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 : ATTORNEYS FOR APPELLEE : JANE H. CONLEY GREGORY F. ZOELLER Indianapolis , Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIAN A

BRANDAN BELLAMY , ) ) Appellant

- Defendant , ) ) vs. ) No. 49A02

- 1210

- CR

- 866 ) STATE OF INDIANA , ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert R. Altice , Judge Amy J. Barbar, Magistrate Cause No. 49G02

- 1207

- FC

- 51526

June 13, 2013
MEMORANDUM DECISION

– NOT FOR PUBLICATION BAKER, Judge2

In this case, the victim of a domestic violence incident failed to appear at trial and testify against her assailant, the appellant

- defendant, Brandan Bellamy , who was ch arged with Battery, 1 a class C felony

. The trial court admitted a statement into evidence from the victim to a police officer that Bellamy had hit her as an excited utterance

. Under these circumstances, we conclude that the statement did not qualify as an excited utterance under the exception to the hearsay rule. Therefore, the trial court erred in admitting the statement. However, there was substantial independent evidence of Bellamy’s guilt through an eyewitness ’s testimony. Th erefore, the trial cou rt’s erroneous admission of the statement into evidence was harmless error, and we decline to set aside Bellamy’s conviction.
FACTS Sometime during the evening of July 27, 2012, Janet Miller arrived at a parking lot
near the Masterpiece Club in In dianapo lis. As Miller was exiting her vehicle, she heard “a lot of noise like somebody arguing.” Tr. p. 17. Miller could tell that the argument was “very heated” and a man and a woman were cursing at each other

. Id. When Miller initially encountered t he argu ment, the man , who was subsequently identified as Bellamy,
had not touched the woman . However, Miller eventually saw Bellamy punch the woman , who was later identified as Princess Hamler, and he “just knocked her out.” Id. at 18

- 19.
The woman fell to th e ground , and Miller approached Hamler . Miller noticed that
Hamler was “out cold” and not “moving at all.” Id. at 20, 22. Bellamy told Miller that

1 Ind. Code § 35

- 42

- 2

- 1(a)(3).3

“it’s

. . . none of [her] business and [told her] to get away.” Id. at 19, 24. Miller was
fearful t hat B ellamy might attack her, but a third man approached and Bellamy started to walk away. Miller noticed that Hamler “ was [still] not responsive, . . . and blood was gushing all out of her nose.” Id. at 25. Miller’s cousin , who was at the scene, called the police and H amler was eventually able to stand. When the police arrived, Miller walked
into the club. Indianapolis Metropolitan Police Department (IMPD) Officer Karen Pennington arrived within ten minutes in response to the dispatch

. Officer Penningt on saw two males and a female walking away from her. Officer Pennington heard Bellamy, the taller male, yelling, as O fficer Michael Harmon arrived from the other direction . As a result, the two males and the female stopped before the shorter male continu e d to walk away. Officer Pennington noticed that Hamler’s nose was bleeding and that blood was covering her shirt. Hamler’s eyes were also bloodshot. When Hamler identified herself to Officer Pennington , she was wiping her face with her hands. Hamle r appeared to be
disoriented and confused.
After standing with the police officers for about t wenty minutes , Hamler turned to Bellamy and said three times to Bellamy, “you hit me.” Id. at 66. Hamler made those statements without any questioning f rom the police officers , had not provided any
statements to them , and seemed lucid

. Hamler also indicated that she did not want to talk to the police.4

Bellamy had blood on his pants and hands and the police officers noticed a “ strong odor of alcoholic beverag e on his breath and person. Bellamy also had blood

- shot watery
eyes [and] his speech was slurred. ” Id. at 49. Bellamy refused to cooperat e with the police and was being “very loud.” Id. As a result, Bellamy was arrest ed for disorderly
conduct after he continued to yell at Hamler and after the police told him to be quiet on several occasions. Id. at 63

- 64. The police officers then called for paramedics to examine Bellamy and Hamler, but neither requested treatment. Bellamy was charged with battery, a class C felony , and waived his right to a jury
trial . A bench trial commenced on September 7, 2012, but Hamler did not appear. During trial, the following colloquy occurred between the deputy prosecutor and Officer
H armon on direct examination:

