Anthony T. Flowers, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] At Anthony Flowers's jury trial for battering and intimidating his pregnant girlfriend S.M., she refreshed her recollection of the incident by reviewing a police report. The jury convicted Flowers of domestic battery, and the trial court imposed an aggregate five-year sentence. Flowers now appeals and raises one issue for our review: Whether the trial court abused its discretion by admitting certain evidence at trial.

[2] We affirm.

Facts and Procedural History

[3] In late August and early September 2024, a pregnant S.M. was living in Evansville, Indiana, with her five children. S.M. was romantically involved with Flowers, and “he would come and go” from her residence. Tr. Vol. II at 73. Between August 29 and September 4, Flowers and S.M. got into at least one physical altercation, and Flowers allegedly pointed a gun at S.M. On September 4, S.M. called law enforcement and reported these incidents. The State charged Flowers with one count each of intimidation as a Level 5 felony,¹ domestic battery as a Level 5 felony,² and domestic battery as a Level 6 felony ³ .

[4] At trial, the State questioned S.M. about an altercation that occurred between her and Flowers on August 29, and S.M. testified that she was “not exactly sure” what happened that day because “[a] lot of things occurred I don't really remember.” Tr. Vol. II at 75–76. The State asked S.M. if there was “anything that might help [her] remember,” and S.M. stated she could “take a look at the police report.” Id. at 76. S.M. then testified that she talked to a law enforcement officer on September 4 about the events from August 29 through September 4, she wanted a police report (the “Police Report”) to be made, the Police Report contained what she remembered telling law enforcement, and seeing the Police Report would help refresh her memory. Flowers objected to S.M.’s recollection being refreshed by the Police Report in relevant part because it “[h]as a lot of information in it that she did not provide, including information ․ that the police obtained from other sources, and I don't believe it's appropriate for her to review that.” Id. at 79. The trial court overruled Flowers's objection.

[5] After reading a portion of the Police Report, S.M. stated her memory had been refreshed, and she testified to the August 29 incident. In particular, S.M. testified that she and Flowers “got into a fight,” which “resulted in [Flowers] biting” S.M. Tr. Vol. II at 80. The two continued to fight and argue, and at some point, Flowers pulled out S.M.’s gun; held it “[m]aybe two inches” away from her, id. at 81; “acted like he was going to shoot” her, id. at 80; and “said he would shoot” her, id. S.M.’s “daughter ended up coming out and grabbing the gun.” Id. When cross-examined about needing her memory refreshed about the August 29 altercation, S.M. stated, “Well, I'm supposed to talk about September 4th, but it was so many days that ran together, I would have been talking about every day.” Id. at 100.

[6] One of the law enforcement officers who transported Flowers to jail on September 4 stated that Flowers said “he had gotten mad ․ and had bit [S.M.] on the wrist.” Tr. Vol. II at 161. Flowers also admitted that “the same night that he had bitten [S.M.]’s wrist,” one of S.M.’s children “had tried to take the firearm out of his hand.” Id. at 162. Flowers claimed to the officer that he was holding the gun “because he thought people were in the ceiling.” Id.

[7] The jury found Flowers guilty of domestic battery as a Level 5 felony, and it found him not guilty of the other two charges. The trial court sentenced Flowers to three-and-a-half years of incarceration plus one-and-a-half years on work release. This appeal ensued.

Discussion and Decision

The Trial Court Did Not Abuse Its Discretion by Admitting Certain Evidence at Trial

[8] Flowers claims that the trial court abused its discretion in admitting certain evidence at trial. We review rulings on admissibility of evidence for an abuse of discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864 (Ind. 2012)), cert. denied, 145 S.Ct. 424 (2024). “[W]e may affirm the trial court's decision on any basis supported by the record,” Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023) (citing Ramirez v. State, 174 N.E.3d 181, 190 n.2 (Ind. 2021)), and we will reverse “only where the decision is clearly against the logic and effect of the facts and circumstances,” Russell, 234 N.E.3d at 858 (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)).

