Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1916 | March 10, 2017 Page 1 of 10

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 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Anthony S. Churchward

Anthony S. Churchward, P.C.

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Scott A. Estep,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 10, 2017

Court of Appeals Case No.

02A04-1608-CR-1916

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

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, fiftyone-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.