MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jun 29 2016, 8:28 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Eldridge,                                        June 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1512-CR-2260
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G09-1411-F6-51834



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016          Page 1 of 8
[1]   Michael Eldridge appeals his convictions for Residential Entry,1 a Level 6

      felony, and Resisting Law Enforcement,2 a class A misdemeanor. He argues

      that the trial court erroneously admitted a 911 call into evidence. Eldridge also

      seeks review of a fine that is listed on his sentencing order, even though the trial

      court found him indigent as to fines and costs. Finding no error in the

      admission of the 911 call, but finding that the sentencing order needs

      clarification, we affirm and remand.


                                                     Facts

[2]   At around 1:00 a.m. on November 14, 2014, Indianapolis Police Officers Dane

      Elkins and Bryan Zotz received a report of a burglary in progress at 3050

      Central Avenue. The report described the suspect as a Black male in a black

      hoodie. Riding in the same marked police car, both officers arrived at the scene

      in less than one minute.


[3]   When the officers arrived at the location of the reported burglary, they noticed

      that there were broken windows and that some lights were on inside the

      residence. They also noticed a man standing inside the door of the house. This

      man, later identified as Eldridge, matched the description of the suspect from

      the report. Because this particular area of Central Avenue is lined with street




      1
          Ind. Code § 35-43-2-1.5.
      2
          Ind. Code § 35-44.1-3-1(a).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016   Page 2 of 8
      lights, the officers were able to get good glimpses of Eldridge’s face. As the

      officers emerged from their police car, Eldridge exited the house and began

      running toward the back of the house. At this point, Officer Elkins drew his

      weapon, repeatedly ordered Eldridge to show his hands, and ran after him.

      Officer Zotz, meanwhile, ran across to the other side of the house. The three

      men went back and forth behind the house several times, as Eldridge kept

      changing his path of direction to evade the officers. When the officers

      eventually caught up to Eldridge and handcuffed him, they noticed that he had

      blood on his hands and body. They checked Eldridge for injuries and saw that

      he had a cut on the right side of his back. They then called an ambulance.


[4]   When the officers questioned him, Eldridge stated that he had been at the

      residence to see a woman. He insisted that he needed to get inside the house,

      even though the occupants had prevented him from doing so. Afterward,

      Officers Elkins and Zotz spoke with the people inside the house, but neither

      officer recalls speaking to anyone that had called the police.


[5]   On November 26, 2014, the State charged Eldridge with Level 6 felony

      residential entry and class A misdemeanor resisting law enforcement.

      Eldridge’s jury trial was held in October 2015. At trial, Eldridge objected to the

      admission of the 911 call that alerted the police. The trial court admitted this

      evidence and played the recording in the courtroom.


[6]   The caller in the recording gives his name as Damascus Cheatham, and

      describes the ongoing events to the operator. However, some details of the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016   Page 3 of 8
      recording indicate that Cheatham did not actually see the attempted entry as it

      was occurring; at one point, when the operator asks for more details, Cheatham

      responds that he does not know and explains that he is inside the bedroom with

      his cousin and two little girls. Later on, Cheatham can be heard relaying the

      sequence of events from an unidentified male who was also in the house. At

      trial, Officers Elkins and Zotz testified that they did not speak to a man named

      Damascus Cheatham inside the house after they had arrested Eldridge.


[7]   The jury found Eldridge guilty on both charges. The trial court sentenced

      Eldridge to concurrent terms of 545 days for Count 1, with 365 days suspended

      to probation, and to 365 days for Count 2, with 315 days suspended to

      probation. The trial court also ordered Eldridge to complete alcohol

      evaluations and treatment while on probation. Although the trial court found

      Eldridge indigent as to fines and costs, the sentencing order nevertheless lists a

      user fee of $250 for alcohol and drug programs. Eldridge now appeals.


                                     Discussion and Decision

                                I.      Admission of the 911 Call

[8]   Eldridge’s first argument is that the trial court erred by admitting the 911 call

      into evidence. Eldridge contends that the call is hearsay evidence that does not

      fit into an exception to the hearsay rule. He also argues in the alternative that

      the 911 call was not authenticated and should have been excluded for that

      reason.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016   Page 4 of 8
[9]    A trial court errs by admitting evidence if its decision flies against the logic and

       effect of the facts and circumstances before it, or if a misinterpretation of law

       has occurred. E.g., Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012).

       Hearsay is an out-of-court statement offered to prove the truth of the matter

       asserted, and it is inadmissible unless it falls under an exception. Ind. R. Evid.

