Summary
holding that being attacked by another person is a startling event
Summary of this case from Steadmon v. StateOpinion
Court of Appeals Case No. 20A-CR-1822
06-01-2021
Michael Lee MCMILLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Chad A. Montgomery, Lafayette, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General Indianapolis, Indiana
Attorney for Appellant: Chad A. Montgomery, Lafayette, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General Indianapolis, Indiana
Mathias, Judge.
[1] Michael McMillen was convicted in Tippecanoe Superior Court of Level 5 felony battery and Class C misdemeanor possession of paraphernalia. McMillen appeals his battery conviction, arguing that the trial court abused its discretion when it admitted hearsay evidence over McMillen's objection at trial. Concluding that the trial court properly admitted the challenged evidence, we affirm.
Facts and Procedural History
[2] On February 3, 2020, McMillen was involved in an altercation with his mother, Leshia Beers ("Beers"), at their home in Lafayette, Indiana. McMillen punched and choked her. Beers and McMillen were the only two persons inside the home at the time of the altercation. Fearing Beers would call the police, McMillen fled the house. Within minutes of the attack, Beers saw a police officer outside her home, and she knocked on her window to get the officer's attention.
[3] Officer Neal Cain saw Beers in the window and approached the home. When Beers opened the door, she was crying and had several visible injuries: a large bump on her forehead with a bleeding cut in the middle of the bump; a bruised and bloody nose; heavy bruising under her left eye and cheek; significant bruising on her rib cage, one shoulder blade, her back, and her right bicep. Beers told Officer Cain that she and her son "got into it" and that he "abused" her. Ex. Vol., State's Ex. 19R. She also told the officer that McMillen hit her with his fist and choked her. Officer Cain recorded his conversation with Beers on his body camera. Officer Cain photographed blood stains he observed in the home, which included blood stains on Beers's bed pillows and sheets and on her couch. Ex. Vol., State's Exs. 7–13. [4] Later that day, Officer Cain returned to Beers's home to continue his investigation. The officer spoke to Beers and McMillen, who had returned to the home. The officer noticed that Beers had more bruising than he had observed earlier that day. When Beers spoke to Officer Cain for this second time, she changed her explanation of how she was injured. Tr. p. 42. Beers did not dispute McMillen's claim that he did not hit her. McMillen stated that he and his mother argued because she wanted him to leave the house. Id. at 52. McMillen told the officer that Beers fell in the bathtub but also claimed she fell the front porch. Id. at 51.
[5] During their conversation, Officer Cain saw a pipe in McMillen's pocket that the officer knew was commonly used to smoke illegal substances. The officer also observed that the inside of the pipe contained a white powdery residue.
[6] On February 7, the State charged McMillen with Level 5 felony battery, Class A misdemeanor battery, and Class C misdemeanor possession of paraphernalia. McMillen was charged with both Level 5 felony battery and misdemeanor battery because he had a prior battery conviction against Beers in 2018.
[7] McMillen's bifurcated jury trial commenced on August 6. Beers acknowledged that she and McMillen argued on the date she was injured, but she maintained that he did not hit her. Id. at 23–24. She stated she was injured because she had trouble maintaining her balance and ran into walls. Id. She remembered Officer Cain and that she spoke to him, but she had no independent recollection of the statement she gave to the officer. Id. at 24–25.
Notably, Beers admitted to taking Ambien and Xanax on the day McMillen attacked her. Tr. p. 32.
[8] The State introduced State's Exhibit 19, which was the recording from Officer Cain's body camera. Beers recognized the exhibit and testified that she had both previously watched the footage and signed the disc containing the recording. Id. at 29–30. The State offered the exhibit into evidence, and the trial court admitted it over McMillen's hearsay objection. The recording was played for the jury and, at McMillen's request, the trial court instructed the jury that it should not consider Officer Cain's statements as evidence.
[9] The jury found McMillen guilty of Class A misdemeanor battery and Class C misdemeanor possession of paraphernalia and proceeded to the second phase of trial—elevation of the Class A misdemeanor to a Level 5 felony based on McMillen's prior battery conviction. In support of the felony charge, the State offered into evidence documents establishing McMillen's prior conviction. McMillen objected, but the trial court admitted the documents because they were certified by the Tippecanoe County Court Clerk. McMillen testified and admitted that he had previously been convicted of battery against Beers. Id. at 103–05. The jury found McMillen guilty of Level 5 felony battery. McMillen was subsequently sentenced to an aggregate term of five years, with two years executed in the Department of Correction, two years in community corrections, and one year of supervised probation.
