                                                                                        FILED
MEMORANDUM DECISION                                                              08/22/2017, 11:18 am

                                                                                        CLERK
Pursuant to Ind. Appellate Rule 65(D),                                             Indiana Supreme Court
                                                                                      Court of Appeals
this Memorandum Decision shall not be                                                   and Tax Court

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
Michael R. Fisher                                        Curtis Hill Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Foster,                                          August 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-618
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Robert York,
Appellee-Plaintiff.                                      Judge Pro Tem
                                                         Trial Court Cause No.
                                                         49G04-1604-FA-15663



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017           Page 1 of 6
                                            Case Summary
[1]   Charles Foster (“Foster”) appeals his conviction of Criminal Confinement, as a

      Class C Felony,1 presenting challenges to the admission of a recorded 9-1-1 call.


[2]   We affirm.



                                    Facts and Procedural History
[3]   Around 6:15 a.m. on April 2, 2013, S.W. approached a house in Indianapolis

      and screamed to a resident that she had just been raped. S.W. appeared to be in

      shock. The resident called 9-1-1 and an investigation ensued, which included

      DNA analysis that led police to Foster.


[4]   Foster was tried by a jury on several charges: Rape, as a Class A Felony;2 three

      counts of Criminal Confinement—two as Class B felonies3 and one as a Class C

      felony; and Pointing a Firearm, as a Class A Misdemeanor.4 At the trial, S.W.

      and Foster gave conflicting testimony regarding an encounter in Foster’s car,

      and a recording of the 9-1-1 call was admitted over Foster’s objection.




      1
       Ind. Code § 35-42-3-3(a)(1). We refer throughout to the provisions of the Indiana Code in effect at the time
      of the offense.
      2
          I.C. § 35-42-4-1(a)(1).
      3
          I.C. § 35-42-3-3(a)(2).
      4
          I.C. § 35-47-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017             Page 2 of 6
[5]   The jury found Foster guilty of Criminal Confinement, as a Class C Felony,

      and not guilty of the remaining counts.


[6]   Foster now appeals.



                                 Discussion and Decision
[7]   “The trial court is afforded wide discretion in ruling on the admissibility of

      evidence.” Shinnock v. State, 76 N.E.3d 841, 842 (Ind. 2017). We review its

      rulings for an abuse of that discretion, which “occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before it.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).


[8]   Foster first argues that the trial court abused its discretion in admitting the

      recorded 9-1-1 call because the call contains inadmissible hearsay. Hearsay is

      an out-of-court statement “offered in evidence to prove the truth of the matter

      asserted.” Ind. Evidence Rule 801(c). The Indiana Rules of Evidence provide

      that hearsay evidence is not admissible unless the evidence satisfies an

      exception to the rule. Evid. R. 802. Moreover, because the challenged

      evidence contains two levels of hearsay—(1) statements the caller made and (2)

      statements made by S.W. that the caller relayed—each level of hearsay must

      “conform[] with an exception to the rule.” Evid. R. 805.


[9]   One exception is for an excited utterance, which is “[a] statement relating to a

      startling event or condition, made while the declarant was under the stress of

      excitement that it caused.” Evid. R. 803(2). Here, the caller stated that S.W.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017   Page 3 of 6
       screamed that she had just been raped and appeared to be in shock. Moreover,

       when law enforcement responded a few minutes later, S.W. was crying. These

       circumstances indicate that S.W.’s statements were excited utterances.


[10]   Foster does not directly dispute that S.W.’s statements constituted excited

       utterances, but argues that the caller’s statements do not satisfy this exception.

       Yet, a different exception to the rule against hearsay applies when a statement is

       a present-sense impression, which is “[a] statement describing or explaining an

       event, condition or transaction, made while or immediately after the declarant

       perceived it.” Evid. R. 803(1). The caller’s statements meet this exception

       because the call was placed after S.W. screamed she had been raped, and while

       the caller was with S.W., relaying what was happening, and giving information

       about the present condition of S.W. Thus, because both levels of hearsay

       satisfy an exception to the rule, the trial court did not err in this respect.5


[11]   Foster next argues that admission of the call violated his Sixth Amendment

       right to confront adverse witnesses because the caller was not present to testify.6

       The Confrontation Clause of the Sixth Amendment to the United States

       Constitution “prohibits the introduction of testimonial statements by a non-



       5
         Foster briefly argues that S.W.’s statements were inadmissible because the caller had no personal
       knowledge of the underlying incident. However, “the hallmark of all hearsay exceptions” is that the
       excepted statements “bear sufficient indicia of reliability.” Teague v. State, 978 N.E.2d 1183, 1188 (Ind. Ct.
       App. 2012). This is why each level of hearsay must independently satisfy an exception. See Evid. R. 805.
       Here, the caller had personal knowledge of what S.W. had just screamed to him and S.W. had personal
       knowledge of the startling incident. Both levels of hearsay meet an exception to the rule, and the
       circumstances present sufficient indicia of reliability to admit S.W.’s statements through the caller.
       6
           Foster presents no challenge under the Indiana constitution.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017                Page 4 of 6
       testifying witness, unless the witness is ‘unavailable to testify, and the defendant

       had had a prior opportunity for cross-examination.’” Ward v. State, 50 N.E.3d

       752, 757 (Ind. 2016) (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)).


               Statements are nontestimonial when made in the course of police
               interrogation under circumstances objectively indicating that the
               primary purpose of the interrogation is to enable police assistance
               to meet an ongoing emergency. They are testimonial when the
               circumstances objectively indicate that there is no such ongoing
               emergency, and that the primary purpose of the interrogation is
               to establish or prove past events potentially relevant to later
               criminal prosecution.


       Davis v. Washington, 547 U.S. 813, 822 (2006).


[12]   Foster argues that “the purpose of the call . . . was to report a crime that had

       already been committed . . . not to address what was happening in the

       moment.” Appellant’s Br. at 13. We disagree. Rather, here, the caller stated

       that he was trying to help S.W. and the call focused on S.W.’s condition—

       whether she was awake, whether she was breathing normally, and her state of

       shock. Thus, because the primary purpose of the call was to address S.W.’s

       emergent needs—not to establish or prove facts relevant to later criminal

       prosecution—the statements were nontestimonial. We accordingly conclude

       that admission of the call did not offend Foster’s Sixth Amendment right to

       confront adverse witnesses.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017   Page 5 of 6
                                               Conclusion
[13]   The trial court properly admitted the recorded 9-1-1 call.


[14]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017   Page 6 of 6
