Court of Appeals of Indiana | Memorandum Decision 20A-CR-184 | October 15, 2020 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

Donald E.C. Leicht

Peru, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samuel J. Dayton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tommy Lee Weir,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

October 15, 2020

Court of Appeals Case No.

20A-CR-184

Appeal from the Howard Superior 

Court

The Honorable Hans S. Pate, 

Judge

Trial Court Cause No.

34D04-1903-F5-701

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-184 | October 15, 2020 Page 2 of 10

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 children1together.

[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.