 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                     FILED
                                                                  Jul 05 2012, 9:13 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,                                CLERK
                                                                        of the supreme court,
                                                                        court of appeals and
 collateral estoppel, or the law of the case.                                  tax court




ATTORNEY FOR APPELLANT:                                  ATTORNEYS FOR APPELLEE:

KEVIN WILD                                               GREGORY F. ZOELLER
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         ERIC P. BABBS
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

LOGAN WETZEL,                                            )
                                                         )
       Appellant-Defendant,                              )
                                                         )
                vs.                                      )      No. 49A05-1111-CR-612
                                                         )
STATE OF INDIANA,                                        )
                                                         )
       Appellee-Plaintiff.                               )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Robert Altice, Jr., Judge
                           The Honorable Amy Barbar, Magistrate
                             Cause No. 49G02-1105-FC-34931


                                                July 5, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
          Logan Wetzel appeals from his conviction after a bench trial of one count of Battery1

as a class C felony and one count of Criminal Confinement2 as a class D felony. Wetzel

presents the following restated issue for our review:

          1.      Did the trial court abuse its discretion by admitting the victim’s out-of-
                  court statements?

          2.       Is the evidence sufficient to support Wetzel’s convictions?

          We affirm.

          In April 2011, K.D., the seventeen-year-old victim, was involved in a relationship

with Wetzel, who was then nineteen years old. K.D. and Wetzel had a one-year-old son in

common and K.D. was pregnant with a second child. Wetzel was aware that K.D. was

pregnant. There was conflicting evidence about whether K.D. and Wetzel lived in the same

house, but the witnesses agreed that K.D. spent considerable time at the house where Wetzel

lived with his mother.

          On April 22, 2011, K.D., who was at Wetzel’s house, telephoned her father, Robert.

At trial, Robert testified that K.D. was upset, crying, and sounded scared during that

telephone conversation. Robert heard a voice he recognized as Wetzel’s in the background

yelling and screaming obscenities, and shouted for K.D. to “get the ‘F’ of[f] the phone.”

Transcript at 24. K.D. asked Robert to come to the house and take her home right away

because Wetzel was fighting and hitting her again. Robert, who described K.D. as crying,

screaming, and hysterical, told K.D. that he would be there quickly.



1
    Ind. Code Ann. §35-42-2-1 (West, Westlaw current through legislation effective May 31, 2012).
2
    Ind. Code Ann. §35-42-3-3 (West, Westlaw current through legislation effective May 31, 2012).

                                                     2
       Lisa, Robert’s friend who knew K.D. and Wetzel well, came with Robert to Wetzel’s

mother’s house to pick up K.D. Robert lived a block and a-half away from where K.D. and

Wetzel were arguing and arrived in less than a minute. When they arrived, Robert and Lisa

could hear Wetzel and K.D. yelling and screaming. They went upstairs to the threshold of

the bedroom. There, Lisa saw K.D. on the floor in the doorway, Wetzel was holding K.D.

down, and K.D. was screaming for him to let her go. Wetzel used his hand to push down on

K.D.’s shoulder. Robert saw K.D. struggling to get out of the room.

       Lisa climbed between K.D. and Wetzel, and Lisa pulled K.D. off the floor so that she

could leave the room. Robert picked up Wetzel’s one-year-old son, who was crying nearby,

and carried him downstairs. Lisa and K.D. proceeded downstairs as well. Wetzel continued

to shout at K.D. about some cigarettes. As soon as Lisa was outside the house, she called

911. When Wetzel heard that police officers were coming, he ran from the scene.

       K.D., Robert, Lisa, and K.D.’s child waited in Robert’s truck for three or four minutes

until police officers arrived. While waiting for police officers to arrive, Robert observed a

lump on K.D.’s eye and redness on the side of her face and wrists. He described her as

looking like she had been struggling. Lisa also observed a knot on K.D.’s right eyebrow that

was discolored, and she had red marks on her chest and arms. K.D. told Robert that Wetzel

had hit her on her face and near her eye. Lisa tried to calm K.D. while they waited. The

police officer who arrived observed that K.D. was still “visibly a bit shaken.” Id. at 52.

       The State charged Wetzel with one count of battery as a class C felony, one count of

criminal confinement as a class D felony, two counts of domestic battery as a class D felony,

one count of domestic battery as a class A misdemeanor, and one count of battery as a class

                                              3
A misdemeanor. At the conclusion of the bench trial, the trial court acquitted Wetzel of two

counts alleging domestic battery as a class D felony, but found him guilty of the remaining

counts. The trial court then merged the class A misdemeanor domestic battery count and the

class A misdemeanor battery count with the count charging battery as a class C felony. The

trial court then entered judgment of conviction for one count of class C felony battery and

one count of class D felony criminal confinement. The trial court sentenced Wetzel to 4

years in the Department of Correction for the class C felony battery conviction, to be served

concurrently with Wetzel’s sentence of 545 days for the class D felony criminal confinement

conviction. Wetzel filed a motion to correct error that was denied by the trial court. Wetzel

now appeals.

