Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1700 | February 22, 2017 Page 1 of 9

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

David L. Joley

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Asia Marshall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 22, 2017

Court of Appeals Case No.

02A03-1607-CR-1700

Appeal from the Allen Superior 

Court

The Honorable John Surbeck, 

Judge

The Honorable David Zent, 

Magistrate

Trial Court Cause No.

02D06-1501-CM-132

Robb, Judge.
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Case Summary and Issues

[1] Following a jury trial, Asia Marshall was convicted of domestic battery, a Class 

A misdemeanor, and disorderly conduct by fighting or tumultuous conduct, a 

Class B misdemeanor. Marshall appeals her convictions, raising two issues for 

our review: 1) whether the State presented sufficient evidence to support her 

conviction of domestic battery, and 2) whether her two convictions constitute 

double jeopardy. Concluding sufficient evidence supports Marshall’s 

conviction of domestic battery but the disorderly conduct conviction must be 

vacated due to a double jeopardy violation, we affirm in part and reverse and 

remand in part.

Facts and Procedural History

[2] On December 9, 2014, Marshall and her live-in boyfriend of several years, 

Antonio Chacon, had an argument at their home that resulted in Chacon 

calling 911. Chacon reported to the 911 operator that Marshall hit him in the 

face with a remote control and his face was cut and bleeding. Two Fort Wayne 

police officers responded to the home within approximately ten minutes of the 

911 call and encountered Chacon, who was bleeding from a cut above his right 

eye and announced he wanted Marshall to be arrested. Officer Robert Abels 

spoke with Chacon, who related that he and Marshall had been arguing and she 

“stabbed him in one of his eyes with the remote control[.]” Transcript, Volume 

I at 77. Officer Abels also spoke with Marshall, who admitted she threw a 

remote at Chacon, but said Chacon’s eye was injured when he fell down the 
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stairs. When the officers placed Marshall under arrest, however, Chacon

objected and indicated he did not want her to be arrested and did not wish to 

cooperate further. 

[3] The State charged Marshall with domestic battery, a Class A misdemeanor, and 

disorderly conduct, a Class B misdemeanor.1 At Marshall’s jury trial, the State 

called Chacon as a witness and played the audio of the 911 call for the jury

without objection from Marshall. Chacon acknowledged it was his voice on the 

tape, but testified, “I don’t remember a lot that happened” on December 9, 

2014. Tr., Vol. I at 62. “It’s vague. Very vague. I remember just trying to just 

sleep off my hangover, and you know, [Marshall] was trying to kick me out, 

and next thing I know I’m trying to get out [of] the bed. I fall and I wake up 

and I’m bleeding everywhere.” Id. at 64. He explained telling 911 that 

Marshall hit him with a remote by stating, “when I hit my head, I thought 

maybe she had did [sic] it but I hit my head on the ground.” Id. at 68. On 

cross-examination by Marshall’s counsel, Chacon categorically stated that 

Marshall did not touch him the morning of December 9, 2014. The two officers 

testified without objection Chacon told them at the scene Marshall threw a 

remote at him causing his injuries. 

 

1 The State originally filed the disorderly conduct charge pursuant to Indiana Code section 35-45-1-3(a)(2) for 

making unreasonable noise after being asked to stop. The charge was later amended to disorderly conduct 

pursuant to Indiana Code section 35-45-1-3(a)(1) for engaging in fighting or tumultuous conduct.
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[4] The jury found Marshall guilty as charged and the trial court entered judgment 

of conviction on both counts and sentenced her to 365 days with 335 days 

suspended for the domestic battery conviction to be served concurrently with 

180 days with 150 days suspended for the disorderly conduct conviction. 

Marshall now appeals her convictions.

Discussion and Decision

I. Domestic Battery

[5] Marshall claims the evidence is insufficient to support her conviction for 

domestic battery. Our standard of reviewing a sufficiency of the evidence claim 

is well-settled:

First, we neither reweigh the evidence nor judge the credibility of 

witnesses. Second, we consider only the evidence supporting the 

judgment and any reasonable inferences that can be drawn from 

such evidence. A conviction will be affirmed if there is 

substantial evidence of probative value supporting each element 

of the offense such that a reasonable trier of fact could have 

found the defendant guilty beyond a reasonable doubt. . . . [W]e 

consider conflicting evidence most favorably to the [verdict].

Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotations 

omitted).

[6] Domestic battery as a Class A misdemeanor is defined by statute as knowingly 

or intentionally touching a person who is or was living as if a spouse in a rude, 

insolent, or angry manner that results in bodily injury. Ind. Code § 35-42-2-
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1.3(a) (2014). Marshall’s specific challenge to the sufficiency of the evidence is 

that the State produced only impeachment and circumstantial evidence of such 

a crime and not substantial direct evidence of probative value. 

[7] Although Marshall frames her issue in terms of a challenge to the sufficiency of 

the evidence, it appears she may actually be challenging the admission of 

evidence. We review the admission of evidence for an abuse of discretion. 

King v. State, 61 N.E.3d 1275, 1282 (Ind. Ct. App. 2016), trans. denied. 

However, Marshall did not object to the admission of any of the State’s 

evidence at trial. A failure to make a contemporaneous objection at trial will 

foreclose the raising of such error on appeal unless fundamental error occurred. 

Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). Marshall makes no claim of 

fundamental error. We also note, however, that even if an objection had been 

made, there was no error in the admission of the officers’ testimony or of the 

911 call. 

