FOR PUBLICATION	  


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

BRIAN M. KUBICKI                             GREGORY F. ZOELLER
Jones Obenchain, LLP                         Attorney General of Indiana
South Bend, Indiana
                                             GARY R. ROM
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                           FILED
                                                                       Dec 11 2012, 9:19 am
                            IN THE
                  COURT OF APPEALS OF INDIANA                                   CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




JAMES O. YOUNG,                              )
                                             )
      Appellant-Defendant,                   )
                                             )
         vs.                                 )        No. 20A04-1112-CR-699
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Evan S. Roberts, Judge
                            Cause No. 20D01-1106-FD-88


                                  December 11, 2012

                             OPINION – FOR PUBLICATION

MATHIAS, Judge
       Following a jury trial in Elkhart Superior Court, James Young (“Young”) was

found guilty of Class D felony domestic battery in the presence of a child and Class D

felony strangulation. Young appeals and argues that (1) the hearsay testimony of two

firefighters regarding the victim’s statements to them violated his rights under the

Confrontation Clause of the Sixth Amendment of the Constitution of the United States;

(2) the hearsay testimony of a police officer regarding the victim’s later statements to her

was inadmissible hearsay and violated his rights under the Confrontation Clause of the

Sixth Amendment; and (3) there was insufficient evidence to support the convictions and

to prove that Young committed the offenses in a child’s physical presence so as to elevate

the domestic battery offense from a Class A misdemeanor to a Class D felony.

       We affirm in part, reverse in part, and remand for proceedings consistent with this

opinion.

                             Facts and Procedural History

       On the morning of May 28, 2011, Dulce Gomez (“Gomez”), a friend, visited

Young and Blanca Medrano (“Medrano”), at the apartment that they shared. Gomez

observed the couple argue and saw Young leave with the couple’s two-year-old child.

She did not observe any physical contact between the couple while she was there. She

left the apartment around 10:30 a.m.

       Around noon, Medrano walked across the street from her apartment to Station 5 of

the Elkhart Fire Department. She walked in front of the fire station’s door several times

while holding her infant child, and then she sat down on a bench outside and cried.

Acting Lieutenant, Michael Hochstetler (“Hochstetler”), approached her to inquire about


	                                           2
what was wrong. At first, Medrano did not tell him and continued crying. Hochstetler

observed “bruising on her arm and on her neck and an abrasion on her hand.” Tr. p. 184.

She then told Hochstetler that her husband had beaten her and left with their other child.

Hochstetler asked firefighter, Gene Sanders (“Sanders”), to do a patient assessment and

called dispatch for a police officer.

       Medrano did not want to go to the hospital; therefore, Sanders checked her vitals

and put a bandage on her hand. Sanders observed that Medrano was a petite woman and

that she “had some bruising . . . a small cut on her right hand . . . a bruise on her – on her

right side of her face near her chin . . . complained of back pain and she had bruising on

her neck.” Id. at 201. He also noticed she was distraught, crying, and “seemed to be a

little afraid of something.” Id.

       For about forty-five minutes before the police arrived, Medrano spoke to

Hochstetler and Sanders. Medrano spoke limited English and neither Hochstetler nor

Sanders spoke Spanish. They had to repeat themselves often and had to ask her to repeat

herself to ensure they understood her correctly. Id. at 196. According to Hochstetler, her

bruises were from her husband beating her “at their apartment across the street” about

“15 minutes ago.” Id. at 185, 188-89, 191. Medrano did not tell Hochstetler where the

children were during the incident, and he did not ask her. Id. at 196. She also told him

she did not know where Young had gone but said her two-year-old daughter was with

Young. Id. Sanders did not recall her “saying that she was upset about [Young] taking

the child.” Id. at 211. Hochstetler testified that after roughly forty minutes, Medrano




	                                            3
was “getting kind of antsy to leave” and when the police arrived, she “was no longer

crying.” Id. at 190.

                                                      Corporal Laurie Stuff (“Officer Stuff”) of the Elkhart City Police Department

arrived about forty-five minutes after Medrano came to the fire station. Id. at 192, 247.

