MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Nov 02 2017, 9:21 am
this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marielena Duerring                                      Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Anthony Jones,                                  November 2, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1705-CR-1136
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Steven L.
Appellee-Plaintiff                                      Hostetler, Judge
                                                        Trial Court Cause No.
                                                        71D07-1610-CM-5281



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017         Page 1 of 13
[1]   Michael Jones appeals his conviction for Class A Misdemeanor Domestic

      Battery,1 arguing that the trial court erred in admitting certain evidence and that

      the evidence is insufficient to support the conviction. Finding no error and

      sufficient evidence, we affirm.


                                                       Facts
[2]   In October 2016, Jones was dating and living with Dianne2 Lorenzo. On

      October 23, 2016, Lorenzo called 911 and, while portions of the call are

      unintelligible, a majority of the one minute, twenty-seven second exchange is

      discernible:


                 Operator: 911, what’s the address and the emergency?


                 Lorenzo: [states address]


                 Operator: Okay, what’s going on?


                 Lorenzo: My husband’s been beating me up, and I
                 (unintelligible).


                 Operator: Okay, ma’am, ma’am . . . he’s still there?


                 Lorenzo: Yes (sobbing).




      1
          Ind. Code § 35-42-2-1.3(a)(1).
      2
       The trial transcript spells Lorenzo’s name “Dianne,” whereas Jones’s brief and certain documents in the
      appendix spell her name “Diane.” We will use the former spelling.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017        Page 2 of 13
              Operator: Do you need an ambulance? Ma’am?


                                                     ***


              Lorenzo: No.


              Operator: Okay, what is your name?


              Lorenzo: I’m Dianne Lorenzo.


              Operator: Okay, can you talk to me?


              Lorenzo: No . . . (unintelligible screaming). Get away from me!
              (unintelligible screaming and sobbing).


      State’s Ex. 1. Near the end of the call a man’s voice can be heard, and the

      operator asks Lorenzo to put down the phone so that the operator can listen.

      The call abruptly ends a few seconds later.


[3]   When South Bend Police Officer Sean Killian arrived, Jones was outside of the

      residence; however, when Jones saw the police, he went back inside. Initially,

      Officer Killian walked to a back window of the home. He testified that he

      overheard Jones screaming at Lorenzo, instructing her to “tell [the police] to get

      the f**k out of here, and that I didn’t do anything to you.” Tr. Vol. II p. 10.

      Soon thereafter, Officer Killian knocked on the door and Lorenzo answered.

      Officer Killian observed that “she had food stain [sic] on her, her hair was all

      frazzled, [and] she was totally hysterical, just in a very frenzied state.” Id. at 11.

      Within two to three minutes of meeting Lorenzo at the front door, Officer

      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 3 of 13
      Killian escorted her to his squad car and activated his body microphone and his

      car’s video camera. While walking toward the car, Lorenzo cried, “[h]e’s . . .

      been beating me up,” and stated that she did not want Officer Killian to leave

      her and that she and Jones were married. State’s Ex. 2.


[4]   On October 24, 2016, the State charged Jones with Class A misdemeanor

      domestic battery. Jones’s bench trial took place on March 16, 2017. Although

      Lorenzo did not testify, the trial court admitted the 911 call and the video

      recording into evidence and permitted Officer Killian to testify about Lorenzo’s

      statements over Jones’s objections. On April 28, 2017, the trial court found

      Jones guilty and sentenced him to a ninety-day executed sentence, with credit

      for nineteen days already served. Jones now appeals.


                                   Discussion and Decision
                                  I. Admission of Evidence
[5]   Jones first argues that the trial court erred by admitting the 911 call and a

      portion of the video recording into evidence; he contends that doing so violated

      his confrontation rights and that the statements were inadmissible hearsay. We

      will reverse a trial court’s decision to admit evidence only if the court’s decision

      was clearly against the logic and effect of the facts and circumstances before it.

      Thornton v. State, 25 N.E.3d 800, 803 (Ind. Ct. App. 2015).




