                                                                          FILED
                                                                     Jul 25 2017, 7:16 am

                                                                          CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Brendan K. Lahey                                           Curtis T. Hill, Jr.
South Bend, Indiana                                        Attorney General of Indiana
                                                           Lyubov Gore
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ludina Roshida Wallace,                                    July 25, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           71A03-1702-CR-364
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable Elizabeth C.
Appellee-Plaintiff.                                        Hurley, Judge
                                                           Trial Court Cause No.
                                                           71D08-1509-F6-692



Riley, Judge.




Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017                      Page 1 of 13
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Ludina R. Wallace (Wallace), appeals her conviction for

      criminal recklessness, a Class A misdemeanor, Ind. Code § 35-42-2-2.


[2]   We affirm.


                                                      ISSUE
[3]   Wallace raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion by admitting the recording of a 9-1-1 call into

      evidence.


                       FACTS AND PROCEDURAL HISTORY
[4]   On August 16, 2015, at approximately 7:00 p.m., Deja Cline (Cline) went to a

      gas station to purchase gasoline for her friend’s vehicle. In addition to her

      friend, Cline was accompanied by her toddler. At the same time, Michael

      Jackson (Jackson), was at the gas station. Jackson and Cline were previously in

      a relationship, and Jackson is the father of Cline’s toddler. For some reason,

      Jackson removed the child from Cline’s vehicle, placed the child in his vehicle,

      and drove away. Upset by Jackson’s actions, Cline called Jackson, and the two

      argued about his removal of their child from her vehicle. Cline informed him

      that she was on her way to his house, located at 1043 North Adams Street in

      South Bend, St. Joseph County, Indiana, to pick up the child.


[5]   Upon arrival at Jackson’s house, Cline “parked in the middle of the street

      basically kind of close to the curb but not parking actually. So in the middle of

      Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017    Page 2 of 13
      the street.” (Tr. Vol. II, p. 9). Cline observed that, in addition to Jackson and

      their son, Jackson’s ex-girlfriend—Wallace—was also present. Cline and

      Jackson engaged in a “verbal altercation.” (Tr. Vol. II, p. 10). At some point,

      supposedly after Wallace interjected that Cline and Jackson should not be

      fighting as they were in front of the child, Wallace also became involved in an

      argument with Cline. The exchange of “obscenities and profanities” between

      Cline and Wallace intensified to the point where Cline “was angry enough to

      say that [she] would do something to [Wallace’s] vehicle.” (Tr. Vol. II, pp. 12,

      24). Cline claimed that she threatened to “kick” Wallace’s vehicle. (Tr. Vol. II,

      p. 12). According to Wallace, however, Cline said she was “going to tear that

      B [sic] car up.” (Tr. Vol. II, p. 62).


[6]   Wallace and Cline offered drastically different accounts as to what occurred

      next, but it is undisputed that Wallace withdrew her .380 semiautomatic

      handgun and fired multiple shots. Wallace claimed that Cline, after running

      toward Wallace’s vehicle, turned around and was holding a small paring knife.

      Upon seeing the knife, Wallace purportedly removed her pistol from her hip

      holster but did not point it at Cline. Instead, Wallace stated that she asked

      Cline to move away from her vehicle because she “just wanted to take [her] car

      and leave.” (Tr. Vol. II, p. 63). However, Cline “began to charge towards

      [Wallace].” (Tr. Vol. II, p. 63). In response, Wallace stated that she “started

      running backwards and . . . started shooting at the ground . . . to stop [Cline].”

      (Tr. Vol. II, p. 64). Even after Wallace ran back to her vehicle and tried to drive

      away, she claims that Cline “came from around the back of the car and [Cline]


      Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017   Page 3 of 13
      swiped towards [Wallace,] and [Wallace] leaned over avoiding her swipe.” (Tr.

      Vol. II, p. 65). It was at that point that Wallace pointed the firearm at Cline

      and asked that Cline let her leave, all the while ignoring Cline’s attempts to

      goad her into fighting. When she was finally able to do so, Wallace claims that

      she drove away. On the other hand, Cline described that she was never in

      possession of a knife or any other weapon, and she denied that she ever charged

      at or approached Wallace. Rather, according to Cline, after she threatened to

      kick Wallace’s vehicle and Wallace saw that Cline was approaching her vehicle,

      Wallace shot her gun into the air multiple times before pointing the gun in

      Cline’s direction and firing several more shots, one of which grazed Cline’s

      shin.


