      MEMORANDUM DECISION
                                                                         Feb 24 2015, 6:51 am

      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Valerie K. Boots                                          Gregory F. Zoeller
      Marion County Public Defender                             Attorney General of Indiana
      Indianapolis, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jerrick Whitley,                                         February 24, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1406-CR-433
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Helen Marchal,
                                                               Judge
      Appellee-Plaintiff
                                                               Cause No. 49G16-1401-FD-1987




      Mathias, Judge.

[1]   Jerrick Whitley (“Whitley) was convicted in Marion Superior Court of Class D

      felony confinement and Class A misdemeanor battery. Whitley raises two

      issues on appeal:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015   Page 1 of 13
        I.     Whether the trial court abused its discretion when it admitted the
               recording of the victim’s 911 call into evidence; and,
       II.     Whether the trial court fundamentally erred by failing to tender a specific
               unanimity instruction to the jury.

[2]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History

[3]   Whitley and Jasmine Walker (“Jasmine”) were involved in a romantic

      relationship prior to December 4, 2013. On that date, Whitley and Jasmine

      argued, and Whitley began to gather the belongings he kept at Jasmine’s home.

      As the argument became more heated, Jasmine alleged that Whitley put his

      hand around her neck. Jasmine claimed she lost consciousness and when she

      awoke she was lying on the floor of the hall closet.


[4]   Next, Whitley demanded that Jasmine drive him to his home. He also threw

      Jasmine’s cell phone, which dislodged the phone’s battery. Jasmine’s three

      children were present in the home, and as Jasmine was attempting to calm her

      youngest child, Whitley put his arm around her neck and lifted her off the

      ground. Whitley continued to demand that Jasmine take him where he wanted

      to go.


[5]   Jasmine, fearful of what Whitley might do, drove Whitley to his home. Her

      eight-year-old son was also in the car. Whitley complained about Jasmine’s

      slow driving and hit her in the face with a closed fist. When they arrived at

      Whitley’s residence, Whitley took Jasmine’s car keys. Jasmine and her son

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      attempted to walk away, but Whitley came after them and demanded that

      Jasmine drive him to an additional location.

[6]   After Whitley returned Jasmine’s keys, she locked him out of the vehicle. But

      Whitley picked up a cinder block and threatened to smash the car window, so

      Jasmine unlocked the vehicle. Whitley also took Jasmine’s purse and cell

      phone. During the drive to the intersection of 16th Street and Brookside,

      Whitley hit Jasmine a second time in the face. After Whitley exited the vehicle

      with Jasmine’s belongings, Jasmine executed a u-turn because she wanted to

      see which direction Whitley was going. As she slowly drove past him, Whitley

      shattered her rear driver’s side window with his fist.

[7]   Jasmine drove to her brother’s home nearby where she called and checked on

      her two daughters. Jasmine, her son, and her brother then returned to Jasmine’s

      house where she called 911. Whitley was arrested in January 2014.

[8]   On January 17, 2014, Whitley was charged with Class D felony strangulation,

      Class D felony intimidation, Class D felony battery of a child, Class D felony

      confinement, Class A misdemeanor battery resulting in bodily injury, Class B

      misdemeanor criminal recklessness and Class B misdemeanor criminal

      mischief. The State later amended the charging information to add an

      additional count of battery as a Class C felony. A jury trial commenced on

      May 9, 2014. Whitley was found guilty of Class D felony confinement and

      Class A misdemeanor battery, and he was acquitted of the remaining charges.

      Whitley was later sentenced to concurrent terms of 1095 days for the


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       confinement conviction and 365 days for the battery conviction. Whitley now

       appeals. Additional facts will be provided as needed.


                                              I. The 911 Call

[9]    Whitley claims that the trial court abused its discretion when it admitted the

       recording of Jasmine’s 911 call into evidence over his hearsay objection. The

       State argues that the trial court properly admitted the recording under the

       excited utterance exception to the hearsay rule. “Generally, ‘[a] trial court has

       broad discretion in ruling on the admissibility of evidence and we will disturb

       its rulings only where it is shown that the court abused that discretion.’” Speers

       v. State, 999 N.E.2d 850, 852 (Ind. 2013) (quoting Turner v. State, 953 N.E.2d

       1039, 1045 (Ind. 2011)).

