Court of Appeals of Indiana | Memorandum Decision 19A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this 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.
A TTORNEY S FOR A PPELLANT Valerie K. Boots Marion County Public Defender Agency Indianapolis, Indiana Barbara J. Simmons Batesville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Larry D. Spivey Jr. , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. July 14 , 2020 Court of Appeals Ca se No. 19A

- CR

- 1687 Appeal from the Marion Superior Court The Honorable Barbara C. Crawford , Judge Trial Court Cause No. 49G01

- 1712

- MR

- 48920

Kirsch , Judge .Court of Appeals of Indiana | Memorandum Decision 19A

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[2] Larry D. Spivey , Jr. (“Spivey”) was convicted of murder 1 following a jury trial. Spivey now appeals his convicti on raising the following restated issues:
I. Whether the trial court abused its discretion in excluding Spivey ’s statement; and
II. Whether the evidence presented at trial was sufficient to support his conviction for murder

.
[3] We affirm. 

### Facts and Procedural History
[4] Spivey lived with his parents at an apartment complex in Indianapolis , Indiana

. Tr. Vol. II at 104, 146. Spivey ’s uncle, Albert Ford (“Ford”) , had moved in with the Spivey family without paying rent before the shooting giving rise to this
case . Id. at 154

- 55. Spivey’s other uncle , Marvin Hutcherson (“Hutcherson”), and some extended family members also lived in the same complex but in different apartments. Id. at 146.

[5] On December 20, 2017, Spivey and Ford argued outside of the complex ; b oth men had been drinking

. Id. at 150 , 154

. Spivey’s father, Larry Spivey, Sr. (“Larry Sr.”) , Hutcherson and Spivey’s girlfriend were also present during the

a rgument. Id. at 150

- 52. Ford had been swearing loudly and called Spivey’s girlfriend names. Id. at 154

- 55. He then walk ed away , and Spivey shot him in

1 See Ind. Code § 35

- 42

- 1

- 1(1).Court of Appeals of Indiana | Memorandum Decision 19A

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the back

. Id . at 151

- 52, 174. Hutcherson heard the single gunshot , turned around and saw Ford on the ground

. Id. at 152. Larry Sr. walked over to Ford’s body and said , “ H e’s dead.” Id. at 152

- 53, 157. Hutcherson decided to leave and got into his minivan. Id. at 153

- 54

. Spivey accompanied him. Id.

[6] Multiple people called 911 after the shooting , and Indianapolis Metropolitan Police Department (“IMPD”) Officer Eric Parrish (“Officer Parrish”) was dispatched to the scen e . Id

. at 103

- 104, 113. When he arrived, he saw Ford was lying on the ground bleeding heavily from his mouth

. Id. at 107. A neighbor was attempting to apply pressure to Ford’s wound with a towel. Id. Officer Parrish checked for a pulse in Ford’s wrist but did not detect one. Id

. at 108. Roughly a minute later, the para medics arrived and declared Ford dead

. Id. at 109. Dawn Massey lives in the same complex in which the shooting happened. Id . at 237. She identified Spivey as the shooter. Id. at 238; State’s Ex. 38.

[7] On December 22 , 2017, Spivey was arrested in Chicago, Illinois. Tr. Vol. II at 241. Spivey was interviewed by IMPD Detective David Miller (“Detective Miller”) at a police sta tion in Chicago. Id. at 242. After being advised of his rights, Spivey waived his Miranda rights and made a videotaped statement to Detective Miller. Id. at 242

- 54; State’s Exs. 39

- 41. At trial, the jury watched the video and was provided with a transc ript of Spivey’s statement. Tr. Vol. II at 242

- 48 ; State’s Exs. 41

- 42. In his statement, Spivey first said that Ford had “tried to go for [his] gun” and “pulled it out . . . .” State’s Ex. 42 at 95. Spive y claimed that the trigger was accidently pulle d during the tussle. Id. Detective Miller challenged Spivey , saying that he knew this was not the truth

. SpiveyCourt of Appeals of Indiana | Memorandum Decision 19A

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admitted that he had fired the weapon as Ford was walking away , but claimed that he was only “aiming at the ground” to scare Ford. Id. at 101, 104

- 05. Spivey said that he had “clouded judgment” from the alcohol , I d. at 119 , and insisted repeatedly that he was not aiming at Ford when he fired the gun

. Id

. at 116

- 18.

