MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
                                                                    Aug 29 2017, 10:04 am
court except for the purpose of establishing
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                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sean A. Kubiak,                                          August 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1609-CR-2187
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause Nos.
                                                         71D02-1601-F6-48
                                                         71D02-0909-FC-231



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017       Page 1 of 11
                                       Statement of the Case
[1]   Sean A. Kubiak appeals his convictions for operating a motor vehicle while

      privileges are forfeited for life, a Level 5 felony, and resisting law enforcement,

      as a Level 6 felony, following a jury trial in cause number 71D02-1601-F6-48

      (“F6-48”) and the trial court’s revocation of his probation in cause number

      71D02-0909-FC-231 (“FC-231”). Kubiak raises five issues for our review,

      which we restate as the following three issues:


              1.      Whether the trial court abused its discretion when it
                      permitted an officer to testify to a third party’s out-of-court
                      statements under the excited utterance exception to
                      hearsay.


              2.      Whether the trial court abused its discretion when it
                      overruled Kubiak’s Indiana Evidence Rule 404(b)
                      objection to the officer’s testimony that he had observed
                      Kubiak driving the vehicle in question on a prior occasion.


              3.      Whether the State presented sufficient evidence to support
                      Kubiak’s convictions and the revocation of his probation.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On December 20, 2015, South Bend Police Department Officer Robert Anton

      observed the driver of a white van disregard a traffic signal and proceed through

      an intersection. Officer Anton activated his police vehicle’s lights and siren,

      and he attempted to conduct a traffic stop of the van. But the driver of the van


      Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017   Page 2 of 11
      refused to pull over and, instead, “turned abruptly” down other streets. June

      21, 2016, Tr. at 123. Officer Anton informed dispatch that he was in pursuit of

      the van.


[4]   About two blocks later, the van hit a median and lost both of its passenger-side

      wheels. The van spun 180-degrees and came to a rest such that Officer Anton

      could look directly into the van’s cabin area, which was illuminated by his

      vehicle’s headlights. Officer Anton “could clearly see two occupants. The one

      in the driver’s seat was a male white, with long blonde hair. And . . . the

      passenger was a female, also with long blonde hair.” Id. at 125. Officer Anton

      observed that the female passenger looked “afraid” and “shocked.” Id. at 135.

      After “no more than a second,” the van again accelerated away from Officer

      Anton, emitting “sparks and other debris from the passenger side[] where the

      wheels were no longer.” Id. at 125.


[5]   After a short distance, the van came to a stop, and Officer Anton brought his

      vehicle to a stop near the van and illuminated the van with his spotlight.

      Officer Anton then exited his vehicle but did not approach the van while he

      waited for additional officers. While he waited, “a male white in a blue

      sweatshirt and light blue jeans,” who Officer Anton recognized as the driver,

      exited the van and fled on foot. Id. at 126. Officer Anton stayed with the van,

      but as the driver ran away Officer Anton observed the driver “look[] back

      directly at” Officer Anton while the driver was still in the area illuminated by

      Officer Anton’s vehicular lights. Id. at 133.



      Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017   Page 3 of 11
[6]   After about five minutes, Officer Anton approached the van. The female

      passenger identified herself to Officer Anton as Angela Kubiak (“Angela”).

      Officer Anton observed that “[s]he was still very shaken up” by the incident. Id.

      at 135. Angela stated that Kubiak had been the driver of the van. Officer

      Anton then inventoried the van, during which he discovered three prescription

      medication bottles with Kubiak’s name on them.


[7]   After he inventoried the van, Officer Anton searched police records for

      Kubiak’s name and found Kubiak’s driving record. That record included a

      photograph of Kubiak. Officer Anton concluded that the person in the

      photograph was the same person he had observed operating the van.


[8]   The State charged Kubiak in relevant part with operating a motor vehicle while

      privileges are forfeited for life, a Level 5 felony, and resisting law enforcement,

      as a Level 6 felony, in F6-48. In FC-231, the State alleged that Kubiak’s actions

      were a violation of the conditions of his probation.


[9]   At his ensuing jury trial in F6-48, Kubiak’s defense focused on challenging the

      State’s identification of him as the driver of the van. Officer Anton testified to

      the events of December 20, 2015, and his testimony was largely corroborated by

      the dashboard camera that had recorded the events from inside his police

      vehicle.1 Kubiak objected to Officer Anton’s testimony as to what Angela had

      told Officer Anton upon his approach to the van on the grounds that her out-of-




      1
          There is no dispute that that recording does not permit the viewer to identify the driver of the van.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017                Page 4 of 11
       court statements were inadmissible hearsay. The trial court overruled Kubiak’s

       hearsay objection after concluding that Angela’s statements were excited

       utterances.


