Wesley Sanders v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 21, 2019
• Docket: 18A-CR-1852
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 21 2019, 9:25 am

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 Valerie K. Boots Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Wesley Sanders, March 21, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1852 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Hugh Patrick Appellee-Plaintiff. Murphy, Magistrate Trial Court Cause No. 49G16-1801-CM-2462

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 1 of 5 Statement of the Case [1] Wesley Sanders appeals his conviction for battery, as a Class A misdemeanor,

following a jury trial. He presents a single issue for our review, namely,

whether the trial court abused its discretion when it admitted into evidence a

recording of a 9-1-1 call. We affirm.

Facts and Procedural History [2] On December 27, 2017, during the evening, Sanders’ girlfriend Dyreece

Simmons told Sanders that she wanted “to end the[ir] relationship.” Tr. at 72.

The next morning, Simmons and her coworker Shelbie Fredette were working

at Dress Barn in Indianapolis when Sanders arrived. Sanders and Simmons

began to talk and, after Simmons reiterated her desire to break up with him,

Sanders hit her with an “open hand,” which knocked her glasses off of her face

and left a scratch on her nose. Id. at 73. Sanders left, and Simmons

immediately called 9-1-1 to report the battery.

[3] Indianapolis Metropolitan Police Department Officer Ted Sadownik arrived at

Dress Barn and, while he was talking to Simmons, he observed that she was

“upset” and had been crying, and he saw a scratch on her nose. Id. at 102.

Simmons also showed Officer Sadownik her glasses, which were “crushed,

broken.” Id. Simmons told Officer Sadownik that Sanders had hit her.

[4] The State charged Sanders with domestic battery, as a Class A misdemeanor;

battery, as a Class A misdemeanor; and criminal mischief, as a Class B

misdemeanor. At trial, when the State moved to admit a recording of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 2 of 5 Simmons’ 9-1-1 call, Sanders objected on hearsay grounds. The trial court

overruled his objection and admitted the recording. The jury acquitted Sanders

on two charges but found him guilty of one count of battery, as a Class A

misdemeanor. The trial court entered judgment of conviction and sentenced

Sanders accordingly. This appeal ensued.

Discussion and Decision [5] On appeal, Sanders contends that the trial court abused its discretion when it

admitted into evidence the recording of Simmons’ 9-1-1 call. When Sanders

objected to the admission of the recording, the State argued that it was

admissible under the excited utterance exception, and the court agreed.

Sanders maintains that, while Simmons was “undoubtedly upset” after Sanders

hit her, the excited utterance exception does not apply because Simmons’

“statements were not inherently reliable.” Appellant’s Br. at 11. We cannot

agree.

[6] The trial court has “inherent discretionary power on the admission of evidence,

and its decisions are reviewed only for an abuse of that discretion.” McManus v.

State, 814 N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An

abuse of discretion occurs when the trial court’s judgment “is clearly against the

logic and effect of the facts and circumstances and the error affects a party’s

substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).

[7] Hearsay is generally inadmissible. Ind. Evidence Rule 802. However, hearsay

may be admissible if it is an excited utterance. Evid. R. 803(2). For a statement

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 3 of 5 to be an excited utterance, three elements must be shown: (1) a startling event;

(2) a statement made by a declarant while under the stress of excitement caused

by the event; and (3) that the statement relates to the event. Fowler v. State, 829

N.E.2d 459, 463 (Ind. 2005), abrogated on other grounds, Giles v. California, 554

U.S. 353, 366-68 (2008). “The ultimate issue is whether the statement is

deemed reliable because of its spontaneity and lack of thoughtful reflection and

deliberation.” Id. While the amount of time that passed between the startling

event and a subsequent statement is, of course, one factor to consider in

determining whether the statement was an excited utterance, no precise length

of time is required. Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct. App. 2001).

In Fowler, for instance, the Indiana Supreme Court held that the trial court did

not abuse its discretion when it admitted into evidence statements made to an

officer fifteen minutes after a startling event. 829 N.E.2d at 463-64.

[8] Here, the evidence shows that the recording of the 9-1-1 call was properly

admitted under the excited utterance exception to the hearsay rule. Simmons

called 9-1-1 immediately after Sanders hit her, which was a startling event.

Indeed, she told the operator that the incident had occurred “a few seconds

ago.” State’s Ex. 4. Fredette observed that Simmons was “upset” and

“physically shaking” when Simmons called 9-1-1. The trial court acted within

its inherent discretionary power when it admitted into evidence the recording of

the 9-1-1 call as an excited utterance.

[9] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 4 of 5 Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 5 of 5