      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 4 of 13
                                   A. Confrontation Rights                      3




[6]   The law regarding the Confrontation Clause and testimonial statements is well

      established:


              The Confrontation Clause of the Sixth Amendment to the United
              States Constitution prohibits the admission of an out-of-court
              statement if it is testimonial, the declarant is unavailable, and the
              defendant had no prior opportunity to cross-examine the
              declarant. Similarly, Article 1, Section 13 of the Indiana
              Constitution provides that “[i]n all criminal prosecutions, the
              accused shall have the right to . . . meet the witnesses face to
              face[.]” To determine whether a statement was testimonial, we
              look to the primary purpose of the conversation. If
              circumstances indicate that the primary purpose of the
              conversation was to gather evidence of past events potentially
              relevant to later prosecution, then the statements are testimonial
              and protected by the Confrontation Clause.


      Id. (internal citations omitted). However, a statement may be non-testimonial if

      it is made “‘in the course of [a] police interrogation under circumstances

      objectively indicating that the primary purpose of the interrogation is to enable

      police assistance to meet an ongoing emergency.’” McQuay v. State, 10 N.E.3d

      593, 598 (Ind. Ct. App. 2014) (quoting Davis v. Washington, 547 U.S. 813, 822

      (2006)). In determining whether the statements at issue were non-testimonial,

      Davis considered several factors: “(1) whether the declarant was describing

      events ‘as they were actually happening’ or past events; (2) whether the



      3
       The State contends that Jones has waived the Confrontation Clause issue. We assume solely for
      argument’s sake that he has not.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017      Page 5 of 13
      declarant was facing an ongoing emergency; (3) whether the nature of what was

      asked and answered was such that the elicited statements were necessary to be

      able to resolve the present emergency rather than simply to learn about past

      events; and (4) the level of formality of the interview.” State v. Martin, 885

      N.E.2d 18, 20 (Ind. Ct. App. 2008) (quoting Davis, 547 U.S. at 827). We

      previously cautioned that these factors are not “an exhaustive list,” nor do all of

      them need to be satisfied for a statement to be non-testimonial. Collins v. State,

      873 N.E.2d 149, 154 n.2 (Ind. Ct. App. 2007).


                                               1. 911 Call
[7]   Applying the Davis factors, we conclude that the operator’s questions

      objectively had the primary purpose of enabling police to meet an ongoing

      emergency. First, although the majority of Lorenzo’s statements concerned

      past events, the information was relevant to whether Jones “posed a present

      danger[.]” Id. at 154-55 (emphasis original). Second, a reasonable factfinder

      could have determined that Lorenzo faced an ongoing emergency: she was

      extremely upset, she informed the operator that her husband had beaten her

      and that he was still in the house, she can be heard screaming “Get away from

      me,” and a man’s voice can be heard in the background. State’s Ex. 1.


[8]   Third, the operator focused on eliciting information necessary to evaluate and

      resolve Lorenzo’s emergency—such as why she was calling, whether her

      attacker was still a threat, her location, whether she needed medical attention,

      and her name. See McQuay, 10 N.E.3d at 599 (holding initial questions


      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 6 of 13
      permitting police to learn about the “circumstances in which the crime had

      occurred” had the primary purpose of enabling police to meet an ongoing

      emergency); see also Kimbrough v. State, 911 N.E.2d 621, 632 n.2 (Ind. Ct. App.

      2009) (noting that it was “readily apparent” that the purpose of a police

      dispatcher’s questions was to resolve an ongoing emergency). Finally, the

      statements were frantically made during an informal 911 call. See Collins, 873

      N.E.2d at 155 (“[T]he conversation occurred during a very informal 911 call,

      with the agitated [caller] providing answers regarding an ongoing emergency

      over the phone, not, for example, calmly relating past events in a relatively

      tranquil police station interrogation room.”). In sum, the circumstances

      surrounding the 911 operator’s questioning of Lorenzo objectively indicate that

      the primary purpose of the call was to assist police in meeting an ongoing

      emergency, making the statements non-testimonial. Therefore, the trial court

      did not err on this issue.


