MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 02 2017, 9:21 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Anthony Jones, November 2, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1705-CR-1136
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Steven L.
Appellee-Plaintiff Hostetler, Judge
Trial Court Cause No.
71D07-1610-CM-5281
Baker, Judge.
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[1] Michael Jones appeals his conviction for Class A Misdemeanor Domestic
Battery,1 arguing that the trial court erred in admitting certain evidence and that
the evidence is insufficient to support the conviction. Finding no error and
sufficient evidence, we affirm.
Facts
[2] In October 2016, Jones was dating and living with Dianne2 Lorenzo. On
October 23, 2016, Lorenzo called 911 and, while portions of the call are
unintelligible, a majority of the one minute, twenty-seven second exchange is
discernible:
Operator: 911, what’s the address and the emergency?
Lorenzo: [states address]
Operator: Okay, what’s going on?
Lorenzo: My husband’s been beating me up, and I
(unintelligible).
Operator: Okay, ma’am, ma’am . . . he’s still there?
Lorenzo: Yes (sobbing).
1
Ind. Code § 35-42-2-1.3(a)(1).
2
The trial transcript spells Lorenzo’s name “Dianne,” whereas Jones’s brief and certain documents in the
appendix spell her name “Diane.” We will use the former spelling.
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Operator: Do you need an ambulance? Ma’am?
***
Lorenzo: No.
Operator: Okay, what is your name?
Lorenzo: I’m Dianne Lorenzo.
Operator: Okay, can you talk to me?
Lorenzo: No . . . (unintelligible screaming). Get away from me!
(unintelligible screaming and sobbing).
State’s Ex. 1. Near the end of the call a man’s voice can be heard, and the
operator asks Lorenzo to put down the phone so that the operator can listen.
The call abruptly ends a few seconds later.
[3] When South Bend Police Officer Sean Killian arrived, Jones was outside of the
residence; however, when Jones saw the police, he went back inside. Initially,
Officer Killian walked to a back window of the home. He testified that he
overheard Jones screaming at Lorenzo, instructing her to “tell [the police] to get
the f**k out of here, and that I didn’t do anything to you.” Tr. Vol. II p. 10.
Soon thereafter, Officer Killian knocked on the door and Lorenzo answered.
Officer Killian observed that “she had food stain [sic] on her, her hair was all
frazzled, [and] she was totally hysterical, just in a very frenzied state.” Id. at 11.
Within two to three minutes of meeting Lorenzo at the front door, Officer
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Killian escorted her to his squad car and activated his body microphone and his
car’s video camera. While walking toward the car, Lorenzo cried, “[h]e’s . . .
been beating me up,” and stated that she did not want Officer Killian to leave
her and that she and Jones were married. State’s Ex. 2.
[4] On October 24, 2016, the State charged Jones with Class A misdemeanor
domestic battery. Jones’s bench trial took place on March 16, 2017. Although
Lorenzo did not testify, the trial court admitted the 911 call and the video
recording into evidence and permitted Officer Killian to testify about Lorenzo’s
statements over Jones’s objections. On April 28, 2017, the trial court found
Jones guilty and sentenced him to a ninety-day executed sentence, with credit
for nineteen days already served. Jones now appeals.
Discussion and Decision
I. Admission of Evidence
[5] Jones first argues that the trial court erred by admitting the 911 call and a
portion of the video recording into evidence; he contends that doing so violated
his confrontation rights and that the statements were inadmissible hearsay. We
will reverse a trial court’s decision to admit evidence only if the court’s decision
was clearly against the logic and effect of the facts and circumstances before it.
Thornton v. State, 25 N.E.3d 800, 803 (Ind. Ct. App. 2015).
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A. Confrontation Rights 3
[6] The law regarding the Confrontation Clause and testimonial statements is well
established:
The Confrontation Clause of the Sixth Amendment to the United
States Constitution 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
declarant. Similarly, Article 1, Section 13 of the Indiana
Constitution provides that “[i]n all criminal prosecutions, the
accused shall have the right to . . . meet the witnesses face to
face[.]” To determine whether a statement was testimonial, we
look to the primary purpose of the conversation. If
circumstances indicate that the primary purpose of the
conversation was to gather evidence of past events potentially
relevant to later prosecution, then the statements are testimonial
and protected by the Confrontation Clause.
Id. (internal citations omitted). However, a statement may be non-testimonial if
it is made “‘in the course of [a] police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.’” McQuay v. State, 10 N.E.3d
593, 598 (Ind. Ct. App. 2014) (quoting Davis v. Washington, 547 U.S. 813, 822
(2006)). In determining whether the statements at issue were non-testimonial,
Davis considered several factors: “(1) whether the declarant was describing
events ‘as they were actually happening’ or past events; (2) whether the
3
The State contends that Jones has waived the Confrontation Clause issue. We assume solely for
argument’s sake that he has not.
