Rogers v. State

• Citation: 814 N.E.2d 695
• Decision Date: 10 September 2004
• Docket Number: No. 49A04-0311-CR-593.,49A04-0311-CR-593.
• Parties: Joshua ROGERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

814 N.E.2d 695

Joshua ROGERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0311-CR-593.

Court of Appeals of Indiana.

September 10, 2004.

Jeffrey A. Baldwin, Baldwin & Dakich, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Joshua Rogers appeals his convictions after a bench trial of criminal recklessness as a Class D felony¹ and battery, as a Class A misdemeanor.² He raises four issues for appeal, which we consolidate and restate as:

1. Whether the trial court properly admitted hearsay testimony based on the excited utterance exception to the hearsay rule;

2. Whether the State presented sufficient evidence to convict Rogers of criminal recklessness; and

3. Whether the trial court erred when it sentenced Rogers.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On November 13, 2002, Rogers and Jason Faith³ were at Tiki Bob's, a bar in downtown Indianapolis. Faith had a brief encounter with Rogers in the men's restroom and headed toward the disc jockey to report the incident. Rogers approached Faith near the bar and hit him, causing Faith to fall to the cement floor face first, briefly lose consciousness, and cut his forehead.

Indianapolis Police were called and Officers Melanie Moore and Cedrick Young responded to the dispatch. Faith told Officer Moore he had seen Rogers in the restroom. Rogers was upset, hollering and kicking doors. Faith also informed Officer Moore that Rogers approached him in the bar area, threw him on the ground and caused him to lose consciousness. Rogers also gave a statement to Officer Young.

On November 14, 2002, the State filed charges against Rogers alleging one count of criminal recklessness as a Class D felony, one count of battery as a Class A misdemeanor, and one count of criminal mischief as a Class A misdemeanor.⁴ A bench trial was conducted on July 9, 2003. The court found Rogers guilty of criminal recklessness and battery, but not guilty of criminal mischief.

DISCUSSION AND DECISION

1. Admission of Faith's Statements

Rogers asserts the trial court improperly admitted testimony by Officer Moore regarding statements Faith made to her. The trial court admitted this testimony as an excited utterance.

The admission or exclusion of evidence is a matter left to the sound discretion of the trial court, and a reviewing court will reverse only upon an abuse of that discretion. Johnson v. State, 671 N.E.2d 1203, 1205 (Ind.Ct.App.1996), trans. denied 683 N.E.2d 578 (1997). Ind. Evidence Rule 801(c) explains hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible pursuant to Evid. R. 802. However, Evid. R. 803 enumerates exceptions to this rule.

Evid. R. 803(2) states that an excited utterance is not excluded by the hearsay rule even though the declarant is available as a witness. 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. Brown v. State, 683 N.E.2d 600, 603 (Ind.Ct.App.1997), reh'g denied, trans. denied 698 N.E.2d 1182 (Ind.1998); Evid. R. 803(2). Under this test, the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. 683 N.E.2d at 603. Further, the statement must be trustworthy under the facts of the particular case, and the trial court should focus on whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event. Id.

In the present case, the State offered the testimony of Officer Moore regarding statements Faith made within seven minutes after the police arrived at Tiki Bob's. Faith described the incident to Officer Moore and identified Rogers as the perpetrator. Officer Moore testified that when she arrived at the scene, she interviewed Faith and he stated he had found Rogers in the men's restroom where he was visibly angry and pounding and kicking doors. Faith told Officer Moore that Rogers had knocked him to a cement floor and he lost consciousness temporarily. Officer Moore testified Faith was bleeding from a cut on his forehead, his voice was shaky, and he was visibly upset and shaking all over. She also testified Faith was not completely unaware of what was going on around him and he was able to tell his side of the story.

In Gordon v. State, 743 N.E.2d 376, 378 (Ind.Ct.App.2001), 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 that night 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 it was reasonable to infer that this event caused the victim's distress. Id.

Evid. R. 803(2) further requires that the statement for which one seeks admission "was made by declarant while under the stress of excitement caused by the event." Officer Moore's description of Faith as "visibly shaking" and "on the verge of tears" suggests he was still under the stress of the event. Further, it is reasonable to infer that Officer Moore responded promptly to the dispatch after receiving it and she arrived in a timely manner such that, when she arrived, Faith was still greatly affected by the earlier event.

Our supreme court has held "[t]he amount of elapsed time between the incident and the utterance weighs in determining the ability of the witness to regain his or her composure and engage in reflective thought." Holmes v. State, 480 N.E.2d 916, 918 (Ind.1985). Thus, "the heart of an inquiry is whether the declarant was incapable of thoughtful reflection." Jones v. State, 800 N.E.2d 624, 627 (Ind.App.Ct.2003). Further, "[t]he amount of time that has passed between the event and the statement is relevant but not dispositive." Burdine v. State, 751 N.E.2d 260, 264 (Ind.Ct.App.2001) (citing Noojin v. State, 730 N.E.2d 672, 676 (Ind.2000)). "No precise length of time is required." Gordon, 743 N.E.2d at 378.

We next address the final element required to find the declarant's statement was an excited utterance. Evid. R. 803(2) requires that the statement at issue be related to the startling event. Faith's statement clearly was related to the facts and circumstances surrounding the startling event and this element is met.

Although we have concluded Faith's statements to Officer Moore fell under the excited utterance exception to the hearsay rule, that does not end our analysis, given a substantial change in Sixth Amendment jurisprudence announced by the United States Supreme Court in Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Rogers argues that under Crawford the admission of Faith's utterances violated Rogers' right to confront and cross-examine Faith regarding his statements given to law enforcement.

In Crawford, the Supreme Court held that when the prosecution seeks to introduce a "testimonial" out-of-court statement into evidence against a criminal defendant, the Confrontation Clause of the Sixth Amendment requires two showings: (1) the witness who made the statement is unavailable; and (2) the defendant had a prior opportunity to cross-examine the witness. Id. at ___, ___ U.S. at ___, 124 S.Ct. at 1374. In reaching this holding, the Court squarely criticized and overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Roberts had established that hearsay statements made by an unavailable witness were admissible against a criminal defendant if the statement fell "within a firmly rooted hearsay exception" or otherwise bore "particularized guarantees of trustworthiness." Id. at 66, 100 S.Ct. 2531. By contrast, Crawford held: "Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices." Crawford, ___ U.S. at ___, 124 S.Ct. at 1364.

The Court then undertook an analysis of the state of the common law in 1791, when the Sixth Amendment was adopted, to support its conclusion that the Framers intended the Confrontation Clause to allow the admission of out-of-court "testimonial" statements by an unavailable witness only if the defendant had a prior opportunity for cross-examination. Id. at ___-___, 124 S.Ct. at 1365-66. Thus, proper determination of whether an out-of-court statement is admissible against a criminal defendant is no longer solely governed by whether it falls within a recognized exception to the hearsay rule. Instead, if the statement was made in a situation where the defendant did not have an opportunity for cross-examination, the statement must be excluded if it is "testimonial." If a statement is "non-testimonial," its admission in a criminal trial is left "to regulation by hearsay law...." Id. at ___, 124 S.Ct. at 1370.

The majority in Crawford expressly declined to give a precise definition to the word "testimonial." Id. at ___, 124 S.Ct. at 1374. It did offer some guidance, however. "Testimonial" statements need not necessarily be given under oath; unsworn statements may also be "testimonial." Id. at ___, 124 S.Ct. at 1364-65. The Court gave the following examples of "testimonial" statements:

ex parte in-court testimony or its functional equivalent ... such as affidavits, custodial examinations, prior testimony that the defendant was

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