MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                 Jul 14 2020, 9:13 am

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


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Benjamin J. Shoptaw
Barbara J. Simmons                                        Deputy Attorney General
Batesville, Indiana                                       Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry D. Spivey Jr.,                                      July 14, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1687
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Barbara C. Crawford, Judge
                                                          Trial Court Cause No.
                                                          49G01-1712-MR-48920




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020                      Page 1 of 13
[2]   Larry D. Spivey, Jr. (“Spivey”) was convicted of murder1 following a jury trial.

      Spivey now appeals his conviction raising the following restated issues:


                  I. Whether the trial court abused its discretion in excluding
                  Spivey’s statement; and


                  II. Whether the evidence presented at trial was sufficient to
                  support his conviction for murder.


[3]   We affirm.


                                      Facts and Procedural History
[4]   Spivey lived with his parents at an apartment complex in Indianapolis, Indiana.

      Tr. Vol. II at 104, 146. Spivey’s uncle, Albert Ford (“Ford”), had moved in with

      the Spivey family without paying rent before the shooting giving rise to this

      case. Id. at 154-55. Spivey’s other uncle, Marvin Hutcherson (“Hutcherson”),

      and some extended family members also lived in the same complex but in

      different apartments. Id. at 146.


[5]   On December 20, 2017, Spivey and Ford argued outside of the complex; both

      men had been drinking. Id. at 150, 154. Spivey’s father, Larry Spivey, Sr.

      (“Larry Sr.”), Hutcherson and Spivey’s girlfriend were also present during the

      argument. Id. at 150-52. Ford had been swearing loudly and called Spivey’s

      girlfriend names. Id. at 154-55. He then walked away, and Spivey shot him in




      1
          See Ind. Code § 35-42-1-1(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 2 of 13
      the back. Id. at 151-52, 174. Hutcherson heard the single gunshot, turned

      around and saw Ford on the ground. Id. at 152. Larry Sr. walked over to

      Ford’s body and said, “He’s dead.” Id. at 152-53, 157. Hutcherson decided to

      leave and got into his minivan. Id. at 153-54. Spivey accompanied him. Id.


[6]   Multiple people called 911 after the shooting, and Indianapolis Metropolitan

      Police Department (“IMPD”) Officer Eric Parrish (“Officer Parrish”) was

      dispatched to the scene. Id. at 103-104, 113. When he arrived, he saw Ford was

      lying on the ground bleeding heavily from his mouth. Id. at 107. A neighbor

      was attempting to apply pressure to Ford’s wound with a towel. Id. Officer

      Parrish checked for a pulse in Ford’s wrist but did not detect one. Id. at 108.

      Roughly a minute later, the paramedics arrived and declared Ford dead. Id. at

      109. Dawn Massey lives in the same complex in which the shooting happened.

      Id. at 237. She identified Spivey as the shooter. Id. at 238; State’s Ex. 38.


[7]   On December 22, 2017, Spivey was arrested in Chicago, Illinois. Tr. Vol. II at

      241. Spivey was interviewed by IMPD Detective David Miller (“Detective

      Miller”) at a police station in Chicago. Id. at 242. After being advised of his

      rights, Spivey waived his Miranda rights and made a videotaped statement to

      Detective Miller. Id. at 242-54; State’s Exs. 39-41. At trial, the jury watched the

      video and was provided with a transcript of Spivey’s statement. Tr. Vol. II at

      242-48; State’s Exs. 41-42. In his statement, Spivey first said that Ford had

      “tried to go for [his] gun” and “pulled it out . . . .” State’s Ex. 42 at 95. Spivey

      claimed that the trigger was accidently pulled during the tussle. Id. Detective

      Miller challenged Spivey, saying that he knew this was not the truth. Spivey
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 3 of 13
      admitted that he had fired the weapon as Ford was walking away, but claimed

      that he was only “aiming at the ground” to scare Ford. Id. at 101,104-05.

      Spivey said that he had “clouded judgment” from the alcohol, Id. at 119, and

      insisted repeatedly that he was not aiming at Ford when he fired the gun. Id. at

      116-18.


[8]   On December 22, 2017, the State charged Spivey with murder. Appellant’s Conf.

      App. Vol. II at 22. A jury trial was held on June 3 and 4, 2019. Id. at 7-8.

