MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                Feb 15 2016, 9:24 am
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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jemel Young,                                             February 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1505-CR-316
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela D. Davis,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Allan Reid,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G16-1411-CM-52686



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016      Page 1 of 10
[1]   Jemel Young appeals his conviction for battery as a class B misdemeanor.

      Young raises two issues, one of which we find dispositive and which we revise

      and restate as whether the court abused its discretion in admitting certain

      testimony. We reverse.


                                      Facts and Procedural History

[2]   On November 18, 2014, Indiana State Trooper Corey Berfield was patrolling

      southbound on Interstate 465 when he received a dispatch regarding an

      occurrence on the interstate. He turned around and proceeded northbound,

      and at some point he came upon the vehicle in question and observed a male

      and female inside. He learned that the male driver was a Good Samaritan, who

      had observed the female, later identified as Amber Rogers, walking along the

      interstate and let her sit in his car until police arrived. Trooper Berfield

      observed that Rogers was very upset, was “crying,” and was “just kind of

      frantic about the situation and what had occurred.” Transcript at 8. Trooper

      Berfield observed redness and swelling on the left side of Rogers’s jaw, and

      although she complained of tenderness in that area she declined medical

      attention both at the scene and later at the State Police Post. Based on his

      conversation with Rogers, Trooper Berfield made a report to the Noblesville

      Police Department to “keep an eye out for a certain vehicle, individual at a

      certain location,” that being Young. Id. at 23. The entire time Trooper Berfield

      spoke with Rogers, she was upset and crying.


[3]   Young was located in downtown Noblesville by Noblesville Police Officer

      Jason McDermott, who confirmed that he was following Young, activated his
      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 2 of 10
      lights and sirens, pulled Young over, and detained him. Officer McDermott

      informed Young of his Miranda rights, and Young voluntarily began speaking

      with him. He admitted to the officer that he was driving with Rogers on the

      highway, that they were arguing in the car, that he told Rogers to “get the f---

      out the car,” Exhibit 6 at Officer McDermott Camera 1, 11:25:58- 11:26:02,

      and that when she refused he “nudged her” out of the vehicle. Transcript at 42.

      Young also acknowledged that Rogers was stuck on the interstate after she had

      been nudged from the vehicle.


[4]   On November 24, 2014, the State charged Young with battery resulting in

      bodily injury as a class A misdemeanor. On April 17, 2015, the court held a

      bench trial. Rogers did not appear as a witness. Over Young’s objection, the

      court admitted the testimony of Trooper Berfield pursuant to Ind. Evidence

      Rule 803(2) that Rogers had told him that there had been an incident in a

      vehicle with Young, that Young drove a white Chevrolet Impala, and that

      Young was on his way to work at a golf course located in Hamilton County. In

      admitting the statements, the court stated: “We have not established how much

      time elapsed during this time frame. I think that [the State] is correct there is no

      limitation on the excited utterance. If the Officer testifies that she was still very

      excited, I think you accept the scope wise.” Id. at 17.


[5]   At the conclusion of the State’s case-in-chief, Young moved for involuntary

      dismissal under Ind. Trial Rule 41(B), and the court ruled that, although the

      State did not prove that Young was guilty of battery resulting in bodily injury as

      a class A misdemeanor, it could proceed under the lesser included offense of

      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 3 of 10
      battery as a class B misdemeanor. Young testified as to his version of the events

      leading to Rogers exiting the vehicle on the date in question. At the conclusion

      of trial, the court found Young guilty of battery as a class B misdemeanor and

      sentenced him to 180 days with 152 days suspended to probation and the

      balance credited for time served.


                                                   Discussion

[6]   The dispositive issue is whether the court abused its discretion in admitting

      evidence of Rogers’s statements to Trooper Berfield under the excited utterance

      exception to the hearsay rule. Generally, we review the trial court’s ruling on

      the admission or exclusion of evidence for an abuse of discretion. Noojin v.

      State, 730 N.E.2d 672, 676 (Ind. 2000). We reverse only where the decision is

      clearly against the logic and effect of the facts and circumstances. Joyner v.

      State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. We will not reverse an

      error in the admission of evidence if the error was harmless. Turner v. State, 953

      N.E.2d 1039, 1058 (Ind. 2011). Errors in the admission of evidence are to be

      disregarded unless they affect the defendant’s substantial rights. Id. at 1059. In

      determining the effect of the evidentiary ruling on a defendant’s substantial

      rights, we look to the probable effect on the fact-finder. Id. The improper

      admission is harmless error if the conviction is supported by substantial

      independent evidence of guilt satisfying the reviewing court that there is no

      substantial likelihood the challenged evidence contributed to the conviction. Id.


