FOR PUBLICATION
                                                                      Jun 12 2014, 10:20 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DANIELLE L. GREGORY                          GREGORY F. ZOELLER
Indianapolis, Indiana                        Attorney General of Indiana

                                             MICHAEL GENE WORDEN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

GABRIEL MCQUAY,                              )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 49A02-1311-CR-954
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Stanley E. Kroh, Judge Pro Tempore
                          Cause No. 49G16-1307-FD-48148



                                    June 12, 2014


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Gabriel McQuay appeals his convictions for criminal confinement, as a Class D

felony, and battery, as a Class A misdemeanor, following a bench trial. McQuay raises a

single issue for our review, which we restate as whether the trial court abused its

discretion when it allowed a police officer to testify to the victim’s out-of-court

statements made to the officer. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In the evening of June 5, 2013, Jerry O’Connor and his wife were driving in

Indianapolis when they observed a car parked next to a curb with its door open and two

people standing nearby. Because the O’Connors’ car windows were down, they heard a

man and a woman arguing and yelling at each other. Jerry then saw the man, whom he

later identified as McQuay, “push” the woman, R.S., into the car while “she was yelling

and screaming that he was hurting her.” Transcript at 17. In particular, Jerry heard R.S.

say, “he’s going to kill me.” Id. at 18. Jerry pulled his vehicle over about twenty-five

yards away from the couple, got out of his car, and “yelled for him to stop hurting her.”

Id. at 19.

       Other people starting taking notice of the events, including Jill Andry. At the

same time and location she observed a car “pulled over to the side with a man punching

[a woman].” Id. at 37. Jill did not “get a good look at the man” but heard the woman

“yelling ‘he’s trying to kill me, he’s trying to kill me, he took my purse’ . . . over and

over.” Id. at 37-38. Jill called 9-1-1, and she observed the man “t[ake] off running

to . . . an apartment complex” nearby. Id. at 38.


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       Jerry also observed McQuay go to the nearby apartment complex. Once McQuay

had left the scene, Jerry approached the vehicle to check on R.S. Jerry observed that “she

had some red marks on her,” that “she was hysterical,” and that she was visibly “shaken.”

Id. at 22-23.

       Indianapolis Metropolitan Police Department (“IMPD”) Officer Travis Williams

arrived shortly thereafter. He approached R.S. and observed that she was “visibly upset.

She was shaking. She was crying and she was speaking in very rapid movements as if

she had been in some kind of struggle.” Id. at 43. R.S. identified herself to Officer

Williams, and he then verified her identity with IMPD. Officer Williams then asked R.S.

who her attacker was, and she identified McQuay. R.S. informed Officer Williams that

McQuay had fled “through” a nearby apartment complex, but Officer Williams did not

receive a tenant’s consent to search the area and he did not pursue a search warrant. Id. at

72.

       On July 24, 2013, the State charged McQuay with criminal confinement, as a

Class D felony; domestic battery, as a Class A misdemeanor; and battery, as a Class A

misdemeanor. At the ensuing bench trial, Jerry and Jill testified to their observations and,

over McQuay’s objection, Officer Williams testified that R.S. had identified herself and

McQuay to him during the course of his investigation. The court found McQuay guilty

of criminal confinement, as a Class D felony, and battery, as a Class A misdemeanor.

The court then entered its judgment of conviction and sentence. This appeal ensued.




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                               DISCUSSION AND DECISION

       On appeal, McQuay asserts that the trial court abused its discretion when it

admitted into evidence Officer Williams’ testimony regarding R.S.’s out-of-court

identification of herself and McQuay to Officer Williams. In particular, McQuay asserts

that Officer Williams’ testimony was inadmissible hearsay and that the admission of this

testimony violated his Sixth Amendment right to confront a witness.1 Our standard of

review of a trial court’s admission of evidence is an abuse of discretion. Speybroeck v.

State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A 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 misapplies the law. See id.