      Forensic pathologist John Cavanaugh (“Cavanaugh”) testified that Ford had a

      round symmetric circle where the bullet had entered his back. Tr. Vol. II at 177;

      State’s Ex. 28. Cavanaugh stated that in most cases where the bullet ricocheted

      off something, the entry wound would be ragged, and the bullet would be

      deformed due to the altered trajectory. Id. at 178, 184. He also testified that

      ricochets are not common, and if Ford was standing upright, the ricocheted

      bullet would have more likely struck the lower part of Ford’s body. Id. at 184.

      Forensic scientist Michael Putzek (“Putzek”) testified that he would have

      expected to see flat spots on the sides of the bullet or a flattened nose if the

      bullet had ricocheted. Id. at 204, 214; State’s Ex. 31, 34-36. Putzek stated he did

      not see any indication that the bullet in Ford’s body had struck a hard surface.

      Tr. Vol. II at 214.


[9]   At trial, Spivey attempted to present evidence about what he had said to

      Hutcherson right after the shooting. Id. at 157-62. The State objected on

      hearsay grounds, and Spivey made an offer of proof. The trial court permitted

      him to make a record of the testimony outside the presence of the jury. Id. at
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 4 of 13
       157-58. In this offer of proof, Hutcherson said that immediately after Ford was

       shot, Larry Sr. walked to Ford’s body on the sidewalk and said that he was

       dead. Id. at 158-59. Upon hearing those words, Spivey started crying and said

       that he “didn’t mean to shoot [his] uncle” and was “shooting at the sidewalk.”

       Id. at 160.


[10]   After the offer of proof was made, the State argued that the hearsay should not

       be admitted because it was self-serving. Id. at 161. Spivey’s counsel argued that

       Hutcherson’s testimony should be admitted under the first three exceptions to

       the rule against hearsay in Indiana Rule of Evidence 803(1)-(3), which are the

       present sense impression exception, the exited utterance exception, and the

       then-existing mental, emotional, or physical condition exception. Id. at 160-61.

       The trial court ruled that the testimony was self-serving and sustained the

       State’s objection. Id. at 162.


[11]   The jury found Spivey guilty of murder. Tr. Vol. III at 53; Appellant’s Conf. App.

       Vol. II at 16-17. The trial court sentenced Spivey to forty-five years in the

       Indiana Department of Correction. Appellant’s Conf. App. Vol. II at 16-17.

       Spivey now appeals.


                                      Discussion and Decision

                                      I.       Exclusion of Evidence
[12]   Spivey appeals the trial court’s exclusion of Hutcherson’s testimony concerning

       Spivey’s out-of-court statement. Spivey contends that the testimony would fall

       within the first three of the exceptions to the rule against hearsay, and that the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 5 of 13
       trial court abused its discretion in excluding it from evidence. Ind. Evidence

       Rule 803. Furthermore, Spivey asserts that the exclusion deprived him of his

       constitutional right to present a defense to the mens rea element of the offense

       and that the error of excluding the testimony was not harmless beyond a

       reasonable doubt. Appellant’s Br. at 10-11.


[13]   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. Chambless v.

       State, 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied. “An abuse [of

       discretion] occurs only where the trial court’s decision is clearly against the

       logic and the effect of the facts and circumstances.” Id. There is a strong

       presumption that the trial court properly exercised its discretion. Id. In

       conducting our review, we only consider evidence that favors the trial court’s

       ruling and uncontested evidence that favors a defendant. Id.


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

       by law or by other court rules; however, a trial court may admit hearsay that

       qualifies as a present sense impression, an excited utterance, or a then-existing

       state of mind. See Evid. R. 802, 803(1)-(3). The focus of the analysis for all

       three exceptions is whether the statement was inherently reliable and therefore

       trustworthy. See Gordon v. State, 742 N.E.2d 376, 378 (Ind. Ct. App. 2001).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 6 of 13
[15]   At trial, Spivey attempted to introduce into evidence a statement that he made

       to Hutcherson shortly after the shooting. Tr. Vol. II at 158-60. When the State

       objected on hearsay grounds, the trial court excused the jury and permitted

       Spivey to make an offer of proof. Id. Hutcherson testified that as “soon as [the

       shooting] happened,” Larry Sr. walked over to Ford and called out that “he’s

       dead.” Id. at 160. When Spivey heard that Ford was dead, he began to cry and

       said: “I didn’t mean to shoot my uncle. I was shooting at the sidewalk.” Id.

       The trial court ruled that Spivey’s statement to Hutcherson was self-serving and

       excluded it from evidence. Id. at 162.


