      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
                                                                              FILED
      court except for the purpose of establishing                        Jun 05 2020, 9:20 am

      the defense of res judicata, collateral                                 CLERK
                                                                          Indiana Supreme Court
      estoppel, or the law of the case.                                      Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Ronald K. Smith                                          Myriam Serrano
      Muncie, Indiana                                          Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Damarco L. Churn,                                        June 5, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2799
              v.                                               Appeal from the Delaware Circuit
                                                               Court
      State of Indiana,                                        The Honorable Marianne L.
      Appellee-Plaintiff.                                      Vorhees, Judge
                                                               Trial Court Cause No.
                                                               18C01-1905-F5-81



      Mathias, Judge.


[1]   Damarco Churn (“Churn”) was convicted in Delaware Circuit Court of Level 5

      felony domestic battery resulting in bodily injury to a pregnant woman and

      Level 5 felony strangulation. Churn appeals his convictions and raises two

      issues, which we restate as:
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020                Page 1 of 17
              I. Whether his Sixth Amendment right to confrontation was
              violated when medical providers were permitted to testify that
              the victim identified Churn as her assailant; and,


              II. Whether the trial court abused its discretion when it denied
              his motions for mistrial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 29, 2019, Churn brutally beat and strangled his pregnant girlfriend,

      M.N.C. Churn and M.N.C. were involved in an argument that began on April

      28, 2019, via text message. During the argument, Churn threatened to beat

      M.N.C. until she and the baby were dead. Tr. p. 55. M.N.C. locked the doors

      to her residence and told other residents to deny entry to Churn. When Churn

      arrived at the residence on April 29, 2019, he yelled and kicked at the doors.

      Another resident unlocked a door and allowed him to enter the home.


[4]   M.N.C. dialed 911 and tried to hide in her bedroom. Churn found M.N.C. in

      her bedroom and took her phone from her. When law enforcement arrived to

      investigate the hang up 911 call, the other resident told the officer it was a

      mistake and no one meant to call 911.


[5]   Churn proceeded to beat M.N.C. on her chest, head and arms while she

      attempted to protect her abdomen. Churn sprayed M.N.C. with pepper spray

      and ripped her shirt off. M.N.C. was able to grab a new shirt and ran out of the

      house. But she returned to the house to get her shoes and cell phone. Churn

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 2 of 17
      refused to return her cellphone to her. M.N.C. complained of burning from the

      pepper spray, and Churn told her to take a shower, which she did. While she

      was in the shower, Churn hit M.N.C., and she fell to the bottom of the bathtub.

      Churn then stomped on her with his foot, striking her head and back. M.N.C.

      eventually fled the house through the bathroom window.


[6]   M.N.C. went to the emergency room later that day. Law enforcement officers

      who investigated the assault observed that M.N.C.’s face was bruised, a fake

      eyelash was missing, she had abrasions on her arms, legs, and back, and redness

      around her neck. M.N.C. had difficulty swallowing. At the emergency room,

      M.N.C. was examined by Physician Ryan Wallace and Forensic Nurse

      Examiner Christi Wohlt.


[7]   On May 1, 2019, Churn was charged with Level 5 felony domestic battery

      resulting in bodily injury to a pregnant woman, Level 5 felony strangulation,

      Level 6 felony domestic battery, and Class A misdemeanor interference with

      reporting a crime. Prior to trial, the trial court granted the State’s motion to

      dismiss the Level 6 felony battery and Class A misdemeanor charges.


[8]   At the jury trial held on October 7 and 8, 2019, M.N.C. testified that she and

      Churn were still involved in a romantic relationship. She stated she

      remembered going to the emergency room on April 29, 2019, but could not

      remember the assault. Tr. p. 139. Therefore, evidence concerning the assault

      and M.N.C.’s resulting injuries was introduced through the testimony of law

      enforcement officers, the examining nurse and physician, and M.N.C.’s


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 3 of 17
       grandmother. Churn objected to the nurse’s and doctor’s testimony on the

       grounds that allowing them to testify to M.N.C.’s statement that Churn

       assaulted her violated his right of confrontation under the Sixth Amendment.


[9]    Christi Wohlt gave extensive testimony concerning M.N.C.’s description of the

       assault and her resulting injuries. Wohlt, a registered nurse and forensic nurse

       examiner at Ball Memorial Hospital, examined M.N.C. when she arrived in the

       emergency room on April 29, 2019, at approximately 7:30 p.m. During the

       examination, M.N.C. was tearful and upset. Wohlt noted that M.N.C. was

       approximately three months pregnant. During the examination, Wohlt

       observed marks on M.N.C.’s throat and asked her if she had been strangled.

