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

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.
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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).
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“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
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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
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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,
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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.
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