[16]   Spivey concedes that the testimony he attempted to introduce at trial was

       hearsay. Appellant’s Br. at 24. However, Spivey argues that the statement

       should have been admitted under the present sense impression exception. Id. at

       25; Evid. R. 803(1). Hearsay testimony may be introduced as evidence under

       the present sense impression exception when three requirements are met: “(1) it

       must describe or explain an event or condition; (2) during or immediately after

       its occurrence; and (3) it must be based upon the declarant’s perception of the

       event or condition.” Minor v. State, 36 N.E.3d 1065, 1070 (Ind. Ct. App. 2015),

       trans, denied. The short time lapse leads to the assumption that the immediate

       response is unlikely to be deliberated and,therefore, provides reliability. Mack v.

       State, 23 N.E.3d 742, 755 (Ind. Ct. App. 2014), trans. denied.


[17]   For the purpose of our review, we assume, but do not decide, that the three

       requirements for the present sense impression exception are met in Spivey’s

       case, and that his statements: (1) described and explained the event of Ford

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 7 of 13
       being shot; (2) were made immediately after the event; and (3) were based on

       Spivey’s perception of the shooting. Spivey contends that meeting these three

       requirements conclusively makes his out-of-court statements reliable and,

       therefore, admissible. Appellant’s Br. at 25-26. We disagree.


[18]   The trial court maintains broad discretion on the admissibility of evidence.

       Chambless, 119 N.E.3d at 188. In Sweeney v. State, our Supreme Court made

       clear that a defendant who does not testify during trial “cannot introduce

       exculpatory statements made outside of court in order to enhance his

       credibility” because the statements are self-serving and generally untrustworthy.

       704 N.E.2d 86, 110 (Ind. 1998). This is because the defendant is not subject to

       cross-examination if he does not testify at trial. Canaan v. State, 541 N.E.2d

       894, 904 (Ind. 1989). In addition, we are unpersuaded by Spivey’s contention

       that the truthfulness of the hearsay testimony should be left for the jury to

       decide. The purpose of this rule is to prevent litigants from enhancing their

       credibility by such method. Marts v. State, 432 N.E.2d 18, 24 (Ind. 1982). The

       trial court did not abuse its discretion in excluding Spivey’s out-of-court

       statement despite the present sense impression exception to the rule against

       hearsay.


[19]   Spivey also challenges the trial court’s exclusion of the testimony based on the

       excited utterance exception. Appellant’s Br. at 27-29; Evid. R. 803(2). In order

       for a statement to be admitted as an excited utterance: (1) a startling event must

       occur; (2) a statement must be made by a declarant while under the stress of

       excitement caused by the event; and (3) the statement must relate to the event.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 8 of 13
       Williams v. State, 782 N.E.2d 1039, 1045-46 (Ind. Ct. App. 2003), trans. denied.

       The admission of such statements depends on “whether the statement was

       inherently reliable . . . .” Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000).


[20]   Spivey focuses his argument on the short time lapse between the shocking event

       of the shooting and the utterance of the statements in order to establish the

       credibility of those statements. Appellant’s Br. at 27-28. The trial court’s

       analysis focused on the fact that such self-serving statements that are not subject

       to cross-examination are inherently unreliable and should not be used as a

       method to enhance the party’s credibility. Cannan, 541 N.E.2d at 904. Spivey

       had made false statements regarding the incident during his interview at the

       police station, claiming that he was not the shooter at first and changing his

       story twice when challenged by Detective Miller. Tr. Vol. II at 242; State’s Ex.

       42 at 95, 101. The trial court did not abuse its discretion in finding Spivey’s

       out-of-court statements unreliable, nor did it abuse its discretion in excluding

       self-serving hearsay as an excited utterance.


[21]   The third exception to the rule against hearsay that Spivey raises is the state of

       mind exception. Appellant’s Br. at 28-29. Evid. R. 803(3). Specifically, Spivey

       argues that the statements he sought to introduce pertained to his “then-existing

       state of mind (such as motive, design, intent or plan)” rather than “a statement

       of memory or belief to prove the fact remembered or believed.” Id. The key to

       the analysis, like in the previous two exceptions, remains the reliability and

       trustworthiness of the statements. See Gordon, 742 N.E.2d at 378. Spivey relies



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 9 of 13
       on the proposition in Pelley v. State that this exception permits “statements of

       any person to show his or her intent.” 901 N.E.2d 494, 504 n.5 (Ind. 2009).


[22]   In Pelley, the trial court admitted a statement by the defendant’s father regarding

       restricting the defendant from attending his high school senior prom. Id. at 504.

