L.H., Appellant-Defendant, v. STATE OF INDIANA (1991)

MEMORANDUM DECISION

Defendant-Appellant L.H. (L.H.) appeals her conviction of battery, a class A misdemeanor. Ind. Code 35-42-2-1.

We affirm.

L.H. presents four issues for our review:

1. whether the trial court erred in admitting opinion testimony of the treating physician;

2. whether the trial court erred in excluding the proposed cross-examination of the marshal as irrelevant;

3. whether the defendant was deprived of a fair trial due to ineffective assistance of counsel; and

4. whether the conviction is supported by sufficient evidence.

On November 20, 1989, L.H. called Robin Davis (Davis), the Frankton cheerleading coach, regarding a twenty dollar donation L.H. had made to the cheerleaders' fundraising program in July, 1989. An argument ensued, and Davis hung up on L.H.

Davis decided to return the donation to L.H.'s place of business. When she arrived L.H. was on the phone so Davis placed an envelope with the money on L.H.'s desk and left. L.H. followed Davis to her car. L.H. and Davis began physically fighting, yelling, pushing, slapping and pulling hair. During the fight, Davis attempted to push L.H. away and felt L.H. bite her finger. The women ended up on the ground, and a customer came out and attempted to separate the women. When L.H. and Davis were separated and the women were a bit calmer, Davis noticed the end of her little finger had been bitten off.

At Community Hospital in Anderson Dr. John Brown (Brown) examined her finger and observed the right little finger was bleeding at the tip, a portion of the fingernail was missing, the bone was exposed, and a portion of the bone was also missing.

The State prosecuted L.H. On July 25, 1990, a jury found L.H. guilty. L.H. appeals.

L.H. maintains the bite was an unfortunate accident, not intentional. She contends the trial court erred in permitting Dr. Brown to testify, over objection, this was not the type of injury he would expect would be inflicted from an accidental bite. She urges the question of her state of mind was the precise issue the jury was to decide and it was improper for the doctor to be allowed to give an opinion on that point.

For a battery to have occurred under IC 35-42-2-1, the action must have been either knowingly or intentionally committed.

The admission of expert testimony is within the sole discretion of the trial court and will be reversed only for abuse. Seeglitz v. State (1986), Ind., 500 N.E.2d 144, 147. To qualify as expert testimony, the subject matter must be related to some scientific field beyond the knowledge of the average lay person, and the witness must have sufficient skill, knowledge or experience in the field to make it appear the witness's opinion or inference will aid the trier of fact. State v. Romero (1990), Ind.App., 563 N.E.2d 134, 138. A qualified expert witness may give an opinion as to an ultimate fact in issue. Breese v. State (1983), Ind.App., 449 N.E.2d 1098, 1111, reh. denied. Normally, the question of a person's intent at the time of the commission of the crime is a direct question of fact for the jury and not a proper subject of expert testimony. Seeglitz, supra. An expert may testify concerning his special knowledge of the subject even when it concerns matters within the common knowledge and experience of the ordinary person. Wissman v. State (1989), Ind., 540 N.E.2d 1209, 1213; Summers v. State (1986), Ind.App., 495 N.E.2d 799, reh. denied, trans. denied.1

In the instant case, Dr. Brown was not testifying to L.H's state of mind at the time of the fight. Based on his experience with finger injuries, he stated he would not expect this type of injury to be the result of an accidental bite. (R. 124-127). He did not rule out the possibility an accidental bite could have caused the injury. His special knowledge in this area supplemented the jurors’ knowledge gained from the testimony and photos depicting the injury. While his opinion testimony tended to contradict L.H.’s version of the events, it is not by necessity inadmissible. Henson, supra, at 1193. The trial court did not abuse its discretion in admitting the opinion testimony of Dr. Brown.

