                                                                           FILED
                                                                     Jun 12 2019, 9:15 am

                                                                           CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ryan M. Gardner                                            Curtis T. Hill, Jr.
Deputy Public Defender                                     Attorney General of Indiana
Fort Wayne, Indiana                                        Samuel J. Dayton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Cody A. Stinson,                                           June 12, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2925
        v.                                                 Appeal from the
                                                           Allen Superior Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        Frances C. Gull, Judge
                                                           Trial Court Cause No.
                                                           02D05-1801-F3-1



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019                             Page 1 of 15
[1]   Cody A. Stinson (“Stinson”) was convicted following a jury trial of attempted

      murder,1 a Level 1 felony, and battery with a deadly weapon,2 as a Level 5

      felony, and he was adjudicated to be an habitual offender.3 On appeal, he raises

      the following restated issues:


                 I. Whether the trial court abused its discretion in admitting
                 statements under the excited utterance exception to the rule
                 against hearsay thereby prejudicing Stinson’s right to a fair trial;
                 and


                 II. Whether the trial court abused its discretion when it allowed
                 the State to ask the victim leading questions during direct
                 examination.


      We affirm.


                                       Facts and Procedural History
[2]   Around 10 p.m. on December 31, 2017, Stinson went to a New Year’s Eve

      party with his girlfriend Spring Applegate (“Applegate”), half-brother Shane

      Hobbs (“Hobbs”), and best friend Mark McVay (“McVay”). The four friends

      drank alcohol at the party, and after McVay jumped over the bar and broke

      some glasses, the host asked them to leave. The friends got into their car and

      headed toward Hobbs’s Allen County home, stopping at Taco Bell along the




      1
          See Ind. Code §§ 35-42-1-1, 35-41-5-1.
      2
          See Ind. Code § 35-42-2-1(g).
      3
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019                 Page 2 of 15
      way. Hobbs was driving the car, McVay sat in the passenger seat, and

      Applegate and Stinson sat in the back seat. Tr. Vol. 3 at 38.


[3]   During the drive, Stinson and Applegate began fighting, and Hobbs and McVay

      told them to stop. A minute or two later, Stinson reached over the front seat

      toward McVay. Hobbs then heard a smacking or tapping sound, as if Stinson

      was hitting McVay; Hobbs heard the sound at least five times. Tr. Vol. 2 at 208.

      McVay appeared fine, but a few seconds later, he slumped over and fell

      unconscious. Id. at 211. After realizing that Stinson, in fact, had been stabbing

      McVay, Hobbs said to Stinson, “Are you fucking kidding me? That’s your best

      friend.” Id. Hobbs was also injured during the attack when Stinson, while

      drawing his knife back, cut Hobbs’s right temple. Id. at 208. The entire attack

      lasted between five and ten seconds. Id. at 209.


[4]   Because Hobbs was a half mile from his house, he continued driving. Arriving

      a short time later, Hobbs parked “cockeyed” in his driveway, which he never

      did, to alert his girlfriend, Delilah Middaugh (“Middaugh”), that something

      was wrong. Id. at 212-13. Hobbs left the car running, the lights on, and the

      driver door open. As Applegate exited the car, Hobbs gave her the keys to his

      house and told her to call 911; Applegate ran toward the house. Id. at 214.

      Hobbs thought that McVay was already dead; Stinson stepped out of the car,

      looked at McVay, and kept walking. Hobbs told Stinson that “everything was

      over,” by which he meant, “The night was over and so was, pretty much,

      [Stinson’s] freedom.” Id. at 215. Stinson responded, “What are you talking

      about? It’s not over. . . . [McVay]’s dead. Let’s go do some shots.” Id.

      Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019       Page 3 of 15
[5]   It was at that time that Applegate came from the back of the house. She was

      still holding the keys because she could not get into the house. Id. at 216.

      Seeing Applegate, Hobbs immediately grabbed her by the collar and led her

      back toward the house. Hobbs began unlocking the door, but it was opened by

      Middaugh. Afraid that Stinson might hurt Applegate, because she was a

      witness to the stabbing, Hobbs pushed Applegate into the house for her own

      safety. Id. at 218-19. Hobbs told Middaugh that Stinson had stabbed McVay,

      and she should call 911. Id. at 216. Hobbs shut and locked the door, and when

      he turned around and saw Stinson standing about eight feet away, Hobbs

      pushed Stinson off the porch. Id. at 216-17.