       M.N.C. said Churn strangled her twice. As required by her training, Wohlt

       completed a “body map” documenting M.N.C.’s physical injuries. Tr. pp. 61–

       62. Wohlt also took ninety-two photographs of M.N.C.’s injuries, which were

       admitted at trial. Ex. Vol. 1, State’s Ex. 16-111. Both Wohlt and Dr. Wallace

       testified that M.N.C. stated that her boyfriend assaulted her. Tr. pp. 54, 114.


[10]   Churn also requested a mistrial on two occasions during trial. In the first

       instance, the State elicited testimony from Muncie Police Department Officer

       Ryan Plummer concerning a 911 hang up call. Officer Plummer testified that he

       responded to a 911 hang up call and spoke to a female, not M.N.C., who

       answered the door at the address the call originated from. The State then asked,

       “[d]o you have personal knowledge if Damarco Churn ever lived at this

       address?” Tr. p. 34. Officer Plummer responded, “[w]e had calls previous there

       involving him, yes.” Id. Churn requested a mistrial because the State placed

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 4 of 17
       evidence before the jury that Churn “may have had” contacts “with the law in

       the past.” Id. at 35. Churn also argued that an admonition to the jury to

       disregard Plummer’s testimony would not be sufficient. The trial court denied

       the motion for mistrial and gave the following admonishment to the jury:


               I’m advising you, and admonishing you as the jury, that this
               witness does not have any personal knowledge about where
               Damarco Churn was living. So I’m asking you to disregard that.
               Any information he has is hearsay. I’m also admonishing you
               and directing you to disregard any testimony that may have been
               given about police calls to this address, or concerning the
               Defendant.


       Tr. pp. 37–38.


[11]   The State also presented the testimony of Darla Carter, M.N.C.’s grandmother.

       Carter was asked if M.N.C. and Churn were “still in a relationship.” Tr. p. 124.

       Carter replied, “[h]e’s currently incarcerated.” Id. Churn immediately moved

       for a mistrial. The State argued that because it was planning to admit evidence

       of a jailhouse phone call between Churn and M.N.C. from the night before, the

       jury would be presented with additional evidence that Churn was incarcerated,

       rendering Carter’s response harmless. The trial court concluded that an

       admonishment would cure the error and stated to the jury:


               I’m advising and admonishing the jury to disregard the witness’s
               comment about incarceration. Whether the Defendant is or is not
               incarcerated[] does not have any impact on whether the
               Defendant is guilty or not guilty in this case. You are not to
               consider [] whether the Defendant is or is not incarcerated. You
               don’t have any information or you won’t get any information

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 5 of 17
               about why he’s incarcerated, how long he’s been incarcerated, if
               he is incarcerated, that type of thing. So you will have to
               disregard.


       Tr. pp. 128–29.


[12]   Carter further testified that she went to the emergency room when she learned

       that M.N.C. was there on April 29, 2019. Carter also described M.N.C.’s

       injuries to the jury.


[13]   M.N.C. testified that she and Churn had a “video visit on a jail phone call”

       after the first day of trial. Tr. p. 144. The call was made on Churn’s cellmate’s

       account. Tr. pp. 146, 163. Churn told M.N.C. to testify that he did not assault

       her on April 29, 2019. Tr. p. 145. M.N.C. testified that she did not remember

       seeing Churn on April 29, 2019. Tr. p. 150. The trial court also admitted

       M.N.C.’s statement to the police identifying Churn as her assailant over

       Churn’s objection. Tr. pp. 148–49; Ex. Vol. 1, State’s Ex. 113.


[14]   The jury found Churn guilty of Level 5 felony domestic battery and Level 5

       felony strangulation. A sentencing hearing was held on November 25, 2019.

       The trial court noted twenty-year-old Churn’s four prior felony convictions and

       that he was on supervised probation when he committed the offenses in this

       case. The court also noted that he attempted to manipulate M.N.C.’s testimony

       and minimized her injuries, demonstrating a lack of remorse. The trial court

       ordered Churn to serve concurrent terms of five years executed in the

       Department of Correction for both convictions. Churn now appeals.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 6 of 17
                                            I. Right of Confrontation

[15]   Churn argues that allowing Wohlt and Dr. Wallace to testify that M.N.C. told

       them that Churn attacked her violated his right to confrontation under the Sixth

       Amendment of the United States Constitution and Article I, Section 13 of the

       Indiana Constitution. A trial court generally has broad discretion in ruling on

       the admissibility of evidence, and we disturb a trial court’s evidentiary rulings

       only upon an abuse of discretion. Speers v. State, 999 N.E.2d 850, 852 (Ind.