[8] The officers’ testimony about Chacon’s statements when they arrived at the 

residence was admissible as an excited utterance under Indiana Rule of 

Evidence 803(2). To qualify as an excited utterance, a statement must have 

been made after a startling event has occurred, while under the stress or 

excitement caused by the event, and it must relate to the event. Young v. State, 

980 N.E.2d 412, 421 (Ind. Ct. App. 2012). Within ten minutes of making a 

phone call to 911, Chacon, bleeding from a cut above his eye, stepped outside 

his residence and immediately told the responding officers he wanted Marshall 

arrested because she had caused his injury by throwing a remote control at him. 
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There was no error in the admission of this evidence. See Fowler v. State, 829 

N.E.2d 459, 463-64 (Ind. 2005) (officer’s account of alleged victim’s statements 

to him when he responded to a call was properly admitted as an excited 

utterance after victim took the stand and refused to answer questions by either 

the State or defense), cert. denied, 547 U.S. 1193 (2006);

2

see also Gordon v. State, 

743 N.E.2d 376, 379 (Ind. Ct. App. 2001) (affirming defendant’s battery 

conviction, even though victim did not testify, because responding officer did 

testify to his interaction with the victim: “Crimes that may be characterized as 

domestic violence offenses sometimes lend themselves to complaining witnesses 

recanting [or] failing to appear . . . . Indiana Evidence Rule 803(2) is the 

vehicle by which competent, admissible evidence comes to our trial courts in 

many of these situations.”).

[9] As for the 911 call, a recording is not admissible unless the voices contained 

thereon are identified. Johnson v. State, 699 N.E.2d 746, 749 (Ind. Ct. App. 

1998). A caller’s identity must be established as a foundation for the admission 

of the content of a telephone call. King v. State, 560 N.E.2d 491, 494 (Ind. 

1990). The identity of the caller need not be proved beyond a reasonable doubt; 

identity may be established by circumstantial evidence, and any conflicts in the 

 

2

Further, Chacon testified as a witness and was available for cross-examination, so there is no Confrontation 

Clause issue with using the officers’ testimony reporting his statements. See Fowler, 829 N.E.2d at 464 

(noting an excited utterance is not necessarily immune from attack under the Confrontation Clause, but also 

noting that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no 

constraints at all on the use of his prior testimonial statements.”) (quoting Crawford v. Washington, 541 U.S. 

36, 59 n .9 (2004)).
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proof of identity go to the weight of the evidence and not the admissibility. Id.

at 494-95. Here, the Fort Wayne/Allen County Communication Records 

Division certified the recording of the 911 call was a true and complete 

reproduction of the original recording. See State’s Exhibit 4. Although Chacon 

said he could only “vaguely” remember the phone call with 911, he affirmed it 

was his voice on the recording. Tr., Vol. I at 66. The veracity of the recording 

and the caller’s identity were therefore confirmed, and there was no error in 

playing the audio of the call for the jury.

[10] With regard to the sufficiency of this evidence to prove Marshall committed 

domestic battery, Marshall does not challenge the element that she and Chacon 

were living as if spouses at the time of the incident. With respect to the 

remaining elements, the jury heard Chacon report to a 911 operator that he had 

been hit in the face with a remote and was bleeding, and it heard the responding 

officers testify they observed a fresh injury to Chacon’s face upon their arrival 

and that he told them Marshall had caused the injury. Although Chacon 

testified differently at trial, his credibility on the stand was a matter for the jury 

to assess, as was determining whether the evidence presented by the State in 

this particular case sufficiently proved the elements of the offense. See Willis, 27 

N.E.3d at 1066-67. Considering only the evidence most favorable to the 

verdict, we conclude there was substantial evidence of probative value 

supporting the jury’s determination that Marshall was guilty beyond a 

reasonable doubt of domestic battery. See Gordon, 743 N.E.2d at 379 (arresting 

officer’s testimony that victim, who was visibly shaking and had redness around 
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her neck, told him defendant had struck her in the face and chest with his fists 

and that defendant himself acknowledged that victim bruises easily was “more 

than sufficient” evidence to sustain conviction for battery).

II. Double Jeopardy

[11] Marshall also claims her convictions and sentences for both domestic battery 

and disorderly conduct by fighting constitute double jeopardy. The State agrees 

the two convictions cannot stand. On review, we also agree, as the evidence

supporting both convictions is that Marshall threw a remote at Chacon,

3 and 

therefore, that fact was necessarily used by the jury as the basis for both 

convictions. See Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999) (explaining 

that under the actual evidence test of the Indiana double jeopardy analysis, “the 

actual evidence presented at trial is examined to determine whether each 

challenged offense was established by separate and distinct facts”). When we 

find two convictions contravene double jeopardy principles, we may remedy 

the violation by reducing either conviction to a less serious form of the same 

offense if doing so will eliminate the violation. Id. at 54. That is not possible in 

this case because neither crime exists in a less serious form. Therefore, 

Marshall’s disorderly conduct conviction must be vacated.

 

3 As noted above, Marshall’s Class A misdemeanor domestic battery conviction required proof that she 

touched Chacon in a rude, insolent or angry manner. Ind. Code § 35-42-2-1.3(a)(2). The Class B disorderly 

conduct conviction required proof she engaged in fighting. Ind. Code § 35-45-1-3(a)(1). 
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Conclusion

[12] The State presented sufficient evidence to support Marshall’s conviction of 

domestic battery. However, her convictions of both domestic battery and 

disorderly conduct violate the Double Jeopardy Clause of the Indiana 

Constitution. We therefore affirm Marshall’s conviction of domestic battery 

and remand to the trial court to vacate the conviction and sentence for 

disorderly conduct. 

[13] Affirmed in part, reversed and remanded in part.

Kirsch, J., and Barnes, J., concur.