Devon Gaines v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 20 2018, 8:33 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon Gaines, December 20, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1731
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Peggy Ryan Hart,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G05-1710-F5-38956
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018 Page 1 of 4
[1] Devon Gaines appeals his class A misdemeanor domestic battery conviction,
arguing that the trial court committed reversible error in admitting testimony
from his victim that he claims is unfairly prejudicial. Because that testimony is
cumulative of testimony that Gaines did not object to, any error is harmless.
Therefore, we affirm.
[2] Gaines and Ra’zsaveh Richardson had an intimate relationship. He lived with
her off and on and kept personal items at her apartment. Richardson became
pregnant with Gaines’s child. Their relationship soured, and on October 4,
2017, Richardson told Gaines “to come and get his stuff.” Tr. Vol. 2 at 57. She
let him into her apartment, and they got into an argument after she refused his
request to get an abortion. Gaines pushed and punched Richardson, tased her
stomach with her taser, and tried to throw her in the shower. He broke her
phones and told her that she was “going to learn to stop f’ing with [him].” Id.
at 62. As Gaines was “trying to get his stuff … out of the apartment[,]”
Richardson knocked on her neighbors’ doors and begged for help. Id. at 64.
The police arrived, and Richardson told them what had happened.
[3] The State charged Gaines with six counts, including class A misdemeanor
domestic battery. At trial, Richardson testified that Gaines “wanted [her] to get
an abortion[.]” Id. at 55. Gaines objected and requested a bench conference.
The transcript indicates that much of the conference, including the specific basis
for Gaines’s objection, was inaudible and therefore was not transcribed by the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1731 | December 20, 2018 Page 2 of 4
court reporter.1 The trial court overruled the objection. Shortly thereafter,
Richardson again testified that Gaines “wanted [her] to get an abortion.” Id. at
58. Gaines did not object to this statement. The jury found him guilty of
domestic battery, and the trial court sentenced him to 365 days, with 229 days
suspended to probation.
[4] On appeal, Gaines asserts that the trial court committed reversible error in
admitting Richardson’s statement that he wanted her to have an abortion. We
disagree. Our supreme court has stated on more than one occasion that “[e]ven
the erroneous admission of evidence which is cumulative of other evidence
admitted without objection does not constitute reversible error.” Hoglund v.
State, 962 N.E.2d 1230, 1240 (Ind. 2012) (quoting Wolfe v. State, 562 N.E.2d
414, 421 (Ind. 1990)); see also Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct.
App. 2005) (“[T]o preserve a challenge to the admission of evidence, the
defendant must object each time the evidence is offered.”). Thus, assuming for
argument’s sake that the trial court erred in admitting Richardson’s first
statement regarding abortion, that error is harmless because Gaines did not
object to Richardson’s second, cumulative statement regarding abortion.
Therefore, we affirm.
1
The State notes that Gaines could have utilized Indiana Appellate Rules 31 through 33 “to attempt to
clarify the record” but did not do so. Appellee’s Br. at 9 n.1. The trial court’s response to Gaines’s inaudible
objection strongly suggests that Gaines’s argument at trial is not the same as the argument he makes on
appeal, which is that Richardson’s statement was unfairly prejudicial and inadmissible under Indiana
Evidence Rules 401 and 403. “[A] defendant may not argue one ground for an objection to the admission of
evidence at trial and then raise new grounds on appeal.” Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011).
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[5] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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