Aundra L. Haralson v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Sep 15 2015, 8:27 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael D. Gross Gregory F. Zoeller
Lebanon, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aundra L. Haralson, September 15, 2015
Appellant-Defendant, Court of Appeals Case No.
06A01-1501-CR-25
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Matthew C.
Appellee-Plaintiff. Kincaid, Judge
Trial Court Cause No.
06D01-1410-F5-164
Brown, Judge.
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[1] Aundra L. Haralson appeals his convictions for battery resulting in bodily
injury to a pregnant woman as a level 5 felony and criminal confinement as a
level 6 felony. Haralson raises one issue which we revise and restate as whether
the evidence is sufficient to sustain his convictions. We affirm.
Facts and Procedural History
[2] On October 1, 2014, Boone County Sheriff’s Deputy John Ford and Zionsville
Police Officer Josh Chapman received a dispatch that there had been a
domestic incident and that the female was standing by to speak with law
enforcement. Officer Chapman arrived at a residence in a mobile home park
first and spoke with Brittany Shepherd, who was pregnant. He observed that
Shepherd was shaken up, appeared distraught and was crying, had red and
puffy eyes from crying and red marks across her neck, and was shaking and
unable to answer questions. When Deputy Ford arrived, Shepherd was
speaking with Officer Chapman, and Deputy Ford observed that Shepherd was
seated on wooden stairs smoking a cigarette, that her hand was shaking, and
that she was crying.
[3] Shepherd told the officers that she and Haralson had an argument and started
wrestling, she was thrown to the ground, Haralson pinned her down and was
on top of her, and that he punched her and placed his hands across her neck.
She said that the only way for her to escape was to run into her room, that
Haralson closed the door and would not let her leave, and that she grabbed her
phone and jumped out the window. At Deputy Ford’s request, Shepherd
completed a written voluntary statement. Haralson was later arrested.
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[4] The following day, Shepherd met with Officer Chapman and, at his request,
completed another written voluntary statement which was similar to her first
written statement regarding the altercation with Haralson. She also went to the
hospital for treatment. The emergency department patient records indicate that
Shepherd reported that she had been assaulted by her boyfriend the previous
day, she was thrown to the floor, punched or kicked in the right breast, and
choked. Shepherd complained primarily of pain over her right breast, and over
her right clavicle, of some pain in her throat from being choked, and of upper
back and lumbosacral pain.
[5] The State charged Haralson with Count I, battery resulting in bodily injury to a
pregnant woman as a level 5 felony; Count II, domestic battery as a class A
misdemeanor; Count III, domestic battery as a level 6 felony; Count IV,
strangulation as a level 6 felony; Count V, criminal confinement as a level 6
felony; and Count VI, resisting law enforcement as a class A misdemeanor.
Prior to trial, at the State’s request, the court dismissed Count III.
[6] During Haralson’s jury trial, the State presented the testimony of Deputy Ford
and Officer Chapman regarding their observations and Shepherd’s statements
consistent with the foregoing, the testimony of Shepherd, and evidence of
Shepherd’s injuries and the hospital records. Shepherd stated that she had an
argument with Haralson, the argument turned physical, and that Haralson did
not place his hands on her although she had told the officers that he had. She
testified that the statements she had given to police regarding Haralson holding
her on the ground and punching her were untrue, and that “[t]he only thing
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physical that happened between the two of us was in the midst of us wrestling
each other.” Transcript at 65. She testified “I fell myself,” that the bruise on
her chest was “[f]rom my hoodie,” and that “we were both defending ourselves,
I think.” Id. at 66-68. She also stated that law enforcement did not accompany
her to the hospital, and when asked if she told the hospital personnel any of the
things she had told the police officers about Haralson hitting her, she replied
“no.” Id. at 71. Without objection, Officer Chapman testified that Shepherd
told him at the scene that she and Haralson had an argument and started
wrestling, that she was thrown down to the ground, that Haralson pinned her
down and was on top of her, punched her, and placed his hands across her
neck, that she ran into her room and Haralson closed the door and would not
let her leave, and that she grabbed her phone and jumped out the window.
