                                                                               FILED
                                                                           Apr 30 2019, 8:53 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                         Curtis T. Hill, Jr.
      Anderson, Indiana                                           Attorney General of Indiana
                                                                  Ellen H. Meilaender
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Brian Ramsey,                                               April 30, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-CR-1276
              v.                                                  Appeal from the Floyd Superior
                                                                  Court
      State of Indiana,                                           The Honorable Susan D. Orth,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  22D01-1711-F5-2392



      Tavitas, Judge.


                                               Case Summary
[1]   Brian Ramsey appeals his convictions for criminal confinement, a Level 5

      felony, and intimidation, a Level 6 felony. We affirm.

      Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                           Page 1 of 21
                                                       Issues
[2]   Ramsey raises two issues on appeal, which we restate as follows:


                 I.      Whether the trial court abused its discretion in admitting
                         certain evidence.


                 II.     Whether sufficient evidence supports Ramsey’s conviction
                         for intimidation.


                                                       Facts
[3]   During the relevant period, Rhonda Crone (“Rhonda”) and her husband, Bruce

      Crone 1 (“Bruce”), separated, and Rhonda began dating Ramsey. From

      November 4 to November 11, 2017, Ramsey and Rhonda were live-in guests of

      Rhonda’s niece, Cassandra Butcher (a.k.a. Cassandra Crone), in Cassandra’s

      Floyd County apartment. During the visit, Cassandra accused Rhonda of

      having an affair with Cassandra’s husband. Ramsey became angry and beat

      Rhonda viciously over the ensuing three or four days.


[4]   On November 10, 2017, a neighbor overheard the commotion and called the

      police. When responding police officers knocked at the door, Ramsey kept

      Rhonda and Cassandra in a bathroom and would not allow them to answer the

      door. At one point, Ramsey left the apartment; however, before he left,




      1
          Bruce Crone is Ramsey’s cousin.


      Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019              Page 2 of 21
      Ramsey told Rhonda and Cassandra that he would kill their children if they left

      the apartment.


[5]   On November 11, 2017, Rhonda’s brother, James Clemons, became concerned

      because he had not heard from Rhonda, could not reach her on her cell phone,

      and had not seen any online activity from her in nearly two weeks. Clemons

      looked for Rhonda at her son’s house and then contacted Bruce. Bruce told

      Clemons that Rhonda was visiting Cassandra. Clemons and Bruce went to

      Cassandra’s apartment together. When they arrived, Ramsey was not there.

      Rhonda and Cassandra were “terrified.” Tr. Vol. I p. 118. Rhonda was so

      badly battered that Clemons did not recognize her and “thought all of her bones

      in her face w[ere] broke[n].” Id. at 114. Rhonda told Clemons that Ramsey

      had beaten her. Rhonda was afraid to be there when Ramsey returned.

      Clemons called the police.


[6]   Officer Tim Wells of the New Albany Police Department was among the

      officers who responded to the scene. Rhonda and Cassandra reported that

      Ramsey held them against their will for four days and had threatened to harm

      their children if Rhonda and Cassandra left the apartment. Officer Wells

      observed that Rhonda exhibited “behavior . . . of someone that had, to me, had

      been through a traumatic ordeal and she was very upset and almost to the point

      of [being] inconsolable”; Rhonda was “visibly shaken [and] nervous” and had

      “[e]xtremely severe” injuries, including black eyes, facial bruises and fractures,




      Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019        Page 3 of 21
      and significant bruising all over her body. 2 Id. at pp. 143, 158. Rhonda was

      transported to Floyd Memorial Hospital, where she remained admitted for

      three days; she was then transferred to an Indianapolis hospital for an

      additional three or four days. Cassandra appeared uninjured.


[7]   Officer Wells interviewed Rhonda at the hospital. Rhonda again reported that

      Ramsey accused her of infidelity; beat her over a three-day span; destroyed her

      phone when she tried to call the police; stopped her from speaking with

      responding police on November 10, 2017; prevented both Rhonda and

      Cassandra from leaving Cassandra’s apartment; and threatened to harm

      Rhonda’s and Cassandra’s children if they left the apartment.