[8] On December 22, 2017, the State charged Spivey with murder. Appellant ’s Conf. App. Vol. II at 22. A jury trial was held on June 3 and 4, 2019. Id . at 7

- 8. F orensic pathologist John Cavanaugh (“Cavanaugh”) testified that Ford had a round symmetric circle where the bullet had entered his back

. Tr. Vo l. II at 177; State’s Ex. 28. Cavanaugh stated that in most cases where the bullet ricocheted off something, the entry wound would be ragged, and the bullet would be deformed due to the altered trajectory. Id. at 178, 184. He also testified that ricochets are not common, and if Ford was standing upright, the ricochet ed bullet would have more likely struck the lower part of Ford’s body. Id. at 184

. Forensic scientist Michael Putzek (“Putzek”) testified that he would have expected to see flat spots on the sides of the bullet or a flattened nose if the bullet had ricocheted. Id. at 204, 214; State’s Ex. 31, 34

- 36. Putzek stated he did not see any indication that the bullet in Ford’s body had st r uck a hard surface. Tr. Vol. II at 214.

[9] At trial, Spivey attempted to present evidence about what he ha d said to Hutcherson right after the shooting. Id . at 157

- 62. T he State objected on hearsay grounds, and Spivey made an offer of proof . T he t rial c ourt permitted him to make a record of the testimony out side the presence of the jury. Id . atCourt of Appeals of Indiana | Memorandum Decision 19A

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157

- 58. In this offer of proof, Hutcherson said that immediately after Ford was shot, Larry Sr. walked to Ford’s body on the sidewalk and said that he was dead. Id. at 158

- 59. Upon hearing those words, Spivey started crying and said that he “ didn’t mean to shoot [his] uncle” and was “shooting at the sidewalk.” Id. at 160.

[10] After the offer of proof was made, the State argued that the hearsay should not be admitt ed because it was self

- serving. Id. at 161. Spivey’s counsel argued that Hutcherson’s testimony should be admitted under the first three exceptions to the rule against hearsay in Indiana Rule of Evidence 803(1)

- (3) , which are the present sense impression exception, the exited utterance exception, and the then

- existing mental, emotional, or physical condition exception

. Id. at 160

- 61. The trial court ruled that the testimony was self

- serving and sustained the State’s objection. Id. at 162.

[11] The jury found Spivey guilty of murder. Tr. Vol. I I I at 53 ; Appellant’s Conf. App. Vol. II at 16

- 17

. The trial court sentenced Spive y to forty

- five years in the Indiana Department of Correction. Appellant’s Conf. App. Vol. II at 16

- 17. Spivey now appeals

. 

### Discussion and Decision

I. Exclusion of Evidence
[12] Spivey appeals the trial court’s exclusion of Hutcherson’s testimony concerning Spiv ey’s out

- of

- court statement . Spivey contends that the testimony would fall within the first three of the exceptions to the rule against hearsay , and that theCourt of Appeals of Indiana | Memorandum Decision 19A

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trial court abused its discretion in excluding it from evidence. Ind. Evid ence Rule 803. Furthermore, Spivey asserts that the exclusion deprived him of his constitutional right to present a defense to the mens rea element of the offense and that the error of excluding the testimony was not harmless beyond a reasonable doubt

. Appel lant’s Br

. at 10

- 11.

[13] A trial court has broad discretion in ruling on the admissibility of evidence, and we disturb those rulings only upon an abuse of that discretion. Chambless v. State , 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied . “An abus e [of discretion] occurs only where the trial court’s decision is clearly against the logic and the effect of the facts and circumstances.” Id. There is a strong presumption that the trial court properly exercised its discretion. Id. In conducting our review, we only consider evidence that favors the trial court’s ruling and uncontested evidence that favors a defendant. Id.

[14] Hearsay is “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in ev idence to prove the truth of the matter asserted.” Evid. R

. 801(c). Hearsay is not admissible except as provided by law or by other court rules ; h owever, a trial court may admit hearsay that qualifies as a p resent s ense i mpression, an e xcited u tterance, or a t hen

- e xisting
s tate of mind

. See Evid. R

. 802, 803 (1)

- ( 3 ). The focus of the analysis for all three exceptions is whether the statement was inherently reliable an d therefore trustworthy. See Gordon v. State , 742 N.E.2d 376, 378 (Ind. Ct. App. 2001).Court of Appeals of Indiana | Memorandum Decision 19A

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[15] At trial, Spivey attempted to introduce into evidence a statement that he made to Hutcherson shortly after the shooting. Tr. Vol. II at 158

- 60. When the State objected on hearsay ground s , the trial court excu sed the jury and permitted Spivey to make an offer of proof. Id. Hutcherson testified that as “soon as [the shooting] happened,” Larry Sr. walked over t o Ford and called out that “he’s dead.” Id. at 160. When Spivey heard that Ford was dead, he began t o cry and said: “I didn’t mean to shoot my uncle. I was shooting at the sidewalk.” Id. The trial court ruled that Spivey’s statement to Hutcherson was self

- serving and excluded it from evidence. Id. at 162.

