MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Mar 21 2019, 9:25 am

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
Valerie K. Boots                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Wesley Sanders,                                          March 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1852
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Hugh Patrick
Appellee-Plaintiff.                                      Murphy, Magistrate
                                                         Trial Court Cause No.
                                                         49G16-1801-CM-2462



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019                   Page 1 of 5
                                       Statement of the Case
[1]   Wesley Sanders appeals his conviction for battery, as a Class A misdemeanor,

      following a jury trial. He presents a single issue for our review, namely,

      whether the trial court abused its discretion when it admitted into evidence a

      recording of a 9-1-1 call. We affirm.


                                 Facts and Procedural History
[2]   On December 27, 2017, during the evening, Sanders’ girlfriend Dyreece

      Simmons told Sanders that she wanted “to end the[ir] relationship.” Tr. at 72.

      The next morning, Simmons and her coworker Shelbie Fredette were working

      at Dress Barn in Indianapolis when Sanders arrived. Sanders and Simmons

      began to talk and, after Simmons reiterated her desire to break up with him,

      Sanders hit her with an “open hand,” which knocked her glasses off of her face

      and left a scratch on her nose. Id. at 73. Sanders left, and Simmons

      immediately called 9-1-1 to report the battery.


[3]   Indianapolis Metropolitan Police Department Officer Ted Sadownik arrived at

      Dress Barn and, while he was talking to Simmons, he observed that she was

      “upset” and had been crying, and he saw a scratch on her nose. Id. at 102.

      Simmons also showed Officer Sadownik her glasses, which were “crushed,

      broken.” Id. Simmons told Officer Sadownik that Sanders had hit her.


[4]   The State charged Sanders with domestic battery, as a Class A misdemeanor;

      battery, as a Class A misdemeanor; and criminal mischief, as a Class B

      misdemeanor. At trial, when the State moved to admit a recording of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019   Page 2 of 5
      Simmons’ 9-1-1 call, Sanders objected on hearsay grounds. The trial court

      overruled his objection and admitted the recording. The jury acquitted Sanders

      on two charges but found him guilty of one count of battery, as a Class A

      misdemeanor. The trial court entered judgment of conviction and sentenced

      Sanders accordingly. This appeal ensued.


                                     Discussion and Decision
[5]   On appeal, Sanders contends that the trial court abused its discretion when it

      admitted into evidence the recording of Simmons’ 9-1-1 call. When Sanders

      objected to the admission of the recording, the State argued that it was

      admissible under the excited utterance exception, and the court agreed.

      Sanders maintains that, while Simmons was “undoubtedly upset” after Sanders

      hit her, the excited utterance exception does not apply because Simmons’

      “statements were not inherently reliable.” Appellant’s Br. at 11. We cannot

      agree.


[6]   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).


[7]   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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019   Page 3 of 5
      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. While the amount of time that passed between the startling

      event and a subsequent statement is, of course, one factor to consider in

      determining whether the statement was an excited utterance, no precise length

      of time is required. Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct. App. 2001).

      In Fowler, for instance, 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. 829 N.E.2d at 463-64.


[8]   Here, the evidence shows that the recording of the 9-1-1 call was properly

      admitted under the excited utterance exception to the hearsay rule. Simmons

      called 9-1-1 immediately after Sanders hit her, which was a startling event.

      Indeed, she told the operator that the incident had occurred “a few seconds

      ago.” State’s Ex. 4. Fredette observed that Simmons was “upset” and

      “physically shaking” when Simmons called 9-1-1. The trial court acted within

      its inherent discretionary power when it admitted into evidence the recording of

      the 9-1-1 call as an excited utterance.


[9]   Affirmed.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019   Page 4 of 5
Pyle, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019   Page 5 of 5