[6]   Hobbs ran back to his car, “jumped in as fast as [he] could,” repeatedly hit the

      button to lock his door, and drove away with McVay in the passenger seat. Id.

      at 217. With the dome light on, Hobbs could see blood and “realized how

      much more serious [the injury] was than [Hobbs] thought.” Id. Hobbs started

      “screaming” McVay’s name. Id. When he got no response, he drove to a

      nearby mortuary and pounded on the door. When no one answered the door,

      Hobbs called Middaugh to make sure she and Applegate were alright and again

      told Middaugh to call 911. Id. at 218. During this call, which Middaugh

      testified Hobbs made about a minute after he left the house, Hobbs told

      Middaugh, “The kid’s dying . . . in your car.” Tr. Vol. 3 at 16. Hobbs ended

      the call and called 911.


[7]   While awaiting the arrival of emergency personnel, Hobbs noticed that McVay

      was making “gargling” or “snoring” sounds. Tr. Vol. 2 at 218. Paramedics

      Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019        Page 4 of 15
      arrived and found McVay “very pale,” not verbally communicating, making

      non-purposeful movements, and bleeding profusely. Tr. Vol. 3 at 60. The

      paramedics determined that McVay should be taken to Lutheran Hospital

      because it had a trauma center. During surgery, surgeons discovered that

      McVay’s carotid artery was cut in half. Id. at 79. They also noticed that

      McVay had multiple stab wounds to the left of his neck, to the back of his neck,

      to his face, and to his right hand. Id. One of the knife thrusts chipped McVay’s

      bone. Due to the loss of blood to his brain, McVay suffered one or more

      strokes, which left him unable to use his right hand and with a limited ability to

      speak. Id. at 78, 80-81, 118. Lutheran Hospital surgeon Dr. Dale Sloan (“Dr.

      Sloan”) testified that the paramedic’s decision to take McVay to a hospital with

      a trauma center saved his life. Id. at 80.


[8]   On January 5, 2018, the State charged Stinson with Count I, aggravated battery

      with McVay as the victim, and Count II, battery with a deadly weapon with

      Hobbs as the victim. Thereafter, the State filed notice of its intent to seek a

      habitual offender enhancement in Count III. On June 6, 2018, the trial court

      granted leave for the State to add Count IV, a charge of attempted murder with

      McVay as the victim. The trial court held a three-day jury trial in October

      2018, during which the State introduced the testimony of Hobbs, McVay, and

      Applegate, among others. Hobbs and McVay testified that Stinson was the one

      who stabbed McVay. Tr. Vol. 2 at 208, 221, 114. Applegate testified that she

      knew McVay was injured in the car, but, because she was drunk, she could not

      recall what happened that night. Tr. Vol. 2 at 250; Tr. Vol. 3 at 4. Applegate


      Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019          Page 5 of 15
      testified, “I remember I was crying, I was just like freaking out, there was a lot

      of yelling and noise and I was freaking out.” Tr. Vol. 2 at 249. It was defense

      counsel’s theory that someone else stabbed McVay. Tr. Vol. 3 at 4. The State

      cast doubt on this theory by introducing evidence that McVay did not hurt

      himself and that Hobbs was also injured. Tr. Vol. 2 at 208, Tr. Vol. 3 at 115.

      Regarding the claim that Applegate may have stabbed McVay, the State

      introduced the testimony of Dr. Sloan, who stated that, while it would not take

      a lot of power for a knife to penetrate the skin, it would take “more power to

      actually chip a bone.” Tr. Vol. 3 at 82. The State also noted that Hobbs tried to

      get help for McVay, while Applegate stayed with Middaugh. Id. at 28. Stinson,

      the only of the four who could not be accounted for after McVay’s stabbing,

      was later found at a bar. Id. at 50.


