MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be
                                                             Aug 17 2017, 8:46 am
regarded as precedent or cited before any
court except for the purpose of establishing                      CLERK
                                                              Indiana Supreme Court
the defense of res judicata, collateral                          Court of Appeals
                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Vincent Battle,                                          August 17, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1703-CR-688
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1507-F6-468



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017   Page 1 of 6
                                          Case Summary
[1]   Vincent Battle (“Battle”) appeals his conviction for Battery, as a Level 6 felony. 1

      We affirm.



                                                   Issues
[2]   Battle presents two issues for review:


                 I.       Whether the trial court abused its discretion by admitting
                          evidence under the excited utterance exception to the
                          hearsay rule; and


                 II.      Whether sufficient evidence supports his conviction.


                                Facts and Procedural History
[3]   During the evening of July 10, 2015, L’Nita Webb (“Webb”) returned home

      from work and checked on her daughters, two-year-old M.W. and six-year-old

      L.W. With the children tucked in bed and unharmed, Webb left them in the

      care of her live-in boyfriend, Battle, and went to meet her sister. After Webb

      had been gone about ninety minutes, she got a call from Battle. He reported

      that M.W.’s face was swollen and Webb needed to come home.


[4]   Twenty or thirty minutes later, Webb arrived home to find Battle holding M.W.

      M.W.’s eye was swollen shut, her nose was bloodied, and she was making



      1
          Ind. Code § 35-42-2-1(e)(3).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017   Page 2 of 6
      “whining” sounds. (Tr. at 28.) Webb began to cry, whereupon M.W. also

      began to cry. Webb decided to take M.W. to the hospital. She dressed M.W.

      in pajamas and took her out to the car. As Webb put M.W. into her car-seat,

      which took place about twenty to thirty minutes after Webb got home, Webb

      asked “what happened … who did that.” (Tr. at 30.) M.W. responded with

      “Bay,” which was her nickname for Battle. (Tr. at 37.)


[5]   Battle was subsequently arrested and charged with two counts of Battery. On

      January 24, 2017, Battle was tried in a bench trial and found guilty of a single

      count of Battery. He was sentenced to one year imprisonment, all suspended to

      probation. He now appeals.



                                 Discussion and Decision
                                    Admission of Evidence
[6]   At trial, Webb objected on hearsay grounds to the admission of M.W.’s

      statement to Webb identifying Battle as the source of her injuries. After hearing

      argument of counsel, the trial court found the statement to be admissible as an

      excited utterance.


[7]   Hearsay, an out-of-court statement offered in evidence to prove the truth of the

      matter asserted, is inadmissible unless admitted pursuant to a recognized

      exception. Ind. Evidence Rule 82. An excited utterance is an exception

      defined as “[a] statement relating to a startling event or condition made while




      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017   Page 3 of 6
       the declarant was under the stress of excitement caused by the event or

       condition.” Ind. Evidence Rule 803(2).


[8]    The application of this rule is not mechanical; the statement must be

       trustworthy under the specific facts of the case at hand. Brittain v. State, 68

       N.E.3d 611, 620 (Ind. Ct. App. 2017). “[T]he heart of the inquiry is whether

       the statement is inherently reliable because the declarant was incapable of

       thoughtful reflection.” Id. The amount of time that has passed between the

       event and the statement is not dispositive; rather, the issue is whether the

       declarant was still under the stress of excitement caused by the startling event

       when the statement is made. Id. at 621.


[9]    Webb argues that M.W.’s statement is unreliable because it was made in

       response to questioning, a significant amount of time had elapsed between the

       injury and the statement, and the State did not demonstrate that M.W. was still

       under the stress of excitement. We review the trial court’s decision on the

       admission or exclusion of evidence for an abuse of discretion. Roche v. State,

       690 N.E.2d 1115, 1134 (Ind. 1997).


[10]   M.W.’s statement was made in response to her mother’s questioning.

       However, “[a] declaration does not lack spontaneity simply because it was an

       answer to a question.” Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).

       Whether in response to questioning or not, the statement “must be unrehearsed

       and made while still under the stress of excitement from the startling event.” Id.

       Another factor to be considered is the time between the startling event and the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017   Page 4 of 6
       hearsay statement. Id. Here, the timeline shown by the State’s evidence is as

       follows. L.W. testified that she was awakened from sleep hearing “slapping

       noises” and her sister crying. (Tr. at 11.) Her mother came home a “little while

       later.” (Tr. at 19.) Webb testified that she arrived home twenty or thirty

       minutes after receiving Battle’s call. She placed M.W. in her car-seat about

       twenty to thirty minutes after arriving home. As such, M.W.’s statement

       appears to have been made within an hour or so after the startling event.


[11]   When M.W. made the statement, she had just been released from Battle’s care.

       She was whining when she first saw her mother, and the expression of distress

       escalated to cries. Her face was swollen, one eye was swollen shut, and her

       nose was bloodied. The trial court could reasonably conclude that M.W., a

       two-year-old child, was not “capable of thoughtful reflection” at the time she

       responded to her mother. Brittain, 68 N.E.3d at 620. We find no abuse of the

       trial court’s discretion in the admission of M.W.’s statement as an excited

       utterance.


                                  Sufficiency of the Evidence
[12]   To convict Battle of Battery, as a Level 6 felony, as charged, the State was

       required to establish beyond a reasonable doubt that Battle, a person over age

       eighteen, knowingly or intentionally touched M.W., a child under the age of

       fourteen, in a rude, angry, or insolent manner. I.C. § 35-42-2-1(e)(3).


[13]   When reviewing the sufficiency of the evidence, we will not reweigh the

       evidence or assess the credibility of witnesses. Henley v. State, 881 N.E.2d 639,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017   Page 5 of 6
       652 (Ind. 2008). We consider only the evidence most favorable to the

       conviction, together with all reasonable and logical inferences drawn therefrom.

       Id. We affirm the conviction if there is substantial evidence of probative value

       to support the conclusion of the trier of fact. Id.


[14]   Wood testified that she left home around 1:00 a.m., leaving her small children

       alone with Battle. At that time, M.W. had no visible injury. L.W. testified that

       she awoke to slapping sounds. Her sister was not in the room they shared;

       L.W. could hear M.W. crying in another room. Per the testimony of both

       Battle and Wood, Battle summoned Wood home before 4:00 a.m. to check on

       M.W.’s swollen face. When Wood saw M.W., the child’s face was swollen,

       one eye was swollen shut, and her nose was bloodied. In response to Wood’s

       questioning, M.W. indicated that Battle had caused the injuries. This is

       sufficient evidence from which the trier of fact could conclude that Battle

       committed battery upon M.W.



                                               Conclusion
[15]   Battle has demonstrated no abuse in the trial court’s admission of evidence.

       Sufficient evidence supports his conviction.


[16]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017   Page 6 of 6
