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:

MARK LEEMAN GREGORY F. ZOELLER

Cass County Public Defender Attorney General of Indiana

Leeman Law Offices

Logansport, Indiana KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TRAVIS CUNNINGHAM, )

)

Appellant-Defendant, )

)

vs. ) No. 09A02-1302-CR-209

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE CASS SUPERIOR COURT

The Honorable Rick Maughmer, Judge

Cause No. 09D02-1211-FC-44

August 6, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
Travis Cunningham appeals his conviction for Battery,1 a class A misdemeanor, and 

the court’s finding of contempt. Cunningham presents two issues on appeal:

1. Did the trial court commit fundamental error in the admission of evidence?

2. Was there sufficient evidence to sustain Cunningham’s conviction for contempt of 

court?

We affirm.

On November 20, 2012, Cunningham and his girlfriend, Shantel Conn, started 

arguing, which eventually escalated into a physical fight. During the fight, Cunningham hit 

Conn in the face, split her lip, and caused red marks on her neck and lumps on her head. 

During the physical altercation, Conn left the house, located at 922 East Broadway in 

Logansport, without shoes or a coat. 

Conn ran down Broadway while Cunningham was in pursuit; during Cunningham’s 

pursuit of Conn, the couple continued to scream at each other. Eventually, Conn came to a 

curb and sat down. Cunningham grabbed Conn’s forearm in an effort to remove her from the 

curb, and Conn reacted by punching him in the face. After Conn hit Cunningham, he 

returned home and Conn continued to walk, eventually stopping near a post office on 9th

street. 

Catherine Carter witnessed the altercation between Cunningham and Conn. She asked 

about Cunningham’s physical state, and then proceeded to search for Conn in order to do the 

same. Carter drove near the post office and discovered Conn crying, shaking, and visibly 

1 Ind. Code. Ann. § 35-42-2-1(c) (West, Westlaw Statutes and constitution are current with all 2013 

legislation).

2

 
upset. Conn told Carter that Cunningham had “choked me so hard I peed my pants.” 

Transcript at 75. Carter noticed a wet spot near Conn’s crotch area, and proceeded to give 

her a blanket due to the cold weather. Then Carter called 911. Richard Utter also witnessed 

the incident between Conn and Cunningham. After witnessing the altercation, Utter called 

911 and also checked on Conn. 

Sergeant Robert Smith of the Logansport Police Department was one of the officers 

who responded to the 911 call. Sergeant Smith spoke with Conn and drove her to the police 

station to make a statement. Based on the information he received from Conn, Sergeant 

Smith prepared a battery affidavit, which Conn signed. Prior to asking for Conn’s signature, 

Sergeant Smith went over the affidavit line by line with Conn. 

Cunningham was charged on November 26, 2012, with criminal confinement, a class 

C felony; strangulation, a class D felony; and domestic battery, a class A misdemeanor. On 

January 8, 2013, the State filed an amended information for Count III, changing the 

allegation from domestic battery to battery resulting in bodily injury, a class A misdemeanor. 

A two-day jury trial was held on January 9 and 10, 2013. During the trial, 

Cunningham was found in contempt twice and was sanctioned 30 days in jail for his 

behavior. 

At the conclusion of evidence, the court granted Cunningham’s motion for directed 

verdict for the strangulation count. The jury found Cunningham guilty of battery resulting in 

bodily injury, but not guilty of criminal confinement. Cunningham was sentenced on January 

29, 2013, to 365 days to be executed consecutively to his 30-day sentence for contempt. 

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1.

Cunningham contends the court’s admission of certain evidence constituted 

fundamental error. The fundamental error exception to waiver is extremely narrow, and 

applies only when the error constitutes a blatant violation of basic principles, the harm or 

potential for harm is substantial, and the resulting error denies the defendant fundamental due 

process. Mathews v. State, 849 N.E.2d 578 (Ind. Ct. App. 2006). Moreover, fundamental 

error is defined as an error so prejudicial to the rights of a defendant that a fair trial is 

rendered impossible. Id. Cunningham failed to object to the admission of the disputed 

evidence during trial, so in an attempt to avoid waiver, he asserts the admission of the 

evidence constituted fundamental error. 