[9]   The jury found Stinson guilty of aggravated battery, battery with a deadly

      weapon, and attempted murder. Phase two of the trial, regarding the habitual

      offender enhancement, began on October 4, 2018. After hearing evidence and

      argument, the jury deliberated and determined that Stinson was a habitual

      offender. At the sentencing hearing, the State moved to dismiss the aggravated

      battery count on double jeopardy grounds, which the trial court granted. The

      trial court sentenced Stinson to forty years in the Indiana Department of

      Correction for attempted murder, enhanced by twenty years for being a habitual

      offender, to be served consecutively to six years for battery with a deadly

      weapon, for an aggregate sentence of 66 years. Appellant’s App. Vol. III at 88,

      90. Stinson now appeals.


      Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019         Page 6 of 15
                                       Discussion and Decision

                   I. Excited Utterance Exception to Hearsay Rule
[10]   Stinson appeals the trial court’s admission of Hobbs’s out-of-court statements as

       recounted in court by Middaugh, contending that they were inadmissible

       hearsay that did not fall within the excited utterance exception. A trial court

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

       those rulings only upon an abuse of that discretion. Chambless v. State, 119

       N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied. “An abuse [of discretion]

       occurs only where the trial court’s decision is clearly against the logic and effect

       of the facts and circumstances.” Id. There is a strong presumption that the trial

       court properly exercised its discretion. Id. “In determining the admissibility of

       evidence, we will only consider evidence that favors the trial court’s ruling and

       unrefuted evidence that favors a defendant.” Id.


[11]   Hearsay is “a statement that: (1) is not made by the declarant while testifying at

       the trial or hearing; and (2) is offered in evidence to prove the truth of the

       matter asserted.” Ind. Evidence Rule 801(c). Hearsay is not admissible except

       as provided by law or by other court rules. Ind. Evidence Rule 802. A trial

       court may admit hearsay that qualifies under the excited utterance exception.

       See Ind. Evidence Rule 803(2).


[12]   Stinson complains that Middaugh should not have been able to testify before

       the jury regarding Hobbs’s out-of-court statements that “Cody [Stinson] stabbed

       Mark [McVay],” Tr. Vol. 3 at 15, and that “[t]he kid’s dying in your . . . car.”


       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019          Page 7 of 15
       Id. at 16. Statements made by a witness are “admissible as substantive evidence

       pursuant to Indiana Evidence Rule 803(2) when the statements (a) pertain to a

       startling event or condition; (b) are made while the declarant was under the

       stress or excitement caused by the event or condition; and (c) are 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.’” Teague v.

       State, 978 N.E.2d 1183, 1187 (Ind. Ct. App. 2012) (quoting 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.’” Id. (quoting Boatner v. State, 934 N.E.2d 184, 186

       (Ind. Ct. App. 2010)). “The heart of the inquiry is whether the declarant was

       incapable of thoughtful reflection.” Id.


[13]   Stinson contends that there was no foundation for a finding that Hobbs’s

       statements to Middaugh constituted an excited utterance. We disagree. There

       is little doubt that these four friends, who were celebrating New Year’s Eve

       together, did not expect that, at the end of the evening, Stinson would have

       stabbed his best friend. It was clearly a startling event for Hobbs to see Stinson,

       his half-brother, reach over the seat, apparently to hit McVay, and later discover

       that Stinson had stabbed McVay. Hobbs did not immediately know that

       McVay had been stabbed, but when Hobbs was only a half-mile from his house,

       he saw McVay slumped over and unconscious. Tr. Vol. 2 at 208, 212.


       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019             Page 8 of 15
       Realizing what had occurred, Hobbs said to Stinson, “Are you fucking kidding

       me? That’s your best friend.” Id. at 211.


[14]   When Hobbs arrived home, he did not calmly get out of the car, instead, he

       jumped out, leaving the car running, with its lights on, and the car door open.

       Id. at 213. He explained he did this, “So I could get back in as fast as I could.”

       Id. Hobbs ordered Applegate to go into the house and call 911. Hobbs thought

       that McVay was already dead; Stinson stepped out of the car, looked at McVay,

       and kept walking. Hobbs told Stinson that “everything was over,” by which he

       meant, “The night was over and so was, pretty much, [Stinson’s] freedom.” Id.

       at 215. Stinson replied, “It’s not over. . . . [McVay’s] dead. Let’s go do some

       shots.” Id. When Applegate returned, because she could not get into the

       house, Hobbs did not just walk her back to the house; instead, he grabbed her

       by the collar, led her back to the house, and tried to open the door. When the

       door finally opened, Hobbs pushed Applegate into the house,4 telling

       Middaugh, “Cody [Stinson] stabbed Mark [McVay]. Call 911.” Tr. Vol. 3 at

       15. This statement was made while Hobbs was under the stress or excitement

       caused by McVay being stabbed. This was Hobbs’s state of mind when he told

       Middaugh. “Cody [Stinson] stabbed Mark [McVay]. Call 911.” Tr. Vol. 3 at

       15.