       2013). However, when a defendant contends that a constitutional violation has

       resulted from the admission of evidence, the standard of review is de novo. Id.


[16]   The Sixth Amendment's Confrontation Clause provides, in relevant part, “[i]n

       all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

       with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v.

       Washington, 541 U.S. 36 (2004), “the [U.S.] Supreme Court held that the

       Confrontation Clause . . . prohibits admission in a criminal trial of testimonial

       statements by a person who is absent from trial, unless the person is unavailable

       and the defendant had a prior opportunity to cross-examine the person.” Fowler

       v. State, 829 N.E.2d 459, 464 (Ind. 2005), abrogated in part on other grounds by

       Giles v. California, 554 U.S. 353 (2008).


[17]   However, “when the declarant appears for cross-examination at trial, the

       Confrontation Clause places no constraints at all on the use of [the declarant’s]

       prior testimonial statements. . . . The Clause does not bar admission of a

       statement so long as the declarant is present at trial to defend or explain it.”

       Crawford, 541 U.S. at 59 n.9. And our Supreme Court has clarified that claimed
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 7 of 17
       losses of memory at trial have no effect on availability for purposes of the

       Confrontation Clause:


               Although some courts and commentators contended that a
               witness who asserts an inability to recall any significant
               information is for all practical purposes unavailable for
               confrontation, this issue was settled in United States v. Owens, 484
               U.S. 554, 558, 108 S. Ct. 838, 98 L.E.2d 951 (1988). In Owens,
               the Supreme Court . . . held that as long as the declarant testifies
               the Confrontation Clause has been satisfied even if the declarant
               is unable to recall the events in question. Id. at 558, 108 S. Ct.
               838. . . . The feigned or real absence of memory is itself a factor
               for the trier of fact to establish, but does not render the witness
               unavailable. Rather, as Owens explained, it is a factor for the trier
               of fact to consider in evaluating the witness’s current and earlier
               versions. Id. at 559, 108 S. Ct. 838. . . . We conclude that a
               witness who is present and responds willingly to questions is
               “available for cross-examination” as that term is used in Crawford
               in discussing the Confrontation Clause, just as Owens observed
               that such a witness is “subject to cross-examination” under the
               common understanding of that phrase. We believe no
               significance attaches to these slightly different verbal
               formulations.


       Fowler, 829 N.E.2d at 466 (internal footnote omitted).


[18]   Here, M.N.C. testified at trial. Although she testified that she could not recall

       who assaulted her on April 29, 2019, she was “available” for cross-

       examination. This is sufficient for the purposes of the Confrontation Clause. See

       id. “The Confrontation Clause . . . generates “only ‘an opportunity for effective

       cross-examination, not cross-examination that is effective in whatever way, and



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 8 of 17
       to what ever extent, the defense might wish.’” Id. at 469 (quoting Owens, 484

       U.S. at 559).


[19]   For these same reasons, we conclude that Churn’s right to confrontation under

       Article 1, Section 13 of the Indiana Constitution was not violated. Churn was

       able to “meet the witnesses face to face” as required by our constitution when

       he cross-examined M.N.C. at trial. See Hill v. State, 137 N.E.3d 926 (Ind. Ct.

       App. 2019) (citing State v. Owings, 622 N.E.2d 948, 950–51 (Ind. 1993)), trans.

       denied.


[20]   Finally, although Churn focuses on the admission of M.N.C.’s statements, we

       also observe that Dr. Wallace and Wohlt testified under oath and were subject

       to cross-examination concerning their testimony that M.N.C. identified Churn

       as her assailant. And M.N.C.’s statements to medical providers were non-

       testimonial for the purposes of the Confrontation Clause. See Ward v. State, 50

       N.E.3d 752, 764 (Ind. 2016) (concluding that “identifying a domestic-violence

       victim’s attacker is integral to the medical standard of care for” domestic

       violence cases).


[21]   In Ward, our supreme court observed that “a forensic nurse's primary function

       is providing medical treatment, not gathering evidence. Medical scholarship

       confirms that identifying attackers is integral to the standard of care for ‘medical

       treatment’ of domestic abuse victims.” Id. at 761.


                 Specifically, experts urge doctors and nurses to acknowledge the
                 violence, assess patient safety, refer the victim for additional
                 treatment or services, and document the injuries and the abuser.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 9 of 17
               Indeed, a “forensic nurse is a nurse who provides specialized care
               for patients who are victims and/or perpetrators of trauma (both
               intentional and unintentional). Forensic nurses are nurses first
               and foremost,” even though they are also specially trained in
               injury identification, evaluation, and documentation.


