A jury convicted Roderick Wright of murder 1 аnd the trial court sentenced Wright to 60 years in prison. The State alleged that Wright fatally shot James Dillard. Wright raises three issues for review in this appeal:
L. Was Dillard's statement to a police officer identifying Wright as his assailant properly admitted under the excited utterance exception to the hearsay rule, Ind. Evidence Rule 803(2)?
II- Did the trial court err when it permitted the prosecutor to demonstrate for the jury, with Wright's assistance, the confrontation between Wright and Dillard that led to the shooting?
III Was Wright's cоnviction supported by sufficient evidence?
We affirm.
I. Factual & Procedural Background
The evidence at trial showed that on June 12, 1990 Roderick Wright and James Dillard drove to a house on Nash Road in South Bend for the purpose of selling cocaine to a prospective purchaser named Douglas. Wright, who had cocaine on his person at the time, was a known drug dealer. Dillard had helped locate buyers for Wright and was the driver that evening. Upon reaching what 'the two believed to be Douglas' house, Wright left the car, knockеd on the door, and was told by an unidentified man that no one named Douglas resided there. The time was between 8:30 and 9 PM.
Wright changed his account of the events of that night several times. Except as noted, these facts are Wright's testimony. When Wright returned to the wаiting vehicle, he found Dillard pointing a gun at him and demanding that Wright surrender the drugs. Wright pushed the gun away and it discharged. Dillard got out of the car and tried to chase Wright after the shooting, but fell over on his back. As Dillard lay on the ground, Wright fled the scene in Dillard's car and was aрprehended a few weeks later in Omaha, Nebraska. It is undisputed that Dillard sustained a chest wound during the confrontation and died early the next morning in a South Bend hospital.
In response to a police radio dispatch, Corporal Michael J. Nеmes of the St. Joseph County Police Department arrived at the scene at approximately 9:30 PM to investigate the shooting. Nemes found Dillard lying on his back, rolling on the ground, and in pain. Nemes got down on his knees and asked Dillard: "Who shot you?" Dillard, speаking quietly, replied: "Rod shot me and stole my car." Over Wright's objection, the trial court admitted Dillard's statement under the "excited utterance" exception to the hearsay rule. Because Dillard's condition did not appear to be life-threatеning, police did not take a formal statement from Dillard before he died. The jury convicted Wright *1346 of one count of murder. This appeal followed. This Court has jurisdiction under Indiana Appellate Rule 4(A)(7).
II. Excited Utterance
Hearsay is an out-of-court statement offered to prove the truth of its contents. Evid.R. 801(c). Hearsay is generally inadmissible unless the statement falls within one of the established hearsay exceptions. Evid.R. 802. In this case, the trial court admitted Dillard's statement to Officer Nemes-an important component of the State's case-under the exception provided by Evidence Rule 808(2) for excited utterance. Because the State offered Dillard's response as proof that Wright was the assailant, it is hearsay. We review evidence rulings for an abuse of discretion. Averhart v. State,
This is the first occasion for this Court to deal with the excited utterance exception under the Indiana Rules of Evidence promulgated in 1994. For a hearsay statement to be admitted as an excited utterance, thrеe elements must be shown: 1) a startling event occurs; 2) a statement is made by a declarant while under the stress of excitement caused by the event; and 8) the statement relates to the event. Evid.R. 803(2). Application of these criteria is not mechaniсal. Rather, under Rule 808(2), like its predecessor common-law doctrine, the heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. Teague v. State,
Wright makes two arguments to support his claim that Dillard's declaration was not an excited utterance. First, Wright asserts the statement is untrustworthy because it was given in response to a question. See-ond, Wright argues that Dillard had time to compose himself and concoct a false аnswer. Neither contention is persuasive.
A declaration does not lack spontaneity simply because it was an answer to a question. Whether given in response to a question or not, the statement must be unrehearsed and made while still under the strеss of excitement from the startling event. See generally 18 R. MinuERr, Inbpiana PRACTICE § 803.102 at 607 (2d ed. 1995) (citing cases). Here, Dillard lay prostrate suffering from what proved to be a life-ending injury when Nemes arrived at the seene. There are no signs in the record, and Wright does not argue, that Dillard interacted with anyone else before Nemes' arrival. The trial court could reasonably have concluded from these facts that Dillard was still under the stress of excitement from the shooting when Nemes arrived. While the form of any questiоning is also a factor in the admissibility equation, in this case Dillard's response was to Nemes' first and only question. Even though he had a duty to gather evidence, Nemes did not interrogate Dillard or otherwise suggest a particular answer.