[7]   Young challenges the court’s decision to admit statements Rogers made to

      Trooper Berfield that an incident occurred, the identification of Young, and
      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 4 of 10
how to locate Young, arguing that such statements were inadmissible hearsay

because they do not conform to the excited utterance exception. Hearsay is a

statement, other than one made by the declarant while testifying at trial, offered

in evidence to prove the truth of the matter asserted. Ind. Evidence Rule

801(c). Hearsay is inadmissible unless admitted pursuant to a recognized

exception. Ind. Evidence Rule 802. An excited utterance is such an exception

and is defined as “[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.” Ind. Evidence Rule 803(2). Application of this rule is not

mechanical and admissibility should generally be determined on a case-by-case

basis. Palacios v. State, 926 N.E.2d 1026, 1031 (Ind. Ct. App. 2010) (citing Love

v. State, 714 N.E.2d 698, 701 (Ind. Ct. App. 1999), reh’g denied). Thus, the heart

of the inquiry is whether the statement is inherently reliable because the

declarant was incapable of thoughtful reflection. Id. (citing Yamobi v. State, 672

N.E.2d 1344, 1346 (Ind. 1996)). The statement must be trustworthy under the

specific facts of the case at hand. Id. The focus is on whether the statement was

made while the declarant was under the influence of the excitement engendered

by the startling event. Id. The amount of time that has passed between the

event and the statement is not dispositive; rather, the issue is whether the

declarant was still under the stress of excitement caused by the startling event

when the statement was made. Mathis v. State, 859 N.E.2d 1275, 1279 (Ind. Ct.

App. 2007).




Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 5 of 10
[8]   Young specifically argues that time had elapsed between the time Rogers

      entered the car of the Good Samaritan and spoke with him and the time that

      Trooper Berfield came upon the car, that the State did not present evidence

      regarding the length of time that had elapsed, and that accordingly the State did

      not lay an adequate foundation to show that Rogers’s statements were made

      under extreme and continuing stress of the startling event. The State argues

      that the amount of time that passed between the startling event and the

      statement is not dispositive and that the evidence demonstrated that Rogers was

      crying and upset when she spoke with Trooper Berfield. The State also argues

      that any error in the admission of the testimony was at most harmless in nature.


[9]   The parties discuss the case of Young v. State, 980 N.E.2d 412 (Ind. Ct. App.

      2012). In Young, on the morning of May 28, 2011, Dulce Gomez visited

      defendant James Young and Blanca Medrano at their apartment and observed

      them argue and saw James leave with the couple’s two-year-old child. 980

      N.E.2d at 416. She did not observe any physical contact between the couple

      while she was there and until she left at around 10:30 a.m. Id. Around noon,

      Medrano walked across the street to the fire department and eventually sat

      down on a bench outside and cried. Id. Acting Lieutenant Michael Hochstetler

      approached her and asked what was wrong. Id. At first Medrano did not tell

      him and continued crying, Hochstetler observed “bruising on her arm and on

      her neck and an abrasion on her hand,” and Medrano then told him that her

      husband had beaten her and left with their other child. Id. Hochstetler asked

      another firefighter, Gene Sanders, to do a patient assessment, and he called


      Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 6 of 10
       dispatch for a police officer. Id. Medrano spoke to Hochstetler and Sanders for

       about forty-five minutes before the police arrived, but they had trouble

       communicating due to a language barrier. Id. By the time the police arrived,

       Hochstetler believed that Medrano “was ‘getting kind of antsy to leave’ and

       when the police arrived, she ‘was no longer crying.’” Id. at 417. When

       Corporal Laurie Stuff of the Elkhart City Police Department arrived, she

       “noticed that Medrano had ‘redness to her neck,’ a bandage on her right hand,

       and some bruising,” she “thought Medrano appeared ‘upset, she was crying,

       she seemed scared,’ and Medrano told Officer Stuff that ‘her husband had

       strangled her’ until she could not breathe.” Id. James was charged with

       strangulation as a class D felony and domestic battery as a class D felony. Id.

       At trial, Medrano failed to appear and the firefighters and Officer Stuff testified

       regarding the statements Medrano made to them, which were admitted as

       excited utterances. Id. James was found guilty as charged. Id.


