III v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a domestic altercation involving his then-girlfriend, John W. Bloch, III, was convicted of Level 6 felony domestic battery and Class A misdemeanor resisting law enforcement. Bloch was sentenced to an aggregate sentence of three years and 180 days of incarceration. On appeal, Bloch contends that the trial court abused its discretion in admitting the recording of the 911 call relating to the altercation and evidence relating to a separate domestic altercation involving Bloch and the victim. We affirm.

Facts and Procedural History

[2] At approximately 12:30 a.m. on August 13, 2023, Anahi Padilla called 911 and reported hearing gunshots and observing a male battering a female while standing over her. When officers arrived, they observed M.N. “lying on the ground” and Bloch “leaning against the front porch.” Tr. Vol. II p. 56. Officers observed bloody cuts on M.N.’s head, what appeared to be dirt or dried blood on her shoulder, and what appeared to be bruising on her arm.

[3] Elkhart Police Corporal Casey Ianigro approached and spoke with Bloch. Bloch had a small laceration on his face and appeared to be intoxicated, “slurring his words” and “showing unsteady balance[.]” Tr. Vol. II p. 76. Bloch indicated that M.N. “had Type-1 [d]iabetes and had fallen.” Tr. Vol. II p. 58. When Corporal Ianigro observed spent shell casings “lying on the ground next to” Bloch, Bloch attempted to pick up the shell casings, despite being instructed not to touch or move the shell casings by Corporal Ianigro. Tr. Vol. II pp. 57–58. After Bloch had disregarded Corporal Ianigro's instructions to not “mess with any further evidence[,]” Corporal Ianigro attempted to detain Bloch. Tr. Vol. II p. 67. Bloch was uncooperative and “began trying to forcefully yank his arms out from behind him to not allow [the responding officers] to put him in the handcuffs.” Tr. Vol. II p. 58. The officers eventually subdued Bloch by “tak[ing him] to the ground.” Tr. Vol. II p. 67.

[4] While standing outside, officers observed “a black handgun sitting on an end table just inside the residence.” Tr. Vol. II p. 69. After obtaining a search warrant, officers entered the home and seized the handgun and ammunition. The handgun had red stains consistent with blood on the grip. Both the recovered shell casings and handgun were “9mm.” Tr. Vol. II p. 102.

[5] On August 16, 2023, the State charged Bloch with Level 6 felony domestic battery, Level 6 felony criminal recklessness, Level 6 felony attempted obstruction of justice, and Class A misdemeanor resisting law enforcement.¹ On November 22, 2024, the State filed a notice of intent to introduce evidence of other crimes, wrongs, or acts pursuant to Indiana Evidence Rule 404(b) and a notice of intent to introduce evidence of wrongdoing that was intended to procure the unavailability of the declarant as a witness pursuant to Rule 804(B)(5). In response, Bloch filed a motion in limine seeking to exclude the evidence.

[6] The morning of trial, the trial court held a hearing on the parties’ motions. With regard to the proffered 404(b) evidence, the State argued that Bloch's statements at the scene and the State's subsequent discussions with counsel indicated that Bloch intended to pursue a defense that M.N.’s injuries had been the result of an accidental fall. The State argued that evidence of Bloch's subsequent arrest and conviction for another battery of M.N., which had had a nearly identical fact pattern, was admissible under the lack-of-accident exception to negate his claim that M.N.’s injuries had been caused by an accidental fall. Bloch argued that the subsequent arrest was strictly character evidence and the prejudice from its admission would outweigh its probative value. The trial court denied Bloch's motion in limine and granted the State's request to introduce the evidence. In granting the State's request, the trial court indicated that it “intend[ed] to offer to the jury a limiting instruction” outlining the limited purpose of the evidence. Tr. Vol. II p. 8.

[7] With regard to the unavailability of one of the likely witnesses, the State argued that Bloch had forfeited his right to confront Padilla because of his own wrongdoing. Steve Price, an investigator with the Elkhart County Prosecutor's Office, testified outside the presence of the jury about his interview with Padilla, which had occurred on November 22, 2024. Padilla had outlined two incidents to Price that had involved Bloch and M.N. and had left her “extremely reluctant and fearful” of “possible retaliation” if she were to testify against Bloch. Tr. Vol. II pp. 27, 28. Padilla also indicated that “there were some family members” of either Bloch or M.N. that lived nearby her home, and she was worried that their proximity nearby created “a continued cause for her to feel that there could be some incident or retaliation.” Tr. Vol. II pp. 30, 31. The trial court found that the State had met its burden of proving that Bloch had forfeited his confrontation rights by wrongdoing.