L.H. contends the trial court erred in excluding cross-examination of the Frankton Town Marshall, Calvin Pulley, on his statement to L.H. at the time of his investigation that he did not think anything would come of the matter. L.H. claims the cross-examination would undermine the credibility of the entire case because it would permit the inference that pressure by the State forced Pulley to file a charge in a matter he did not regard as a criminal matter.

The trial court is allowed to control the conduct of cross-examination, and we will reverse only when the trial court has abused its discretion. Jones v. State (1991), Ind.App., 569 N.E.2d 975, 981. However, the trial court's exercise of discretion in regulating the scope of cross-examination must be consistent with due process. McIntyre v. State (1984), Ind.App., 460 N.E.2d 162, 166. Any doubt concerning the legitimacy of the cross-examination must be resolved in favor of the questioner. Id. Broad cross-examination is permitted to expose any ulterior motive a witness has for testifying, and the preclusion of such cross-examination is reversible error. Bredemeier v. State (1984), Ind.App., 463 N.E.2d 1138, 1140.

L.H. was attempting to show the State's case was weak by establishing Pulley questioned its strength. She cites several cases which she claims support her contention it is reversible error to limit cross-examination on motive, threats, or beliefs. Higginbotham v. State (1981), Ind.App., 427 N.E.2d 896 (overruled in part on other grounds), held it was an infringement of the defendant's due process rights to restrict cross-examination of the arresting officer. His reason for returning the defendant's driver's license and releasing him was relevant to the prosecution of driving under the influence of alcohol and causing death to a human being. It was indicative of the officer's belief as to the defendant's state of intoxication. In McIntyre v. State (1984), Ind.App., 460 N.E.2d 162, 166, we stated it is clear cross-examination to show that a witness is testifying under the threat of criminal prosecution or under promise of leniency is proper to show possible bias, prejudice, or motive in testifying and is relevant to a determination of the credibility of the witness and reliability of his testimony. See also Bredemeier, supra, 1140. Likewise, in Haegar v. State (1979) Ind.App., 390 N.E.2d 239, 241, we held it was reversible error to exclude cross-examination concerning the arresting officer's arrest quota because pressure of a quota could affect the credibility of the witness.

However, the facts in the instant case are substantially different from the facts in the cases cited and do not lead us to believe L.H. was not denied due process because the cross-examination was limited. Pulley did not witness the altercation and, therefore, was not testifying as a witness to the battery. The prosecutor instituted the prosecution of this crime by signing the information. Thus, he evinced a belief the allegations contained therein were sufficient to make a case against L.H.  ² The jury then had the duty to determine the strength of the State's case. Any remark Pulley made to L.H during the investigation was personal opinion and irrelevant to any issue of material fact in the case.³ Therefore, the trial court did not abuse its discretion by excluding the proposed cross-examination of Pulley.

L.H. contends she was deprived of a fair trial due to inadequate assistance of counsel, even though she was represented by privately retained counsel. She alleges three deficiencies which cumulatively resulted in prejudice: 1) failure to conduct adequate discovery in the case, 2) inept cross-examination of Dr. Brown, and 3) failure to call character witnesses.

To prevail on a claim of ineffective counsel, L.H. must show her attorney acted in a professionally unreasonable manner, resulting in prejudice which deprived her of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 1064, 80 L.E.2d 674, 692-693, reh. denied (1984), 467 U.S. 1267 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864; Saunders v. State (1990), Ind.App., 562 N.E.2d 729, 741. To meet this burden, she must overcome by strong and convincing evidence the presumption counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Further, a determination of ineffectiveness of counsel is viewed within the context of each case, and the reviewing court will not speculate as to what may have been the most advantageous strategy. Schiro v. State (1989), Ind., 533 N.E.2d 1201, 1206, cert. denied., ___ U.S. ___, 110 S. Ct. 268, 107 L.Ed.2d 218. The standard for counsel's performance is that of reasonably effective assistance as measured by prevailing professional norms. Kollar v. State (1990), Ind.App., 556 N.E.2d 936, 941, trans. denied.

