Summer C. Snow, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Lake Superior Court Trial Court Cause No.
45G01-1412-F5-42 The Honorable Salvador Vasquez, Judge
Attorney for Appellant P. Jeffrey Schlesinger Office of the
Public Defender Crown Point, Indiana
Attorneys for Appellee Gregory F. Zoeller Attorney General of
Indiana Katherine Modesitt Cooper Deputy Attorney General
Summer C. Snow appeals her convictions for battery against a
public safety official as a level 5 felony and resisting law
enforcement as a level 6 felony. Snow raises one issue which
we revise and restate as whether the trial court abused its
discretion in admitting testimony regarding a handgun. We
and Procedural History
At approximately 4:50 a.m. on November 30, 2014, Gary Police
Officer Terry Peck responded to a domestic incident at a
house in Gary, Indiana. When Officer Peck arrived at the
house, he was met by Snow, who reported that her boyfriend,
Reginald Harris, was in the back seat of her car parked on
the driveway and that he refused to leave. Officer Peck asked
Snow if Harris owned the car or stayed at the house, and Snow
replied "no, he doesn't own the car, that it was her
house." Transcript at 64. Officer Peck also asked Snow
"if she had any - if he had any weapons and she stated
no." Id. He and Snow then walked up to the car.
Officer Peck opened the rear door of the car and told Harris
that he needed to leave the car, Harris argued with him,
Officer Peck said that if he did not leave he would be
arrested for criminal trespass, and Harris still refused to
exit the vehicle. Officer Peck placed his hand on
Harris's arm and urged him to exit the car, and Harris
grabbed Officer Peck's wrist, pulled him halfway into the
car, and struck him in the face, the side of his body and
head, and his arms. When Harris pulled Officer Peck into the
vehicle, Snow started to shout and cheer Harris on, saying
"[f]--- that white boy up, " "I'm taping
this s---, " and "beat his a--." Id.
at 75. Officer Peck broke free from Harris, pulled him from
the car, placed him on the ground, handcuffed him, and placed
him in his police vehicle.
Officer Peck then told Snow to stop shouting and to be quiet
and asked for her identification, and she refused. He told
Snow to return inside her house and that, if she did not, she
would go to jail for disorderly conduct. Snow turned and
walked towards her house while still shouting at Officer
Peck, who walked to the passenger side of Snow's car to
retrieve his flashlight and look for the vehicle's
registration, and he heard what sounded like the front door
of the house close and assumed Snow had entered her house.
Officer Peck walked toward the back of Snow's car and
toward his police vehicle, and Snow was back there and
shouting loudly at him again. He warned Snow three times that
she may be arrested for disorderly conduct, and Snow said
that she "dared [his] b---- a-- to arrest her."
Id. at 82. He ordered Snow to place her hands on the
car, and she refused and started to shout "[t]hey're
abusing me. Somebody tape this s---" at the top of her
lungs. Id. He tried to grab Snow's wrists, and
she pulled away from him and placed or tucked her hands
underneath her sweatshirt or the light jacket she was
wearing. He tried to grab her wrist and place her against her
vehicle, and she swung at him.
As Officer Peck struggled to control Snow, she struck him in
the shoulders and side of the head, scratched his chin, and
kicked him in the thigh. At one point during the altercation,
Snow was able to jump on Officer Peck's back, was wrapped
up around him, and started to bite his shoulder. He threw
Snow off and pushed her into her car, which seemed to stun
her a little bit although she was still fighting and trying
to swing, and he was able to grab hold of one of her arms and
place that arm into handcuffs. At that time, Officer Peck
felt an object fall and hit his knee and the top of his boot.
Officer Peck initially thought it was his "flashlight or
a magazine that she might have knocked off of [his] vest,
" that he and Snow "struggled a little bit longer,
" and that he "was able to finally subdue her
enough to get her in handcuffs." Id. at 86.
"She was still trying to turn and kick, but by then she
was in handcuffs and she couldn't - she was just
difficult to handle, but she wasn't striking [Officer
Peck] anymore." Id. Corporal John Artibey
arrived at the scene and observed Officer Peck attempting to
place Snow into handcuffs, that she was pulling away at the
time, and that he believed Officer Peck had one cuff on Snow.
As Officer Peck placed handcuffs on Snow, Corporal Artibey
walked up through the yard, and as he approached to escort
her away from the vehicle he noticed a handgun on the ground
where both Officer Peck and Snow were standing. Snow admitted
that the gun belonged to her.
The State charged Snow with two counts of battery against a
public safety official as level 5 felonies, resisting law
enforcement as a level 6 felony, and disorderly conduct as a
class B misdemeanor. Snow filed a
motion in limine to prohibit the State from making
any reference to or seeking to elicit from any witness that a
weapon was found at the scene during the incident.
