MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Nov 13 2019, 10:15 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Saylor,                                           November 13, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1095
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable G. David Laur,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Wendy W. Davis,
                                                        Judge
                                                        Trial Court Cause No.
                                                        02D04-1801-F6-112



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019               Page 1 of 10
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, James Saylor (Saylor), appeals his conviction for

      domestic battery, a Level 6 felony, Ind. Code § 35-42-2-1.3; and criminal

      trespass, a Class A misdemeanor, I.C. § 35-43-2-2.


[2]   We affirm.


                                                  ISSUES
[3]   Saylor presents two issues on appeal, which we restate as follows:


          (1) Whether the trial court abused its discretion in admitting testimony

              under the excited utterance exception to the hearsay rules; and

          (2) Whether the state presented sufficient evidence beyond a reasonable

              doubt to sustain Saylor’s conviction for criminal trespass.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 13, 2017, Kylie Haithcox (Haithcox) lived at the Tara

      Cooperative apartment complex, together with her two children. The

      children’s father, Saylor, was not listed as a resident. On that day, Tara

      Cooperative’s security officer, Randall Hosford (Officer Hosford), at the request

      of the manager, informed Saylor that he was banned from the property and

      that, even if someone invited him there, he could be arrested for criminal

      trespass if he returned. Saylor indicated that he understood.


[5]   On November 18, 2017, Haithcox and her family celebrated the Thanksgiving

      holiday at her grandmother’s house. Saylor attended this family gathering

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 2 of 10
      where alcohol was consumed. After the celebration, Haithcox and her two

      children went home to her apartment. Later that evening, Saylor arrived at the

      apartment, “forced his way inside” and began to argue with Haithcox.

      (Transcript p. 151). Saylor quickly became aggressive and “punch[ed] her in

      the back of the head with a closed fist calling her a bitch and telling her that he

      hates her.” (Tr. p. 151). After being beaten, Haithcox managed to escape and

      ran outside, where she encountered her neighbor, Rachel Cruse (Cruse), near

      the community garbage area. Cruse noticed Haithcox’s “busted [] forehead and

      [] lip area.” (Tr. p. 98). Haithcox was hysterical and Cruse offered her shelter

      in Cruse’s car. She told Cruse that she “and her boyfriend had gotten into an

      argument, and it turned physical.” (Tr. p. 98). Cruse let Haithcox use her

      phone to call her mother and the police.


[6]   On January 30, 2018, the State filed an Information, charging Saylor with

      domestic battery, as a Level 6 felony, and criminal trespass, as a Class A

      misdemeanor. On March 26 and 27, 2019, the trial court conducted a jury trial.

      At the close of the evidence, the jury found Saylor guilty as charged. On April

      18, 2019, the trial court sentenced Saylor to two years on the domestic battery

      charge, with one year executed and one year suspended, and to one year

      executed on the criminal trespass charge. The trial court ordered both

      sentences to be served concurrently.


[7]   Saylor now appeals. Additional facts will be provided if necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 3 of 10
                              DISCUSSION AND DECISION
                                        I. Admission of the Evidence


[8]   Saylor contends that the trial court abused its discretion when it admitted

      certain hearsay statements under the excited utterance exception to the hearsay

      rule. We review a trial court’s decision to admit or exclude evidence for an

      abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004).

      An abuse of discretion occurs if a trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before the court. Id. However, if

      a trial court abused its discretion by admitting the challenged evidence, we will

      only reverse for that error if “the error is inconsistent with substantial justice” or

      if “a substantial right of the party is affected.” Id. (citing Timberlake v. State, 690

      N.E.2d 243, 255 (Ind. 1997), reh’g denied, cert. denied). Any error caused by the

      admission of evidence is harmless error for which we will not reverse a

      conviction if the erroneously admitted evidence was cumulative of other

      evidence appropriately admitted. Id.