[10]   Also during Officer Anton’s testimony, the following exchange between the

       parties and the court occurred:


               Q. [by the State:] Now, Officer Anton, is this the first time that
               you’ve had occasion to run into Mr. Kubiak?


               A.      No, it’s not.


               MR. HILGENDORF [for Kubiak]: May we approach?


                                                       ***


               Your Honor, based on the police report, I suspect that this
               witness would testify that he had seen Mr. Kubiak driving about
               a week before.


               I think that’s a prior bad act, so I’m objecting, because it’s not
               relevant here. And it’s prejudicial and would be effectively
               the . . . commission of an uncharged offense.


                                                       ***


               MS. MCBRIDE [for the State]: Your Honor, in this case the
               State is expecting the officer to testify that he was driving the
               same van.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017   Page 5 of 11
               This is not necessarily a prior bad act[;] it’s simply that he was
               driving the van on a different occasion.


               THE COURT: Well, in this case the issue is whether it was Mr.
               Kubiak who was driving the van on this date . . . .


                . . . I think a question like, “Had you seen Mr. Kubiak driving
               the van prior to December 20, 2015,” would be acceptable. . . .
               [T]he jury is not going to be told when he became an habitual for
               life. But the issue is, he was in that van . . . .


       Id. at 130-32.


[11]   The State then asked Officer Anton the question as instructed by the court, and

       Officer Anton testified that he had “previously observed a man very closely

       matching [Kubiak’s] description . . . operating that vehicle before the night in

       question.” Id. at 132. Officer Anton clarified that that prior observation had

       been “no more than six months” before December 20, 2015. Id. Thereafter,

       Kubiak stipulated to the jury that, “[o]n December 20, 2015, [his] driving

       privileges were validly suspended for life . . . .” Id. at 144.


[12]   The jury found Kubiak guilty of operating a motor vehicle while privileges are

       forfeited for life, a Level 5 felony, and resisting law enforcement, as a Level 6

       felony, in F6-48. The court then revoked Kubiak’s probation in FC-231. The

       court entered judgment of conviction against Kubiak in F6-48 and sentenced

       him accordingly in both causes. This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017   Page 6 of 11
                                      Discussion and Decision
                    Issue One: Angela’s Out-of-Court Identification of Kubiak

[13]   On appeal, Kubiak first contends that the trial court abused its discretion when

       it permitted Officer Anton to testify to Angela’s out-of-court statement to him in

       which she identified Kubiak as the driver of the van. The trial court has

       “inherent discretionary power on the admission of evidence, and its decisions

       are reviewed only for an abuse of that discretion.” McManus v. State, 814

       N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An abuse of

       discretion occurs when the trial court’s judgment “is clearly against the logic

       and effect of the facts and circumstances and the error affects a party’s

       substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


[14]   Hearsay is generally inadmissible. Ind. Evidence Rule 802. However, hearsay

       may be admissible if it is an excited utterance. Evid. R. 803(2). For a statement

       to be 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. Fowler v. State, 829

       N.E.2d 459, 463 (Ind. 2005), abrogated on other grounds, Giles v. California, 554

       U.S. 353, 366-68 (2008). “The ultimate issue is whether the statement is

       deemed reliable because of its spontaneity and lack of thoughtful reflection and

       deliberation.” Id. In Fowler, the Indiana Supreme Court held that the trial

       court did not abuse its discretion when it admitted into evidence statements

       made to an officer fifteen minutes after a startling event. Id. at 463-64.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017   Page 7 of 11
[15]   Kubiak asserts that the trial court abused its discretion when it admitted

       Angela’s statements through Officer Anton’s testimony. Specifically, according

       to Kubiak it was unlikely that Officer Anton got an accurate look at Angela’s

       expression when the van had spun 180-degrees in front of him. Kubiak further

       complains that Officer Anton’s assessment of Angela after the van had stopped

       did not provide any details other than that she had appeared “shaken up.”2

       June 21, 2016, Tr. at 135.


[16]   We cannot say that the trial court abused its discretion. The facts and

       circumstances before the court demonstrated the elements of an excited

       utterance. Officer Anton testified that Angela appeared to be “afraid” and

       “shocked” after the van had spun 180-degrees and come to a rest and that, five

       minutes later, she continued to appear under the stress of that startling event.

       And, while in that condition, she identified Kubiak as the driver of the van.

       The trial court acted within its inherent discretionary power when it permitted

       Officer Anton’s testimony as to Angela’s statement.