First, L.H. notes the only discovery defense counsel conducted was a boiler-plate request for production. She claims her attorney went to trial with no advance knowledge of what Davis's testimony would be.

The manner in which discovery is conducted is a tactical matter, and a failure to conduct a particular discovery does not necessarily establish ineffective representation. Kelly v. State (1983), Ind., 452 N.E.2d 907, 910. Reasonable strategy in determining whether to depose a victim before trial is not subject to judicial second guesses. Burr v. State (1986), Ind., 492 N.E.2d 306, 309.

In the instant case, the information provided L.H.’s counsel with notice of the allegations. Her counsel represented her at a pre-trial conference. Her counsel thoroughly cross-examined Davis at trial and questioned her regarding her statement to the police. The issue at trial was whether the injury was knowingly inflicted upon the victim. L.H. has not demonstrated how the lack of Davis's deposition was detrimental to the result of the cross-examination or the trial. L.H.’s counsel was not ineffective for not deposing the victim.

Second, L.H. asserts her counsel was ineffective due to the manner in which he cross-examined Dr. Brown. She alleges the questions he posed reinforced in front of the jury the doctor's opinion that the severance of the finger tip could not have been accidentally inflicted.

She cites Messer v. State (1987), Ind.App., 509 N.E.2d 249, reh. denied, trans. denied, to support her contention harmful or inept cross-examination may constitute inadequate assistance of counsel. We must point out in Messer, counsel's performance was deemed deficient not because of isolated poor strategy, but because counsel elicited evidence from a witness of the defendant's invocation of his constitutional right to remain silent as well as evidence of plea bargaining. 509 N.E. 2d, at 251.

The nature and extent of cross-examination is a matter of strategy delegated to counsel. May v. State (1986), Ind., 502 N.E.2d 96, 103. Isolated poor strategy, inexperience or bad tactics will not necessarily constitute ineffective assistance of counsel. Smith v. State (1987), Ind., 516 N.E.2d 1055, 1059, cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.E.2d 347.

While the cross-examination was not particularly fruitful, counsel was attempting to elicit specific testimony from the doctor in which he might categorize the type of injury accidental if inflicted in the manner as proposed by L.H. L.H.'s strategy during cross resulted in answers which were cumulative of answers given upon direct examination. L.H. has not shown how counsel's performance on this point was fatally deficient. Therefore on this basis, L.H.'s claim of ineffective assistance of counsel must fail.

Third, L.H. maintains since no witnesses were called to testify either as to her reputation for peacefulness or her reputation for truthfulness, she was prejudiced. She posits the case was largely a credibility contest between Davis and herself concerning the altercation. She opines counsel's failure to call available character witnesses to enhance her credibility deprived her an effective means of fortifying her case when the evidence against her was only Davis's testimony.

L.H. Cites Vickers v. State (1984), Ind., 466 N.E.2d 3, and Nuss v. State (1975), 164 Ind.App. 396, 328 N.E.2d 747, to demonstrate the importance the reviewing court places on corroborating testimony. In Vickers, our supreme court held if a reasonable investigation would have brought forth evidence that would have refuted or impeached the victim's testimony, counsel's lack of investigation would be found to constitute inadequate assistance of counsel. 466 N.E.2d, at 7. In Nuss, we held it would be prejudicial to exclude evidence of threats against the defendant or the victim's drug use when his defense was self-defense. 328 N.E.2d, at 754-755.

However, L.H. does not suggest she wished to call any witnesses who could corroborate her version of the facts or who could refute or impeach Davis's testimony. Neither does she demonstrate the character witnesses would produce new or essential evidence.

The decision of whether to call a particular witness is encompassed within trial strategy. Absent a clear showing of injury and prejudice, the court will not declare counsel ineffective for a failure to call witnesses. Osborne, supra. The attorney's decision not to call character witnesses could have reasonably reflected trial tactics rather than neglect.

