Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019 Page 1 of 10

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

Ryan M. Gardner

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samantha M. Sumcad

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James Saylor,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 13, 2019

Court of Appeals Case No.

19A-CR-1095

Appeal from the Allen Superior 

Court

The Honorable G. David Laur, 

Judge

The Honorable Wendy W. Davis, 

Judge

Trial Court Cause No.

02D04-1801-F6-112

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1095 | November 13, 2019 Page 2 of 10

STATEMENT OF THE CASE

[1] Appellant-Defendant, James Saylor (Saylor), appeals his conviction for 

domestic battery, a Level 6 felony, Ind. Code § 35-42-2-1.3; and criminal 

trespass, a Class A misdemeanor, I.C. § 35-43-2-2.

[2] We affirm.

ISSUES

[3] Saylor presents two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion in admitting testimony 

under the excited utterance exception to the hearsay rules; and

(2) Whether the state presented sufficient evidence beyond a reasonable 

doubt to sustain Saylor’s conviction for criminal trespass.

FACTS AND PROCEDURAL HISTORY

[4] On September 13, 2017, Kylie Haithcox (Haithcox) lived at the Tara 

Cooperative apartment complex, together with her two children. The 

children’s father, Saylor, was not listed as a resident. On that day, Tara 

Cooperative’s security officer, Randall Hosford (Officer Hosford), at the request 

of the manager, informed Saylor that he was banned from the property and 

that, even if someone invited him there, he could be arrested for criminal 

trespass if he returned. Saylor indicated that he understood. 

[5] On November 18, 2017, Haithcox and her family celebrated the Thanksgiving 

holiday at her grandmother’s house. Saylor attended this family gathering 
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where alcohol was consumed. After the celebration, Haithcox and her two 

children went home to her apartment. Later that evening, Saylor arrived at the 

apartment, “forced his way inside” and began to argue with Haithcox. 

(Transcript p. 151). Saylor quickly became aggressive and “punch[ed] her in 

the back of the head with a closed fist calling her a bitch and telling her that he 

hates her.” (Tr. p. 151). After being beaten, Haithcox managed to escape and 

ran outside, where she encountered her neighbor, Rachel Cruse (Cruse), near 

the community garbage area. Cruse noticed Haithcox’s “busted [] forehead and 

[] lip area.” (Tr. p. 98). Haithcox was hysterical and Cruse offered her shelter 

in Cruse’s car. She told Cruse that she “and her boyfriend had gotten into an 

argument, and it turned physical.” (Tr. p. 98). Cruse let Haithcox use her 

phone to call her mother and the police. 

[6] On January 30, 2018, the State filed an Information, charging Saylor with 

domestic battery, as a Level 6 felony, and criminal trespass, as a Class A 

misdemeanor. On March 26 and 27, 2019, the trial court conducted a jury trial. 

At the close of the evidence, the jury found Saylor guilty as charged. On April 

18, 2019, the trial court sentenced Saylor to two years on the domestic battery 

charge, with one year executed and one year suspended, and to one year 

executed on the criminal trespass charge. The trial court ordered both 

sentences to be served concurrently.

[7] Saylor now appeals. Additional facts will be provided if necessary.
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DISCUSSION AND DECISION

I. Admission of the Evidence

[8] Saylor contends that the trial court abused its discretion when it admitted 

certain hearsay statements under the excited utterance exception to the hearsay 

rule. We review a trial court’s decision to admit or exclude evidence for an 

abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004). 

An abuse of discretion occurs if a trial court’s decision is clearly against the 

logic and effect of the facts and circumstances before the court. Id. However, if 

a trial court abused its discretion by admitting the challenged evidence, we will 

only reverse for that error if “the error is inconsistent with substantial justice” or 

if “a substantial right of the party is affected.” Id. (citing Timberlake v. State, 690 

N.E.2d 243, 255 (Ind. 1997), reh’g denied, cert. denied). Any error caused by the 

admission of evidence is harmless error for which we will not reverse a 

conviction if the erroneously admitted evidence was cumulative of other 

evidence appropriately admitted. Id. 