[8] During trial, Bloch objected when the State moved to admit a recording of Padilla's 911 call. Bloch argued that the call contained inadmissible hearsay and violated his Sixth Amendment right to confront and cross-examine witnesses against him. The trial court admitted the recording of the 911 call over Bloch's objection. In an apparent effort to explain why Padilla did not testify at trial, the State sought to admit testimony from Investigator Price regarding Padilla's statements of fear, evidence to which Bloch objected. The trial court overruled the objection. Investigator Price testified that he had met with Padilla prior to trial and that she had indicated to him that she had no intention of complying with her subpoena because she was afraid of Bloch.

[9] Bloch also objected to the admission of testimony suggesting that he had subsequently battered M.N. as a violation of Evidence Rule 404(b). The trial court overruled the objection. Elkhart City Police Officer Cody Vicary testified that he had responded to a domestic violence call involving Bloch and M.N. on August 12, 2024. Officer Vicary testified that he had observed red scratch marks on M.N., who had been crying and had claimed to have scratched herself while suffering from a seizure. Officer Vicary further testified that Bloch had claimed that M.N.’s injuries had been caused by an accidental fall. In admitting Officer Vicary's testimony, the trial court issued the following limiting instruction:

Folks, you heard some testimony that was presented by the State of Indiana through Officer Vicary regarding an unrelated incident. It's unrelated to what you are to decide today. The incident that was testified to by the Officer is not to be considered by you as to whether or not [Bloch] committed the offenses that are before you for consideration.

The limited purpose of this testimony is whether or not you should consider that the evidence in this case with respect to the injury that [M.N.] received whether or not it was received accidentally. That is the only purpose that you are to consider of this testimony from Officer Vicary.

Tr. Vol. II pp. 152–53.

[10] After the first day of trial, Bloch made two telephone calls to M.N. from the jail. In these calls, Bloch explained the first day of testimony in great detail, identifying jurors he felt were sympathetic, recounting testimony, and coaching M.N. on her upcoming testimony. Bloch indicated that the deputy prosecutor was “full of BS” and that M.N. “shouldn't let [the deputy prosecutor] get her all riled up and that she needs to keep her composure.” Tr. Vol. II p. 177. Bloch instructed M.N. to “say what I want you to say.” Tr. Vol. II p. 178.

[11] The jury found Bloch guilty of domestic battery and resisting law enforcement and not guilty of criminal recklessness and attempted obstruction of justice. The trial court sentenced Bloch to an aggregate sentence of three years and 180 days of incarceration.

Discussion and Decision

[12] The admission of evidence is a matter that we generally “leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259–60 (Ind. 2013). “We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. at 260. “[W]e will not reverse the decision to admit or exclude evidence if that decision is sustainable on any ground.” Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied. “However, when a claim of error in the admission of evidence is based upon the violation of a constitutional right, our standard of review is de novo.” Doyle v. State, 223 N.E.3d 1113, 1120 (Ind. Ct. App. 2023).

[13] Relevant evidence is generally admissible. Ind. Evidence Rule 402. A trial court, however, “may exclude relevant evidence if its probative value is substantially outweighed by a danger of” unfair prejudice. Evid. R. 403.

The risk of unfair prejudice relates to “the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest [making a] decision on an improper basis.” Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting D.R.C. v. State, 908 N.E.2d 215, 224 (Ind. 2009)). Because “all relevant evidence is ‘inherently prejudicial’ in a criminal prosecution,” the weighing test under Evidence Rule 403 “boils down to a balance of probative value against the likely unfair prejudicial impact ․ the evidence may have on the jury.” Id. at 1194 (quoting Richmond v. State, 685 N.E.2d 54, 55–56 (Ind. 1997)). Furthermore, we afford our “[t]rial courts ․ wide latitude in weighing probative value against the danger of unfair prejudice.” Id. at 1193.