[9]   Over Saylor’s objection, the trial court admitted two hearsay statements as

      excited utterance exceptions to the hearsay rule. Hearsay is an out-of-court

      statement offered to prove the truth of the matter asserted and is inadmissible

      unless the statement fits within a hearsay exception. Ind. R. Evid. 801. An

      excited utterance is a recognized exception to the hearsay rule and is defined as

      “[a] statement relating to a startling event or condition made while the

      declarant was under the stress of the excitement caused by the event or


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 4 of 10
       condition.” Ind. R. Evid. 803(2). To meet the excited utterance exception,

       three elements must be present: (1) a “startling event or condition” has

       occurred; (2) the declarant made a statement while “under the stress or

       excitement caused by the event or condition;” and (3) the statement was

       “related to the event or condition.” Teague v. State, 978 N.E.2d 1183, 1187 (Ind.

       Ct. App. 2012). This test is not “mechanical” and admissibility turns “on

       whether the statement was inherently reliable because the witness was under

       the stress of the event and unlikely to make deliberate falsifications.” Sandefur v.

       State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011). The lapse of time is not

       dispositive, but if a statement is made long after a startling event, it is usually

       “less likely to be an excited utterance.” Teague, 978 N.E.2d at 1187. “The

       heart of the inquiry is whether the declarant was incapable of thoughtful

       reflection.” Id.


[10]   Saylor first takes issue with Cruse’s testimony about her encounter with

       Haithcox. Specifically, Saylor objected to Cruse’s statement that, in response to

       Cruse’s inquiry, Haithcox replied that “her and her boyfriend had got [sic] into

       an argument, and it turned physical.” (Tr. p. 98). At the time of uttering the

       statement, Haithcox had just been beaten by Saylor and had managed to flee

       the apartment. Although it was cold, she was not wearing shoes. Cruse

       described her as being “hysterical,” with visible injuries on her forehead and lip.

       (Tr. p. 98). When Cruse asked her what had happened, Haithcox made the

       contested statement. Based on the surrounding circumstances, we conclude

       that the statement was properly admitted as an excited utterance. Clearly, the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 5 of 10
       relevant statement was made immediately following the battery by Saylor and

       while Haithcox was still under the stress of the event, having had no time yet to

       reflect on what had happened. See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind.

       1996) (“An excited utterance can be made in response to a question so long as

       the statement is unrehearsed and is made under the stress of excitement from

       the event.”)


[11]   The second contested statement was made during the testimony of Fort Wayne

       police officer Brian Juricak (Officer Juricak), who responded to the scene. The

       officer clarified that he was dispatched at 10:51 p.m. and arrived on the scene

       eight minutes later. Over Saylor’s objection, Officer Juricak informed the jury

       that Haithcox told him that “during the argument [] Saylor [began] to punch

       her in the back of the head with a closed fist calling her a bitch and telling her

       that he hates her.” (Tr. p. 151). Prior to admitting the statement, the State

       elicited testimony from Officer Juricak that Haithcox had visible injuries, she

       “was upset” and the officer “had trouble understanding her but eventually [he]

       was able to calm her down and get her statement.” (Tr. p. 150). Again, we find

       Haithcox’s statement properly admitted under the excited utterance exception.

       Based on the facts before us, it is undeniable the statement was made under the

       stress of the event, in close proximity thereof, and was unrehearsed. See Young

       v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012) (if the declarant is crying,

       appears to be under stress, is injured, or is exhibiting other physical or

       psychological conditions, the declarant is considered to be under the stress of

       the event).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 6 of 10
[12]   In sum, the trial court properly admitted both hearsay statements over Saylor’s

       objection as they both fall within the parameters of the excited utterance

       exception to the hearsay rule. We affirm the trial court’s ruling.


                                        II. Sufficiency of the Evidence


[13]   Next, Saylor contends that the State failed to present sufficient evidence beyond

       a reasonable doubt to sustain his conviction for criminal trespass. Our standard

       of review with regard to sufficiency claims is well-settled. In reviewing a

       sufficiency of the evidence claim, this court does not reweigh the evidence or

       judge the credibility of the witnesses. Clemons v. State, 987 N.E.2d 92, 95 (Ind.

