Bane v. State

1

Kristin A. Bane, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff

No. 24A-CR-367

Court of Appeals of Indiana

October 7, 2024

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Helen W Marchal, Judge The Honorable Matthew E. Symons, Magistrate Trial Court Cause No. 49D26-2302-CM-4427

ATTORNEY FOR APPELLANT Steven J. Halbert Indianapolis Indiana

ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Weissmann, Judge.

[¶1] Kristin Bane was convicted of misdemeanor domestic battery after she punched and shoved her husband, J.B. On appeal, she claims a video of the incident, captured on their home security system, was improperly admitted into evidence. Without the video, Bane contends, there was insufficient evidence to support her conviction. We find the video was properly admitted as demonstrative evidence and affirm.

Facts

[¶2] While in their backyard shed, Bane and J.B. began arguing. Angry that J.B. took her phone, Bane hit J.B. on the head three or four times with a closed fist. She then hit J.B. another three or four times on the back and shoved him as he tried to leave the shed. J.B. reported this incident to the police a few months later, and the State charged Bane with Class A misdemeanor domestic battery.

[¶3] At Bane's bench trial, J.B. recounted the shed altercation blow by blow. The State then offered a video of the altercation, captured by the shed's home security system. Bane objected to the video's admission into evidence, claiming it lacked a foundation to establish its accuracy and authenticity. The trial court disagreed, finding J.B. had adequately testified that he "recognized [the video] and [it] was an accurate recollection" of the events. Tr. Vol. II, p. 46. J.B. had also identified himself and Bane in the video and explained how he obtained the video from their home security system. The court admitted the video.

[¶4] Bane later took the stand and denied that she hit J.B. However, she admitted that she did "push him" with her arms because she was upset at him. Id. at 63. At the close of evidence, the trial court found Bane guilty of Class A misdemeanor domestic battery and imposed a one-year suspended sentence.

Discussion and Decision

[¶5] Bane appeals her conviction in two parts. First, she argues that the home security video was improperly admitted into evidence. Second, she claims there was insufficient evidence to support her conviction without the video.

I. Admissibility of the Video

[¶6] We review the admission or exclusion of evidence for abuse of discretion. McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018).^[1] An abuse of discretion occurs when a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or when the court misinterprets the law. Vanryn v. State, 155 N.E.3d 1254, 1264 (Ind. 2020).

[¶7] The trial court admitted the video as demonstrative evidence that illustrated J.B.'s testimony about his first-hand experience of the shed altercation. See generally Kirby v. State, 217 N.E.3d 575, 583 (Ind.Ct.App. 2023) ("[E]vidence offered for demonstrative purposes is merely an aid[] that assist[s] in a human witness's testimony.")

(quoting Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014)) (internal quotation marks omitted). The video shows only the events that J.B. independently described in his testimony.

[¶8] Bane does not challenge the video's admissibility as demonstrative evidence. Instead, she claims the video was improperly admitted under the silent witness theory. Like the trial court, we disagree. The silent witness theory is used when no testifying witness was present to observe the depicted events. Edwards v. State, 762 N.E.2d 128, 136 (Ind.Ct.App. 2002). It does not apply here because J.B. was present for and testified to the events shown in the video. See id. (holding surveillance video was not offered as silent witness when person present for depicted events testified at trial and was available for crossexamination). Accordingly, the silent witness theory does not apply.

[¶9] To be admissible, demonstrative evidence "need only be sufficiently explanatory or illustrative of relevant testimony to be of potential help to the trier of fact." Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). Testimony that a photo or video "'accurately depict[s] the scene or occurrence as it appeared at the time in question' is an adequate foundation." Knapp, 9 N.E.3d at 1282 (quoting Smith v. State, 491 N.E.2d 194, 195 (Ind. 1986)).

[¶10] An adequate foundation was laid by J.B.'s testimony because he independently described the depicted events, identified himself and Bane in the video, and confirmed that the video was consistent with what he witnessed. See Edwards, 762 N.E.2d at 136 (finding witness's identification of person in video and independent description of depicted events supported video's admission). J.B. also testified that the video shown in court was a "fair and accurate copy" of the original. Tr. Vol. II, p. 42.

[¶11] Bane's final attack on the video is a dispute over what the video depicts: whether it shows her hit J.B. or reach around him to get her phone. This is not an issue of admissibility but a reweighing of the evidence in which this Court will not engage. See McCallister, 91 N.E.3d, at 558-59.

[¶12] We find the trial court did not abuse its discretion in admitting the video as demonstrative evidence to illustrate J.B.'s testimony.

II. Sufficiency of the Evidence

[¶13] Building on her evidentiary argument, Bane claims the State presented a "lack of sufficient admissible evidence" to support her conviction. Appellant's Br., p. 11. When reviewing such claims, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh the evidence nor judge the credibility of the witnesses. Id. We will affirm the conviction unless no reasonable factfinder could find all elements of the crime proven beyond reasonable doubt. Id.

[¶14] To prove that Bane committed Class A misdemeanor domestic battery, the State had to show that she: (1) knowingly or intentionally; (2) touched J.B.; (3) in a rude, insolent, or angry manner. Ind. Code § 35-45-1-3(a)(1). Bane argues that, without the allegedly inadmissible video, the State did not offer adequate evidence to prove...