Q. Uhm, did you hear Ms. Hamler make any comments directed towards Mr. Bellamy? A. Yes, towards the end of the

— MS. BAUDER: I’m going to object at this point as to hearsay. Again, it’s hearsay and it would be a violation of his right to confront this witness as she won’t be here under the Sixth Amendment, under the United States C onstitutions, Article I, Section 13, under the Indiana Constitution. THE COURT: Response. MS. WILSON: Yes, Judge. In regard to hearsay exception, I believe it falls und er 803.2, as an exc ited u tterance.

. . . THE COURT: Would you li k e to say anything in that

— to their argument.5 MS. BAUDER: My only other argument is even if it i s and does not meet uhm, the re quir e ments under the hearsay exception, I’ll never be a ble to confront her about that and he would lose all of his constitutional rights as I’ve stated twice now. Uhm because I will never be able to confront her. THE COURT: Well, the Supreme [C] ourt’s addressed that matter. And excited utterance s are still pe rmitted under the exception to the hearsay rule, so the Court will overrule the objection. Q. Officer Harmon, what did you hear Ms. Hamler say towards the defendant?
A. She stated three times, “You hit me.” Q. When she was indicating that, was it i n a conversation tone like we’re speaking?
A. No, it was, uhm, an angry tone. Q. Okay. Louder or softer?
A. Louder. Tr. p. 65

- 66. Bellamy was found guilty as charged and was subsequently sentenced to four years of incarceration for cl ass C felony battery. 2 Bellamy now appeals.
DISCUSSION AND DECISION Bellamy contends that his conviction must be reversed because the trial court improperly admitted hearsay evidence and therefore violated his right to confront and

cross - examine Hamler

. More particularly, Bellamy argues that the trial court’s admission

2 Bellamy also pleaded guilty to a habitual offender charge. The trial court enhanced the four

- year s entence on the battery count by four years, for an aggregate term of eight years. Tr. p. 109.6

of Hamler’s statement, “you hit me,” to Officer Harmon, did not qualify as an excited utterance exception to the hearsay rule. Appellant’s Br. p. 6. In resolving this issue, we initi ally observe that the decision to admit or exclude evidence is within the trial court’s sound discretion. Johnson v. State , 831 N.E.2d 163 , 168

- 69 (Ind. Ct. App. 2005). We will reverse only upon a showing of an abuse of
discretion. Southern v. State , 87 8 N.E.2d 315, 321 (Ind. Ct. App. 2007)

. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court. Id. We will reverse only when a manifest
abuse of discretion d enies the defendant a fair trial. Norton v. State , 785 N.E.2d 625, 629
Ind. We do not reweigh the evidence and will consider conflicting evidence in a light most favorable to the trial court’s ruling. Cole v. State , 878 N.E.2d 882, 885 (Ind. Ct. App. 2 007). Hearsay is an out

- of

- court statement that is offered to prove the truth of the matter
asserted and is inadmissible unless it falls under a particular exception. Ind. Evid. Rule 801; Jenkins v. State , 725 N.E.2d 66, 68 (Ind. 2000). One such excep tion is an “ excited

utterance ,” which is defined under Indiana Evidence Rule 803(2) 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

. ” To qualify as an excited utterance , three
elements must exist: 1) a startling event or condition has occurred; 2) the de clarant made
a statement while under the stress or excitement ca used by the event or condition ; and 3)
the statement was rel ated to the event or conditi on. Young v. State , 980 N.E.2d 412, 4217

(Ind. Ct. App. 2012), trans. denied. The heart of the inquiry is whether the declarant was incapable of thoughtful reflection. Id. In this case, Bellamy ’s sole challenge is whether Hamler’s statement qualified as an excited utterance