Further, L.H. has not demonstrated that if counsel had called the character witnesses, there is a reasonable probability that the fact finder would have had a reasonable doubt respecting guilt. Rentas v. State (1988), Ind.App., 519 N.E.2d 162, 165. Her alleged good character in combination with her protestation of accidental infliction of injury would do little to offset Davis's testimony of an unprovoked attack which resulted in an intentional bite. Since character witnesses could only fortify L.H.'s past reputation for peacefulness and honesty, but would not corroborate her testimony or impeach Davis's testimony, we do not believe the lack of character witnesses deprived L.H. of a reliable trial result.

Trial counsel's actions, individually or collectively, do not fall below an objective standard of reasonable representation. Therefore, L.H. has failed to demonstrate her right to effective assistance of counsel was violated by the performance of her trial attorney. Lastly, L.H. contends the evidence - is insufficient to sustain her conviction. Specifically, she claims the evidence and all reasonable inferences therefrom do not show she intentionally bit Davis.

When the court is confronted with a challenge to the sufficiency of the evidence, it neither weighs evidence nor judges credibility; rather, the court examines only the circumstantial and direct evidence most favorable to the State, together with all reasonable inference which can be therefrom. If there is substantial evidence of probative value to support the trial court's judgment, the conviction will be affirmed. Humphries v. State (1991), Ind.App., 568 N.E.2d 1033, 1035. The court on appeal reviews the evidence for the purpose of determining, as a question of law, whether there is substantial evidence of probative value from which a trier of fact could reasonably infer or find the existence of each material element of the crime in order to reach the conclusion that the accused has been proved guilty beyond a reasonable doubt. Id.

Intent to commit battery may be determined from consideration of the conduct and the natural and usual sequence to which such conduct logically and reasonably points. Parker v. State (1981), Ind.App., 424 N.E.2d 132, 134. Circumstantial evidence is sufficient if an inference may reasonably be drawn from that evidence which supports the verdict. Moore v. State (1990), Ind., 557 N.E.2d 665, 669. The element “knowingly,” like “intentionally,” involves a mental state, and as such may be inferred from the surrounding circumstances. Id. The evidence most favorable to the verdict establishes L.H. was angry with Davis prior to the incident and expressed her anger over the phone. When Davis refunded the contribution at issue and left L.H.'s shop without incident, L.H. followed her outside and physically attacked her. She bit Davis with sufficient force to amputate the upper portion of Davis' little finger. The nature of the wound sustained was in itself sufficient to support beyond a reasonable doubt the rational inference L.H. was engaging in knowing conduct. See Morgan v. State (1983), Ind.App., 445 N.E.2d 585, 589. To support her claim the bite was not intentional and therefore not battery, L.H. offers her testimony of the altercation. L.H. asks us to reweigh the evidence. We cannot do so.

Affirmed.

FOOTNOTES

1.   Contra Brooke v. State (1987), Ind., 516 N.E.2d 9; Henson v. State (1989), Ind., 535 N.B.2d 1189. (These cases followed the traditional rule expert that testimony is inappropriate when it concerns matters within the common knowledge of ordinary persons. However, we find the trend of recent cases focuses more attention on the knowledge of the expert and whether the expert's opinion will be helpful to the the trier of fact than on the question of the knowledge of the jury. E.W. Cleary, McCormick on Evidence, at 3J (3d ed. 1984).)

2.   It is the prosecuting attorney who institutes the prosecution of crimes by the filing of an indictment or information, not the investigating officer. IC 35-34-1-1. Anyone may sign an affidavit to an information. Alstott v. State (1933), 205 Ind. 253, 185 N.E. 896, 897.

3.   Evidence is relevant if it is material to an issue in the case, tends to make a desirable inference more probable, and the trial court is afforded wide latitude in ruling on relevancy. Boyd v. State (1986), Ind., 494 N.E.2d 284, 296, reh. denied, cert. denied, 479 U.S. 1046, 107 S.ct. 910, 93 L.E.2d 860.

CONOVER, J.

Chezem, J. Concurs. Garrard, J. Concurs