       Officer Williams’ testimony that R.S. identified herself and McQuay to him at the

scene was not inadmissible hearsay. As our Supreme Court has explained:

       Hearsay is an out of court statement offered to prove the truth of the matter
       asserted. Ind. Evidence Rule 801(c). It is inadmissible unless it falls under
       an exception. Evid. R. 802. Among the exceptions to the hearsay rule is:
       “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). Determining whether a statement constitutes
       an excited utterance is within the trial court’s discretion and its ruling will
       be reversed only for an abuse of that discretion. See Yamobi v. State, 672
       N.E.2d 1344, 1346 (Ind. 1996).

              For a hearsay statement to be admitted as an excited utterance, three
       elements must be shown: (1) a startling event, (2) a statement made by a
       declarant while under the stress of excitement caused by the event, and (3)
       that the statement relates to the event. Id. This is not a mechanical test. It
       turns on whether the statement was inherently reliable because the witness
       was under the stress of an event and unlikely to make deliberate

       1
          McQuay makes passing reference to Article 1, Section 13 of the Indiana Constitution, see
Appellant’s Br. at 7, but McQuay in no way supports these references with cogent reasoning. As such,
any attempt by McQuay to raise an independent argument on appeal under Article 1, Section 13 has been
waived. See Ind. Appellate Rule 46(A)(8)(a).
                                                 4
       falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice § 803.102
       (2d ed. 1995).

Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000).

       Here, the State’s evidence demonstrates that R.S.’s statements identifying herself

and McQuay to Officer Williams at the scene were excited utterances and, therefore,

admissible statements. Jerry and Jill testified that they observed McQuay attacking R.S.,

which was a startling event for R.S.             Jerry and Officer Williams testified that,

immediately following the startling event, R.S. was “hysterical,” “shaken,” “visibly

upset,” “crying,” and “speaking in very rapid movements.” Transcript at 22-23, 43.

Thus, R.S.’s statements to Officer Williams were made “while under the stress of

excitement caused by the event.”            See Jenkins, 725 N.E.2d at 68.            And R.S.’s

identification of herself and McQuay relates to McQuay’s attack on her.2 Accordingly,

we cannot say that the trial court abused its discretion when it concluded that R.S.’s

statements to Officer Williams were excited utterances and therefore admissible pursuant

to Indiana Evidence Rule 803(2). See, e.g., Sandefur v. State, 945 N.E.2d 785, 789 (Ind.

Ct. App. 2011) (“[The declarant’s] statement was made soon after she was injured, yelled

at, and cornered. Her demeanor showed that she was still under stress, and her statement

related to the startling event. Therefore, . . . [her] statement fits the excited utterance

exception.”).

       Neither did Officer Williams’ testimony deny McQuay his Sixth Amendment right

to confront R.S. As we have explained:



       2
            The State also notes that Officer Williams arrived quickly on the scene, but that is not
dispositive to the analysis under Jenkins.
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       In 2004, the Supreme Court of the United States held that, “[w]here
       testimonial statements are at issue, the only indicium of reliability sufficient
       to satisfy constitutional demands is the one the Constitution actually
       prescribes: confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69
       (2004). Out-of-court, testimonial statements are admissible at trial only if
       the declarant is unavailable to testify and the defendant has had a prior
       opportunity to cross examine the declarant. Id. at 59.

              “Testimonial” statements are, among other things:

              “ex parte in-court testimony or its functional equivalent—that
              is, material such as affidavits, custodial examinations, prior
              testimony that the defendant was unable to cross-examine, or
              similar pretrial statements that declarants would reasonably
              expect to be used prosecutorially;” “extrajudicial
              statements . . . contained in formalized testimonial materials,
              such as affidavits, depositions, prior testimony, or
              confessions;” and “statements that were made under
              circumstances which would lead an objective witness
              reasonably to believe that the statement would be available
              for use at a later trial.”

       Jackson v. State, 891 N.E.2d 657, 659 (Ind. Ct. App. 2008) (discussing
       Crawford, 541 U.S. at 51-52), trans. denied. However, the Confrontation
       Clause “does not bar the use of testimonial statements for purposes other
       than establishing the truth of the matter asserted.” Crawford, 541 U.S. at
       59 n.9. Thus, if a statement is either nontestimonial or nonhearsay, the
       federal Confrontation Clause will not bar its admissibility at trial.

