Opinion
23A-CR-2636
08-07-2024
Jason M. Proctor, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Boone Superior Court Trial Court Cause No. 06D02-2208-CM-1314 The Honorable Bruce E. Petit, Judge
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge
[¶1] Jason Proctor appeals following his conviction of Class A misdemeanor battery resulting in bodily injury. Proctor raises one issue on appeal, which we revise and restate as whether the trial court committed reversible error when it did not allow a law enforcement officer to testify about what a witness told him shortly after the officer arrived on the scene. We affirm.
Facts and Procedural History
[¶2] On July 30, 2022, Sarah Smith ("Sarah") picked up Proctor and her mother, Lisa Smith ("Lisa"), from the American Legion Hall in Lebanon and drove them to the house where Sarah and Lisa lived with Sarah's boyfriend, Brendan Autrey. Sarah noticed that both Lisa and Proctor were "very intoxicated." (Tr. Vol. 2 at 50.) She smelled the odor of alcohol emanating from them and could tell they were inebriated by how they were walking and talking.
[¶3] Autrey and Mathieu Catozzi, Autrey's boss, were engaged in conversation in the house's front yard when Sarah, Lisa, and Proctor arrived, but Autrey and Catozzi moved to the house's back porch when they saw Sarah's car approaching the house. While Autrey and Catozzi were sitting on the back porch, Proctor came up behind Autrey and said "something along the lines of I've got a bone to pick with you or we need to have a word or something to that effect." (Id. at 23.) Autrey told Proctor that he was not interested in speaking with him and began to walk away. Proctor stopped Autrey after Autrey had walked about ten or fifteen feet. Proctor started poking Autrey "and trying to make a statement." (Id.) Autrey walked away from Proctor toward the front yard, and Proctor, Lisa, and Catozzi followed Autrey into the front yard.
[¶4] Catozzi got into the driver's seat of his vehicle. Autrey opened the front passenger side door of Catozzi's vehicle and sat in the front passenger seat, but Proctor held onto the top of the car door and would not let Autrey close the door. Lisa also laid down on the hood of Catozzi's vehicle so that they could not drive away. After a bit more arguing, Proctor grabbed Autrey's forearms and pulled him out of the car. Proctor then headbutted Autrey and the two began wrestling. Autrey was able to get Proctor into a headlock, and Lisa started pulling on Autrey's hair and hitting him in the face.
[¶5] Officer Tyler Winings of the Lebanon Police Department was one of the officers who responded to a dispatch regarding the fight, and the officers were able to break up the fight when they arrived. Officer Winings initially detained Autrey, but after speaking with him and conferring with the other officers on scene, Officer Winings released Autrey. The officers then arrested Lisa and Proctor. EMTs arrived on the scene and treated Autrey's injuries.
[¶6] On August 1, 2022, the State charged Proctor with Class A misdemeanor battery resulting in bodily injury, Class B misdemeanor public intoxication,and Class B misdemeanor disorderly conduct. The trial court held a bench trial on September 7, 2023. During Proctor's cross-examination of Officer Winings, the following exchange occurred:
[Proctor:] Did you learn during the course of your investigation whether Brendan, Mr. Autrey, had initiated any physical contact with Jason [Proctor]?
[Officer Winings:] Yes. It was stated by a witness on the scene that witnessed Brendan [Autrey] push-
[State:] -Ob-objection, Your Honor. This is clear pure [sic] hearsay.
[Court:] Sustained.
[Proctor:] Judge, I believe the officer's prior testimony was that everybody was in an excitable state when he arrived. He took the statements presumably shortly thereafter. So, I think it comes in under present sense impression or excited utterance.
[Court:] I am still going to sustain the objection.(Tr. Vol. 2 at 60.) Proctor did not make an offer of proof after the State's objection was sustained, and the trial continued.
[¶7] Proctor testified that Autrey pushed him when he confronted Autrey on the back porch. Proctor then explained that he followed Autrey around the house into the front yard and he held the car door open so Autrey could not shut it. According to Proctor, he held the door open for about thirty seconds and then slammed it shut. Proctor testified:
I just went over and got me a beer out of the cooler. The next thing I know I get a tap on my shoulder; I turned around and punches are thrown.... [Autrey] probably-he hit me a million times before I could get a hold of him and I headbutted him and we both went to the ground. [Catozzi] jumped on me. I don't know if Lisa jumped on him; I don't know. Everybody got pulled apart and by the time police got there I was standing on my feet up in the driveway like the officer said.(Id. at 72.)
[¶8] At the conclusion of trial, the court found Proctor guilty of Class A misdemeanor battery resulting in bodily injury and Class B misdemeanor disorderly conduct, but not guilty of Class B misdemeanor public intoxication. To avoid double jeopardy, the trial court entered only a judgment of conviction for Class A misdemeanor battery. On October 5, 2023, the trial court sentenced Proctor to a term of 365 days. The trial court ordered Proctor to serve 15 days of his sentence in jail, and the trial court suspended the remaining 350 days of his sentence to probation.
Discussion and Decision
[¶9] Proctor contends that the trial court erred by sustaining the State's hearsay objection and not allowing Officer Winings to testify regarding what a witness at the scene told him. We generally review a trial court's decision on the admission of evidence for an abuse of discretion. Hines v. State, 981 N.E.2d 150, 153 (Ind.Ct.App. 2013). "An abuse of discretion occurs when the trial court's determination is clearly against the logic and effect of the facts and circumstances before the court." Id.
