MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                    Mar 09 2016, 8:42 am

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
Philip R. Skodinski                                      Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

Christopher Jones,                                       March 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1509-CR-1391
        v.
                                                         Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,
                                                         The Honorable
Appellee-Plaintiff.                                      Elizabeth Hardtke,
                                                         Judge
                                                         Trial Court Cause No.
                                                         71D01-1505-CM-1289


Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016       Page 1 of 8
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Christopher Jones (Jones), appeals his conviction and

      sentence for battery, a Class A misdemeanor.


[2]   We affirm.


                                                    ISSUES

[3]   Jones raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion in admitting certain evidence;

      and

      (2) Whether there was sufficient evidence to establish Jones’ conviction for

      battery beyond a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   Jones and Jacqueline Brown (Brown), were in a romantic relationship and lived

      together. On May 2, 2015, Brown called the South Bend Police Department

      regarding an assault. Shortly thereafter, Officer Joshua Brooks (Officer Brooks)

      and another officer arrived at Brown’s residence. Officer Brooks encountered

      Brown on her front porch, she was hysterical, had bruises on her face, and

      swellings around her eyes. Officer Brooks asked Brown if she needed medical

      attention, but Brown declined. Brown then gave a description of her assailant,

      Jones, as a “skinny black male with curly hair and gray beard.” (Transcript p.

      26). Moments later, the officers were notified over the radio that Jones had

      been arrested at a local Burger King. Both officers left Brown’s residence.

      When they arrived at Burger King, the officers found that Jones had been

      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 2 of 8
      restrained in handcuffs. Upon searching his person, Officer Brooks found Jones

      in possession of “two cell phones in his right front pocket.” (Tr. p. 27). Jones

      was then transported to jail.


[5]   “Somewhere between 10 to 15 minutes” later Officer Brooks and the other

      officer returned to Brown’s residence. (Tr. p. 35). Since Brown was still frantic,

      Officer Brooks had to calm her down. Brown at first informed Officer Brooks

      that “somebody she did not know was trying to break in through her bedroom

      window, and once he got in[,] he hit her with both hands several times, and

      somehow they ended up from the bedroom to the living room.” (Tr. p. 37).

      Brown also stated that her assailant grabbed her cell phone and then “knocked

      her out.” (Tr. p. 37). At the close of the interview, Brown informed Officer

      Brooks that her assailant was Jones. Brown also identified the two cell phones

      recovered from Jones as hers.


[6]   On May 4, 2015, the State filed an Information, charging Jones with Count I,

      battery resulting in bodily injury, a Class A misdemeanor; Count II, theft, a

      Class A misdemeanor; and Count III, resisting law enforcement, a Class A

      misdemeanor. On June 25, 2015, the trial court held Jones’ bench trial. At the

      conclusion of trial, the trial court entered a not guilty judgment on theft, but

      guilty judgments for battery, and resisting law enforcement. On the same day,

      the trial court sentenced Jones to an all executed consecutive sentence of 180

      days for battery, and 365 days for resisting law enforcement.


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


      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 3 of 8
                                  DISCUSSION AND DECISION

                                        I. Brown’s Prior Statements

[8]   Jones seeks a reversal of his battery conviction in this case on grounds that the

      trial court abused its discretion by admitting Brown’s inconsistent statements as

      substantive evidence. The decision to admit evidence is within the trial court’s

      discretion and is afforded great deference on appeal. Carpenter v. State, 786

      N.E.2d 696, 702 (Ind. 2003). We will not reverse the trial court’s decision

      unless it represents a manifest abuse of discretion that results in the denial of a

      fair trial. Id. An abuse of discretion in this context occurs where the trial

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

      circumstances before the court or it misinterprets the law. Id. “Even when a

      decision on the admissibility of evidence is an abuse of discretion, we will not

      reverse a judgment where that error is harmless, that is, where the error did not

      affect the substantial rights of a party.” Dixon v. State, 967 N.E.2d 1090, 1092

      (Ind. Ct. App. 2012).

[9]   Our supreme court has stated that “[o]rdinarily, prior inconsistent statements

      are used to impeach, not as substantive evidence of the matter reported.” Young

      v. State, 746 N.E.2d 920, 926 (Ind. 2001). In other words, a prior inconsistent

      statement used to impeach a witness’s credibility is not hearsay. See Martin v.

      State, 736 N.E.2d 1213, 1217 (Ind. 2000). At Jones’ trial, Brown’s account of

      events changed. Brown made two different statements about Jones battering

      her, one to the police and one on direct examination. The State’s questioning

      of Brown at trial highlighted that the two statements were inconsistent. The

      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 4 of 8
       fact that the statement she gave to the police prior to trial was different from the

       statement she made as a witness at the hearing called into question whether

       Brown was lying when she spoke to the police or if she was lying on the witness

       stand.


