Son loses appeal of felony battery conviction against mother

A Lafayette man convicted of battery against his mother failed to persuade the Indiana Court of Appeals to throw out his felony conviction.

In Michael Lee McMillen v. State of Indiana, 20A-CR-1822, Michael McMillen and his mother, Leshia Beers, were involved in a physical altercation in their Lafayette home in February 2020. McMillen punched and choked his mother before fleeing, while Beers flagged down a police officer outside the home.

The officer, Neal Cain, observed Beers with several injuries including bumps, bruises, cuts and bleeding. There were also bloodstains inside the home on Beers’ bed and couch.

Cain temporarily left the home and returned to find McMillen there. The officer observed that Beers had more bruising than earlier in the day, but the woman changed her story of how she was injured. Likewise, McMillen claimed his mother fell both in the bathtub and on the front porch.

During this conversation, Cain saw a pipe in McMillen’s pocket that contained a white powdery substance. The son was eventually arrested and charged with Level 5 felony battery, Class A misdemeanor battery and Class C misdemeanor possession of paraphernalia. The state charged him with both felony and misdemeanor battery due to a prior battery conviction against Beers in 2018.

At trial, Beers maintained that McMillen did not hit her but that she had run into walls due to balance issues. She claimed she did not remember what she told Cain but admitted she had taken Ambien and Xanax on the day of the attack.

The state moved to admit into evidence Cain’s body camera footage, which captured his conversation with Beers. The Tippecanoe Superior Court admitted the footage over McMillen’s objection but did instruct the jury not to consider Cain’s statements as evidence.

The jury found Cain guilty of both misdemeanors and then, at a second phase of the trial, elevated the battery conviction to a felony. During that phase, the state was permitted, over McMillen’s objection, to introduce evidence establishing his prior conviction.

The trial court sentenced McMillen to five years, with two years executed in the Indiana Department of Correction, two years in community corrections and one year of supervised probation. He appealed his battery conviction, challenging the trial court’s evidentiary rulings, but the Indiana Court of Appeals affirmed.

Specifically, Judge Paul Mathias wrote in a Tuesday opinion that the admission of the body-cam footage was proper under the excited utterance exception to the hearsay rule.

“The evidence at trial established that, within minutes of being beaten by her son, Beers saw Officer Cain outside her home and waved him over to her house,” Mathias wrote. “When Beers opened the door to speak to the officer, she was crying and have several visible injuries. The wound on her head was still bleeding, and the officer observed blood stains throughout the house.

“We agree with the State that Beers was under the stress of a startling event when she told Officer Cain that McMillen attacked her,” Mathias continued. “Because Beers’s recorded statements to the officer implicating McMillen were admissible under the excited utterance exception, the trial court did not abuse its discretion when it admitted those statements into evidence.”

The state had also argued the footage was admissible as a recorded recollection, but the COA disagreed on that point, noting Beers did not vouch for the accuracy of her statement to Cain.

Turning next to the admission of evidence of McMillen’s prior battery conviction, the appellate panel partially agreed with McMillen’s challenge, finding that the probable cause affidavit and law enforcement investigation report into his prior arrest should not have been admitted because they did not fall within the public records exception to hearsay, Evidence Rule 803(8).

“However, the remaining documents — the charging information, plea agreement, and sentencing order — do fall within the exception: each is a record that is regularly maintained by the Tippecanoe County Clerk and fit squarely within the confines of Rule 803(8),” Mathias wrote. “The trial court did not abuse its discretion by admitting records establishing McMillen’s prior battery conviction.

“But even if the trial court erred when it admitted the charging information, plea agreement, and sentencing order into evidence, any error is harmless,” the judge continued. “During the second phase of trial, McMillen testified and admitted that he had a 2018 conviction for misdemeanor battery against Beers. … Thus, McMillen’s own testimony was sufficient to support his Level 5 felony battery conviction.”