MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                   Jul 20 2018, 6:10 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                         Curtis T. Hill, Jr.
Cannon Bruns & Murphy                                     Attorney General of Indiana
Muncie, Indiana
                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian J. Offringa,                                        July 20, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-316
        v.                                                Appeal from the Delaware Circuit
                                                          Court
State of Indiana,                                         The Honorable John M. Feick,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          18C04-1310-FD-216



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018                     Page 1 of 9
                                           Case Summary
[1]   Brian Offringa (“Offringa”) appeals his conviction for Strangulation, as a Class

      D felony.1 He presents the sole issue of whether the trial court abused its

      discretion in the admission of evidence. We affirm.



                                   Facts and Procedural History
[2]   On September 11, 2013, Offringa entered the showroom of Benson’s

      Motorcycles in Muncie, Indiana (“Benson’s”) and greeted some of the female

      employees by saying “hey sluts.” (Tr. Vol. II, pg. 79.) Casey Schmitt

      (“Schmitt”) verbally confronted Offringa, who responded by grabbing Schmitt

      and declaring that he could “do what I want.” (Id., pg. 80.)


[3]   Offringa then entered the office of writer Kimberly Wilkerson (“Wilkerson”)

      and inquired about the status of a motorcycle he had left for repair. Wilkerson

      advised Offringa that the specialty parts for his motorcycle were on order but

      had not yet arrived; the news made Offringa unhappy. Offringa insisted that

      Benson’s should provide him a motorcycle so that he could participate in a

      planned group ride the next weekend. Wilkerson explained that Benson’s no

      longer rented motorcycles and suggested that Wilkerson go to Indianapolis for a




      1
          Ind. Code § 35-42-2-9.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 2 of 9
      rental. She handed Wilkerson a brochure explaining rental reimbursement

      under an extended warranty plan.


[4]   Offringa took the brochure and began to move, and Wilkerson assumed that

      Offringa was heading out the office door. However, she became aware of

      “hands around [her] throat.” (Id., pg. 115.) Wilkerson “woke up” to find that

      Offringa had placed her in a headlock; he had his leg on her left thigh to

      immobilize her and “was taking his fingers and pounding” her head. (Id., pg.

      115-16.)


[5]   Schmitt called police and Muncie Police Officer Ronald Locke (“Officer

      Locke”) was dispatched to Benson’s. He found Wilkerson to be “upset” and

      observed that her neck was red “all around.” (Id., pg. 41, 43.) He

      photographed Wilkerson’s injuries and took recorded statements from

      Wilkerson, Schmitt, and two other employees. Wilkerson was hospitalized and

      treated for ruptured discs in her neck.2


[6]   Offringa was arrested and charged with two counts of strangulation, for

      conduct related to Wilkerson and Schmitt. On November 6, 2017, Offringa

      was tried before a jury. He was acquitted of the charge related to Schmitt and

      convicted of the charge related to Wilkerson. Offringa received a sentence of




      2
          She testified to having had one broken vertebrae also. It is unclear whether this was a prior injury.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018                           Page 3 of 9
      three years imprisonment, with eighteen months suspended to probation. He

      now appeals.



                                 Discussion and Decision
[7]   Offringa argues that the trial court improperly admitted into evidence, over his

      hearsay objections, (1) Officer Locke’s testimony describing Wilkerson’s report

      of the incident and (2) State’s Exhibit 7, a recording made on Officer Locke’s

      pen camera as he initially interviewed Wilkerson and her co-employees.


[8]   A trial court’s decision to admit or exclude evidence is within its discretion and

      is afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702

      (Ind. 2013). The reviewing court will not reverse the ruling unless there has

      been a manifest abuse of discretion resulting in the denial of a fair trial. Id. In

      this context, an abuse of discretion occurs if the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court or it

      has misinterpreted the law. Id. We may affirm a trial court’s decision regarding

      the admission of evidence if it is sustainable on any basis in the record. Barker v.

      State, 695 N.E.2d 925, 930 (Ind. 1998).


[9]   A hearsay statement is one that “is not made by the declarant while testifying at

      the trial or hearing” and “is offered in evidence to prove the truth of the matter

      asserted.” Ind. Evidence Rule 801(c). In general, hearsay is not admissible

      unless the Rules of Evidence specifically provide otherwise. Evid. R. 802.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 4 of 9
[10]   Testimony. Officer Locke testified that he was dispatched to Benson’s, where

       Wilkerson reported that Offringa had “pushed his penis in her face,” grabbed

       her throat, strangled her, and held her in a headlock. (Tr. Vol. II, pg. 42.)

       Offringa objected on hearsay grounds; the trial court found the excited

       utterance exception to the hearsay rule to be applicable.


[11]   An excited utterance 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.” Evid. R. 803(2). Application of the excited

       utterance exception is not mechanical; rather, admissibility should generally be

       determined on a case-by-case basis. Brittain v. State, 68 N.E.3d 611, 620 (Ind.

       Ct. App. 2017). We explained:


               the heart of the inquiry is whether the statement is inherently
               reliable because the declarant was incapable of thoughtful
               reflection. The statement must be trustworthy under the specific
               facts of the case at hand. The focus is on whether the statement
               was made while the declarant was under the influence of the
               excitement engendered by the startling event. 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.


       Id. at 620-21 (internal citations omitted).


[12]   Officer Locke arrived at Benson’s approximately one to two hours after the

       events at issue transpired. He found Wilkerson upset and observed that she had

       redness on the front, back, and sides of her neck. She had sustained serious

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 5 of 9
       injuries for which she had not yet been hospitalized and treated. However, she

       provided information in response to routine police investigatory questions.