Firstly, Cunningham contends that the admission of recordings of his jail telephone 

calls to Conn amounted to fundamental error. Cunningham argues the jail phone calls were 

inadmissible due to a lack of relevance. Under Ind. Evidence Rule 401, “A statement is 

relevant if it has any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Cunningham called Conn from jail on three occasions, and he urged her not to 

testify against him, to file a motion disputing her original statement, and to rescind the nocontact order. Conn initially expressed apprehension about changing her previous account of 

events, but she testified at trial that the police misunderstood her statement and Cunningham 

did not confine or strangle her. Conn’s inconsistent account of events created an issue 

concerning her credibility. The phone calls provided the jury with a method of assessing 

4
Conn’s credibility, and assisted the jury in determining the validity of Conn’s differing 

accounts of events. Therefore, the content of the phone calls was relevant and admissible 

under Ind. Evid. R. 402.

Cunningham also contends that even if the phone calls were relevant, they should 

have been excluded under Indiana Evid. R. 403, which provides that otherwise relevant 

evidence is inadmissible if “its probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury.” Cunningham argues the 

prejudice stems from the statement at the beginning of each call informing the recipient that 

the call is originating from jail. Cunningham analogizes the admission of the calls to the 

prejudice suffered by a defendant sitting in court for an extended period of time dressed in 

prison attire. See Estelle V. Williams, 425 U.S. 501 (1976) (holding the jury’s continuous 

exposure to the defendant in jail attire amounted to prejudice and impaired the presumption 

of innocence). We find this analogy unpersuasive. Unlike the jury in Estelle, the jury in the 

current case was exposed to three brief statements that collectively amounted to a few 

seconds. Also, in Estelle, the defendant appeared in prison attire because he was compelled 

to do so. In contrast, Cunningham actively consented to the recording of his phone calls, 

even after receiving a warning that they could be used in court. Moreover, phone calls made 

from jail are admissible if the defendant discusses the crime for which he is incarcerated. 

King v. State, 985 N.E.2d 755 (Ind. Ct. App. 2013), trans denied. Also, the fact that the jury 

knew Cunningham was incarcerated does not cause overwhelming prejudice sufficient to 

reverse a conviction. See Hackett v. State, 716 N.E.2d 1273 (Ind. 1999) (court held that two 

5
jurors briefly seeing defendant in prison attire did not amount to unfair prejudice). 

Therefore, we conclude that Evid. R. 403 did not preclude the admission of the phone calls.

Cunningham also argues that the phone calls were inadmissible because they 

“provided evidence of crimes, wrongs, or acts in order to prove the character of a person to 

show action in conformity therewith.” Ind. Evidence Rule 404(b). The standard of 

reviewing evidence under Indiana rule of Evid. R. 404(b) is: 

(1) the court must determine that the evidence of other crimes , wrongs, or acts is 

relevant to a matter at issue other than the defendant’s propensity to commit the 

charged act; and (2) the court must balance the probative value of the evidence against 

its prejudicial effect pursuant to Rule 403.

Whatley v. State, 908 N.E2d 276, 281 (Ind. Ct. App. 2009).

Evidence is inadmissible when offered to produce the “forbidden inference” that the 

defendant has engaged in other, uncharged misconduct and the charged conduct was in 

conformity with the uncharged misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 

2000). The trial court has broad discretion in weighing the probative value of the evidence 

against the possible prejudice of its admission. Crain v. State, 736 N.E.2d. 1223. If evidence 

has some purpose besides behavior in conformity with a character trait and the balancing test 

is favorable, the trial court is free to admit the evidence. Id. 

Cunningham contends the jail conversations were evidence of prior misconduct, We 

disagree. Cunningham’s presence in jail, standing alone, is not evidence of a prior bad act. 

