Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 1 of 5

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

Valerie K. Boots

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tiffany A. McCoy

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Wesley Sanders,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 21, 2019

Court of Appeals Case No.

18A-CR-1852

Appeal from the Marion Superior 

Court

The Honorable Hugh Patrick 

Murphy, Magistrate

Trial Court Cause No.

49G16-1801-CM-2462

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 2 of 5

Statement of the Case

[1] Wesley Sanders appeals his conviction for battery, as a Class A misdemeanor, 

following a jury trial. He presents a single issue for our review, namely, 

whether the trial court abused its discretion when it admitted into evidence a 

recording of a 9-1-1 call. We affirm.

Facts and Procedural History

[2] On December 27, 2017, during the evening, Sanders’ girlfriend Dyreece 

Simmons told Sanders that she wanted “to end the[ir] relationship.” Tr. at 72. 

The next morning, Simmons and her coworker Shelbie Fredette were working 

at Dress Barn in Indianapolis when Sanders arrived. Sanders and Simmons 

began to talk and, after Simmons reiterated her desire to break up with him, 

Sanders hit her with an “open hand,” which knocked her glasses off of her face 

and left a scratch on her nose. Id. at 73. Sanders left, and Simmons 

immediately called 9-1-1 to report the battery.

[3] Indianapolis Metropolitan Police Department Officer Ted Sadownik arrived at 

Dress Barn and, while he was talking to Simmons, he observed that she was 

“upset” and had been crying, and he saw a scratch on her nose. Id. at 102. 

Simmons also showed Officer Sadownik her glasses, which were “crushed, 

broken.” Id. Simmons told Officer Sadownik that Sanders had hit her.

[4] The State charged Sanders with domestic battery, as a Class A misdemeanor;

battery, as a Class A misdemeanor; and criminal mischief, as a Class B 

misdemeanor. At trial, when the State moved to admit a recording of 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 3 of 5

Simmons’ 9-1-1 call, Sanders objected on hearsay grounds. The trial court 

overruled his objection and admitted the recording. The jury acquitted Sanders 

on two charges but found him guilty of one count of battery, as a Class A 

misdemeanor. The trial court entered judgment of conviction and sentenced 

Sanders accordingly. This appeal ensued.

Discussion and Decision

[5] On appeal, Sanders contends that the trial court abused its discretion when it 

admitted into evidence the recording of Simmons’ 9-1-1 call. When Sanders 

objected to the admission of the recording, the State argued that it was 

admissible under the excited utterance exception, and the court agreed. 

Sanders maintains that, while Simmons was “undoubtedly upset” after Sanders 

hit her, the excited utterance exception does not apply because Simmons’ 

“statements were not inherently reliable.” Appellant’s Br. at 11. We cannot 

agree.

[6] 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).

[7] 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 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 4 of 5

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. While the amount of time that passed between the startling 

event and a subsequent statement is, of course, one factor to consider in 

determining whether the statement was an excited utterance, no precise length 

of time is required. Gordon v. State, 743 N.E.2d 376, 378 (Ind. Ct. App. 2001). 

In Fowler, for instance, 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. 829 N.E.2d at 463-64.

[8] Here, the evidence shows that the recording of the 9-1-1 call was properly 

admitted under the excited utterance exception to the hearsay rule. Simmons 

called 9-1-1 immediately after Sanders hit her, which was a startling event. 

Indeed, she told the operator that the incident had occurred “a few seconds 

ago.” State’s Ex. 4. Fredette observed that Simmons was “upset” and

“physically shaking” when Simmons called 9-1-1. The trial court acted within 

its inherent discretionary power when it admitted into evidence the recording of 

the 9-1-1 call as an excited utterance.

[9] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1852 | March 21, 2019 Page 5 of 5

Pyle, J., and Altice, J., concur.