                                                  1.

       K.D. did not honor the subpoena for her testimony and did not testify during Wetzel’s

bench trial. Wetzel argues that the trial court abused its discretion by admitting certain

statements, i.e., K.D.’s comments during her telephone conversation with Robert, and

statements K.D. made to Robert while waiting for police officers in Robert’s truck, via

Robert’s and Lisa’s testimony. More specifically, Wetzel claims that Robert’s and Lisa’s

testimony about what K.D. said were subject to hearsay and Sixth Amendment3 confrontation

rights objections.     He contends that the statements were not inherently reliable, were




3
 Although Wetzel objected on Sixth Amendment grounds at his bench trial, he makes no such argument here
on appeal. Thus, we will consider and decide only the hearsay argument.

                                                  4
untrustworthy, and were subject to deliberate falsification.

       A trial court has broad discretion in ruling on the admissibility of evidence. Scott v.

State, 855 N.E.2d 1068 (Ind. Ct. App. 2006). We will consider the conflicting evidence most

favorable to the trial court’s ruling and any uncontested evidence favorable to the defendant.

Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008). An abuse of discretion occurs when

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

before the court or it misinterprets the law. Id. We will not reweigh the evidence or reassess

witness credibility. Kelley v. State, 825 N.E.2d 420 (Ind. Ct. App. 2005).

       Hearsay is an out-of-court statement offered to prove the truth of its contents. Evid.

R. 801(c). Hearsay generally is inadmissible unless the statement falls within one of the

established hearsay exceptions. Evid. R. 802. The trial court ruled that testimony about

K.D.’s statements was admissible under the excited utterance exception to the hearsay rule.

Because K.D. did not testify at trial, Robert’s and Lisa’s testimony about the content of

K.D.’s statements is hearsay. “For a hearsay statement to be admitted as an excited

utterance, three elements must be shown: 1) a startling event occurs; 2) a statement is made

by a declarant while under the stress of excitement caused by the event; and 3) the statement

relates to the event.” Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996) (citing Evid. R.

803(2)). The inquiry involves whether the statement is inherently reliable because the

declarant was incapable of thoughtful reflection. Yamobi v. State, 672 N.E.2d 1344.

       The time between the startling event and the hearsay statement is among the factors to

be considered in determining the admissibility of the statement under the excited utterance

exception. Id. The amount of time that has passed, however, is not dispositive of the issue.

                                               5
Id. Additionally, the declaration does not lack spontaneity merely because it was a response

to a question posed. Id. The statement must be unrehearsed and made while the declarant

remains under the stress of excitement from the startling event. Id.

       Wetzel does not argue the non-existence of a startling event or that K.D.’s statements

relate to the event. Regarding K.D.’s telephone conversation with Robert, her father, we

observe that her statements were made while the startling event was ongoing. Robert could

hear and Lisa could overhear K.D.’s tone of voice, which was described as crying,

screaming, and hysterical. Wetzel’s voice could be heard in the background yelling and

screaming obscenities. K.D. described the situation to her father by saying Wetzel was

fighting again and hitting her again. Robert responded to the information by asking no

questions, but indicating that he would be there right away. We do not find an abuse of the

trial court’s discretion in admitting this statement, because it was made while the startling

event was ongoing and there was no time for thoughtful reflection.

       Regarding the statements K.D. made to Robert and Lisa while she was in the truck, we

note the lack of time for thoughtful reflection. Robert testified that he was able to reach

Wetzel’s mother’s house, which was a block and a-half away from his house, in

approximately a minute. Robert and Lisa went upstairs and were able to free K.D. and walk

with her to the truck. Lisa called 911 as soon as she was out of the house. Officers

responded in approximately three or four minutes and K.D.’s statements were made during

that three or four-minute wait. Thus, K.D.’s statements were made to Robert three or four

minutes after she was no longer being confined by Wetzel. Lisa testified that she had to help

K.D. calm down. When the officer arrived, K.D. remained visibly a bit shaken. Given these

                                             6
facts, we cannot say that the trial court abused its discretion by admitting K.D.’s statements

to Robert in the truck under the excited utterance exception to the hearsay rule.

       Wetzel’s argument that K.D.’s statements were unreliable also fails.             K.D.’s

statements were made without the time or capacity for thoughtful reflection. She related

facts within her personal knowledge. Her first statement to Robert that Wetzel was fighting

and hitting her, was corroborated by the scene Robert and Lisa witnessed when they arrived

at Wetzel’s mother’s house. K.D.’s more specific statement in the truck, i.e. that Wetzel had

struck her in the face and near her eye, were corroborated by Robert’s and Lisa’s

observations that K.D. had a lump or knot on her eye or eyebrow, and that there was redness

on K.D.’s face. This evidence is a strong indication of the reliability of K.D.’s statements

about the battery. There is no abuse of discretion here.

