These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Kurt Eisgruber, Judge. The Honorable Steven Rubick, Magistrate. Cause No. 49G01-1302-FC-9734.
ATTORNEY FOR APPELLANT: STEVEN J. HALBERT, Carmel, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; CHANDRA K. HEIN, Deputy Attorney General, Indianapolis, Indiana.
FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Following a jury trial, Kenneth Davis was convicted of two counts of Battery, one as a class C felony and another as a class A misdemeanor. Davis now appeals and presents the following restated issues for our review:
1. Did the trial court abuse its discretion in denying Davis's motion for a mistrial?
2. Did the trial court abuse its discretion in admitting certain testimony after the State committed an alleged discovery violation?
3. Do Davis's convictions violate Indiana's constitutional double-jeopardy protections?
We affirm in part, reverse in part, and remand with instructions.
On the evening of January 7, 2013, Davis and his pregnant girlfriend, B.P., got into an argument after Davis was several hours late in returning from work. During the argument, Davis grabbed B.P. by her arms, pushed her onto the bed, and wrested her phone out of her grasp. Davis then walked outside with B.P.'s phone, and B.P. followed him and told him to give her phone back. Davis refused, and the couple continued to argue until Davis punched B.P. in the face. B.P. then attempted to back away from Davis but slipped and fell on a patch of ice. Davis struck B.P. three more times with his fists, and he used her phone to make a call before throwing it on the ground and walking away. Shortly thereafter, someone in a car picked Davis up. After Davis left, B.P. called the police, and she was transported to the hospital by ambulance. While B.P. was being treated at the hospital, Davis called her and told her he hoped the baby died.
As a result of these events, the State charged Davis as follows: Count I, battery as a class C felony; Count II, domestic battery as a class A misdemeanor; and Count III, battery as a class A misdemeanor. A jury trial was held on May 1, 2013, and Davis was convicted of Counts I and III, but acquitted of Count II. On May 28, 2013, Davis ...