[10]   Hearsay is defined as “a statement 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). Hearsay is

       inadmissible unless it falls under an exception provided either by law or the

       rules of evidence. Ind. Evidence Rule 802. An exception to the hearsay rule, an

       excited utterance, 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.” Ind. Evidence. Rule 803(2); see also Fowler v. State, 829

       N.E.2d 459, 463 (Ind. 2005) (stating that the statement may be admitted if three

       elements are 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). “The ultimate issue is whether the statement is
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       deemed reliable because of its spontaneity and lack of thoughtful reflection and

       deliberation.” Fowler, 829 N.E.2d at 463. An excited utterance can be made in

       response to a question so long as the statement is unrehearsed and is made

       under the stress of excitement from the event. Yamobi v. State, 672 N.E.2d 1344,

       1346 (Ind. 1996) (“A declaration does not lack spontaneity simply because it

       was an answer to a question.”).

[11]   In support of his argument, Whitley focuses primarily on the length of time

       between the events in this case and the 911 call. “The lapse of time is not

       dispositive, but if a statement is made long after a startling event, it is usually

       ‘less likely to be an excited utterance.’” Teague v. State, 978 N.E.2d 1183, 1187

       (Ind. Ct. App. 2012) (quoting Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct.

       App. 2010)).


[12]   Whitley exited Jasmine’s vehicle, and she drove to her brother’s home. She

       then returned to her own home before calling 911, so we can infer that more

       than a few minutes passed. Whitley argues, “[d]uring her drive to her brother’s

       home, and then during the longer drive back to her own home with her brother,

       Jasmine had ample time to deliberate and reflect upon the evening’s events and

       to discuss matters with her brother.” Appellant’s Br. at 19. Although an

       indeterminate amount of time passed after Whitley exited Jasmine’s vehicle and

       Jasmine placed the 911 call, after reviewing the record, we may reasonably infer

       that minutes passed, and not hours. Importantly, during much of this time,

       Jasmine did not have her cellphone, because Whitley had taken it from her.



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[13]   The State presented evidence that Jasmine was still under stress from being

       battered and confined when she placed the 911 call. Jasmine cried while

       speaking with the 911 operator and her voice sounded shaky. Also, the

       responding police officer observed that Jasmine was crying and seemed scared

       and nervous when he arrived at her home. Tr. pp. 215-16. Jasmine told the

       officer she was afraid that Whitley would return to her home and cause further

       harm. Id.


[14]   For all of these reasons, the trial court acted within its discretion when it

       determined that Jasmine placed the 911 call while under the stress of

       excitement caused by the startling event and admitted the 911 call into evidence

       under the excited utterance exception to the hearsay rule.

[15]   Even if the trial court erred in admitting the 911 call into evidence, we will not

       reverse the convictions if the error was harmless. Turner v. State, 953 N.E.2d

       1039, 1059 (Ind. 2011). The error is harmless if there is “substantial

       independent evidence of guilt satisfying the reviewing court there is no

       substantial likelihood the challenged evidence contributed to the conviction.”

       Id. “Generally, errors in the admission of evidence are to be disregarded unless

       they affect the substantial rights of a party.” Id. If the erroneously admitted

       evidence was cumulative, the admission is harmless error for which we will not

       reverse a conviction. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010).




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[16]   Jasmine’s statements during the 911 call are cumulative of her testimony at trial

       and other properly admitted evidence. Accordingly, any error in the admission

       of the 911 call was harmless.


                                           II. Jury Instruction
[17]   In Baker v. State, 948 N.E.2d 1169 (Ind. 2011), the defendant was charged with

       three counts of child molestation for molesting three different victims. At trial,

       the victims described numerous acts of child molestation that occurred in a

       three-year period of time. Baker was convicted as charged.

[18]   On appeal, Baker argued that his convictions were “not sustained by evidence

       of jury unanimity” because the State presented evidence of a greater number of

       separate criminal offenses than with what Baker was charged. Id. at 1173,

       1175. Our supreme court held that

               the State may in its discretion designate a specific act (or acts) on
               which it relies to prove a particular charge. However if the State
               decides not to so designate, then the jurors should be instructed that in
               order to convict the defendant they must either unanimously agree that
               the defendant committed the same act or acts or that the defendant
               committed all of the acts described by the victim and included within
               the time period charged.

       Id. at 1177. See also Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009)

       (concluding that the trial court committed fundamental error by failing to

       instruct the jury that it was required “to reach a unanimous verdict as to which

       crime, if any, the defendant committed”).