[8]   Officer Wells later returned to Cassandra’s apartment and found Ramsey there.

      Ramsey maintained that Rhonda was lying; he denied hitting or confining

      Rhonda or Cassandra, breaking Rhonda’s phone, and preventing Rhonda and

      Cassandra from speaking to the police. He also denied threatening Rhonda’s

      and Cassandra’s children and implied that Rhonda’s injuries were self-inflicted.

      Ramsey conceded that he might have injured Rhonda in his efforts to protect

      her from self-harming and implicated Cassandra as the suspect.


[9]   On November 13, 2017, the State charged Ramsey with various offenses

      stemming from the attack on Rhonda. The State subsequently amended the




      2
        In all, Rhonda suffered “multiple facial fracture[s], extensive rib fracture[s] on [her] sides, [a] spine fracture,
      . . . extensive resolving ecchymosis around her eyes[,]” and a fractured scapula. Exhibits Vol. I p. 6.

      Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                                      Page 4 of 21
       information to reflect the following charges: Count I, criminal confinement, a

       Level 5 felony; Count II, domestic battery, a Level 6 felony; 3 Count III,

       intimidation, a Level 6 felony; Count IV, interference with the reporting of a

       crime, a Class A misdemeanor; and Count V, a habitual offender

       enhancement. 4


[10]   At the final pretrial conference in January 2018, the State reported that, in a

       departure from her initial cooperative behavior, Cassandra was now “acting

       differently, not being responsive to the [State’s] phone calls, changed [her]

       number and didn’t, uh, give [ ] an update and ha[d] not been responsive to visits

       to her address by [police] investigators.” Id. at 18. Also, the State advised the

       trial court that multiple agencies had tried and failed to find Cassandra. Days

       before trial, Rhonda recanted her previous statements implicating Ramsey. 5


[11]   The trial court conducted Ramsey’s jury trial on February 19 and 20, 2018.

       The State’s witnesses testified to the foregoing facts. When the State moved to

       admit Rhonda’s medical records, defense counsel objected. 6 The State argued




       3
        The State charged Ramsey with domestic battery as a Level 6 felony because he had a prior domestic
       battery conviction.
       4
        Ramsey has the following prior convictions: failure to return to lawful detention, a Class D felony (1994);
       battery, a Class D felony (2000, 2001); and robbery, a Class C felony (2008).
       5
         Rhonda appeared for a deposition on February 16, 2018. In her deposition testimony, Rhonda denied that:
       (1) Ramsey prevented her from leaving Cassandra’s apartment; (2) Ramsey threatened her; or (3) she or
       Cassandra tried to call 911.

       6
         Although defense counsel did not object as explicitly as we would prefer, we find that he adequately lodged
       his objection when he questioned how some of the statements were reasonably pertinent to rendering medical
       aid to Rhonda such that the statements could properly be admitted pursuant to hearsay exceptions.

       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                               Page 5 of 21
that Rhonda’s statements that Ramsey had threatened to harm her children

were allowable under the hearsay exception for statements made for medical

diagnosis or treatment. Counsel for the State argued:


        It’s very clear in the rule of 803(4), [ ] a statement made by a
        person seeking medical diagnosis or treatment, and it is made
        reasonably pertinent to medical diagnosis or treatment, and
        describes the medical history, past or present symp-symptoms.
        Right, it is, [ ] they’re attempting to treat her, but that’s the theory
        behind it. If you’re asking a patient what happened to you, we’re
        trying to treat you.


Id. at 131. Defense counsel objected to narrative aspects of the medical records

on the grounds that the narratives contained irrelevant information; the defense

was “unable to cross examine any person who observed that or put that into the

notes into the record”; and because the narratives “read more like a probable

cause affidavit” than guidance to medical service providers. 7 Id. at 127. In

discussing the admissibility of the narratives, defense counsel and the trial court

engaged in the following exchange:


        [Defense counsel]: [ ] I don’t believe she talked about being
        separated. I know that Mr. Clemons said, but not Ms. Crone.
        [S]he did say that she was staying at her niece[’]s. [ ] I don’t see
        her being unemployed and no source of income has any baring
        [sic] or relevance on her injuries or how she had been diagnosed
        or how that’s helpful. [A]nd again, what-what the medical



7
  Defense counsel did not lodge his hearsay objection as explicitly as we would prefer; however, we deem his
remarks to the trial court regarding the medical records to suffice for our purposes here.




Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                              Page 6 of 21
               personnel should be concerned with and for that, for evidentiary
               purposes of substantiating her injury (about three words
               indiscernible)[.]


               THE COURT: Well, I-I agree that how an injury occurred, how
               old an injury is, how length of time it-it occurred over are all
               things that are relevant and I think this all goes--


               [Defense counsel]: I mean . . . .


               THE COURT: --toward that assessment. . . .[S]o let me, [ ]
               overrule your objection to that extent, but what I’m looking at
               right now is in narrative number 4. I’m still struggling with that.


               [Defense counsel]: Right. I believe that’s not relevant.


               [Counsel for the State]: We can redact narrative number 4.[ 8]


       Id. at 131-32.


[12]   The State then introduced Rhonda’s medical records that described Rhonda’s

       “[h]istory of present illness,” as follows:


               47 year old female came was hit by her boy friend three days in a
               row, tuesday, wednesday and thursday. her brother went on to
               check on her and found her bruised up, called 911 and following
               this brought into ER and we were asked to admit the patient for
               further care. patient underwent extensive radiological workup in



       8
        The trial court ordered redaction of CM Narrative 4, pertaining to Ramsey’s alleged threats to Cassandra
       and Rhonda.




       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                             Page 7 of 21
        ER which include ct scan head, spine, chest and x.ray [sic] which
        revealed multiple facial fracture, extensive rib fracture on sides,
        also spine fracture.


Exhibits Vol. I p. 6 (punctuation and capitalizations in original). Another

medical entry provided:


        Patient is a 47[ ]year old white female who was being beaten by
        her boyfriend, and she says held captive in his home. Her
        brother knew something was wrong because she wasn’t
        answering her phone, but he did not know where she was
        staying. He [Clemons] tracked her down and called 911 and she
        was brought to ER . . . . She was found to have multiple facial
        fractures, rib fractures and spine fracture and was admitted for
        further care.


Id. p. 13. An additional medical entry describes Rhonda as a “47-year old

female involved in a domestic violence incident coming in through the

emergency department extremely battered.” Id. at 18. The records also state

the “Assessment/Plan” as involving “[d]omestic violence” and warranting

“[s]ocial worker and [c]ase manager for safe discharge planning.” Id. at 65.

The narrative portions of Rhonda’s medical records aimed at “[d]ischarge

[p]lanning” state:


        [CM Narrative 1]:


        I met with patient at bedside today for interview due to domestic
        violence to assess safe DC [discharge] planning. Patient is
        married but she and her spouse have been separated for a few
        years now. Patient is currently dating her spouse’s cousin, Brian
        Ramsey.

Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019         Page 8 of 21
               [CM Narratives 2 and 3]:


               Patient and Brian have been staying at patient’s spouse’s niece’s
               home. Patient is unemployed and has no source of income.
               Patient reported a few days ago her niece began telling Brian that
               she was having an affair with her spouse. Brian became
               extremely angry and began beating patient for 3 days. I asked
               patient if her niece was present when he was beating her and she
               stated yes, but she has mixed feelings on if she is upset with her
               or not for not going to get help or call for help because [redacted].


               [CM Narratives 4 and 5]:


               [Redacted]. Patient also reported that the niece was coming and
               going from the house the 3 days Brian kept her captive. Patient
               reported her brother was unable to contact her and became
               worried so he went to her spouse’s home, and that is what led to
               the discovery of the patient.


               [CM Narrative 6]:


               [Redacted]. Patient reported she plans to testify against Brian
               this time.


       Exhibits Vol. I p. 119.


[13]   During the State’s case in chief, the State asked Officer Wells what Rhonda

       stated had happened to her. Defense counsel objected on hearsay grounds.