[7]   During this confrontation, Jackson had removed the child from his vehicle and

      placed the child in the front seat of Cline’s vehicle. Jackson then inexplicably

      removed Cline’s keys from the ignition and threw them onto a neighbor’s roof.

      Jackson also called 9-1-1. Although most of the recorded 9-1-1 call is

      unintelligible due to a significant amount of yelling in the background, at the

      beginning of the call, Jackson provided the dispatcher with his address and

      reported that there is a “girl in the middle of the street, baby in the front seat . . .

      trying to fight another girl.” (State’s Exh. 1). After yelling at someone on the

      scene to “get your ass outta my van,” Jackson instructed the dispatcher, “You

      need to get here, hurry up.” (State’s Exh. 1). Despite the subsequent repeated

      efforts of the dispatcher to glean information, such as whether anyone was in

      possession of a weapon, Jackson did not further respond. However, Jackson


      Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017       Page 4 of 13
      did not hang up. Thus, in the recording, Jackson can be heard yelling at

      someone to “do it, shoot the shit outta the bitch. I’ll get the baby. Shoot the

      shit outta the bitch.” (State’s Exh. 1). He also repeatedly shouted to “LaLa”

      that “police are on the way. Get your gun and go.” (State’s Exh. 1).


[8]   When officers from the South Bend Police Department arrived, Jackson and

      Wallace were gone. Cline, however, was standing next to her vehicle in the

      middle of the street, holding onto her child. One of the officers climbed onto

      the neighbor’s roof and retrieved Cline’s car keys. Two .380 shell casings were

      recovered from the street. Although Cline’s leg was bleeding, she declined

      medical treatment.


[9]   On September 25, 2015, the State filed an Information, charging Wallace with

      criminal recklessness, a Level 6 felony, I.C. § 35-42-2-2(b)(1)(A). On December

      8, 2015, Wallace filed a Notice of Defense of Justifiable Reasonable Force,

      claiming that she “was justified in using reasonable force when she reasonably

      believed that force was necessary to prevent imminence of serious bodily injury

      to herself, when confronted by the alleged victim in this case.” (Appellant’s

      App. Vol. II, p. 27). On September 7, 2016, Wallace waived her right to a jury

      trial. On November 21, 2016, the trial court conducted a bench trial, at the

      conclusion of which, the trial court found Wallace guilty. The trial court

      specifically found Cline’s testimony to be more credible than that of Wallace

      and, accordingly, determined that “Cline was not engaged in behavior that

      could cause serious bodily injury to [Wallace. Thus, Wallace] was not justified

      in using deadly force to defend herself.” (Appellant’s App. Vol. II, p. 75). At

      Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017   Page 5 of 13
       the sentencing hearing on January 26, 2017, the trial court entered a judgment

       of conviction for criminal recklessness as a Class A misdemeanor and imposed

       a one-year suspended sentence.


[10]   Wallace now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                               I. Standard of Review

[11]   On appeal, Wallace solely challenges the trial court’s admission of the 9-1-1

       recording into evidence. It is well established that “[t]he decision to admit or

       exclude evidence falls within the sound discretion of the trial court, and we

       review that decision only for an abuse of discretion.” Gayden v. State, 863

       N.E.2d 1193, 1195 (Ind. Ct. App. 2007), trans. denied. It is an abuse of

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

       the facts and circumstances before the trial court.” Id. On review, our court

       does not reweigh evidence, and we consider conflicting evidence in favor of the

       trial court’s ruling. King v. State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013),

       trans. denied. Uncontested evidence is considered in the defendant’s favor. Id.

       Although Wallace’s argument on appeal lacks cogency, her bases for

       challenging the admission of the 9-1-1 recording generally appear to reiterate

       the objections she raised at trial: hearsay, lack of confrontation, and unfair

       prejudice. See Ind. Appellate Rule 46(A)(8)(a) (requiring an appellant’s

       arguments to be “supported by cogent reasoning”).




       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017      Page 6 of 13
                                                     II. Hearsay

[12]   Wallace makes a perfunctory claim that the 9-1-1 recording should have been

       excluded as inadmissible 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.” Young v. State, 980 N.E.2d 412, 418 (Ind. Ct. App. 2012)

       (citing Ind. Evidence Rule 801); see Evid. R. 802. In this case, the parties do not

       dispute that Jackson’s recorded call to 9-1-1 meets the definition of hearsay.