[7] The court also admitted, without objection, the patient records of Shepherd’s
visit to the hospital and photographs of her injuries. The jury found Haralson
guilty on Counts I, II, and V and not guilty on Counts IV and VI. The court
vacated Count II and sentenced Haralson to six years for his conviction under
Count I for battery resulting in bodily injury to a pregnant woman as a level 5
felony, and a concurrent two and one-half years for his conviction under Count
V for criminal confinement as a level 6 felony, to run consecutively to a
sentence under another cause.
Discussion
[8] The issue is whether the evidence is sufficient to sustain Haralson’s convictions.
When reviewing claims of insufficiency of the evidence, we do not reweigh the
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evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id.[9] Ind. Code § 35-42-2-1 governs the offense of battery and provides in part that “a
person who knowingly or intentionally [] touches another person in a rude,
insolent, or angry manner . . . commits battery, a Class B misdemeanor” and
that the offense is a level 5 felony if “[t]he offense results in bodily injury to a
pregnant woman if the person knew of the pregnancy.” Ind. Code § 35-42-3-3provides that “[a] person who knowingly or intentionally confines another
person without the other person’s consent commits criminal confinement” as a
level 6 felony. “A person engages in conduct ‘intentionally’ if, when he engages
in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).
“A person engages in conduct ‘knowingly’ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).
[10] Haralson argues that, “[i]n essence, Shepherd repudiated both of the written
statements she had made,” that “[t]he only evidence before the court was the
uncorroborated statements that were for impeachment only,” and that “[n]o
substantive evidence was before the court sufficient to sustain his convictions.”
Appellant’s Brief at 7. Haralson requests that this court reverse his convictions
and remand for a new trial.
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[11] The State maintains that the evidence is sufficient to sustain Haralson’s
convictions and that Haralson does not dispute that he knew Shepherd was
pregnant. It points to Shepherd’s statements that she was thrown to the ground,
that Haralson pinned her down, punched or kicked her chest and had his hand
across her neck, that she tried to leave but Haralson would not let her, and that
the only way for her to escape was to jump from her bedroom window. The
State also points to evidence that Shepherd had bruising on her jaw and red
marks across her neck. With respect to Haralson’s argument that the only
evidence was statements introduced for impeachment, the State argues that
many of Shepherd’s statements to police and her statements at the hospital were
admitted at trial without objection and that her statements to police were
admissible as excited utterances as, when the officers arrived at the residence,
Shepherd appeared distraught, her hands were shaking, she was crying, and her
eyes were red and puffy.
[12] With respect to Haralson’s assertion that there was no substantive evidence
supporting his convictions, we note that the State presented testimony regarding
Shepherd’s statements to the police officers when they arrived at the scene
following a call regarding a domestic incident, and her statements to medical
personnel at the hospital the following day. Specifically, Officer Chapman
testified that Shepherd stated to him at the scene that she and Haralson had
started wrestling, that she was thrown down to the ground, that Haralson
pinned her down and was on top of her, punched her, and placed his hands
across her neck, and that she ran into her room and Haralson closed the door
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and would not let her leave. Haralson did not object or otherwise challenge
Officer Chapman’s testimony and did not request a limiting admonition.
Haralson’s claims on appeal are waived. See Johnson v. State, 734 N.E.2d 530,
532 (Ind. 2000) (holding that the failure to object at trial waives any claim of
error and allows otherwise inadmissible hearsay evidence to be considered for
substantive purposes); Humphrey v. State, 680 N.E.2d 836, 840 (Ind. 1997)
(holding that Ind. Evidence Rule 105 “means what it says and that by failing to
request an admonition Humphrey has waived any error based on the absence of
an admonition”) (citing Ind. Evidence Rule 105 (“If the court admits evidence
that is admissible against a party or for a purpose--but not against another party
or for another purpose--the court, on timely request, must restrict the evidence
to its proper scope and instruct the jury accordingly.”)).