Officer Stuff noticed that Medrano had “redness to her neck,” a bandage on her right

hand, and some bruising. Id. at 234-35. Officer Stuff thought Medrano appeared “upset,

she was crying, she seemed scared,” and Medrano told Officer Stuff that “her husband

had strangled her” until she could not breathe. Id. at 234, 241.

                                                      When Young, accompanied by his two-year-old daughter, pulled up to his and

Medrano’s apartment, which was within sight of the fire station, Officer Stuff left the fire

station to speak with him. Young told Officer Stuff that he and his wife had gotten into a

verbal argument, that she had taken $1000 from him, and that “she was trying to move

and take the kids away from him.” Id. at 243. Officer Stuff placed Young under arrest

due to Medrano’s “visible injuries” and Medrano’s statements about being battered by

Young. Id. at 244.

                                                      As a result of these events, the State charged Young with Class D felony

strangulation1 and Class D felony domestic battery.2 The domestic battery charge was

elevated from a Class A Misdemeanor to a Class D felony based on the State’s allegation

that Young had committed the offense in the “physical presence of a child less than

sixteen (16) years of age, knowing that the child was present and might be able to see or

hear the offense.” Ind. Code § 35-42-1.3(b)(2).

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
         Ind. Code § 35-42-2-9(b).
2
         Ind. Code § 35-42-2-1.3.
	                                                                                                                                                                                                                                 4
                                                      At trial, Medrano did not testify and could not be found. Therefore, over Young’s

objections, Hochstetler, Sanders, and Officer Stuff testified in regard to Medrano’s prior

statements. At the conclusion of trial, the jury found Young guilty of domestic battery in

the presence of a child and guilty of strangulation, both Class D felonies. Young was

sentenced to concurrent terms of three years for domestic battery and three years for

strangulation. Young now appeals.3

                                                                                           I.                                               Admission of Firefighters’ and Police Officer’s Testimony

                                                      A trial court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010), trans. denied (citing

Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)). An abuse of discretion occurs

if the trial court’s decision is “clearly against the logic and effect of the facts and

circumstances before the court, or if the court has misinterpreted the law.” Boatner v.

State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010).

                                                      A. Medrano’s Statements to the Firefighters as Admissible Excited Utterance

                                                      It is axiomatic that the firefighters’ testimony concerning the statements Medrano

made to them is hearsay. Hearsay is an out-of-court statement offered to prove the truth

of the matter asserted and is inadmissible unless it falls under a hearsay exception. Ind.

R. Evid. 801; see also Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (citing Ind. R.

Evid. 802).                                                                                                        However, hearsay can be admissible under one of several exceptions,

including excited utterance. Ind. R. Evid. 803. An excited utterance is “[a] statement

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
 We heard oral argument in this case on October 22, 2012, at the Allen County Courthouse in Fort
Wayne, Indiana. We extend our thanks to court personnel and to the attending students and guests. We
also commend counsel for the quality of their written and oral advocacy.

	                                                                                                                                                                                                                                 5
relating to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition” and is not excluded by the hearsay rule. Id.

at 803(2). Although Young admits that Medrano’s statements to the firefighters were

excited utterances, he argues that, under the facts and circumstances of this case,

admission of Medrano’s statements to the firefighters nevertheless violates Young’s

constitutional rights under the Sixth Amendment to the U.S. Constitution. We therefore

turn to his argument in this regard.

       B. The Firefighters’ Testimony Considered under the Confrontation Clause

       Young argues that the trial court improperly admitted Medrano’s statements to the

firefighters because their primary purpose was to create an out-of-court substitute for trial

testimony. The Confrontation Clause of the Sixth Amendment provides in relevant part

that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” See Crawford v. Washington, 541 U.S. 36, 42 (“We

have held that this bedrock procedural guarantee applies to both federal and state

prosecutions”); Lehman, 926 N.E.2d at 39. The Confrontation Clause applies to an out-

of-court statement if it is testimonial, the declarant is unavailable, and the defendant had

no prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59. The

essence of the Sixth Amendment “is to protect against abuses of government officials.”