Cobb v. State, 222 N.E.3d 373, 387 (Ind. Ct. App. 2023) (brackets and ellipses in original), trans. denied. “A trial court's evidentiary rulings are presumptively correct, and the defendant bears the burden on appeal of persuading us that the court erred in weighing prejudice and probative value under Evid. R. 403.” Rivera v. State, 132 N.E.3d 5, 12 (Ind. Ct. App. 2019) (internal quotation omitted), trans. denied.

I. 911 Call

[14] Bloch contends that the trial court abused its discretion in admitting the recording of the 911 call, arguing that the admission of the recording included inadmissible hearsay and violated his Sixth Amendment right to confront and cross-examine Padilla, who did not testify at trial. For its part, the State contends that the trial court did not abuse its discretion in admitting the 911 call.

A. Hearsay

[15] “ ‘Hearsay’ means a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Evid. R. 801(c). “Hearsay is not admissible unless these rules or other law provides otherwise.” Evid. R. 802.

[16] In addition to other arguments, the State argues that the 911 call was admissible as a present sense impression. An exception to the rule against hearsay is a present sense impression, which is “[a] statement describing or explaining an event, condition or transaction, made while or immediately after the declarant perceived it.” Evid. R. 803(1). “This rule requires that the statement describe or explain the event or condition during or immediately after its occurrence, and the statement must be based upon the declarant's perception of the event.” Palacios v. State, 926 N.E.2d 1026, 1032 (Ind. Ct. App. 2010). “In order for [a witness's] testimony to fall under the present sense impression, three requirements must be met: (1) it must describe or explain an event; (2) during or immediately after its occurrence; and (3) it must be based on the declarant's perception of the event.” Id. We have previously concluded that statements made by a witness regarding the witness's current observations constitute a present sense impression. Kirby v. State, 217 N.E.3d 575, 590 (Ind. Ct. App. 2023) (providing that the witness's statement during the 911 call recounting her observations had constituted a present sense impression), trans. denied; see also Jones v. State, 780 N.E.2d 373, 377 (Ind. 2002) (providing that it was error to exclude a victim's contemporaneous description of the person driving by her home because it was a present sense impression).

[17] In the 911 call at issue in this case, Padilla had reported an ongoing physical altercation between Bloch and M.N. and indicated that she had not wanted Bloch to know that she had been the one who had reported the altercation to police. Padilla had given a real-time account of an altercation that she was observing. Similar to the situation in Kirby, Padilla's statements to the 911 operator fell under the present sense impression exception to the hearsay rule as the statements in question had merely recounted Padilla's present sense impression of the altercation between Bloch and M.N., which had been the reason for her 911 call.²

B. Right to Confront the Witness

[18] The Sixth Amendment's Confrontation Clause provides, in relevant part, “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”[³ ] U.S. Const. amend. VI. This right allows the admission of an absent witness's testimonial out-of-court statement only if the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Crawford v. Washington, [541 U.S. 36, 59] (2004). However, a defendant may forfeit his right to confrontation where his own wrongdoing caused the declarant to be unavailable to testify at trial. Id. at [62] (relying on Reynolds v. United States, [98 U.S. 145, 158–59] (1878)). The forfeiture by wrongdoing doctrine protects the integrity of the judicial process. Davis v. Washington, [547 U.S. 813, 833] (2006) (noting that “when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce”). In order for a defendant to have forfeited his confrontation rights by wrongdoing, the defendant must have had in mind the particular purpose of making the witness unavailable. Giles v. California, [554 U.S. 353, 367] (2008). The burden of proof for showing forfeiture by wrongdoing is a preponderance of the evidence standard. See Davis, [547 U.S. at 833] (declining to take a position on the burden of proving forfeiture but noting federal courts have held the government to the preponderance of the evidence standard).

Scott v. State, 139 N.E.3d 1148, 1153–54 (Ind. Ct. App. 2020) (ellipsis in original, first set of brackets in original, all other bracketed material altered or added), trans. denied.