       The trial court overruled the objection. Officer Wells testified that Rhonda

       stated “that she[ ] and [Cassandra] had been held captive in their apartment [ ]




       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019         Page 9 of 21
       for the past three (3) to four (4) days and that during that course of time she had

       [been] beaten severely by [Ramsey].” Tr. Vol. I p. 146.


[14]   Next, Rhonda testified that Ramsey accused her of infidelity and hit her. Id. at

       102-03. Rhonda denied ever calling 911 for help; denied that Ramsey

       prevented her from leaving the apartment; and denied that Ramsey threatened

       or intimidated her to make her stay in the apartment. Rhonda testified that

       Cassandra hit her with a fist and struck her in the face, head, and ribs with a

       heavy flashlight. Rhonda also testified that she had initially blamed Ramsey,

       who was innocent, at Cassandra’s and Clemons’ urging. Rhonda testified

       further that Ramsey intervened to help her when Cassandra attacked her, and

       that she loves and wants to be in a relationship with Ramsey.


[15]   Then, Clemons testified that he “found [Rhonda] battered and she told [him]

       that Brian Ramsey had done it and she was so severely beaten [he] naturally

       called the police.” Id. at 113, 114, 115. Clemons testified that, at the hospital,

       Rhonda expressed fear that Ramsey would “come back and kill [her].” 9 Id. at

       119.


[16]   The jury found Ramsey guilty of Count I, criminal confinement, a Level 5

       felony; Count II, domestic battery, a Class A misdemeanor; Count III,

       intimidation, a Level 6 felony; and Count IV, interference with the reporting of




       9
           Defense counsel did not object to Clemons’ testimony as hearsay.


       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019       Page 10 of 21
       a crime, a Class A misdemeanor. Ramsey subsequently admitted 10 that he was

       a habitual offender. At Ramsey’s sentencing hearing on April 17, 2018, the trial

       court sentenced him as follows: Count I, six years; Count II, one year; Count

       III, two and one-half years; and Count IV, one year. The trial court ordered the

       sentences to be served concurrently, but enhanced the sentences by an

       additional six years because Ramsey was a habitual offender. Ramsey, thus,

       received an aggregate sentence of twelve years; he now appeals.


                                                     Analysis
                                           I.       Admission of Evidence

[17]   A trial court has broad discretion in ruling on the admissibility of evidence, and

       we disturb those rulings only upon an abuse of that discretion. Carr v. State, 106

       N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied. An abuse occurs only

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances. Cole v. State, 997 N.E.2d 1143, 1145 (Ind. Ct. App. 2013).

       There is a strong presumption that the trial court properly exercised its

       discretion. Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002). We will not

       reverse a trial court’s evidentiary ruling if we may sustain it on any ground. See

       Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).




       10
         In exchange for Ramsey’s admission that he was a habitual offender, the State agreed to forgo elevating
       Count II, the domestic battery conviction, to a Level 6 felony.

       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                             Page 11 of 21
[18]   As a panel of this court has previously noted, “[p]olice investigation of

       domestic violence involves a unique set of circumstances: ‘In domestic dispute

       situations, responses to police officers’ initial inquiries may often be, but are not

       always, non-testimonial, because the officers may need to investigate and

       identify the persons involved in order to assess the situation, the threat to their

       safety, and the potential danger to the victim.’” King v. State, 985 N.E.2d 755,

       758 (Ind. Ct. App. 2013). 11


                                      A. Rhonda’s Statements in Medical Records

[19]   Ramsey argues that the trial court abused its discretion in admitting into

       evidence Rhonda’s medical records, in which Rhonda stated that Ramsey

       prevented her from leaving Cassandra’s apartment by threatening to harm

       Rhonda’s children. Specifically, Ramsey argues that narrative portions of the

       medical records admitted into evidence constituted hearsay that did not qualify

       under the medical records exception of Indiana Evidence Rule 803(4).


[20]   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.” Indiana Evid. R. 801(c). Hearsay is not admissible except as

       provided by law or by other court rules. Ind. Evid. R. 802.




