Billie Jo Moore v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jul 08 2014, 6:10 am
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:
BRYAN M. TRUITT GREGORY F. ZOELLER
Bertig & Associates LLC Attorney General of Indiana
Valparaiso, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BILLIE JO MOORE, )
)
Appellant-Defendant, )
)
vs. ) No. 64A04-1309-CR-497
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Roger V. Bradford, Judge
Cause No. 64D01-1210-FB-10328
July 8, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Billie Jo Moore appeals her conviction for Aggravated
Battery,1 a class B felony. Moore also appeals the determination that she is a Habitual
Offender.2 More particularly, she argues that the trial court erred when it admitted into
evidence blood tests indicating that Moore’s blood contained cocaine at the time of the
crime. Moore also argues that her aggregate sentence is inappropriate in light of the
nature of the offense and her character. We find that the trial court did not err in
admitting the blood test into evidence and determine that Moore’s sentence is not
inappropriate. Therefore, we affirm the judgment of the trial court.
FACTS
On the afternoon of October 10, 2012, Moore drove her vehicle into a ditch
between two houses. Neighbors saw Moore’s car in the ditch and came outside to help
her. A neighbor dialed 911, at which point Moore stated that she had a friend who lived a
few blocks away and walked in that direction.
At this time Robert Gottschling, a sixty-four-year-old retiree, was walking in from
picking up his mail. Moore approached Gottschling, told him that she had been in an
accident, and asked if she could use his telephone. Gottschling agreed and let her into his
home. He then placed his mail on the footrest of his recliner and let Moore into the
kitchen, where he handed her his telephone receiver. He then went back into the living
room and began looking through his mail.
1
Ind. Code § 35-42-2-1.5.
2
Ind. Code § 35-50-2-8(a).
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Gottschling heard Moore make two phone calls. Moore then stepped into the
doorway and asked Gottschling if she could fill up her cup with water. After she had
filled her cup from the kitchen sink, she thanked him. Gottschling then told Moore, “you
can leave now” or something “to that effect.” Tr. p. 387. Gottschling stated that his tone
towards Moore might have been irritated because she stayed in his home after making use
of the telephone.
Moore then lunged at Gottschling with a dagger, which he kept in the kitchen to
open envelopes. Gottschling struggled with her, trying to take the dagger away. They
fell to the floor during the struggle; Gottschling gouged at Moore’s eyes and hit her on
the head. At Moore’s trial he testified that he was “fighting for [his] life.” Tr. p. 391.
Gottschling noticed that he was bleeding and had been hurt. His blood made the dagger
slippery, and he was able to take it from Moore. Gottschling then ran from his home.
Once outside, he felt himself getting weak and leaned on a fence. When he began
screaming for help, neighbors responded and found the dagger lying near him on the
ground.
Deputy Jason Praschak had been called to the area because of the report that
Moore’s vehicle was in a ditch. Neighbors waived him down, and he found Gottschling
gasping for air. Gottschling told Deputy Praschak that a woman had asked to use his
phone and attacked him. He informed Deputy Praschak that she might still be in his
home.
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Police searched Gottschling’s house but found no one. However, Deputy Brian
Dziedzinski noticed Moore smoking a cigarette and holding her purse. Moore
complained of pain and was taken to the hospital for medical clearance. Hospital
personnel discovered the presence of cocaine metabolites in her blood.
Gottschling suffered multiple stab wounds. He was stabbed twice in the chest; one
stab wound pierced the sack around his heart, and the sack filled with blood. He also
suffered wounds to his left hand, forearm, and face. Gottschling spent five days in the
hospital. Three were spent in the intensive care unit.
On October 11, 2012, the State charged Moore with class B felony aggravated
battery and class C felony burglary with a deadly weapon. The State also charged Moore
with two counts of operating a vehicle while intoxicated. On July 19, 2013, Moore
moved to sever the intoxication charges from the battery charges, and the trial court
granted her motion that same day.
On July 24, 2013, Moore filed a motion in limine concerning prior bad acts and a
motion to suppress blood and urine tests. The trial court denied both motions
Moore’s four-day jury trial commenced on July 29, 2013, and the jury found
Moore guilty on both counts. Moore was also found to be a habitual offender.
Sentencing was held on August 30, 2013. The trial court found that the conviction for
class C felony battery with a deadly weapon merged into the conviction for the class B
felony aggravated battery; it sentenced Moore to twenty years for the class B felony and
enhanced the sentence by 30 years because of Moore’s status as a habitual offender.
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Moore now appeals.
DISCUSSION AND DECISION
I. Admission of Blood Evidence
Moore argues that her conviction must be reversed because the trial court should
have excluded blood test results indicating the presence of cocaine in her blood at the
time she attacked Gottschling. Moore contends that this evidence was admitted in
violation of Indiana Rule of Evidence 404(b), which excludes evidence of prior bad acts.