[19] With regard to the Sixth Amendment, Bloch argues that the trial court abused its discretion in finding that he had forfeited his confrontation rights by wrongdoing. The Sixth Amendment, however, applies only to testimonial statements. See Howard v. State, 853 N.E.2d 461, 465 (Ind. 2006) (providing that the United States Supreme Court emphasized in Crawford that the Sixth Amendment demands an opportunity for cross-examination of testimonial evidence, noting that “[a] critical portion of the Court's holding was the phrase ‘testimonial evidence’ ”). “Since Crawford, the Supreme Court has clarified incrementally the definition of ‘testimonial.’ ” Lehman v. State, 926 N.E.2d 35, 39–40 (Ind. Ct. App. 2010), trans. denied. In Davis, the United States Supreme Court held that

[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

547 U.S. at 822 (footnote omitted). Indiana Courts have repeatedly interpreted Davis as providing that statements made during 911 calls for the primary purpose of requesting police assistance for an ongoing emergency are nontestimonial, and the admission of evidence relating to such statements does violate the Confrontation Clause of the Sixth Amendment. See Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019); Cruz v. State, 218 N.E.3d 632, 637 (Ind. Ct. App. 2023), trans. denied; Wallace v. State, 79 N.E.3d 992, 999 (Ind. Ct. App. 2017); Collins v. State, 873 N.E.2d 149, 155 (Ind. Ct. App. 2007), trans. denied; Gayden v. State, 863 N.E.2d 1193, 1198 (Ind. Ct. App. 2007), trans. denied.

[20] Again, in the 911 call at issue in this case, Padilla had reported an ongoing physical altercation between Bloch and M.N. and indicated that she had not wanted Bloch to know that she had been the one who had reported the altercation to police. The purpose of Padilla's call had been to obtain police assistance with an ongoing emergency, not to prove past events. As such, we conclude that her statements to the 911 operator were nontestimonial, and the admission of Padilla's statements did not violate the Confrontation Clause of the Sixth Amendment.⁴ See Davis, 547 U.S. at 822; Cardosi, 128 N.E.3d at 1286; Cruz, 218 N.E.3d at 637; Wallace, 79 N.E.3d at 999; Collins, 873 N.E.2d at 155; Gayden, 863 N.E.2d at 1198. The trial court did not abuse its discretion in admitting the recording of the 911 call into evidence.⁵

II. Alleged Other Bad Act

[21] Bloch also contends that the trial court abused its discretion in admitting evidence relating to an alleged subsequent act of domestic violence involving M.N. Generally, “[e]vidence 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.” Evid. R. 404(b)(1). However, “[t]his evidence 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).

[T]he standard for assessing the admissibility of 404(b) evidence in Indiana is: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403. When inquiring into relevance, the court may consider any factor it would ordinarily consider under Rule 402.

Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997) (footnote omitted). These may include the similarity and proximity in time of the other bad act to the charged conduct, “and will presumably typically include tying the act to the defendant.” Id.

[22] The State introduced evidence that Bloch had been convicted of Class A misdemeanor domestic battery following a separate domestic altercation between Bloch and M.N. Similar to the underlying altercation at issue in this case, with this other case, Bloch and M.N. had denied that any domestic violence had occurred, with Bloch claiming that M.N.’s injuries had been caused by an accidental fall and M.N. claiming that “she had had a seizure and scratched herself during the seizure.” Tr. Vol. II p. 148. Bloch argues that the trial court abused its discretion in allowing the evidence relating to his separate conviction, asserting that he had consistently “denied committing the underlying battery completely by claiming he was not the one responsible for [M.N.’s] injuries; that they occurred due to a known medical condition that causes [M.N.] to suffer from seizures.” Appellant's Br. p. 22.

[23] “Under the first part of the 404(b) test, if the evidence of” other acts of domestic violence was offered only to show that Bloch was of bad character and acted in conformity therewith by battering M.N., then the evidence would be inadmissible. Hicks, 690 N.E.2d at 222. However, “[n]umerous cases have held that where a relationship between parties is characterized by frequent conflict, evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime.” Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004). In Hicks, for instance, the Indiana Supreme Court held that a defendant's other bad acts are “ ‘usually admissible to show the relationship between the defendant and the victim.’ ” 690 N.E.2d at 222 (quoting Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996)). The Indiana Supreme Court went on to accept the Fourth Circuit's determination that “ ‘[h]ostility is a paradigmatic motive for committing a crime.’ ” Id. (quoting U.S. v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992) (brackets in Hicks).

