MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 20 2018, 10:05 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
Christopher J. Petersen                                  Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Maritta Freeman,                                         April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1704-CR-864
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Evan S. Roberts,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D01-1507-F5-164



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018              Page 1 of 6
[1]   Maritta Freeman appeals her convictions for Battery With a Deadly Weapon,1

      a Level 5 Felony; Domestic Battery,2 a Class A Misdemeanor; and Resisting

      Law Enforcement,3 a Class A Misdemeanor. Freeman argues that the trial

      court erred in excluding a statement that should have been admitted under the

      excited utterance exception to the hearsay rule. Finding that the statement was

      properly excluded, we affirm.


                                                     Facts
[2]   On July 4, 2015, Freeman and her live-in boyfriend, David Wilson, got into an

      argument, and Wilson called the police. Corporal Jeff Weaver spoke with

      Wilson, who had a cut on his right arm. Corporal Weaver asked Wilson how

      he obtained the injury, and Wilson did not answer the question directly, but

      stated that he did not want to press charges. Additionally, Wilson showed

      Corporal Weaver a broken window in the front door. Freeman, who was in the

      living room, did not appear to have any injuries, but had blood on her arms and

      shoulder, and above her right eye. Also in the living room, officers found a

      kitchen knife with red stains.




      1
          Ind. Code § 35-42-2-1.
      2
          I.C. § 35-42-2-1.3.
      3
          Ind. Code § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018   Page 2 of 6
[3]   On July 8, 2015, the State charged Freeman with Level 5 felony battery with a

      deadly weapon, Class A misdemeanor domestic battery, and Class A

      misdemeanor resisting law enforcement.


[4]   A jury trial took place on February 21, 2017, during which Wilson testified that

      on the date of the incident, he had been locked out of the house because he had

      forgotten his keys. To enter the house, he broke a window, cutting his arm in

      the process. However, Corporal Weaver testified that there was no glass in

      Wilson’s injury and Corporal Lee Brooks testified that there was no blood on

      the broken window.


[5]   Additionally, Wilson testified that after he entered the house, he used the

      kitchen knife to cut off his blood-soaked shirt. As he walked through the house,

      Freeman was sitting in the living room, talking to her daughter on the phone.

      Wilson stated that Freeman was speaking “real loudly, mad, and angrily.” Tr.

      Vol. III p. 26. The State objected on hearsay grounds to Wilson testifying about

      the statement Freeman made to her daughter, and the trial court sustained the

      objection. A hearing was conducted outside the presence of the jury, and

      Freeman made an offer to prove. During the offer to prove, Wilson testified

      that Freeman told her daughter, “Carmella, this fool done cut his self.” Id. at

      53. The trial court confirmed its previous ruling and stated that there had been

      no foundation laid for an excited utterance exception to the hearsay rule.


[6]   On February 22, 2017, the jury found Freeman guilty on all counts. On March

      20, 2017, the trial court sentenced Freeman to concurrent sentences of three


      Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018   Page 3 of 6
      years incarceration for battery with a deadly weapon and ninety days each for

      domestic battery and resisting law enforcement. Freeman now appeals.


                                   Discussion and Decision
[7]   Freeman argues that Wilson’s testimony about her statement to her daughter

      was erroneously excluded from evidence. Specifically, Freeman maintains that

      the statement should have been admitted under the excited utterance exception

      to the hearsay rule.


[8]   In addressing this contention, we note that the admission and exclusion of

      evidence falls within the trial court’s sound discretion, and we will reverse only

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

      circumstances before it. Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App.

      2014). 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).


[9]   The law regarding hearsay and excited utterances is well established:


              Hearsay is an out of court statement offered to prove the truth of
              the matter asserted. It is inadmissible unless it falls under an
              exception. Among exceptions to the hearsay rule [is the excited
              utterance exception]. . . . For a hearsay statement to be admitted
              as an excited utterance, three elements must be 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. This is not a mechanical test. It
              turns on whether the statement was inherently reliable because


      Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018   Page 4 of 6
               the witness was under the stress of an event and unlikely to make
               deliberate falsifications.


       Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (internal citations omitted).


[10]   Freeman argues that a startling event occurred when Wilson entered the house

       with a bloody shirt. Accepting for argument’s sake that this qualifies as a

       startling event, we must determine whether Freeman was under the stress of

       excitement caused by the event when she made the statement at issue. The

       only evidence offered in this regard was that Freeman was talking on the phone

       “real loudly, mad, and angrily.” Tr. Vol. III. P. 26. When asked whether

       Freeman had an opportunity to observe Wilson, Freeman testified, “No. I

       really did not. I was on the phone with my daughter and I recall him coming

       through the bedroom headed towards the kitchen.” Id. at 202. In other words,

       even if the event was startling, there is no evidence that Freeman observed it.

       Consequently, Freeman’s statement could not have been made while under the

       stress of the event and the trial court did not err by finding that it does not fall

       under the exception to the hearsay rule, thereby excluding it from evidence.


[11]   Moreover, even if the trial court erroneously excluded Wilson’s testimony, the

       error would have been harmless. Errors in the exclusion of evidence are to be

       disregarded as harmless error unless they affect the substantial rights of the

       defendant. Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct. App. 2004). While

       Wilson was not permitted to testify as to Freeman’s statement, Freeman herself

       testified about it. Tr. Vol. III p. 203. As a result, Wilson’s testimony was


       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018   Page 5 of 6
       cumulative of other evidence that was properly admitted, and any error was

       harmless.


[12]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur..




       Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018   Page 6 of 6
