                                                                              FILED
                                                                          Aug 21 2020, 8:37 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Zachary J. Stock                                           Curtis T. Hill, Jr.
      Zachary J. Stock, Attorney at Law, P.C.                    Attorney General of Indiana
      Indianapolis, Indiana                                      Steven Hosler
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Zackery A. Hurt,                                           August 21, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 20A-CR-30
              v.                                                 Appeal from the Hendricks
                                                                 Superior Court
      State of Indiana,                                          The Honorable Stephenie D.
      Appellee-Plaintiff.                                        Lemay-Luken, Judge
                                                                 Trial Court Cause No.
                                                                 32D05-1904-CM-418



      Mathias, Judge.


[1]   Zackery Hurt (“Hurt”) was convicted in Hendricks Superior Court of Class A

      misdemeanor domestic battery and Class B misdemeanor disorderly conduct.

      Hurt appeals and argues that the trial court abused its discretion when it

      admitted the victim’s hearsay statements into evidence. Concluding that the


      Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020                           Page 1 of 10
      trial court erred when it admitted the hearsay statements into evidence, we

      reverse and remand for a new trial.


                                  Facts and Procedural History
[2]   On the night of March 30, 2019, Hurt and his wife, Katherine Hurt

      (“Katherine”), returned to Katherine’s aunt’s home, where they were dog

      sitting, in an Uber with an unknown female passenger. Both Hurt and

      Katherine had been drinking alcoholic beverages and were intoxicated.

      Hendricks County Sheriff’s Department Sergeant Anthony Goodpaster

      (“Sergeant Goodpaster”) was dispatched to the home in response to an

      incomplete 911 call.


[3]   When Sergeant Goodpaster arrived at the home, he observed a vehicle in front

      of the home. The driver of the vehicle identified himself as an Uber driver, and

      the unknown female passenger was still in the vehicle. As the sergeant was

      asking the female passenger for her identification, Goodpaster heard a loud

      noise from inside the home. Sergeant Goodpaster walked up to the front door

      and rang the doorbell, but no one responded. He then knocked and announced

      himself. Hurt responded and opened the front door.


[4]   Hurt’s speech was slurred, his eyes were bloodshot, and Sergeant Goodpaster

      smelled the strong odor of alcohol on Hurt’s breath. Hurt had a scratch on his

      face and a cut on his lip. When Katherine came to the front door, Sergeant

      Goodpaster observed that she was also intoxicated. A subsequent test revealed

      that her blood alcohol content was .30. Katherine had a bloody nose and a cut

      Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020       Page 2 of 10
      on her lip. In the hallway behind the couple, the sergeant saw that a dog gate

      had been knocked down to the floor and appeared to have blood on it.


[5]   Sergeant Goodpaster’s investigation at the home was recorded on his

      department-issued body camera. He interviewed both Hurt and Katherine and

      asked them individually how they received their injuries. Hurt was interviewed

      first, and he eventually told Sergeant Goodpaster that he and Katherine had

      argued and that she had hit him. He told the officer that he did not want to

      press charges. Katherine gave several explanations for her injuries, including

      that she fell down and that Hurt accidentally elbowed her. Katherine finally

      stated that Hurt deliberately hit her face with his elbow.


[6]   On April 1, 2019, the State charged Hurt with Class A misdemeanor domestic

      battery and Class B misdemeanor disorderly conduct.1 Hurt’s bench trial

      occurred on November 4, 2019. Over Hurt’s hearsay objections, the trial court

      admitted Sergeant Goodpaster’s testimony that Katherine stated that Hurt hit

      her with his elbow and the body camera recording of Goodpaster’s interview

      with Katherine. Tr. pp. 27, 39–41; Ex. Vol., State’s Ex. 1. Katherine testified

      that due to her state of intoxication, she was unable to recall how she received

      her injuries and she could not remember speaking to Sergeant Goodpaster on

      March 30, 2019. Tr. pp. 63–64. The trial court found Hurt guilty as charged.




      1
       The battery charge alleged that Hurt touched Katherine in a rude, insolent or angry manner. The disorderly
      conduct charge alleged that Hurt recklessly, knowingly or intentionally engaged in fighting or tumultuous
      conduct. Appellant’s App. pp. 12–13.

      Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020                              Page 3 of 10
      Hurt was sentenced to concurrent terms of 180 days with 172 days suspended to

      probation. Hurt now appeals.


