Kody L. Hileman, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Kody L. Hileman appeals following his convictions for one count of domestic battery, as a Level 5 felony,¹ and one count of domestic battery, as a Class A misdemeanor.² We affirm in part, reverse in part, and remand for further proceedings.

Issues

[2] Hileman raises two issues for our review:

1. Whether the trial court abused its discretion when it allowed the parties to make supplemental argument in response to a jury question.

2. Whether the court abused its discretion when it ordered him to pay fines and costs without an indigency hearing.

Facts and Procedural History

[3] In early 2023, Hileman was in a relationship with S.A., and the two lived together. Late in the night on February 4, S.A. took Hileman's phone from him while he was asleep. S.A. looked through Hileman's phone and found something that “upset” her. Tr. Vol. 3 at 24. S.A. woke Hileman up and “confronted” him. Id. The two then had a “full [b]lown argument,” and S.A. told Hileman that he “needed to get out.” Id. at 24. The two continued to argue, and Hileman “grabbed onto” S.A. and “forcefully ran [her] back into the door.” Id. at 26-27. Ultimately, the police arrived at the home, and S.A. told officers that she wanted Hileman to “leave for a few days” in order to “take a breather,” and that she did not want anyone to “get in trouble at all.” Id. at 31.

[4] Hileman and S.A. continued their relationship, and S.A. learned that she was pregnant in late February. On March 4, Hileman and S.A. went to Walmart in Kokomo to get groceries. During the drive, the two argued. At one point, Hileman got “very serious” and “didn't say another word” while in the car. Id. at 34. When they arrived at Walmart, Hileman and S.A. began arguing again. S.A. was wearing a “wristlet” that had several keys on it, and Hileman “grabbed” it, which sent her keys “everywhere.” Id. at 37.

[5] Their argument continued on the drive home, and Hileman's voice got “eerie.” Id. at 38. When they returned to their house, S.A. went to rest on the couch. Hileman entered the living room and “snapped,” and he “jumped” on S.A.’s stomach. Id. at 45-46. S.A. said: “Kody, stop! You're hurting me. Get off me,” but Hileman told S.A. to “shut [her] effin mouth.” Id. at 46. Hileman “straddle[ed]” S.A. and “squeez[ed]” her with his legs, which “scared [S.A.] really bad” and “caused cramping[.]” Id. at 46. Hileman's actions “hurt” S.A., but “it more scared” her. Id. Ultimately, Hileman put his hands on S.A.’s “mouth and jaw area” and “pushed himself off” of her. Id. at 49. S.A. was ultimately able to get into her car and drive to her mother's house.

[6] The State charged Hileman with one count of domestic battery, as a Level 5 felony, based on the events on March 4 (Count 1). And the State charged Hileman with two counts of domestic battery, as Class A misdemeanors, one based on the events of February 4 (Count 3) and one based on the events of March 4 (Count 2). The court held a three-day jury trial beginning on July 22, 2024. During its closing argument, the State outlined the elements it needed to prove in order for the jury to convict Hileman of Count 1. Among the elements needed, the State discussed “bodily injury.” Id. at 188. In particular, the State argued:

Let's talk about resulting in bodily injury. Bodily injury is defined by law as meaning any impairment of physical condition, including physical pain. That's it. Pain is enough. When [S.A.] said it hurt when he grabbed her jaw, when [S.A.] said it hurt a little bit when he pushed up off of her, when [S.A.] said that when he jumped on her stomach it caused some cramping, a little bit of cramping, that's enough. That's all bodily injury. That's all it takes.

Id. The court then instructed the jury that the “term bodily injury is defined by law as meaning any impairment of physical condition including physical pain.” Id. at 198.

[7] The jury began their deliberations at 9:09 a.m. At 1:45 p.m., the court held a hearing outside the presence of the jury after it received the following note from the jury: “We agree on 2 counts. We cannot agree on Count #1. Can you give us any more information on Count #1 Item #6? [B]odily injury – court's final instruction #9.” Supp. App. Vol. 2 at 2. During the hearing, the parties agreed that the appropriate response would be to “simply refer them back to the instructions[.]” Tr. Vol. 3 at 204. As such, the court sent a note back to the jury that said: “The Court has reviewed the Jury's note. It will be necessary for the Jury to refer back to the Court's instructions.” Supp. App. Vol. 2 at 3.

