365 days executed in the Huntington County Jail.
[10] Kennedy now appeals.
Discussion and Decision
[11] Kennedy raises two issues on appeal. First, Kennedy contends that the trial
court abused its discretion when it admitted evidence that he was a member of a
motorcycle gang because it violates Indiana Evidence Rule 404(b). Second, he
contends that the evidence is insufficient to prove that Melisse suffered a bodily
injury.
I. Indiana Evidence Rule 404(b)
[12] During trial, the State introduced evidence that Kennedy told Sergeant
McCutcheon that he was in a motorcycle gang and the officers should watch
out. Kennedy contends that the trial court abused its discretion when it
admitted this evidence because it violates Indiana Evidence Rule 404(b), which
provides:
(1) Prohibited Uses. Evidence 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.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. . . .
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Rule 404(b) is designed to prevent the jury from making the forbidden inference
that prior wrongful conduct suggests present guilt. Halliburton v. State, 1 N.E.3d
670, 681 (Ind. 2013).
[13] The law governing the admissibility of specific-acts evidence for “another
purpose” requires a trial court to make three findings. Camm v. State, 908
N.E.2d 215, 223 (Ind. 2009), reh’g denied. First, the court must determine that
the evidence of the crime, wrong, or other act is relevant to a matter at issue
other than the defendant’s propensity to commit the charged act. Id. Second,
the court must determine that the proponent has sufficient proof that the person
who allegedly committed the act did, in fact, commit the act. Id. Last, the
court must balance the probative value of the evidence against its prejudicial
effect pursuant to Evidence Rule 403. Id.
[14] The State argues that the admissibility of the motorcycle-gang evidence “for
another purpose” is “unclear because [Kennedy] failed to object on Rule 404(b)
grounds and, thus, there was no discussion regarding the purpose of the
evidence, nor was there any discussion concerning the probative value of the
evidence versus its prejudicial effect.” Appellee’s Br. p. 9. The record shows
that defense counsel objected on relevancy grounds, and the trial court quickly
overruled the objection without any discussion.
[15] Grounds for objection must be stated specifically at trial to preserve for appeal
any claim of error in the admission of evidence. 12 Robert Lowell Miller, Jr.,
Indiana Practice § 103.108 (3d ed. 2007). Similarly, the grounds asserted on
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appeal must be the same as those stated in the trial court. Id. New or different
objections cannot be raised on appeal. Id. In addition, when counsel states
specific grounds for objection at trial, he implies that there are no other grounds
for objection; if other grounds exist, they are impliedly waived. Id.
Accordingly, an appellant is confined to the specific objection stated in the trial
court. Id. Thus, evidence that technically is inadmissible may be admitted over
objection if the objector states improper grounds. Id.
[16] The Indiana Supreme Court addressed this issue in Houser v. State, 823 N.E.2d
693 (Ind. 2005). At trial, the defendant objected to song lyrics on relevancy
grounds, but the real issue was whether the evidence violated Rule 404(b) or
403. Id. at 697-98. Our Supreme Court held that because the defendant did not
object to the admission of the evidence on Rule 404(b) or 403 grounds at trial,
the issue was waived on appeal. Id. at 698. The Court cited the principle that a
defendant may not object on one ground at trial and raise another on appeal.
Id.; see also King v. State, 799 N.E.2d 42, 49 (Ind. Ct. App. 2003) (holding that
because defendant objected at trial on relevancy grounds, he waived his Rule
404(b) argument on appeal), trans. denied.
[17] “In any event, evidence admitted in violation of Evidence Rules 402, 403, or
404 will not require a conviction to be reversed ‘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 a party’s substantial rights.’” Houser, 823 N.E.2d at 698 (quoting Bassett v.
State, 795 N.E.2d 1050, 1054 (Ind. 2003)). When the evidence of Kennedy’s
motorcycle-gang membership is viewed in light of the evidence pointing to his
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guilt in this case, it is relegated to the status of harmless error. Kennedy
admitted to police that he kicked Melisse to de-escalate the situation. In
addition, Chief Carroll saw Kennedy kick Melisse, and Melisse admitted at trial
that Kennedy kicked her. We conclude that the probable impact of Kennedy’s
motorcycle-gang membership was sufficiently minor so as not to affect his
substantial rights.
II. Bodily Injury
[18] Kennedy also contends that the evidence is insufficient to prove that Melisse
suffered a bodily injury. When reviewing a challenge to the sufficiency of the
evidence underlying a criminal conviction, we neither reweigh the evidence nor
assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135 (Ind.
2012). The evidence—even if conflicting—and all reasonable inferences drawn
from it are viewed in a light most favorable to the conviction. Id. We affirm if
there is substantial evidence of probative value supporting each element of the
crime from which a reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt. Id.
[19] Indiana Code section 35-31.5-2-29 defines bodily injury as “any impairment of
physical condition, including physical pain.” In Bailey, the Indiana Supreme
Court held that any level of pain can constitute bodily injury and that “physical
pain is an impairment of physical condition.” 979 N.E.2d at 138, 142.
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[20] Here, the evidence shows that Kennedy kicked Melisse. Chief Carroll testified
that he saw Kennedy kick Melisse, and both Kennedy and Melisse admitted
that he kicked her. At the scene, Melisse—without hesitation—showed the
officers where Kennedy had kicked her. Officer Spurgeon described the injury
as “[f]resh redness. It would be an abrasion or a scuff from the friction of a
shoe and jean,” and said there was “fresh welting or swelling.” Tr. p. 111.
According to Officer Spurgeon, Melisse said that her injury was painful. Id. at
175 (“STATE: Did she acknowledge that it was painful or that there was an
injury? WITNESS: Yes.”). Chief Carroll, who saw Melisse flinch when
Kennedy kicked her, said that Melisse’s shin was beginning to swell, it was red,
and the skin was coming off like a rug burn. Id. at 59. This evidence is
sufficient to prove that Melisse suffered bodily injury when Kennedy kicked
her. Kennedy’s other arguments, including that Melisse testified at trial that he
did not cause her any pain or injury, are merely invitations to reweigh the
evidence. We therefore affirm Kennedy’s conviction for Class A misdemeanor
domestic battery.
[21] Affirmed.
Kirsch, J., and Bradford, J., concur.
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