[9] Over Saylor’s objection, the trial court admitted two hearsay statements as 

excited utterance exceptions to the hearsay rule. Hearsay is an out-of-court 

statement offered to prove the truth of the matter asserted and is inadmissible 

unless the statement fits within a hearsay exception. Ind. R. Evid. 801. An 

excited utterance is a recognized exception to the hearsay rule and is defined as 

“[a] statement relating to a startling event or condition made while the 

declarant was under the stress of the excitement caused by the event or 
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condition.” Ind. R. Evid. 803(2). To meet the excited utterance exception, 

three elements must be present: (1) a “startling event or condition” has 

occurred; (2) the declarant made a statement while “under the stress or 

excitement caused by the event or condition;” and (3) the statement was 

“related to the event or condition.” Teague v. State, 978 N.E.2d 1183, 1187 (Ind. 

Ct. App. 2012). This test is not “mechanical” and admissibility turns “on 

whether the statement was inherently reliable because the witness was under 

the stress of the event and unlikely to make deliberate falsifications.” Sandefur v. 

State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011). The lapse of time is not 

dispositive, but if a statement is made long after a startling event, it is usually 

“less likely to be an excited utterance.” Teague, 978 N.E.2d at 1187. “The 

heart of the inquiry is whether the declarant was incapable of thoughtful 

reflection.” Id.

[10] Saylor first takes issue with Cruse’s testimony about her encounter with 

Haithcox. Specifically, Saylor objected to Cruse’s statement that, in response to 

Cruse’s inquiry, Haithcox replied that “her and her boyfriend had got [sic] into 

an argument, and it turned physical.” (Tr. p. 98). At the time of uttering the 

statement, Haithcox had just been beaten by Saylor and had managed to flee 

the apartment. Although it was cold, she was not wearing shoes. Cruse 

described her as being “hysterical,” with visible injuries on her forehead and lip. 

(Tr. p. 98). When Cruse asked her what had happened, Haithcox made the 

contested statement. Based on the surrounding circumstances, we conclude 

that the statement was properly admitted as an excited utterance. Clearly, the 
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relevant statement was made immediately following the battery by Saylor and 

while Haithcox was still under the stress of the event, having had no time yet to 

reflect on what had happened. See Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 

1996) (“An excited utterance can be made in response to a question so long as 

the statement is unrehearsed and is made under the stress of excitement from 

the event.”) 

[11] The second contested statement was made during the testimony of Fort Wayne 

police officer Brian Juricak (Officer Juricak), who responded to the scene. The 

officer clarified that he was dispatched at 10:51 p.m. and arrived on the scene 

eight minutes later. Over Saylor’s objection, Officer Juricak informed the jury 

that Haithcox told him that “during the argument [] Saylor [began] to punch 

her in the back of the head with a closed fist calling her a bitch and telling her 

that he hates her.” (Tr. p. 151). Prior to admitting the statement, the State 

elicited testimony from Officer Juricak that Haithcox had visible injuries, she 

“was upset” and the officer “had trouble understanding her but eventually [he] 

was able to calm her down and get her statement.” (Tr. p. 150). Again, we find 

Haithcox’s statement properly admitted under the excited utterance exception. 

Based on the facts before us, it is undeniable the statement was made under the 

stress of the event, in close proximity thereof, and was unrehearsed. See Young 

v. State, 980 N.E.2d 412, 421 (Ind. Ct. App. 2012) (if the declarant is crying, 

appears to be under stress, is injured, or is exhibiting other physical or 

psychological conditions, the declarant is considered to be under the stress of 

the event). 
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[12] In sum, the trial court properly admitted both hearsay statements over Saylor’s 

objection as they both fall within the parameters of the excited utterance 

exception to the hearsay rule. We affirm the trial court’s ruling.

II. Sufficiency of the Evidence

[13] Next, Saylor contends that the State failed to present sufficient evidence beyond 

a reasonable doubt to sustain his conviction for criminal trespass. Our standard 

of review with regard to sufficiency claims is well-settled. In reviewing a 

sufficiency of the evidence claim, this court does not reweigh the evidence or 

judge the credibility of the witnesses. Clemons v. State, 987 N.E.2d 92, 95 (Ind. 

