Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Brandon E. Murphy

Cannon Bruns & Murphy

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brian J. Offringa,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 20, 2018

Court of Appeals Case No.

18A-CR-316

Appeal from the Delaware Circuit 

Court

The Honorable John M. Feick, 

Judge

Trial Court Cause No.

18C04-1310-FD-216

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-316 | July 20, 2018 Page 2 of 9

Case Summary

[1] Brian Offringa (“Offringa”) appeals his conviction for Strangulation, as a Class 

D felony.1 He presents the sole issue of whether the trial court abused its 

discretion in the admission of evidence. We affirm.

Facts and Procedural History

[2] On September 11, 2013, Offringa entered the showroom of Benson’s 

Motorcycles in Muncie, Indiana (“Benson’s”) and greeted some of the female 

employees by saying “hey sluts.” (Tr. Vol. II, pg. 79.) Casey Schmitt 

(“Schmitt”) verbally confronted Offringa, who responded by grabbing Schmitt 

and declaring that he could “do what I want.” (Id., pg. 80.)

[3] Offringa then entered the office of writer Kimberly Wilkerson (“Wilkerson”)

and inquired about the status of a motorcycle he had left for repair. Wilkerson 

advised Offringa that the specialty parts for his motorcycle were on order but 

had not yet arrived; the news made Offringa unhappy. Offringa insisted that 

Benson’s should provide him a motorcycle so that he could participate in a 

planned group ride the next weekend. Wilkerson explained that Benson’s no 

longer rented motorcycles and suggested that Wilkerson go to Indianapolis for a 

 

1

Ind. Code § 35-42-2-9.
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rental. She handed Wilkerson a brochure explaining rental reimbursement 

under an extended warranty plan.

[4] Offringa took the brochure and began to move, and Wilkerson assumed that 

Offringa was heading out the office door. However, she became aware of 

“hands around [her] throat.” (Id., pg. 115.) Wilkerson “woke up” to find that 

Offringa had placed her in a headlock; he had his leg on her left thigh to 

immobilize her and “was taking his fingers and pounding” her head. (Id., pg. 

115-16.) 

[5] Schmitt called police and Muncie Police Officer Ronald Locke (“Officer 

Locke”) was dispatched to Benson’s. He found Wilkerson to be “upset” and 

observed that her neck was red “all around.” (Id., pg. 41, 43.) He 

photographed Wilkerson’s injuries and took recorded statements from 

Wilkerson, Schmitt, and two other employees. Wilkerson was hospitalized and 

treated for ruptured discs in her neck.

2

[6] Offringa was arrested and charged with two counts of strangulation, for 

conduct related to Wilkerson and Schmitt. On November 6, 2017, Offringa 

was tried before a jury. He was acquitted of the charge related to Schmitt and 

convicted of the charge related to Wilkerson. Offringa received a sentence of

 

2

She testified to having had one broken vertebrae also. It is unclear whether this was a prior injury.
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three years imprisonment, with eighteen months suspended to probation. He

now appeals. 

Discussion and Decision

[7] Offringa argues that the trial court improperly admitted into evidence, over his 

hearsay objections, (1) Officer Locke’s testimony describing Wilkerson’s report 

of the incident and (2) State’s Exhibit 7, a recording made on Officer Locke’s 

pen camera as he initially interviewed Wilkerson and her co-employees.

[8] A trial court’s decision to admit or exclude evidence is within its discretion and 

is afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 

(Ind. 2013). The reviewing court will not reverse the ruling unless there has 

been a manifest abuse of discretion resulting in the denial of a fair trial. Id. In 

this context, an abuse of discretion occurs if the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before the court or it 

has misinterpreted the law. Id. We may affirm a trial court’s decision regarding 

the admission of evidence if it is sustainable on any basis in the record. Barker v. 

State, 695 N.E.2d 925, 930 (Ind. 1998).

[9] A hearsay statement is one that “is not made by the declarant while testifying at 

the trial or hearing” and “is offered in evidence to prove the truth of the matter 

asserted.” Ind. Evidence Rule 801(c). In general, hearsay is not admissible 

unless the Rules of Evidence specifically provide otherwise. Evid. R. 802.
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[10] Testimony. Officer Locke testified that he was dispatched to Benson’s, where 

Wilkerson reported that Offringa had “pushed his penis in her face,” grabbed 

her throat, strangled her, and held her in a headlock. (Tr. Vol. II, pg. 42.) 

Offringa objected on hearsay grounds; the trial court found the excited 

utterance exception to the hearsay rule to be applicable.

[11] An excited utterance is defined as “[a] statement relating to a startling event or 

condition made while the declarant was under the stress of excitement caused 

by the event or condition.” Evid. R. 803(2). Application of the excited 

utterance exception is not mechanical; rather, admissibility should generally be 

determined on a case-by-case basis. Brittain v. State, 68 N.E.3d 611, 620 (Ind. 

Ct. App. 2017). We explained:

the heart of the inquiry is whether the statement is inherently 

reliable because the declarant was incapable of thoughtful 

reflection. The statement must be trustworthy under the specific 

facts of the case at hand. The focus is on whether the statement 

was made while the declarant was under the influence of the 

excitement engendered by the startling event. 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.

Id. at 620-21 (internal citations omitted).

[12] Officer Locke arrived at Benson’s approximately one to two hours after the 

events at issue transpired. He found Wilkerson upset and observed that she had 

redness on the front, back, and sides of her neck. She had sustained serious 
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injuries for which she had not yet been hospitalized and treated. However, she 

provided information in response to routine police investigatory questions. 

