      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any
                                                                           Feb 15 2017, 9:21 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                   CLERK
                                                                            Indiana Supreme Court
      estoppel, or the law of the case.                                        Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                        Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana                                    Katherine Modesitt Cooper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marc Benton,                                             February 15, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1606-CR-1475
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Helen W.
      Appellee-Plaintiff.                                      Marchal, Judge
                                                               Trial Court Cause No.
                                                               49G15-1505-F6-17046



      Mathias, Judge.


[1]   Following a jury trial in Marion Superior Court, Marc Benton (“Benton”) was

      convicted of Level 6 felony pointing a firearm and sentenced to 365 days with


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017      Page 1 of 10
      339 days suspended to probation. On appeal, Benton claims that the trial court

      committed reversible error in the admission of certain testimony that Benton

      claims was inadmissible hearsay. Concluding that the statements at issue fall

      within one of the exceptions to the hearsay rule and were cumulative of other

      testimony and therefore harmless, we affirm.


                                 Facts and Procedural History

[2]   Benton and Andre Murdock (“Murdock”) were former friends. On May 14,

      2015, Murdock was driving on German Church Road in Indianapolis when he

      saw Benton driving toward him in the opposite direction. Benton and Murdock

      made eye contact as they passed each other. Benton then made a U-turn and

      began to follow Murdock, who made a right turn on 10th Street because he was

      afraid to stop the car with Benton following him. Benton pulled his car next to

      Murdock’s and began to yell at him. Benton then called Murdock a “bitch” and

      threatened to shoot him, pointing both a handgun and a long gun at Murdock.

      Tr. p. 29.

[3]   Murdock made attempts to evade Benton and made several turns onto various

      streets. Still, Benton followed him, “aiming the guns and yelling.” Tr. p. 35.

      Frightened, Murdock telephoned his mother, Cathleen. Murdock’s voice was

      quivering, and Cathleen described her son as sounding “panicked.” Tr. p. 46.

      Murdock told his mother that Benton was “driving beside him and had a gun

      pointed at him and was telling him to pull over and or either or or [sic] and he

      was was [sic] going to shoot him.” Id. at 47. Concerned for her son’s life and

      worried that Benton would follow Murdock to her home, Cathleen told
      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 2 of 10
      Murdock to drive to the police station for help. Cathleen told Murdock to call

      the police then called the police herself. Murdock, still driving, yelled back at

      Benton to leave him alone and implored him to go home, to no avail.

      Eventually, Murdock called 911 himself and reported Benton’s behavior.

      Murdock arrived at his mother’s home, where he lived, and ran inside and

      locked the doors. Benton remained outside the home.

[4]   In the meantime, officers from the Indianapolis Metropolitan Police

      Department (“IMPD”) were dispatched to the Murdock home on a report that

      Murdock was being followed by a man named “Marc” who had pointed a gun

      at him. Tr. p. 71. The police arrived approximately five to ten minutes after

      Murdock and Benton arrived at the Murdock home. Officer Roman Williams-

      Ervin (“Officer Williams-Ervin”) spoke with Murdock, who was still “angry”

      and “upset.” Tr. p. 75. Murdock told Officer Williams-Ervin that Benton had

      pointed guns at him. Officer Williams-Ervin asked Murdock what type of guns

      Benton pointed at him, and Murdock responded that Benton had pointed a

      Glock pistol with an extended magazine and a “rifle-type weapon” that was

      larger than the pistol. Tr. p. 77.

[5]   IMPD Officer Stacy Riojas (“Officer Riojas”) questioned Benton after reading

      him his Miranda rights. Although initially agitated, Benton seemed

      uninterested and dismissive of the police questioning. Benton admitted to

      Officer Williams-Ervin that he had guns in his car and stated that Murdock had

      not been over to his car since he parked and thus would not have seen the guns

      inside the car. Officer Williams-Ervin looked at Benton’s car and could see on

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 3 of 10
      the passenger seat a Glock handgun with an extended magazine and a short-

      barreled rifle. Officer Williams-Ervin secured the weapons in his vehicle and

      ultimately arrested Benton for pointing a firearm.


[6]   On May 18, 2015, the State charged Benton with Level 6 felony pointing a

      firearm. A jury trial was held on May 25, 2016. At the trial, Benton objected to

      Cathleen’s testimony regarding what Murdock had told her during their

      telephone conversation. The trial court overruled this objection. Benton also

      objected to testimony by Officer Williams-Ervin regarding what Murdock told

      him about his encounter with Benton. The trial court overruled this objection,

      and Officer Williams-Ervin related to the jury his conversation with Murdock.