       Id. at 761–62 (footnote and citations omitted).


[22]   “[P]atient safety is a “critical” part of the comprehensive standard of care for

       treating victims of domestic violence.” Id. at 763. Treating nurses and doctors

       must assess the patient’s condition to determine what resources the patient

       needs to be safe. Id.


               The standard of care for “medical treatment” of domestic abuse
               goes beyond physical injuries, and even beyond immediate
               outcomes like who takes a victim home or what medications a
               patient receives. Rather, it requires nurses and physicians to rely
               on information obtained from patients to triage their injuries—
               both mental and physical—and implement comprehensive
               treatment plans. Doctors and nurses need to know the identity of
               the perpetrator when treating a victim of domestic violence.


       Id. (citation omitted).


[23]   This is even more compelling in this case given M.N.C.’s pregnancy. Wohlt

       was concerned with M.N.C.’s health and safety and of that of her unborn child.

       For all of these reasons, M.N.C.’s statements to both Wohlt and Dr. Wallace

       identifying Churn as her assailant were not testimonial and were properly

       admitted into evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 10 of 17
                                                    II. Mistrial

[24]   Churn argues that the trial court abused its discretion when it denied the two

       motions for mistrial he made during his jury trial. The denial of a motion for

       mistrial rests within the trial court’s sound discretion, and we review that

       decision only for an abuse of discretion. Brittain v. State, 68 N.E.3d 611, 619

       (Ind. Ct. App. 2017), trans. denied. The trial court is entitled to great deference

       on appeal because the trial court is in the best position to evaluate the relevant

       circumstances of a given event and its probable impact on the jury. Id. at 620.

       To prevail on appeal from the denial of a motion for mistrial, a defendant must

       demonstrate that the statement in question was so prejudicial that he was

       placed in a position of grave peril. Id. The gravity of peril is measured by the

       probable persuasive effect of the statement on the jury. Smith v. State, 140

       N.E.3d 363, 373 (Ind. Ct. App. 2020), trans. denied. Granting a mistrial “is an

       extreme remedy that is warranted only when no other action can be expected to

       remedy the situation.” Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App. 2015),

       trans. denied.


[25]   Churn requested two mistrials during his jury trial. The first occurred during the

       State’s direct examination of Officer Plummer concerning the hang up 911 call.

       The State asked the officer, “[d]o you have personal knowledge if Damarco

       Churn ever lived at this address?” Tr. p. 34. Officer Plummer responded, “[w]e

       had calls previous there involving him, yes.” Id. The second request for a

       mistrial occurred when M.N.C.’s grandmother testified that Churn was

       “currently incarcerated.” Tr. p. 124. In response to Churn’s motions for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 11 of 17
       mistrial, the trial court admonished the jury to disregard the challenged

       testimony. Tr. pp. 37–38; 128–29.


[26]   “Generally, a timely and accurate admonition is an adequate curative measure

       for any prejudice that results.” Orta v. State, 940 N.E.2d 370, 374 (Ind. Ct. App.

       2011), trans. denied. And “[w]hen the jury is properly instructed, we will

       presume they followed such instructions.” Duncanson v. State, 509 N.E.2d 182,

       186 (Ind. 1987). “We seldom find reversible error when the trial court

       admonishes the jury to disregard the statement made during the proceedings.”

       Davidson v. State, 580 N.E.2d 238, 241 (Ind. 1991).


[27]   Churn argues that Officer Plummer’s statement constitutes an evidentiary

       harpoon that placed him in a position of grave peril. An evidentiary harpoon

       refers to placing inadmissible evidence before the jury with the deliberate

       purpose of prejudicing the jurors against the defendant. Kirby v. State, 774

       N.E.2d 523, 535 (Ind. Ct. App. 2002), declined to follow on other grounds by Austin

       v. State, 997 N.E.2d 1027 (Ind. 2013), trans. denied. The injection of an

       evidentiary harpoon may constitute prosecutorial misconduct requiring a

       mistrial. Roberts v. State, 712 N.E.2d 23, 34 (Ind. Ct. App. 1999), trans. denied.

       To prevail on such a claim, the defendant must show that the prosecution acted

       deliberately to prejudice the jury and that the evidence was inadmissible. Id. A

       defendant need not prove that he would have been acquitted but for the

       harpooning. Jewell v. State, 672 N.E.2d 417, 424 (Ind. Ct. App. 1996), trans.

       denied. However, when the jury’s determination is supported by independent

       evidence of guilt and it was likely that the evidentiary harpoon did not play a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 12 of 17
       part in the defendant’s conviction, the error is harmless. Perez v. State, 728

       N.E.2d 234, 237 (Ind. Ct. App. 2000), trans. denied.


