MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 09 2016, 8:42 am
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 Philip R. Skodinski Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Jones, March 9, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1509-CR-1391 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Elizabeth Hardtke, Judge Trial Court Cause No. 71D01-1505-CM-1289
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 1 of 8 STATEMENT OF THE CASE
[1] Appellant-Defendant, Christopher Jones (Jones), appeals his conviction and
sentence for battery, a Class A misdemeanor.
[2] We affirm.
ISSUES
[3] Jones raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in admitting certain evidence;
and
(2) Whether there was sufficient evidence to establish Jones’ conviction for
battery beyond a reasonable doubt.
FACTS AND PROCEDURAL HISTORY
[4] Jones and Jacqueline Brown (Brown), were in a romantic relationship and lived
together. On May 2, 2015, Brown called the South Bend Police Department
regarding an assault. Shortly thereafter, Officer Joshua Brooks (Officer Brooks)
and another officer arrived at Brown’s residence. Officer Brooks encountered
Brown on her front porch, she was hysterical, had bruises on her face, and
swellings around her eyes. Officer Brooks asked Brown if she needed medical
attention, but Brown declined. Brown then gave a description of her assailant,
Jones, as a “skinny black male with curly hair and gray beard.” (Transcript p.
26). Moments later, the officers were notified over the radio that Jones had
been arrested at a local Burger King. Both officers left Brown’s residence.
When they arrived at Burger King, the officers found that Jones had been
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 2 of 8 restrained in handcuffs. Upon searching his person, Officer Brooks found Jones
in possession of “two cell phones in his right front pocket.” (Tr. p. 27). Jones
was then transported to jail.
[5] “Somewhere between 10 to 15 minutes” later Officer Brooks and the other
officer returned to Brown’s residence. (Tr. p. 35). Since Brown was still frantic,
Officer Brooks had to calm her down. Brown at first informed Officer Brooks
that “somebody she did not know was trying to break in through her bedroom
window, and once he got in[,] he hit her with both hands several times, and
somehow they ended up from the bedroom to the living room.” (Tr. p. 37).
Brown also stated that her assailant grabbed her cell phone and then “knocked
her out.” (Tr. p. 37). At the close of the interview, Brown informed Officer
Brooks that her assailant was Jones. Brown also identified the two cell phones
recovered from Jones as hers.
[6] On May 4, 2015, the State filed an Information, charging Jones with Count I,
battery resulting in bodily injury, a Class A misdemeanor; Count II, theft, a
Class A misdemeanor; and Count III, resisting law enforcement, a Class A
misdemeanor. On June 25, 2015, the trial court held Jones’ bench trial. At the
conclusion of trial, the trial court entered a not guilty judgment on theft, but
guilty judgments for battery, and resisting law enforcement. On the same day,
the trial court sentenced Jones to an all executed consecutive sentence of 180
days for battery, and 365 days for resisting law enforcement.
[7] Jones now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 3 of 8 DISCUSSION AND DECISION
I. Brown’s Prior Statements
[8] Jones seeks a reversal of his battery conviction in this case on grounds that the
trial court abused its discretion by admitting Brown’s inconsistent statements as
substantive evidence. The decision to admit evidence is within the trial court’s
discretion and is afforded great deference on appeal. Carpenter v. State, 786
N.E.2d 696, 702 (Ind. 2003). We will not reverse the trial court’s decision
unless it represents a manifest abuse of discretion that results in the denial of a
fair trial. Id. An abuse of discretion in this context occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before the court or it misinterprets the law. Id. “Even when a
decision on the admissibility of evidence is an abuse of discretion, we will not
reverse a judgment where that error is harmless, that is, where the error did not
affect the substantial rights of a party.” Dixon v. State, 967 N.E.2d 1090, 1092
(Ind. Ct. App. 2012).
[9] Our supreme court has stated that “[o]rdinarily, prior inconsistent statements
are used to impeach, not as substantive evidence of the matter reported.” Young
v. State, 746 N.E.2d 920, 926 (Ind. 2001). In other words, a prior inconsistent
statement used to impeach a witness’s credibility is not hearsay. See Martin v.
State, 736 N.E.2d 1213, 1217 (Ind. 2000). At Jones’ trial, Brown’s account of
events changed. Brown made two different statements about Jones battering
her, one to the police and one on direct examination. The State’s questioning
of Brown at trial highlighted that the two statements were inconsistent. The
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 4 of 8 fact that the statement she gave to the police prior to trial was different from the
statement she made as a witness at the hearing called into question whether
Brown was lying when she spoke to the police or if she was lying on the witness
stand.
