809 N.E.2d 945 (Ind.App. 2004), 52A02-0308-CR-693, Hammon v. State

Docket Nº:52A02-0308-CR-693.
Citation:809 N.E.2d 945
Party Name:Hershel HAMMON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case Date:June 14, 2004
Court:Court of Appeals of Indiana

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809 N.E.2d 945 (Ind.App. 2004)

Hershel HAMMON, Appellant-Defendant,


STATE of Indiana, Appellee-Plaintiff.

No. 52A02-0308-CR-693.

Court of Appeals of Indiana

June 14, 2004.

Rehearing Denied August 9, 2004.

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[Copyrighted Material Omitted]

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Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


BARNES, Judge.

Case Summary

Hershel Hammon appeals his conviction for domestic battery, a Class A misdemeanor. We affirm in part and reverse in part.


The issues before us are:

I. whether the trial court erred by admitting into evidence statements made by the victim to the arresting officer; and

II. whether the trial court erred in allowing Hammon's $300.00 cash bond to be applied to administrative fees and to the costs of his representation by a public defender.


The relevant facts most favorable to the conviction follow. On February 26, 2003, Peru police officer Jason Mooney was dispatched to 590 East Fifth Street. Upon his arrival, Officer Mooney approached the residence and spoke with A.H., who he thought was timid and frightened. Officer Mooney inquired of A.H. whether there "was a problem and if anything was going on," to which A.H. responded, "No." Tr. p. 8. However, when he entered the house, Officer Mooney observed that the living room was in a state of disarray with broken objects littering the floor. Id. at 9-10.

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Hammon told Officer Mooney that he and A.H. had argued but that it had been resolved and had "not become physical." Id. at 11.

Officer Mooney then separated Hammon from A.H., at which time A.H. told him that Hammon had physically attacked her by throwing her down into the glass from a shattered heater and that he punched her twice in the chest. Id. at 12. Officer Mooney did not notice any visible physical injuries to A.H. However, A.H. did indicate that she was in some pain as a result of the attack.

During the time when Officer Mooney separated Hammon from A.H., Hammon attempted to enter the room where Mooney was speaking with A.H. When Hammon approached, A.H. became quiet and seemed afraid. A.H. also completed a battery affidavit.

Hammon was arrested and charged with domestic battery. A bench trial was conducted on May 9, 2003. A.H. did not testify, but Officer Mooney testified regarding A.H.'s statements. Hammon was convicted of domestic battery, a Class A misdemeanor. Hammon appeals the conviction.


I. Admissibility of Victim's Statements

Hammon first challenges the trial court's admission of statements made by A.H. to Officer Mooney and argues that the officer's testimony relaying the statements was not admissible under the excited utterance exception to the hearsay rule. 1 We review questions regarding the admissibility of evidence only for a manifest abuse of discretion resulting in an unfair trial. Williams v. State, 782 N.E.2d 1039, 1045 (Ind.Ct.App.2003).

Pursuant to the Indiana Rules of Evidence, "hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Certain exceptions to this rule may apply, including the excited utterance exception that is at issue in this case. Indiana Evidence Rule 803(2) defines an "excited utterance" as "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Indiana courts have previously distilled this rule into three distinct elements that the party who seeks admission must prove: "(1) a startling event occurs; (2) a statement was made by a declarant while under the stress of excitement caused by the event; and (3) the statement relates to the event." Williams, 782 N.E.2d at 1046.

Officer Mooney testified that he responded to a domestic disturbance call and that when he encountered the victim, she seemed "frightened" and "timid." Tr. pp. 5, 7-8. Officer Mooney further testified that when he entered the residence, the living room was in "disarray," and he observed broken glass on the floor in front of a glass heating unit that appeared to be broken with flames coming out the front of the unit. Id. at 10. Officer Mooney then testified that when he removed Hammon from the room, A.H. informed him that she

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and Hammon had been engaged in an argument and that Hammon had broken things in the living room. Officer Mooney testified that A.H. told him that Hammon threw her down into the glass from the heater and that he punched her twice in the chest. Id. at 12. It is with the admission of this final statement that Hammon takes particular issue.

The facts of this case are similar to those in Gordon v. State, 743 N.E.2d 376, 378 (Ind.Ct.App.2001). In Gordon, police responded to a domestic disturbance call and observed a woman who was "visibly shaking" and whose voice was "crackling and shaky." Id. The woman described to police the events that occurred the night of the battery, and the officer recounted her statements at trial. We held that the officer's testimony was correctly admitted into evidence under the excited utterance exception to the hearsay rule because the officer's observations illustrated that the victim was still upset by the startling event she described to the officer and that it was reasonable to infer that this event caused the victim's distress. Id. at 378.

We reach the same conclusion in this case. A startling event occurred at the residence before police arrived...

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