Opinion
23A-CR-2455
09-10-2024
Anthony L. Cole, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark K. Leeman Logansport, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Andrew R. Hopper, Judge Trial Court Cause No. 48C03-1903-F6-563
ATTORNEY FOR APPELLANT
Mark K. Leeman Logansport, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] Anthony Cole appeals his conviction for Level 6 felony battery resulting in moderate bodily injury. He contends that the trial court abused its discretion by admitting certain evidence.
[¶2] We affirm.
Facts & Procedural History
[¶3] On January 11, 2019, while Cole was incarcerated in the Pendleton Correctional Facility, he struck inmate Kelvin Hampton several times in the head with a metal lock secured inside of a laundry bag. The attack resulted in a laceration to the back of Hampton's head that bled significantly and required multiple stitches.
[¶4] Though he was charged with battery on March 4, 2019, Cole's jury trial was not held until August 21, 2023. Hampton did not testify at trial. The State's evidence consisted of the testimony of two correctional officers who investigated the matter, three videos of the cell block that were taken from different vantage points at or near the time of the attack, and Hampton's prison medical records following the attack.
[¶5] The defense theory, asserted from the start of trial, was that the State would not be able to establish that Cole was Hampton's attacker. The State had no DNA or fingerprint evidence and no eyewitness or victim testimony. Further, Hampton's attacker was wearing a makeshift face covering and could not be identified in the lone video of the attack.
[¶6] To rebut Cole's identity defense, the State presented Exhibit 1, which was admitted into evidence over Cole's objection. This was a video that began shortly before the attack and showed the door to cell 23 open and then an inmate emerge from the cell wearing the same clothing and face covering as Hampton's attacker and carrying a laundry bag. Further, Officer Aaron Long testified that Cole was the sole occupant of cell 23 and that Cole's was the only cell door open at the time.
[¶7] The State then introduced into evidence Exhibit 2, a video taken from the other end of the cell block that showed the same masked individual attack Hampton.After the unprovoked attack, the masked individual turned and walked away as Hampton called for help. While walking in the other direction, the individual removed his mask and the bloodied coat he was wearing. Correctional officers entered the cell block and apprehended the now unmasked individual, who remained visible throughout the video.
Hampton and his attacker were the only inmates in the common area of the cell block during this time.
[¶8] The third video admitted into evidence, Exhibit 3, showed this same individual being escorted out of the cell block in handcuffs. Officer Long, who knew Cole from prior incidents at the prison, identified Cole at trial as the individual shown in Exhibit 3 being detained by officers. Another correctional officer also testified that he was able to identify Cole in Exhibit 3.
[¶9] The jury found Cole guilty as charged of battering Hampton. On September 20, 2023, the trial court sentenced Cole to twenty-eight months in the Indiana Department of Correction.
[¶10] Cole now appeals, challenging the admission of evidence. Additional information will be provided below as needed.
Standard of Review
[¶11] A trial court has broad discretion to rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We review for an abuse of discretion and will reverse a trial court's evidentiary ruling only if it was both clearly against the logic and effect of the facts and circumstances and the error affected the defendant's substantial rights. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021).
Discussion & Decision
1. The trial court did not abuse its discretion by admitting Exhibit 1 into evidence.
[¶12] Cole argues, as he did below, that Exhibit 1 should not have been admitted into evidence because it included evidence of an uncharged, prior bad act. That is, just after exiting his cell, Cole, wearing a mask, is shown in the video throwing liquid from a pitcher into the cell next to his. This was purportedly hot water. After promptly putting the pitcher back inside his cell, Cole then proceeded down the cell block toward the location where he encountered and beat Hampton.
[¶13] Ind. Evidence Rule 404(b)(1), on which Cole premises his argument, provides: "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." Such evidence, however, "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Evid. R. 404(b)(2).
[¶14] When assessing admissibility of 404(b) evidence, courts must: (1) determine whether the evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Ind. Evidence Rule 403. Pittman v. State, 234 N.E.3d 874, 885 (Ind.Ct.App. 2024), trans. denied.
[¶15] Here, identity was the primary issue at trial because the battery was committed while Hampton's assailant was masked. Exhibit 1 played a significant role in identifying Cole as the masked individual. It showed the opening of the door to cell 23 - Cole's cell that he shared with no one - and the masked individual exiting that cell carrying a laundry bag. Exhibit 1 thus showed the events just prior to the attack, which linked up directly with the events depicted in the subsequent videos, Exhibit 2 and Exhibit 3, including Cole's eventual unmasking.
[¶16] Exhibit 1 was clearly admitted for a proper purpose - to prove identity - and the fact that the video also included Cole throwing hot water into another inmate's cell was not referenced by the State at trial or utilized in a way to show a general propensity to batter others. Moreover, the probative value of Exhibit 1 far outweighed any prejudicial effect of the rather trivial water-throwing portion of the video that showed the same individual about one minute later brutally beating Hampton, as fully depicted in Exhibit 2. Accordingly, the trial court did not abuse its discretion by admitting Exhibit 1 into evidence over Cole's objection.
2. Cole waived his challenge to the evidence of Hampton's medical records.
[¶17] During the testimony of Officer Long, the State offered into evidence certified medical records documenting Hampton's injuries. Officer Long testified that he received the records from "medical staff at Pendleton Correctional Facility" and that the attached certification was by the administrator of such records at the facility. Transcript Vol. 2 at 19. Cole made the following objection at trial: "Your Honor the Defense would object um only that I think the best _ evidence of the injury would be to have Mr. Hampton here to testify about his injuries." Id. Over this objection, the trial court admitted the records.
[¶18] On appeal, Cole asserts an entirely different argument regarding the admissibility of the medical records. He acknowledges that with proper foundation medical records may be admissible under Ind. Evidence Rule 803(6) as a record of regularly conducted activity. But Cole argues that the State failed to provide a proper foundation for admission of the records under this rule.
This exception to the hearsay rule applies where:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.Evid. R. 803(6).
[¶19] "Grounds for objection must be specific and any grounds not raised in the trial court are not available on appeal." Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000). Moreover, without an objection on foundational grounds by Cole, the State had no obligation to establish a foundation for admission of the medical records under Evid. R. 803(6). See Turner v. State, 878 N.E.2d 286, 294 (Ind.Ct.App. 2007) ("[A] party may not sit idly by and fail to object to the lack of a proper foundation and subsequently take advantage of that error when a timely objection could have permitted the proper foundation to be laid."), trans. denied; Guadian v. State, 743 N.E.2d 1251, 1254 (Ind.Ct.App. 2001) ("The rule requiring a defense objection to lack of proper foundation reaffirms the policy favoring speedy correction of prejudicial errors.") (internal quotations omitted), trans. denied. Cole waived his challenge to the admission of Hampton's certified medical records.
[¶20] Judgment affirmed.
Bailey, J. and Mathias, J., concur.