       Wallace contends that “[n]o hint exists in the record that [the 9-1-1 recording]

       was considered for any limited purpose, or under an exception to the rules

       against hearsay.” (Appellant’s Br. p. 12). However, during the trial, the State

       offered two exceptions to the hearsay rule to support admitting the 9-1-1

       recording: as an excited utterance pursuant to Indiana Evidence Rule 803(2),

       or a present sense impression under Indiana Evidence Rule 803(1). The trial

       court agreed that “it would be a present sense impression” and that Jackson’s

       statements were made in the course of “an ongoing emergency.” (Tr. Vol. II, p.

       22).


[13]   Although the trial court seems to have admitted the 9-1-1 recording under the

       present sense impression exception to the hearsay rule, it is well established that

       our court may affirm an evidentiary decision based on any legal theory

       supported by the record. Edwards v. State, 724 N.E.2d 616, 620-21 (Ind. Ct.

       App. 2000), trans. denied. We choose to dispose of this matter by looking to the

       excited utterance exception set forth in Indiana Evidence Rule 803(2). An

       excited utterance is “[a] statement relating to a startling event or condition,


       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017    Page 7 of 13
       made while the declarant was under the stress of excitement that it caused.”

       Evid. R. 803(2).


[14]   As indicated by Rule 803(2), the test for determining whether the excited

       utterance exception applies requires three elements: “(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.” Teague v. State, 978 N.E.2d 1183, 1187 (Ind.

       Ct. App. 2012) (internal quotation marks omitted). “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.” Id. (internal quotation marks omitted). “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.” Id.


[15]   In the present case, Jackson called 9-1-1 in the midst of a serious altercation.

       Although Jackson did not specifically identify either participant, he urged the

       police department to respond quickly because two women were about to fight,

       and a baby was present. Thereafter, Jackson failed to respond to the 9-1-1

       operator’s questions and, in fact, may have believed that he had disconnected

       the call. Nevertheless, despite the yelling and commotion in the background,

       Jackson can be heard encouraging one woman to shoot the other and advising

       the same woman to collect her firearm and flee before the arrival of the police.

       It is apparent throughout the 9-1-1 call that Jackson was not reflecting prior to

       making any of his statements. See id. at 1188. Rather, he was speaking in the

       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017   Page 8 of 13
       heat of the moment in response to the excitement of the unfolding altercation

       between Wallace and Cline. We find that this clearly satisfies the requirements

       for an excited utterance. Therefore, the trial court did not abuse its discretion in

       admitting the 9-1-1 recording as there is a valid exception to the hearsay rule.


                                               II. Confrontation Rights

[16]   Wallace also claims that the introduction of the 9-1-1 recording “violated the

       confrontation clause of the Sixth Amendment to the Constitution of the United

       States.” 1 (Appellant’s Br. p. 11). In particular, Wallace asserts that, over her

       objection, the trial court “admitted the testimonial out of court statements of

       the State’s witness Jackson, who did not testify and was not otherwise subject to

       [d]efense examination, and then used these out of court statements as proof of

       the matters asserted therein in a most explicit and uncomplicated manner.”

       (Appellant’s Br. p. 14). The Sixth Amendment provides that “[i]n all criminal

       prosecutions, the accused shall enjoy the right . . . to be confronted with the

       witnesses against him.” “The right to confront witnesses, as granted by the

       federal . . . [C]onstitution[], includes the right of full, adequate, and effective

       cross-examination, which is fundamental and essential to a fair trial.”

       Kimbrough v. State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009). As announced by

       the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004),




       1
         Wallace also asserts that the admission of the 9-1-1 recording violated her confrontation rights under
       “Article 1, Sec[tion] 11 [sic] of the Constitution of the State of Indiana.” (Appellant’s Br. p. 11). Other than
       a cursory mention of the Indiana provision, Wallace does not further develop this argument and, therefore,
       has waived it. See Jackson v. State, 735 N.E.2d 1146, 1150 n.1 (Ind. 2000).

       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017                             Page 9 of 13
       “the Sixth Amendment does not permit the admission of ‘testimonial’

       statements of a witness who does not appear at trial unless he or she is

       unavailable to testify and the defendant had a prior opportunity for cross-

       examination of the witness.” Collins v. State, 873 N.E.2d 149, 153 (Ind. Ct.