[10] McMillen now appeals, challenging the admission of (1) Beers's statements to Officer Cain and (2) the exhibit used to prove his prior battery conviction.
Standard of Review
[11] Our standard of reviewing claims of alleged evidentiary error is well settled: the decision to admit or exclude evidence is committed to the sound discretion of the trial court and will be reviewed only for an abuse of that discretion. Ballard v. State , 877 N.E.2d 860, 861–62 (Ind. Ct. App. 2007). "An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Housand v. State , 162 N.E.3d 508, 513 (Ind. Ct. App. 2020), trans. denied.
[12] However, "errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party." Hoglund v. State , 962 N.E.2d 1230, 1238 (Ind. 2012) ; Ind. Trial Rule 61. To determine whether an error in the admission of evidence affected the defendant's substantial rights, we consider the probable impact the evidence had on the jury. Shepherd v. State , 902 N.E.2d 360, 364 (Ind. Ct. App. 2009), trans. denied.
The Recording of Beers's Statements to Officer Cain
[13] McMillen argues that the trial court abused its discretion when, over his hearsay objection, it admitted into evidence Officer Cain's body-camera recording that included Beers's statements implicating her son. Hearsay is "a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Evidence including hearsay is generally inadmissible, subject to a handful of specific and limited exceptions. Cornell v. State , 139 N.E.3d 1135, 1143 (Ind. Ct. App. 2020), trans. denied ; Evid. R. 802 - 804. And we will affirm the trial court's hearsay ruling on any legal basis apparent in the record. Robinson v. State , 730 N.E.2d 185, 194 (Ind. Ct. App. 2000).
The State does not dispute that Beers's statements to Officer Cain were hearsay; rather, the State first contends that the trial court properly admitted Beers's recorded statements under the recorded recollection exception. Under this exception, the trial court can admit "[a] record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge." Ind. Evid. R. 803(5). While the recorded recollection exception applies when a witness has insufficient memory of the recorded event, the witness must still be able to "vouch for the accuracy of the prior statement." Kubsch v. State , 866 N.E.2d 726, 734 (Ind. 2007) (cleaned up); see also Williams v. State , 698 N.E.2d 848, 851 n.4 (Ind. Ct. App. 1998) (requiring "some acknowledgment that the statement was accurate when it was made").
[14] Here, Beers testified that she remembered Officer Cain coming to her home immediately after her altercation with McMillen and that she spoke to him. Tr. p. 20. But she stated that she did not remember anything she said to the officer until viewing the body-camera footage. Yet, even after watching the recording, Beers testified that she had no "independent recollection of the statements [she] gave to Officer Cain on that day." Tr. p. 25. Thus, Beers did not vouch for the accuracy of her statement to the officer; therefore, the recording cannot be properly admitted under the recorded recollection exception to the hearsay rule. [15] The State argues in the alternative that the recording was admissible as an excited utterance, which is
The State attempted to elicit testimony from Beers concerning the accuracy of her statement to Officer Cain. McMillen objected to the question, and the trial court sustained his objection. Tr. pp. 25–28. In its brief, the State claims that McMillen invited error by objecting to its question concerning the accuracy of Beers's statement. Because we resolve this issue on other grounds, we do not address the State's claim of invited error.
[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused is not excluded by the hearsay rule, even if the declarant is available as a witness. A hearsay statement may be admitted as an excited utterance where: (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. 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. The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. While 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.
Hurt v. State , 151 N.E.3d 809, 813–14 (Ind. Ct. App. 2020) (cleaned up).
[16] Here, Beers's statements to Officer Cain identifying McMillen as her assailant were admissible under the excited utterance exception. The evidence at trial established that, within minutes of being beaten by her son, Beers saw Officer Cain outside her home and waved him over to her house. When Beers opened the door to speak to the officer, she was crying and had several visible injuries. Tr. p. 39. The wound on her head was still bleeding, and the officer observed blood stains throughout the house. We agree with the State that Beers was under the stress of a startling event when she told Officer Cain that McMillen attacked her. Because Beers's recorded statements to the officer implicating McMillen were admissible under the excited utterance exception, the trial court did not abuse its discretion when it admitted those statements into evidence.
