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 : JOHN C. BOHDAN GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

KATIE L. MILLER , ) ) Appellant

- Defendant , ) ) vs. ) No. 02A03

- 1306

- CR

- 229 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull , Judge Cause No. 02D06

- 1211

- FC

- 357

F ebruary 20, 2014 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Katie L. Miller (M iller), appeals her conviction f or Count I, battery, a Class C felony, Ind. Code § 35

- 42

- 2

- 1(a)(3) ; Count II, criminal recklessness, a Cl ass A misdemeanor, I.C. § 35

- 42

- 2

- 2(b)

- (c)(1) ; and Count III, failure to stop after accident resulting in injury or death, a Class D felony, I.C. § 9

- 26

- 1

- 8(a)(1)

. We affirm

. ISSUE Miller raises one issue on appeal, which we restate as the following: Whether the trial cou rt abused its discretion in denying Miller’s request to admit into evidence a copy of the civil complaint filed against her.

FACTS AND PROCEDURAL HISTORY
I n January of 2010, Miller began dating Arthur J

. Zick (Zick)

. For the next t wo and

- a - half years, they had an on

- again, off

- again relationship. A few months into the ir relationship, Zick claimed that Miller began physica lly and verbally abusing him , but he stated that he stayed with her because “I really cared for her and I wanted to be with h er. I felt like I could overlook the bad to be with the good.” (Transcript p. 49). Although they broke up in June of 2012, Miller and Zick continued to see each other

. On September 2 1 , 2012, Zick had spent the evening at a party with his friends in
Fort Wayne, Indiana. Shortly before midnight, Mi ller p ick ed Zick up from the party. They planned on going to Zick’s house, but first Miller drove Zick to a nearby apartment complex so that Zick could pick up his dog who was being watched by a friend

. Along the3

way , an argument ensued

. Upon arriving at the apartment complex, Miller parked her PT Cruiser , and she and Zick both exited , continuing their fight ing in the parking lot

. Zick realized he left his cell phone in the console of Miller’s vehicle and walke d back to retrieve it. However, Miller had re - entered her vehicle and locked Zick out. Miller attempted to drive away , but Zick stood in front of the vehicle and yelled at Miller to return his phone . Miller responded , “ I t’s my phone now.” (Tr. p. 61). Miller began to drive forward and repeatedly struck Zick ’s legs with the front of her PT Cruiser . With each hit, Zick took another step back, but as they neared the street, he stopped backing up

. Zick stated that Miller then hit her accelerator. Zick felt his leg go under the front bumper, and he attempted to jump up on the hood of the vehicle, grabbing onto a windshield wiper for support. Miller slammed on her brakes, and Zick was thrown from the hood of the car, snapping the windshield wiper as he fell. Zick landed on his feet but was unable to regain his balance before Miller accelerated and hit him again. This time, Zick heard a popping noise in his leg, and he fell down. Before Zick could slide out of the way, the vehicl e’s tire rolled over his left leg , and Miller drove off.
A bystander called for an ambulance and allowed Zick to u se her phone to call Miller. Miller refused to return to the scene and accused Zick of lying about his injur y . Zick remained hospitalized for several days and was treated for an open tibia fracture

. Zick

never recover ed his phone. A few hours a fter Zick made a statement , the police located Miller’s PT Cruiser. It was parked a block away from her home and was missing one windshield wiper. The police towed the vehicle as part of its hit

- and

- run investigation. Miller called the police4

station to inquire about why he r vehicle had been towed . She informed a police officer that , during their argument, Zick threw a drink at her, yanked the windshield wiper off , and threatened to break her windshield. She stated it was her belief that Zick w as faking the injury to make her return

. On November 16, 2012, the State filed an Information charging Miller with Count I, battery, a Class C felon y, I.C. § 35

- 42

- 2

- 1(a)(3) , and Count II, criminal recklessness, a Class A misdemeanor, I.C. § 35

- 42

- 2

- 2(b)

- (c)(1). On February 27, 2013, the State add ed Count III, failure to stop after accident resulting in injury or death, a Class D felony, I.C. §
9

- 26

- 1

- 8 (a)(1)

. On April 12, 2013, the trial court conducted a N otice of 404 hearing and ruled that evidence of Miller and Zick’s tumultuous relationship would be admissible to establish Miller’s intent and motive. On April 16, 2013, the trial court conducted a jury trial. Zick testified that, due to his medical bills, he had retained an attorney who filed a civil lawsuit on his behalf against Miller. When Miller sought to admit a copy of Zick’s civil complaint into evidenc e, the State objected for lack of foundation and lack of relevance. Miller’s counsel argued that , in his civil complaint, Zick had alleged that Miller was negligent, which contradicts the int entional, knowing , or reckless mental element required to criminally convict Miller as ch arged . The trial court refused to admit the complaint. In addition to disagreeing with Miller’s counsel that Zick’s allegation constituted “an admission against interest [,] ” the trial court stated that the issues regarding medical bills and negligence we re to be determined by a different jury in the civil suit. (Tr. pp. 97