                                        2. Video Recording
[9]   The trial court admitted the first minute and twenty-seven seconds of the video

      recording from Officer Killian’s squad car. This portion is largely unintelligible

      due to Lorenzo’s hysterical state, and the portions that are discernible add

      nothing material to what she told the 911 operator. Additionally, the

      statements made by Lorenzo were not made in response to a question. See

      Wallace v. State, 79 N.E.3d 992, 999 (Ind. Ct. App. 2017) (finding statements

      overheard on a 911 call non-testimonial in part because the statements were

      “not responsive to any question posed by law enforcement”). While walking

      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 7 of 13
       toward Officer Killian’s squad car, a panicked Lorenzo, without any

       prompting, exclaimed that: (1) she and Jones were married, (2) he had beaten

       her up, and (3) she did not want Officer Killian to leave her. State’s Ex. 2.

       Officer Killian’s only question in the admitted portion of the video recording

       was whether Lorenzo needed an ambulance.


[10]   Even if, for argument’s sake, Lorenzo’s statements were responsive to some

       question, we cannot say the trial court erred. Applying the Davis factors, we

       observe initially that, like the 911 call, though the statements largely described

       past events, the information was relevant to whether Jones “posed a present

       danger[.]” Collins, 873 N.E.2d at 154-55 (emphasis original). Second, a

       reasonable factfinder could have determined that Lorenzo still faced an ongoing

       emergency. Officer Killian testified that he arrived at the scene “two to three

       minutes” after he was dispatched, and that, when Lorenzo answered the door,

       she was “[s]creaming, crying, [and] just giving us tidbits of that [sic]

       information . . . .” Tr. Vol. II p. 11, 49. Lorenzo’s hair was “frazzled,” she had

       food stains on her shoulder and hip, and Officer Killian had just overheard

       Jones yelling at her to tell the police to leave. Id. at 10-11.


[11]   Third, considering Lorenzo’s emotional state, physical appearance, and what

       Officer Killian overheard, there is no reason to conclude that his lone question

       in the admitted portion of the video—whether Lorenzo needed an ambulance—

       was asked for any reason other than to resolve an ongoing emergency. Finally,

       the exchange was extremely informal. The conversation occurred at or near the

       crime scene while Lorenzo and Officer Killian were walking toward his squad

       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 8 of 13
       car and standing in front of his squad car. See McQuay, 10 N.E.3d at 599

       (determining that an officer’s questions were informal when the questions were

       asked to the victim at the crime scene “in an ‘exposed, public area, prior to the

       arrival of emergency medical services, and in a disorganized fashion.’” (quoting

       Michigan v. Bryant, 562 U.S. 344, 366 (2011))). In total, the circumstances

       objectively indicate that the primary purpose of the conversation—at least up to

       the one minute, twenty-seven second mark—was not to gather evidence of past

       events; thus, the statements were non-testimonial. The trial court did not err on

       this issue.


                                                B. Hearsay
[12]   The law regarding hearsay and excited utterances is equally well established:


               Hearsay is an out of court statement offered to prove the truth of
               the matter asserted. It is inadmissible unless it falls under an
               exception. Among the exceptions to the hearsay rule [is the
               excited utterance exception]. . . . For a hearsay statement to be
               admitted as an excited utterance, three elements must be shown:
               (1) a startling event, (2) a statement made by a declarant while
               under the stress of excitement caused by the event, and (3) that
               the statement relates to the event. This is not a mechanical test.
               It turns on whether the statement was inherently reliable because
               the witness was under the stress of an event and unlikely to make
               deliberate falsifications.


       Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (internal citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 9 of 13
                                                1. 911 Call
[13]   It is undisputed that Lorenzo’s statements in the 911 call qualify as hearsay;

       however, we cannot say the trial court erred in admitting the statements under

       the excited utterance exception. There is no question that a battery is a startling

       event. E.g., Fowler v. State, 829 N.E.2d 459, 463-64 (Ind. 2005). It is also clear

       from the contents of the call that Lorenzo was under stress while speaking with

       the 911 operator. The statements are rushed, impossible to understand at times,

       and bear no suggestion of being planned, rehearsed, or otherwise disingenuous.

       Finally, it is undisputed that Lorenzo’s statements directly related to the

       battery.


[14]   Jones testified that he arrived home around 10:00 p.m., and the police report

       indicates that the battery was reported at 1:19 a.m. Appellant’s App. Vol. II p.