       11
         Here, the Confrontation Clause is not implicated because Rhonda testified at trial, and Ramsey had an
       opportunity to cross examine her. See also Michigan v. Bryant, 562 U.S. 344, 362 n.9, 131 S. Ct. 1143, 1157
       n.9 (2011) (holding that statements made for purposes of medical diagnosis and treatment are the sorts of
       non-testimonial statements that do not give rise to Confrontation Clause protection).

       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                               Page 12 of 21
[21]   Indiana Evidence Rule 803(4) provides:


               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:


               ...


               (4) Statement Made for Medical Diagnosis or Treatment. A
               statement that:


                        (A) is made by a person seeking medical diagnosis or
                        treatment;


                        (B) is made for—and is reasonably pertinent to—medical
                        diagnosis or treatment; and


                        (C) describes medical history; past or present symptoms,
                        pain or sensations; their inception; or their general cause.


       This exception is “based upon the belief that a declarant’s self-interest in

       seeking medical treatment renders it unlikely that the declarant would mislead

       the medical personnel person she wants to treat her.” Palilonis v. State, 970

       N.E.2d 713, 726 (Ind. Ct. App. 2012) (quoting Miles v. State, 777 N.E.2d 767,

       771 (Ind. Ct. App. 2002)), trans. denied. In order to satisfy the requirement of

       the declarant’s motivation, the declarant must subjectively believe that he or she

       was making the statement for the purpose of receiving medical diagnosis or

       treatment. See 13 Robert Lowell Miller Jr., Indiana Practice: Indiana Evidence §

       803.104 at 312 (4th ed. 2018).



       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019          Page 13 of 21
[22]   There is a two-step analysis for determining whether a statement is properly

       admitted under Indiana Evidence Rule 803(4): “(1) whether the declarant is

       motivated to provide truthful information in order to promote diagnosis and

       treatment; and (2) whether the content of the statement is such that an expert in

       the field would reasonably rely upon it in rendering diagnosis or treatment.”

       Palilonis, 970 N.E.2d at 726 (quoting Nash v. State, 754 N.E.2d 1021, 1023-1024

       (Ind. Ct. App. 2001), trans. denied).


[23]   Here, Rhonda presented for medical treatment with “multiple facial fracture[s],

       extensive rib fracture[s] on [her] sides, also [a] spine fracture, . . . extensive

       resolving ecchymosis around her eyes[,]” and a fractured scapula, after being

       beaten savagely over a three-day span. Exhibits Vol. I p. 6. Based on the

       severity of Rhonda’s injuries, we find that she was motivated to provide truthful

       information to her medical providers in order to promote diagnoses and

       treatment.


[24]   The record further reveals that, as a result of the multi-day beating and the

       delayed medical intervention, Rhonda’s injuries were in different stages of

       severity and healing. In order to properly treat Rhonda, to craft an effective

       discharge plan and to prescribe an appropriate course of psychological

       counseling, Rhonda’s medical providers needed to understand the

       circumstances surrounding Rhonda’s injuries, including the likelihood that she

       would renew her relationship with her abuser. As the trial court reasoned, and

       we agree, “how an injury occurred, how old an injury is, [the] length of time it-



       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019           Page 14 of 21
       it occurred over are all things that are relevant and . . . all go[ ] . . . toward that

       [medical] assessment.” Tr. Vol. I pp. 131-32.


[25]   We, therefore, find that the circumstances surrounding Ramsey’s attack on

       Rhonda, the protracted three-day beating, the delay in medical treatment, and

       the fact that Rhonda was, at times, unguarded and free to leave the apartment

       but would not for fear of Ramsey, are circumstances that medical providers

       would reasonably rely upon in rendering diagnosis or treatment to a domestic

       violence victim.


[26]   For these reasons, we conclude that Rhonda’s statements, as contained within

       her medical records, and in which she describes Ramsey’s protracted attack and

       her delay in receiving vital medical attention, were made in the course of

       medical treatment and fall under the hearsay exception of Rule 803(4).