[8] The court reconvened at 2:36 p.m. When the court asked if the jury had reached a verdict on all three counts, a juror responded that they had “reached for two[.]” Tr. Vol. 3 at 206. The following colloquy then ensued:

THE COURT: ․ When I'm told there's a verdict, that usually means as to all charges. Um-

UNKNOWN JUROR: Well, you're instructions said ․ just find the ones that we agree on ․ And then th-that's how we-

THE COURT: Okay. If there is, uh, actually an impa-or not an impasse, necessarily, but is there disagreement on one of the charges? That's a yes? Okay. And without telling, maybe, what the result is on the other two that you've made a decision on, um, is-is-is there a particular question? Is it tied to a note that you sent out earlier?

UNKNOWN JUROR: Yes, it is.

THE COURT: You're nodding. Is that-that point? Okay. Um, let's see. So, ․ is it a question of interpreting a particular definition that's in the instructions? Is it this bodily injury topic that's the issue? ․

UNKNOWN JUROR: May I ask a question?

UNKNOWN JUROR: (Indiscernible) it's interpreted as being pain, is that correct?

THE COURT: The definition talks about that can include pain and then s-you know, it's a matter of whether you as the jury thinks that that definition is met in this case or not based on the evidence presented. Is that a fair statement, counsel? Any concern-

[The State]: Yes, Judge.

Id. at 206-07.

[9] The court then asked the jury if it would be “helpful” to “receive some sort of brief argument from counsel on this topic,” and a juror responded that “[i]t could.” Id. at 208. Hileman argued that it would not be “productive.” Id. The court stated that it would allow “some brief argument” on the topic of bodily injury, and Hileman asked for a recess. Id. at 209. Following the recess, Hileman argued that Jury Rule 28 did not apply because the jury had not “indicated how [the parties] may be able to assist them at this point.” Id. at 211. And he maintained that the “argument has been closed,” and that additional commentary “is inappropriate at this point.” Id. The court found that the jury had given “some input about․ the issue they're disputing” and, after another recess, again stated that it would allow brief argument. Id. at 212. Hileman asked to poll the jury “to see if there is truly an impasse or a disagreement,” but the court questioned the jury as a whole if they “believe[d] there's an impasse regarding the, uh, bodily injury question.” Id at 220, 222. The jury's response was “[i]ndiscernible,” but the court noted “some nodding heads” in the jury box. Id. at 222. Then, the court stated: “Anybody feel like you made progress? No? Okay.” Id. And the court asked: “Do you think it would be helpful for you to receive some sort of additional argument from counsel on the ․ topic of bodily injury?” Id. The court again noted that it was “seeing a lot of nodding.” Id. Based on the jury's responses, the court allowed the parties to give additional arguments.

[10] The State again argued that bodily injury “is defined by law as meaning any impairment of physical condition, including physical pain” and that it is “a low burden.” Id. at 223. Hileman argued that, while it is a low standard, “there has to be, plain meaning, physical pain-impairment of physical condition” and that S.A. was not “impaired” or in any physical pain. Id. at 224. After the additional arguments, the jury found Hileman guilty of all three counts, but, due to double jeopardy concerns, the court entered judgment of conviction only on Counts 1 and 3.

[11] At the conclusion of a subsequent sentencing hearing, the court sentenced Hileman to an aggregate term of three years, with one year executed in the Department of Correction, one year on home detention, and one year and two hundred forty-five days suspended to probation. The court then imposed court costs in the amount of $189.00, a domestic violence prevention fee of $50.00, and a home detention fee of $75.00. The court also imposed an initial probation fee of $100.00, an administrative fee of $100.00, and a monthly probation user fee of $30.00. This appeal ensued.

