Brian J. Offringa v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2018
• Docket: 18A-CR-316
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 20 2018, 6:10 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Curtis T. Hill, Jr. Cannon Bruns & Murphy Attorney General of Indiana Muncie, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian J. Offringa, July 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-316 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable John M. Feick, Appellee-Plaintiff. Judge Trial Court Cause No. 18C04-1310-FD-216

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 1 of 9 Case Summary [1] Brian Offringa (“Offringa”) appeals his conviction for Strangulation, as a Class

D felony.1 He presents the sole issue of whether the trial court abused its

discretion in the admission of evidence. We affirm.

Facts and Procedural History [2] On September 11, 2013, Offringa entered the showroom of Benson’s

Motorcycles in Muncie, Indiana (“Benson’s”) and greeted some of the female

employees by saying “hey sluts.” (Tr. Vol. II, pg. 79.) Casey Schmitt

(“Schmitt”) verbally confronted Offringa, who responded by grabbing Schmitt

and declaring that he could “do what I want.” (Id., pg. 80.)

[3] Offringa then entered the office of writer Kimberly Wilkerson (“Wilkerson”)

and inquired about the status of a motorcycle he had left for repair. Wilkerson

advised Offringa that the specialty parts for his motorcycle were on order but

had not yet arrived; the news made Offringa unhappy. Offringa insisted that

Benson’s should provide him a motorcycle so that he could participate in a

planned group ride the next weekend. Wilkerson explained that Benson’s no

longer rented motorcycles and suggested that Wilkerson go to Indianapolis for a

1 Ind. Code § 35-42-2-9.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 2 of 9 rental. She handed Wilkerson a brochure explaining rental reimbursement

under an extended warranty plan.

[4] Offringa took the brochure and began to move, and Wilkerson assumed that

Offringa was heading out the office door. However, she became aware of

“hands around [her] throat.” (Id., pg. 115.) Wilkerson “woke up” to find that

Offringa had placed her in a headlock; he had his leg on her left thigh to

immobilize her and “was taking his fingers and pounding” her head. (Id., pg.

115-16.)

[5] Schmitt called police and Muncie Police Officer Ronald Locke (“Officer

Locke”) was dispatched to Benson’s. He found Wilkerson to be “upset” and

observed that her neck was red “all around.” (Id., pg. 41, 43.) He

photographed Wilkerson’s injuries and took recorded statements from

Wilkerson, Schmitt, and two other employees. Wilkerson was hospitalized and

treated for ruptured discs in her neck.2

[6] Offringa was arrested and charged with two counts of strangulation, for

conduct related to Wilkerson and Schmitt. On November 6, 2017, Offringa

was tried before a jury. He was acquitted of the charge related to Schmitt and

convicted of the charge related to Wilkerson. Offringa received a sentence of

2 She testified to having had one broken vertebrae also. It is unclear whether this was a prior injury.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 3 of 9 three years imprisonment, with eighteen months suspended to probation. He

now appeals.

Discussion and Decision [7] Offringa argues that the trial court improperly admitted into evidence, over his

hearsay objections, (1) Officer Locke’s testimony describing Wilkerson’s report

of the incident and (2) State’s Exhibit 7, a recording made on Officer Locke’s

pen camera as he initially interviewed Wilkerson and her co-employees.

[8] A trial court’s decision to admit or exclude evidence is within its discretion and

is afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702

(Ind. 2013). The reviewing court will not reverse the ruling unless there has

been a manifest abuse of discretion resulting in the denial of a fair trial. Id. In

this context, 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 it

has misinterpreted the law. Id. We may affirm a trial court’s decision regarding

the admission of evidence if it is sustainable on any basis in the record. Barker v.

State, 695 N.E.2d 925, 930 (Ind. 1998).

[9] A hearsay statement is one that “is not made by the declarant while testifying at

the trial or hearing” and “is offered in evidence to prove the truth of the matter

asserted.” Ind. Evidence Rule 801(c). In general, hearsay is not admissible

unless the Rules of Evidence specifically provide otherwise. Evid. R. 802.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 4 of 9 [10] Testimony. Officer Locke testified that he was dispatched to Benson’s, where

Wilkerson reported that Offringa had “pushed his penis in her face,” grabbed

her throat, strangled her, and held her in a headlock. (Tr. Vol. II, pg. 42.)

Offringa objected on hearsay grounds; the trial court found the excited

utterance exception to the hearsay rule to be applicable.

[11] An excited utterance is defined as “[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.” Evid. R. 803(2). Application of the excited

utterance exception is not mechanical; rather, admissibility should generally be

determined on a case-by-case basis. Brittain v. State, 68 N.E.3d 611, 620 (Ind.

Ct. App. 2017). We explained:

the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. The statement must be trustworthy under the specific facts of the case at hand. The focus is on whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event. 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 was made.

Id. at 620-21 (internal citations omitted).

[12] Officer Locke arrived at Benson’s approximately one to two hours after the

events at issue transpired. He found Wilkerson upset and observed that she had

redness on the front, back, and sides of her neck. She had sustained serious

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 5 of 9 injuries for which she had not yet been hospitalized and treated. However, she

provided information in response to routine police investigatory questions.