                                        Discussion and Decision
[7]   Hurt argues that the trial court abused its discretion when it admitted Sergeant

      Goodpaster’s testimony recounting Katherine’s hearsay statements.2 “A trial

      court has broad discretion to admit or exclude evidence, including purported

      hearsay.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). We will disturb the

      trial court’s ruling only if it amounts to an abuse of discretion, “meaning the

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

      circumstances or it is a misinterpretation of the law.” Id.


[8]   Hearsay is an out-of-court statement used to prove the truth of the matter

      asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it falls

      under a hearsay exception. Teague v. State, 978 N.E.2d 1183, 1187 (Ind. Ct.

      App. 2012); Ind. Evidence Rule 802. Katherine’s out-of-court statement was

      used to prove the truth of the matter asserted, i.e., that Hurt struck her. The

      State argues that Katherine’s statement was admissible under one of three

      hearsay exceptions listed in Evidence Rule 803: recorded recollection, excited

      utterance, and/or present sense impression.




      2
       The State argues that Hurt waived the arguments he raises in this appeal by failing to raise them in the trial
      court. We do not agree. Hurt made a hearsay objection to both the admission of the recording from
      Goodpaster’s body camera and Goodpaster’s testimony recounting Katherine’s statement. Tr. pp. 27, 39–40.

      Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020                                  Page 4 of 10
[9]    The recorded recollection exception allows the admission of “[a] record that:

       (A) is on a matter the witness once knew about but now cannot recall well

       enough to testify fully and accurately; (B) was made or adopted by the witness

       when the matter was fresh in the witness’s memory; and (C) accurately reflects

       the witness’s knowledge.” Ind. Evidence Rule 803(5). “[B]efore a statement can

       be admitted under the recorded recollection hearsay exception, certain

       foundational requirements must be met, including some acknowledgment that

       the statement was accurate when it was made.” Ballard v. State, 877 N.E.2d 860,

       862 (Ind. Ct. App. 2007) (quotation omitted). The trial court should not admit a

       witness’s statement into evidence when the witness cannot vouch for the

       accuracy of the statement nor remember having made the statement. Id. (citing

       Kubsch v. State, 866 N.E.2d 726, 735 (Ind. 2007) (explaining that the trial court

       correctly denied introduction of witness’s prior statement where witness could

       not vouch for statement that she could not remember making).


[10]   At trial, Katherine did not vouch for the accuracy of her statement to Sergeant

       Goodpaster. She was heavily intoxicated when she gave the statement and

       could not recall speaking to the officer.3 For these reasons, the admission of

       Katherine’s statement was not permissible under the recorded recollection

       exception.




       3
        In fact, both Hurt and Katherine were so intoxicated, the officers first transported them to the hospital for
       medical clearance before taking them to jail.

       Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020                                   Page 5 of 10
[11]   Next, we consider whether the exception for excited utterances applies. “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, even if the declarant is available as a witness. Ind. Evidence Rule 803(2).

       A hearsay statement may be admitted as an excited utterance where: (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 v. State, 934 N.E.2d 184, 186–87 (Ind. Ct. App. 2010).

       “This is not a mechanical test, and 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. at 186. “The heart of the inquiry is whether the declarant was

       incapable of thoughtful reflection.” Id. While 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.


[12]   The State argues that Katherine’s statement is admissible as an excited

       utterance because “Katherine was intoxicated with a blood alcohol content of

       .30 and unable to reflect or make a coherent falsehood.” Appellee’s Br. at 13.

       Hurt concedes that Katherine suffered a startling or stressful event but contends

       that she was not under stress from that event when she spoke to Sergeant

       Goodpaster.


[13]   Sergeant Goodpaster arrived on the scene approximately ten minutes after the

       911 call was received. After Hurt opened the door to the residence, the sergeant

       Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020         Page 6 of 10
       spoke to the couple. Sergeant Goodpaster separated them and spoke to Hurt for

       several minutes. After he was done speaking to Hurt, the sergeant questioned

       Katherine about her injuries. Katherine was visibly intoxicated and struggled to

       speak coherently. But she was calm and did not become upset until Sergeant

       Goodpaster mentioned that Hurt might go to jail. It is unclear whether

       Katherine struggled to recall how her injuries occurred due to her level of

       intoxication or whether she was attempting to protect Hurt. She gave several

       explanations for how her injuries occurred including that her bloody nose was

       the result of illness, that she fell, that Hurt accidently elbowed her in the face,

       and that he purposefully elbowed her in the face. Ex. Vol., State’s Ex. 1.


