Opinion
24A-CR-240
06-26-2024
Luis Portillo, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana Steven J. Halbert Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable William J. Nelson, Judge Trial Court Cause No. 49D18-2310-CM-30049
ATTORNEY FOR APPELLANT Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana Steven J. Halbert Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Luis Portillo appeals his conviction of battery, as a Class A misdemeanor,following a bench trial. We affirm.
Ind. Code § 35-42-2-1(c), (d).
Issues
[¶2] Portillo raises the following two issues:
I. Whether the State presented sufficient evidence to support his conviction of battery resulting in bodily injury.
II. Whether the trial court abused its discretion when it denied Portillo's request to refresh Wendy Ruiz's recollection with a recording of Ruiz's previous statements.
Facts and Procedural History
[¶3] In October of 2023, Ruddy Cazares lived at 1718 Lafayette Road, Indianapolis, in a warehouse or office building. The building had cubicle walls erected to create rooms for Cazares and the five or six other people living there. On October 24, 2023, Cazares finished work early and went home around 4:00 p.m. Cazares's roommates, including Luis Portillo (who is Cazares's nephew by marriage), Juan Portillo (Portillo's uncle, "Juan"), Wendi Ruiz, and Jacqueline arrived at the building at around 6:00 p.m. that day. Cazares, Portillo, and Juan drank tequila together. Ruiz and Jacqueline went to the bedroom they shared.
Jaqueline's surname is not in the record.
[¶4] At some point that night, Portillo became angry at Cazares because he would not drive Portillo to a liquor store or give Portillo his car keys so that he could drive himself to the liquor store. Portillo yelled at Cazares, insulted him, and called him names. Cazares went to his own bedroom, which was next to Portillo's. Portillo hit the dividing wall between their rooms, which fell and knocked some of Cazares's belongings down. While Cazares was bent down to pick up his belongings, Portillo walked up behind Cazares and began to hit him in the head and face. Cazares fell to the floor, hitting his head on a wall in the process. Portillo continued to hit Cazares in the face while Cazares tried to shield his face with his arms. While he was on the floor, Cazares screamed at Portillo to stop.
[¶5] Ruiz and Jacqueline heard the screaming from their room and came out to see what was happening. They separated Cazares and Portillo. Ruiz took Cazares to wash him up because he had a swelling lip and blood on his mouth and his arms near his elbows. Cazares called the police, and officers were dispatched to the location. Officers arrived and observed that Cazares's mouth and lips were red and swollen and that he had cuts or abrasions on his elbows. The officers believed both Cazares and Portillo were intoxicated after talking to them, and they arrested Portillo.
[¶6] The State charged Portillo with battery resulting in bodily injury as a Class A misdemeanor and disorderly conduct as a Class B misdemeanor. At the bench trial, the State introduced testimony from Cazares and the police officers who responded to the incident. The State also produced photographs the police had taken of Cazares's injuries. In his defense, Portillo called Ruiz as a witness. Ruiz testified that she and Jacqueline were together in a room and heard Portillo and Cazares arguing for about five minutes before the two women went to see what was happening. Ruiz and Jacqueline separated the two men. Ruiz testified that after Cazares and Portillo were separated, Cazares attempted to jump on Portillo and fell, causing Cazares to injure himself. Ruiz then took Cazares to another room to clean the blood from his injuries.
I.C. § 35-45-1-3(a)(1).
[¶7] During Ruiz's testimony, Portillo asked her whether she remembered Cazares falling against a dividing wall, rather than the floor. Ruiz denied that Cazares fell against a wall and reiterated that Cazares fell to the floor after attempting to jump on Portillo. Portillo then asked to refresh Ruiz's recollection using an audio recording of a taped statement given in preparation for trial. The State objected, and Portillo's counsel resumed questioning Ruiz. Later during Ruiz's testimony, Portillo asked Ruiz if she saw Cazares "hit the wall at all" and Ruiz responded "No." Tr. at 76. Portillo then asked, "Do you remember making a statement that he fell into the wall?" Id. at 77. Ruiz responded "No." Id. Portillo again requested to play a taped statement to refresh her recollection. The State objected, and the trial court sustained the objection.
[¶8] The trial court found Portillo guilty of battery resulting in bodily injury as a Class A misdemeanor and not guilty of disorderly conduct. The trial court sentenced Portillo to 360 days with 206 days suspended to probation. This appeal ensued.