Cunningham’s presence in jail was briefly acknowledged only when discussing the phone 

calls he placed to Conn, and as previously mentioned, this evidence was introduced to 

examine the validity of Conn’s testimony. Moreover, other than the aforementioned claim, 

6
Cunningham does not cite another instance in the record detailing any misconduct or a prior 

bad act. Also, the state did not characterize the phone calls as misconduct or bad acts and 

utilized them only to validate Conn’s prior statements. Therefore, we find the admission of 

the calls does not amount to fundamental error. 

In addition, Cunningham argues the jail phone calls were hearsay and therefore 

inadmissible. Even if the phone calls did contain hearsay, the admission of the statements 

did not amount to fundamental error. “Where the jury’s verdict is supported by independent 

evidence of guilt such that upon review we are satisfied that there was no substantial 

likelihood that the evidence in question played a part in appellant’s conviction, any error in 

its admission is harmless.” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001). Several 

independent witnesses’ accounts detailed the altercation between Cunningham and Conn, a 

letter authored by Cunningham acknowledged the physical altercation, and photos of Conn 

portrayed injuries allegedly caused by Cunningham during the physical altercation. In light 

of the substantial evidence of Cunningham’s guilt, we cannot conclude that the admission of 

the phone calls was so prejudicial as to render a fair trial impossible as is required to support 

a claim resulting in fundamental error. 

Cunningham also contends the admission of the battery affidavit resulted in undue 

prejudice resulting in fundamental error. Particularly, Cunningham asserts the document 

contained inadmissible hearsay and constituted to fundamental error. Even if the proffered 

evidence was inadmissible hearsay, Cunningham failed to show substantial harm flowing 

from its admission. “The improper admission of evidence is harmless error when the 

7
conviction is supported by substantial independent evidence of guilt sufficient to satisfy the 

reviewing court that there is no substantial likelihood that the questioned evidence 

contributed to the conviction.” Headlee v. State, 678 N.E.2d 823, 826 (Ind. Ct. App. 1997). 

Conn testified that she and Cunningham were involved in a physical altercation on 

November 20, 2012, and Carter, Utter, Sergeant Smith, and other witnesses acknowledged 

that an altercation occurred. Telephone conversations between Conn and Cunningham 

detailed and acknowledged that a physical altercation had occurred between the couple. 

Moreover, Sergeant Smith’s photos of Conn’s injuries, which allegedly resulted from the 

physical altercation, were admitted into evidence, and according to Jail Commander Officer 

Tony Bartling, Cunningham’s booking information “does not show that there were any 

[injuries] when he was booked in.” Transcript at 156. In light of this independent, 

overwhelming evidence, we find any error in the admission of the affadavit was harmless. 

Cunningham also contends a letter he had written to the court was improperly 

admitted. Cunningham wrote a letter that was addressed to his counsel, but it was ultimately 

filed with the court. In the letter, Cunningham explained that Conn unintentionally accused 

him of physical violence in her statement. Cunningham also promised to never hit Conn 

again and that he would drop a tort claim against the state if the charges against him were 

dropped. Cunningham also instructed the recipient of the letter to present it to the jurors or 

state. During trial, the court admitted the letter over Cunningham’s relevancy objection, and 

Cunningham now contends the letter was inadmissible because it was the product of plea 

negotiations. 

8
A plea agreement between a defendant and prosecutor is designed to induce a guilty 

plea in exchange for a reduced sentence for the defendant. Pannarale v. State, 638 N.E.2d 

1247 (Ind. 1994). Ultimately, acceptance of the plea agreement is dependent on the court’s 

discretion. Id. A plea negotiation does not start until the parties have agreed to begin 

negotiations. Gonzalez v. State, 929 N.E.2d 699 (Ind. 2010). Moreover, to qualify as 

privileged communication, a statement must meet two requirements: “first, the defendant 

must have been charged with a crime at the time of the statement, and, second, the statement 

must have been made to someone with authority to enter into a binding plea bargain.” Id. at 

701.

Cunningham’s letter was not the product of plea negotiations. The letter he authored 

was not directed toward an individual with the authority to initiate negotiations in furtherance 

of an agreement. Furthermore, an individual cannot unilaterally impose terms or negotiations 

concerning a plea agreement; both parties must agree to negotiations in furtherance of a plea 

in order for the contents of the negotiations to be privileged, which did not occur in the 

current case. 