When reviewing a trial court’s decision to admit evidence, we do not reweigh the
evidence, and we consider conflicting evidence most favorable to the trial court’s ruling.
Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005). We also consider
uncontroverted evidence in the defendant’s favor. Id.A trial court has broad discretion in ruling on the admissibility of evidence.
Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Accordingly, we will
reverse a trial court’s ruling on the admissibility of evidence only when the trial court
abused its discretion. Id. An abuse of discretion involves a decision that is clearly
against the logic and effect of the facts and circumstances before the court. Id.In addressing Moore’s arguments, we initially observe that Moore did not make a
contemporaneous objection to the admission of the blood evidence at trial. Therefore,
she has waived review of the admission of the evidence. Jackson v. State, 735 N.E.2d
1146, 1152 (Ind. 2000).
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Waiver notwithstanding, we address the merits of Moore’s claim. Moore is
correct that Indiana Rule of Evidence 404(b) generally bars admission of evidence of
uncharged bad conduct. Indiana Rule of Evidence 404(b) provides that:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial; and
(B) do so before trial -- or during trial if the court, for good cause,
excuses lack of pretrial notice.
While section 404(b)(1) of the rule clearly prohibits the use of evidence of uncharged bad
acts as character evidence “in order to show that on a particular occasion the person acted
in accordance with the character,” section 404(b)(2) lists permitted uses of such evidence.
This court has previously held that this list is illustrative but not exhaustive. Embry v.
State, 923 N.E.2d 1, 8 (Ind. Ct. App. 2010).
Moore is correct that Indiana Evidence Rule 404(b) bars extrinsic evidence of
uncharged criminal acts. However, it does not bar evidence of uncharged acts that are
intrinsic to the offense charged. Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App.
2007). “Other acts are ‘intrinsic’ if they occur at the same time and under the same
circumstances as the crimes charged.” Id. Additionally, this Court has held that
“evidence of happenings near in time and place that complete the story of the crime is
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admissible even if it tends to establish the commission of other crimes not included
among those being prosecuted.” Id.Here, the blood evidence indicating cocaine metabolites in Moore’s blood was
evidence of an uncharged act that was intrinsic to the offense charged and completed the
story of the crime. At trial, Moore’s counsel suggested that there was no reason for
Moore to attack Gottschling: “I ask you to consider who really had the motivation to be
the initial aggressor.” Tr. p. 47. The testimony presented by the State’s expert
concerning the blood evidence explained that a person under the influence of cocaine can
be “agitated” and that cocaine “causes your body to go crazy.” Tr. p. 360. This could
explain why Moore would attack Gottschling when she was otherwise unprovoked.
Under these circumstances, we cannot say that the trial court erred in admitting the blood
evidence.
II. Sentencing Challenge
Moore also challenges the appropriateness of her fifty-year aggregate sentence.
She argues that the sentence is inappropriate in light of the nature of the offense and her
character.
On appeal, this Court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B). Under Appellate Rule 7(B), the question is not whether it is more
appropriate to impose a different sentence upon the defendant, but whether the
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defendant’s sentence is appropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct.
App. 2011). The defendant bears the burden of persuasion on appeal that the sentence he
received is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Here, the nature of the offense was egregious. Gottschling, a sixty-four year old
retiree, allowed Moore into his home. He allowed her to use his telephone to call for help
and let her have a drink of water. Moore repaid him with an unprovoked attack. She
stabbed him several times and placed him in the hospital. There was nothing to be gained
by the attack; it was senseless and violent. Thus, the nature of the offense avails Moore
of nothing.
Turning to Moore’s character, we note that she has a lengthy criminal history.
Moore has been arrested and charged on at least twenty occasions; she has six prior
felony convictions and at least ten prior misdemeanor convictions. Appellant’s App. p.
222. At Moore’s sentencing hearing, the trial court noted that “[t]hat’s as extensive a
criminal history as I’ve seen in my [thirty four] years on the bench.” Sentencing Tr. p.
16. Moreover, Moore has been sentenced to community service, substance abuse
treatment, formal and unsupervised probation, and prison. She has violated probation
more than once. Appellant’s App. p. 222. It is clear that she has not learned from these
experiences. Rather, she has continued to commit crimes. We agree with the trial court
that “the criminal justice system has tried everything and it hasn’t worked.” Sentencing
Tr. p. 17.
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Under these circumstances we cannot say that Moore’s sentence is inappropriate
in light of the nature of the offense and character. The judgment of the trial court is
affirmed.
BARNES, J., and CRONE, J., concur.
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