Williams v. State, 930 N.E.2d 602, 607-08 (Ind. Ct. App. 2010) (footnotes omitted;

alteration and omission original), trans. denied.

       R.S.’s statements to Officer Williams at the scene were nontestimonial. As the

United States Supreme Court has explained:

       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.
                                              6
Davis v. Washington, 547 U.S. 813, 822 (2006).           “In making the primary purpose

determination, standard rules of hearsay, designed to identify some statements as reliable,

will be relevant.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). “To determine

whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet

an ongoing emergency,’ which would render the resulting statements nontestimonial, we

objectively evaluate the circumstances in which the encounter occurs and the statements

and actions of the parties.” Id. at 1156 (citation omitted).

       The crux of McQuay’s argument under the Sixth Amendment is based on Officer

Williams’ subjective impressions at the scene. But this is not the correct analysis.

Rather, we assess whether a defendant’s confrontation rights have been violated

objectively. Id.

       The circumstances in which an encounter occurs . . . are clearly matters of
       objective fact. The statements and the actions of the parties must also be
       objectively evaluated. That is, the relevant inquiry is not the subjective or
       actual purpose of the individuals involved in a particular encounter, but
       rather the purpose that reasonable participants would have had, as
       ascertained from the individuals’ statements and actions and the
       circumstances in which the encounter occurred.

Id.

       McQuay’s argument aside, the facts here objectively demonstrate that the primary

purpose of Officer Williams’ discussion with R.S. was to enable police assistance to meet

an ongoing emergency. First, Officer Williams’ encounter with R.S. was at the crime

scene rather than at the police station. See id. Second, because R.S.’s statements were

excited utterances, they “are considered reliable because the declarant, in the excitement,

presumably cannot form a falsehood.” Id. at 1157. Third, because McQuay had fled the
                                              7
scene of a violent attack and could not be located, a reasonable officer would have

considered the threat to R.S., first responders, and the public ongoing. See id. at 1158.

Fourth, almost immediately upon arriving at the scene Officer Williams asked R.S. her

identity and the identity of her assailant. There is no evidence suggesting that Officer

Williams told R.S. that he needed McQuay’s identification for purposes of prosecution,

and there is no reason to think that “a conversation which beg[an] as an interrogation to

determine the need for emergency assistance . . . evolve[d] into testimonial statements.”

Id. at 1159, 1161 (quotations omitted).

       Finally, Officer Williams’ discussion with R.S. was informal.          “[F]ormality

suggests the absence of an emergency and therefore an increased likelihood that the

purpose of the interrogation is to establish or prove past events potentially relevant to

later criminal prosecution.” Id. at 1160 (quotations omitted). Here, Officer Williams

questioned R.S. in an “exposed, public area, prior to the arrival of emergency medical

services, and in a disorganized fashion. All of those facts make this case distinguishable

from the formal station-house interrogation in Crawford.” Id.

       In sum, Officer Williams responded to a call of a woman being attacked. He did

not know why, where, or when the attack had occurred at the moment of his response.

Nor did he know the location of the attacker or anything else about the circumstances in

which the crime had occurred. His request for R.S.’s name and the identity of her

attacker was information that allowed Officer Williams to “assess the situation, the threat

to [his] own safety, and the possible danger to the potential victim and the public,

including to allow [him] to ascertain whether [he] would be encountering a violent


                                            8
felon.” Id. at 1166 (citations and quotations omitted). In other words, Officer Williams

obtained “information necessary to enable [him] to meet an ongoing emergency.” Id.

(quotations omitted).

      Under an objective analysis, the circumstances of the encounter as well as the

statements and actions of R.S. and Officer Williams indicate that the primary purpose of

the interrogation was to enable police assistance to meet an ongoing emergency. As

such, R.S.’s identification of herself and McQuay were not testimonial statements. The

Confrontation Clause did not bar their admission at McQuay’s trial.

      Affirmed.

VAIDIK, C.J., and BROWN, J., concur.




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