[9] Flowers asserts that the State should not have been allowed to refresh S.M.’s recollection about the August 29 incident under Evidence Rule 612.⁴ Pursuant to that rule, if a witness cannot recall certain information, her memory may be refreshed by a writing or an object. Ind. Evidence Rule 612. To properly refresh a witness's recollection, the following must occur: (1) the witness states she “does not recall the information sought by the questioner,” (2) the witness is directed to examine the writing or object, and (3) the witness is asked “whether that examination has refreshed [her] memory.” Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000) (quoting Robert Lowell Miller Jr., 13 Indiana Practice § 612.101, at 226 (2d ed. 1995)). If the witness answers that her memory has been refreshed, then she “can be examined on the subject but cannot testify from the writing [or object] itself.” Robert Lowell Miller Jr. & Graham Polando, 12 Indiana Practice, Evidence § 612.101 (4th ed. 2025).

[10] Defendant specifically contends the State's refreshing of S.M.’s recollection about the August 29 incident was erroneous because (a) the Police Report was not an appropriate writing or object; and (b) the August 29 altercation was “outside her current knowledge,” Appellant's Br. at 10, such that she needed her memory refreshed “about the entirety of the incident,” id. at 13. We address each contention in turn.

a. Use of the Police Report

[11] First, Flowers asserts that using the Police Report to refresh S.M.’s recollection was “particularly problematic” because it was “a document prepared by an arm of the State for purposes of litigation.” Appellant's Br. at 13 (citing Minges v. State, 192 N.E.3d 893 (Ind. 2022)). Evidence Rule 612 does not prohibit the use of alleged work product from being used to refresh a witness's recollection. In fact, there are few restrictions on the writing or object used to refresh a witness's recollection. For instance, the writing or object must have been made “at or near the time of the occurrence” in order to “be used to refresh the recollection of a forgetful witness.” Poore v. State, 501 N.E.2d 1058, 1061–62 (Ind. 1986) (citing Gaunt v. State, 457 N.E.2d 211 (Ind. 1983)). But the writing or object need not have been created by the witness. Thompson, 728 N.E.2d at 160–61.

[12] Here, the Police Report was made on or about September 4, it was made at S.M.’s request, and S.M. contributed to its contents by relaying the details of the August 29 altercation to the officer who prepared it. On these facts, we cannot say the Police Report was inappropriate as a writing or an object used to refresh S.M.’s recollection about the August 29 incident.

b. S.M.’s Knowledge of the August 29 Incident

[13] Second, Flowers argues that because the State had to refresh S.M.’s recollection of the August 29 altercation beyond “more than ․ the minute details of the crime,” S.M.’s testimony about that incident was not based on personal knowledge as required by Evidence Rule 602. Appellant's Br. at 12. That rule provides in relevant part that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Evid. R. 602.

[14] S.M. testified that she was “not exactly sure” what happened on August 29 because “[a] lot of things occurred I don't really remember.” Tr. Vol. II at 75–76. When Flowers asked S.M. about needing her memory of the August 29 altercation refreshed, S.M. testified, “Well, I'm supposed to talk about September 4th, but it was so many days that ran together, I would have been talking about every day.” Id. at 100. In other words, S.M. had personal knowledge of the August 29 incident, but she had forgotten the order of the events and needed her memory refreshed as to the sequence of all the things that happened between August 29 and September 4. S.M.’s inability to remember the exact details of the August 29 altercation without reviewing the Police Report went to the weight and not the admissibility of her testimony about that incident. See Baran v. State, 639 N.E.2d 642, 645 (Ind. 1994) (citing Stanley v. State, 515 N.E.2d 1117, 1119 (Ind. 1987)) (“The fact that [the officer] could not recall every detail goes to the weight of the evidence, not its admissibility.”).

[15] Based on the foregoing, we cannot say the trial court abused its discretion by allowing the State to refresh S.M.’s recollection about the August 29 incident. We therefore affirm the trial court's decision.

[16] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-45-2-1(a)(4), (b)(2).

2.   I.C. § 35-42-2-1.3(a)(1), (c)(3).

3.   I.C. § 35-42-2-1.3(a)(1), (b)(2).

4.   To the extent Flowers means to challenge S.M.’s testimony about incidents that occurred after August 29 on the basis that her memory was improperly refreshed, he has waived this argument by failing to object on that basis to S.M.’s testimony about those other incidents. See Halliburton v. State, 1 N.E.3d 670, 678–79 (Ind. 2013) (citing Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010)) (“Failure to object at trial waives the issue for review unless fundamental error occurred.”).

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.