          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D18-4268
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JIMMY R. BAITY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Francis Allman, Judge.

                          August 9, 2019


PER CURIAM.

      Appellant, Jimmy R. Baity, appeals his convictions and
sentences for aggravated stalking after court order, attempted
first-degree murder, and burglary of a conveyance with person
assaulted. He argues on appeal that the trial court erred in
admitting into evidence a voicemail for his wife, the victim, left by
his mother and in denying his motions for a continuance and a
mistrial. Finding no abuse of discretion in the trial court’s denial
of Appellant’s motions, we affirm as to those issues without
comment. As for the admission of the voicemail, we conclude for
the reasons that follow that the trial court was correct in
determining that it was admissible as an excited utterance. We,
therefore, affirm Appellant’s convictions and sentences.
     During Appellant’s trial, the State called Maple Hamilton, his
mother. She testified about an early-morning phone call from
Appellant in which he told her that he might beat the victim.
“Shortly after” her conversation with Appellant, Hamilton called
the victim and left the following voicemail:

    Laurie, you need to talk to me. You need to pick up this
    phone and talk to me. Please do. I’m saving your life,
    sweetheart. Please pick up the phone and talk to me . Do
    not go to that house. Please do not go there. Please, Lord,
    pick up the phone and talk to me. I’m trying to save you
    again. Don’t go to that house. Please don’t go to that
    house. I love you. Bye.

When asked why she left the voicemail, Hamilton testified that she
was concerned that Appellant would violate his injunction by
having contact with the victim and that she went back to sleep
after leaving the voicemail. The victim described Hamilton’s
demeanor on the voicemail as being scared. When asked if
Hamilton seemed upset, the victim replied, “Yeah. So that’s when
I called her back.” The trial court overruled defense counsel’s
hearsay objection to the voicemail, finding in part that the “State
has now laid a sufficient foundation for the excited utterance.” The
jury found Appellant guilty as charged on the three counts, and
the trial court sentenced him to concurrent terms of life and five
years’ imprisonment. This appeal followed.

     Appellant challenges the trial court’s excited utterance ruling
on appeal. “Hearsay” is defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” §
90.801(1)(c), Fla. Stat. (2017). Pursuant to section 90.803(2),
Florida Statutes (2017), an exception to hearsay includes a
“statement or excited utterance relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” The following
elements must be met for the exception to apply: (1) there must be
an event startling enough to cause nervous excitement; (2) the
statement must have been made before there was time to contrive
or misrepresent; and (3) the statement must be made while the
person is under the stress or excitement caused by the event.

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Blandenburg v. State, 890 So. 2d 267, 269 (Fla. 1st DCA 2004). A
trial court’s ruling on the admissibility of a statement as an excited
utterance is reviewed for an abuse of discretion. Hudson v. State,
992 So. 2d 96, 109 (Fla. 2008); Williams v. State, 967 So. 2d 735,
748 (Fla. 2007).

     In support of his argument, Appellant relies upon Ms.
Hamilton’s testimony that she only called the victim because she
was concerned that he would violate his injunction prohibiting
contact with the victim and that she went back to sleep after
leaving the voicemail. The problem with this reliance, however, is
that the victim testified that Hamilton’s demeanor was scared. It
was because Hamilton seemed upset on the voicemail that the
victim called her back. The voicemail itself corroborates the
victim’s characterization of Hamilton’s demeanor. Moreover,
although Appellant argues that it was not established that
Hamilton left the voicemail before she had time to misrepresent or
contrive, Hamilton affirmatively responded when asked if her call
to the victim was made “shortly after” her call with Appellant.
Based upon such, the trial court did not err in overruling
Appellant’s hearsay objection. See, e.g., Roop v. State, 228 So. 3d
633, 639-40 (Fla. 2d DCA 2017) (holding that the trial court did not
abuse its discretion in determining that the excited utterance
hearsay exception applied where the victim stated to a 911
operator that someone threw a metal pipe at his car and where
there was no time to contrive or mispresent); Taylor v. State, 146
So. 3d 113, 115-16 (Fla. 5th DCA 2014) (holding that statements
made “minutes” after an event by the ex-girlfriend whose armed
ex-boyfriend, the appellant, walked in front of her car while she
was driving, yelled insults, and threatened to kill her were
admissible as excited utterances notwithstanding an officer’s
testimony that the ex-girlfriend had calmed down as she was
talking to him).

    Accordingly, we affirm Appellant’s convictions and sentences.

    AFFIRMED.

LEWIS and B.L. THOMAS, JJ., concur; WOLF, J., concurs in result.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Mitchell A.
Egber, Assistant Attorney General, West Palm Beach, for
Appellee.




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