MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                       May 16 2017, 11:02 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jill A. Gonzalez                                        Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana
                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larell P. Isom,                                         May 16, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A02-1611-CR-2642
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas A.
Appellee-Plaintiff.                                     Cannon, Jr., Judge
                                                        Trial Court Cause No.
                                                        18C05-1606-F6-390



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017       Page 1 of 8
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Larell P. Isom (Isom), appeals his conviction for battery

      with moderate bodily injury, a Level 6 felony, Ind. Code § 35-42-2-1(b)(1).


[2]   We affirm.


                                                   ISSUE
[3]   Isom presents us with one issue on appeal, which we restate as: Whether

      fundamental error occurred when the trial court admitted the victim’s

      statement.


                      FACTS AND PROCEDURAL HISTORY
[4]   Around 6:30 a.m. on June 20, 2016, a 911 call was placed from 2545 West

      White River Boulevard, Apartment #3 in Muncie, Indiana. The call ended

      when the caller hung up. Despite a call back by dispatch, no one answered.

      Muncie Police Officers Michael Edwards (Officer Edwards) and Chase Winkle

      (Officer Winkle) were sent by dispatch to check on the caller. When the officers

      approached the apartment, they found the apartment door open due to a

      “visibly broken” latch. (Transcript p. 105). Officer Winkle knocked on the

      open door. Receiving no response, Officer Edwards pushed the door open.

      “The minute [he] pushed it open, a female came running out[.]” (Tr. p. 105).

      The female was later identified as Isom’s wife, Heather Isom (Heather).

      Heather was naked and she had visible marks on her face. Her right eye “had

      blood coming down.” (Tr. p. 105). There were red marks on her shoulders.

      Visibly upset, Heather pointed back into the room “and she’s advising that ‘he’s
      Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017   Page 2 of 8
      doing it again.’” (Tr. p. 105). Officer Winkle went inside the apartment,

      followed by Officer Edwards and Heather. Inside, they found Isom. Heather is

      “addressing [] [Isom] as she’s pointing to him as [Officer Winkle is] grabbing

      him and putting him in handcuffs.” (Tr. p. 107). Because Heather and Isom

      were yelling back and forth, Officer Edwards escorted Heather to the bedroom

      to get dressed. Heather informed him that “[s]he couldn’t keep him away and

      that he’s been beating her.” (Tr. p. 112). Isom “kept yelling[,] saying that she’s

      lying, she’s not telling the truth, she’s lying and that she’s not supposed to be

      there, that he hadn’t touched her.” (Tr. p. 112).


[5]   On June 23, 2016, the State filed an Information charging Isom with Level 6

      felony battery. During the motion in limine hearing on August 30, 2016, Isom

      argued that Heather’s initial statement—“he’s doing it again”—was

      inadmissible under Indiana Evidence Rule 404(b). (Tr. p. 105). Upon hearing

      arguments, the trial court concluded:

              That is admissible, not only under 803 as an excited utterance of
              the victim, but it is also admissible under 404, exception to
              404(b). I think they, the case law has that under motive, but it’s
              really admissible to show the relationship between the defendant
              and the victim. Numerous cases have held that where
              relationship between parties is characterized by frequent
              conflict[,] [e]vidence of the defendant’s prior assaults and
              confrontation with the victim may be admitted to show the
              relationship between the parties and the motive for committing
              the crime.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017   Page 3 of 8
      (Tr. p. 35). During this hearing, Isom, unsolicited, informed the trial court that

      Heather would not be attending the trial as there was a warrant out for her

      arrest.


[6]   On September 1, 2016, the trial court conducted a jury trial. Heather did not

      appear and her statement to Officer Edwards was admitted without Isom

      objecting. At the close of the evidence, the jury returned a guilty verdict. On

      October 24, 2016, during the sentencing hearing, the trial court imposed a two-

      year executed sentence with direct commitment to home detention through

      Delaware County Community Corrections.


[7]   Isom now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[8]   Isom contends that the trial court abused its discretion by admitting Heather’s

      statement in violation of the Confrontation Clause of the Sixth Amendment to

      the United States Constitution.


[9]   During the hearing on Isom’s motion in limine, Isom challenged the

      admissibility of Heather’s statement under Indiana Evidence Rule 404(b). The

      trial court concluded that the statement “he’s doing it again” was admissible

      under both the excited utterance exception to the hearsay rule and Evidence

      Rule 404(b). (Tr. p. 105). At the jury trial, Heather did not appear and Officer

      Edwards reiterated Heather’s statement to the jury without objection.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017   Page 4 of 8
[10]   First, we note that a motion in limine, without a contemporaneous objection at

       trial does not preserve an error for appeal. See Hill v. State, 51 N.E.3d 446, 451

       (Ind. Ct. App. 2016). Second, Isom based his pre-trial objection to Heather’s

       statement on Ind. Evid. R. 404(b). On appeal, he now challenges the admission

       of the statement under the Confrontation Clause. 1 “It is well-settled in Indiana

       that a defendant may not argue one ground for objection at trial and then raise

       new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000).