Wright correctly notes that thе time between the startling event and the hearsay statement is one factor to be considered in determining admissibility as an excited utterance. While a declaration is generally less likely to be admitted if it is made long after the startling event, e.g., Lewis v. State,
*1347 Although the record is not entirely clear on the amount of time that elapsed between the time of the shooting and Nemes' arrival at the sсene, the evidence tended to show it was 30 minutes to one hour. During that window of time, Dillard lay on his back bleeding and in pain from the shooting. Assuming Dillard had as long as one hour to reflect, this was certainly enough time to conjure up a false story regarding the identity of his assailant. The question here, however, is whether Dillard was capable of this reflection and deliberation. The trial court could reasonably have concluded that Dillard was not. Being shot is a traumatic event, both physically and psychologically. Its startling effect, depending on the severity of the injury, can continue for hours or longer. Nemes found Dillard in exactly the same condition Wright had left Dillard: on his back, bleeding, and in pain. Under these facts, it was reasonable to infer that Dillard was still undеr the stress of the shooting when Nemes went to Nash Road to investigate the incident.
Webb, which was decided under a federal evidence rule
2
identical to the Indiana rule implicated in this case, involved facts and issues very akin to those present here. In Webb, the defendant shot a man six times in an alley. In respоnse to a radio dispatch, a police officer arrived on the scene minutes later. After asking the victim for his name, the officer inquired about the identity of the assailant. The victim, who was lying in the alley covered in blood, named the defendant. The victim was taken to a hospital and repeated this identification several times during his initial treatment. Webb,
The Indiana rule on excited utterance mirrors thе federal rule. See FEp.R.EviD. 803(2). In this case, there is no inconsistent Indiana body of law.
4
We have addressed in several decisions whether a shooting victim's identification of the assailant was properly admitted as an excited utterance under cоmmon law. In nearly every instance, we held the statement to be admissible. See Corder v. State,
III. Courtroom Demonstration
As his second claim of error, Wright argues that the trial court improperly allowed the prosecutor to demonstrate the physical sequence of events in which Dillard was shot. Wright asserts the conditions in the front seat of Dillard's car were not rea
*1348
sonably duplicated in the courtroom, but does not explain how this discrepancy-assuming one existed-prejudiced him or influenced the outcome of thе trial. We review the admissibility of courtroom demonstrations for an abuse of discretion. Lambert v. State,
In Lambert, we noted that several factors should be considered in assessing whether a demonstration was an abuse of discretion. Specifically, we look at any difficulty in preserving the demonstration for challenge on appeal; the degree of accuracy of the recreation; the complexity and duration of the procedure; other available means of рroving the same facts; and risk of unfairness to the defendant. Id. Applying those factors here, the demonstration was within the trial court's discretion. The exact physical positioning of Wright and the prosecutor are unclear from the record, but the dеmonstration sufficiently comported with the me-chanies of the confrontation that led to Dillard's death. The demonstration enabled Wright to show the jury exactly how the gun was pointed at him, and what Wright did to push the gun away. Simulating this exchange was not complеx, and the trial court ensured its accuracy by repositioning the prosecutor and Wright to resemble the seating arrangement in Dillard's car. It was the province of the jury to assess whether Wright's account was credible, and it found otherwise.
The trial court did not abuse its discretion when it allowed the prosecutor, with Wright's assistance, to demonstrate for the jury the shooting incident that occurred in the front seat of Dillard's car.
IV. Sufficiency of the Evidence
Finally, Wright argues that the jury's verdict was not supported by sufficient evidence. When evaluating this claim, we do not reweigh evidence or assess the credibility of witnesses. A conviction will be affirmed if probative evidence was presented at trial that would allow a reasonable jury to find the defendant guilty beyond a reasonable dоubt. Jordan v. State,
Instead of challenging the State's evidence, Wright's claim on this point amounts to disputes over the inferences (e.g., motive and state of mind) that may be drawn from the evidence, and a request that this Court reweigh parts of the State's cаse. This is not within our province on appeal. Accordingly, Wright's claim of insufficient evidence also fails.
Conclusion
The jury conviction of Roderick Wright for the murder of James Dillard is affirmed.
Notes
. Inp.Cope § 35-42-1-1 (1993).
. Fep R.Evip. 803(2).
. In Webb, the officer's exact question was: "Do you know who shot you?" Webb,
. One objective in adopting our rules of evidence was the development of a uniform body of law governing trials in both state and federal courts. In the absence of a unique Indiana policy, constitutional or statutory consideration, courts in this state should normally construe Indiana evidence rules consistently with the prevailing body of decisions from other jurisdictions interpreting the same rule.