       Ct. App. 2013). We consider only the evidence most favorable to the judgment

       and the reasonable inferences drawn therefrom and will affirm if the evidence

       and those inferences constitute substantial evidence of probative value to

       support the judgment. Id. Circumstantial evidence alone is sufficient to

       support a conviction. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016).

       Circumstantial evidence need not overcome every reasonable hypothesis of

       innocence. Clemons, 987 N.E.2d at 95. Reversal is appropriate only when

       reasonable persons would not be able to form inferences as to each material

       element of the offense. Id.


[14]   To convict Saylor of criminal trespass as a Class A misdemeanor, the State was

       required to establish that Saylor, not having a contractual interest in the

       property, knowingly or intentionally entered the real property of Tara

       Cooperative after having been denied entry by Tara Cooperative’s agent. See


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 7 of 10
       I.C. § 35-43-2-2. An order to leave or remain away is sufficient if made by

       means of personal communication, oral or written. I.C. § 35-43-2-2(c)(1).

       Saylor claims that the evidence is insufficient to show that he entered Tara

       Cooperative after being denied entry by Tara Cooperative or its agent.


[15]   Because the State presented evidence that Officer Hosford acted as Tara

       Cooperative’s agent, we must consider the law of agency. This court recently

       described the elements necessary to establish an actual agency relationship:


               Agency is a relationship resulting from the manifestation of
               consent by one party to another that the latter will act as an agent
               for the former. To establish an actual agency relationship, three
               elements must be shown: (1) manifestation of consent by the
               principal, (2) acceptance of authority by the agent; and (3)
               control exerted by the principal over the agent. These elements
               may be proven by circumstantial evidence, and there is no
               requirement that the agent’s authority to act be in writing.


       Demming v. Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011), reh’g denied,

       trans. denied (citations omitted). One who asserts that there was an agency

       relationship has the burden of proving its existence. Smith v. Brown, 778 N.E.2d

       490, 495 (Ind. Ct. App. 2002).


[16]   In Glispie v. State, 955 N.E.2d 819, 821 (Ind. Ct. App. 2011), reh’g denied,

       defendant was charged with criminal trespass. The officer testified that he had

       previously given the defendant oral and written warnings not to enter the

       business’s property. Id. at 822. The only evidence presented at trial of the

       officer’s status as the business’s agent was his own testimony that he “could act


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 8 of 10
       as an agent of the property.” Id. We held that “[m]ore is required” because

       “[i]t is a well-established rule that agency cannot be proven by the declaration

       of the agent alone.” Id.


[17]   Here, however, the evidence reflects that Officer Hosford was a police officer

       who had also worked as a paid part-time security guard at Tara Cooperative for

       the past eleven years and was familiar with the apartment complex’s “policy on

       occupancy and residency of those apartments.” (Tr. p. 191). Officer Hosford

       testified that on September 13, 2017, while performing his duties as a security

       guard for Tara Cooperative, he concluded that, based on information received

       from the apartment complex, Saylor had not been approved to reside there.

       Tara Cooperative asked Officer Hosford “to take action” and “to ban [Saylor]

       from the Tara Cooperative property.” (Tr. p. 192). Officer Hosford, in his

       capacity as a security guard, informed Saylor that he was banned from the

       property and that if he returned, he would be arrested for criminal trespass.

       Accordingly, the evidence reflected that Officer Hosford, in his capacity as

       security guard acted as an agent for Tara Cooperative and, at its request,

       banned Saylor from the property. See also Bowman v. State, 468 N.E.2d 1064,

       1068 n.1 (Ind. Ct. App. 1984) (“[W]hen police officers are acting in the capacity

       of private security guards, they shed their cloak of State agency and become

       agents of the private hiring authority[.]”). As the State presented sufficient

       evidence beyond a reasonable doubt to establish Officer Hosford acted as Tara

       Cooperative’s agent to ban Saylor from the property, we affirm his conviction.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 9 of 10
                                            CONCLUSION
[18]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       in admitting testimony under the excited utterance exception to the hearsay

       rules; and the State presented sufficient evidence beyond a reasonable doubt to

       sustain Saylor’s conviction for criminal trespass


[19]   Affirmed.


       Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019   Page 10 of 10
