934 N.E.2d 184 (Ind.App. 2010), 49A04-1002-CR-68, Boatner v. State

Docket Nº49A04-1002-CR-68.
Citation934 N.E.2d 184
Opinion JudgeMATHIAS, Judge.
Party NameDonte BOATNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyBarbara J. Simmons, Oldenburg, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, James E. Porter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelBAKER, C.J., and NAJAM, J., concur.
Case DateSeptember 22, 2010
CourtCourt of Appeals of Indiana

Page 184

934 N.E.2d 184 (Ind.App. 2010)

Donte BOATNER, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 49A04-1002-CR-68.

Court of Appeals of Indiana.

September 22, 2010

Page 185

Barbara J. Simmons, Oldenburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James E. Porter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Donte Boatner (" Boatner" ) was convicted in Marion Superior Court of Class A misdemeanor domestic battery. Boatner appeals and presents two issues, which we restate as: (1) whether the trial court erred in admitting hearsay evidence, and (2) whether the admission of hearsay evidence violated Boatner's confrontation rights.

We affirm.

Facts and Procedural History

On October 25, 2009, Marion County Community Corrections Deputy Ross Earles (" Deputy Earles" ) was working at a work release center in Marion County. Deputy Earles was seated in an unmarked patrol car near the work release center when he saw a woman turn the corner walking at a brisk pace. The woman, later identified as Boatner's girlfriend A.J., was not wearing any shoes and appeared to be disoriented. When A.J. made eye contact with Deputy Earles, she increased her pace and approached his patrol car. Deputy Earles then noticed that A.J. appeared to be pregnant and was crying.

Before Deputy Earles could even ask her a question, A.J. told him that " she had nowhere else to go." Tr. p. 13. A.J. said she was looking for help and had seen law enforcement officers near the work release center. She also told Deputy Earles that her boyfriend had " pushed her down and hit her on her face." Tr. p. 14. A.J. refused Deputy Earles' offer to call for medical assistance, but did tell him where her boyfriend, identified as Boatner, could be found.

Deputy Earles called for assistance, and IMPD Officer Jeffrey Kelley (" Officer Kelley" ) responded. Officer Kelley observed that the right side of A.J.'s face appeared to be swollen. Officer Kelley went to Boatner's

Page 186

residence and knocked on the door. Boatner opened the door, and Officer Kelley asked if he would step outside. Boatner started to close the door, but Officer Kelley reached in and grabbed Boatner's arm. This pulled Officer Kelley into the house, but he was able to pull himself and Boatner back onto the front porch, where Boatner was arrested.

The following day, the State charged Boatner with Class C felony battery, Class D felony intimidation, Class A misdemeanor domestic battery, and Class A misdemeanor resisting law enforcement. A bench trial was held on January 13, 2010. A.J. did not testify, and Deputy Earles and Officer Kelley were the only witnesses. At the conclusion of trial, the court found Boatner guilty of Class A misdemeanor domestic battery and not guilty of the other charges. The court proceeded to sentence Boatner to one year, with 162 days executed and 203 days suspended. Boatner now appeals.

I. Hearsay

Boatner first claims the trial court erred in overruling his hearsay objection to Deputy Earles' testifying that A.J. told him that Boatner pushed her down and hit her. The admission of evidence is within the sound discretion of the trial court, and we review the court's decision only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 959 (Ind.Ct.App.2008), trans. denied. The trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Jones v. State, 800 N.E.2d 624, 627-28 (Ind.Ct.App.2003) (citing Ind. Evidence Rule 801(c)). As a general rule, hearsay evidence is inadmissible. Id. (citing Ind. Evidence Rule 802). One exception to the hearsay rule is the " excited utterance" exception contained in Evidence Rule 803(2). This rule provides that " [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" is not excluded by the hearsay rule, even if the declarant is available as a witness. Ind. Evidence Rule 803(2).

