Court of Appeals of Indiana | Memorandum Decision 20A

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### 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.

A TTORNEY FOR A PPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis , Indiana A TTORNEY FOR A PPELLEE Megan M. Smith Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Tamika Bal l ance , Appellant

- Plaintiff ,
v. 

### State of Indiana, Appellee

- Defendant

. December 16, 2020 Court of Appeals Ca se No. 20A

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- 1312 Appeal from the Marion Superior Court The Honorable Angela D. Davis, Judge The Honorable H. Patrick Murphy , Magistrate Trial Co urt Cause No

. 49 G 16

- 2001

- F6

- 1290

Bradford , Chief Judge .Court of Appeals of Indiana | Memorandum Decision 20A

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# Case Summary

[1] Tamika Bal l anc e was in volved in an altercation at the IndyGo bus terminal , during which she bit Diane Ford

. Though Ford was not present at trial, a security officer who observed the incident, testified as to the victim’s identity and B a l lance was convicted of Class B misdemeanor battery

. On appeal, Bal l ance claims that the in

- court identification of the victim constituted a fundamental error and that there was insufficient evidence to sustain the conviction. Because we disagree, we affirm.



# Facts and Procedural History

[2] On January 10, 2020 , Ba l lance and Ford were involved i n an altercation at the IndyGo bus terminal (Tr. 4

- 5)

. During that altercation, Ba l lance bit Ford on the wri st and attempted to pull a phone from Ford’s hands

. Bal l ance was charged with Le vel 6 felony domestic battery and C lass A misdemeanor theft (Ap p. Vol. II, 31). Ford was not present at Balance’s trial which was held o n June 22, 2020

. Isiah Hagemeyer , a security officer who observed the altercation and Bal l ance bite Ford , was the only witness to testi fy (Tr. 3)

. While testifying, Hagemeyer could not initially recall the name of the victim ( Tr. 6). The State entered a photo of the alleged victim, taken at the IndyGo bus terminal on the day of the incident , which Hagemeyer identified to be the victim (Tr. 6). Hagemeyer testified that he would have written up a report about the inciden t and asked for the victim’s name before writing the report (Tr. 7). The State
t h en introduced Ford’s certified driver’s record from the Bureau of Moto rCourt of Appeals of Indiana | Memorandum Decision 20A

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V ehicles (“BMV”) , which contained a photograph of Ford . (Tr. 7

- 8; State’s Ex. 2). After reviewing Ford’s driver’s record, Hagemeyer identified Ford as the same woman Bal l ance bi t and stated he recognized Ford’s name as the name of the victim (Tr. 8)

. Ba l lance made no objections to Hagemeyer’s identification or to the State’s exhibits ( Tr. 7

- 8)

. The trial court found that the State had failed to provide any evidence of a domestic relationship between Ba l lance and Ford

or sufficient evidence of theft

. However, the trial court found that the State had proven that Bal l ance had committed the lesser

- included offense of Class B misdemeanor battery (Tr. 14

- 16).



# Discussion and Decision I. Fundamental Error

[3] “ The decision to admit or exclude evidence at trial is squarely within a trial court’s discretion and should be afforded great deference on ap peal. ” Carpenter v. State , 786 N.E.2d 696, 702 (Ind. 2003)

. We will only “ disturb [ a trial court’s ] rulings only where it is shown that the court abused its discretion.” Camm v. State , 908 N.E.2d 215, 225 (Ind. 2009)

. “ A claim that has been waived by a defendant’s failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines that a fundamental error has

o ccurred.” Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010)

. “The ‘ fundamental

error ’ exception is extremely narrow and applies only when the er r or constitutes a blatant violation of basic principles, the harm or potential harm is substantial, and the resulting error denies the defen dant fundamental due process.”Court of Appeals of Indiana | Memorandum Decision 20A

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Mathews v. State , 849 N.E.2d 578, 587 (Ind. 2006) ( quoting Boesch v. State , 778 N.E.2d 1276, 1279 (Ind. 2002) )

. Th e error may also be fundamental when it “make[s] a fair trial impossible.” B rown , 929 N.E.2 d at 207 (quoting Clark v. State , 915 N.E.2d 126, 131 (Ind. 2009) (internal quotations omitted).

[4] No fundamental error occurred during Ba l lance’s trial. “[A] degree of suggestiveness is inherent in all in court identifications;” however, “[ w]hether a particular identification procedure rises to a level of suggestiveness that constitutes reversible error must be determined from the context of the case.” Emerson v. State , 724 N.E.2d 605, 609 (Ind. 2000)

. There is no fundamental error simply because Hagemeyer could not initially recall the victim’s name or because the evidence introduced to identify the victim was supplied by the prosecutor. Ba l lance also argues that this method of in

- court identification is too suggestive, due in part to the limited amount of exhibits upon which the prosecution relied in making their case. We disagree. Despite Ford not being present at trial , Hagemeyer was able to use a photo of the victim taken at the IndyGo bus station on the day of the altercation, Ford’s certified driver’s record from the BMV , and identify that Ford was the victim he saw Bal l ance bite

. Hagemeyer’s identification of Ford was proper, and did not constitute error, let alone a fundamental error.



## I I . Su fficiency of the Evidence

[5] “When reviewing the sufficiency of the evidence to support a conviction,

‘ appellate courts must consider only the probative evidence and the reasonableCourt of Appeals of Indiana | Memorandum Decision 20A

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inferences supporting the verdict

. ’ ” Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007) ( quoting McHenry v. State , 820 N.E.2 d 124, 126 (Ind. 2005) ) (emphasis in original)

. A conviction will be affirmed unless , after considering all the evidence and reasonable inferences favorable to the judgement , we conclude that no reasonable f

act finder could find the elements of the crime proven beyond a reasonable doubt. See Abney v. State , 858 N.E.2d 226, 228 (Ind. Ct. App. 2006)

. Further, “[a] verdict will be sustained based on circumstantial evidence alone if the circumstantial eviden c e supports a reasonable inference of guilt.” Maul v. State , 731 N.E.2d 438, 439 (Ind. 2000)

. This standard of review does not permit us to reweigh the evidence or allow us to judge the credibility of the witnesses. 

### McCallister v. State , 91 N.E.3d 554, 558 (Ind. 2018)

.

[6] The trial court found that the State’s evidence was insufficient to convict Bal ance of either theft or domestic battery

. However, the trial court did find sufficient evidence supported Ba l lance’s conviction for Class B misdemeanor battery. 1 Ind iana Code s ection 35

- 4 2

- 2

- 1 states “ a person who knowingly or intentionally: touches anot her person in a rude, insolent, or angry manner [,]” commits battery. Hagemeyer testified that he observed Ba l lance bite Ford

– identifying both during his testimony. “Testimony of a single eyewitness is sufficient to sustain a conviction

. ” Hubbard v. State , 719 N.E.2d 1219, 1219 (Ind. 1999)

. We view B al l ance’s argument that Hagemeyer’s testimony alone is

1 See Jones v. State, 976 N.E.2d 1271, 1276

– 1277 (Ind. Ct. App. 2012) ( stating that battery is a lesser included offense of domestic battery)

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insufficient as an invitation to reweigh the evidence, which we will not do. See McCallister , 91 N.E.3d at 558

.
[7] The j udgment of the tria l court is affirmed.
Kirsch, J., and Mathias, J., concur.