FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
BRIAN REITZ
Deputy Attorney General
FILED
Indianapolis, Indiana
Feb 22 2013, 9:21 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
JOSHUA KING, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1204-CR-351
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Carol J. Orbison, Judge
The Honorable Anne M. Flannelly, Commissioner
Cause No. 49G22-1202-FC-6919
February 22, 2013
OPINION - FOR PUBLICATION
MAY, Judge
Joshua King appeals his convictions of Class C felony battery,1 Class A misdemeanor
battery,2 and Class D felony strangulation.3 He submits four issues for our review, which we
consolidate and restate as:
1. Whether the trial court violated King’s rights under the Confrontation Clause
when it admitted testimony by Officer Philip Rossman;
2. Whether the trial court abused its discretion when it admitted recordings of
calls King made to the victim from jail; and
3. Whether the trial court erroneously listed one of King’s convictions as a Class
C felony instead of a Class A misdemeanor.
We affirm and remand.
FACTS AND PROCEDURAL HISTORY
At approximately noon on January 30, 2012, C.M. ran into the leasing office of her
apartment complex and told the assistant manager, Karmen Carpenter, that she had been
attacked by King, the father of her child. C.M. was crying, had injuries to her face, neck, and
wrist, and said her child was still with King in her apartment. Carpenter called 911, and
Officer Philip Rossman arrived at the leasing office. Still visibly shaken, C.M. told Officer
Rossman what happened, and he went to C.M.’s apartment to speak to King and retrieve
C.M.’s child. When he arrived at the apartment, he discovered King leaving the apartment
with the child. Officer Rossman asked King to sit down in the apartment and he returned the
1
Ind. Code § 35-42-2-1(a)(8).
2
Ind. Code § 35-42-2-1(a)(1).
3
Ind. Code § 35-42-2-9.
2
child to C.M. C.M. was taken to the hospital and Officer Rossman arrested King.
At the hospital, Nurse Patrisha Anderson examined C.M., who told Anderson she and
King had argued about money, and then King had pushed her down the hallway, knelt on her
with his knee in her spine, and attempted to strangle her. When C.M. briefly escaped his
grasp, King picked up a television and threw it against the wall. He then reengaged C.M. in
the physical altercation. As King and C.M. fought, C.M. fell over the television. King
squeezed C.M.’s stomach and, knowing she was pregnant, told her she was not going to have
the baby. C.M. was then able to flee to the leasing office.
The State charged King with two counts of Class C felony battery and one count of
Class D felony strangulation. While in the Marion County Jail, King called C.M. at least
twice and discussed the details of the crime. The trial court found King guilty of Class C
felony battery, Class A misdemeanor battery as a lesser included offense of the second count
of Class C felony battery, and Class D felony strangulation. It sentenced him to four years,
with two years to be served on work release and two years suspended to probation.
DISCUSSION AND DECISION
1. Confrontation Clause
We review the trial court’s decision regarding admissibility of evidence for an abuse
of discretion. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009), trans. denied.
Thus, we reverse only if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before it. Id. We will not reweigh evidence, and we consider any
conflicting evidence in favor of the trial court’s ruling. Id. However, we must also consider
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the uncontested evidence favorable to the defendant. Id.
Errors in the admission or exclusion of evidence are to be to be disregarded as
harmless unless they affect the substantial rights of a party. Ind. Trial Rule 61; Hardin v.
State, 611 N.E.2d 123, 131 (Ind. 1993). In a bench trial,
the harm from any evidentiary error is lessened. In bench trials, we presume
that the court disregarded inadmissible evidence and rendered its decision
solely on the basis of relevant and probative evidence. Any harm from
evidentiary error is lessened, if not completely annulled, when the trial is by
the court sitting without a jury. Also, any error in the admission of evidence
which is merely cumulative of evidence properly admitted is harmless.
Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000) (internal citations omitted).
The Confrontation Clause, embodied in the Sixth Amendment to the United States
Constitution, provides that “in all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” The Indiana Constitution extends a similar
guarantee. See Ind. Const., Art. 1, § 13(a) (“In all criminal prosecutions, the accused shall
have the right to . . . meet the witnesses face to face[.]). The Confrontation Clause prohibits
the admission of an out-of-court statement if it is testimonial, the declarant is unavailable, and
the defendant had no prior opportunity to cross-examine the witness. Crawford v.
Washington, 541 U.S. 36, 42 (2004). C.M. did not testify at King’s trial. King argues
testimony given by Officer Rossman regarding what C.M. told him was testimonial, and
therefore its admission violated the Confrontation Clause. We disagree.
To determine whether a statement is testimonial, we look at the primary purpose of the
conversation. Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011). If the circumstances
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indicate the purpose of the interrogation is “to enable police assistance to meet an ongoing
emergency,” then the statements are considered non-testimonial and not subject to the
Confrontation Clause. Davis v. Washington, 547 U.S. 813, 822 (2006). However, if
circumstances indicate the primary purpose of the conversation is to “prove past events
potentially relevant to later criminal prosecution,” then the statements are considered
testimonial and protected by the Confrontation Clause. Id.