[13] Waiver notwithstanding, Shepherd’s statements to Officer Chapman following
the altercation and later to medical staff when seeking treatment at the hospital
constituted substantive evidence. Hearsay is generally inadmissible unless
admitted pursuant to a recognized exception. Ind. Evidence Rule 802. An
excited utterance is one of those exceptions. Palacios v. State, 926 N.E.2d 1026,
1030-1031 (Ind. Ct. App. 2010). An excited utterance is a statement “relating
to a startling event or condition, made while the declarant was under the stress
of excitement that it caused.” Ind. Evidence Rule 803(2). Application of this
rule is not mechanical, and the heart of the inquiry is whether the statement is
inherently reliable because the declarant was incapable of thoughtful reflection.
Palacios, 926 N.E.2d at 1031. The focus is on whether the statement was made
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while the declarant was under the influence of the excitement engendered by
the startling event. Id. The amount of time that has passed between the event
and the statement is not dispositive; rather, the issue is whether the declarant
was still under the stress of excitement caused by the startling event when the
statement was made. Mathis v. State, 859 N.E.2d 1275, 1279 (Ind. Ct. App.
2007). When Deputy Ford and Officer Chapman arrived, Shepherd appeared
shaken up and distraught, she was crying, her hand was shaking, her eyes were
red and puffy from tears, and she was initially unable to answer questions. The
statements she made to police were made a short time after the physical
altercation with Haralson. Her behavior and comments show that, at the time,
she was under the stress of excitement caused by the altercation with Haralson,
her statements related to the altercation, and they were admissible under Ind.
Evidence Rule 803(2).
[14] Additionally, statements made by persons seeking medical diagnosis or
treatment and describing past or present symptoms, pain or sensations and their
inception or general cause are admissible under Ind. Evidence Rule 803(4).
Even had Haralson objected to the admission of Shepherd’s statements to
hospital staff for treatment, the statements were admissible under Ind. Evidence
Rule 803(4). See Perry v. State, 956 N.E.2d 41, 50 (Ind. Ct. App. 2011)
(concluding that the statements a victim made to a nurse describing a physical
attack and identifying the defendant as the assailant were pertinent to the
diagnosis and treatment of the victim’s physical injuries and were admissible
under Ind. Evidence Rule 803(4)); see also Nash v. State, 754 N.E.2d 1021, 1025
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(Ind. Ct. App. 2001) (noting that “in cases such as the present one where injury
occurs as the result of domestic violence, which may alter the course of
diagnosis and treatment, trial courts may properly exercise their discretion in
admitting statements regarding identity of the perpetrator”), trans. denied.
[15] The evidence before the jury established that Haralson and Shepherd, who was
pregnant, had a verbal argument which became physical, that they wrestled,
and that Shepherd was thrown to the ground. The evidence further shows that
Haralson pinned Shepherd down and was on top of her, punched her, and
placed his hands across her neck. After Shepherd ran into her room, Haralson
closed the door and would not let her leave. Shepherd jumped out the window,
and the police were contacted. The jury heard the testimony of the officers
regarding Shepherd’s statements and her testimony regarding the altercation,
and the witnesses were cross-examined. The patient records, including
Shepherd’s report of the cause of her injuries, as well as photographic evidence
of her injuries, were admitted into evidence and before the jury.
[16] Based upon the record, we conclude that evidence of probative value was
presented from which the jury could find beyond a reasonable doubt that
Haralson committed the offenses of battery resulting in bodily injury to a
pregnant woman as a level 5 felony and criminal confinement as a level 6
felony.
Conclusion
[17] For the foregoing reasons, we affirm Haralson’s convictions.
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[18] Affirmed.
Riley, J., and Altice, J., concur.
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