Discussion and Decision

Issue One: Jury Question

[12] Hileman first asserts that the court abused its discretion when it allowed the parties to give supplemental argument on the jury instruction related to the question of bodily harm. We review the trial court's manner of instructing the jury for an abuse of discretion. See Ramirez v. State, 174 N.E.3d 181, 195 (Ind. 2021). “This standard allows reversal only when a decision is ‘clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law.’ ” Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024) (quoting Abbott v. State, 183 N.E.3d 1074, 1083 (Ind. 2022)).

[13] There are two procedures trial courts may use to assist juries during their deliberations. One comes from the Jury Rules, which were adopted to give courts “greater leeway to ‘facilitate and assist jurors in the deliberative process, in order to avoid mistrials.’ ” Ronco v. State, 862 N.E.2d 257, 259 (Ind. 2007) (quoting Tincher v. Davidson, 762 N.E.2d 1221, 1224 (Ind. 2002)). In particular, Jury Rule 28 “instructs judges on how to proceed when faced with a jury impasse.” Id. That rule provides:

If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors’ response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.

Ind. Jury Rule 28.

[14] That rule “confers discretionary authority for ‘further proceedings’ only at moments of ‘impasse,’ ” generally when a jury is “deadlocked.” Ronco, 862 N.E.2d at 260. On appeal, Hileman contends that the court abused its discretion when it allowed for supplemental argument in response to the jury's question because the “record in this case indicates no such ‘deadlock[.]’ ” Appellant's Br. at 18. We cannot agree.

[15] The record demonstrates that, after more than four hours of deliberations, the jury sent a note to the court indicating that it could not “agree on Count #1” and asking for “more information” as it related to the court's final instruction on “bodily injury.” Supp. App. Vol. 2 at 2. In response, the court simply directed the jury to “refer back to the Court's instructions.” Id. at 3. Then, after an additional forty-five minutes of deliberations, the jury returned to the courtroom and again informed the court that it could not reach a verdict on Count 1.

[16] The court then asked the jury if it “believe[d] there's an impasse regarding the, uh, bodily injury question.” Tr. Vol. 3 at 222. While the response was “[i]ndiscernible,” the court noted that it saw “some heads nodding in the jury box.” Id. The court then asked if anyone “disagree[d] with that” or if anyone felt “like you made progress.” Id. The court then said: “No? Okay.” Id. And the court asked if “it would be helpful for you to receive some sort of additional argument from counsel on the ․ topic of bodily injury.” Id. The response was again indiscernible, but the court noted that it saw “a lot of head nodding.” Id. The court stated: “Anybody disagree with that? It's okay to speak up if you do disagree. But-no? Okay.” Id.

[17] It is clear from that record that the jury could not agree on what constituted bodily injury even after five hours of deliberations and a re-reading of the jury instructions. As such, it was within the court's discretion to determine that the jury was at an impasse in its deliberations on Count 1. See Litherland v. McDonnell, 796 N.E.2d 1237, 1242 (Ind. Ct. App. 2003) (holding that it was within the court's discretion to determine that the jury was at an impasse when the jury sent three notes to the court demonstrating that it was having difficulty with the issue of causation), trans. denied. Because it was within the court's discretion to determine that the jury was at an impasse, the court properly applied Jury Rule 28 to assist the jurors by allowing additional argument from the parties.

[18] In any event, even if we were to agree that it was premature to invoke Rule 28, the court's actions were nonetheless proper under Indiana Code Section 34-36-1-6. That statute provides:

If, after the jury retires for deliberation:

(1) there is a disagreement among the jurors as to any part of the testimony; or

(2) the jury desires to be informed as to any point of law arising in the case;

the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.

Ind. Code § 34-36-1-6.

[19] That statute “empowers a court to respond to either juror disagreement over testimony or the jury's desire ‘to be informed as to any point of law arising in the case.’ ” Ronco, 862 N.E.2d at 260. The court “must respond to a jury question regarding a point of law involved in the case[.]” Id. Here, the jury submitted a specific question of law to the trial court, namely, what constitutes bodily injury. As a result, Indiana Code Section 34-36-1-6 required the court to respond. See id. (holding that, even where a court's invocation of Jury Rule 28 was premature, the court appropriately responded to a jury question under Indiana Code Section 34-36-1-6).³ The court did not abuse its discretion when it allowed the parties to give additional argument. We affirm the court on this issue.