[28]   Assuming for the sake of argument that the State intended to elicit Officer

       Plummer’s testimony, the officer’s testimony did not inform the jury of any

       specific incident or prior offense involving Churn. From the officer’s testimony,

       the jury could only infer that Churn had some sort of contact with law

       enforcement in the past. We cannot conclude that the officer’s testimony placed

       Churn in a position of grave peril or influenced the jury’s decision to convict

       him, especially in light of the trial court’s thorough admonishment and the

       other evidence proving that he assaulted M.N.C. And Churn has not offered

       any specific argument as to why the trial court’s admonition was inadequate to

       cure any potential prejudice.


[29]   Churn also cannot establish that he was entitled to a mistrial on the basis of

       Carter’s testimony that he was currently incarcerated. Tr. p. 124. The jury was

       admonished to disregard her testimony. Also, after Carter’s testimony, the State

       introduced evidence of a jailhouse video call that Churn made to M.N.C. after

       the first day of trial. Churn is wearing his jail uniform in the video. Therefore,

       Carter’s testimony was cumulative of other evidence and did not place Churn in

       a position of grave peril. Moreover, the trial court appropriately admonished

       the jury that “the fact that the Defendant is incarcerated during this phone call

       is not to be used by you as any evidence of guilt.” Tr. p. 164.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 13 of 17
[30]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it denied Churn’s motions for mistrial.


                                                 Conclusion
[31]   Churn has not established any error, much less reversible error, in the trial

       court’s evidentiary rulings, or in its denial of his motions for mistrial. We

       therefore affirm his Level 5 felony domestic battery and strangulation

       convictions.


[32]   Affirmed.


       Riley, J., concurs.


       Tavitas, J., concurs with a separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 14 of 17
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Damarco L. Churn,                                        Court of Appeals Case No.
                                                                19A-CR-2799
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Tavitas, Judge, concurring.


[33]   I respectfully concur. I write separately to emphasize my belief that resolution

       of Issue I, supra, hinges on whether the statements are testimonial as analyzed

       by our Supreme Court in Ward v. State, 50 N.E.3d 752 (Ind. 2016). This

       analysis yields the same conclusion reached by the majority.


[34]   In analyzing whether the Sixth Amendment’s Confrontation Clause protections

       were violated, the Ward Court invoked the primary purpose test pursuant to

       Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173 (2015), to determine if the

       statements made were testimonial. The primary purpose test asks: “whether, in

       light of all the circumstances, viewed objectively, the primary purpose of the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020         Page 15 of 17
       conversation was to create an out-of-court substitute for trial testimony.” Ward,

       50 N.E.3d at 759 (quotations omitted). Ward also noted that, “under the

       primary purpose test, statements to nurses, doctors, and other non-law

       enforcement officers are much less likely to be testimonial than statements to

       law enforcement officers,” and the inquiry is “highly fact-sensitive.” Id.

       (quotations omitted). Our Supreme Court also observed, especially in cases of

       “child abuse, sexual assault, and/or domestic violence,” identifying an attacker

       “serves a primarily medical purpose” in order to properly treat the patient. Id. at

       759 (emphasis supplied and quotations omitted).


[35]   Like the Supreme Court in Ward, I would resolve this issue by concluding that

       the statements to Dr. Wallace (a physician) and Wohlt (a forensic nurse

       examiner) identifying Churn are “non-testimonial, not barred by the

       Confrontation Clause, and properly admitted under Evidence Rule 803(4).” See

       Ind. Evid. R. 803(4) (including an exception to statements excluded by the rule

       against hearsay as “Statement Made for Medical Diagnosis or Treatment”); see

       also 13 Ind. Prac., Indiana Evidence § 803.104 (4th ed.) (“Statements made to

       non-physicians fall within Rule 803(4) if made to promote diagnosis or

       treatment.”) (footnotes omitted).


[36]   In analyzing Article 1, Section 13 of the Indiana Constitution, the Ward Court

       noted the requirement that the defendant have the right to meet “witnesses face

       to face.” Ward, 50 N.E.3d at 756 (emphasis added). Thus, the question is

       whether the defendant had the opportunity to confront the witness—not



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 16 of 17
       necessarily the declarant—face to face. Churn had the opportunity to cross-

       examine Dr. Wallace and Wohlt at the trial.


[37]   Accordingly, I resolve this issue by finding first that the statements at issue here

       are non-testimonial. I use the template created by our Supreme Court in Ward

       to reach the same conclusion as the majority. As such, I concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2799 | June 5, 2020   Page 17 of 17
