MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Sep 20 2017, 6:13 am

court except for the purpose of establishing                          CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Troy D. Warner                                           Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Lewis Roethler,                                  September 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1704-CR-799
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable David P. Matsey,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         71D05-1606-CM-3602



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-799 | September 20, 2017   Page 1 of 7
[1]   Following a bench trial, Richard Lewis Roethler was convicted of class A

      misdemeanor domestic battery. On appeal, Roethler contends that the trial

      court abused its discretion by admitting into evidence, under the excited

      utterance exception, the victim’s hearsay statements to the responding officers.

      Roethler also challenges the sufficiency of the evidence supporting his

      conviction.


[2]   We affirm.


                                       Facts & Procedural History


[3]   After midnight on June 26, 2016, South Bend emergency dispatch received a

      911 call from James Vaughn. He indicated that a naked woman had just

      approached him outside his home and asked for help. She was in distress and

      indicated to Vaughn that she had been beaten up and was able to escape from

      the house with her dog. The woman was identified as Christy Jackson.


[4]   Officer Steven Noonan arrived on the scene within a few minutes of the call.

      Upon his arrival, he encountered Vaughn and Jackson. Jackson was wearing a

      shirt that Vaughn had provided to her. She was disheveled and appeared scared

      and very upset. Officer Noonan testified that Jackson was still visibly shaking

      and clutching her small dog. While speaking with Jackson, Officer Noonan

      observed severe bruising to her arms that appeared to be of recent origin.

      Jackson informed Officer Noonan that Roethler, her live-in boyfriend, had

      grabbed her and thrown her to the ground during an argument and that she lost



      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-799 | September 20, 2017   Page 2 of 7
      consciousness. She indicated that Roethler would not let her leave the

      residence but she was able to escape through a back window.


[5]   After arresting Roethler inside the home within ten minutes of the dispatch,

      Officer Luke Pickard spoke with Jackson. He observed “pretty severe bruising

      to both arms”, as well as marks on Jackson’s back and scratches and redness on

      her face. Transcript at 24. She was still very upset at this point, crying, shaky,

      and scared. Jackson advised Officer Pickard that Roethler, who was

      intoxicated at the time, grabbed her by the arms and threw her to the ground

      several times that night. Jackson reported that at some point during the attack,

      she hit her head and was knocked unconscious. Her shirt was also ripped off

      while being thrown around. When she regained consciousness, Roethler

      directed her to go to sleep. Jackson went into the bedroom and then escaped

      through the window. Officer Pickard observed that a back window to the

      residence was open with the drapes and blinds hanging outside of it.


[6]   At the bench trial on January 19, 2017, Jackson’s statements from the night of

      the incident were admitted through the testimony of Officers Noonan and

      Pickard, over Roethler’s objection. The trial court admitted the hearsay

      statements under the excited utterance exception. The 911 call was also

      admitted into evidence.


[7]   Jackson had since recanted her prior statements and, thus, testified on

      Roethler’s behalf. She testified that on the night in question she had been on a

      three-day “bender” and had been mixing the prescription medication Belsomra


      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-799 | September 20, 2017   Page 3 of 7
       with tequila. Transcript at 42. She attributed her injuries to a prior altercation

       with two women and indicated that bite marks on her hands and arms appeared

       to be self-inflicted.1 Jackson testified that she did not recall Roethler hurting her

       on the night in question. All she remembered was drinking and sleeping.


[8]    Officer Nicholas Pogotis testified in rebuttal. He had transported Jackson to the

       hospital and spent a significant amount of time with her after the incident.

       Officer Pogotis testified that he did not notice anything about Jackson that

       would lead him to believe she was intoxicated. He explained that Jackson was

       very coherent and able to walk with no issues.


[9]    At the conclusion of the evidence, the trial court found Roethler guilty as

       charged. Roethler was subsequently sentenced to one year executed. He now

       appeals.