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[19]   In this case, Whitley observes that the State generically charged him with one

       count of Class A misdemeanor battery and one count of Class D felony

       confinement but claims the State presented evidence of multiple, separate

       batteries and two separate acts of confinement. Therefore, he argues that the

       trial court should have sua sponte tendered to the jury the specific unanimity

       instruction approved in Baker.1 Because Whitley did not raise the issue in the

       trial court, he argues that fundamental error occurred, i.e. the lack of a Baker

       instruction deprived him of a fair trial.


[20]   “The ‘fundamental error’ exception is extremely narrow and applies only when

       the error constitutes a blatant violation of basic principles, the harm or potential

       for harm is substantial, and the resulting error denies the defendant

       fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).

       “The error claimed must either make a fair trial impossible or constitute clearly

       blatant violations of basic and elementary principles of due process.” Brown v.

       State, 929 N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted). “This

       exception is available only in egregious circumstances.” Id. (internal quotation

       omitted).

[21]   In Baker, the defendant waived his claim of instructional error but argued that

       he was deprived of a fair trial. Our supreme court observed that the only issue

       in the case was the credibility of the witnesses and the defense strategy was to

       1
         The trial court simply advised the jury that “[t]o return a verdict, each of you must agree to it.”
       Appellant’s App. p. 90. The jury was also instructed not to sign any verdict form “for which there
       is not unanimous agreement.” Id. at 94-95.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015   Page 8 of 13
       point out inconsistencies in the victims’ statements to the jury. 948 N.E.2d at

       1179. Baker argued that the children were lying in retaliation for Baker

       reporting that one victim was in a car with a boy at 3:00 a.m., and as a result

       she was grounded. Our supreme court concluded:

               Ultimately the jury resolved the basic credibility dispute against
               [Baker] and would have convicted the defendant of any of the various
               offenses shown by the evidence to have been committed. We conclude
               Baker has not demonstrated that the instruction error in this case so
               prejudiced him that he was denied a fair trial.

       Id. (internal quotation and citation omitted).


[22]   Here, Whitley was charged and convicted of one count of Class A

       misdemeanor battery. The State generically alleged that Whitley “did

       knowingly in a rude, insolent or angry manner touch Jasmine Walker, another

       person, and further that said touching resulted in bodily injury to the other

       person, specifically: pain and/or swelling and/or redness.” Appellant’s App. p.

       31. In its closing argument, the State argued that there were “multiple batteries

       in this case.” Tr. p. 300. Specifically, the State discussed the evidence of the

       following alleged acts: 1) that Whitley grabbed Jasmine’s neck with his hands,

       2) he put his arm around her neck, choking Jasmine, 3) Whitley punched

       Jasmine in the face for driving too slow, and 4) he punched Jasmine a second

       time after she stopped the vehicle at a stop sign. Tr. pp. 300-01.

[23]   Whitley was also convicted of Class D felony confinement and the charging

       information provided: Whitley “did knowingly, by force, or threat of force,

       remove Jasmine Walker and/or [D.C.] from one place to another, that is: from


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       Ms. Walker’s home to 450 N. Gray St. and/or to 16th Street and/or 2800

       Brookside N. Drive.” Appellant’s App. p. 30. Whitely contends that

               there can be no confidence in the unanimity of the jury’s verdict
               because the instruction on unanimity failed to advise the jury that to
               convict it must either unanimously agree that [Whitley] committed the
               same act or acts of confinement by forcible removal, or that he
               committed both of the forcible removals described by Jasmine that
               were included in the charge.

       Appellant’s Br. at 13.


[24]   As in Baker, credibility was the only issue at trial, and Whitley argued that

       Jasmine was a “scorned” woman whose testimony was not credible and was

       not consistent with other evidence admitted at trial. See tr. pp. 305-26. Whitley

       was acquitted of both strangulation and Class C felony battery.2 The acquittal

       on those charges leads to the reasonable conclusion that the jury did not find

       Jasmine’s or her children’s testimony concerning the first incident in the

       hallway outside Jasmine’s bedroom to be credible.


[25]   However, the State argued that it proved three additional acts of battery, and

       therefore, Whitley argues that it is not possible to determine whether the jurors

       unanimously agreed that he committed the same act of battery against Jasmine.

       In support of this argument, Whitley cites Castillo v. State, 734 N.E.2d 299 (Ind.

       Ct. App. 2000), summarily aff’d on transfer, 741 N.E.2d 1196 (2001).



