Charles Foster v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 22, 2017
• Docket: 49A02-1703-CR-618
• Status: Published

Opinion

FILED MEMORANDUM DECISION 08/22/2017, 11:18 am

CLERK Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court Court of Appeals this Memorandum Decision shall not be and Tax Court

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis Hill Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles Foster, August 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1703-CR-618 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Robert York, Appellee-Plaintiff. Judge Pro Tem Trial Court Cause No. 49G04-1604-FA-15663

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017 Page 1 of 6 Case Summary [1] Charles Foster (“Foster”) appeals his conviction of Criminal Confinement, as a

Class C Felony,1 presenting challenges to the admission of a recorded 9-1-1 call.

[2] We affirm.

Facts and Procedural History [3] Around 6:15 a.m. on April 2, 2013, S.W. approached a house in Indianapolis

and screamed to a resident that she had just been raped. S.W. appeared to be in

shock. The resident called 9-1-1 and an investigation ensued, which included

DNA analysis that led police to Foster.

[4] Foster was tried by a jury on several charges: Rape, as a Class A Felony;2 three

counts of Criminal Confinement—two as Class B felonies3 and one as a Class C

felony; and Pointing a Firearm, as a Class A Misdemeanor.4 At the trial, S.W.

and Foster gave conflicting testimony regarding an encounter in Foster’s car,

and a recording of the 9-1-1 call was admitted over Foster’s objection.

1 Ind. Code § 35-42-3-3(a)(1). We refer throughout to the provisions of the Indiana Code in effect at the time of the offense. 2 I.C. § 35-42-4-1(a)(1). 3 I.C. § 35-42-3-3(a)(2). 4 I.C. § 35-47-4-3(b).

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017 Page 2 of 6 [5] The jury found Foster guilty of Criminal Confinement, as a Class C Felony,

and not guilty of the remaining counts.

[6] Foster now appeals.

Discussion and Decision [7] “The trial court is afforded wide discretion in ruling on the admissibility of

evidence.” Shinnock v. State, 76 N.E.3d 841, 842 (Ind. 2017). We review its

rulings for an abuse of that discretion, which “occurs when the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before it.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).

[8] Foster first argues that the trial court abused its discretion in admitting the

recorded 9-1-1 call because the call contains inadmissible hearsay. Hearsay is

an out-of-court statement “offered in evidence to prove the truth of the matter

asserted.” Ind. Evidence Rule 801(c). The Indiana Rules of Evidence provide

that hearsay evidence is not admissible unless the evidence satisfies an

exception to the rule. Evid. R. 802. Moreover, because the challenged

evidence contains two levels of hearsay—(1) statements the caller made and (2)

statements made by S.W. that the caller relayed—each level of hearsay must

“conform[] with an exception to the rule.” Evid. R. 805.

[9] One exception is for an excited utterance, which is “[a] statement relating to a

startling event or condition, made while the declarant was under the stress of

excitement that it caused.” Evid. R. 803(2). Here, the caller stated that S.W.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017 Page 3 of 6 screamed that she had just been raped and appeared to be in shock. Moreover,

when law enforcement responded a few minutes later, S.W. was crying. These

circumstances indicate that S.W.’s statements were excited utterances.

[10] Foster does not directly dispute that S.W.’s statements constituted excited

utterances, but argues that the caller’s statements do not satisfy this exception.

Yet, a different exception to the rule against hearsay applies when a statement is

a present-sense impression, which is “[a] statement describing or explaining an

event, condition or transaction, made while or immediately after the declarant

perceived it.” Evid. R. 803(1). The caller’s statements meet this exception

because the call was placed after S.W. screamed she had been raped, and while

the caller was with S.W., relaying what was happening, and giving information

about the present condition of S.W. Thus, because both levels of hearsay

satisfy an exception to the rule, the trial court did not err in this respect.5

[11] Foster next argues that admission of the call violated his Sixth Amendment

right to confront adverse witnesses because the caller was not present to testify.6

The Confrontation Clause of the Sixth Amendment to the United States

Constitution “prohibits the introduction of testimonial statements by a non-

5 Foster briefly argues that S.W.’s statements were inadmissible because the caller had no personal knowledge of the underlying incident. However, “the hallmark of all hearsay exceptions” is that the excepted statements “bear sufficient indicia of reliability.” Teague v. State, 978 N.E.2d 1183, 1188 (Ind. Ct. App. 2012). This is why each level of hearsay must independently satisfy an exception. See Evid. R. 805. Here, the caller had personal knowledge of what S.W. had just screamed to him and S.W. had personal knowledge of the startling incident. Both levels of hearsay meet an exception to the rule, and the circumstances present sufficient indicia of reliability to admit S.W.’s statements through the caller. 6 Foster presents no challenge under the Indiana constitution.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017 Page 4 of 6 testifying witness, unless the witness is ‘unavailable to testify, and the defendant

had had a prior opportunity for cross-examination.’” Ward v. State, 50 N.E.3d

752, 757 (Ind. 2016) (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)).

Statements 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.

Davis v. Washington, 547 U.S. 813, 822 (2006).

[12] Foster argues that “the purpose of the call . . . was to report a crime that had

already been committed . . . not to address what was happening in the

moment.” Appellant’s Br. at 13. We disagree. Rather, here, the caller stated

that he was trying to help S.W. and the call focused on S.W.’s condition—

whether she was awake, whether she was breathing normally, and her state of

shock. Thus, because the primary purpose of the call was to address S.W.’s

emergent needs—not to establish or prove facts relevant to later criminal

prosecution—the statements were nontestimonial. We accordingly conclude

that admission of the call did not offend Foster’s Sixth Amendment right to

confront adverse witnesses.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017 Page 5 of 6 Conclusion [13] The trial court properly admitted the recorded 9-1-1 call.

[14] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-618 | August 22, 2017 Page 6 of 6