       App. 2007), trans. denied.


[17]   Accordingly, whether Wallace’s confrontation rights were violated depends

       upon whether Jackson’s statements to the 9-1-1 operator were testimonial or

       not.

               [S]tatements are nontestimonial when made in the course of
               police interrogation under circumstances objectively indicating
               that the primary purpose of the interrogation is to enable police
               assistance to meet an ongoing emergency. They are testimonial
               when the circumstances objectively indicate that there is no such
               ongoing emergency, and that the primary purpose of the
               interrogation is to establish or prove past events potentially
               relevant to later criminal prosecution.


       Id. at 154 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). In evaluating

       whether statements at issue are non-testimonial, courts usually consider:

               (1) whether the declarant was describing past events or current
               events, (2) whether the declarant was facing an ongoing
               emergency, (3) whether the questions asked by law enforcement
               were such that they elicited responses necessary to resolve the
               present emergency rather than learn about past events, and (4)
               the level of formality of the interrogation.


       Id. (citing Davis, 547 U.S. at 822).


       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017    Page 10 of 13
[18]   Here, Wallace asserts that Jackson’s statements were testimonial because

               [t]here was a minimal threat to Jackson at the time of the out of
               court statements, and the purpose of the questioning leading to
               the out of court statements was certainly for the purpose of
               establishing events relevant to Wallace’s later prosecution, in
               particular the existence or nonexistence of factors relevant to her
               defense of [s]elf [d]efense, and as such the admission of the out of
               court statement constitutes . . . reversible error.


       (Appellant’s Br. p. 14). We disagree.


[19]   The 9-1-1 recording reveals that Jackson called the police to report the ongoing

       incident—namely, that a fight between two females was imminent; there was a

       baby present; and that the police “need[ed] to get here, hurry up.” (State’s Exh.

       1). In an obvious attempt to gauge the present danger of the situation, the

       dispatcher asked whether either of the females had a weapon, but Jackson

       offered no response. Jackson’s subsequent urging of someone to “do it, shoot

       the shit outta the bitch” illustrated the severity of the situation as it was

       unfolding. (State’s Exh. 1). Although Jackson also yelled for “LaLa” to “get

       your gun and go” because the “police are on the way,” this was not responsive

       to any question posed by law enforcement. (State’s Exh. 1). Moreover, any

       statements offered by Jackson that may have incriminated Wallace were not

       elicited “in a relatively tranquil police station interrogation room.” Collins, 873

       N.E.2d at 155. Rather, Jackson called to report an emergency, and his

       subsequent voluntary statements were clearly made in response to the ongoing

       situation. As such, Jackson’s statements to the 9-1-1 operator were not


       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017     Page 11 of 13
       testimonial, and the admission of the recording did not violate Wallace’s

       confrontation rights.


                                               III. Unfair Prejudice

[20]   Wallace further claims that “there was a substantial danger of unfair prejudice”

       in admitting the 9-1-1 recording. Pursuant to Indiana Evidence Rule 403, the

       trial court “may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of . . . unfair prejudice.” “The balancing of the

       probative value against the danger of unfair prejudice must be determined with

       reference to the issue to be proved by the evidence.” Bryant v. State, 984 N.E.2d

       240, 249 (Ind. Ct. App. 2013), trans. denied. The weighing of the probative

       value of evidence against the danger of unfair prejudice “is a discretionary task

       best performed by the trial court.” Id.


[21]   Wallace contends that the admission of the 9-1-1 recording was unfairly

       prejudicial because she was unable to contradict Jackson’s statements while

       also maintaining her 5th Amendment right to remain silent. We find no merit in

       Wallace’s claim. As the State points out, “[a]ll incriminating evidence may

       have that effect but that does not render it unduly prejudicial, and [Wallace]

       cites to no legal authority to suggest that it does.” (State’s Br. p. 19 n.7

       (emphasis added)). Furthermore, the relevant issue for the fact-finder was

       whether Wallace fired her handgun in self-defense against Cline, and the 9-1-1

       call assisted the trial court with making a credibility determination concerning

       this fact. We find no basis in the record for reversing the trial court’s decision.



       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017    Page 12 of 13
                                              CONCLUSION
[22]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in admitting the recording of the 9-1-1 call into evidence.


[23]   Affirmed.


[24]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 71A03-1702-CR-364 | July 25, 2017   Page 13 of 13
