MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 20 2018, 10:05 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher J. Petersen Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maritta Freeman, April 20, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1704-CR-864
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Evan S. Roberts,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D01-1507-F5-164
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-864 | April 20, 2018 Page 1 of 6
[1] Maritta Freeman appeals her convictions for Battery With a Deadly Weapon,1
a Level 5 Felony; Domestic Battery,2 a Class A Misdemeanor; and Resisting
Law Enforcement,3 a Class A Misdemeanor. Freeman argues that the trial
court erred in excluding a statement that should have been admitted under the
excited utterance exception to the hearsay rule. Finding that the statement was
properly excluded, we affirm.
Facts
[2] On July 4, 2015, Freeman and her live-in boyfriend, David Wilson, got into an
argument, and Wilson called the police. Corporal Jeff Weaver spoke with
Wilson, who had a cut on his right arm. Corporal Weaver asked Wilson how
he obtained the injury, and Wilson did not answer the question directly, but
stated that he did not want to press charges. Additionally, Wilson showed
Corporal Weaver a broken window in the front door. Freeman, who was in the
living room, did not appear to have any injuries, but had blood on her arms and
shoulder, and above her right eye. Also in the living room, officers found a
kitchen knife with red stains.
1
Ind. Code § 35-42-2-1.
2
I.C. § 35-42-2-1.3.
3
Ind. Code § 35-44.1-3-1.
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[3] On July 8, 2015, the State charged Freeman with Level 5 felony battery with a
deadly weapon, Class A misdemeanor domestic battery, and Class A
misdemeanor resisting law enforcement.
[4] A jury trial took place on February 21, 2017, during which Wilson testified that
on the date of the incident, he had been locked out of the house because he had
forgotten his keys. To enter the house, he broke a window, cutting his arm in
the process. However, Corporal Weaver testified that there was no glass in
Wilson’s injury and Corporal Lee Brooks testified that there was no blood on
the broken window.
[5] Additionally, Wilson testified that after he entered the house, he used the
kitchen knife to cut off his blood-soaked shirt. As he walked through the house,
Freeman was sitting in the living room, talking to her daughter on the phone.
Wilson stated that Freeman was speaking “real loudly, mad, and angrily.” Tr.
Vol. III p. 26. The State objected on hearsay grounds to Wilson testifying about
the statement Freeman made to her daughter, and the trial court sustained the
objection. A hearing was conducted outside the presence of the jury, and
Freeman made an offer to prove. During the offer to prove, Wilson testified
that Freeman told her daughter, “Carmella, this fool done cut his self.” Id. at
53. The trial court confirmed its previous ruling and stated that there had been
no foundation laid for an excited utterance exception to the hearsay rule.
[6] On February 22, 2017, the jury found Freeman guilty on all counts. On March
20, 2017, the trial court sentenced Freeman to concurrent sentences of three
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years incarceration for battery with a deadly weapon and ninety days each for
domestic battery and resisting law enforcement. Freeman now appeals.
Discussion and Decision
[7] Freeman argues that Wilson’s testimony about her statement to her daughter
was erroneously excluded from evidence. Specifically, Freeman maintains that
the statement should have been admitted under the excited utterance exception
to the hearsay rule.
[8] In addressing this contention, we note that the admission and exclusion of
evidence falls within the trial court’s sound discretion, and we will reverse only
if the decision is clearly against the logic and effect of the facts and
circumstances before it. Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App.
2014). Further, we will not reweigh the evidence and will consider conflicting
evidence in a light most favorable to the trial court’s ruling. Collins v. State, 822
N.E.2d 214, 218 (Ind. Ct. App. 2005).
[9] The law regarding hearsay and excited utterances is 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 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
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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).
[10] Freeman argues that a startling event occurred when Wilson entered the house
with a bloody shirt. Accepting for argument’s sake that this qualifies as a
startling event, we must determine whether Freeman was under the stress of
excitement caused by the event when she made the statement at issue. The
only evidence offered in this regard was that Freeman was talking on the phone
“real loudly, mad, and angrily.” Tr. Vol. III. P. 26. When asked whether
Freeman had an opportunity to observe Wilson, Freeman testified, “No. I
really did not. I was on the phone with my daughter and I recall him coming
through the bedroom headed towards the kitchen.” Id. at 202. In other words,
even if the event was startling, there is no evidence that Freeman observed it.
Consequently, Freeman’s statement could not have been made while under the
stress of the event and the trial court did not err by finding that it does not fall
under the exception to the hearsay rule, thereby excluding it from evidence.
[11] Moreover, even if the trial court erroneously excluded Wilson’s testimony, the
error would have been harmless. Errors in the exclusion of evidence are to be
disregarded as harmless error unless they affect the substantial rights of the
defendant. Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct. App. 2004). While
Wilson was not permitted to testify as to Freeman’s statement, Freeman herself
testified about it. Tr. Vol. III p. 203. As a result, Wilson’s testimony was
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cumulative of other evidence that was properly admitted, and any error was
harmless.
[12] The judgment of the trial court is affirmed.
Kirsch, J., and Bradford, J., concur..
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