When determining the nature of the statement, we consider:
(1) whether the declarant was describing events “as they were actually
happening” or past events; (2) whether the declarant was facing an ongoing
emergency; (3) whether the nature of what was asked and answered was such
that the elicited statements were necessary to be able to resolve the present
emergency rather than simply to learn about past events; and (4) the level of
formality of the interview.
State v. Martin, 885 N.E.2d 18, 20 (Ind. Ct. App. 2008).
Police investigation of domestic violence involves a unique set of circumstances:
In domestic dispute situations, responses to police officers’ initial inquiries
may often be, but are not always, non-testimonial, because the officers may
need to investigate and identify the people involved in order to assess the
situation, the threat to their safety, and the potential danger to the victim.
Davis [v. Washington, 547 U.S. 813,] 832 (2006) (citing Hiibel v. Sixth
Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 186, 124
S.Ct. 2451, 159 L.Ed.2d 292 (2004)). . . . . However, even in domestic
violence cases, the zone [of danger] can extend beyond the victim. See
Martin, 885 N.E.2d at 21 (holding that even though the declarant was not in
danger, “she was experiencing an ongoing emergency because she did not
know where her children were and she feared for their safety”).
Young v. State, 980 N.E. 2d 412, 419 (Ind. Ct. App., 2012).
5
Officer Rossman arrived at the leasing office two or three minutes after Carpenter’s
911 call. He observed “swelling and redness” around C.M.’s right eye and “red marks”
around her throat. (Tr. at 7.) C.M. was “upset and crying.” (Id.) She identified her attacker
as King, and indicated King had her eleven-month-old son with him and she was concerned
for the child’s safety. Based on C.M.’s demeanor, the proximity in time to the infliction of
her injuries, and the immediate possibility of danger to her child, we hold C.M.’s statements
to Officer Rossman were non-testimonial and therefore admissible. See Martin, 885 N.E.2d
at 21 (holding victim’s statements to police to be non-testimonial because victim was injured
and concerned for the welfare of her children, who was in the custody of her attacker).4
2. Jailhouse Phone Calls
During trial, the State introduced, over King’s objection, a recording of two phone
conversations King had with C.M. from jail. During these recordings, King and C.M.
discussed the details of the crime. King argues the calls were inadmissible hearsay. We
disagree.
Generally, recordings of telephone calls made from jail are admissible when the
defendant discusses the crime for which he is incarcerated. Baer v. State, 866 N.E.2d 752,
762 (Ind. 2007), reh’g denied. The detective investigating the incident testified King and
4
King argues the trial court abused its discretion when it admitted Carpenter’s testimony regarding what C.M.
told her about King’s attack because the statements were inadmissible hearsay. King also argues the trial court
abused its discretion when it admitted statements and medical records from C.M.’s visit with Nurse Patrisha
Anderson in the emergency room following the attack. Any possible error in the admission of that evidence
was, as most, harmless because the testimony of Carpenter and Nurse Anderson was cumulative of Officer
Rossman’s testimony, which was properly admitted. See Cole v. State, 970 N.E.2d 779, 784 (Ind. Ct. App.
2012) (admission of hearsay is not grounds for reversal where it is merely cumulative of other evidence
admitted).
6
C.M. “talked about the incident, the disturbance that [the detective] was investigating.” (Tr.
at 121.) Because King discussed the crime for which he was incarcerated during the calls,
the trial court did not abuse its discretion when it admitted the calls into evidence. See Baer,
866 N.E.2d at 762.
3. Abstract of Judgment
King argues, and the State concedes, the Abstract of Judgment erroneously lists
King’s second count of battery as a Class C felony instead of as a Class A misdemeanor.
During trial the court stated King’s conviction was of Class A misdemeanor battery and, in
accordance therewith, the court pronounced a one-year sentence for that crime. Compare
Ind. Code § 35-50-2-6 (sentence for Class C felony is two to eight years) with Ind. Code §
35-50-3-2 (sentence for Class A misdemeanor shall be not more than one year). Therefore,
we remand for correction of the Abstract of Judgment to accurately reflect King’s second
battery conviction is a Class A misdemeanor.
CONCLUSION
The trial court did not abuse its discretion when it admitted Officer Rossman’s
testimony. Further, any error in admission of evidence from Carpenter and Nurse Anderson
was harmless as cumulative of Officer Rossman’s testimony. Finally, the trial court did not
abuse its discretion when it admitted the recordings of calls King made to C.M. from jail.
However, the Abstract of Judgment incorrectly lists King’s second battery conviction as a
Class C felony, and we remand for correction of the Abstract of Judgment.
7
Affirmed and remanded.
NAJAM, J., and KIRSCH, J., concur.
8