       Rhonda’s statements describe her “pain or sensations; their inception; [and]

       their general cause”; were made to medical personnel while Rhonda sought

       medical treatment; and were made for, and were reasonably pertinent to,

       medical diagnosis or treatment. See Ind. Evidence Rule 803(4). Accordingly,

       we find that the trial court’s decision to admit Rhonda’s medical records was

       not clearly against the logic and effect of the facts and circumstances before the

       court. See Perry v. State, 956 N.E.2d 41, 50 (Ind. Ct. App. 2011) (upholding

       admission of medical records under Indiana Evidence Rule 803(4) where

       records included statements that the victim was grabbed around her neck and

       strangled, because those statements were pertinent to diagnosis and treatment

       of the victim’s injuries).

       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019           Page 15 of 21
                                 B. Rhonda’s Statements to Officer Wells

[27]   Next, Ramsey argues that the trial court abused its discretion in allowing

       Officer Wells to testify regarding Rhonda’s statements that Ramsey confined

       her. A trial court may admit hearsay that qualifies under the excited utterance

       exception. See Ind. Evidence Rule 803(2). An excited utterance is “[a]

       statement relating to a startling event or condition made while the declarant

       was under the stress of excitement caused by the event or condition” and is not

       excluded by the hearsay rule. Id.


[28]   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.” Lawrence v. State, 959

       N.E.2d 385, 389 (Ind. Ct. App. 2012), trans. denied.


[29]   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 v. State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012). See

       Chambless v. State, 119 N.E.3d 182, 189 (Ind. Ct. App. 2019) (“The longer the

       time between an event and an utterance, the greater the likelihood that the

       statement is a narrative of past events instead of an excited utterance.”).


       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019          Page 16 of 21
[30]   “The heart of the [excited utterance] inquiry is whether the declarant was

       incapable of thoughtful reflection.” Teague, 978 N.E.2d at 1187 (quoting Jones

       v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003)). The rationale behind

       admitting excited utterances is that startling events and absence of opportunity

       for reflection vest the statements with reliability and reduce the likelihood of

       falsification. See 13 Robert Lowell Miller Jr., Indiana Practice: Indiana Evidence §

       803.102 at 307-09 (4th ed. 2018).


[31]   The record here reveals that Officer Wells interviewed Rhonda shortly after she

       was “rescued” from Cassandra’s apartment. Officer Wells later testified that

       Rhonda exhibited “behavior . . . of someone that . . . had been through a

       traumatic ordeal and she was very upset and almost to be point of [being]

       inconsolable”; was “visibly shaken,” “nervous,” and had “[e]xtremely severe”

       injuries all over her body. Tr. Vol. I p. 143, 158. Rhonda’s contemporaneous

       medical records on November 11, 2017, describe her as “very tearful,

       “anxious,” “frightened,” requiring “emotional support,” “tense,” “restless.”

       Exhibits Vol. I pp. 92, 94, 95, 97, 112.


[32]   Based on the foregoing, we conclude that Rhonda made the statements

       implicating Ramsey while she was under the stress of excitement from the

       attack; and the trial court’s decision, pursuant to Rule 803(2), to admit

       Rhonda’s statements that Ramsey confined her was not an abuse of discretion.




       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019        Page 17 of 21
       The trial court did not abuse its discretion in admitting the statements under the

       excited utterance exception to the hearsay rule. 12


                                         II.      Sufficiency of the Evidence

[33]   Lastly, Ramsey argues that the evidence is insufficient to support his conviction

       for intimidation, a Level 6 felony. When there is a challenge to the sufficiency

       of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.”

       Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481

       N.E.2d 78, 84 (Ind. 1985), cert. denied). Instead, “we ‘consider only that

       evidence most favorable to the judgment together with all reasonable inferences

       drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We will affirm

       the judgment if it is supported by ‘substantial evidence of probative value even

       if there is some conflict in that evidence.’” Id.; see also McCallister v. State, 91

       N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting

       evidence, it was “beside the point” because that argument “misapprehend[s]

       our limited role as a reviewing court”). Further, “[w]e will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime




       12
         Even if we had found error here, we have already found that Rhonda made similar statements—properly
       admitted pursuant to Evidence Rule 803(4)—to her medical care providers. See Bowman v. State, 73 N.E.3d
       731, 734 (Ind. Ct. App. 2017) (“The improper admission of evidence is harmless error when the conviction is
       supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no
       substantial likelihood that the questioned evidence contributed to the conviction.”).




