MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 22 2019, 6:07 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jerry T. Drook                                          Curtis T. Hill, Jr.
Grant County Public Defender                            Attorney General of Indiana
Marion, Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Scott W. Morris,                                        May 22, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2645
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        27D01-1401-FB-1



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019                       Page 1 of 6
                                          Statement of the Case
[1]   Scott Morris appeals his conviction of criminal deviate conduct, a Class B
                 1
      felony. We affirm.


                                                    Issue
[2]   Morris presents one issue for our review, which we restate as: whether the trial

      court erred by admitting certain testimony under the excited utterance

      exception to the hearsay rule.


                                   Facts and Procedural History
[3]   In November 2013, Morris was employed at the Marion VA Medical Center as

      a nursing assistant. One of the patients under his care was an adult male whose

      health conditions had rendered him mentally incompetent. One evening while

      Morris was at work, Nurse Brumley entered the patient’s room and saw Morris

      performing oral sex on the patient. Nurse Brumley told another nurse, Nurse

      Dillard, what she had seen, reported the incident to the head nurse on duty, and

      made a written report of the incident. Based upon this event, Morris was

      charged with criminal deviate conduct.


[4]   Morris’ first trial resulted in a mistrial due to a hung jury. At his second trial,

      over Morris’ objection, Nurse Dillard was allowed to testify to what Nurse

      Brumley told her she had seen. Morris was found guilty as charged, and the



      1
          Ind. Code § 35-42-4-2 (1998).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019   Page 2 of 6
      court sentenced him to sixteen years with two years suspended to supervised

      probation.


                                   Discussion and Decision
[5]   Morris contends the trial court erred by admitting Nurse Dillard’s testimony

      under the excited utterance exception because Nurse Brumley made the

      statements to Nurse Dillard after she had calmed down and was no longer

      under the stress and excitement of the event.


[6]   The trial court’s ruling on the admission or exclusion of evidence is reviewed

      for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App.

      2016), trans. denied. An abuse of discretion occurs when a decision is clearly

      against the logic and effect of the facts and circumstances before the court. Paul

      v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012). Error in the admission of

      evidence will prevail on appeal only if it affects the substantial rights of a party.

      Carter v. State, 31 N.E.3d 17, 28 (Ind. Ct. App. 2015), trans. denied. To

      determine whether a party’s substantial rights have been affected, we consider

      the probable impact of the evidence on the fact finder. Remy v. State, 17 N.E.3d

      396, 401 (Ind. Ct. App. 2014), trans. denied. The improper admission of

      evidence is harmless error “‘if the conviction is supported by substantial

      independent evidence of guilt satisfying the reviewing court there is no

      substantial likelihood the challenged evidence contributed to the conviction.’”

      Id. (quoting Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012)).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019   Page 3 of 6
[7]   The challenged testimony is hearsay under Indiana Evidence Rule 801.

      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. Evid. R. 801,

      802. One exception to the rule against hearsay is an excited utterance, which is

      defined as “[a] statement relating to a startling event or condition, made while

      the declarant was under the stress of excitement that it caused.” Evid. R.

      803(2).


[8]   To satisfy the excited utterance exception, three elements must be present: (1)

      the occurrence of a startling event or condition; (2) the declarant has 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. Young v. State, 980

      N.E.2d 412, 421 (Ind. Ct. App. 2012). This test is not to be applied in a

      perfunctory manner; rather, admissibility of evidence under this hearsay

      exception turns on whether the statement was inherently reliable because the

      witness was under the stress of the event and unlikely to make deliberate

      falsifications. Id. The crux of the inquiry is whether the declarant was

      incapable of thoughtful reflection. Id. “‘Although the amount of time that has

      passed is not dispositive, a statement that is made long after the startling event

      is usually less likely to be an excited utterance.’” Sandefur v. State, 945 N.E.2d

      785, 788 (Ind. Ct. App. 2011) (quoting Boatner v. State, 934 N.E.2d 184, 186

      (Ind. Ct. App. 2010)).


[9]   In this case, neither party contests whether there was a startling event or

      whether the statement related to the event. The issue is whether Nurse

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019   Page 4 of 6
       Brumley’s statements to Nurse Dillard were made while Nurse Brumley was

       under the stress or excitement caused by the event. Morris asserts a fifteen-

       minute period between the incident and Nurse Brumley’s statements to Nurse

       Dillard gave Nurse Brumley time to “calm down and reflect,” thereby making

       her statements to Nurse Dillard unreliable. Appellant’s Br. p. 17.


[10]   A close reading of the record indicates that it was less than fifteen minutes

       between the startling event witnessed by Nurse Brumley and her relating the

       details of the event to Nurse Dillard. Nevertheless, even assuming it was fifteen

       minutes as suggested by Morris, we note that the amount of time that has

       passed between the event and the statement is not dispositive. See Sandefur, 945

       N.E.2d at 788.


[11]   Nurse Brumley testified that when she witnessed Morris’ act, she experienced

       “shock” and “fear.” Tr. Vol. 1, p. 50. She testified that she was so shaken that

       she exited the room and “took off runnin’ down the hall.” Id. at 52. She said

       the event “freaked [her] out” and that she “was in a panic” and “was scared.”

       Id. at 50, 55. A few minutes later, when Nurse Brumley relayed to Nurse

       Dillard what she had seen, “she was trembling, and she was white as a sheet.”

       Tr. Vol. 2, p. 30. Nurse Dillard further testified regarding Nurse Brumley’s

       demeanor: “You know when someone is scared and their eyes are wide

       opened, I could see the whites of her eyes, and her [sic], she was pale.” Id. In

       determining whether a statement is an excited utterance, courts of this State

       have considered the declarant’s crying, injury, or exhibition of other physical or

       psychological conditions that indicate stress. See Young, 980 N.E.2d at 421

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019   Page 5 of 6
       (citing Fowler v. State, 829 N.E.2d 459, 463-64 (Ind. 2005)). The evidence in this

       case makes it clear that Nurse Brumley had just witnessed a very disturbing

       scene, and, while still in shock, she told Nurse Dillard exactly what she had

       seen. The trial court did not abuse its discretion when it admitted Nurse

       Dillard’s testimony of Nurse Brumley’s statements.


[12]   Moreover, even assuming it was error for the court to admit Nurse Dillard’s

       testimony, the error was harmless. The admission of hearsay is not necessarily

       grounds for reversal, especially where it is merely cumulative of other evidence

       admitted. Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008), trans.

       denied. Prior to Nurse Dillard testifying, Nurse Brumley testified to exactly

       what she saw Morris doing. Consequently, Nurse Dillard’s testimony was

       cumulative evidence, and any error stemming therefrom is harmless.


                                                Conclusion
[13]   For the reasons stated, we conclude the trial court did not abuse its discretion

       by admitting Nurse Dillard’s testimony of Nurse Brumley’s statements under

       the excited utterance exception to hearsay.


[14]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2645 | May 22, 2019   Page 6 of 6