Ct. App. 2013). We consider only the evidence most favorable to the judgment 

and the reasonable inferences drawn therefrom and will affirm if the evidence 

and those inferences constitute substantial evidence of probative value to

support the judgment. Id. Circumstantial evidence alone is sufficient to 

support a conviction. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). 

Circumstantial evidence need not overcome every reasonable hypothesis of 

innocence. Clemons, 987 N.E.2d at 95. Reversal is appropriate only when 

reasonable persons would not be able to form inferences as to each material 

element of the offense. Id. 

[14] To convict Saylor of criminal trespass as a Class A misdemeanor, the State was 

required to establish that Saylor, not having a contractual interest in the 

property, knowingly or intentionally entered the real property of Tara 

Cooperative after having been denied entry by Tara Cooperative’s agent. See
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I.C. § 35-43-2-2. An order to leave or remain away is sufficient if made by 

means of personal communication, oral or written. I.C. § 35-43-2-2(c)(1). 

Saylor claims that the evidence is insufficient to show that he entered Tara 

Cooperative after being denied entry by Tara Cooperative or its agent.

[15] Because the State presented evidence that Officer Hosford acted as Tara 

Cooperative’s agent, we must consider the law of agency. This court recently 

described the elements necessary to establish an actual agency relationship:

Agency is a relationship resulting from the manifestation of 

consent by one party to another that the latter will act as an agent 

for the former. To establish an actual agency relationship, three 

elements must be shown: (1) manifestation of consent by the 

principal, (2) acceptance of authority by the agent; and (3) 

control exerted by the principal over the agent. These elements 

may be proven by circumstantial evidence, and there is no 

requirement that the agent’s authority to act be in writing. 

Demming v. Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011), reh’g denied, 

trans. denied (citations omitted). One who asserts that there was an agency 

relationship has the burden of proving its existence. Smith v. Brown, 778 N.E.2d 

490, 495 (Ind. Ct. App. 2002).

[16] In Glispie v. State, 955 N.E.2d 819, 821 (Ind. Ct. App. 2011), reh’g denied,

defendant was charged with criminal trespass. The officer testified that he had 

previously given the defendant oral and written warnings not to enter the 

business’s property. Id. at 822. The only evidence presented at trial of the 

officer’s status as the business’s agent was his own testimony that he “could act 
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as an agent of the property.” Id. We held that “[m]ore is required” because 

“[i]t is a well-established rule that agency cannot be proven by the declaration 

of the agent alone.” Id. 

[17] Here, however, the evidence reflects that Officer Hosford was a police officer 

who had also worked as a paid part-time security guard at Tara Cooperative for 

the past eleven years and was familiar with the apartment complex’s “policy on 

occupancy and residency of those apartments.” (Tr. p. 191). Officer Hosford 

testified that on September 13, 2017, while performing his duties as a security 

guard for Tara Cooperative, he concluded that, based on information received 

from the apartment complex, Saylor had not been approved to reside there. 

Tara Cooperative asked Officer Hosford “to take action” and “to ban [Saylor] 

from the Tara Cooperative property.” (Tr. p. 192). Officer Hosford, in his 

capacity as a security guard, informed Saylor that he was banned from the 

property and that if he returned, he would be arrested for criminal trespass. 

Accordingly, the evidence reflected that Officer Hosford, in his capacity as 

security guard acted as an agent for Tara Cooperative and, at its request, 

banned Saylor from the property. See also Bowman v. State, 468 N.E.2d 1064, 

1068 n.1 (Ind. Ct. App. 1984) (“[W]hen police officers are acting in the capacity 

of private security guards, they shed their cloak of State agency and become 

agents of the private hiring authority[.]”). As the State presented sufficient 

evidence beyond a reasonable doubt to establish Officer Hosford acted as Tara 

Cooperative’s agent to ban Saylor from the property, we affirm his conviction.
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CONCLUSION

[18] Based on the foregoing, we hold that the trial court did not abuse its discretion 

in admitting testimony under the excited utterance exception to the hearsay 

rules; and the State presented sufficient evidence beyond a reasonable doubt to 

sustain Saylor’s conviction for criminal trespass

[19] Affirmed.

Vaidik, C. J. and Bradford, J. concur