For all of these reasons, we conclude that none of Cunningham’s arguments rise to the 

level of fundamental error.

2.

Cunningham also argues his conviction for contempt of court was not supported by 

sufficient evidence. In reviewing a challenge to the sufficiency of the evidence, the appellate 

court neither reweighs the evidence nor judges the credibility of the witnesses. Baumgartner 

9
v. State, 891 N.E.2d 1131 (Ind. Ct App. 2008). Moreover, the reviewing court considers only 

the evidence most favorable to the judgement and all reasonable inferences therefrom. 

Washington v. State, 902 N.E.2d 280 (Ind. Ct. App. 2009). Where there is conflicting 

evidence, the appellate court considers that evidence only in the light most favorable to the 

judgment. Dewald v. State, 898 N.E.2d 488 (Ind. Ct. App. 2008), trans. denied. The 

appellate court will affirm if evidence of probative value exists from which a fact finder 

could find the defendant guilty beyond a reasonable doubt. Gray v. State, 871 N.E.2d 408 

(Ind. Ct App. 2007), trans. denied. “Reversal is only appropriate when reasonable persons 

would be unable to form inferences as to each material element of the offense.” McCray v. 

State, 850 N.E.2d 998, 1000 (Ind. Ct. App. 2006), trans. denied. 

The trial court found Cunningham in contempt on three separate occasions during his 

hearing. The first instance involved Cunningham screaming “liar” during Utter’s testimony. 

Transcript at 83. The second instance of contempt stemmed from Cunningham’s 

communication with Conn during court recess, which directly violated a no-contact order, 

and the court found that Cunningham stared-down the court reporter in an effort to intimidate 

her. Cunningham was given an opportunity to explain why he stared-down the court 

reporter, and he stated, “I didn’t realize I was doing that, and I apologize if I was. I didn’t 

mean nothing by it.” Id. at 161. The court sanctioned Cunningham an additional 30 days in 

jail for his behavior, and Cunningham now contends that the trial court lacked sufficient 

evidence to impose the sanction. 

The power of Indiana courts to summarily punish for direct criminal contempt, while 

10
specified by statute, rests upon common law. Hopping v. State, 637 N.E.2d 1294 (Ind. 1994). 

It is essential for a court to be able “to protect itself against gross violations of decency and 

decorum.” Id. at 1296. Contempt of court involves the disobedience of a court directive that 

undermines the court’s authority, justice, and dignity. Hopping v. State, 637 N.E.2d 1294. 

Any act related to a current or pending proceeding which tends to deter the court from the 

performance of its duties may support a contempt proceeding. Id. Any act that manifests a 

disrespect and defiance of a court may constitute direct criminal contempt. Id. Ind. Code 

Ann. § 34-4-7-7 (West, Westlaw Statutes and constitution are current with all 2013 

legislation) provides:

The court shall distinctly state the act, words, signs, or gestures, or other conduct of 

the defendant which is alleged to constitute such contempt; and such statement shall 

be reduced to writing either by the judge making it, or by some reporter authorized by 

him to take it down when made; and the same shall be substantially set forth in the 

order of the court on the same. 

Contempt in the presence of the court, or so near to the court as to interrupt its proceeding, 

may be punished in a summary manner, without evidence other than the personal knowledge 

of the presiding judge. Warr v. State, 877 N.E.2d 817 (Ind. Ct. App. 2007). 

The court trial identified specific instances to satisfy the basis of Cunningham’s 

contempt sanction, such as his outburst during the court proceedings, his violation of the nocontact order, and his attempt to intimidate the court reporter. Furthermore, Cunningham 

offered an apology for his actions in court, and even though he claimed a lack of intent in 

regards to the offending action toward the court reporter, he did acknowledge its occurrence 

in his apology to the court. In the end, Cunningham’s argument is a request for the court to 

11
reweigh the evidence, which we do not do. Therefore, the evidence was sufficient to sustain 

Cunningham’s sanction for contempt. 

We affirm. 

BAKER, J., and VAIDIK, J., concur.

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