       77. While there is no direct evidence as to when the startling event occurred,

       this factor is not dispositive. See Jenkins, 725 N.E.2d at 68. The trial court

       could have reasonably concluded that the event was ongoing when Lorenzo

       made the 911 call because Lorenzo can be heard screaming “Get away from

       me” at a man who can be heard speaking to Lorenzo. State’s Ex. 1.

       Additionally, because Lorenzo was still under the stress of the event, it is not

       crucial to determine exactly how much time had passed. See Boatner v. State,

       934 N.E.2d 184, 187 (Ind. Ct. App. 2010) (holding that, even though it was

       unclear when battery occurred, a trial court could conclude from victim’s

       emotional state that victim’s statements were made under the stress of the



       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 10 of 13
       event). For these reasons, we cannot say the trial court erred in admitting the

       statements.


                                         2. Video Recording
[15]   Like the 911 call, there is no question that the video recording falls under the

       definition of hearsay; however, we cannot say that the trial court erred in

       admitting these statements under the excited utterance exception. Lorenzo’s

       statements on the admitted portion of the video recording largely mirror her 911

       call in substance; the only difference is when they were made. Officer Killian

       testified that he arrived at the scene within “two or three minutes” of the

       dispatch and that he spoke with Lorenzo “two to three minutes” after arriving.

       Tr. Vol. II p. 21, 49. Considering that Lorenzo was still upset when she spoke

       to Officer Killian and that her statements related to the startling event, we

       cannot say that the trial court erred in admitting the video recording as an

       excited utterance. See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996)

       (“[T]he central issue is whether the declarant was still under the stress of

       excitement caused by the startling event when the statement was made.”).


                               II. Sufficiency of the Evidence
[16]   Finally, Jones argues that there was insufficient evidence to convict him of

       domestic battery. When reviewing challenges to the sufficiency of the evidence,

       we do not reweigh the evidence or judge the credibility of the witnesses. Bond v.

       State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Instead, we consider only the

       evidence most favorable to the verdict and the reasonable inferences drawn

       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 11 of 13
       therefrom, and we will affirm if the evidence and those inferences constitute

       substantial evidence of probative value to support the verdict. Id. Reversal is

       appropriate only when a reasonable trier of fact would not be able to form

       inferences as to each material element of the offense. Id.


[17]   To convict Jones of Class A misdemeanor domestic battery, the State was

       required to prove beyond a reasonable doubt that he “knowingly or

       intentionally” touched a “family or household member in a rude, insolent, or

       angry manner.” I.C. § 35-42-2-1.3(a)(1). Jones does not argue that he did not

       knowingly or intentionally touch Lorenzo in a rude, insolent, and/or angry

       manner, nor does he dispute that Lorenzo’s statements are sufficient to establish

       these elements. See, e.g., Young v. State, 980 N.E.2d 412, 423 (Ind. Ct. App.

       2012) (holding in part that a non-testifying victim’s statement that the defendant

       “had beaten her” was sufficient to support a conviction for Class A

       misdemeanor domestic battery). It is also clear that Jones was a “family or

       household member” because Jones testified that he and Lorenzo were dating

       during the time in question. Tr. Vol. II p. 62, 67; Ind. Code § 35-31.5-2-

       128(a)(2) (“An individual is a ‘family or household member’ of another person

       if the individual: . . . (2) is dating or has dated the other person[.]”).


[18]   Jones’s sole argument on appeal is that the State’s evidence fails to establish the

       identity of Lorenzo’s attacker. However, Lorenzo stated during the 911 call

       that her husband had beaten her, and the video recording established that she

       believed that she and Jones were married. Additionally, Officer Killian testified

       that no one was in the home besides Jones and Lorenzo and that Lorenzo

       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 12 of 13
       identified Jones as her attacker. Tr. Vol. II p. 45. Accordingly, a reasonable

       factfinder could infer from the evidence that Jones was the person Lorenzo

       referred to in the 911 call and video recording. In other words, a reasonable

       factfinder could infer that Jones was the person who battered Lorenzo. We find

       the evidence sufficient to support this conviction.


[19]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-CR-1136 | November 2, 2017   Page 13 of 13
