Kevin MATHIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 49A02-0604-CR-316.
Court of Appeals of Indiana.
Jan. 18, 2007.
859 N.E.2d 1275
As there clearly was no contact between the parties, we find that
Furthermore, our interpretation is in line with the legislative intent in enacting this statute. As its purpose is to protect both citizens and police officers from harm during an encounter where an officer is attempting to use his official authority over the citizen to arrest, stop, or issue a summons, here, any possibility of danger was non-existent as thеre was no contact between the officer and the citizen. Accepting Maynard‘s invitation to construe the word “issue” to mean that each time an officer writes a probable cause affidavit and issues a summons, the officer must be in uniform with a badge, regardless of any contact between the officer and citizen, would not effectuate the intent of the legislаture. Accordingly, based on the evidence before us, we conclude that Marshal Jefford did not violate
CONCLUSION
Based on the foregoing, we find that the trial court properly denied Maynard‘s Motion to Dismiss.
Affirmed.
KIRSCH, C.J., and FRIEDLANDER, J., concur.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BAKER, Judge.
Appellant-defendant Kevin Mathis appeals from his convictions for Battery,1 a class A misdemeanor, and Interference with the Reporting of a Crime,2 a class A misdemeanor following a bench trial. Specifically, Mathis argues that the trial court erred in admitting the testimony of a police officer and that the evidence was insufficient to suрport his convictions. Concluding that the trial court‘s admission of the police officer‘s testimony was not re-
FACTS
On January 2, 2006, Mathis was living with his girlfriend, Janet Cook. Mathis sent Cook out to do laundry, and when she returned around 11:15 p.m., Mathis was drunk, and the two began to argue. As they were arguing in the kitchen, Mathis told Cook to get out of his house, but Cook refused. Mathis grabbed some of Cook‘s boxes to throw out of the house, and Cook tried to call 911 on her cell phone. Mathis then pushed Cook against the back door, yelled at her, and tried to take Cook‘s phone. Mathis‘s fourteen-year-old son went into the kitchen and pulled Mathis off Cook. When Cook ran into the living room to сall 911, Mathis followed her, pushed her over the arm of the sofa, called her names, and told her to get out of the house. Cook, who was lying on her back on the sofa with Mathis on top of her, struggled with Mathis for ten minutes as she tried to call 911. Mathis grabbed Cook‘s hand that was holding the phone with his one hand and grabbed her hair with his other hand, and when Mathis‘s son tried to pull Mathis off Cook, Mathis hit Cook оn the head with his fist. Once freed from Mathis, Cook, who had been arguing with Mathis for one hour, took her dogs and ran out of the house.
Around 12:30 a.m., Indianapolis Police Officer Christopher Kunz received a dispatch regarding a “report of a disturbance” at Mathis‘s house and arrived on the scene within fifteen minutes. Tr. p. 10. Mathis was not at the house when Officer Kunz arrived, but another person was there with Cook. Officer Kunz immediately talked with Cook, who was “very upset,” “emotional,” crying, and had her clothing in disarray. Id. at 6. According to Officer Kunz, Cook “calmed down” after his arrival and “felt safer when she was able to gain control of her emotions.” Id. at 9. Cook then told Officer Kunz that Mathis hit her in the head and prevented her from calling 911, but Officer Kunz did not see any noticeable injuries on Cook.
The State charged Mathis with class D felony domestic battery, class A misdemeanor battery, and class A misdemeanor interference with the reporting of a crime. During a bench trial that commenced on March 13, 2006, Officer Kunz testified that he received a dispatch regarding a domestic disturbance, arrived on the scene approximately fifteen minutes after reсeiving the dispatch, and encountered Cook, who was “very upset and emotional[,]” “was crying[,]” and had her clothing “in disarray.” Id. at 6, 9. When Officer Kunz attempted to testify regarding what Cook told him when he arrived on the scene, Mathis objected based on hearsay. The State responded that Officer Kunz‘s testimony was admissible based upon the excited utterance exception tо hearsay. The trial court overruled Mathis‘s objection and specifically stated:
I am going to allow [Officer Kunz‘s] testimony. I will find there was a relatively brief period of time between the report of the dispatch and the time the officer arrived. He spoke with the alleged victim immediately and she was very upset and crying, her clothing was disheveled and in disarray which led the officer to believe there had been an event that had caused the distress and that she was still under the impact so I will allow the testimony.
Id. at 12. Officer Kunz then testified regarding his interview with Cook. Cook also testified at the bench trial, and she testified that Mathis had hit her and prevented her from calling 911.
DISCUSSION AND DECISION
I. Admission of Evidence
Mathis first argues that the trial court erred by admitting Officer Kunz‘s testimony regarding what Cook told him because Cook‘s statements to the officer were inadmissible hearsay and did not qualify as an excited utterance.3
Because the admission and exclusion of evidence falls within the sound discretion of the trial court, we review the admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.2002). An abuse of discretion occurs “where the decision is clearly against the logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).
Hearsay is “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.”