       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                              Page 18 of 21
       proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind.

       2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[34]   The intimidation statute provides that a person who “communicates a threat to

       another person, with the intent . . . that the other person engage in conduct

       against the other person’s will” commits intimidation as a Class A

       misdemeanor. Ind. Code § 35-45-2-1(a)(1). The offense is a Level 6 felony

       when the threat is to commit a forcible felony. I.C. § 35-45-2-1(b)(1). To

       convict Ramsey, the State was required to prove that Ramsey communicated a

       threat to commit a forcible felony—his threat on Rhonda’s life—with the intent

       that Rhonda engage in conduct against her will—staying in Cassandra’s

       apartment. See App. Vol. II p. 16.


[35]   Ramsey argues that “there was no evidence that Ramsey threatened Rhonda

       with the intent that she engage in conduct against her will.” Appellant’s Br. p.

       28. We cannot agree. The evidence most favorable to the verdict is that, after

       accusing Rhonda of infidelity, Ramsey beat Rhonda over a three-day period of

       time. Rhonda identified Ramsey as her attacker and reported that Ramsey

       threatened to harm Rhonda’s children if she left the apartment. Clemons

       testified that Rhonda and Cassandra seemed terrified when he arrived at the

       apartment, and that, upon rescue, the women were both afraid to leave the

       apartment and afraid to be in the apartment when Ramsey returned.


[36]   A reasonable inference may be drawn, from the severity of Rhonda’s injuries

       and her three-day delay in seeking medical treatment, that Ramsey confined


       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019      Page 19 of 21
       Rhonda. Specifically, one can reasonably infer that, in Rhonda’s condition, she

       did not willingly forgo medical assistance for her fractured face, ribs, scapula,

       and spine—injuries that required a full week of hospitalization to treat.


[37]   Further, although Ramsey attempted to implicate Cassandra in the brutal attack

       on Rhonda, the admitted medical records reveal that Rhonda permitted

       Cassandra to stay with Rhonda in her hospital room on the first night of her

       hospitalization, and that Rhonda “was ok[ay] with [Cassandra staying].” 13

       Exhibits Vol. I p. 92. Cassandra’s presence in Rhonda’s hospital room

       overnight, on Rhonda’s first night free from confinement, invites the inference

       that another person – and not Cassandra – caused Rhonda’s injuries.


[38]   Further still, the jury heard Rhonda’s testimony that: (1) Ramsey accused her of

       infidelity; (2) Ramsey battered her; (3) Ramsey did not threaten or intimidate

       her against calling 911 or calling for help; (4) Ramsey tried to protect Rhonda

       from Cassandra; (5) Rhonda did not know why she did not call the police; and

       (6) Rhonda still loved Ramsey and still wanted to be in a relationship with

       Ramsey at the time of the trial. The jury made a credibility assessment

       regarding the reliability and veracity of Rhonda’s trial testimony, especially in

       light of Rhonda’s stated desire to remain Ramsey’s girlfriend. We are not

       permitted to second-guess the jurors’ apparent determination that Rhonda was




       13
         Cassandra stayed in Rhonda’s room while the hospital had in effect a safety plan requiring “[Rhonda] to
       have a sitter in her room at all time and visitors to be monitored.” Exhibits Vol. I p. 92.




       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019                            Page 20 of 21
       less than truthful in her testimony. See Gibson, 51 N.E.3d at 210. Sufficient

       evidence supports Ramsey’s conviction for intimidation.


                                                   Conclusion
[39]   The trial court properly admitted Rhonda’s statements pursuant to the medical

       records and excited utterance exceptions to the rule against hearsay. The

       evidence is sufficient to support Ramsey’s conviction for intimidation as a Level

       6 felony. We affirm.


[40]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1276 | April 30, 2019     Page 21 of 21