Lehman, 926 N.E.2d at 39 (citing Pendergrass v. State, 913 N.E.2d 703, 706 (Ind. 2009)).

Neither party contests whether Medrano was unavailable or whether Young had the prior

opportunity to cross-examine Medrano.

       To determine whether the statements are testimonial, we look at the primary

purpose of the interrogation. Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011) (citing
	                                            6
Michigan v. Bryant, 131 S.Ct. 1143, 1155 (2011)). If the circumstances objectively

indicate that “the primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency” then the statements are non-testimonial.              Davis v.

Washington, 547 U.S. 813, 822, 827 (2006) (holding that the victim’s statements to a 911

operator, while the perpetrator was in the home, were non-testimonial because their

primary purpose was to enable police assistance to meet an ongoing emergency).

However, if “circumstances objectively indicate” the primary purpose is to “prove past

events potentially relevant to later criminal prosecution” then statements are testimonial.

Id. While neither Davis nor Bryant addressed to “what extent their holdings extended

beyond the context of police interrogation,” we have previously applied this primary

purpose inquiry “outside the realm of explicit police questioning[.]” Perry v. State, 956

N.E.2d 41, 53 (Ind. Ct. App. 2011) (applying the primary purpose framework to

statements made to medical personnel).

       In our primary purpose inquiry, one of the most important factors is “the

existence of an ongoing emergency[,]” because it “focuses the participants on something

other than ‘prov[ing] past events potentially relevant to later criminal prosecution.’”

Bryant, 131 S. Ct. at 1157 (quoting Davis, 547 U.S. at 828-30). Determining whether an

emergency exists and is ongoing is a “highly context-dependent inquiry.” Id. at 1158.

We consider whether the interrogation is targeted at responding to a call for help where a

threat to people is ongoing as compared to an interrogation targeted at establishing past

events. See Davis, 547 U.S. at 827.




	                                          7
       An additional factor we consider is the formality and circumstances in which the

questioning takes place. “Although formality is not the sole touchstone of our primary

purpose inquiry, a statement’s formality or informality can shed light on whether a

particular statement has a primary purpose of use at trial.” Turner, 953 N.E.2d at 1055

(citing Bullcoming v. New Mexico, 131 S.Ct. 2705, 2721 (2011) (Sotomayor, J.,

concurring)) (internal quotation marks omitted).

       We also look at the “statements and actions of both the declarant and

interrogators[,]” because they can provide “objective evidence of the primary purpose of

the interrogation.” Bryant, 131 S.Ct. at 1160. If questions are targeted at trying to

resolve an ongoing emergency as opposed to gathering information about past events,

then the responses are less likely to be considered testimonial. See State v. Martin, 885

N.E.2d 18, 21 (Ind. Ct. App. 2008) (“[T]he officers’ questions to Brooks sought to

resolve the ongoing emergency by establishing Martin’s identity, the type of car he was

driving, and his state of mind.”); see also Davis, 547 U.S. at 827 (2006).

       Young argues there was no ongoing emergency when Medrano was questioned by

the firefighters, because the injuries were minor, and the questions were not targeted at

providing her treatment.      He asserts that the questions were targeted at getting

information for a criminal prosecution.

       In domestic dispute situations, responses to police officers’ initial inquiries may

often be, but are not always, non-testimonial, because the officers may need to investigate

and identify the people involved in order to assess the situation, the threat to their safety,

and the potential danger to the victim. Davis, 547 U.S. at 832 (2006) (citing Hiibel v.


	                                            8
Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 186 (2004)). A

victim’s medical state can provide “context for first responders to judge the existence and

magnitude of a continuing threat to the victim, themselves, and the public.” Bryant, 131

S. Ct. at 1159. We also consider not only whether the threat “to the first victim has been

neutralized” but also whether the emergency “threatens the police and public[.]” Id. at

1158. The Supreme Court in Bryant noted that “[d]omestic violence cases like Davis and

Hammon often have a narrower zone of potential victims than cases involving threats to

public safety.” Id. However, even in domestic violence cases, the zone can extend

beyond the victim. See Martin, 885 N.E.2d at 21 (holding that even though the declarant

was not in danger, “she was experiencing an ongoing emergency because she did not

know where her children were and she feared for their safety”).