                                              2.

       Wetzel challenges the sufficiency of the evidence to support his convictions. Our

standard of review for challenges to the sufficiency of the evidence is well settled.

       When reviewing the sufficiency of the evidence needed to support a criminal
       conviction, we neither reweigh evidence nor judge witness credibility. Henley
       v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We consider only the evidence
       supporting the judgment and any reasonable inference that can be drawn from
       such evidence.” Id. We will affirm if there is substantial evidence of
       probative value such that a reasonable trier of fact could have concluded the
       defendant was guilty beyond a reasonable doubt. Id.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).




                                              7
        In order to establish that Wetzel committed battery,4 the State was required to prove

beyond a reasonable doubt that Wetzel knowingly or intentionally touched K.D. in a rude,

insolent, or angry manner resulting in bodily injury to a pregnant woman and Wetzel knew

she was pregnant. I.C. §35-42-2-1(a)(8). The evidence adduced at trial established that

Wetzel hit K.D. in her face and her eye, that her injuries included a lump or knot on her right

eye and red marks on her face, chest, and arms. In the 911 call, Lisa identified Wetzel and

said that he was beating up a pregnant woman. Wetzel knew that K.D. was pregnant and had

participated in several discussions about her pregnancy. There is sufficient evidence to

support Wetzel’s conviction of class C felony battery.

        In order to establish that Wetzel committed criminal confinement, the State was

required to prove beyond a reasonable doubt that Wetzel knowingly or intentionally confined

K.D. without her consent. I.C. §35-42-3-3(a)(1). The record reflects that both Robert and

Lisa saw Wetzel holding K.D. down in the bedroom doorway threshold. K.D. was struggling

to get out of the room and was screaming for Wetzel to let her go. Lisa had to climb between

Wetzel and K.D. so that K.D. could break free. This evidence is sufficient to support

Wetzel’s conviction of criminal confinement as a class D felony.

        Wetzel points out that K.D. did not cooperate with the prosecution of these offenses

and recanted after Wetzel’s conviction. K.D. completed an affidavit after Wetzel’s trial,

which was submitted as an exhibit in Wetzel’s motion to correct error. In the affidavit, K.D.


4
 We observe that technical amendments have been made to the battery statute effective July 1, 2012.
Wetzel’s conviction under the version of the battery statute then in effect is not impacted by those technical
amendments, which will become effective at a later date. 2012 Ind. Legis. Serv. P.L. 114-2012 (S.E.A.
26)(West).

                                                      8
recanted her allegations of battery and confinement against Wetzel. Wetzel’s motion also

included allegations that K.D. recanted during a contempt hearing and made a similar

statement to Wetzel’s probation officer prior to Wetzel’s sentencing. Our Supreme Court

has said the following about such circumstances:

       One recent scholarly article estimates that between eight and ninety percent of
       domestic violence victims recant their accusations or refuse to cooperate with a
       prosecution. The reasons why a victim might choose to recant or not
       cooperate are varied and complex, including a fear of additional violence by
       the abuser, a belief that the abuser will “change” if no prosecution occurs, and
       legitimate economic concerns if the abuser was the primary financial provider
       and is facing prison time.

Fowler v. State, 829 N.E.2d 459, 470-71 (Ind. 2005), cert. denied, abrogated in part on other

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

       We review deferentially the trial court’s discretionary ruling denying a motion to

correct error predicated on newly discovered evidence. Godby v. State, 736 N.E.2d 252 (Ind.

2000). We will only reverse for an abuse of discretion, which occurs when the judgment

goes against the logic and effect of the facts or the trial court has misinterpreted the law.

Martinez v. State, 917 N.E.2d 1242 (Ind. Ct. App. 2009). Recantation or an admission of

perjury does not automatically mandate an order granting a new trial. Id. In order to obtain a

new trial based on newly discovered evidence, the following must be established by the

proponent of the new trial: (1) The evidence was not available at trial; (2) it is material and

relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or

incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is

worthy or credit; (8) it can be produced upon a retrial of the case; and (9) it will probably

produce a different result. Godby v. State, 736 N.E.2d 252. The proponent has the burden of

                                               9
establishing that all nine prerequisites for a new trial have been met. Id. We observe that, at

a minimum, K.D.’s subsequent recantation is merely impeaching, and thus, Wetzel cannot

meet his burden of establishing all nine prerequisites for a new trial. The trial court did not

abuse its discretion by denying Wetzel’s motion to correct error based on this newly

discovered evidence.

       Judgment affirmed.

MAY, J., and BARNES, J., concur.




                                              10
