FILED
MEMORANDUM DECISION 08/22/2017, 11:18 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court
Court of Appeals
this Memorandum Decision shall not be and Tax Court
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
Michael R. Fisher Curtis Hill Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Foster, August 22, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1703-CR-618
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Robert York,
Appellee-Plaintiff. Judge Pro Tem
Trial Court Cause No.
49G04-1604-FA-15663
Bailey, Judge.
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Case Summary
[1] Charles Foster (“Foster”) appeals his conviction of Criminal Confinement, as a
Class C Felony,1 presenting challenges to the admission of a recorded 9-1-1 call.
[2] We affirm.
Facts and Procedural History
[3] Around 6:15 a.m. on April 2, 2013, S.W. approached a house in Indianapolis
and screamed to a resident that she had just been raped. S.W. appeared to be in
shock. The resident called 9-1-1 and an investigation ensued, which included
DNA analysis that led police to Foster.
[4] Foster was tried by a jury on several charges: Rape, as a Class A Felony;2 three
counts of Criminal Confinement—two as Class B felonies3 and one as a Class C
felony; and Pointing a Firearm, as a Class A Misdemeanor.4 At the trial, S.W.
and Foster gave conflicting testimony regarding an encounter in Foster’s car,
and a recording of the 9-1-1 call was admitted over Foster’s objection.
1
Ind. Code § 35-42-3-3(a)(1). We refer throughout to the provisions of the Indiana Code in effect at the time
of the offense.
2
I.C. § 35-42-4-1(a)(1).
3
I.C. § 35-42-3-3(a)(2).
4
I.C. § 35-47-4-3(b).
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[5] The jury found Foster guilty of Criminal Confinement, as a Class C Felony,
and not guilty of the remaining counts.
[6] Foster now appeals.
Discussion and Decision
[7] “The trial court is afforded wide discretion in ruling on the admissibility of
evidence.” Shinnock v. State, 76 N.E.3d 841, 842 (Ind. 2017). We review its
rulings for an abuse of that discretion, which “occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before it.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).
[8] Foster first argues that the trial court abused its discretion in admitting the
recorded 9-1-1 call because the call contains inadmissible hearsay. Hearsay is
an out-of-court statement “offered in evidence to prove the truth of the matter
asserted.” Ind. Evidence Rule 801(c). The Indiana Rules of Evidence provide
that hearsay evidence is not admissible unless the evidence satisfies an
exception to the rule. Evid. R. 802. Moreover, because the challenged
evidence contains two levels of hearsay—(1) statements the caller made and (2)
statements made by S.W. that the caller relayed—each level of hearsay must
“conform[] with an exception to the rule.” Evid. R. 805.
[9] One exception is for an excited utterance, which is “[a] statement relating to a
startling event or condition, made while the declarant was under the stress of
excitement that it caused.” Evid. R. 803(2). Here, the caller stated that S.W.
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screamed that she had just been raped and appeared to be in shock. Moreover,
when law enforcement responded a few minutes later, S.W. was crying. These
circumstances indicate that S.W.’s statements were excited utterances.
[10] Foster does not directly dispute that S.W.’s statements constituted excited
utterances, but argues that the caller’s statements do not satisfy this exception.
Yet, a different exception to the rule against hearsay applies when a statement is
a present-sense impression, which is “[a] statement describing or explaining an
event, condition or transaction, made while or immediately after the declarant
perceived it.” Evid. R. 803(1). The caller’s statements meet this exception
because the call was placed after S.W. screamed she had been raped, and while
the caller was with S.W., relaying what was happening, and giving information
about the present condition of S.W. Thus, because both levels of hearsay
satisfy an exception to the rule, the trial court did not err in this respect.5
[11] Foster next argues that admission of the call violated his Sixth Amendment
right to confront adverse witnesses because the caller was not present to testify.6
The Confrontation Clause of the Sixth Amendment to the United States
Constitution “prohibits the introduction of testimonial statements by a non-
5
Foster briefly argues that S.W.’s statements were inadmissible because the caller had no personal
knowledge of the underlying incident. However, “the hallmark of all hearsay exceptions” is that the
excepted statements “bear sufficient indicia of reliability.” Teague v. State, 978 N.E.2d 1183, 1188 (Ind. Ct.
App. 2012). This is why each level of hearsay must independently satisfy an exception. See Evid. R. 805.
Here, the caller had personal knowledge of what S.W. had just screamed to him and S.W. had personal
knowledge of the startling incident. Both levels of hearsay meet an exception to the rule, and the
circumstances present sufficient indicia of reliability to admit S.W.’s statements through the caller.
6
Foster presents no challenge under the Indiana constitution.
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testifying witness, unless the witness is ‘unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.’” Ward v. State, 50 N.E.3d
752, 757 (Ind. 2016) (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)).
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822 (2006).
[12] Foster argues that “the purpose of the call . . . was to report a crime that had
already been committed . . . not to address what was happening in the
moment.” Appellant’s Br. at 13. We disagree. Rather, here, the caller stated
that he was trying to help S.W. and the call focused on S.W.’s condition—
whether she was awake, whether she was breathing normally, and her state of
shock. Thus, because the primary purpose of the call was to address S.W.’s
emergent needs—not to establish or prove facts relevant to later criminal
prosecution—the statements were nontestimonial. We accordingly conclude
that admission of the call did not offend Foster’s Sixth Amendment right to
confront adverse witnesses.
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Conclusion
[13] The trial court properly admitted the recorded 9-1-1 call.
[14] Affirmed.
Baker, J., and Altice, J., concur.
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