[11]   A failure in objecting at trial constitutes waiver of review unless an error is so

       fundamental that it denied the accused a fair trial. Absher v. State, 866 N.E.2d

       350, 355 (Ind. Ct. App. 2007). Our supreme court made the doctrine of

       fundamental error only available in egregious circumstances. Id. The mere fact

       that error occurred and that it was prejudicial will not satisfy the fundamental

       error rule. Id. Likewise, it is not enough, in order to invoke this doctrine, to

       urge that a constitutional right is implicated. Id. To qualify as a fundamental

       error, “an error must be so prejudicial to the rights of the defendant as to make

       a fair trial impossible” and must “constitute a blatant violation of basic

       principles, the harm or potential for harm must be substantial, and the resulting

       error must deny the defendant fundamental due process. Benson v. State, 762

       N.E.2d 748, 755 (Ind. 2002) (internal quotations and citations omitted).




       1
        At no point during these proceedings—either before the trial court or on appeal—did Isom challenge the
       admission of the statement under the excited utterance exception to the hearsay rule.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017            Page 5 of 8
[12]   Isom contends the trial court violated his federal constitutional right of

       confrontation because Heather’s statement was admitted while she was

       unavailable for cross-examination. The Confrontation Clause of the Sixth

       Amendment to the United States Constitution, which is made applicable to the

       States by the Fourteenth Amendment, provides in relevant part: “In all

       criminal prosecutions, the accused shall enjoy the right . . . to be confronted

       with the witnesses against him.” U.S. CONST. AMEND. VI. The United States

       Supreme Court has determined that a statement violated the Confrontation

       Clause if, among other things, it is “testimonial” in nature. Crawford v.

       Washington, 541 U.S. 36, 68-69, 124 S.Ct.1354, 158 L.Ed.2d 177 (2004). To

       determine whether a statement is testimonial, we must decide whether it has “a

       primary purpose of creating an out-of-court substitute for trial testimony.”

       Michigan v. Bryant, 562 U.S. 344, 357, 131 S.Ct.1143, 1155, 179 L.Ed.2d 93

       (2011). “Statements are nontestimonial when made in the course of police

       interrogation under circumstances objectively indicating that the primary

       purpose of the interrogation is to enable police assistance to meet an ongoing

       emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct.2266, 165

       L.Ed.2d 224 (2006). Conversely, a declarant’s statements “are testimonial

       when the circumstances objectively indicate that there is no such ongoing

       emergency, and that the primary purpose of the interrogation is to establish or

       prove past events potentially relevant to later criminal prosecution.” Id.

       (footnote omitted).




       Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017   Page 6 of 8
[13]   In order to determine whether a statement is testimonial versus non-testimonial,

       we must consider: (1) whether the declarant is describing present or past

       events; (2) whether there is an ongoing emergency at the time that the

       statements are made; (3) whether the nature of the questions asked and the

       responses given were made in an effort to resolve a present emergency; and (4)

       the degree of formality during the course of the police questioning. Id. at 827,

       126 S.Ct. 2266. Simply put, statements generally elicited from individuals

       seeking help during an ongoing emergency are not classified as testimonial. See

       id. at 828, 126 S.Ct. 2266.


[14]   Application of Crawford and Davis indicate that Isom’s claim is without merit.

       The facts here objectively demonstrate that Heather’s statement was uttered

       during an ongoing emergency. The officers encountered Heather on the scene,

       rather than at the police department. Sent to investigate a 911 call, they were

       faced with an open and broken apartment door. As soon as Officer Winkle

       pushed the door open, they noticed Heather who was actively bleeding and

       naked, running towards them. Without being asked any questions, Heather

       told the officers: “[H]e’s doing it again.” (Tr. p. 105). At that point, Heather

       had not been identified, nor had the officers located Isom, or received any

       details about the situation. Rather, Heather’s statement was spontaneous upon

       seeing the officers. There is no evidence that an interrogation even began

       before Heather made the challenged statement.


[15]   In sum, the officers responded to an interrupted 911 call. They did not know if

       a crime was occurring, the circumstances thereof, or the parties involved. At

       Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017   Page 7 of 8
       the time the statement was made, Heather’s demeanor and appearance clearly

       indicated she was “seeking help during an ongoing emergency.” Davis, 547

       U.S. at 828, 126 S.Ct. 2266. Thus, the Confrontation Clause did not bar the

       admission of Heather’s statement at trial. Accordingly, the trial court made no

       error, let alone a fundamental one, by admitting Heather’s statement. 2


                                               CONCLUSION
[16]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       when it admitted the victim’s statement.


[17]   Affirmed.


[18]   Najam, J. and Bradford, J. concur




       2
         In his appellate brief, Isom raised two issues: (1) whether the admission of Heather’s statement was barred
       by the Confrontation Clause and (2) whether Heather “was unavailable according to law.” (Appellant’s Br.
       p. 4). In the discussion section of his Brief, Isom notified this court that he would “make his argument for
       both issues together[.]” (Appellant’s Br. p. 8). However, by analyzing both issues together, Isom did not
       make a cogent argument with respect to his unavailability claim. As our supreme court noted in Garner v.
       State, 777 N.E.2d 721, 724 (Ind. 2002), “[a] witness is unavailable for purposes of the Confrontation Clause
       requirement only if the prosecution has made a good faith effort to obtain the witness’s presence at trial.”
       Because Isom did not develop an argument with respect to the good faith requirement of the unavailability
       prong, he waived this issue for our review. See Ind. Appellate Rule 46(A)(8).

       Court of Appeals of Indiana | Memorandum Decision 18A02-1611-CR-2642 | May 16, 2017                Page 8 of 8