. In support of the contention that Hamler’s comments should not have been admitted as an excited utterance, Bellamy dir ects us to our Supreme Court’s opinion in Hammon v. State , 829 N.E.2d 444 (Ind. 2005), which was analyzed as a companion case and actually reversed in Davis v. Washington , 547 U.S. 814 (2006).
In Hammon , the evidence demonstrated that police officers responded to a report that involved a domestic disturbance at the Hammons’s residence. A police officer
intervie wed the wife and obligated her to swear to a statement accusing her husband of
domestic violence

. Hammon’s wife did not appear a t his bench trial, but her affidavit and testimony from the police officer who questioned her were admitted over the defendant’ s objection. The State claimed that Wife’s statement fell under the excited utterance exception to the hearsay rule. Our Supreme Court agreed, and concluded that while the affidavit was testimonial and, therefore, wrongly admitted, it was harmless beyo nd a reasonable doubt, primarily because the trial was to the bench.
The United States Supreme Court went on to reverse Hammon’s conviction pursuant to his Sixth Amendment rights. In so doing, the Supreme Court determined that
the admission of Hammon ’s wife’s statement was not harmless because defendant’s conviction was reversed, and it was observed that “in cases like this one, where wife’s8

statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged
crime scene . . . is immaterial. ” Davis , 547 U.S. at 832. Notwithstanding the above rationale, the S tate maintains that Hamler’s statement qualified as an excited utterance and d id not vio l ate Bellamy’s right to confront and

cross - examine Hamler because she appeared disoriented and confused and did not become lucid until the investigation was nearly over . The State notes that Hamler’s statements were not responsive to any police questioning , and she was not cooperative with the police officers. Therefore, the S tate argues that Hamler’s statements were properly admitted as an excited utterance.
The evidence in this case demonstrated that more than thirty minutes had elapsed
since the incident had occurred. Officer Pennington arrived at the scene shortly after it
occurred and she had to be directed to the area where the argument ensued. Officer Pennington first noticed Hamler and Bellamy as they were walking away from the a rea. Both Bellamy and Hamler told Officer Pennington that they did not need any assistance. Although Hamler spoke with the police officers, she did so only when one of the m approached her. T he paramedics were dispatched to the scene and did not arrive f or nearly thirty minutes. They were not asked to treat either Hamler or B elamy , and it was during this time that Hamler made the statement to Officer Harmon that Bellamy had hit
her. Bellamy was already in handcuff s, and Officer Harmon described Hamler a s “lucid.” Tr. p. 64

- 65.9

In our view, the evidence fails to demonstrate that Hamler w as “inc apable of thoughtful reflection ” as the excited utterance exception requires. Young v. State , 980
N.E.2d 412, 420 (Ind. Ct. App. 2012). Indeed, after the incide nt, Hamler got up, walked
away , and refused to speak with the police officers . Hamler was in no danger from Bellamy and the officers observed her walking away from the scene with him. That said,
we conclude that the trial court erred in allowing Hamler’s statement into evidence and acceptin g her statements as an excited utterance be cause it was made more than one

- half
hour after the event and Hamler had been described as lucid. However, our inquiry does not stop here. Bellamy is not entitled to a r eversal of
his convictio n because the trial court’s admission of Hamler’s statements into evidence

was harmless error . An error is harmless i f there is substantial independent evidence of guilt satisfying the reviewing court that there is no substantial l ikelihood that the challenged evidence contributed to the conviction.” Turner v. State , 953 N.E.2d 1039,
1059 (Ind. 2011)

. Here, Hamler’s statements were only cumulative of Miller’s testimony. As discussed above, Miller testified that she saw a man wh om she later identified as Bellamy , punch Hamler. Tr. p. 19

- 20, 22. The punch left Hamler unconscious on the ground for nearly ten minutes. Id. at 20. The punch caused blood to “gush[]” fro m her

nose. Id. In our view, th e State presented independen t sufficient evidence to establish that Bellamy had struck Hamler. Indeed, Bellamy did not deny hitting Hamler. Id. at 76

- 77.10

For these reasons, we conclude that any error in admitting Hamler’s statements into evidence was harmless. Thus, we decline to set aside Bellamy’s conviction. The judgment of the trial court is affirmed. MAY, J., and MATHIAS, J., concur.