[10]   On appeal, James admitted that the statements of the firefighters were

       admissible as excited utterances, but he challenged Officer Stuff’s testimony in

       that regard.1 Id. at 418, 420. We noted that “[w]hile lapse of time is not

       dispositive, if a statement is made long after a startling event, it is usually less

       likely to be an excited utterance” because “[a] long period of time reduces the

       likelihood that a statement is made without deliberate thought and under the




       1
        James challenged the admissibility of the firefighters’ testimony under the Sixth Amendment’s
       Confrontation Clause. 980 N.E.2d at 418-420.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016          Page 7 of 10
       stress of excitement of an event.” Id. at 421 (internal quotations and citations

       omitted). We held that Medrano’s statements were not admissible as excited

       utterances because Officer Stuff did not speak with her until about an hour after

       the incident, and the firefighters had treated her injuries prior to Officer Stuff’s

       arrival. Id. at 421-422. We further noted that although Officer Stuff testified

       that Medrano was crying when she arrived, the evidence revealed that at some

       time prior to her arrival Medrano had stopped crying and “was ‘antsy to

       leave.’” Id. at 422. We also concluded that the admission of Officer Stuff’s

       testimony was not harmless because it “was not cumulative; rather, it was the

       only testimony that supported the State’s strangulation charge against [James].”

       Id. We ruled that “[i]t is axiomatic that improper admission of the only

       proffered evidence that supports a charge cannot be harmless error” and that

       accordingly “[w]e must therefore reverse [James’s] conviction for strangulation,

       subject, however, to possible retrial.” Id. (citing Stahl v. State, 686 N.E.2d 89

       (1997) (“[I]f all the evidence, even that erroneously admitted, is sufficient to

       support the jury verdict, double jeopardy does not bar a retrial on the same

       charge.”).


[11]   The evidence presented revealed that Rogers was walking on Interstate 465

       when she entered the vehicle of the Good Samaritan. Later, Trooper Berfield,

       who was driving southbound on the interstate, received a dispatch regarding the

       vehicle, and he turned around and proceeded to the vehicle. It is the State’s

       burden to lay a proper foundation for evidence it seeks to admit. Here, the

       State failed to establish any length of time as to how long Rogers was in the car


       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 8 of 10
       with the Good Samaritan before Trooper Berfield came upon the scene, nor did

       the State show that Rogers remained under the stress of excitement from the

       time of an incident with Young until she spoke with Trooper Berfield. In

       admitting these statements, the court stated: “We have not established how

       much time elapsed during this time frame. I think that [the State] is correct

       there is no limitation on the excited utterance. If the Officer testifies that she

       was still very excited, I think you accept the scope wise.” Transcript at 17. It is

       unclear exactly what the trial court meant, but we find that the State did not

       establish that Rogers was still under the stress of excitement caused by the

       startling event or whether she had the opportunity for thoughtful reflection

       before Trooper Berfield came upon the scene. Thus, we find that the court

       abused its discretion when it admitted Trooper Berfield’s testimony regarding

       Rogers’s statements under the excited utterance exception.


[12]   Also, similar to Young, we cannot say that the error was harmless. Rogers’s

       statements were not cumulative and constituted the only evidence indicating

       that an incident between Young and Rogers had occurred and provided the

       identity evidence necessary to link Young to the incident, including his name,




       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016   Page 9 of 10
       the car he drove, and where he could be located. 2 We therefore reverse Young’s

       conviction for battery as a class B misdemeanor, subject to retrial. 3


                                                       Conclusion

[13]   For the foregoing reasons, we reverse Young’s conviction for battery as a class

       B misdemeanor, subject to retrial.


[14]   Reversed.


       Kirsch, J., and Mathias, J., concur.




       2
        We note that the State does not argue that some or all of the statements were admissible for another
       purpose, and the trial court made clear that it was accepting the statements for the truth of the matters
       asserted and not as course of investigation testimony.
       3
        To the extent that Young challenges the sufficiency of the evidence to convict him, we note that Young told
       Officer McDermott that he was driving with Rogers on the highway, that they were arguing in the car, that
       he told Rogers to “get the f--- out the car,” Exhibit 6 at Officer McDermott Camera 1, 11:25:58- 11:26:02,
       and that when she refused he “nudged her” out of the vehicle. Transcript at 42. See Stahl v. State, 686 N.E.2d
       89 (1997) (“[I]f all the evidence, even that erroneously admitted, is sufficient to support the jury verdict,
       double jeopardy does not bar a retrial on the same charge.”).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1505-CR-316 | February 15, 2016            Page 10 of 10
