Certain v. State

1

Philip Certain, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 22A-CR-1745

Court of Appeals of Indiana

May 3, 2023

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court The Honorable Steven P Meyer, Judge Trial Court Cause No. 79D02-2007-F3-19

Attorney for Appellant Brian A. Karle Ball Eggleston, PC Lafayette, Indiana

Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

CRONE JUDGE

Case summary

[¶1] Philip Certain appeals his conviction for level 6 felony domestic battery in the presence of a minor, asserting that the trial court abused its discretion in admitting evidence that he previously battered the same victim. Finding no abuse of discretion, we affirm.

Facts and Procedural History

[¶2] On July 30, 2020, the State filed a seven-count charging information against Certain regarding events that occurred on or about July 18. Count 1 alleged that he criminally confined his former girlfriend C.C. while armed with a handgun; Count 2 alleged that he intimidated C.C. while armed with a handgun; Count 3 alleged that he criminally confined C.C. by using a vehicle; Count 4 alleged that he committed domestic battery against C.C., "who is a family or household member,"^[1] by knowingly or intentionally touching her "in a rude, insolent, or angry manner _ in the physical presence of a child less than 16 years of age, knowing that the child was present and might be able to see or hear the offense"; Count 5 alleged that he kidnapped C.C.; Count 6 alleged that he carried a handgun without a license; and Count 7, an enhancement of Count 6, alleged that he carried a handgun without a license with a prior felony conviction within fifteen years. Appellant's App. Vol. 2 at 21. The State also alleged that Certain was a habitual offender.

[¶3] In September 2021, the State filed a notice "of its intent to offer extrinsic act evidence pursuant to [Indiana Evidence Rule 404(b)] .... of prior acts of domestic violence perpetuated by [Certain] against Victim [C.C.]" in White County in March 2018, which resulted in the filing of criminal charges against Certain that were later dropped. Id. at 100. Certain filed a motion in limine requesting the exclusion of such evidence and a "further response" to the State's notice. Id. at 122, 140. The State filed an additional submission in support of its 404(b) notice, asserting in relevant part that the evidence was admissible to show the hostile nature of the parties' relationship Id. at 152. After a hearing on pretrial motions, the trial court ruled that evidence of the prior incident would be admissible at trial, finding in pertinent part that the incident was "close enough in time to be probative of the relationship between [Certain] and [C.C.]" and his hostility toward her, and that the incident's "probative value outweighs any prejudice claimed by [Certain]." Id. at 169-70.

[¶4] A three-day jury trial began on April 5, 2022. C.C. was the State's first witness. She testified that in July 2020, she and Certain "were trying to work things out, but [they] were not together." Tr. Vol. 2 at 73. She stated that on July 18, she was outside her Lafayette home with two of her teenage children, M.H. and Z.H., and her neighbor Rachael Smith when Certain drove up in a pickup truck and "told [her] to get in the truck." Id. at 76. C.C. told Certain that she did not want to, but he "grabbed [her] and pulled [her] off the porch" and put her in the passenger's side of the truck. Id. According to C.C., Certain entered the driver's side of the truck and locked the doors. He pulled a gun from his hip, cocked it, and "put it on [her] side and on [her] neck." Id. at 79. Certain told C.C. that "if [she] didn't go with him that he would burn down the house with [her] and everybody in it." Id. Certain talked to and yelled at C.C. "and then eventually finally let [her] out of the truck" and drove off. Id. at 80. Afterward, police responded to an unrelated incident at the residence, but C.C. did not tell them at that time "what happened" with Certain because he had threatened to burn down the house. Id. at 83, 88. C.C. texted Smith, who "got ahold of a family member or a friend that she knew and they got ahold of the cops" regarding Certain's actions. Id. at 83. Police again went to the residence, and C.C. told them what Certain had done.

