Michael Anthony Jones v. State of Indiana (mem. dec.)

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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