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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) (quoting Davis, 547 U.S. at 827). We
previously cautioned that these factors are not “an exhaustive list,” nor do all of
them need to be satisfied for a statement to be non-testimonial. Collins v. State,
873 N.E.2d 149, 154 n.2 (Ind. Ct. App. 2007).
1. 911 Call
[7] Applying the Davis factors, we conclude that the operator’s questions
objectively had the primary purpose of enabling police to meet an ongoing
emergency. First, although the majority of Lorenzo’s statements concerned
past events, the information was relevant to whether Jones “posed a present
danger[.]” Id. at 154-55 (emphasis original). Second, a reasonable factfinder
could have determined that Lorenzo faced an ongoing emergency: she was
extremely upset, she informed the operator that her husband had beaten her
and that he was still in the house, she can be heard screaming “Get away from
me,” and a man’s voice can be heard in the background. State’s Ex. 1.
[8] Third, the operator focused on eliciting information necessary to evaluate and
resolve Lorenzo’s emergency—such as why she was calling, whether her
attacker was still a threat, her location, whether she needed medical attention,
and her name. See McQuay, 10 N.E.3d at 599 (holding initial questions
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permitting police to learn about the “circumstances in which the crime had
occurred” had the primary purpose of enabling police to meet an ongoing
emergency); see also Kimbrough v. State, 911 N.E.2d 621, 632 n.2 (Ind. Ct. App.
2009) (noting that it was “readily apparent” that the purpose of a police
dispatcher’s questions was to resolve an ongoing emergency). Finally, the
statements were frantically made during an informal 911 call. See Collins, 873
N.E.2d at 155 (“[T]he conversation occurred during a very informal 911 call,
with the agitated [caller] providing answers regarding an ongoing emergency
over the phone, not, for example, calmly relating past events in a relatively
tranquil police station interrogation room.”). In sum, the circumstances
surrounding the 911 operator’s questioning of Lorenzo objectively indicate that
the primary purpose of the call was to assist police in meeting an ongoing
emergency, making the statements non-testimonial. Therefore, the trial court
did not err on this issue.
2. Video Recording
[9] The trial court admitted the first minute and twenty-seven seconds of the video
recording from Officer Killian’s squad car. This portion is largely unintelligible
due to Lorenzo’s hysterical state, and the portions that are discernible add
nothing material to what she told the 911 operator. Additionally, the
statements made by Lorenzo were not made in response to a question. See
Wallace v. State, 79 N.E.3d 992, 999 (Ind. Ct. App. 2017) (finding statements
overheard on a 911 call non-testimonial in part because the statements were
“not responsive to any question posed by law enforcement”). While walking
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toward Officer Killian’s squad car, a panicked Lorenzo, without any
prompting, exclaimed that: (1) she and Jones were married, (2) he had beaten
her up, and (3) she did not want Officer Killian to leave her. State’s Ex. 2.
Officer Killian’s only question in the admitted portion of the video recording
was whether Lorenzo needed an ambulance.
[10] Even if, for argument’s sake, Lorenzo’s statements were responsive to some
question, we cannot say the trial court erred. Applying the Davis factors, we
observe initially that, like the 911 call, though the statements largely described
past events, the information was relevant to whether Jones “posed a present
danger[.]” Collins, 873 N.E.2d at 154-55 (emphasis original). Second, a
reasonable factfinder could have determined that Lorenzo still faced an ongoing
emergency. Officer Killian testified that he arrived at the scene “two to three
minutes” after he was dispatched, and that, when Lorenzo answered the door,
she was “[s]creaming, crying, [and] just giving us tidbits of that [sic]
information . . . .” Tr. Vol. II p. 11, 49. Lorenzo’s hair was “frazzled,” she had
food stains on her shoulder and hip, and Officer Killian had just overheard
Jones yelling at her to tell the police to leave. Id. at 10-11.
[11] Third, considering Lorenzo’s emotional state, physical appearance, and what
Officer Killian overheard, there is no reason to conclude that his lone question
in the admitted portion of the video—whether Lorenzo needed an ambulance—
was asked for any reason other than to resolve an ongoing emergency. Finally,
the exchange was extremely informal. The conversation occurred at or near the
crime scene while Lorenzo and Officer Killian were walking toward his squad
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car and standing in front of his squad car. See McQuay, 10 N.E.3d at 599
(determining that an officer’s questions were informal when the questions were
asked to the victim at the crime scene “in an ‘exposed, public area, prior to the
arrival of emergency medical services, and in a disorganized fashion.’” (quoting
Michigan v. Bryant, 562 U.S. 344, 366 (2011))). In total, the circumstances
objectively indicate that the primary purpose of the conversation—at least up to
the one minute, twenty-seven second mark—was not to gather evidence of past
events; thus, the statements were non-testimonial. The trial court did not err on
this issue.
B. Hearsay
[12] The law regarding hearsay and excited utterances is equally well established:
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. It is inadmissible unless it falls under an
exception. Among the exceptions to the hearsay rule [is the
excited utterance exception]. . . . For a hearsay statement to be
admitted as 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. This is not a mechanical test.