[10]   Jones’ underlying contention here is that the admission of Brown’s prior

       statement that Jones assaulted her to the officers might have allowed the trial

       court to wrongly consider her statement as substantive evidence. This concern

       does not render Brown’s statement inadmissible. If Jones believed there was a

       danger that the trial court would use the statement as substantive evidence, then

       it was incumbent upon him to request that the trial court consider the statement

       only to determine Brown’s credibility. See Ind. Evidence Rule 105.

[11]   Moreover, we note that the bulk of the evidence against Jones was admitted

       under the excited utterance exception of the hearsay rule. An excited utterance

       is “[a] statement relating to a startling event or condition, made while the

       declarant was under the stress of excitement that it caused.” Ind. Evidence Rule

       803(2). Application of this rule is not mechanical, and the heart of the

       inquiry is whether the statement is inherently reliable because the declarant was

       incapable of thoughtful reflection. Palacios v. State, 926 N.E.2d 1026, 1030-1031

       (Ind. Ct. App. 2010). 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

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 5 of 8
       statement was made. Mathis v. State, 859 N.E.2d 1275, 1279 (Ind. Ct. App.

       2007).


[12]   When Officer Brooks and the other officer arrived at Brown’s residence, Brown

       appeared shaken up and distraught, she was crying, had some blood on her

       face, and some swelling to her eyes. Brown informed the officers that she had

       been assaulted by an unknown “skinny black male with curly hair and gray

       beard.” (Tr. p. 26). Moments later, the officers left after learning that Brown’s

       assailant, Jones, had been arrested at a local Burger King. After about 10-15

       minutes, the officers returned to Brown’s residence. Brown was still hysterical.

       Officer Brooks had to calm her down. Brown then narrated the assault to the

       officers. The statements she made to officers were made a short time after the

       physical altercation with Jones. Her behavior and comments show that, at the

       time, she was under the stress of excitement caused by the altercation with

       Jones, her statements related to the altercation, and they were admissible under

       Ind. Evidence Rule 803(2).


                                        II. Sufficiency of the Evidence

[13]   Jones argues that the evidence was insufficient to sustain his conviction for

       Class A misdemeanor battery. When reviewing the sufficiency of the evidence

       to support a conviction, we consider only the probative evidence and

       reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007). We neither reweigh the evidence nor assess the credibility of

       witnesses. Id. Unless no reasonable fact-finder could conclude the elements of



       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 6 of 8
       the crime were proven beyond a reasonable doubt, we will affirm the

       conviction. Id.


[14]   Indiana Code section 35-42-2-l (b) provides that a person who knowingly or

       intentionally “touches another person in a rude, insolent, or angry manner ...

       commits battery, a Class B misdemeanor.” However, the offense is a Class A

       misdemeanor if it results in bodily injury to any other person. Ind. Code § 35–

       42-2-1(c). In charging Jones, the State alleged that “On or about May 2, 2015, .

       . . Jones did knowingly or intentionally touch . . . Brown in a rude, insolent, or

       angry manner, resulting in bodily injury. . . .” (Appellant’s App. p. 1).


[15]   During Jones’ bench trial, Brown testified that on the day of the incident, she

       spoke with the South Bend police officers. Brown stated that she informed the

       officers that she was in bed when someone entered her home through a

       window. Brown stated that the individual struck her. In addition, Officer

       Brooks’ testimony established that he encountered Brown at the porch of her

       residence when they arrived. Officer Brooks indicated that Brown was

       hysterical, crying, and had some blood on her face. The officer’s narration of

       Brown’s account of events, which was admitted under the excited utterance

       exception of the hearsay rule, presented that Jones struck Brown several times

       and knocked her unconscious.

[16]   Upon review, we conclude that the State presented sufficient evidence to

       sustain Jones’ conviction for Class A misdemeanor battery. The record

       demonstrates that Jones hit Brown, causing her pain. Jones’ claim to the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 7 of 8
       contrary merely amounts to an invitation for this court to reweigh the evidence,

       which we will not do. See Drane, 867 N.E.2d at 146.


                                               CONCLUSION

[17]   Based on the foregoing, we conclude that (1) the trial court did not abuse its

       discretion by admitting Brown’s prior statements to the police; (2) there was

       sufficient evidence supports Jones’ conviction for Class A misdemeanor battery.


[18]   Affirmed.

[19]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016   Page 8 of 8