Some facts before the trial court suggested an excited utterance while others did

not. But we need not decide whether the challenged testimony was an excited

utterance because it was cumulative of the victim’s testimony. See Nunley v.

State, 916 N.E.2d 712, 720 (Ind. Ct. App. 2009) (evidence consistent with and

not elaborating on victim testimony not grounds for reversal.)

[13] Pen Camera Footage. When Officer Locke was dispatched, he was outfitted

with a pen-shaped camera that he activated and kept in his pocket as he took

the victim and employee statements. During cross-examination of Officer

Locke, defense counsel inquired as to whether Officer Locke had “reviewed

that footage” from “a pen camera” and Officer Locke responded affirmatively.

(Tr. Vol. II, pg. 54.) Defense counsel then began to question Officer Locke

concerning the content, specifically addressing whether Wilkerson had reported

being unable to breathe and whether she or others indicated that Locke had

been joking.

[14] Thereafter, a hearing was conducted outside the presence of the jury at which

the parties offered arguments as to the admissibility of the camera footage.

Ultimately, the footage – with a short redaction – was admitted into evidence as

State’s Exhibit 7.

[15] Offringa now contends that the admission of State’s Exhibit 7, together with

Officer Locke’s testimony, constituted the type of “drumbeat repetition of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 6 of 9 declarant’s statements prior to the declarant’s testifying and being subject to

cross examination” specifically disapproved of by our Indiana Supreme Court

in Modesitt v. State, 578 N.E.2d 649, 654 (Ind. 1991). In Modesitt, the defendant

was on trial for child molestation and the prosecutor called three witnesses to

recount what the victim had told them prior to calling the victim to testify; even

then, the victim corroborated less than all the alleged acts already testified about

and was not asked if she had made the prior statements or whether the

statements were, in fact, true. Id. at 650. The Court observed that, “by putting

into evidence the victim’s out-of-court charges against Modesitt by three

separate and repetitive witnesses prior to calling the victim herself, the

prosecutor effectively precluded Modesitt from effective cross examination of

these charges.” Id. at 651 (emphasis in original). The Court was unable to “say

that the drumbeat repetition of the victim’s original story prior to calling the

victim to testify did not unduly prejudice the jury which convicted Modesitt.”

Id. at 652.

[16] The Court held: “from this point forward, a prior statement is admissible as

substantive evidence only if the declarant testifies at trial and is subject to cross

examination concerning the statement, and the statement is (a) inconsistent

with the declarant’s testimony, and was given under oath subject to the penalty

of perjury at a trial, hearing , or other proceeding, or in a deposition, or (b)

consistent with the declarant’s testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper influence

or motive, or (c) one of identification of a person made after perceiving the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 7 of 9 person.” Id. at 653-54. Finally, the Court specified that the decision “does not

affect the existing, recognized hearsay rule and its exceptions.” Id. at 654.

[17] In response to Offringa’s argument, the State directs our attention to Norris v.

State, 53 N.E.3d 512 (Ind. Ct. App. 2016). In Norris, we observed that, where

there was no trial objection based on drumbeat repetition, the appellant had

waived his appellate argument of such, which he premised upon Modesitt. Id. at

525. Waiver notwithstanding, we found no fundamental error, concluding that

the challenged testimony from two witnesses “merely provided an overview of

the situation and a summary of [victim] accusations, without elaborating on

[the victim’s] evidence.” Id. at 526. Likewise, Offringa did not lodge an

objection that drumbeat repetition of accusations against him was prejudicing

his jury or denying him a right of confrontation. And Officer Locke’s testimony

contained a concise summary of Wilkerson’s accusations as opposed to the

detailed, repetitive drumbeat, bolstering testimony considered in Modesitt.

[18] Additionally, the State observes that Offringa elicited testimony regarding the

content of the pen camera footage before the substantially complete footage was

admitted as State’s Exhibit 7. The State argues that the rule of completeness,

incorporated into Evidence Rule 106, supported its admissibility.

[19] Evidence Rule 106 states: “If a party introduces all or part of a writing or

recorded statement, an adverse party may require the introduction, at that time,

of any other part – or any other writing or recorded statement – that in fairness

ought to be considered at the same time.” This rule is designed to avoid

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 8 of 9 misleading impressions caused by taking a statement out of context or

conveying a distorted picture by introducing only selective parts. Strunk v. State,

44 N.E.3d 1, 6 (Ind. Ct. App. 2015). The remainder of the material is subject to

the general rules of admissibility and immaterial, irrelevant, or prejudicial

portions should not be admitted. Id.

[20] Offringa’s cross-examination of Officer Locke based upon the recording

suggested that Wilkerson maintained her ability to breathe during the incident

and that at least some of the employees characterized the event as a joke.

Evidence Rule 106 then afforded the State with an opportunity to seek

admission of the remainder of the recording. The trial court excised a portion

of the recording in which a reference was made to an individual, Jeff, who had

not witnessed the event. The other portion was admissible to correct an

impression that the event was innocuous. Indeed, although some of the

employees initially perceived or suspected joking, none maintained that

characterization. The redacted recording was properly admitted into evidence.

Conclusion [21] Offringa has not demonstrated an abuse of the trial court’s discretion in the

admission of evidence.

[22] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 9 of 9