       Here, Medrano arrived at the fire station crying, scared, bruised, with an abrasion

on her hand, and holding an infant child. The reasons for Medrano’s physical and

emotional state were unknown. Medrano’s responses to the firefighters’ initial questions

showed that Young’s whereabouts were not then known, and that he had taken the

couple’s older child with him. Although Sanders testified that he did not recall Medrano

being upset about Young taking their child, Medrano told firefighters that Young had

beaten her and taken their child, which could reasonably concern the firefighters as to

whether the older child was in danger. Thus, as to the issue of whether there was an

ongoing emergency, we conclude that the firefighters’ initial inquiries into the situation

were proper to assess the situation, to determine the extent of harm Medrano had

suffered, and to determine whether the child with Young was at risk. Such inquiries are


	                                          9
permissible under Crawford, and we hold that the inquiries at issue were permissible

here.

        Young next argues that the firefighters’ questioning of Medrano was improper

because it was formal in its nature: two firefighters asking Medrano questions at a fire

station for forty-five minutes. To determine the level of formality, we look at how the

questions were asked, and we look at where and when the “encounter occur[ed]—e.g., at

or near the scene of the crime versus at a police station, during an ongoing emergency or

afterwards.” Bryant, 131 S.Ct. at 1156; Martin, 885 N.E.2d at 21 (concluding that there

was little formality to the situation because the declarant was questioned while she was

hysterical and sitting by the side of the road with “blood all over her face”); cf. Crawford,

541 U.S. at 66 (holding that when the victim calmly responded to questions at the police

station with officers often asking leading questions, the statements were testimonial).

        Here, the firefighters first encountered Medrano on a bench outside the fire station

only fifteen minutes after the incident occurred, and the firefighters were largely focused

on treating Medrano’s injuries. Importantly, Medrano had come to the fire station of her

own volition. Furthermore, when the firefighters started to ask her questions, Medrano

was crying and had bruises on her face and neck. Under these facts and circumstances,

we hold that to the extent that the questioning at issue was formal, i.e., on a bench outside

a fire station, it was a level of formality commensurate with the nature of Medrano’s

visit, a visit she herself chose to make. We therefore hold that any formality in the

firefighters’ questioning of Medrano was of an extremely low level and was invited and

created by Medrano herself.


	                                           10
       For all of these reasons, we hold that the primary purpose of the firefighters’

questioning of Medrano was to enable public, government assistance to Medrano in an

ongoing emergency rather than to prove past events potentially relevant to future criminal

prosecution. Therefore, the admission of Medrano’s statements to the firefighters did not

violate Young’s confrontation rights under the Sixth Amendment of the U.S.

Constitution. See Bryant, 131 S.Ct. at 1155-57; Davis, 547 U.S. at 828-30; Crawford,

541 U.S. at 59.

       C. 	  Medrano’s Statements to Officer Stuff as Excited Utterance

       Turning now to a consideration of Medrano’s statements to Officer Stuff, once

again the testimony at issue is hearsay under Indiana Evidence Rule 801. Hearsay is an

out-of-court statement offered to prove the truth of the matter asserted, and it is

inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801; see also Jenkins

v. State, 725 N.E.2d 66, 68 (Ind. 2000) (citing Ind. R. Evid. 802).

       The State argues that Medrano’s statement was an excited utterance, which is an

admissible exception to the hearsay rule. See Ind. R. Evid. 803. An excited utterance is

“[a] statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition” and is not excluded by

the hearsay rule. Ind. R. Evid. 803(2).

       To meet the excited utterance exception, three elements must be present: (1) a

“startling event or condition” has occurred; (2) the declarant made a statement while

“under the stress or excitement caused by the event or condition;” and (3) the statement

was “related to the event or condition.” Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct.


