 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.
                                                             Jan 06 2015, 8:44 am




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN                                      GREGORY F. ZOELLER
Marion County Public Defender                      Attorney General of Indiana
Indianapolis, Indiana
                                                   JESSE R. DRUM
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

JENNIFER SUITS,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )       No. 49A02-1404-CR-219
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                   APPEAL FROM THE MARION SUPERIOR COURT 16
                          The Honorable Helen Marchal, Judge.
                           Cause No. 49G16-1402-CM-6505


                                         January 6, 2015
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Jennifer Suits (“Suits”) was convicted in Marion Superior Court of Class B

misdemeanor battery. Suits appeals and argues that the trial court abused its discretion

when it admitted evidence obtained during the warrantless entry of her home.

       We affirm.

                              Facts and Procedural History

       On or about February 9, 2014, at approximately 3:00 a.m., Indianapolis

Metropolitan Police Officer John King (“Officer King”) and a fellow officer were

dispatched to 4251 Cossell Road, Unit 1 concerning a report of a “disturbance between a

male and a female.” Tr. p. 6. The apartment at that address is one of multiple units

located in a house. When the officers arrived, they initially went to the wrong address.

However, Officer King was “flagged down” by an older man, later identified as Roy

Campbell (“Roy”). Tr. p. 7.

      Roy, who appeared to be upset and angry, directed the officers to Unit 1 and stated,

“[N]o[,] they are over here.” Tr. p. 9. Roy also said, “[S]he is up there beating on my

son.” Tr. p. 12. Officer King asked Roy where Suits and his son were located and Roy

replied, “[T]hey are upstairs.” Id. Roy then let the officers into the apartment.

       Upon entering the apartment, Officer King could hear a female upstairs

“screaming very loudly.” Tr. p. 16. The officer began walking up the stairs. Officer

King looked up and saw Suits punching her fiancé, Robert Campbell. As Suits punched

Robert’s torso, Robert had his arms up defensively and was attempting to back away

from Suits. Tr. p. 18. Suits was belligerent and appeared to be intoxicated.



                                             2
       Suits was arrested and charged with Class A misdemeanor domestic battery and

Class A misdemeanor battery. A bench trial was held on March 4, 2014. At trial, Suits

objected to Officer King’s testimony concerning what he observed after entering her

apartment and claimed that the officer’s warrantless entry into her apartment violated the

Fourth Amendment and Article, 1, Section 11 of the Indiana Constitution. The trial court

overruled Suits’s objection.

       The trial court found Suits guilty of battery, as a Class B misdemeanor, and

dismissed the domestic battery charge. Suits was ordered to serve 180 days in the Marion

County Jail, with 176 days suspended to probation. She was also ordered to complete

twelve weeks of anger management counseling. Suits now appeals. Additional facts will

be provided as necessary.

                                   Standard of Review

       Suits argues that the trial court abused its discretion when it admitted Officer

King’s testimony concerning Roy Campbell’s statements and evidence obtained during

the officer’s warrantless search of her apartment. A trial court’s decision to admit or

exclude evidence is reviewed for an abuse of discretion. J.K. v. State, 8 N.E.3d 222, 228

(Ind. Ct. App. 2014). A trial court abuses its discretion when its decision is clearly

against the logic and effect of the facts and circumstances or when the trial court has

misinterpreted the law. Id.

                               I. Roy Campbell’s Statements

       First, Suits argues that the trial court abused its discretion when it admitted Officer

King’s testimony concerning Roy Campbell’s statements.             Suits argues that Roy’s

                                              3
statements are inadmissible hearsay. Hearsay is a statement that “(1) is not made by the

declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove

the truth of the matter asserted.” Ind. Evidence Rule 801.             Hearsay is generally

inadmissible. Ind. Evidence Rule 802.

       Roy directed Officer King to the correct apartment and stated to the officer, “[S]he

is up there beating on my son.” Tr. p. 12. It is evident from the record that the State

desired to elicit this testimony from Officer King, at least in part, to explain why the

officer entered Suits’s apartment. “An out-of-court statement introduced to explain why

a particular course of action was taken during a criminal investigation is not hearsay

because it is not offered to prove the truth of the matter asserted.” Goodson v. State, 747

N.E.2d 1181, 1185 (Ind. Ct. App. 2001), trans. denied. However, out-of-court statements

presented under this rationale are viewed with skepticism. See Kindred v. State, 973

N.E.2d 1245, 1252–55 (Ind. Ct. App. 2012), trans. denied. Evidence offered solely for

this purpose is often irrelevant and tends to create the possibility of unfair prejudice to the

defendant. Id.

       Roy’s statement to Officer King was relevant to the issue of whether the officer’s

warrantless entry into Suits’s apartment was constitutionally proper. The statement was

not offered to prove that Suits battered Robert Campbell, and the trial court did not rely

on that testimony to find Suits guilty of battery. Tr. pp. 36-37. Even if the trial court had

not specifically recounted the evidence it considered to determine Suits’s guilt, we may

generally presume “that in a proceeding tried to the bench a court renders its decisions

solely on the basis of relevant and probative evidence.” Konopasek v. State, 946 N.E.2d

                                              4
23, 28 (Ind. 2011). For all of these reasons, we conclude that Suits has not established

that the trial court committed reversible error when it admitted Officer King’s testimony

concerning Roy Campbell’s statement.1

                                      II. Warrantless Search

        Suits also argues that the police officer’s warrantless entry into her apartment

violated both the Fourth Amendment and Article 1, Section 11 of the Indiana

Constitution. The constitutionality of a search is a question of law, which we review de

novo. Kelly v. State, 997 N.E.2d 1045, 1050 (Ind. 2013).