                                             Discussion & Decision


                                           1. Admission of Evidence


[10]   Roethler initially challenges the admission of Jackson’s hearsay statements to

       Officers Noonan and Pickard under the excited utterance exception. Our

       standard of review in this regard is well-settled. We review evidentiary rulings

       for an abuse of discretion, which will be found where the ruling is clearly




       1
        Regarding the bite marks, Jackson testified: “I believe them to be my teeth marks because I’m missing a
       bridge right here. I’m missing two teeth, and they appeared to be mine.” Id. at 46.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-799 | September 20, 2017         Page 4 of 7
       against the logic and effect of the facts and circumstances. Zanders v. State, 73

       N.E.3d 178, 181 (Ind. 2017). Further, we will not reweigh the evidence and

       will consider conflicting evidence in a light most favorable to the trial court’s

       ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied.


[11]   The excited utterance exception, Ind. Evidence Rule 803(2), provides that 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 rule

       against hearsay, regardless of the availability of the declarant as a witness at

       trial. In order for a statement to be admitted under this exception, three

       elements must be present: (1) a startling event 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

       (Ind. Ct. App. 2010). This is not a mechanical test, and the heart of the inquiry

       is whether the declarant was incapable of thoughtful reflection before making

       the statement. Id.


[12]   Roethler argues that there was insufficient evidence that a startling event

       occurred prior to Jackson’s statements to police. In this regard, he relies on

       Jackson’s trial testimony that she was drinking heavily and “under the influence

       of the hallucinogenic prescription Belsomra.” Appellant’s Brief at 12.

       Additionally, in arguing that Jackson’s bruising was not recent, Roethler directs

       us to photographs in the record and asserts that “[w]hen one looks…closely, the

       bruises are a mosaic of coloration.” Id. at 13. These arguments boil down to



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       requests for us to reweigh the evidence, which we cannot do. See Collins, 822

       N.E.2d at 218.


[13]   The evidence favorable to the trial court’s ruling reveals that Jackson sought

       help from Vaughn – a stranger – after exiting an alley unclothed in the middle

       of the night. She was in distress and informed Vaughn that she had been beaten

       up and had escaped. Police responded within minutes of the dispatch and

       found Jackson still shaking, crying, and upset. She had severe bruising on her

       arms, which appeared to Officer Noonan to be “recent” and consistent with

       “being grabbed”. Transcript at 17. Further, Officer Pogotis offered testimony

       refuting Jackson’s later claims that she was intoxicated and under the influence

       of Belsomra on the night in question. In light of this evidence, the trial court

       did not abuse its discretion by admitting the challenged evidence under the

       excited utterance exception.


                                       2. Sufficiency of the Evidence


[14]   In a similar vein, Roethler also presents a general sufficiency claim. He

       contends that the State failed to establish beyond a reasonable doubt that he

       touched Jackson in a rude, insolent, or angry manner. Once again, he directs

       us to Jackson’s trial testimony regarding her use of alcohol and drugs on the

       night in question. Roethler asserts that there is “great credibility” in Jackson’s

       testimony and “great reasons to doubt” her statements to police. Appellant’s

       Brief at 15. He continues, “the trial testimony of Jackson is credible and aligns




       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-799 | September 20, 2017   Page 6 of 7
       with the evidence in the photos and with the hallucinogenic effect that

       Belsomra would have had on her.” Id. at 16.


[15]   We reject this blatant request to reweigh the evidence and assess witness

       credibility. See Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017) (observing the

       well-established rule that we do not reweigh evidence or assess the credibility of

       witnesses in reviewing a sufficiency of the evidence claim). The factfinder is

       obliged to determine not only whom to believe, but also what portions of

       conflicting testimony or evidence to believe. Id. Thus, it was wholly within the

       trial court’s discretion, as trier of fact, to disbelieve Jackson’s trial testimony

       and rely, instead, on her statements made on the night in question. Because

       there was ample probative evidence presented from which the trial court could

       have found Roethler guilty beyond a reasonable doubt of battering Jackson, we

       affirm the conviction.


[16]   Judgment affirmed.


       Baker, J. and Bailey, J., concur.




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