[10] Jones’ underlying contention here is that the admission of Brown’s prior
statement that Jones assaulted her to the officers might have allowed the trial
court to wrongly consider her statement as substantive evidence. This concern
does not render Brown’s statement inadmissible. If Jones believed there was a
danger that the trial court would use the statement as substantive evidence, then
it was incumbent upon him to request that the trial court consider the statement
only to determine Brown’s credibility. See Ind. Evidence Rule 105.
[11] Moreover, we note that the bulk of the evidence against Jones was admitted
under the excited utterance exception of the hearsay rule. An excited utterance
is “[a] statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” Ind. Evidence Rule
803(2). Application of this rule is not mechanical, and the heart of the
inquiry is whether the statement is inherently reliable because the declarant was
incapable of thoughtful reflection. Palacios v.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 09 2016, 8:42 am
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 Philip R. Skodinski Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Jones, March 9, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1509-CR-1391 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Elizabeth Hardtke, Judge Trial Court Cause No. 71D01-1505-CM-1289
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 1 of 8 STATEMENT OF THE CASE
[1] Appellant-Defendant, Christopher Jones (Jones), appeals his conviction and
sentence for battery, a Class A misdemeanor.
[2] We affirm.
ISSUES
[3] Jones raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion in admitting certain evidence;
and
(2) Whether there was sufficient evidence to establish Jones’ conviction for
battery beyond a reasonable doubt.
FACTS AND PROCEDURAL HISTORY
[4] Jones and Jacqueline Brown (Brown), were in a romantic relationship and lived
together. On May 2, 2015, Brown called the South Bend Police Department
regarding an assault. Shortly thereafter, Officer Joshua Brooks (Officer Brooks)
and another officer arrived at Brown’s residence. Officer Brooks encountered
Brown on her front porch, she was hysterical, had bruises on her face, and
swellings around her eyes. Officer Brooks asked Brown if she needed medical
attention, but Brown declined. Brown then gave a description of her assailant,
Jones, as a “skinny black male with curly hair and gray beard.” (Transcript p.
26). Moments later, the officers were notified over the radio that Jones had
been arrested at a local Burger King. Both officers left Brown’s residence.
When they arrived at Burger King, the officers found that Jones had been
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 2 of 8 restrained in handcuffs. Upon searching his person, Officer Brooks found Jones
in possession of “two cell phones in his right front pocket.” (Tr. p. 27). Jones
was then transported to jail.
[5] “Somewhere between 10 to 15 minutes” later Officer Brooks and the other
officer returned to Brown’s residence. (Tr. p. 35). Since Brown was still frantic,
Officer Brooks had to calm her down. Brown at first informed Officer Brooks
that “somebody she did not know was trying to break in through her bedroom
window, and once he got in[,] he hit her with both hands several times, and
somehow they ended up from the bedroom to the living room.” (Tr. p. 37).
Brown also stated that her assailant grabbed her cell phone and then “knocked
her out.” (Tr. p. 37). At the close of the interview, Brown informed Officer
Brooks that her assailant was Jones. Brown also identified the two cell phones
recovered from Jones as hers.
[6] On May 4, 2015, the State filed an Information, charging Jones with Count I,
battery resulting in bodily injury, a Class A misdemeanor; Count II, theft, a
Class A misdemeanor; and Count III, resisting law enforcement, a Class A
misdemeanor. On June 25, 2015, the trial court held Jones’ bench trial. At the
conclusion of trial, the trial court entered a not guilty judgment on theft, but
guilty judgments for battery, and resisting law enforcement. On the same day,
the trial court sentenced Jones to an all executed consecutive sentence of 180
days for battery, and 365 days for resisting law enforcement.
[7] Jones now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 3 of 8 DISCUSSION AND DECISION
I. Brown’s Prior Statements
[8] Jones seeks a reversal of his battery conviction in this case on grounds that the
trial court abused its discretion by admitting Brown’s inconsistent statements as
substantive evidence. The decision to admit evidence is within the trial court’s
discretion and is afforded great deference on appeal. Carpenter v. State, 786
N.E.2d 696, 702 (Ind. 2003). We will not reverse the trial court’s decision
unless it represents a manifest abuse of discretion that results in the denial of a
fair trial. Id. An abuse of discretion in this context occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before the court or it misinterprets the law. Id. “Even when a
decision on the admissibility of evidence is an abuse of discretion, we will not
reverse a judgment where that error is harmless, that is, where the error did not
affect the substantial rights of a party.” Dixon v. State, 967 N.E.2d 1090, 1092
(Ind. Ct. App. 2012).
[9] Our supreme court has stated that “[o]rdinarily, prior inconsistent statements
are used to impeach, not as substantive evidence of the matter reported.” Young
v. State, 746 N.E.2d 920, 926 (Ind. 2001). In other words, a prior inconsistent
statement used to impeach a witness’s credibility is not hearsay. See Martin v.
