Vincent Battle v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 17, 2017
• Docket: 71A03-1703-CR-688
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 17 2017, 8:46 am regarded as precedent or cited before any 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 Mark S. Lenyo Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Vincent Battle, August 17, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1703-CR-688 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1507-F6-468

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017 Page 1 of 6 Case Summary [1] Vincent Battle (“Battle”) appeals his conviction for Battery, as a Level 6 felony. 1

We affirm.

Issues [2] Battle presents two issues for review:

I. Whether the trial court abused its discretion by admitting evidence under the excited utterance exception to the hearsay rule; and

II. Whether sufficient evidence supports his conviction.

Facts and Procedural History [3] During the evening of July 10, 2015, L’Nita Webb (“Webb”) returned home

from work and checked on her daughters, two-year-old M.W. and six-year-old

L.W. With the children tucked in bed and unharmed, Webb left them in the

care of her live-in boyfriend, Battle, and went to meet her sister. After Webb

had been gone about ninety minutes, she got a call from Battle. He reported

that M.W.’s face was swollen and Webb needed to come home.

[4] Twenty or thirty minutes later, Webb arrived home to find Battle holding M.W.

M.W.’s eye was swollen shut, her nose was bloodied, and she was making

1 Ind. Code § 35-42-2-1(e)(3).

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017 Page 2 of 6 “whining” sounds. (Tr. at 28.) Webb began to cry, whereupon M.W. also

began to cry. Webb decided to take M.W. to the hospital. She dressed M.W.

in pajamas and took her out to the car. As Webb put M.W. into her car-seat,

which took place about twenty to thirty minutes after Webb got home, Webb

asked “what happened … who did that.” (Tr. at 30.) M.W. responded with

“Bay,” which was her nickname for Battle. (Tr. at 37.)

[5] Battle was subsequently arrested and charged with two counts of Battery. On

January 24, 2017, Battle was tried in a bench trial and found guilty of a single

count of Battery. He was sentenced to one year imprisonment, all suspended to

probation. He now appeals.

Discussion and Decision Admission of Evidence [6] At trial, Webb objected on hearsay grounds to the admission of M.W.’s

statement to Webb identifying Battle as the source of her injuries. After hearing

argument of counsel, the trial court found the statement to be admissible as an

excited utterance.

[7] Hearsay, an out-of-court statement offered in evidence to prove the truth of the

matter asserted, is inadmissible unless admitted pursuant to a recognized

exception. Ind. Evidence Rule 82. An excited utterance is an exception

defined as “[a] statement relating to a startling event or condition made while

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017 Page 3 of 6 the declarant was under the stress of excitement caused by the event or

condition.” Ind. Evidence Rule 803(2).

[8] The application of this rule is not mechanical; the statement must be

trustworthy under the specific facts of the case at hand. Brittain v. State, 68

N.E.3d 611, 620 (Ind. Ct. App. 2017). “[T]he heart of the inquiry is whether

the statement is inherently reliable because the declarant was incapable of

thoughtful reflection.” 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 statement is made. Id. at 621.

[9] Webb argues that M.W.’s statement is unreliable because it was made in

response to questioning, a significant amount of time had elapsed between the

injury and the statement, and the State did not demonstrate that M.W. was still

under the stress of excitement. We review the trial court’s decision on the

admission or exclusion of evidence for an abuse of discretion. Roche v. State,

690 N.E.2d 1115, 1134 (Ind. 1997).

[10] M.W.’s statement was made in response to her mother’s questioning.

However, “[a] declaration does not lack spontaneity simply because it was an

answer to a question.” Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).

Whether in response to questioning or not, the statement “must be unrehearsed

and made while still under the stress of excitement from the startling event.” Id.

Another factor to be considered is the time between the startling event and the

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017 Page 4 of 6 hearsay statement. Id. Here, the timeline shown by the State’s evidence is as

follows. L.W. testified that she was awakened from sleep hearing “slapping

noises” and her sister crying. (Tr. at 11.) Her mother came home a “little while

later.” (Tr. at 19.) Webb testified that she arrived home twenty or thirty

minutes after receiving Battle’s call. She placed M.W. in her car-seat about

twenty to thirty minutes after arriving home. As such, M.W.’s statement

appears to have been made within an hour or so after the startling event.

[11] When M.W. made the statement, she had just been released from Battle’s care.

She was whining when she first saw her mother, and the expression of distress

escalated to cries. Her face was swollen, one eye was swollen shut, and her

nose was bloodied. The trial court could reasonably conclude that M.W., a

two-year-old child, was not “capable of thoughtful reflection” at the time she

responded to her mother. Brittain, 68 N.E.3d at 620. We find no abuse of the

trial court’s discretion in the admission of M.W.’s statement as an excited

utterance.

Sufficiency of the Evidence [12] To convict Battle of Battery, as a Level 6 felony, as charged, the State was

required to establish beyond a reasonable doubt that Battle, a person over age

eighteen, knowingly or intentionally touched M.W., a child under the age of

fourteen, in a rude, angry, or insolent manner. I.C. § 35-42-2-1(e)(3).

[13] When reviewing the sufficiency of the evidence, we will not reweigh the

evidence or assess the credibility of witnesses. Henley v. State, 881 N.E.2d 639,

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017 Page 5 of 6 652 (Ind. 2008). We consider only the evidence most favorable to the

conviction, together with all reasonable and logical inferences drawn therefrom.

Id. We affirm the conviction if there is substantial evidence of probative value

to support the conclusion of the trier of fact. Id.

[14] Wood testified that she left home around 1:00 a.m., leaving her small children

alone with Battle. At that time, M.W. had no visible injury. L.W. testified that

she awoke to slapping sounds. Her sister was not in the room they shared;

L.W. could hear M.W. crying in another room. Per the testimony of both

Battle and Wood, Battle summoned Wood home before 4:00 a.m. to check on

M.W.’s swollen face. When Wood saw M.W., the child’s face was swollen,

one eye was swollen shut, and her nose was bloodied. In response to Wood’s

questioning, M.W. indicated that Battle had caused the injuries. This is

sufficient evidence from which the trier of fact could conclude that Battle

committed battery upon M.W.

Conclusion [15] Battle has demonstrated no abuse in the trial court’s admission of evidence.

Sufficient evidence supports his conviction.

[16] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-688 | August 17, 2017 Page 6 of 6