Court of Appeals of Indiana | Memorandum Decision 71A04-1609-CR-2187 | August 29, 2017 Page 1 of 11

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

Mark S. Lenyo

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sean A. Kubiak,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 29, 2017 

Court of Appeals Case No. 

71A04-1609-CR-2187 

Appeal from the St. Joseph 

Superior Court 

The Honorable John M. 

Marnocha, Judge 

Trial Court Cause Nos. 

71D02-1601-F6-48 

71D02-0909-FC-231 

Najam, Judge.
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Statement of the Case

[1] Sean A. Kubiak appeals his convictions for operating a motor vehicle while

privileges are forfeited for life, a Level 5 felony, and resisting law enforcement,

as a Level 6 felony, following a jury trial in cause number 71D02-1601-F6-48

(“F6-48”) and the trial court’s revocation of his probation in cause number

71D02-0909-FC-231 (“FC-231”). Kubiak raises five issues for our review,

which we restate as the following three issues:

1. Whether the trial court abused its discretion when it

permitted an officer to testify to a third party’s out-of-court

statements under the excited utterance exception to

hearsay.

2. Whether the trial court abused its discretion when it

overruled Kubiak’s Indiana Evidence Rule 404(b)

objection to the officer’s testimony that he had observed

Kubiak driving the vehicle in question on a prior occasion.

3. Whether the State presented sufficient evidence to support

Kubiak’s convictions and the revocation of his probation.

[2] We affirm. 

Facts and Procedural History

[3] On December 20, 2015, South Bend Police Department Officer Robert Anton

observed the driver of a white van disregard a traffic signal and proceed through

an intersection. Officer Anton activated his police vehicle’s lights and siren,

and he attempted to conduct a traffic stop of the van. But the driver of the van
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refused to pull over and, instead, “turned abruptly” down other streets. June 

21, 2016, Tr. at 123. Officer Anton informed dispatch that he was in pursuit of 

the van.

[4] About two blocks later, the van hit a median and lost both of its passenger-side 

wheels. The van spun 180-degrees and came to a rest such that Officer Anton 

could look directly into the van’s cabin area, which was illuminated by his 

vehicle’s headlights. Officer Anton “could clearly see two occupants. The one 

in the driver’s seat was a male white, with long blonde hair. And . . . the 

passenger was a female, also with long blonde hair.” Id. at 125. Officer Anton 

observed that the female passenger looked “afraid” and “shocked.” Id. at 135. 

After “no more than a second,” the van again accelerated away from Officer 

Anton, emitting “sparks and other debris from the passenger side[] where the 

wheels were no longer.” Id. at 125.

[5] After a short distance, the van came to a stop, and Officer Anton brought his 

vehicle to a stop near the van and illuminated the van with his spotlight. 

Officer Anton then exited his vehicle but did not approach the van while he 

waited for additional officers. While he waited, “a male white in a blue 

sweatshirt and light blue jeans,” who Officer Anton recognized as the driver, 

exited the van and fled on foot. Id. at 126. Officer Anton stayed with the van, 

but as the driver ran away Officer Anton observed the driver “look[] back 

directly at” Officer Anton while the driver was still in the area illuminated by 

Officer Anton’s vehicular lights. Id. at 133. 
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[6] After about five minutes, Officer Anton approached the van. The female 

passenger identified herself to Officer Anton as Angela Kubiak (“Angela”). 

Officer Anton observed that “[s]he was still very shaken up” by the incident. Id.

at 135. Angela stated that Kubiak had been the driver of the van. Officer 

Anton then inventoried the van, during which he discovered three prescription 

medication bottles with Kubiak’s name on them. 

[7] After he inventoried the van, Officer Anton searched police records for 

Kubiak’s name and found Kubiak’s driving record. That record included a 

photograph of Kubiak. Officer Anton concluded that the person in the 

photograph was the same person he had observed operating the van. 

[8] The State charged Kubiak in relevant part with operating a motor vehicle while 

privileges are forfeited for life, a Level 5 felony, and resisting law enforcement, 

as a Level 6 felony, in F6-48. In FC-231, the State alleged that Kubiak’s actions 

were a violation of the conditions of his probation.

[9] At his ensuing jury trial in F6-48, Kubiak’s defense focused on challenging the 

State’s identification of him as the driver of the van. Officer Anton testified to 

the events of December 20, 2015, and his testimony was largely corroborated by 

the dashboard camera that had recorded the events from inside his police 

vehicle.1 Kubiak objected to Officer Anton’s testimony as to what Angela had 

told Officer Anton upon his approach to the van on the grounds that her out-of-

 

1

 There is no dispute that that recording does not permit the viewer to identify the driver of the van.
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court statements were inadmissible hearsay. The trial court overruled Kubiak’s 

hearsay objection after concluding that Angela’s statements were excited 

utterances.