[24] Bloch argues that “[b]y asserting the defense of simply holding the State to its burden, Bloch never put his intent at issue.” Appellant's Br. p. 22. For its part, the State asserts that the challenged evidence was relevant to show the relationship between the parties. In both instances, Bloch and M.N. denied that any domestic violence had occurred, with both blaming M.N.’s injuries on a medical condition that caused her to suffer seizures and fall. Again, in admitting the evidence relating to Bloch's other conviction, the trial court gave the jury the following limiting instruction:

Folks, you heard some testimony that was presented by the State of Indiana through Officer Vicary regarding an unrelated incident. It's unrelated to what you are to decide today. The incident that was testified to by the Officer is not to be considered by you as to whether or not [Bloch] committed the offenses that are before you for consideration.

The limited purpose of this testimony is whether or not you should consider that the evidence in this case with respect to the injury that [M.N.] received whether or not it was received accidentally. That is the only purpose that you are to consider of this testimony from Officer Vicary.

Tr. Vol. II pp. 152–53.

[25] The trial court's limiting instruction clearly informed the jury that the evidence relating to Bloch's other conviction could only be considered with respect to M.N.’s claim that her injuries had been caused by an accident, rather than some act by Bloch. The trial court also clearly informed the jury that it could not consider the challenged evidence in considering whether Bloch had committed the underlying act of domestic battery. “[W]e presume the jury follows the instructions it is given.” R.T. v. State, 848 N.E.2d 326, 332 (Ind. Ct. App. 2006), trans. denied. Given the limited nature of the admission of the challenged evidence, considered together with the Indiana Supreme Court's holding in Hicks, we cannot say that the trial court abused its discretion in admitting the challenged evidence.

[26] In any event, we agree with the State that “[t]he evidence of Bloch's subsequently battery likely had no probable impact on the jury in light of the totality of the evidence, the limiting instruction, and M.N.’s lack of credibility.” Appellee's Br. p. 29. In addition to the 911 call, in which Padilla had reported observing a battery, responding officers observed evidence of a battery, including finding M.N. lying on the ground with significant injuries to her upper body. In claiming that her injuries had been caused by a fall, M.N. gave conflicting accounts of where she had allegedly fallen before admitting that she was unable to remember “chunks of the night.” Tr. Vol. II p. 186. The jury also heard evidence that Bloch had coached M.N. from jail the night before she was scheduled to testify, telling her to “say what I want you to say.” Tr. Vol. II p. 178. Given the limited nature of the admission of the challenged evidence, coupled with the independent evidence of Bloch's guilt, we conclude that even if it had been error to admit the challenged evidence, such error was at most harmless. See Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011) (“The improper admission is harmless error if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction.”).

[27] The judgment of the trial court is affirmed.

FOOTNOTES

1.   The State initially included additional charges for Level 5 domestic battery by means of a deadly weapon, Class B misdemeanor possession of marijuana, and Class C misdemeanor possession of paraphernalia but these charges were dismissed prior to trial. The State had also initially listed the domestic-battery charge as a Class A misdemeanor but had elevated it to a Level 6 felony in light of Bloch having a prior domestic-battery conviction.

2.   Because we conclude that Padilla's statements in the 911 call fell under the present sense impression exception to the hearsay rules, we need not consider whether Padilla qualified as an unavailable witness under Evidence Rule 804(b)(5).

3.   Article 1, Section 13, of the Indiana Constitution also provides that, in all criminal prosecutions, the accused shall have the right to meet the witnesses face to face. Bloch, however, does not raise a separate argument that the admission of Padilla's statements in the 911 call violated his rights under the Indiana Constitution. Such argument is therefore waived. See Watson v. State, 134 N.E.3d 1038, 1044 (Ind. Ct. App. 2019), trans. denied.

4.   Although the parties’ arguments and the trial court's ruling below were focused on the question of whether Bloch had forfeited his Sixth Amendment confrontation rights by wrongdoing, we need not reach this question because we conclude that Padilla's statements to the 911 operator were nontestimonial. See Nichols v. State, 55 N.E.3d 854, 859 (Ind. Ct. App. 2016) (“We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record.”), trans. denied.

5.   To the extent that Bloch also challenges the admission of Investigator Price's statements before the jury indicating that Padilla was afraid of Bloch, Bloch does not support this challenge with cogent argument, and it is therefore waived. See Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005) (“Failure to put forth a cogent argument acts as a waiver of the issue on appeal.”), trans. denied.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.