[14]   At least fifteen minutes had elapsed between the 911 call and Katherine’s

       statements to Sergeant Goodpaster. And Katherine made the statement to the

       officer in response to his questioning. See Bryant v. State, 802 N.E.2d 486, 496

       (Ind. Ct. App. 2004) (explaining that statements made in response to

       questioning “increases the likelihood that the statements were not made under

       the stress of the startling event”), trans. denied. Moreover, we agree with Hurt’s

       characterization of the video from the body camera, which shows that “Hurt’s

       wife was deliberating—albeit drunkenly—about how to respond to repeated

       questioning over the course” of several minutes. Appellant’s Br. at 12. Because

       Katherine was not under the stress of the event at the time she made her

       statement to Sergeant Goodpaster, we conclude that Katherine’s statement was

       not admissible as an excited utterance.




       Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020           Page 7 of 10
[15]   Finally, the State argues that Katherine’s hearsay statement was admissible

       under the exception for present sense impressions, which permits “[a] statement

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

       immediately after the declarant perceived it.” Ind. Evidence Rule 803(1). This

       hearsay exception “is based on the assumption that the lack of time for

       deliberation provides reliability.” Mack v. State, 23 N.E.3d 742, 755 (Ind. Ct.

       App. 2014) (quoting 13 Robert Lowell Miller, Jr., Ind. Prac. Ser. § 803.101 at

       802 (3d ed. 2007)), trans. denied. In order for a statement to fall under the

       present sense impression exception, three requirements must be met: (1) it must

       describe or explain an event or condition; (2) during or immediately after its

       occurrence; and (3) it must be based upon the declarant’s perception of the

       event or condition. Amos v. State, 896 N.E.2d 1163, 1168 (Ind. Ct. App. 2008),

       trans. denied.


[16]   Katherine did not make her statements to Sergeant Goodpaster either during or

       immediately after she was injured. As noted above, the altercation occurred at

       least fifteen minutes before she was questioned by the officer. See Mack, 23

       N.E.3d at 755 (stating that “a few minutes . . . is ample time for a declarant to

       deliberate and possibly fabricate a statement”). And given her multiple

       explanations for how she suffered the injuries to her nose and mouth, Katherine

       had time to deliberate before she spoke to Sergeant Goodpaster. Her ability to

       deliberate was hindered by her state of intoxication, but the record establishes

       that she was still able to consider her responses to the officer’s questions. For all




       Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020          Page 8 of 10
       of these reasons, we conclude that Katherine’s statement to Sergeant

       Goodpaster was not admissible as a present sense impression.


[17]   Because we conclude that Katherine’s statements to Sergeant Goodpaster

       constitute inadmissible hearsay, we must determine whether the trial court

       committed reversible error or harmless error when it admitted her statements

       into evidence. “[E]rrors in the admission of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of a party.” In re Des.B., 2

       N.E.3d 828, 834 (Ind. Ct. App. 2014). To determine whether the admission of

       evidence affected a party’s substantial rights, we assess the probable impact of

       the evidence upon the finder of fact. Id.; see also Smith v. State, 114 N.E.3d 540,

       544 (Ind. Ct. App. 2018) (explaining that the substantial rights of a party are not

       affected if the conviction is supported by independent evidence of guilt such

       that there is little likelihood the challenged evidence contributed to the

       judgment).


                                                   Conclusion
[18]   The State presented photographic evidence and testimony from Sergeant

       Goodpaster documenting Katherine’s injuries. But Katherine’s inadmissible

       hearsay statement was evidence admitted to prove that Hurt engaged in fighting

       or tumultuous conduct or that he struck her and caused the injuries to her face.

       Therefore, we agree with Hurt that the challenged evidence contributed to the

       guilty verdict and affected his substantial rights. Hurt does not claim that the

       remaining evidence is insufficient for a new trial and specifically requests a new

       trial in his prayer for relief.
       Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020            Page 9 of 10
[19]   For all of these reasons, we reverse Hurt’s convictions and remand this case for

       a new trial.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-30 | August 21, 2020      Page 10 of 10