[10] Also during Officer Anton’s testimony, the following exchange between the 

parties and the court occurred:

Q. [by the State:] Now, Officer Anton, is this the first time that 

you’ve had occasion to run into Mr. Kubiak?

A. No, it’s not.

MR. HILGENDORF [for Kubiak]: May we approach?

* * *

Your Honor, based on the police report, I suspect that this 

witness would testify that he had seen Mr. Kubiak driving about 

a week before.

I think that’s a prior bad act, so I’m objecting, because it’s not 

relevant here. And it’s prejudicial and would be effectively 

the . . . commission of an uncharged offense.

* * *

MS. MCBRIDE [for the State]: Your Honor, in this case the 

State is expecting the officer to testify that he was driving the 

same van.
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This is not necessarily a prior bad act[;] it’s simply that he was 

driving the van on a different occasion.

THE COURT: Well, in this case the issue is whether it was Mr. 

Kubiak who was driving the van on this date . . . .

. . . I think a question like, “Had you seen Mr. Kubiak driving 

the van prior to December 20, 2015,” would be acceptable. . . . 

[T]he jury is not going to be told when he became an habitual for 

life. But the issue is, he was in that van . . . .

Id. at 130-32. 

[11] The State then asked Officer Anton the question as instructed by the court, and 

Officer Anton testified that he had “previously observed a man very closely 

matching [Kubiak’s] description . . . operating that vehicle before the night in 

question.” Id. at 132. Officer Anton clarified that that prior observation had 

been “no more than six months” before December 20, 2015. Id. Thereafter, 

Kubiak stipulated to the jury that, “[o]n December 20, 2015, [his] driving 

privileges were validly suspended for life . . . .” Id. at 144.

[12] The jury found Kubiak guilty of operating a motor vehicle while privileges are 

forfeited for life, a Level 5 felony, and resisting law enforcement, as a Level 6 

felony, in F6-48. The court then revoked Kubiak’s probation in FC-231. The 

court entered judgment of conviction against Kubiak in F6-48 and sentenced 

him accordingly in both causes. This appeal ensued.
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Discussion and Decision

Issue One: Angela’s Out-of-Court Identification of Kubiak

[13] On appeal, Kubiak first contends that the trial court abused its discretion when 

it permitted Officer Anton to testify to Angela’s out-of-court statement to him in 

which she identified Kubiak as the driver of the van. The trial court has 

“inherent discretionary power on the admission of evidence, and its decisions 

are reviewed only for an abuse of that discretion.” McManus v. State, 814 

N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An abuse of 

discretion occurs when the trial court’s judgment “is clearly against the logic 

and effect of the facts and circumstances and the error affects a party’s 

substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).

[14] Hearsay is generally inadmissible. Ind. Evidence Rule 802. However, hearsay 

may be admissible if it is an excited utterance. Evid. R. 803(2). For a statement 

to be an excited utterance, three elements must be shown: (1) a startling event; 

(2) a statement made by a declarant while under the stress of excitement caused 

by the event; and (3) that the statement relates to the event. Fowler v. State, 829 

N.E.2d 459, 463 (Ind. 2005), abrogated on other grounds, Giles v. California, 554 

U.S. 353, 366-68 (2008). “The ultimate issue is whether the statement is 

deemed reliable because of its spontaneity and lack of thoughtful reflection and 

deliberation.” Id. In Fowler, the Indiana Supreme Court held that the trial 

court did not abuse its discretion when it admitted into evidence statements

made to an officer fifteen minutes after a startling event. Id. at 463-64.
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[15] Kubiak asserts that the trial court abused its discretion when it admitted 

Angela’s statements through Officer Anton’s testimony. Specifically, according 

to Kubiak it was unlikely that Officer Anton got an accurate look at Angela’s 

expression when the van had spun 180-degrees in front of him. Kubiak further 

complains that Officer Anton’s assessment of Angela after the van had stopped 

did not provide any details other than that she had appeared “shaken up.”2 

June 21, 2016, Tr. at 135. 

[16] We cannot say that the trial court abused its discretion. The facts and 

circumstances before the court demonstrated the elements of an excited 

utterance. Officer Anton testified that Angela appeared to be “afraid” and 

“shocked” after the van had spun 180-degrees and come to a rest and that, five 

minutes later, she continued to appear under the stress of that startling event. 

And, while in that condition, she identified Kubiak as the driver of the van. 

The trial court acted within its inherent discretionary power when it permitted 

Officer Anton’s testimony as to Angela’s statement.