[17]   Still, Kubiak asserts that the admission of Angela’s statement violated his right

       to confront a witness against him under the Sixth Amendment to the United

       States Constitution. But Kubiak objected to Officer Anton’s testimony only on

       hearsay grounds, not on Sixth Amendment grounds. The Indiana Supreme

       Court has stated that, where a defendant “only objected on grounds that [the



       2
         Kubiak also asserts that “it is clear from a review of Officer Anton’s testimony that Angela Kubiak’s
       identification of Sean Kubiak . . . was the result of questioning by Officer Anton, not a spontaneous
       statement.” Appellant’s Br. at 13. This assertion has no support in the record, and we do not consider it.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017            Page 8 of 11
       testimony] was inadmissible hearsay” and “did not object on Confrontation

       Clause grounds” the “claim of error is waived.” Small v. State, 736 N.E.2d 742,

       747 (Ind. 2000). “A defendant may not raise one ground for objection at trial

       and argue a different ground on appeal.” Id. Accordingly, we do not consider

       Kubiak’s unpreserved Sixth Amendment argument.3


                                   Issue Two: Officer Anton’s Prior
                                 Observation of Kubiak Driving the Van

[18]   Kubiak next asserts that the trial court abused its discretion when, over

       Kubiak’s objection, it permitted Officer Anton to testify that he had observed

       Kubiak drive the van on a date prior to December 20, 2015. Again, the

       admission of evidence is within the inherent discretionary power of the trial

       court, and we will review its decisions only for an abuse of that discretion.

       McManus, 814 N.E.2d at 264.


[19]   According to Kubiak, Officer Anton’s testimony was inadmissible under

       Indiana Evidence Rule 404(b). That rule states that “[e]vidence of a crime,

       wrong, or other act is not admissible to prove a person’s character in order to

       show that on a particular occasion the person acted in accordance with the

       character.” Evid. R. 404(b). But we agree with the trial court that Officer




       3
         In support of appellate review notwithstanding his failure to object, Kubiak asserts that this court has
       considered a Sixth Amendment claim raised on appeal following only a hearsay objection in the trial court.
       But the case Kubiak cites in support of that position has been vacated by the Indiana Supreme Court. See
       Koenig v. State, 916 N.E.2d 200, 202-03 (Ind. Ct. App. 2009), trans. granted, 933 N.E.2d 1271, 1272 (Ind.
       2010). And, in its opinion in that case, the Indiana Supreme Court did not discuss preservation of error.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017          Page 9 of 11
       Anton’s answer to the State’s limited question was not 404(b) evidence.4

       Rather, a central issue before the jury was Officer Anton’s identification of

       Kubiak as the driver of the van on December 20, 2015. The limited testimony

       that Kubiak now challenges was offered and admitted to bolster the State’s

       evidence as to Kubiak’s identity. And, due in part to Kubiak’s subsequent

       stipulation, the jury had no evidence before it from which it could have inferred

       that, when Officer Anton had previously observed Kubiak driving the van,

       Kubiak was engaged in an illegal act. Thus, we cannot say that the trial court

       abused its discretion in the admission of Officer Anton’s testimony in this

       regard.


                                  Issue Three: Sufficiency of the Evidence

[20]   Finally, Kubiak asserts that the State failed to present sufficient evidence to

       support his convictions and the revocation of his probation. Our standard of

       review is clear: in reviewing such claims, we will consider only the evidence

       most favorable to the verdict and the reasonable inferences to be drawn

       therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017). We will affirm the

       conviction if there is probative evidence from which a reasonable jury could

       have found the defendant guilty beyond a reasonable doubt. Id. We will

       neither reweigh the evidence nor reassess the credibility of witnesses. Id.




       4
         Evidence Rule 404(b)(2) permits evidence of prior bad acts to prove identity if the State provides the
       defendant with notice of its intent to use such evidence. There is no dispute that the State provided no such
       notice here.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017           Page 10 of 11
[21]   Here, Kubiak asserts that the State failed to show beyond a reasonable doubt

       that he was the driver of the van. In particular, Kubiak asserts as follows: (1)

       Angela’s out-of-court identification of him as the driver was not reliable; (2)

       Officer Anton’s observation of Kubiak when the van had spun 180-degrees was

       not worthy of credit; and (3) Officer Anton’s dashboard camera recording failed

       to show the driver of the van.


[22]   Kubiak’s arguments on appeal are merely requests for this court to reweigh the

       evidence, which we will not do. Officer Anton testified that he had personally

       and clearly observed Kubiak driving the van both when the van spun towards

       Officer Anton and when Kubiak exited the stopped van, fled, and turned back

       and looked at Officer Anton. Officer Anton further testified that he had

       confirmed Kubiak’s identity with Kubiak’s photograph in his driving record

       only minutes after the chase had ended. And Officer Anton stated that he had

       seen Kubiak driving the van on a prior occasion. Moreover, Officer Anton

       discovered three prescription medicine bottles with Kubiak’s name on them

       inside the van, and Angela’s excited utterance was admissible evidence that the

       jury was free to consider and weigh accordingly. Thus, we affirm Kubiak’s

       convictions in F6-48 and the revocation of his probation in FC-231.


[23]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017   Page 11 of 11
