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 FOR A PPELLANT Ryan M. Gardner Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 19A

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- 1095 Appeal from the Allen Superior Court The Honorable G. David Laur, Judge The Honorable Wendy W. Davis, Judge Trial Court Cause No. 02D04

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- F6

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

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### STATEMENT OF THE CASE

[1] Appellant

- Defendant, James Saylor (Saylor), appeal s his conviction for domestic battery, a Level 6 felony , Ind. Code § 35

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- 1.3 ; and criminal trespass, a Class A misdem eanor , I.C. § 35

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- 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 a t the Tara Cooperative apartment complex, t ogether with her two children. The children’s father, Saylor, was not listed as a resident

. On that day, Tara Cooperative’s security officer , Randall H osfo r d ( O fficer Hosford), at the request of the manager, informed Saylor that he was banned from the pr operty and that, even if someone invited him there, he could be arrested fo r criminal trespass if he returned. Saylor indicated that he understood.

[5] On November 18, 2017, Haithcox and her family celebr ated the Thanksgiving holiday at her grandmother’s house. Saylor attended this family gatheringCourt of Appeals of Indiana | Memorandum Decision 19A

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- 1095 | November 1 3 , 2019 Page 3 of 10 where alcohol was consumed. After the celebration, Haithcox and her two children went hom e to her apartment . Later that evening, Saylor arrived at the apartm ent , “forced his way inside” and began to argue with Haithcox. (Transcript p. 151 ) . Saylor quickly became aggressi v e 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). Aft er being beaten, Haithcox managed to escap e 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 a nd 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 Sta te filed an Information, charging Saylor with domestic battery, as a Level 6 felony , and criminal trespass, as a Class A misdemeanor. O n March 26 and 27, 2019, the trial court conducted a jury trial. At the close of the evidence, the jury found Saylor gu ilty 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

senten ces to be served concurrently.

[7] Saylor now appeals. Additional facts will be provided if necessary.Court of Appeals of Indiana | Memorandum Decision 19A

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### DISCUSSION AND DECISION
I. Admission of the Evidence

[8] Saylor contends that the trial court abused its discretion when it a dmitted 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 reve rse 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 ( I nd. 1997), reh’g denied, cert. denied ). Any error caused by the admiss ion 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

ex cited utterance exceptions to the hearsay rule. Hearsay is an out

- of

- court statement offered to prove the truth of the matter asserted and is i nadmissible unless t he 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 orCourt of Appeals of Indiana | Memorandum Decision 19A

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- 1095 | November 1 3 , 2019 Page 5 of 10 condition.” Ind. R. Evid. 803(2) . To meet the exc ited 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 in herently reliable because the witness was under the stress of the event and unlike ly 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.” Te ague , 978 N.E.2d at 1187. “ T he 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 re plied 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 ha d just been beaten by Saylor and had managed to flee the apar tment. 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 ha ppened, Haithcox made the contested statement. Based on the surrounding circumstances, we conclude that the statement was properly admitted as an excited utterance. C learly, theCourt of Appeals of Indiana | Memorandum Decision 19A

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- 1095 | November 1 3 , 2019 Page 6 of 10 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. O ver 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, i t is undeniabl e 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 oth er physical or psychological conditio ns, the declarant is considered to be under the stress of the event).Court of Appeals of Indiana | Memorandum Decision 19A

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- 1095 | November 1 3 , 2019 Page 7 of 10 [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 ut terance exception to the hearsay rule. We affirm the trial court’s ruling.

II. Sufficiency of the E vidence

[13] Next, Saylor contends that the State failed to present sufficient evidence beyond a reasonable doubt to sustain h is conviction for criminal trespas s . 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 Say lor, not having a contractual interest in the property, knowingly or intentionally entered the real property of Tara Coo perative after having been denied entry by Tara Cooperative’s agent. SeeCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2. An order to leave or remain away is suffici ent if made by means of personal communication, oral or written. I.C. § 35

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- 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 ma nifestation 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 th e 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. Ap p. 2011) , reh’g denied, trans. denied (citations omitted). One who asserts that there was an agency relationship ha s the burden of prov ing 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 a t trial of the officer’s status as the business’s agent was his own testimony that he “could actCourt of Appeals of Indiana | Memorandum Decision 19A

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- 1095 | November 1 3 , 2019 Page 9 of 10 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 O fficer 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 wa s 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 informatio n 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 se curity 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. Ap p. 1984) (“[W]hen police officers are acting i n 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 Cooper ative’s agent to ban Saylor from the property, we affirm his conviction.Court of Appeals of Indiana | Memorandum Decision 19A

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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 S tate presented sufficient evidence beyond a reasonable doubt to sustain Saylor’s conviction for criminal trespass

[19] Affirmed

.

V aidik, C. J. and Bradford, J. concur