APPEAL FROM THE MADISON CIRCUIT COURT. The Honorable Thomas Newman, Jr., Judge. Cause No. 48C03-1111-FC-2033.
ATTORNEY FOR APPELLANT: JOHN T. WILSON, Anderson, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; GEORGE P. SHERMAN, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. BRADFORD, J., concurs. BARNES, J., dissents with separate opinion.
Peter Griffith appeals his conviction and sentence for battery by means of a deadly weapon, a class C felony. Griffith raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in excluding certain evidence; and
II. Whether Griffith's sentence is inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
On October 17, 2011, Darren and Summer Wiles were at their residence, where they lived together with their two children, Darren's mother, and Summer's mother. Griffith is Summer's father and Darren's father-in-law. At some point in late evening, Summer's mother began to argue with Darren's mother, and Darren " made [Summer's] mom leave." Transcript at 261. Summer's mother walked outside, and Darren and Summer walked out behind her. Griffith, who had been drinking and appeared intoxicated, approached the residence from across the street yelling that Darren had hurt " [his] baby girl." Transcript at 261. Griffith also " mumble[ed] stuff . . . about he's going to kill" Darren. Id. at 239. Darren said " you don't want to fight me old man" and " go home," but Griffith kept approaching. Id. at 239, 262. Summer noticed that Griffith had a knife. Summer was standing between Griffith and Darren, and she attempted to push Griffith back but he would not budge. Griffith " came running up on" Darren with " a knife in his hand," the two men " went to the ground," and Griffith " stabbed [Darren] in [his] back." Id. at 239-240. Griffith cut Darren on the arm and " tried to cut [his] throat." Id. at 244. Summer was able to separate Griffith and Darren, and the police arrived.
On November 3, 2011, the State charged Griffith with battery by means of a deadly weapon, a class C felony. After several delays, a jury trial was held in September 2013. During the trial, the State presented the testimony of Darren, Summer, another eyewitness to the altercation, and police who arrived on the scene and investigated the stabbing. Police Chief Larry Crenshaw, who was a detective at the time of the altercation, testified that he was assigned to investigate the stabbing, and that Griffith reported that " his son-in-law had hit him with a two  by four." Id. at 158. When later asked if he " locate[d] the two  by four," Chief Crenshaw answered " No." Id. at 159.
Darren testified that Griffith had a knife in his hand, that Griffith ran up to him, and that they " went to the ground and that's when [Griffith] stabbed me in my back."
Id. at 240. Darren also testified that he " tried to evade [Griffith] and he kept trying to come at me and he cut me on my arm and he tried to cut my throat and I was trying to protect myself. I mean he, I feel he was really trying to take
my life." Id. at 244. Summer indicated that Darren did not attack Griffith, that Griffith was the aggressor, and that Darren told Griffith that he did not want to fight. When asked what happened after Darren was stabbed, Summer testified " like Darren didn't know he was stabbed until I said something to him then I think . . . someone said something about cops and a lot of people split up . . . ." Id. at 265-266.
Following the presentation of the State's witnesses, Griffith informed the trial court that he wished to introduce the testimony of two witnesses, Timothy Brinson and Catrina Kennett, to impeach Darren. Griffith stated that the witnesses would testify that Darren had conversations with them following the altercation during which he told a story different than the one to which he testified. The State objected and argued that neither of Griffith's witnesses were present at the time of the incident and that their testimony was inadmissible hearsay. The State argued that the second reason the testimony of Brinson and Kennett should be excluded was because, " in order to impeach a witness, you have to give the witness the opportunity to deny that he did or said whatever it is your rebuttal witnesses are going to say" and that Darren " was never asked about any conversation with either one  of these two  witnesses." Id. at 278. The court sustained the State's objections. Griffith's defense counsel stated: " Well I'll call [Darren] as my case in chief and ask him those questions. Is he still available?" Id. at 279. The prosecutor indicated he did not know if Darren was still available and argued that " there's no reason that he couldn't have asked these questions while [Darren] was on the stand" and that " you can't call a witness just to rebut his testimony." Id. at 279-280. The court noted that " if you call him and lay the foundation then you can impeach him." Id. at 280. The court later stated that Indiana courts forbid impeachment of one's own witness by a prior inconsistent statement if the sole purpose in calling the witness was to place otherwise inadmissible evidence before the jury. Griffith's counsel stated: " Let me do this Judge. If your ruling is against me let me briefly put [Brinson and Kennett] on to preserve the record and then we'll go from there," and the court agreed. Id. at 282.
Outside the presence of the jury, Brinson testified that, approximately two months after the altercation between Griffith and Darren, Darren told him that " he took a two (2) by four (4) and hit [Griffith] a few times with the two (2) by four (4) and then [Griffith] cut him with a knife." Id. at 284. Kennett stated that, on the day following the altercation, Darren told her that he " had got into it with Summer's dad" and that he " hit Summer's dad with a two  by four  and then he said Summer's dad ...