	                                          11
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.” Sandefur v. State, 945 N.E.2d

785, 788 (Ind. Ct. App. 2011) (citing Boatner v. State, 934 N.E.2d 184, 185 (Ind. Ct.

App. 2010) (citations omitted)). “The heart of the inquiry is whether the declarant was

incapable of thoughtful reflection.” Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct. App.

2003).

         In this case, neither party contests whether there was a startling event or whether

the statement related to the event or condition. As Young argues, the main issue is

whether Medrano’s statements to Officer Stuff were “made while the declarant was

under the stress or excitement caused by the event or condition[.]” Lawrence, 959

N.E.2d at 389 (Ind. Ct. App. 2012) (citing Impson, 721 N.E.2d at 1282).

         While lapse of time is not dispositive, if a statement is made long after a startling

event, it is usually “less likely to be an excited utterance[,]” Boatner, 934 N.E.2d at 186,

because “[a] long period of time reduces the likelihood that a statement is made without

deliberate thought and under the stress of excitement of an event.” Jenkins, 725 N.E.2d

at 68. We do not apply a “rigid test of elapsed time” but our supreme court has “found

the exception available one half-hour after the ‘startling event’ only under extreme and

continuing stress.”     Davenport v. State, 749 N.E.2d 1144, 1149 (Ind. 2001) (citing

Yamobi v. State, 672 N.E.2d 1344, 1346-47 (Ind. 1996)).

         Furthermore, an excited utterance can be made in response to a question so long

as the statement is unrehearsed and is made under the stress of excitement from the event.


	                                            12
Yamobi, 672 N.E.2d at 1346 (“A declaration does not lack spontaneity simply because it

was an answer to a question.”); Williams v. State, 782 N.E.2d 1039, 1046 (Ind. Ct. App.

2003). In addition, we have considered if the declarant is crying, appears to be under

stress, is injured, or is exhibiting other physical or psychological conditions that indicate

stress. See e.g., Fowler v. State, 829 N.E.2d 459, 463-64 (Ind. 2005) (holding that

statements made while the declarant was in pain, crying, bleeding, and having trouble

breathing were properly admissible as excited utterances), cert. denied, abrogated on

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

       These cases make it clear that, Medrano had to be under “extreme and continuing

stress” for the trial court to find Medrano’s statements to Officer Stuff admissible as an

excited utterance. See Davenport, 749 N.E.2d at 1149. Officer Stuff did not speak with

Medrano until about an hour after the incident, the firefighters had treated her injuries

prior to Officer Stuff’s arrival, and even before Officer Stuff arrived, Medrano had

stopped crying and was “antsy to leave.” Tr. p. 190. Even though Officer Stuff testified

that Medrano was crying when she arrived, it appears, at least for some time prior to her

arrival, Medrano had stopped crying. For all these reasons, we conclude that Medrano

was not under the “extreme and continuing stress” of the battery at the time of Officer

Stuff’s arrival; therefore, her statements to Officer Stuff were not admissible as excited

utterances.

       D. The State’s Claim of Harmless Error

       The State then claims that, even if Medrano’s statements to Officer Stuff were

improperly admitted as excited utterances, the testimony was cumulative and the error

was harmless. This argument fails in the first instance.
	                                           13
                                                      Officer Stuff’s testimony at trial was not cumulative; rather, it was the only

testimony that supported the State’s strangulation charge against Young. See Turner, 953

N.E.2d at 1059 (holding that error is harmless if there is “substantial independent

evidence of guilt satisfying the reviewing court there is no substantial likelihood the

challenged evidence contributed to the conviction”).                                                                                                                                                                                    It is axiomatic that improper

admission of the only proffered evidence that supports a charge cannot be harmless

error.4 We must therefore reverse Young’s conviction for strangulation, subject, however,

to possible retrial. See Stahl v. State, 686 N.E.2d 89 (1997) (“[I]f all the evidence, even

that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does

not bar a retrial on the same charge.”).