It turns on whether the statement was inherently reliable because
the witness was under the stress of an event and unlikely to make
deliberate falsifications.
Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (internal citations omitted).
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1. 911 Call
[13] It is undisputed that Lorenzo’s statements in the 911 call qualify as hearsay;
however, we cannot say the trial court erred in admitting the statements under
the excited utterance exception. There is no question that a battery is a startling
event. E.g., Fowler v. State, 829 N.E.2d 459, 463-64 (Ind. 2005). It is also clear
from the contents of the call that Lorenzo was under stress while speaking with
the 911 operator. The statements are rushed, impossible to understand at times,
and bear no suggestion of being planned, rehearsed, or otherwise disingenuous.
Finally, it is undisputed that Lorenzo’s statements directly related to the
battery.
[14] Jones testified that he arrived home around 10:00 p.m., and the police report
indicates that the battery was reported at 1:19 a.m. Appellant’s App. Vol. II p.
77. While there is no direct evidence as to when the startling event occurred,
this factor is not dispositive. See Jenkins, 725 N.E.2d at 68. The trial court
could have reasonably concluded that the event was ongoing when Lorenzo
made the 911 call because Lorenzo can be heard screaming “Get away from
me” at a man who can be heard speaking to Lorenzo. State’s Ex. 1.
Additionally, because Lorenzo was still under the stress of the event, it is not
crucial to determine exactly how much time had passed. See Boatner v. State,
934 N.E.2d 184, 187 (Ind. Ct. App. 2010) (holding that, even though it was
unclear when battery occurred, a trial court could conclude from victim’s
emotional state that victim’s statements were made under the stress of the
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event). For these reasons, we cannot say the trial court erred in admitting the
statements.
2. Video Recording
[15] Like the 911 call, there is no question that the video recording falls under the
definition of hearsay; however, we cannot say that the trial court erred in
admitting these statements under the excited utterance exception. Lorenzo’s
statements on the admitted portion of the video recording largely mirror her 911
call in substance; the only difference is when they were made. Officer Killian
testified that he arrived at the scene within “two or three minutes” of the
dispatch and that he spoke with Lorenzo “two to three minutes” after arriving.
Tr. Vol. II p. 21, 49. Considering that Lorenzo was still upset when she spoke
to Officer Killian and that her statements related to the startling event, we
cannot say that the trial court erred in admitting the video recording as an
excited utterance. See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996)
(“[T]he central issue is whether the declarant was still under the stress of
excitement caused by the startling event when the statement was made.”).
II. Sufficiency of the Evidence
[16] Finally, Jones argues that there was insufficient evidence to convict him of
domestic battery. When reviewing challenges to the sufficiency of the evidence,
we do not reweigh the evidence or judge the credibility of the witnesses. Bond v.
State, 925 N.E.2d 773, 781 (Ind. Ct. App. 2010). Instead, we consider only the
evidence most favorable to the verdict and the reasonable inferences drawn
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therefrom, and we will affirm if the evidence and those inferences constitute
substantial evidence of probative value to support the verdict. Id. Reversal is
appropriate only when a reasonable trier of fact would not be able to form
inferences as to each material element of the offense. Id.
[17] To convict Jones of Class A misdemeanor domestic battery, the State was
required to prove beyond a reasonable doubt that he “knowingly or
intentionally” touched a “family or household member in a rude, insolent, or
angry manner.” I.C. § 35-42-2-1.3(a)(1). Jones does not argue that he did not
knowingly or intentionally touch Lorenzo in a rude, insolent, and/or angry
manner, nor does he dispute that Lorenzo’s statements are sufficient to establish
these elements. See, e.g., Young v. State, 980 N.E.2d 412, 423 (Ind. Ct. App.
2012) (holding in part that a non-testifying victim’s statement that the defendant
“had beaten her” was sufficient to support a conviction for Class A
misdemeanor domestic battery). It is also clear that Jones was a “family or
household member” because Jones testified that he and Lorenzo were dating
during the time in question. Tr. Vol. II p. 62, 67; Ind. Code § 35-31.5-2-
128(a)(2) (“An individual is a ‘family or household member’ of another person
if the individual: . . . (2) is dating or has dated the other person[.]”).
[18] Jones’s sole argument on appeal is that the State’s evidence fails to establish the
identity of Lorenzo’s attacker. However, Lorenzo stated during the 911 call
that her husband had beaten her, and the video recording established that she
believed that she and Jones were married. Additionally, Officer Killian testified
that no one was in the home besides Jones and Lorenzo and that Lorenzo
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identified Jones as her attacker. Tr. Vol. II p. 45. Accordingly, a reasonable
factfinder could infer from the evidence that Jones was the person Lorenzo
referred to in the 911 call and video recording. In other words, a reasonable
factfinder could infer that Jones was the person who battered Lorenzo. We find
the evidence sufficient to support this conviction.
[19] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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