[16] Spivey concedes that the testimony he attemp ted to introduce at trial was hearsay. Appellant’s Br. at 24. However, Spivey argues that the statement should have been admitted under the p resent s ense i mpression exception. Id. at 25 ; Evid

. R

. 80 3 (1). H earsay testimony may be introduced as evidence under the p resent s ense i mpression exception when three requirements are met: “ (1) it must describe or explain an event or condition; (2) during or immediately after its occurrence; and (3) it must be based u pon the declarant’s perception of the event or condition.” Minor v. State , 36 N.E.3d 1065, 1070 (Ind. Ct. App. 2015), trans, denied

. The short time lapse leads to the assu m ption that the immediate response is unlikely to be deliberated and , therefore , pro vides reliability. Mack v. State , 23 N.E.3d 742, 755 (Ind. Ct. App. 2014) , trans. denied

.
[17] For the purpose of our review, we as s ume , but do not decide, that th e three requirements for the p resent s ense i mpression exception are met in Spivey’s case, and that his statements : (1) described and explained the event of FordCourt of Appeals of Indiana | Memorandum Decision 19A

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being shot ; (2) were made immediately after the event ; and (3) were based on Spivey’s perception of the shooting. Spivey contends that meeting these three req uirements conclusively make s his out

- of

- court statements reliable and , therefore, admissible. Appellant’s Br. at 25

- 26. We disagree.

[18] The trial court maintains broad discretion on the admissibility of evidence. Chambless , 119 N.E.3d at 188. In Sweeney v. State , our S upreme C ourt made clear that a defendant who does not testify during trial “cannot introduce exculpatory statements made outside of court in order to enhance his credibility” because the statements are self

- serving and generally untrustwort hy. 704 N.E.2d 86, 110 (Ind. 1998). This is because the defendant is not subject to
cross - examination if he does not testify at trial. Canaan v. State , 541 N.E.2d 894, 904 (Ind. 1989). In addition, w e are unpersuaded by Spivey ’s contention that the tru thfulness of the hearsay testimony should be left for the jury to decide. The purpose of this rule is to prevent litigants from enhancing their credibility by such method. Marts v. State , 432 N.E.2d 18, 24 (Ind. 1982). T he trial court did not abuse its discretion in excluding Spivey’s out

- of

- court statement despite the p resent sense i mpression exception to the rule against hearsay.

[19] Spivey also challenges the trial court’s exclusion of the testimony based on the
e xcited u tterance except ion

. Appellant’s Br. at 27

- 29 ; Evid . R. 803(2). In order for a statement to be admitted as an excited utterance : (1) a startling event must occur; (2) a statement must be made by a declarant while under the stress of excitement caused by the event; and (3 ) the statement must relate to the event.Court of Appeals of Indiana | Memorandum Decision 19A

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Williams v. State , 782 N.E.2d 1039, 1045

- 46 (Ind. Ct. App. 2003), trans. denied

. The admission of such statements depend s on “whether the statement was inherently reliable

. . . . ” Jenkins v. State , 725 N.E.2d 6 6, 68 (Ind. 2000).

[20] Spivey focuses his argument on the short time lapse between the shocking event of the shooting and the utterance of the statements in order to establish the credibility of those statements. Appellant’s Br . at 27

- 28. T he trial court ’s analysis focused on the fact that such self

- serv ing statements that are not subject to cross
- examination are inherently unreliable and should not be used as a method to enhance the party’s credibility. Cannan , 541 N.E.2d at 904. Spivey had made false statement s regarding the incident during his interv iew at the police station, claiming that he was not the shooter at first and chang ing his story twice when challenged by Detective Miller. Tr. Vol. II at 242 ; State’s Ex. 42 at 95, 101. T he trial court did not abuse its discretion in finding Spivey’s out
- of

- court statements unreliable , nor did it abuse its discretion in excluding self

- serving hearsay as an excited utterance.

[21] The third exception to the r ule a gainst h earsay that Spivey raises is the s tate of

m ind exception . Appellant’s Br. at 28

- 29. Evid

. R

. 803(3). Specifically, Spivey argues that the statements he s ought to introduce pertained to his “then

- existing state of mind (such as motive, design, intent or plan)” rather than “ a statement of mem ory or belief to prove the fact remembered or believed.” Id. The key to the analysis, like in the previous two exceptions , remains the reliability and trustworthiness of the statements
. See Gordon , 742 N.E.2d at 378 . Spivey reliesCourt of Appeals of Indiana | Memorandum Decision 19A

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on the proposition in Pelley v. State that this exception permits “statements of any person to show his or her intent.” 901 N.E.2d 494, 504 n.5 (Ind. 2009).