                                                             II. Sufficiency of the Evidence as to Young’s Domestic Battery Conviction as
                                                                                         a Class D Felony

                                                      In reviewing a challenge to sufficiency of the evidence, we do not “reweigh the

evidence or judge the credibility of the witnesses” rather we respect “‘the jury’s exclusive

province to weigh conflicting evidence.’” McHenry v. State, 820 N.E.2d 124, 126 (Ind.

2005) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001)). We “consider only

the probative evidence and reasonable inferences supporting the verdict” and “affirm ‘if

the probative evidence and reasonable inferences drawn from the evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt.’” Id. (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000)).

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4 Young also argues that Officer Stuff’s testimony was a violation of the Confrontation Clause of the
Sixth Amendment. However, we refrain from addressing a consititutional issue, if we are able to resolve
a case on nonconstitutional grounds. See State v. Moore, 909 N.E.2d 1053, 1058 (Ind. Ct. App. 2009)
(“It is long established that a constitutional question unnecessary to a determination of the merits should
not be decided.” (quoting State v. Brown, 840 N.E.2d 411, 414 (Ind. Ct. App. 2006))).

	                                                                                                                                                                                                                                 14
       We concluded above that the firefighters’ testimony was properly admitted, and

from their testimony, which included Medrano’s statements that she had been beaten by

Young and their descriptions of the injuries, a reasonable trier of fact could have found

Young guilty of Class A misdemeanor domestic battery beyond a reasonable doubt.

       However, Young argues that even if the testimony regarding Medrano’s out-of-

court statements was properly admitted, it was insufficient evidence to prove that the

domestic battery occurred in the presence of a child less than sixteen years of age, thus

elevating the crime to a Class D felony. Under Indiana Code section 35-42-2-1.3(b)(2),

Young had to commit domestic battery “knowing that the child was present and might be

able to see or hear the offense.” This does not require the jury to conclude that the child

saw the battery, only that the child might be able to see or hear the offense. True v. State,

954 N.E.2d 1105, 1110-11 (Ind. Ct. App. 2011) (“‘Presence’ is defined as knowingly

being within either the possible sight or hearing of a child.”).

       Gomez testified that the children were in the apartment the morning of the incident,

but Gomez left, at the very least, a full hour before the incident occurred. Approximately

fifteen minutes after the incident, Medrano arrived at the fire station in tears, with her

infant child in her arms, claiming that Young had beaten her and taken their other child

with him after doing so. However, Hochstetler testified that Medrano did not tell him

where the children were when the incident happened and he did not ask her. Tr. p. 196.

Thus, while we know the incident occurred “at their apartment,” there was insufficient

evidence in the record as to precisely where the incident took place and where the

children were during the incident. Id. at 188 (emphasis added). The only evidence as to


	                                           15
the location of the incident and of the children during the incident is the vague

preposition, “at.” Id. We hold that this evidence is insufficient for the jury to conclude

beyond a reasonable doubt that Young committed domestic battery “knowing that the

child was present and might be able to see or hear the offense.” Ind. Code § 35-42-2-

1.3(b)(2). However, this evidence is sufficient to support the lesser-included offense of

Class A misdemeanor domestic battery as a matter of law.

                                          Conclusion

       The trial court did not abuse its discretion when it admitted the firefighters’

hearsay testimony of Medrano’s version of the incident. However, admission of Officer

Stuff’s hearsay testimony was error and could not be harmless error. We therefore

reverse Young’s conviction for Class D felony strangulation, subject however to possible

retrial. Further, the evidence was insufficient to support Young’s conviction for domestic

battery as a Class D felony but sufficient to support the lesser-included charge of Class A

misdemeanor domestic battery; therefore, we remand with instructions that judgment of

conviction for domestic battery as a Class A misdemeanor be entered against Young and

that he be resentenced accordingly.

       Affirmed in part, reversed in part, and remanded for proceedings consistent with

this opinion.

VAIDIK, J., and BARNES, J., concur.




	                                          16