       2
         The Class C felony battery charge alleged that Whitley knowingly touched Jasmine “in a rude, insolent, or
       angry manner, which resulted in serious bodily injury to” her. Appellant’s App. p. 39. The charging
       information defined the bodily injury as “extreme pain and/or permanent or protracted loss or impairment of
       a function of a bodily member or organ and/or a concussion and/or unconsciousness.” Id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015       Page 10 of 13
[26]   Castillo was charged with one count of dealing in cocaine. Over Castillo’s

       objection, the State was permitted to introduce evidence of two acts of dealing

       in cocaine. During closing argument, the State told the jury that it had “a

       choice” and could find Castillo guilty of either the dealing in cocaine that

       occurred at Castillo’s home or an earlier dealing that same day at a different

       location. Id. at 304.


[27]   On appeal, Castillo argued that his conviction was not supported by a

       unanimous jury verdict. Our court observed that that the trial court did not

       instruct the jurors that they were required to render a unanimous verdict

       concerning which dealing crime Castillo committed. Id. “It is possible, given

       these facts, that some jurors believed that Castillo committed the earlier dealing

       crime at Garcia’s home while other jurors believed that Castillo committed the

       dealing violation at his home later that same day. Consequently, it is possible

       that the jury’s verdict of guilty regarding the charge of dealing in cocaine was

       not unanimous.” Id. at 304-05. Our court therefore vacated Castillo’s

       conviction for dealing in cocaine.

[28]   Citing Castillo, our court similarly vacated the defendant’s conviction for

       disseminating harmful material to a minor in Scuro v. State, 849 N.E.2d 682

       (Ind. Ct. App. 2006), trans. denied. In that case, the State presented evidence that

       Scuro disseminated harmful material to the victim on at least three separate

       occasions, but he was charged with only one count of dissemination to the

       victim based on an unspecified incident. Id. at 688. As in Castillo, our court

       observed that “we have no way of knowing” whether the jury’s verdict was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015   Page 11 of 13
       unanimous as to one of the three separate acts. Id. Therefore, even though

       Scuro waived the issue because he failed to object to either the verdict forms or

       the verdict, our court vacated his conviction for dissemination of harmful

       material to a minor.3 Id. at 689.


[29]   Due process requires jurors “to render a unanimous verdict as to which actual

       offense was perpetrated.” Lainhart, 916 N.E.2d at 941 (citing Schad v. Arizona,

       501 U.S. 624, 631-32 (1991); Richardson v. United States, 526 U.S. 813, 820

       (1999)). In this case, it is possible that the jurors believed that Whitley battered

       Jasmine based on one of three alleged acts of battery but that no unanimity

       amongst the jury existed as to which act or acts Whitley committed. We

       therefore conclude that the trial court’s instructional error deprived Whitley of a

       fair trial as to the Class A misdemeanor battery charge, and we vacate that

       conviction.


[30]   However, we reach the opposite conclusion on the Class D felony confinement

       conviction. Although the charging information alleged that Whitley confined

       Jasmine from her “home to 450 N. Gray St. and/or to 16th Street and/or 2800

       Brookside N. Drive,” at trial the State argued and the evidence established that

       Whitley continuously confined Jasmine from her home to Brookside Drive

       where Whitley finally exited her vehicle. See Appellant’s App. p. 30; Tr. pp.

       299-300. The jury considered the credibility of Jasmine’s testimony that


       3
         This same conviction was also vacated on additional grounds after our court determined that Indiana Code
       section 35-49-3-3 does not permit multiple convictions where only one display of harmful material is
       disseminated, albeit to multiple victims.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-433 | February 24, 2015      Page 12 of 13
       Whitley forced her to drive him to both his home and a second location and

       concluded that her testimony was credible. Accordingly, we conclude that, with

       regard to the confinement conviction, the instructional error did not prejudice

       Whitely.


                                                 Conclusion

[31]   The trial court did not abuse its discretion when it admitted the recording of

       Jasmine’s 911 call into evidence. Also, we affirm Whitley’s Class D felony

       confinement conviction. However, the trial court’s failure to tender to the jury

       the specific unanimity instruction approved of in Baker constitutes fundamental

       error. Therefore, we conclude that Whitley’s Class A misdemeanor battery

       charge should be vacated, and we remand this case to the trial court for

       proceedings consistent with this opinion.


[32]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


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




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