       801(c). The exclusion of hearsay is meant to prevent the introduction of

       unreliable evidence that cannot be tested through cross-examination. Truax v.

       State, 856 N.E.2d 116, 124 (Ind. Ct. App. 2006).


[10]   A statement that qualifies as an excited utterance is admissible as an exception

       to the hearsay rule. Indiana Evidence Rule 803(2) defines an excited utterance

       as a “statement relating to a startling event or condition, made while the

       declarant was under the stress of excitement that it caused.” In this regard, we

       turn to Teague, where this Court held that the statements of a 911 caller who did

       not have personal knowledge of the underlying incident could be admissible if

       the caller was merely repeating the statements of a victim to the 911 operator.

       978 N.E.2d at 1188. In other words, there is no requirement that a declarant

       have personal knowledge of the underlying event or condition being reported.

       Id. at 1188 (“Here, [the declarant] did not have personal knowledge of the

       underlying incident [that the victim] described, but she did have personal

       knowledge of, and was responding to, the startling event or condition that came

       to her home in the middle of the night in the person of a bloodied [victim]

       screaming for help.”).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016   Page 5 of 8
[11]   We hold that the statements made in Cheatham’s call qualify as an excited

       utterance. The trial court could reasonably believe that the declarant,

       Cheatham, was still under the stress of experiencing an attempted residential

       burglary and that he was, therefore, unlikely to make a deliberate falsification to

       the 911 operator. And just as the declarant in Teague relayed messages between

       the 911 operator and the victim, Cheatham relayed messages between the

       unidentified male and the operator in this case. Furthermore, the temporal

       proximity in this instance between the call and the officers’ arrival at the scene

       increases the likelihood that Cheatham was still in an excited condition of

       experiencing an entry into his house, even if he did not witness it firsthand.

       This 911 call bears “sufficient indicia of reliability, the hallmark of all hearsay

       exceptions.” Id. We therefore affirm the trial court’s decision to admit the 911

       call into evidence under the excited utterance exception to the hearsay rule.3


[12]   Lastly, we address Eldridge’s argument that the 911 call was not properly

       authenticated. Because Eldridge did not base any of his objections at trial on

       the ground of improper authentication, he must demonstrate that there was

       fundamental error. Purifoy v. State, 821 N.E.2d, 409, 412 (Ind. Ct. App. 2005).

       Fundamental error “applies only when the error constitutes a blatant violation

       of basic principles, the harm or potential for harm is substantial, and the

       resulting error denies the defendant fundamental due process.” Wilson v. State,




       3
        As we find the 911 call admissible as an excited utterance, we need not and will not address Eldridge’s
       argument regarding the present sense impression exception.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016              Page 6 of 8
       931 N.E.2d 914, 919 (Ind. Ct. App. 2010). We note that, even if the trial

       court’s admission of the 911 call into evidence was error, it was harmless. An

       error is harmless if there is “substantial independent evidence of guilt satisfying

       the reviewing court there is no substantial likelihood the challenged evidence

       contributed to the conviction.” Teague, 978 N.E.2d at 1189. Officers Elkins

       and Zotz themselves witnessed Eldridge attempting to break into the residence

       at 3050 Central Avenue. The officers got good glimpses of Eldridge’s face as he

       ran away from the house toward the backyard. As the alleged error was

       harmless, it was a far cry from fundamental. Therefore, we decline to reverse

       the trial court based on Eldridge’s authentication argument.


                   II. The Alcohol and Drug Program User Fee

[13]   Eldridge next argues that the trial court should vacate the $250 fine that is listed

       on his sentencing order. We remand this issue to the trial court for clarification.


[14]   In-court pronouncements prevail over subsequent contradictory language. Stott

       v. State, 822 N.E.2d 176, 178 (Ind. Ct. App. 2005). Thus, cases in which in-

       court pronouncements vary from the written record should be remanded to the

       trial court for correction.


[15]   At Eldridge’s sentencing hearing, the trial judge found that Eldridge was

       indigent as to fines and costs. Moreover, one section of Eldridge’s sentencing

       order states that Eldridge is indigent for “court costs, fines, and probation fees”;

       however, the Court Costs and Fees section of the order also lists an


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016   Page 7 of 8
       “Alcohol/Drug Services Prgrm User Fee” in the amount of $250. Given this

       discrepancy, we remand this issue back to the trial court to clarify its order.


[16]   The judgment of the trial court is affirmed and remanded.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2260 | June 29, 2016   Page 8 of 8