       4
         As additional evidence of Hobbs’s stressed state of mind, he explained that he pushed Applegate through
       the door because he “figured [Stinson] might attack her ‘cause she was a witness.” Tr. Vol. 2 at 219.

       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019                               Page 9 of 15
[15]   Hobbs then ran back to his car, “jumped in as fast as [he] could,” “hit the lock

       button probably 50 times and turned the car around I think somehow and

       started driving away” with McVay in the passenger seat. Id. at 217. By means

       of the dome light, Hobbs could see blood and “realized how much more serious

       [the injury] was than [Hobbs] thought.” Id. Hobbs started “screaming”

       McVay’s name. Id. When he got no response, he drove to a nearby mortuary

       and pounded on the door. When no one answered the door, Hobbs called

       Middaugh to make sure she and Applegate were alright and again told

       Middaugh to call 911. Id. at 218. During this call, which Middaugh testified

       Hobbs made about a minute after he left the house, Hobbs told Middaugh,

       “The kid’s dying . . . in your car.” Tr. Vol. 3 at 16. Hobbs ended the call and

       called 911.


[16]   This evidence strongly supports a finding that these two statements were excited

       utterances. Hobbs’s statements pertained to the startling event of the stabbing,

       were made while Hobbs was under stress caused by the stabbing, and were

       related to the stabbing. We find no abuse of discretion in the trial court’s

       decision to allow these statements into evidence under the hearsay exception of

       excited utterance


                     II. Leading Questions on Direct Examination
[17]   Stinson next contends that the trial court abused its discretion when it allowed

       the State to ask McVay leading questions during direct examination. The

       decision to admit or exclude evidence is within the trial court’s sound discretion


       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019        Page 10 of 15
       and is afforded great deference on appeal. Norris v. State, 53 N.E.3d 512, 525

       (Ind. Ct. App. 2016). An abuse of discretion occurs when the trial court’s

       decision is clearly erroneous and against the logic and effect of the facts and

       circumstances before it or it misinterprets the law. Id. However, as we explain

       below, our standard of review changes when a party fails to object at trial.


[18]   At trial, Stinson did not object for any reason to the State’s questioning of

       McVay and suggests, only now, that the trial court erred by permitting the State

       to ask leading questions of McVay during direct examination. See Tr. Vol. 3 at

       107-20. As a general rule, “[a] party’s failure to object to, and thus preserve, an

       alleged trial error results in waiver of that claim on appeal.”5 Batchelor v. State,

       119 N.E.3d 550, 556 (Ind. 2019). The rule of waiver is designed to promote

       fairness “by preventing a party from sitting idly by,” ostensibly agreeing to a

       ruling “only to cry foul” when the court ultimately renders an adverse decision.

       Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). “While the waiver doctrine

       advances important policies of judicial efficiency, mere expediency is not an

       appropriate appellate goal.” Id. (internal quotation marks omitted). “The




       5
         Fundamental error is an extremely narrow exception to the general rule that a party’s failure to object at
       trial results in a waiver of the issue on appeal. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). To establish
       fundamental error, the defendant faces the heavy burden of showing that the alleged error was so prejudicial
       to his rights as to make a fair trial impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). “The defendant
       must show that, under the circumstances, the error constituted clearly blatant violations of basic and
       elementary principles of due process and presented an undeniable and substantial potential for harm.” Id.
       (internal quotation marks omitted). Stinson does not argue that allowing McVay to testify in response to
       leading questions was fundamental error. However, because we find that the trial court did not abuse its
       discretion when it allowed the State to use leading questions, a claim of fundamental error, even if made,
       would fail.

       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019                                 Page 11 of 15
       objectives of trial procedure are to secure determinations that are not only

       speedy and inexpensive but also just.” Id. (internal quotation marks omitted).