       Some facts before the trial court suggested an excited utterance while others did

       not. But we need not decide whether the challenged testimony was an excited

       utterance because it was cumulative of the victim’s testimony. See Nunley v.

       State, 916 N.E.2d 712, 720 (Ind. Ct. App. 2009) (evidence consistent with and

       not elaborating on victim testimony not grounds for reversal.)


[13]   Pen Camera Footage. When Officer Locke was dispatched, he was outfitted

       with a pen-shaped camera that he activated and kept in his pocket as he took

       the victim and employee statements. During cross-examination of Officer

       Locke, defense counsel inquired as to whether Officer Locke had “reviewed

       that footage” from “a pen camera” and Officer Locke responded affirmatively.

       (Tr. Vol. II, pg. 54.) Defense counsel then began to question Officer Locke

       concerning the content, specifically addressing whether Wilkerson had reported

       being unable to breathe and whether she or others indicated that Locke had

       been joking.


[14]   Thereafter, a hearing was conducted outside the presence of the jury at which

       the parties offered arguments as to the admissibility of the camera footage.

       Ultimately, the footage – with a short redaction – was admitted into evidence as

       State’s Exhibit 7.


[15]   Offringa now contends that the admission of State’s Exhibit 7, together with

       Officer Locke’s testimony, constituted the type of “drumbeat repetition of the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 6 of 9
       declarant’s statements prior to the declarant’s testifying and being subject to

       cross examination” specifically disapproved of by our Indiana Supreme Court

       in Modesitt v. State, 578 N.E.2d 649, 654 (Ind. 1991). In Modesitt, the defendant

       was on trial for child molestation and the prosecutor called three witnesses to

       recount what the victim had told them prior to calling the victim to testify; even

       then, the victim corroborated less than all the alleged acts already testified about

       and was not asked if she had made the prior statements or whether the

       statements were, in fact, true. Id. at 650. The Court observed that, “by putting

       into evidence the victim’s out-of-court charges against Modesitt by three

       separate and repetitive witnesses prior to calling the victim herself, the

       prosecutor effectively precluded Modesitt from effective cross examination of

       these charges.” Id. at 651 (emphasis in original). The Court was unable to “say

       that the drumbeat repetition of the victim’s original story prior to calling the

       victim to testify did not unduly prejudice the jury which convicted Modesitt.”

       Id. at 652.


[16]   The Court held: “from this point forward, a prior statement is admissible as

       substantive evidence only if the declarant testifies at trial and is subject to cross

       examination concerning the statement, and the statement is (a) inconsistent

       with the declarant’s testimony, and was given under oath subject to the penalty

       of perjury at a trial, hearing , or other proceeding, or in a deposition, or (b)

       consistent with the declarant’s testimony and is offered to rebut an express or

       implied charge against the declarant of recent fabrication or improper influence

       or motive, or (c) one of identification of a person made after perceiving the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 7 of 9
       person.” Id. at 653-54. Finally, the Court specified that the decision “does not

       affect the existing, recognized hearsay rule and its exceptions.” Id. at 654.


[17]   In response to Offringa’s argument, the State directs our attention to Norris v.

       State, 53 N.E.3d 512 (Ind. Ct. App. 2016). In Norris, we observed that, where

       there was no trial objection based on drumbeat repetition, the appellant had

       waived his appellate argument of such, which he premised upon Modesitt. Id. at

       525. Waiver notwithstanding, we found no fundamental error, concluding that

       the challenged testimony from two witnesses “merely provided an overview of

       the situation and a summary of [victim] accusations, without elaborating on

       [the victim’s] evidence.” Id. at 526. Likewise, Offringa did not lodge an

       objection that drumbeat repetition of accusations against him was prejudicing

       his jury or denying him a right of confrontation. And Officer Locke’s testimony

       contained a concise summary of Wilkerson’s accusations as opposed to the

       detailed, repetitive drumbeat, bolstering testimony considered in Modesitt.


[18]   Additionally, the State observes that Offringa elicited testimony regarding the

       content of the pen camera footage before the substantially complete footage was

       admitted as State’s Exhibit 7. The State argues that the rule of completeness,

       incorporated into Evidence Rule 106, supported its admissibility.


[19]   Evidence Rule 106 states: “If a party introduces all or part of a writing or

       recorded statement, an adverse party may require the introduction, at that time,

       of any other part – or any other writing or recorded statement – that in fairness

       ought to be considered at the same time.” This rule is designed to avoid


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 8 of 9
       misleading impressions caused by taking a statement out of context or

       conveying a distorted picture by introducing only selective parts. Strunk v. State,

       44 N.E.3d 1, 6 (Ind. Ct. App. 2015). The remainder of the material is subject to

       the general rules of admissibility and immaterial, irrelevant, or prejudicial

       portions should not be admitted. Id.


[20]   Offringa’s cross-examination of Officer Locke based upon the recording

       suggested that Wilkerson maintained her ability to breathe during the incident

       and that at least some of the employees characterized the event as a joke.

       Evidence Rule 106 then afforded the State with an opportunity to seek

       admission of the remainder of the recording. The trial court excised a portion

       of the recording in which a reference was made to an individual, Jeff, who had

       not witnessed the event. The other portion was admissible to correct an

       impression that the event was innocuous. Indeed, although some of the

       employees initially perceived or suspected joking, none maintained that

       characterization. The redacted recording was properly admitted into evidence.



                                               Conclusion
[21]   Offringa has not demonstrated an abuse of the trial court’s discretion in the

       admission of evidence.


[22]   Affirmed.


       Crone, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018   Page 9 of 9