      Murdock also testified about his encounter with Benton and stated

      unequivocally that he saw Benton, whom he knew well, point guns at him

      while Benton chased Murdock in his car. The jury found Benton guilty as

      charged.


[7]   At a hearing held on June 21, 2106, the State sentenced Benton to 365 days, all

      suspended to probation, with credit for time served awaiting trial. With this

      credit, Benton’s sentence was 339 days, suspended to probation on GPS

      monitoring. The trial court also stated that it would reconsider the GPS

      monitoring after 180 days and informed Benton of the possibility of alternate

      misdemeanor sentencing. Benton now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 4 of 10
                                           Standard of Review

[8]    Benton argues that the trial court erred in the admission of testimony he claims

       was inadmissible hearsay.1 In considering Benton’s argument, we note that

       decisions regarding the admission of evidence are left to the sound discretion of

       the trial court, and we review the court’s decision only for an abuse of that

       discretion. Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010). The trial

       court abuses its discretion if its decision is clearly against the logic and effect of

       the facts and circumstances before the court, or if the court has misinterpreted

       the law. Id.


                                             The Hearsay Rule

[9]    Hearsay is defined by Indiana Evidence Rule 801(c) as a statement that is not

       made by the declarant while testifying at trial or hearing and which is offered

       into evidence to prove the truth of the matter asserted in the statement. As a

       general rule, hearsay evidence is inadmissible. Boatner, 934 N.E.2d at 186.

       (citing Ind. Evidence Rule 802). However, exceptions to the hearsay rule permit

       the admission of otherwise inadmissible evidence,


[10]   One exception to the hearsay rule is the “excited utterance” exception

       contained in Evidence Rule 803(2). This rule provides that “[a] statement

       relating to a startling event or condition, made while the declarant was under

       the stress of excitement that it caused” is not excluded by the hearsay rule,


       1
        Benton makes no claim on appeal that the admission of the statements violated his rights under the
       Confrontation Clause of the Sixth Amendment.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017       Page 5 of 10
       “regardless of whether the declarant is available as a witness.” Ind. Evidence

       Rule 803(2).

[11]   Another exception to the hearsay rule, the present sense impression exception,

       is contained in Evidence Rule 803(1), which provides that “[a] statement

       describing or explaining an event, condition or transaction, made while or

       immediately after the declarant perceived it” is also not hearsay. In order for a

       hearsay statement to be admitted as an excited utterance, three elements must

       be present: (1) a startling event has occurred; (2) a statement was made by a

       declarant while under the stress of excitement caused by the event; and (3) the

       statement relates to the event. Boatner, 934 N.E.2d at 186. The admissibility of

       an allegedly excited utterance turns on whether the statement was inherently

       reliable because the witness was under the stress of the event and unlikely to

       make deliberate falsifications. Id. Thus, the heart of the inquiry is whether the

       declarant was incapable of thoughtful reflection. Id. Although the amount of

       time that has passed is not dispositive, a statement that is made long after the

       startling event is usually less likely to be an excited utterance. Id.


                                      Discussion and Decision

[12]   At the outset, we agree with Benton that Murdock’s statements to his mother

       and the officer, as related by these witnesses during their testimony at trial, was,

       by definition, hearsay. That is, the statements were made by the declarant,

       Murdock, when he was not testifying at trial or a hearing, and the statements

       were offered into evidence to prove the truth of what Murdock stated: that


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 6 of 10
       Benton had chased him in his car and pointed guns at him while threatening to

       shoot him.


                                A. Murdock’s Statements to His Mother

[13]   With regard to Murdock’s statement to his mother, that statement appears to fit

       within either of the above-mentioned exceptions to the hearsay rule. First, it

       was a present sense impression in that it described an event (being chased and

       threatened by Benton), and it was made while Murdock perceived the event. See

       Jones v. State, 780 N.E.2d 373, 377 (Ind. 2002) (holding that murder victim’s

       statement to her friend while they were walking near her apartment on night

       before her murder that the person who just drove by was her landlord was a

       contemporaneous description of the person driving by and was thus admissible

       under the present-sense impression exception to the hearsay rule).