Prior to the start of the joint jury trial, the court heard
arguments on the motion in limine to prohibit any
reference that a weapon was found at the scene. The State
argued that "it is relevant that she was actually
carrying a weapon on her when she was wrestling with Officer
Peck" and that, "given the fact that I do believe
they plan on using self-defense or some sort of defense, I
think it's pertinent the gun actually shows some sort of
aggression on the part of the defendant." Id.
at 4, 7. The State further argued that "Officer Peck is
going to testify that he asked Summer Snow to go inside the
house and that it was under his belief that she did walk
inside the house" and "[s]o it is relevant that
possibly she could have went in there and got a weapon and
had it on her when she was wresting [sic] with him."
Id. at 7. In response, Snow's counsel argued
that Officer Peck had no reason to believe Snow had a gun,
that he was not acting the way he acted because he thought he
was in fear for his life, and "[s]o his actions and the
relevance and whether or not they were reasonable, the gun
plays no . . . part in that determination for the jury."
Id. at 8. The State replied that it was "not
arguing that . . . it goes towards his state of mind in
knowing that she had a gun, " that "one of their
defenses for that - any kind of scuffle between the cops
could be them defending themselves from the cops is what
I'm saying, " and that "the fact that a gun was
found shows that perhaps they were more of an aggressor
rather than one of defense." Id. at 8-9.
The court asked "[s]o there's going to be testimony
that they were aggressive, " and the State responded
affirmatively. Id. at 9. The court then asked
"[a]nd your theory is that the aggressiveness on behalf
of - I guess, let's say - to be clear, we're talking
about Snow - is because she was - in your theory, at least -
that she was trying to conceal a weapon in her possession,
" and the State answered: "Yes. I believe that
would show more for an offensive rather than a defense
position, in terms of what happened with the scuffle."
Id. at 9-10. The court found that, "[g]iven the
State's proffer, " it did not believe that "the
prejudicial value substantially outweighs the probative
nature of the information, " "particularly given
the State's proffer that they believe that Snow was
acting in the aggressive manner to perhaps conceal a weapon
that could have been in possession." Id. at 10.
The court further found: "A weapon that was not there at
one point, certainly appears later on. I believe that the
State's proffer that this is significantly probative of
the defendant's action is enough no [sic] allow the
information to go before the jury." Id. The
court denied the motion in limine with respect to
the request to prohibit any reference that a weapon was found
at the scene.
During Officer Peck's trial testimony, defense counsel
objected in regards to the handgun based on the arguments
made during the motion in limine, and the court
overruled the objection and stated that "the finding of
the weapon is part of the entire incident and I see no reason
to keep that information from the jury." Id. at
89-90. Officer Peck testified that he and Corporal Artibey
discovered that the object that fell and hit his boot was
actually a handgun. Officer Peck testified he sustained
scratches to his face and a knot on his forehead, and the
court admitted photographs of Officer Peck's injuries.
Snow testified that she was worked up because she saw Harris
being attacked. She testified that Officer Peck asked for her
identification and that she asked why he needed it and that
she was the person who called the police. She testified that
she turned around to retrieve her purse which was on the seat
in her car, that as soon as she had turned around Officer
Peck punched her in the back of the head, that he turned her
around and continually punched her as she tried to block the
punches, and that she was just defending herself. When asked
her purpose of turning around, Snow replied to retrieve her
identification located in her vehicle. She testified that she
never attempted to pull a weapon out and that the weapon was
in her purse on the front seat. When asked how the weapon
ended up on the ground, she answered "[i]f I can guess
at it, I will just say when our struggle ensued, that's
when the purse hit - it probably shifted and the gun may have
fell." Id. at 216. On cross-examination, Snow
indicated that the whole purse was tipped over on the floor
of her car, that everything was on the floor of the vehicle,
and that the gun had fallen on the ground where she had her
scuffle with Officer Peck.
In closing argument, the State argued in part that the gun
was never in Snow's purse, that it was in her pocket the
entire time, that she lied, and that "[s]he was never on
the defense. She was the aggressor the entire time."
Id. at 356. The jury found Snow guilty of one count
of battery against a public safety official as a level 5
felony and resisting law enforcement as a level 6 felony and
not guilty of the other charges. The court sentenced Snow to
an aggregate term of two and one-half years with two years
suspended to probation.
The issue is whether the trial court abused its discretion in
admitting evidence of the handgun. Generally, we review the
trial court's ruling on the admission or exclusion of
evidence for an abuse of discretion. Roche v. State,
690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied.
We reverse only when the decision is clearly against the
logic and effect of the facts and circumstances. Joyner
v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh'g
denied. We may affirm a trial court's decision
regarding the admission of evidence if it is sustainable on
any basis in the record. Barker v. State, 695 N.E.2d
925, 930 (Ind. 1998), reh'g denied. Even if the
trial court's ...