Mathis contends that Officer Kunz‘s testimony “does not fall within this [excited utterance] exception because it did not occur so close in time to be made while the declarant [Cook] was under the stress of excitement caused by the event.” Appellant‘s Br. p. 4. However, “[t]he amount of time that has passed between the event and the statement is not dispositive.” Taylor v. State, 697 N.E.2d 51, 52 (Ind. 1998). The issue is “whether the declarant was still under the stress of excitement caused by the startling event when the statement was made.” Id. Mathis argues that Cook was not under the stress of excitement because Cook left the house to call the police, returned to the house
The State contends that the excited utterance hearsay exception was met because Cook was still under the influence of the startling event despite Officer Kunz‘s testimony that Cook began to calm down uрon his arrival to the house. The State also argues that even if Officer Kunz‘s testimony constituted inadmissible hearsay, the admission of such was harmless error because Officer Kunz‘s challenged testimony was cumulative of Cook‘s testimony.
We need not address Mathis‘s argument whether Officer Kunz‘s testimony fell under the excited utterance exception to the hearsay rule because аny alleged error regarding the admission of the testimony was harmless. Our Supreme Court has determined that errors in the admission of evidence, including hearsay, are to be disregarded as harmless unless they affect the substantial rights of a party. Montgomery v. State, 694 N.E.2d 1137, 1140 (Ind.1998); see also
Here, Officer Kunz‘s testimony that Mathis hit Cook and prevented her from calling 911 was merely cumulative of Cook‘s own testimony regarding what Mathis did to her during their argument. Indeed, Cook testified that during the course of their argument, Mathis pushed her against a door, pushed her on the sofa and laid on top of her, grabbed her hair, hit her in the head, and prevented her from cаlling 911 on her cell phone. Tr. p. 20-24. Cook further testified that Mathis‘s actions caused her to “hurt” and “kinda see[] stars for a second.” Id. at 24. Clearly, Officer Kunz‘s testimony was merely cumulative of Cook‘s testimony, and Mathis‘s conviction was supported by substantial independent evidence of guilt as to satisfy us that there is no substantial likelihood that the alleged hearsay evidence contributed to the conviction. Thus, the trial court‘s admission of the hearsay testimony was harmless error. See, e.g., Lander v. State, 762 N.E.2d 1208, 1214 (Ind.2002) (finding that the improper admission of the hearsay statements was harmless error); D.G.B. v. State, 833 N.E.2d 519, 527 (Ind.Ct.App.2005) (same).
II. Sufficiency
Mathis next argues that the evidence is insufficient to support his convictions for battery and interference with the reporting of a crime. Specifically, Mathis argues that the evidence is insufficient because without Officer Kunz‘s testimony, the sole evidence presented regarding the crimes was from Cook.
When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995). Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists еvidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
A. Battery
Mathis argues that the evidence is insufficient to support his conviction for battery because Cook‘s testimony at trial was “equivocal and contradictory.” Appellant‘s Br. p. 5. Specifically, Mathis contends that Cook‘s testimony at trial regarding the reason why she and Mathis argued differed from the reason that was contained in the probable cause affidavit.
The battery statute,
Initially, we observe that the reasоn for the argument that led to Mathis battering Cook is not an element of the crime. At trial, Cook testified that Mathis pushed her against a door, pushed her on the sofa and laid on top of her; grabbed her hair, and hit her in the head. Tr. p. 20-24. Cook further testified that Mathis‘s actions caused her to “hurt” and “kinda see[] stars for a second.” Id. at 24. This was sufficient evidence to show that Mathis knowingly or intentiоnally touched Cook in a rude, insolent, or angry manner and that it resulted in bodily injury to Cook pursuant to
B. Interference with the Reporting of a Crime
Mathis contends that the evidence is insufficient to support his conviction for interference with the reporting of a crime because “[t]here is no evidence that the cell phone of [Cook] was ever taken away from her.” Appellant‘s Br. p. 6. In other words, Mathis does not challenge the element that he had an intent to commit or conceal a crime but, instead, challenges the evidence used to establish the element that he interfered with or prevented Cook from using a 911 emergency telephone system.
The interference with the reporting of a crime statute,
Cook testified that when she was in the kitchen attempting to call 911, Mathis pushed her against the back door, yelled at her, and tried to take her phone. Tr. p. 20-21. Cook also testified that when she
The judgment of the trial court is affirmed.
SHARPNACK, J., concurs.
KIRSCH, C.J., dissents with opinion.
KIRSCH, Chief Judge, dissenting.
I respectfully dissent.
The trial court admitted the officer‘s testimоny as fitting within the excited utterance exception to the hearsay rule. I believe that it was error to do so.
Here, between one hour and one hour and forty-five minutes elapsed between the time that altercation here at issue ended and Mathis left the house and the time that the prosecuting witness made the challenged statement to the police officer. Although the prosecuting witness was “very upset,” “crying” and “very emotional” when Officer Kunz arrived, she “‘calmed down’ after his arrival and ‘felt safer when she was able to gain control of her emotions.‘” Opinion, p. 1278. It was after “calming down” and “gaining control of her emotions” that the prosecuting witness made the statements to the officer.
A witness who has “calmed down” and “gained control” of her emotions is no longer under the stress of the startling event and has had time for rеflection and deliberation. Accordingly, I believe it was error to admit the challenged statement under the excited utterance exception.
My colleagues, without reaching the issue of whether the statement qualified as an excited utterance, conclude that its admission was harmless error because it was cumulative of other evidence. Like many domеstic disputes, this case turns upon the credibility of the prosecuting witness and the defendant. It is a case of “She said/he said.” Although the police officer‘s evidence is cumulative of the testimony of the prosecuting witness, it bolsters that testimony which is not supported by any independent evidence. It also contradicts the defendant‘s testimony and casts doubt upon it.