FOR PUBLICATION
ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MARK I. COX                                   GREGORY F. ZOELLER
The Mark I. Cox Law Office, LLC               Attorney General of Indiana
Richmond, Indiana
                                              RYAN D. JOHANNINGSMEIER
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                            FILED
                                                                       Dec 05 2012, 9:32 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                  CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




TRENTON TEAGUE,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
          vs.                                 )       No. 89A01-1202-CR-86
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )

                     APPEAL FROM THE WAYNE CIRCUIT COURT
                         The Honorable David A. Kolger, Judge
                            Cause No. 89C01-1010-FA-010



                                   December 5, 2012

                             OPINION – FOR PUBLICATION

MATHIAS, Judge
       Trenton Teague (“Teague”) was convicted after a jury trial in Wayne Circuit Court

of Class A felony burglary and Class C felony battery. Teague was sentenced to thirty-

eight years for burglary and six years for battery with four years suspended. Teague

appeals and argues that the trial court improperly admitted a 911 recording into evidence

and that his executed sentence of forty years is inappropriate.

       We affirm.

                              Facts and Procedural History

       On June 20, 2010, Chelsea Saylor (“Saylor”) and Teague started dating, but on

September 25, 2010, their relationship ended after Saylor and Teague became embroiled

in an argument in which Teague beat her, put a knife to her throat, and threatened to kill

her. The incident caused Saylor a head laceration, and she visited the local hospital for

treatment.

       On October 4, 2010 at around 1:30 a.m., Saylor’s mother, Staci Behnen

(“Behnen”), fell asleep on the couch in her living room while watching television.

Shortly before 3:00 a.m., Behnen woke up when a man struck her in the head with a

metal bar, which appeared to Behnen to be a crowbar or tire iron. The man was wearing

a dark outfit, including a black head covering, and a black bandana across his face.

When Behnen pulled down the man’s bandana as he continued to beat her, she

recognized the man as Teague and yelled out his name. As Teague continued to beat

Behnen in her face and head area with the metal bar, he ordered her to give him her

purse. She attempted to block the blows with her arms until she “could not do anything.”



                                             2
	  
Tr. p. 327. Behnen later testified that the pain was “[t]he worst probably that I’ve ever

endured.” Id. at 332.

       Saylor was upstairs sleeping when she heard Behnen’s screams. As Saylor came

downstairs, Teague grabbed her and asked her “what are you doing in Richmond without

me[?]” Id. at 491. Saylor recognized Teague from his voice and the portion of his face

that was visible. Saylor ran to Behnen who was on the couch bleeding, but Teague

followed and struck Saylor with the metal bar. Teague then struck Behnen repeatedly

and demanded her purse. Saylor gave Teague the purse so that he would stop beating the

two women. Teague then shut Saylor in a closet and told her he was “going to get a

gun.” Id. at 499. Through the closet door, Saylor saw Teague run out of the back door of

the house. Id. at 492.

       Saylor assisted Behnen out to the porch, and then ran over to their neighbor Jan

Bishop’s (“Bishop”) house. Saylor was “hysterical” and screamed to Bishop to call 911

and tell the police that “somebody’s broke into the house and beat mom up.” Id. at 412.

On the 911 call, Bishop described how Saylor had run to her door, and she relayed

statements Saylor made about her ex-boyfriend being the perpetrator and how her mother

had been beaten.

       After the police and ambulance arrived, Behnen was taken to Reid Memorial

Hospital where the doctor diagnosed her with facial fractures, nasal lacrimal duct

transection, scalp laceration, and poly-substance drug intoxication.     Id. at 434-35.

Behnen told the doctor that her daughter’s ex-boyfriend had beaten her. Due to her facial

fractures and concern of ocular entrapment, she was later transferred to Methodist

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Hospital in Indianapolis, the regional trauma center where patients are sent with severe

injuries that cannot be treated locally. Id. at 434.

       Saylor called Wilamena Mitchell (“Mitchell”) around 5:00 a.m. that same

morning. Mitchell was in a relationship with Teague’s uncle, Jeffrey Perkins (“Perkins”).

Perkins immediately tried to contact Teague, and around 6:30 a.m., Perkins spoke with

Teague on the telephone. Teague asked Perkins to pick him up from the Greenwood

Apartments and to take him to a bus station out of town. Perkins agreed to pick Teague

up in approximately twenty minutes. Mitchell then arranged for police officers to pull

Perkins and herself over after they picked up Teague. Mitchell testified that when they

picked Teague up, he remarked that “[h]e needed to get out of town” and that “he was the

most looked for man in Richmond at that point.” Id. at 548-49. Police officers stopped

the car and took Teague in for questioning.

       On October 15, 2010, the State charged Teague with of Count I – Class A felony

burglary; Count II – Class B felony burglary; Count III – Class A felony robbery; Count

IV – Class B felony aggravated battery; Count V – Class C felony battery; and Count VI

– Class C felony battery. Teague was apprehended in Florida by United States Marshalls

on April 1, 2011 and extradited back to Indiana. Id. at 790.