The Exhibit Proving McMillen's Prior Battery Conviction
[17] McMillen also challenges the admission of the exhibit documenting his 2018 battery conviction. Specifically, he argues that the exhibit should not have been admitted because the documents contain inadmissible hearsay.
[18] In the first phase of trial, the jury found McMillen guilty of misdemeanor battery. In the second phase of trial, to convict McMillen of Level 5 felony battery, the State had to prove that McMillen had a previous conviction for battery against the same victim, i.e., Beers. See Ind. Code § 35-42-2-1(g) ; Tr. p. 107.
[19] McMillen was convicted of Class A misdemeanor battery in Tippecanoe Superior Court in 2018. The State sought to prove the prior conviction through the charging information, probable cause affidavit, law enforcement investigative reports, the plea agreement, and sentencing order—all of which were certified by the Tippecanoe County Clerk. Ex. Vol., State's Ex. 26; see Evid. R. 902 (providing that certified copies of public records are self-authenticating). And because these records were certified by the county clerk, the trial court admitted them over McMillen's objection. Tr. p. 102.
McMillen correctly observes that the documents were not properly admitted under the exception for judgments of previous convictions, see Evid. Rule 803(22), because he was convicted of misdemeanor battery, which is not punishable by imprisonment for more than one year.
[20] The State argues that the documents were admissible under Evidence Rule 803(8), the public records exception to the hearsay rule. Under, the public records exception, a "record or statement of a public office" is not inadmissible hearsay if
(i) it sets out:
(a) the office's regularly conducted and regularly recorded activities;
(b) a matter observed while under a legal duty to [observe and] report; or
(c) factual findings from a legally authorized investigation; and
(ii) neither the source of information nor other circumstances indicate a lack of trustworthiness.
But the exception does not apply to
(i) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case;
(ii) investigative reports prepared by or for a public office, when offered by it in a case in which it is a party;
(iii) factual findings offered by the government in a criminal case; and
(iv) factual findings resulting from a special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
The public records exception to the rule against hearsay exists because we may assume that "public officials perform their duties properly without motive or interest other than to submit accurate and fair reports." Fowler v. State , 929 N.E.2d 875, 878 (Ind. Ct. App. 2010).
[21] We agree with McMillen that the probable cause affidavit and the law enforcement officer's investigation report do not fall within the public records exception and should not have been admitted. See Fowler , 929 N.E.2d at 878. However, the remaining documents—the charging information, plea agreement, and sentencing order—do fall within the exception: each is a record that is regularly maintained by the Tippecanoe County Clerk and fit squarely within the confines of Rule 803(8). The trial court did not abuse its discretion by admitting records establishing McMillen's prior battery conviction.
We also observe that, under Evidence Rule 201, a trial court may take judicial notice of "records of a court of this state." The records need not be from the court hearing the present action; records of any Indiana court are appropriate for judicial notice. Mitchell v. State , 946 N.E.2d 640, 644 (Ind. Ct. App. 2011), trans. denied. The trial court could have taken judicial notice of McMillen's prior conviction records pursuant to Rule 201. See Horton v. State , 51 N.E.3d 1154, 1160 (Ind. 2016) ; see also Brown v. State , 146 N.E.3d 1031, 1037-38 (Ind. Ct. App. 2020) (concluding that the trial court did not err when it took judicial notice that letters admitted during a jury trial were written by the defendant), trans. denied.
[22] But even if the trial court erred when it admitted the charging information, plea agreement, and sentencing order into evidence, any error is harmless. During the second phase of trial, McMillen testified and admitted that he had a 2018 conviction for misdemeanor battery against Beers. Tr. pp. 103–05. Thus, McMillen's own testimony was sufficient to support his Level 5 felony battery conviction.
Conclusion
[23] The trial court did not abuse its discretion when it admitted into evidence the body-camera footage containing Beers's statements that McMillen attacked her or the charging information, guilty plea, and sentencing order of McMillen's prior battery conviction. We affirm.
Riley, J., and Crone, J., concur.