Discussion and Decision
Sufficiency of the Evidence
[¶9] Portillo contends that the evidence is insufficient to support his conviction.
When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence- even if conflicting-and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. We affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. A conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (internal quotations and citations omitted).
[¶10] To convict Portillo of battery resulting in bodily injury as a Class A misdemeanor, the State was required to prove that: (1) Portillo (2) knowingly or intentionally (3) touched Cazares (4) in a rude, insolent, or angry manner (5) that resulted in bodily injury to Cazares. See Ind. Code § 35-42-2-1(c), (d). Portillo acknowledges that Cazares was injured but alleges the State failed to prove that those injuries were caused by Portillo. However, Cazares testified that his injuries were caused when Portillo repeatedly hit him and knocked him into a wall. While Ruiz's testimony that Cazares injured himself when he jumped on Portillo and fell to the floor may be construed as contradicting Cazares's testimony, it is not for this Court to determine witness credibility or reweigh the evidence. See Bailey, 979 N.E.2d at 135. Clearly, the trial court found Cazares's testimony credible, and we may not disturb that determination. See id. And Cazares's testimony provides sufficient support for the battery conviction. See id.
We note that Portillo incorrectly claims that Ruiz's testimony was "unrebutted." Appellant's Br. at 7.
On appeal, Portillo also maintains that he acted in self-defense. A claim of self-defense may not be raised for the first time on appeal. See Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind.Ct.App. 1985). Portillo did not raise or argue self-defense at any point in the trial court; therefore, he has waived it.
Refreshing Recollection
[¶11] Portillo contends that the trial court erred when it did not allow him to use a previously recorded statement to refresh Ruiz's recollection. Decisions regarding the admission of evidence are within the sound discretion of the trial court, and we will not reverse the trial court's decision absent a showing of a manifest abuse of that discretion resulting in the denial of a fair trial. Gaby v. State, 949 N.E.2d 870, 877 (Ind.Ct.App. 2011). An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Id.
[¶12] Indiana Evidence Rule 612(a) "allows a questioner to refresh a witness's memory using a writing or similar device after the witness indicates she has no memory of the information sought." A.L. v. Ind. Dep't of Child Serv., 223 N.E.3d 1126, 1135 (Ind.Ct.App. 2023) (citing Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000)), trans. denied. Thus, in order to lay a proper foundation to refresh a witness's recollection, the witness must first state that she does not recall the information sought by the questioner. See id.; see also Gaby, 949 N.E.2d at 779 (finding no foundation for refreshing recollection where the witness did not state that she was unable to recall the information sought by questioner, but rather simply gave answers "neither expected nor desired").
[W]here a witness has testified positively and readily so as to indicate that his memory is not obscured, one may not be permitted, in the guise and on the pretext of refreshing the witness'[s] recollection, to make use of a favorable memorandum
with an actual view to contradicting the witness or inducing him to change his testimony.Gaby, 949 N.E.2d at 880-81 (quoting State v. McKinney, 763 S.W.2d 702, 708 (Mo. Ct .App. 1989)).
[¶13] Ruiz testified positively and readily that she saw Cazares fall on the "carpet" and injure himself. Tr. at 74. When she was asked, "Do you remember Mr. Cazares falling into the wall?," Ruiz responded, "No. He fell on the carpet..." Id. Ruiz did not state that she did not remember whether Cazares fell into the wall; she testified that he did not fall into the wall but onto the floor. Therefore, Portillo failed to lay a proper foundation to refresh Ruiz's recollection, and the trial court did not abuse its discretion when it did not allow him to do so.
It is unclear what Portillo hoped to achieve by showing Ruiz had previously said Cazares injured himself by hitting the wall versus the floor. The relevant fact is that Cazares was injured when he fell, whether he fell into the wall or onto the floor. The other relevant fact is who caused him to fall and become injured, himself or Portillo; but, again, whether he fell onto the floor or into the wall is irrelevant to that inquiry. Therefore, even if there had been error-which there was not-it would have been harmless. See Ind. Appellate Rule 66(A).
Conclusion
[¶14] The State presented sufficient evidence to support Portillo's conviction of battery resulting in bodily injury as a Class A misdemeanor. And the trial court did not abuse its discretion when it did not allow Portillo to attempt to refresh Ruiz's recollection, as Ruiz never testified that she did not recall the information requested.
[¶15] Affirmed.
Altice, C.J., and Mathias, J., concur.