Issue Two: Fees and Costs

[20] Hileman next contends that the court abused its discretion when it imposed fees and costs. “An abuse-of-discretion standard of review applies to a trial court's sentencing decisions and to the imposition of costs and fees.” Spells, 225 N.E.3d at 771. On appeal, Hileman specifically asserts that the court abused its discretion when it imposed costs and fees without an indigency hearing.

[21] Here, the court ordered Hileman to pay court costs in the amount of $189.00, a domestic violence fee of $50.00, and a home detention fee of $75.00. In addition, the court ordered Hileman to pay an initial probation fee of $100.00, an administrative fee of $100.00, and a monthly probation fee of $30.00. Whenever a court imposes costs, “the court ‘shall conduct a hearing’ into the person's indigency and order the costs paid only ‘[i]f the person is not indigent.’ ” Id. at 775 (quoting I.C. § 33-37-2-3(a), alteration original to Spells). Hileman's court costs would, therefore, be subject to a requirement for an indigency hearing. See id. Similarly, the domestic violence fee, which is prescribed by Indiana Code Section 33-37-4-1, requires an indigency hearing determination. See id. at. 775-76 (stating that the fees prescribed by Indiana Code Section 33-37-4-1 are “costs” that require a hearing). Further, while probation fees are neither listed in Indiana Code Section 33-37-4-1 nor directly addressed by the Court in Spells, this Court has held that a trial court “must hold an indigency hearing before assessing probation fees.” Howard v. State, 236 N.E.3d 735, 746 (Ind. Ct. App. 2024). And we see no reason why the same logic should not apply to home detention fees. Thus, all of the costs and fees assessed by the court were subject to an indigency hearing.

[22] “In 2020, the General Assembly enacted a new statute governing indigency determinations in a criminal case.” Spells, 225 N.E.3d at 778. To determine if a person is indigent under the new statutory framework, a trial court “shall” consider the defendant's “assets,” “income,” and “necessary expenses.” Id. Here, the trial court did not conduct any inquiry into Hileman's ability to pay. While the State argues that the court found him indigent under a different cause number at an initial hearing in the instant case, the court did not ask any questions about Hileman's assets, income, or expenses. Rather, the court simply referenced, without more, “the State Public Defender's reimbursement program[.]” Tr. Vol. 2 at 6. Then, at the sentencing hearing after it imposed the costs and fees, the court asked Hileman if anything had “changed significantly” regarding his finances and if he could afford an “attorney for an appeal,” to which Hileman responded in the negative. Tr. Vol. 4 at 15. Again, at no time during the sentencing hearing did the court ask Hileman about his assets, income, or expenses to determine if he could pay the court costs or domestic violence fee.

[23] The court failed to conduct an adequate hearing as to Hileman's ability to pay. If “one of the mandatory factors, especially either the defendant's income or necessary expenses, is passed over, or if the inquiry is unreasonably superficial, it may be appropriate to vacate and remand for another hearing.” Spells, 225 N.E.3d at 779. Because the court did not conduct an adequate hearing, we reverse the imposition of the court costs and fees and remand with instructions for the court to hold an indigency hearing to determine Hileman's ability to pay.

Conclusion

[24] The trial court did not abuse its discretion when it allowed the parties to give supplemental argument in response to a jury question. But the court abused its discretion when it imposed court costs and fees without an indigency hearing. We therefore affirm in part, reverse in part, and remand for further proceedings.

[25] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.3(c)(3).

2.   I.C. § 35-42-2-1.3(a)(1).

3.   Hileman briefly contends that the court violated his due process rights when it allowed for additional argument on the question of bodily injury because the additional argument improperly “highlighted” one element of the crime. Appellant's Br. at 17. But we note that a court “must” respond to a question regarding a point of law. Ronco, 862 N.E.2d at 260.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.