State, 736 N.E.2d 1213, 1217 (Ind. 2000). At Jones’ trial, Brown’s account of
events changed. Brown made two different statements about Jones battering
her, one to the police and one on direct examination. The State’s questioning
of Brown at trial highlighted that the two statements were inconsistent. The
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 4 of 8 fact that the statement she gave to the police prior to trial was different from the
statement she made as a witness at the hearing called into question whether
Brown was lying when she spoke to the police or if she was lying on the witness
stand.
[10] Jones’ underlying contention here is that the admission of Brown’s prior
statement that Jones assaulted her to the officers might have allowed the trial
court to wrongly consider her statement as substantive evidence. This concern
does not render Brown’s statement inadmissible. If Jones believed there was a
danger that the trial court would use the statement as substantive evidence, then
it was incumbent upon him to request that the trial court consider the statement
only to determine Brown’s credibility. See Ind. Evidence Rule 105.
[11] Moreover, we note that the bulk of the evidence against Jones was admitted
under the excited utterance exception of the hearsay rule. An excited utterance
is “[a] statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” Ind. Evidence Rule
803(2). Application of this rule is not mechanical, and the heart of the
inquiry is whether the statement is inherently reliable because the declarant was
incapable of thoughtful reflection. Palacios v. State, 926 N.E.2d 1026, 1030-1031
(Ind. Ct. App. 2010). The focus is on whether the statement was made while
the declarant was under the influence of the excitement engendered by the
startling event. 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
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 5 of 8 statement was made. Mathis v. State, 859 N.E.2d 1275, 1279 (Ind. Ct. App.
2007).
[12] When Officer Brooks and the other officer arrived at Brown’s residence, Brown
appeared shaken up and distraught, she was crying, had some blood on her
face, and some swelling to her eyes. Brown informed the officers that she had
been assaulted by an unknown “skinny black male with curly hair and gray
beard.” (Tr. p. 26). Moments later, the officers left after learning that Brown’s
assailant, Jones, had been arrested at a local Burger King. After about 10-15
minutes, the officers returned to Brown’s residence. Brown was still hysterical.
Officer Brooks had to calm her down. Brown then narrated the assault to the
officers. The statements she made to officers were made a short time after the
physical altercation with Jones. Her behavior and comments show that, at the
time, she was under the stress of excitement caused by the altercation with
Jones, her statements related to the altercation, and they were admissible under
Ind. Evidence Rule 803(2).
II. Sufficiency of the Evidence
[13] Jones argues that the evidence was insufficient to sustain his conviction for
Class A misdemeanor battery. When reviewing the sufficiency of the evidence
to support a conviction, we consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We neither reweigh the evidence nor assess the credibility of
witnesses. Id. Unless no reasonable fact-finder could conclude the elements of
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 6 of 8 the crime were proven beyond a reasonable doubt, we will affirm the
conviction. Id.
[14] Indiana Code section 35-42-2-l (b) provides that a person who knowingly or
intentionally “touches another person in a rude, insolent, or angry manner ...
commits battery, a Class B misdemeanor.” However, the offense is a Class A
misdemeanor if it results in bodily injury to any other person. Ind. Code § 35–
42-2-1(c). In charging Jones, the State alleged that “On or about May 2, 2015, .
. . Jones did knowingly or intentionally touch . . . Brown in a rude, insolent, or
angry manner, resulting in bodily injury. . . .” (Appellant’s App. p. 1).
[15] During Jones’ bench trial, Brown testified that on the day of the incident, she
spoke with the South Bend police officers. Brown stated that she informed the
officers that she was in bed when someone entered her home through a
window. Brown stated that the individual struck her. In addition, Officer
Brooks’ testimony established that he encountered Brown at the porch of her
residence when they arrived. Officer Brooks indicated that Brown was
hysterical, crying, and had some blood on her face. The officer’s narration of
Brown’s account of events, which was admitted under the excited utterance
exception of the hearsay rule, presented that Jones struck Brown several times
and knocked her unconscious.
[16] Upon review, we conclude that the State presented sufficient evidence to
sustain Jones’ conviction for Class A misdemeanor battery. The record
demonstrates that Jones hit Brown, causing her pain. Jones’ claim to the
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 7 of 8 contrary merely amounts to an invitation for this court to reweigh the evidence,
which we will not do. See Drane, 867 N.E.2d at 146.
CONCLUSION
[17] Based on the foregoing, we conclude that (1) the trial court did not abuse its
discretion by admitting Brown’s prior statements to the police; (2) there was
sufficient evidence supports Jones’ conviction for Class A misdemeanor battery.
[18] Affirmed.
[19] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1391 | March 9, 2016 Page 8 of 8