[22] In Pell

e y , the trial court admitted a statement by the defendant’s father regarding restricting the defe ndant from attending his high school senior prom

. Id. at 504. The Indiana Supreme Court held that the statements pertained to the defendant’s intent in murdering his father and admitted the hearsay statements under the s tate of m ind exception. Id. H ere , however, the facts in Pell e y are distinguishable. In Pell

e y , (1) there were eight witnesses who testified regarding the statemen ts , (2) the victim of the murder who made the statements c ould no longer testify in court, and (3) the statements were not made by the defendant himself to exonerate himself. See id. Here , Spivey only had one witness, his uncle Hutcherson, testifying to his statement. Tr. Vol. II. a t 158

- 60. Spivey’s statements w ere self

- serving

. Tr. Vol. II at 158

- 160, 1 62. In addition , he could have testified in court himself but chose not to. Our review of the record gives us no reason to question the trial court’s finding that Spivey’s self

- serving statements were not relia ble. Therefore, we find no abuse of discretion in the trial court’s rejection of Spivey’s argument that the hearsay statement was admissible under the s tatement of m ind exception to the hearsay rule.

[23] Because we have conclude d that there was no abuse of discretion in the trial court’s exclusion of Spivey’s ou t
- of

- court, self

- serving statements , we need not address the issue of the harm resulting from the exclusion of the evidence.Court of Appeals of Indiana | Memorandum Decision 19A

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### II. Sufficiency of Evidence
[1] Spivey also argues that the evidence presente d at trial was insufficient to support his conviction for murder. When we review the sufficiency of evidence to support a conviction, we do not reweigh the evidence or assess the credibility of the witnesses. Lehman v. State, 55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans. denied. We consider only the evidence most favorable to the trial court’s ruling and the reasonable inferences that can be drawn from that evidence. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012)

. We also consider conflicting evidence in the light most favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. A conviction will be affirmed if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Wolf v. State , 76 N.E.3d 911, 915 (Ind. Ct. App. 2017).

[2] Spivey contends that the State presented insufficient evidence for his conviction because the evidence failed to show beyond a reasonable doubt that he knowingly or intentionally shot Ford

. Spivey admitted during his interview with Detective Miller that he shot Ford on December 20, 2017. State’s Ex. 42 at 101. However, Spivey claims he was aiming past Ford’s body, and Ford wal ked into the path of the bullet when Spivey pulled the trigger. State’s Ex. 42 at 112

- 13.

[3] T o convict Spivey of murder, the State was required to prove beyond a reasonable doubt that Spivey knowingly or intentionally kill ed another humanCourt of Appeals of Indiana | Memorandum Decision 19A

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being. Ind. Cod e § 35

- 42

- 1

- 1(1). “Knowingly” requires that the defendant is aware of a high probability of what he is doing. Ind. Code § 35

- 41

- 2

- 2(b). The deliberate use of a deadly weapon in a manner that is likely to cause death or great bodily harm meets the standard for knowingly. Harper v. State , 523 N.E.2d 1389, 1391 (Ind. 1988) ; s ee also Wilson v. State , 697 N.E.2d 466, 476 (Ind. 1998) (holding that the deliberate use of a firearm i n a manner that is likely to cause death or great bodily injury is sufficient to demonstrate a knowing intent)

.
[4] The evidence presented at trial clearly show ed that the manner in which Spivey handled the firearm was likely to cause death. Spivey admitted t hat he pointed the gun in Ford’s direction and pulled the trigger as Ford was walking away from him. State’s Ex. 42 at 112

- 13, 119

- 20. In claiming that the evidence showed that he was aiming past Ford just to scare him , Spivey is asking us to reweigh the evidence

. In addition , the evidence also show ed that (1) Spivey had been drinking and arguing with Ford before the shooting , (2) Ford had been calling Spivey’s girlfriend names , and (3) Spivey was resentful about Ford taking advantage of his parents by s taying in their apartment without paying rent. Tr. Vol. II at 154

- 56. The jury had a reasonable basis to infer that Spivey had a motive to kill Ford , and that he used a deadly weapon in a manner likely to cause serious bodily harm.

[5] The testimony of the forensic pathologist and forensic scientist who testified also provided support for Spivey’s conviction. The two experts testified that the shape of Ford’s wound and the condition of the bullet were not consistent withCourt of Appeals of Indiana | Memorandum Decision 19A

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a ricochet

. Tr

. Vol. II at 184, 204. It is not our role to reweigh the evidence or assess the credibility of witness. Lehman , 55 N.E.3d at 868. W e conclude that the State pr esented sufficient evidence for the jury to find that Spivey had knowingly or intentionally ki lled Ford and his conviction of murder was supported by the evidence

.
[6] Affirmed.
Najam, J., and Brown, J., concur.