        A. Fourth Amendment

        The fundamental purpose of the Fourth Amendment to the United States

Constitution is to protect the legitimate expectations of privacy that citizens possess in

their persons, their homes, and their belongings. Taylor v. State, 842 N.E.2d 327, 330

(Ind. 2006) (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). Therefore, subject to

certain reasonable exceptions, “searches and seizures inside a home without a warrant are

presumptively unreasonable.” Kentucky v. King, 131 S.Ct. 1849, 1856 (2011) (citation

omitted). Whether a particular warrantless search violates the guarantees of the Fourth




1
  At trial, the State argued, and the trial court agreed, that Roy Campbell’s statement fell under the
hearsay exception for excited utterances. For a statement to be admitted under Indiana Rule of Evidence
803(2), the exception for an excited utterance, three elements must be shown: (1) a startling event, (2) a
statement made by a declarant while under the stress of excitement caused by the event, and (3) that the
statement relates to the event. Fowler v. State, 829 N.E.2d 459, 463 (Ind. 2005). “The ultimate issue is
whether the statement is deemed reliable because of its spontaneity and lack of thoughtful reflection and
deliberation.” Id. Roy Campbell knew that Suits hit his son, but from the record before us, we cannot
conclude whether he actually witnessed the event and was therefore “under the stress of excitement
caused by the event.”

                                                    5
Amendment depends on the facts and circumstances of each case. Rush v. State, 881

N.E.2d 46, 50 (Ind. Ct. App. 2008).

       The existence of exigent circumstances is a recognized exception to the warrant

requirement. Id.; see also Holder v. State, 847 .E.2d 930, 936 (Ind. 2006) (stating that a

warrant is unnecessary when the “exigencies of the situation make the needs of law

enforcement so compelling that the warrantless search is objectively reasonable under the

Fourth Amendment”) (citation omitted).

       Police officers may enter a residence without a warrant if the situation suggests a

reasonable belief that someone inside the residence is in need of aid. Smock v. State, 766

N.E.2d 401, 404 (Ind. Ct. App. 2002) (citation omitted). The State bears the burden of

establishing that the circumstances as they appear at the moment of entry would lead a

reasonable, experienced law enforcement officer to believe that someone inside the house

or apartment required immediate assistance. Cudworth v. State, 818 N.E.2d 133, 137

(Ind. Ct. App. 2004), trans. denied; see also Mincey v. Arizona, 437 U.S. 385, 392 (1978)

(stating that police may enter a residence without a warrant “when they reasonably

believe that a person within is in need of immediate aid”). Moreover, “while exigent

circumstances justify dispensing with a search warrant, they do not eliminate the need for

probable cause.” Id. The probable cause element may be satisfied where the officers

reasonably believe that a person is in danger. Id.

       Responding to report of a “disturbance between a male and a female,” Officer

King was “flagged down” by Roy Campbell, who told the officer, “[S]he is up there

beating on my son.” Tr. pp. 6-7, 12. Roy let Officer King into the apartment, and the

                                             6
officer heard a female, later identified as Suits, upstairs yelling loudly.                        From this

information, it was reasonable for Officer King to believe both that Roy had authority to

invite the officer into the apartment2 and that a person inside the apartment was in need of

assistance. Because the State established the existence of an exigent circumstance, we

conclude that the warrantless entry and search of Suits’s apartment did not violate her

Fourth Amendment rights.

        B. Article 1, Section 11

        Suits also contends that the warrantless search violated Article 1, Section 11 of the

Indiana Constitution. The purpose of Article 1, Section 11 of the Indiana Constitution is

“to protect from unreasonable police activity, those areas of life that Hoosiers regard as

private.” Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995). Our state provision tracks the

language of the Fourth Amendment to the United States Constitution verbatim.

Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005). However, the constitutionality of a

search turns on an evaluation of police conduct under the totality of the circumstances. Id.

        The reasonableness of a search is determined by balancing “1) the degree of

concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion

the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the

extent of law enforcement needs.” Id. at 361. The burden is on the State to show that



2
  Under the doctrine of apparent authority, a search is lawful if the facts available to the officer at the time
would “‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over
the premises.” Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-
22 (1968)). Because we conclude that exigent circumstance existed, we need not specifically apply the
doctrine of apparent authority to the search at issue in this appeal.

                                                       7
under the totality of the circumstances, the police intrusion was reasonable. State v.

Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002).

       Although the degree of intrusion was high, i.e. warrantless entry into a private

residence, the remaining considerations lead to the conclusion that Officer King’s entry

into the apartment was reasonable. The officer was dispatched to the apartment and

“flagged down” by Roy Campbell. Roy told Officer King that Suits was beating up his

son. From this the officer reasonably believed that the victim, later identified as Robert

Campbell, was in need of assistance and police intervention was necessary. Moreover,

Roy let Officer King into the apartment, and given Roy’s relationship to the victim, it

was not unreasonable for the officer to believe that Roy had authority to invite the Officer

King into the residence. For all of these reasons, we conclude that Officer King’s

warrantless search of Suits’s apartment was reasonable and did not violate Article 1,

Section 11.

                                       Conclusion

       Suits’s rights under the Fourth Amendment and Article 1, Section 11 were not

violated by Officer King’s warrantless entry and subsequent search of Suits’s apartment.

Therefore, the trial court did not abuse its discretion when it admitted Officer King’s

testimony that when he entered the apartment he saw Suits punching the victim.

       Affirmed.

NAJAM, J., and BRADFORD, J., concur.




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