[19]   At the start of the first day of trial, before voir dire, the trial court addressed the

       parties’ motion in limine and motion to compel Stinson to provide his

       fingerprints for the habitual offender phase of trial. The State also raised to the

       trial court and defense counsel the following specific concern:


               [PROSECUTOR]: We talked about this briefly on Friday as it
               relates to the questioning of Mark McVay. He is only able to say
               the words “yes” and “no,” and the Court has been very gracious
               in allowing us to have a tablet, which will help him
               communicate, but we are asking for some latitude in questioning
               him. We don’t plan to – I know, typically, people – everyone
               thinks the yes or no are leading questions; but unfortunately,
               because of this injury due to this case, all he – the only way that
               he can communicate is “yes” or “no” and with the tablet, which
               only has a few very common phrases. . . . Your Honor, []we’d
               just ask for accommodations because of his injury.


               THE COURT: Any problem with that, gentlemen?


               [DEFENSE COUNSEL]: No, your honor.


       Tr. Vol. 2 at 9-10. From this exchange, it is clear that, before trial, defense

       counsel was both aware that McVay’s injuries resulted in verbal limitations and

       agreed that it was appropriate to allow McVay the accommodation to testify

       using only answers of yes and no. Here, the trial court did not abuse its

       discretion when it allowed the State to use leading questions.



       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019            Page 12 of 15
[20]   Furthermore, even if Stinson had objected, his objection would have been

       overruled. Indiana Evidence Rule 611(c) provides: “Leading questions should

       not be used on direct examination except as necessary to develop the witness’s

       testimony.” “A leading question is one that suggests the desired answer to the

       witness.” Jones v. State, 982 N.E.2d 417, 430 (Ind. Ct. App. 2013), trans. denied.

       The use of leading questions is “limited in order to prevent the substitution of

       the attorney’s language for the thoughts of the witness as to material facts in

       dispute.” Id. “The trial court is afforded wide discretion in allowing leading

       questions, and the court’s decision will be reversed only for an abuse of

       discretion.” Id.


[21]   Stinson argues that McVay’s testimony was the result of leading questions, and

       the State’s questions were specifically crafted to mirror the testimony of prior

       witnesses. Appellant’s Br. at 13. Stinson finds it “most troubling” that the “State

       presented no evidence and laid no foundation, other than McVay’s responses to

       other leading questions, that [McVay] was unable to answer questions in some

       other fashion.” Id. We disagree with Stinson’s assertion. Stinson knew that

       McVay was seriously disabled, had limited speech, and could only answer

       questions with a yes or no. Before voir dire, the State explained to opposing

       counsel and the trial court that “everyone thinks the yes or no are leading

       questions; but unfortunately, because of this injury due to this case, all he – the

       only way that [McVay] can communicate is ‘yes’ or ‘no.’” Tr. Vol. 2 at 10. A

       trial court has wide discretion and is afforded great deference on appeal. Jones,

       982 N.E.2d at 430. Given the fact that McVay’s injuries limited his ability to


       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019         Page 13 of 15
       communicate, the trial court did not abuse its discretion when it allowed the

       State to ask McVay leading questions during direct examination. See Norris, 53

       N.E.3d at 525.


[22]   Furthermore, McVay’s identification of his attacker was not obtained through a

       leading question. The State questioned McVay as follows:


               Q Okay. Were you attacked while you were in the car?


               A Yeah.


               Q Do you remember who did it to you?


               A Yeah.


               Q This may seem like a silly question, but did you hurt yourself
               while you were in the car? Did you hurt yourself?


               A No.


               Q Do you see the person who hurt you in the car in the
               courtroom today?


               A Yeah.


               Q Was it Shane [Hobbs] that hurt you?


               A No.


               Q Was it Spring [Applegate] that hurt you?


       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019      Page 14 of 15
               A No.


               Q Was it Cody [Stinson] who hurt you?


               A Yeah.


       Tr. Vol. 3 at 114-15. Here, the State knew that the injury occurred in the car and

       that only four individuals had been in the car that night. McVay said he did not

       harm himself but knew who had attacked him. The State’s questioning gave

       McVay the opportunity to identify any of the other three as the attacker. After

       denying that either Hobbs or Applegate was the attacker, McVay identified

       Stinson as the attacker. We find no error.


[23]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2925 | June 12, 2019      Page 15 of 15