[14]   Second, Murdock’s statement to his mother was also an excited utterance in

       that it related to a startling event (being chased and threatened by Benton) and

       was made while Murdock was under the stress of excitement caused by the

       event. Indeed, Murdock’s mother Cathleen testified that, during her telephone

       conversation with her son, he seemed “panicked” and his voice was trembling

       under the stress of the event. Tr. p. 46. Boatner, 934 N.E.2d at 187 (holding that

       domestic violence victim’s statement to officer that defendant had pushed her

       down and hit her was admissible under the excited utterance exception where

       the declarant was disoriented, crying, without shoes, and almost ran into the

       officer in her attempt to find help). Because Murdock’s statement to his mother


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 7 of 10
       fell within two exceptions to the hearsay rule, the trial court did not abuse its

       discretion in admitting Cathleen’s testimony regarding Murdock’s statement.


                                  B. Murdock’s Statement to the Police

[15]   We reach a similar conclusion with regard to Murdock’s statement to the

       police. Officer Williams-Ervin testified that, when he spoke with Murdock,

       Murdock was still “angry” and “upset” about the incident with Benton. He

       further testified that both Murdock and Benton were “agitated,” “heated,” and

       seemed to have been in an argument. Tr. pp. 72-73. Moreover, only a few

       minutes had passed since Benton had chased Murdock home. See Tr. p. 33

       (Murdock explaining that it took “not even” ten to fifteen minutes for the police

       to arrive); Tr. p. 60 (Cathleen explaining that it took the police “maybe five

       minutes” to arrive to her house). Thus, Murdock’s statement to Officer

       Williams-Ervin was made after a startling event had occurred (being chased by

       a gun-wielding Benton), the statement was made while Murdock was still under

       the stress of excitement caused by the event, and the statement related to the

       event. Further, little time had passed since the event. Accordingly, we hold that

       the trial court properly admitted the statement under the excited utterance

       exception to the hearsay rule. See Fowler v. State, 829 N.E.2d 459, 463-64 (Ind.

       2005) (holding that domestic violence victim’s statement to police implicating

       her husband was admissible under the excited utterance exception where about

       fifteen minutes had elapsed between the police being dispatched and the wife’s

       statement, and wife was still crying, bleeding from the nose, and having trouble



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 8 of 10
       catching her breath when she made the statement);2 Boatner, 934 N.E.2d at 187

       (holding that domestic violence victim’s statement to officer that defendant had

       pushed her down and hit her was admissible under the excited utterance

       exception where the declarant was disoriented, crying, without shoes, and

       almost ran into the officer in her attempt to find help); Gordon v. State, 743

       N.E.2d 376, 378 (Ind. Ct. App. 2001) (domestic violence victim’s statement to

       the police that her boyfriend, the defendant, hit her were admissible under the

       excited utterance exception where victim spoke to the police only five minutes

       after she placed 911 emergency call and she was still visibly distressed as a

       result of the domestic battery).


[16]   Lastly, assuming arguendo that the trial court abused its discretion in admitting

       these statements, they were merely cumulative of other evidence admitted

       without objection at trial, including the tapes of the 911 calls placed by

       Murdock and his mother and, more importantly, Murdock’s own unequivocal

       testimony at trial that Benton chased him down and pointed guns at him. If

       evidence which is alleged to have been improperly admitted is cumulative of

       other evidence, the admission is harmless error. Harrison v. State, 32 N.E.3d

       240, 254 (Ind. Ct. App. 2015), trans. denied. Accordingly, even if the Murdock’s

       hearsay statements were inadmissible (and they were not), any error would be




       2
         As this court first recognized in Roberts v. State, 894 N.E.2d 1018, 1024-25 (Ind. Ct. App. 2008), Fowler was
       abrogated in part by Giles v. California, 554 U.S. 353 (2008), with regard to its broad interpretation of the
       doctrine of “forfeiture by wrongdoing” as applied to the Confrontation Clause of the Sixth Amendment.
       However, Fowler is still good law for purposes of the hearsay rule. See Young v. State, 980 N.E.2d 412, 421
       (Ind. Ct. App. 2012) (relying on Fowler with regard to its holding on the excited utterance exception).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017           Page 9 of 10
       harmless. See Jones, 780 N.E.2d at 377 (holding that exclusion of murder

       victim’s statement to her friend that the person who just drove by was her

       landlord was improper but harmless because the statement was merely

       cumulative of the landlord’s testimony that he was).


                                                 Conclusion

[17]   Murdock’s statements to his mother and to the police were hearsay, but they

       fall within exceptions to the hearsay rule. Accordingly, the trial court did not

       abuse its discretion in admitting the statements, and we affirm the judgment of

       the trial court.


[18]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1475 | February 15, 2017   Page 10 of 10