In order for a hearsay statement to be admitted as an excited utterance, three elements must be present: (1) a startling event has occurred; (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. Jones, 800 N.E.2d at 627-28. This is not a mechanical test, and the admissibility of an allegedly excited utterance turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. Id. (citing Jenkins v. State, 725 N.E.2d 66, 68 (Ind.2000)). " The heart of the inquiry is whether the declarant was incapable of thoughtful reflection." Id. (citing Marcum v. State, 772 N.E.2d 998, 1001 (Ind.Ct.App.2002)). Although the amount of time that has passed is not dispositive, a statement that is made long after the startling event is usually less likely to be an excited utterance. Id. (citing Gordon v. State, 743 N.E.2d 376, 378 (Ind.Ct.App.2001)).

Boatner claims that A.J.'s statements were not excited utterances because " [t]he emergency had passed," and she therefore " had time and opportunity to reflect and deliberate regarding her statements to the deputy." Appellant's Br. at 7. We agree with the State, however, that the outcome of this case is controlled by our holding in Jones, supra. In Jones, a police officer responded to a 911 call of a battery on a young child. The child told...

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69 practice notes
  • 22 N.E.3d 629 (Ind.App. 2014), 49A05-1312-CR-621, Armstrong v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Noviembre 2014
    ...on a different ground. Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998). Consequently, Armstrong's claim is waived. See Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App. 2010). Waiver notwithstanding, we cannot say that Armstrong's arguments based upon the Sixth Amendment or hearsay warran......
  • Woods v. State, 110915 INCA, 27A05-1502-CR-61
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 Noviembre 2015
    ...not object to the admission of evidence on one ground at trial and seek reversal on appeal based on a different ground. Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App. 2010). To avoid waiver of the issue, Woods claims it was fundamental error for the trial court to admit the diagram. The......
  • 42 N.E.3d 172 (Ind.App. 2015), 27A05-1502-CR-61, Woods v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 Noviembre 2015
    ...not object to the admission of evidence on one ground at trial and seek reversal on appeal based on a different ground. Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App. 2010). To avoid waiver of the issue, Woods claims it was fundamental error for the trial court to admit the diagram. The......
  • 951 N.E.2d 870 (Ind.App. 2011), 49A02-1010-CR-1129, Lozano v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Agosto 2011
    ...as hearsay. Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010). As a general rule, hearsay is inadmissible unless the statement falls within one of the established hearsay exceptions. Yamob......
  • Request a trial to view additional results
69 cases
  • 22 N.E.3d 629 (Ind.App. 2014), 49A05-1312-CR-621, Armstrong v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Noviembre 2014
    ...on a different ground. Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998). Consequently, Armstrong's claim is waived. See Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App. 2010). Waiver notwithstanding, we cannot say that Armstrong's arguments based upon the Sixth Amendment or hearsay warran......
  • Woods v. State, 110915 INCA, 27A05-1502-CR-61
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 Noviembre 2015
    ...not object to the admission of evidence on one ground at trial and seek reversal on appeal based on a different ground. Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App. 2010). To avoid waiver of the issue, Woods claims it was fundamental error for the trial court to admit the diagram. The......
  • 42 N.E.3d 172 (Ind.App. 2015), 27A05-1502-CR-61, Woods v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 Noviembre 2015
    ...not object to the admission of evidence on one ground at trial and seek reversal on appeal based on a different ground. Boatner v. State, 934 N.E.2d 184, 187 (Ind.Ct.App. 2010). To avoid waiver of the issue, Woods claims it was fundamental error for the trial court to admit the diagram. The......
  • 951 N.E.2d 870 (Ind.App. 2011), 49A02-1010-CR-1129, Lozano v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 10 Agosto 2011
    ...as hearsay. Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010). As a general rule, hearsay is inadmissible unless the statement falls within one of the established hearsay exceptions. Yamob......
  • Request a trial to view additional results

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