Charles F. Carmen v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jun 23 2020, 9:48 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Samuel J. Beasley Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles F. Carmen, June 23, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-166
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Mary G. Willis,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
18C01-1804-F6-236
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-166| June 23, 2020 Page 1 of 6
Case Summary
[1] On October 4, 2019, Charles Carmen was convicted of Level 6 felony domestic
battery resulting in moderate bodily injury and ultimately sentenced to one year
suspended to probation. Carmen contends that the trial court erred by denying
him the opportunity to cross-examine Elizabeth Riggs regarding her pending
criminal charges. We affirm.
Facts and Procedural History
[2] Early in the morning on April 15, 2018, Carmen punched Riggs, with whom he
was romantically involved, in the nose, breaking it. On April 20, 2018, the State
charged Carmen with Level 6 felony domestic battery resulting in moderate
bodily injury. On September 26, 2019, a bench trial was held, at which the State
called Riggs as a witness. During direct examination, the State asked Riggs if
she was going to receive any benefit from testifying, stating
[STATE:] Do you still have cases pending here in Delaware
County?
[RIGGS:] Yeah.
[STATE:] And as a result of your testimony here today in Court,
have you been offered any leniency or breaks in any of the cases
that you currently have pending in our county?
[RIGGS:] No, none at all.
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[STATE:] Has any mention been made of that?
[RIGGS:] No.
[STATE:] Is it your understanding that you’re getting any
leniency for your testimony today.
[RIGGS:] No, not at all.
Tr. Vol. II pp. 63–64. During cross-examination, Carmen’s counsel did not
question Riggs regarding her pending charges; however, after Riggs testified
that she did not consider herself to be a violent person, Carmen’s counsel
attempted to question her regarding her criminal history, prompting an
objection from the State. Carmen’s counsel argued that
once [Riggs] has said she doesn’t consider herself to be a violent
person, I can inquire as to specific instances of bad conduct and
ask her whether she thinks that that constitutes her being a
violent person. (Inaudible) either change her opinion or stand by
her opinion that she’s not violent in light of this evidence. She
says her opinion is she’s not a violent person. I then get to inquire
as to specific bad acts to find out if her opinion considers those
bad acts.
Tr. Vol. II p. 79. The trial court sustained the State’s objection, and Carmen’s
counsel made the following offer of proof:
All right. Judge, the State provided in discovery a criminal
background check of [Riggs] so this is nothing of surprise. It was
also discussed previously with counsel. And as an offer of proof,
I would present evidence to the Court indicating that [Riggs] has
been found – been charged and found guilty of intimidation. In
the same cause, there was a battery by bodily waste. There was
also a resisting law enforcement which were each dismissed.
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I would also present evidence that she was charged with
domestic – with a disorderly conduct, as well as, a public
intoxication. Additionally, there was a separate disorderly
conduct charge. Then in another instance, she was charged with
battery and disorderly conduct. Again, a subsequent charge –
arrest and charge battery – domestic battery. Again, a subsequent
charge, domestic battery. Another arrest and charge for battery
with injury. Another charge for battery with injury to law – or a
battery with no injury to a law enforcement officer, as well as,
resisting law enforcement. And that’s in addition obviously to the
attempted robbery that already been put into evidence.
I think it’s absolutely germane to her credibility as a witness if
she’s going to maintain that she’s not a violent person, it’s
absolutely pertinent that this Court consider those facts and that
she doesn’t consider those to be the acts of a person who is a
violent person.
Tr. Vol. II pp. 79–80. Following trial, the court took the matter under
advisement. On October 4, 2019, the trial court found Carmen guilty as charged
and ultimately sentenced him to one year suspended to probation.
Discussion and Decision
[3] Carmen contends that the trial court erroneously denied him the opportunity to
cross-examine Riggs regarding her pending criminal charges in order to
demonstrate that her testimony was biased in order to curry favor with the State
regarding the resolution of her pending criminal charges. At trial, however,
Carmen’s arguments and offer of proof only indicate that he sought to question
Riggs regarding her prior convictions and/or charges. Because Carmen makes
his bias argument regarding Rigg’s pending charges for the first time on appeal,
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it is waived for appellate review. See Washington v. State, 808 N.E.2d 617, 625
(Ind. 2004) (noting that an argument or issue that is not raised by a party at the
trial court level is waived on appellate review). Moreover, while Riggs testified
on direct examination that she was not receiving any benefit or leniency in the
resolution of her pending charges in exchange for her testimony, Carmen never
attempted to cross-examine Riggs regarding her pending charges. Carmen’s
entire argument is based on a false premise, which is that the trial court denied
him the opportunity to ask certain questions even though he never attempted to
ask the questions. Put another way, Carmen cannot argue that the trial court
denied him the opportunity to question Riggs about her pending criminal
charges when he never sought to question her regarding her pending criminal
charges.
[4] Waiver notwithstanding, even assuming, arguendo, that the trial court erred, it
could only be considered harmless error. The United States Supreme Court has
held that “some constitutional errors … are so unimportant and insignificant
that they may, consistent with the Federal Constitution, be deemed harmless.”
Brecht v. Abrahamson, 507 U.S. 619, 630 (1993) (internal quotations omitted).
Errors under the Sixth Amendment are subject to harmless error analysis.
Collins v. State, 822 N.E.2d 214, 221 (Ind. Ct. App. 2005), trans. denied. “Error is
deemed harmless when there is no substantial likelihood the error contributed
to the verdict, or, in other words, that the error was unimportant.” Id. (internal
quotations omitted).
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[5] Here, the record is devoid of any physical evidence indicating an alternative
cause of Riggs’s injury other than Carmen punching her in the nose. In fact,
when Carmen asked Dr. Douglas Kuxhausen if the type of injury that Riggs
sustained could have been inflicted by falling, he stated that “[w]e usually do
not see facial injuries from a person that is awake and falls, because that’s the
first thing they usually block is their face[.]” Tr. Vol. II p. 23. The only evidence
that supports an alternative cause of Riggs’s injury is Carmen’s self-serving
testimony, which the trial court was not entitled to believe and did not. Carmen
has failed to establish that the trial court abused its discretion.
[6] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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