Some facts before the trial court suggested an excited utterance while others did 

not. But we need not decide whether the challenged testimony was an excited 

utterance because it was cumulative of the victim’s testimony. See Nunley v. 

State, 916 N.E.2d 712, 720 (Ind. Ct. App. 2009) (evidence consistent with and 

not elaborating on victim testimony not grounds for reversal.)

[13] Pen Camera Footage. When Officer Locke was dispatched, he was outfitted 

with a pen-shaped camera that he activated and kept in his pocket as he took 

the victim and employee statements. During cross-examination of Officer 

Locke, defense counsel inquired as to whether Officer Locke had “reviewed 

that footage” from “a pen camera” and Officer Locke responded affirmatively. 

(Tr. Vol. II, pg. 54.) Defense counsel then began to question Officer Locke 

concerning the content, specifically addressing whether Wilkerson had reported 

being unable to breathe and whether she or others indicated that Locke had 

been joking.

[14] Thereafter, a hearing was conducted outside the presence of the jury at which 

the parties offered arguments as to the admissibility of the camera footage. 

Ultimately, the footage – with a short redaction – was admitted into evidence as 

State’s Exhibit 7.

[15] Offringa now contends that the admission of State’s Exhibit 7, together with 

Officer Locke’s testimony, constituted the type of “drumbeat repetition of the 
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declarant’s statements prior to the declarant’s testifying and being subject to 

cross examination” specifically disapproved of by our Indiana Supreme Court 

in Modesitt v. State, 578 N.E.2d 649, 654 (Ind. 1991). In Modesitt, the defendant 

was on trial for child molestation and the prosecutor called three witnesses to

recount what the victim had told them prior to calling the victim to testify; even 

then, the victim corroborated less than all the alleged acts already testified about 

and was not asked if she had made the prior statements or whether the 

statements were, in fact, true. Id. at 650. The Court observed that, “by putting 

into evidence the victim’s out-of-court charges against Modesitt by three 

separate and repetitive witnesses prior to calling the victim herself, the 

prosecutor effectively precluded Modesitt from effective cross examination of 

these charges.” Id. at 651 (emphasis in original). The Court was unable to “say 

that the drumbeat repetition of the victim’s original story prior to calling the 

victim to testify did not unduly prejudice the jury which convicted Modesitt.” 

Id. at 652. 

[16] The Court held: “from this point forward, a prior statement is admissible as 

substantive evidence only if the declarant testifies at trial and is subject to cross 

examination concerning the statement, and the statement is (a) inconsistent 

with the declarant’s testimony, and was given under oath subject to the penalty 

of perjury at a trial, hearing , or other proceeding, or in a deposition, or (b) 

consistent with the declarant’s testimony and is offered to rebut an express or 

implied charge against the declarant of recent fabrication or improper influence 

or motive, or (c) one of identification of a person made after perceiving the 
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person.” Id. at 653-54. Finally, the Court specified that the decision “does not 

affect the existing, recognized hearsay rule and its exceptions.” Id. at 654. 

[17] In response to Offringa’s argument, the State directs our attention to Norris v. 

State, 53 N.E.3d 512 (Ind. Ct. App. 2016). In Norris, we observed that, where 

there was no trial objection based on drumbeat repetition, the appellant had 

waived his appellate argument of such, which he premised upon Modesitt. Id. at 

525. Waiver notwithstanding, we found no fundamental error, concluding that 

the challenged testimony from two witnesses “merely provided an overview of 

the situation and a summary of [victim] accusations, without elaborating on 

[the victim’s] evidence.” Id. at 526. Likewise, Offringa did not lodge an 

objection that drumbeat repetition of accusations against him was prejudicing 

his jury or denying him a right of confrontation. And Officer Locke’s testimony 

contained a concise summary of Wilkerson’s accusations as opposed to the 

detailed, repetitive drumbeat, bolstering testimony considered in Modesitt.

[18] Additionally, the State observes that Offringa elicited testimony regarding the 

content of the pen camera footage before the substantially complete footage was 

admitted as State’s Exhibit 7. The State argues that the rule of completeness, 

incorporated into Evidence Rule 106, supported its admissibility.

[19] Evidence Rule 106 states: “If a party introduces all or part of a writing or 

recorded statement, an adverse party may require the introduction, at that time, 

of any other part – or any other writing or recorded statement – that in fairness 

ought to be considered at the same time.” This rule is designed to avoid 
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misleading impressions caused by taking a statement out of context or 

conveying a distorted picture by introducing only selective parts. Strunk v. State, 

44 N.E.3d 1, 6 (Ind. Ct. App. 2015). The remainder of the material is subject to 

the general rules of admissibility and immaterial, irrelevant, or prejudicial 

portions should not be admitted. Id.

[20] Offringa’s cross-examination of Officer Locke based upon the recording 

suggested that Wilkerson maintained her ability to breathe during the incident 

and that at least some of the employees characterized the event as a joke. 

Evidence Rule 106 then afforded the State with an opportunity to seek 

admission of the remainder of the recording. The trial court excised a portion 

of the recording in which a reference was made to an individual, Jeff, who had 

not witnessed the event. The other portion was admissible to correct an

impression that the event was innocuous. Indeed, although some of the 

employees initially perceived or suspected joking, none maintained that 

characterization. The redacted recording was properly admitted into evidence. 

Conclusion

[21] Offringa has not demonstrated an abuse of the trial court’s discretion in the 

admission of evidence.

[22] Affirmed.

Crone, J., and Brown, J., concur.