[¶5] After eliciting the foregoing testimony regarding the July 2020 incident, the deputy prosecutor asked C.C., "And how would you describe your relationship with [Certain]?" Id. at 84. C.C. replied, "At the time it was very rocky, abusive." Id. Certain did not object to this statement. The prosecutor then stated, "So I'd like to talk about a specific incident from March of 2018. Do you know what I'm talking about?" Id. C.C. replied, "Yes, I do." Id. Over Certain's objection, C.C. testified that during the March 2018 incident, Certain aimed a gun at her, fired the gun, and "ended up pushing [her] down on the ground in [her] bathroom." Id. at 85. He threatened to kill her and told her to tell law enforcement that someone else assaulted her. Certain "ended up holding [C.C.] at his house in Lafayette with his mom, where [C.C.] did not get to testify." Id. at 86. The prosecutor asked, "And, ultimately, that was the end of the case. Is that fair to say?" Id. C.C. replied, "Yeah." Id. C.C. then testified that after Certain was arrested for the July 2020 incident, she had multiple "video visits" with him, during which "[h]e'd ask [her] not to testify against him[.]" Id. at 90. C.C. said that she went "to the prosecutors with [Certain's] mother's girlfriend and tried to drop the charges because he asked [her] to." Id. at 101.

[¶6] On cross-examination, C.C. acknowledged that she had written a letter to the judge in Certain's White County case asking for the charges to be dismissed and stating that she did not believe that Certain was a threat to her and that they were "engaged and planning to be married[.]" Id. at 105. She also acknowledged that she "could have" texted Certain "nude" or "partially nude pictures" of herself after the July 2020 incident,^[2] that she "continue[d] to have sex with him after July 18th[,]" and that she had exposed her "genitalia" to him during their "video visits" after his arrest. Id. at 105, 106.

[¶7] C.C.'s fifteen-year-old son M.H. testified that on July 18, 2020, Certain "was driving to [C.C.'s] house, and he got out of his truck, and then he came up and picked [C.C.] up and she didn't want to go. So [C.C.] held onto a fence, and he dragged her off the fence[,]" picked her up "with both his arms around her chest[,]" and put her in his truck. Id. at 161. He stated that he could not see inside the truck because the windows were tinted and that he could not hear anything. He further stated that when C.C. got out of the truck, she acted "[f]rightened." Id. at 164. C.C.'s fourteen-year-old son Z.H. testified that he saw Certain "drag" C.C. off the porch and into his truck, that he could see only "a little bit" inside the truck, that he heard Certain "yelling[,]" and that when C.C. got out of the truck, she looked "[s]cared." Id. at 175, 177, 178. C.C.'s neighbor Smith testified that she saw Certain drag C.C. into his truck, that she heard Certain yell at C.C., that she heard the "click" of Certain "cocking [a] gun[,]" and that when C.C. got out of the truck, she told Smith to "call the police." Id. at 191, 192.

[¶8] Certain testified that he served "[a] few months" in jail for the March 2018 incident and resumed his relationship with C.C. because he "forgave her for what she had done." Tr. Vol. 3 at 66. He also testified that on July 18, 2020, he had been "arguing" with C.C. "about whether or not she was going on a trip with [him]" to Indianapolis. Id. at 73. He stated that he drove to her home and

yelled for her to come here. She didn't come here. I [_] exited my vehicle and walked up just talking to her. But, when she was getting up, she grabbed the rail and sure - she's got weak knees. So she was grabbing - she was grabbing - then I leaned over, I grabbed a hold of her and helped lift her up. She told me to get the hell off of her. So I - I let her go at that point.

Id. at 75. According to Certain, C.C. then "walked with [him] and got in the passenger's side of the truck[,]" where they talked for "[t]en, max fifteen minutes." Id. at 75, 76. He denied having a gun in the truck or doing "anything to harm [C.C.] in the truck" or "prevent her from getting out of the truck[.]" Id. at 76. He claimed that she "got mad and stormed out of the truck" and told him to "go F [himself]." Id. at 77-78. He also claimed that he "had sex with" C.C. "[t]he very next day." Id. at 73. On cross-examination, Certain denied pointing a gun at C.C. in March 2018. Id. at 81. And when asked whether he had told C.C. "not to go to court on [him]" for the July 2020 incident, Certain replied, "I told her to take care of it. I didn't tell her not to go to court on me." Id. at 98.

[¶9] At the close of evidence, the jury was instructed to determine Certain's culpability on the first six counts in the charging information. The jury found Certain guilty of level 6 felony domestic battery in the presence of a minor as charged in Count 4 and not guilty of the crimes charged in Counts 1, 2, and 6, and it was unable to reach a unanimous verdict on Counts 3 and 5, for which the court declared a mistrial. The court ultimately dismissed Counts 3, 5, and...