       After a four-day jury trial beginning on December 12, 2011, the jury found Teague

guilty of all counts. At the sentencing hearing on February 3, 2012, the trial court

merged Counts II, III, IV, and V into Count I. Teague was sentenced to thirty-eight years

on Count I and to a consecutive six years with four years suspended on Count VI.

       Teague now appeals.

                                               4
	  
                                I. Admission of 911 Call

       Teague claims the trial court improperly admitted the 911 recording in which

Bishop relayed Saylor’s statements. A trial court’s decision to admit or exclude evidence

is reviewed for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App.

2010), trans. denied (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)). 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 if the court has misinterpreted

the law.” Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010).

       Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted and is inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801;

see also Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (citing Ind. R. Evid. 802). If a

statement involves hearsay within hearsay, also known as multiple hearsay or double

hearsay, the statement may still be admitted if “each layer of hearsay” qualifies “under an

exception to the hearsay rule[.]” Palacios v. State, 926 N.E.2d 1026, 1030 (Ind. Ct. App.

2010); see also Ind. R. Evid. 805 (“Hearsay included within hearsay is not excluded

under the hearsay rule if each part of the combined statements conforms with an

exception to the hearsay rule provided in these rules.”).

       Here, the 911 recording involves multiple hearsay because Bishop relayed

statements made by Saylor. Therefore, under Rule 805, Saylor’s statements to Bishop

and Bishop’s statements to the 911 operator must both fall within a hearsay exception to

be admissible. See Palacios, 926 N.E.2d at 1030.

       A. Bishop’s Statements as Excited Utterance

                                             5
	  
       Teague concedes that Saylor’s statements to Bishop were an excited utterance.

Appellant’s Br. at 9. However, Teague argues that Bishop’s statements to the 911

operator were not an excited utterance and hence were inadmissible hearsay. 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” and is not

excluded by the hearsay rule. Ind. R. Evid. 803(2). To meet the excited utterance

exception, three elements must be present: (1) a “startling event or condition” has

occurred; (2) the declarant made a statement while “under the stress or excitement caused

by the event or condition;” and (3) the statement was “related to the event or condition.”

Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App. 2012), trans. denied.

       This test is not “mechanical” and admissibility turns “on whether the statement

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

to make deliberate falsifications.” Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App.

2011). 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.” Boatner, 934 N.E.2d

at 186. “The heart of the inquiry is whether the declarant was incapable of thoughtful

reflection.” Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App. 2003).

       Here, a bloodied Saylor came to Bishop’s house in the middle of the night

distraught and screaming that her mother had been beaten up. Bishop could also hear

Behnen screaming from her own porch next door. Bishop immediately called 911 and

answered the operator’s questions. 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

                                             6
	  
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.”).

During the 911 call, Saylor could be heard crying in the background, and Bishop told the

operator that she was going to remain at her own house, because she was not certain

whether the perpetrators were still in Behnen’s house. Throughout the conversation,

Bishop had no time to reflect before making her statements. For all of these reasons, we

conclude that Saylor’s arrival at her home was a startling event and that Bishop made her

statements regarding the incident to the 911 operator while she was under the stress of

this event.

       In Noojin v. State, our supreme court held that “it is assumed, although not

specifically stated in the rule, that an excited utterance must be based on the declarant's

personal knowledge[.]” 730 N.E.2d 672, 677 (Ind. 2000). However, Noojin involved a

situation where no one had personal knowledge of the underlying incident, rather the

declarant’s statements regarding the incident were based on “conjecture[.]” Id. Thus, it

is a matter of first impression for our court whether a 911 recording that involves

statements by a caller that were relayed from a victim are admissible where the victim

had personal knowledge of the underlying incident but the caller did not. This issue has

been addressed in other jurisdictions. See e.g., Williamson v. State, 707 A.2d 350, 353

(Del. 1998) (holding that the 911 call was admissible as an excited utterance where the

911 caller was relaying the victim’s statements to the 911 operator); cf. Bemis v.

Edwards, 45 F.3d 1369, 1373 (9th Cir. 1995) (holding that statements made during a 911

call were inadmissible where the 911 caller did not witness the events he described but

                                            7
	  
rather relayed the observations of other people because the caller did not have personal

knowledge of the underlying incident).

                                                     Here, Bishop did not have personal knowledge of the underlying incident Saylor

described, but she did have personal knowledge of, and was responding to, the startling

event or condition that came to her home in the middle of the night in the person of a

bloodied Saylor screaming for help. She heard Behnen moaning in pain from her injuries

on her front porch next door. The 911 call confirms that Bishop was assiduous in

relaying the operator’s questions to Saylor and Saylor’s answers in return. For all of

these reasons, we conclude that the facts and circumstances before us bear sufficient

indicia of reliability, the hallmark of all hearsay exceptions. We further conclude that

these facts and circumstances are sufficient to meet all of the requirements of an excited

utterance. Thus, we hold that Bishop’s statements relaying Saylor’s answers to the 911

operator are admissible as excited utterances. 1

                                                     B. Harmless Error

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

reverse the trial court’s conviction 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
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
         Teague did not raise a Sixth Amendment Confrontation Clause issue on appeal.
                                                                                                                                                                                                                                          8
	  
harmless error for which we will not reverse a conviction. Lehman v. State, 926 N.E.2d

35, 37 (Ind. Ct. App. 2010).