[17] Still, Kubiak asserts that the admission of Angela’s statement violated his right 

to confront a witness against him under the Sixth Amendment to the United 

States Constitution. But Kubiak objected to Officer Anton’s testimony only on 

hearsay grounds, not on Sixth Amendment grounds. The Indiana Supreme 

Court has stated that, where a defendant “only objected on grounds that [the 

 

2 Kubiak also asserts that “it is clear from a review of Officer Anton’s testimony that Angela Kubiak’s 

identification of Sean Kubiak . . . was the result of questioning by Officer Anton, not a spontaneous 

statement.” Appellant’s Br. at 13. This assertion has no support in the record, and we do not consider it.
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testimony] was inadmissible hearsay” and “did not object on Confrontation

Clause grounds” the “claim of error is waived.” Small v. State, 736 N.E.2d 742, 

747 (Ind. 2000). “A defendant may not raise one ground for objection at trial 

and argue a different ground on appeal.” Id. Accordingly, we do not consider 

Kubiak’s unpreserved Sixth Amendment argument.3

Issue Two: Officer Anton’s Prior 

Observation of Kubiak Driving the Van

[18] Kubiak next asserts that the trial court abused its discretion when, over 

Kubiak’s objection, it permitted Officer Anton to testify that he had observed 

Kubiak drive the van on a date prior to December 20, 2015. Again, the 

admission of evidence is within the inherent discretionary power of the trial 

court, and we will review its decisions only for an abuse of that discretion. 

McManus, 814 N.E.2d at 264. 

[19] According to Kubiak, Officer Anton’s testimony was inadmissible under 

Indiana Evidence Rule 404(b). That rule states that “[e]vidence of a crime, 

wrong, or other act is not admissible to prove a person’s character in order to 

show that on a particular occasion the person acted in accordance with the 

character.” Evid. R. 404(b). But we agree with the trial court that Officer

 

3

In support of appellate review notwithstanding his failure to object, Kubiak asserts that this court has 

considered a Sixth Amendment claim raised on appeal following only a hearsay objection in the trial court. 

But the case Kubiak cites in support of that position has been vacated by the Indiana Supreme Court. See 

Koenig v. State, 916 N.E.2d 200, 202-03 (Ind. Ct. App. 2009), trans. granted, 933 N.E.2d 1271, 1272 (Ind. 

2010). And, in its opinion in that case, the Indiana Supreme Court did not discuss preservation of error.
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Anton’s answer to the State’s limited question was not 404(b) evidence.4 

Rather, a central issue before the jury was Officer Anton’s identification of 

Kubiak as the driver of the van on December 20, 2015. The limited testimony 

that Kubiak now challenges was offered and admitted to bolster the State’s 

evidence as to Kubiak’s identity. And, due in part to Kubiak’s subsequent 

stipulation, the jury had no evidence before it from which it could have inferred 

that, when Officer Anton had previously observed Kubiak driving the van, 

Kubiak was engaged in an illegal act. Thus, we cannot say that the trial court 

abused its discretion in the admission of Officer Anton’s testimony in this 

regard.

Issue Three: Sufficiency of the Evidence

[20] Finally, Kubiak asserts that the State failed to present sufficient evidence to 

support his convictions and the revocation of his probation. Our standard of 

review is clear: in reviewing such claims, we will consider only the evidence 

most favorable to the verdict and the reasonable inferences to be drawn 

therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017). We will affirm the 

conviction if there is probative evidence from which a reasonable jury could 

have found the defendant guilty beyond a reasonable doubt. Id. We will 

neither reweigh the evidence nor reassess the credibility of witnesses. Id.

 

4

 Evidence Rule 404(b)(2) permits evidence of prior bad acts to prove identity if the State provides the 

defendant with notice of its intent to use such evidence. There is no dispute that the State provided no such 

notice here.
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[21] Here, Kubiak asserts that the State failed to show beyond a reasonable doubt 

that he was the driver of the van. In particular, Kubiak asserts as follows: (1) 

Angela’s out-of-court identification of him as the driver was not reliable; (2) 

Officer Anton’s observation of Kubiak when the van had spun 180-degrees was 

not worthy of credit; and (3) Officer Anton’s dashboard camera recording failed 

to show the driver of the van.

[22] Kubiak’s arguments on appeal are merely requests for this court to reweigh the 

evidence, which we will not do. Officer Anton testified that he had personally

and clearly observed Kubiak driving the van both when the van spun towards 

Officer Anton and when Kubiak exited the stopped van, fled, and turned back 

and looked at Officer Anton. Officer Anton further testified that he had 

confirmed Kubiak’s identity with Kubiak’s photograph in his driving record 

only minutes after the chase had ended. And Officer Anton stated that he had 

seen Kubiak driving the van on a prior occasion. Moreover, Officer Anton 

discovered three prescription medicine bottles with Kubiak’s name on them 

inside the van, and Angela’s excited utterance was admissible evidence that the 

jury was free to consider and weigh accordingly. Thus, we affirm Kubiak’s 

convictions in F6-48 and the revocation of his probation in FC-231.

[23] Affirmed.

Kirsch, J., and Brown, J., concur.