       The Indiana Supreme Court held that the statements pertained to the

       defendant’s intent in murdering his father and admitted the hearsay statements

       under the state of mind exception. Id. Here, however, the facts in Pelley are

       distinguishable. In Pelley, (1) there were eight witnesses who testified regarding

       the statements, (2) the victim of the murder who made the statements could no

       longer testify in court, and (3) the statements were not made by the defendant

       himself to exonerate himself. See id. Here, Spivey only had one witness, his

       uncle Hutcherson, testifying to his statement. Tr. Vol. II. at 158-60. Spivey’s

       statements were self-serving. Tr. Vol. II at 158-160, 162. In addition, he could

       have testified in court himself but chose not to. Our review of the record gives

       us no reason to question the trial court’s finding that Spivey’s self-serving

       statements were not reliable. Therefore, we find no abuse of discretion in the

       trial court’s rejection of Spivey’s argument that the hearsay statement was

       admissible under the statement of mind exception to the hearsay rule.


[23]   Because we have concluded that there was no abuse of discretion in the trial

       court’s exclusion of Spivey’s out-of-court, self-serving statements, we need not

       address the issue of the harm resulting from the exclusion of the evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 10 of 13
                                   II. Sufficiency of Evidence
[1]   Spivey also argues that the evidence presented at trial was insufficient to

      support his conviction for murder. When we review the sufficiency of evidence

      to support a conviction, we do not reweigh the evidence or assess the credibility

      of the witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016),

      trans. denied. We consider only the evidence most favorable to the trial court’s

      ruling and the reasonable inferences that can be drawn from that evidence. Lock

      v. State, 971 N.E.2d 71, 74 (Ind. 2012). We also consider conflicting evidence

      in the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d

      871, 875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if

      there is substantial evidence of probative value such that a reasonable trier of

      fact could have concluded the defendant was guilty beyond a reasonable doubt.

      Wolf v. State, 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).


[2]   Spivey contends that the State presented insufficient evidence for his conviction

      because the evidence failed to show beyond a reasonable doubt that he

      knowingly or intentionally shot Ford. Spivey admitted during his interview

      with Detective Miller that he shot Ford on December 20, 2017. State’s Ex. 42 at

      101. However, Spivey claims he was aiming past Ford’s body, and Ford

      walked into the path of the bullet when Spivey pulled the trigger. State’s Ex. 42

      at 112-13.


[3]   To convict Spivey of murder, the State was required to prove beyond a

      reasonable doubt that Spivey knowingly or intentionally killed another human


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 11 of 13
      being. Ind. Code § 35-42-1-1(1). “Knowingly” requires that the defendant is

      aware of a high probability of what he is doing. Ind. Code § 35-41-2-2(b). The

      deliberate use of a deadly weapon in a manner that is likely to cause death or

      great bodily harm meets the standard for knowingly. Harper v. State, 523

      N.E.2d 1389, 1391 (Ind. 1988); see also Wilson v. State, 697 N.E.2d 466, 476

      (Ind. 1998) (holding that the deliberate use of a firearm in a manner that is

      likely to cause death or great bodily injury is sufficient to demonstrate a

      knowing intent).


[4]   The evidence presented at trial clearly showed that the manner in which Spivey

      handled the firearm was likely to cause death. Spivey admitted that he pointed

      the gun in Ford’s direction and pulled the trigger as Ford was walking away

      from him. State’s Ex. 42 at 112-13, 119-20. In claiming that the evidence

      showed that he was aiming past Ford just to scare him, Spivey is asking us to

      reweigh the evidence. In addition, the evidence also showed that (1) Spivey

      had been drinking and arguing with Ford before the shooting, (2) Ford had

      been calling Spivey’s girlfriend names, and (3) Spivey was resentful about Ford

      taking advantage of his parents by staying in their apartment without paying

      rent. Tr. Vol. II at 154-56. The jury had a reasonable basis to infer that Spivey

      had a motive to kill Ford, and that he used a deadly weapon in a manner likely

      to cause serious bodily harm.


[5]   The testimony of the forensic pathologist and forensic scientist who testified

      also provided support for Spivey’s conviction. The two experts testified that the

      shape of Ford’s wound and the condition of the bullet were not consistent with

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 12 of 13
      a ricochet. Tr. Vol. II at 184, 204. It is not our role to reweigh the evidence or

      assess the credibility of witness. Lehman, 55 N.E.3d at 868. We conclude that

      the State presented sufficient evidence for the jury to find that Spivey had

      knowingly or intentionally killed Ford and his conviction of murder was

      supported by the evidence.


[6]   Affirmed.


      Najam, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1687 | July 14, 2020   Page 13 of 13