[¶10] Proctor argues "the witness' statement to law enforcement should have been admitted as an excited utterance or present sense impression." (Appellant's Br. at 7.) "Hearsay is a statement not made by the declarant while testifying at trial that is offered to prove the truth of the matter asserted." Turner v. State, 183 N.E.3d 346, 358 (Ind.Ct.App. 2022), trans. denied. Hearsay is inadmissible unless the rules of evidence or other law provide otherwise. Id. One such exception to the rule against hearsay is for excited utterances. Id. "For a hearsay statement to be admitted as 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." Davenport v. State, 749 N.E.2d 1144, 1148 (Ind. 2001), reh'g denied. The core reasoning behind the excited utterance exception is that a witness under the stress of an event is unlikely to make deliberate falsifications. Id. Likewise, Indiana Rule of Evidence 803(1) provides an exception to the rule against hearsay for present sense impressions. A statement is a present sense impression if it: (1) describes or explains an event, condition, or transaction; (2) is made during or immediately after the event, condition, or transaction; and (3) is based on the declarant's personal perception of the event, condition, or transaction. Stott v. State, 174 N.E.3d 236, 243 (Ind.Ct.App. 2021).
[¶11] However, after the trial court sustained the State's objection to Officer Winings's testimony, Proctor did not make an offer of proof. "To preserve an issue for appeal with respect to the exclusion of evidence, a defendant must make an offer of proof at trial regarding the excluded evidence." Angulo v. State, 191 N.E.3d 958, 968-69 (Ind.Ct.App. 2022), trans. denied. "Failure to make an offer of proof results in waiver of the claim." Id. at 969. "A valid offer to prove must explain three points: (1) the testimony's substance; (2) the testimony's relevance; and (3) the grounds for admitting the testimony." Bedolla v. State, 123 N.E.3d 661, 666-67 (Ind. 2019). While the substance of Officer Winings's excluded testimony appears to be that a witness saw Autrey push Proctor, Officer Winings did not identify who the witness was or explain the circumstances in which the witness relayed the information to him. Even though police quickly arrived on the scene, we do not know if the unidentified witness spoke with Officer Winings "immediately after the declarant perceived" the event, Ind. Evid. R. 803(1), or while still "under the stress of excitement that it caused." Ind. Evid. R. 803(2). Without that information, we cannot determine whether the witness's statement fell into either of those two exceptions to the rule against hearsay. Consequently, Proctor's failure to make an offer of proof results in waiver of his claim on appeal. See, e.g., Cole v. State, 28 N.E.3d 1126, 1135 (Ind.Ct.App. 2015) (holding defendant's failure to make offer of proof at trial resulted in waiver of appellate claim that trial court erroneously excluded evidence of witness's prior bad acts).
Likewise, while Proctor asserts on appeal that Indiana Rule of Evidence 803(8)(B)(i) allows the accused in a criminal case to offer into evidence law enforcement investigative reports and Officer Winings summarized his conversations with witnesses in the probable cause affidavit, Proctor did not offer the probable cause affidavit as evidence at trial. Therefore, because Proctor did not make his argument premised on Rule 803(8)(B)(i) before the trial court, he may not make it for the first time on appeal. See, e.g., State v. Allen, 187 N.E.3d 221, 228 (Ind.Ct.App. 2022) (holding defendant could not assert new argument for the first time on appeal), trans. denied.
[¶12] Waiver notwithstanding, the trial court's ruling did not affect the fairness of Proctor's trial. Even when a trial court erroneously admits or excludes evidence, we will not reverse a defendant's conviction if the error did not prejudice his substantial rights. Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021). "The harmless-error analysis is a practical one, embodying the principle that courts should exercise judgment in preference to the automatic reversal for error and ignore errors that do not affect the essential fairness of the trial." Id. (internal quotation marks omitted).
[¶13] Proctor contends the unidentified witness's statement would have "corroborated [his] version of events" and "could have made a difference for the trial court in assessing credibility." (Appellant's Br. at 10.) However, a trial court's exclusion of evidence is, at most, harmless error if the excluded evidence is cumulative of other evidence admitted. Sincere v. State, 228 N.E.3d 439, 446 (Ind.Ct.App. 2024), trans. denied. Proctor testified that Autrey pushed him during their confrontation on the back porch, and therefore, the unidentified witness's statement that Autrey pushed Proctor was merely cumulative of Proctor's testimony. See, e.g., Burkins v. State, 219 N.E.3d 735, 744-45 (Ind.Ct.App. 2023) (holding trial court's exclusion of evidence regarding victim's membership in the Aryan Brotherhood was at most harmless error because it was cumulative of other evidence demonstrating victim's membership), trans. denied. Moreover, even if Autrey pushed Proctor in the back yard, Autrey disengaged by walking to the front yard. Whether Proctor was guilty of battery turned on how physical contact was re-engaged in the front yard. Autrey testified that Proctor pulled him out of Catozzi's car and headbutted him.
Proctor testified that Autrey ran after him as he walked away from the car and then punched him "a million times[.]" (Tr. Vol. 2 at 72.) The trial court evaluated this testimony and found Autrey's version of events more credible. Thus, at most, any error in excluding Officer Winings's testimony about what a witness told him happened on the back porch was harmless. See, e.g., Bullock v. State, 903 N.E.2d 156, 163 (Ind.Ct.App. 2009) (holding trial court's ruling prohibiting defendant from asking witness about a change the witness made to his deposition was at most harmless error because the change was immaterial).
Conclusion
[¶14] Proctor waived his challenge to the trial court's ruling excluding a portion of Officer Winings's testimony by failing to make an offer of proof. Waiver notwithstanding, exclusion of the testimony did not render Proctor's trial unfair. Accordingly, we affirm.
[¶15] Affirmed.
Brown, J., and Pyle, J., concur.