       Here, both Behnen and Saylor identified Teague at trial as the perpetrator.

Furthermore, Dr. Michael Smith testified, without objection from the defense, that

Behnen told him her daughter’s ex-boyfriend had beaten her. Tr. p. 441. Behnen’s and

Saylor’s testimony in court along with Behnen’s prior statements to the doctor serve as

“substantial independent evidence of guilt” and satisfy us that “there is no substantial

likelihood the challenged evidence contributed to the conviction.” See Turner, 953

N.E.2d at 1059. The 911 recording was merely cumulative evidence; therefore, even if it

was improperly admitted, the error was harmless.

                                      II. Sentencing

       Teague claims that the sentence imposed by the trial court is inappropriate in light

of the nature of his offense and of his character. Under Indiana Appellate Rule 7(B), we

may “revise a sentence authorized by statute if, after due consideration of the trial court’s

decision, the Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Although we may review and revise a

sentence, “[t]he principal role of appellate review should be to attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged with

improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in

each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give

“deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to

give due consideration to that decision and because we understand and recognize the

                                             9
	  
unique perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950

N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart v. State, 866

N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks omitted).

       In reviewing the appropriateness of a sentence, we consider “the culpability of the

defendant, the severity of the crime, the damage done to others, and myriad other factors

that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. We also focus on the

aggregate sentence rather than the “‘consecutive or concurrent, number of counts, or

length of the sentence on any individual count.’” Heinzman v. State, 970 N.E.2d 214,

228 (Ind. Ct. App. 2012) (quoting Cardwell, 895 N.E.2d at 1225). The defendant has the

burden to persuade us “that the sentence imposed by the trial court is inappropriate.” Id.

(citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

       Teague committed Class A felony burglary, for which the sentencing range is

twenty to fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4.

He also committed Class C felony battery, for which the sentencing range is two to eight

years with an advisory sentence of four years. Ind. Code § 35-50-2-6. Regarding both

counts, but particularly in regard to Count I, the trial court found that the aggravating

circumstances outweighed the mitigating factors. Teague was sentenced to the Indiana

Department of Corrections for consecutive sentences of thirty-eight years for burglary

and six years for battery with four years suspended. Thus, neither sentence even meets

the statutory maximum sentence.

       Regarding the nature of the offense, the trial court noted that “the particular nature

and circumstances of this crime . . . as they were perpetrated upon Staci Behnen by the

                                             10
	  
defendant is significantly more heinous, callous and reprehensible than what is called for

by the statute.” Tr. p. 811. Teague started to beat Behnen with a metal bar while she was

still asleep, and the beating occurred, at least in part, in the presence or hearing of Saylor,

who was less than eighteen years old at the time of the burglary. Furthermore, Teague

also beat Saylor with the metal bar, and then returned to beat Behnen again, who “could

not do anything” to defend herself and was already “bleeding out her head.” Id. at 491.

Behnen suffered such severe injuries that she had to be transferred to the regional trauma

center. Due to the beating, she had facial fractures, nasal lacrimal duct transection, and a

scalp laceration. She has undergone multiple surgeries. Thus, we conclude that the

nature of Teague’s crimes support the trial court’s sentencing judgment.

       Next, we consider the character of the offender. In looking at “a defendant’s prior

criminal history in determining whether to impose a sentence enhancement[,]” we look at

“‘the gravity, nature and number of prior offenses as they relate to the current offense.’”

Smith v. State, 889 N.E.2d 261, 263 (Ind. 2008) (quoting Ruiz v. State, 818 N.E.2d 927,

929 (Ind. 2004)). While we acknowledge that Teague had not previously been convicted

of a felony, he had four prior misdemeanor convictions, one of which was Class A

misdemeanor battery, which is directly related to both counts for which he was convicted

in this case. Furthermore, at trial Saylor testified that on September 25, 2010, about a

week prior to the incident in question, Teague had beaten her, and that she was treated at

the hospital for a head laceration.

       Moreover, as the trial court noted in its sentencing statement, “[Teague] was

ordered by this Court not to have any contact with Chelsea Saylor and he did. He was

                                              11
	  
ordered to pay child support and he didn’t.” Tr. p. 809. At the time of sentencing,

Teague had approximately $17,000 in arrears for two of his children and had failed to

appear for the child support hearings.      Furthermore, Teague fled Indiana to avoid

prosecution in this matter and had to be extradited back from Florida for trial. All of this

reflects poorly on Teague’s character.

       Giving due consideration to the trial court’s sentencing discretion, and considering

the nature of the offense and Teague’s character, we conclude that Teague’s forty-year

executed sentence is appropriate.

                                         Conclusion

       The trial court did not abuse its discretion by admitting the 911 call, and Teague’s

aggregate, executed sentence of forty years is appropriate.

       Affirmed.

VAIDIK, J., concurs.
BARNES, J., concurs in result.




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