- 98).5

At the close of the evidence , the jury returned a verdict of guilty as to all Counts. On May 24, 2013, the trial court held a sentencing hearing

. T he trial court sentenced Mille r
to a term of two years for Count I, one year for Count II, and one

- and

- a - half years for Count
II I, to be served concurrently. Miller now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION Miller claims that her conviction for battery and criminal recklessness should be overturned based on the trial court’s refusal to admit a copy of Zick’s civil complaint into evidence. A trial court is entitled to great deference regarding its decisions to admit or exclude evidence. Herr era v. State , 710 N.E.2d 931, 935 (Ind. Ct. App. 1999). We thus review a trial court’s admissibility rulings for an abuse of discretion. Id. We will uphold the trial court’s decision “absent a showing of a manifest abuse of the trial court’s discretion resulting in the denial of a fair trial.” Id. It is an abuse of discretion if the decision is clearly against the logic and effect of the facts and circumstances before the trial court.
Martin v. State , 779 N.E.2d 1235, 1238 (Ind. Ct. App. 2002), trans. denied . In our review, we will consider the evidence most favorable to the trial court’s ruling and any uncontested evidence in favor of the defendant. Id. Miller contends that the evidence is relevant and should have been admitted because her “level of culpability . . . was a factual dispute of consequence in the determination of the action[,]” and if “the jury [had] known that [ Zick ] had previously alleged that [Miller] was negligent in the operation [of] her vehicle, it could have had a considerable i mpact on that body’s determination of [Zick’s] credibility. ” (Appellant’s Br . p. 9). Evidence is6

relevant if it tends “to make a fact more or less probable than it would be without the evidence” and if “the fact is of consequence in determining the actio n.” Ind. Evidence Rule
401. According to Miller, “[i] t is extremely relevant if someone alleges that an act was negligent one day, and criminal the next.” (Appellant’s Br. p. 11). Although we agree with Miller’s position in general , we do not find her argument applicable in th is case. We initially note that Zick is not a party to this case; he was merely a witness for the State in its case against Miller. The State, through its charging Information, alleged that Miller acted intentional ly /knowing ly

/rec kless ly . Whether Zick alleged that Miller acted negligently in a nother matter, which is still pending, has no bearing on the State’s obligation to prove that Miller acted knowingly or intentionally. In his testimony, Zick recited his version of the facts but offered no opinion regarding Miller’s intent . In fact, Indiana Rule of Evidence 701 limits a witness’ testimony to opinions that are “rationally based on the witness’s perception[,]” and Indiana Rule of Evidence 704 (b) prohibits a witness from assert ing an opinion concerning the accused’s intent in a criminal case. See Gall v. State , 811 N.E.2d 969, 976 (Ind. Ct. App. 2004), trans. denied

. T hus, the c ivil complaint is irrelevant because the jury’s decision was in no way based on Zick’s
assessment that Miller acted either intentionally or negligently

. See Weaver v. State , 643 N.E.2d 342, 345 (Ind. 1994). The jury considered the evidence and conclude d beyond a
reasonable doubt that Miller had the requisite mental state to be held criminally liable. Even if we were to find that the trial court erred i n excluding the civil complaint , it is deemed to be a harmless error unless a substantial right of the party is affected

. Gall , 811 N.E.2d at 976. We will find an error is harmless where the “probable impact on the7

jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Id. In this case, the jury apparently did not believe Miller’s testimony that sh e did not intend to injure Zick; that she did not realize she had run over his leg ; and that he had hurt himself by jumping onto her vehicle. Furthermore, in light of the other evidence presented to the jury , we find that Zick’s allegation of negligence in the civil complaint would have little, if any, impact on the jury’s verdict. As any error would be harmless, the trial court’s evidentiary ruling must stand

. Miller also claims that the exclusion of the civil complaint “effectively denied [her] right to effective cross

- examination.” (Appellant’s Br. p. 10). Specifically, she argues that
the civil complaint should hav e been admitted to impeach Zick’s credibility because his prior “incon sistent allegation that [Miller] had operated her vehicle negligently . . . was relevant.” (Appellant’s Br. p. 10). Under Indiana Rule of Evidence 613(b), “[e]xtrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it.” Here, Zick did not make inconsistent
statements. As we previously noted, Zick may have alleged negligence in h is civi l complaint, but it was the State that alleged a higher degree of culpability in the case at hand. Thus, the civil complaint would not serve to contradict Zick’s testimony and is not relevant

. 1
CONCLUSION

1 Because we uphold the trial court’s exclusion of the civil complaint on relevancy grounds, we do not address the parties’ arguments regarding whether the document h ad been properly authenticated.8

Based on the foregoing, we conclude that the trial court did not abuse its discretion in refusing to admit the civil complaint into evidence because it is not relevant

. Affirmed. VAIDIK, C.J. and MAY, J. concur