Larry Joseph Kubsch, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

May, Judge.

[1] Larry Joseph Kubsch, Jr., appeals his conviction of Class A misdemeanor domestic battery.¹ He raises two issues on appeal, which we reorder and restate as:

1. Whether the trial court abused its discretion by admitting into evidence, under the hearsay exception for an excited utterance, body-camera footage from the responding police officer that contained statements by the alleged victim, who did not testify at trial; and

2. Whether the evidence was sufficient to support Kubsch's conviction.

Because the trial court did not abuse its discretion by admitting the evidence and the evidence in the record was sufficient to support Kubsch's conviction, we affirm.

Facts and Procedural History 2

[2] Around 2:00 a.m. on June 22, 2023, police were dispatched to a domestic disturbance at the South Bend home shared by M.S. and Kubsch. South Bend Police Officer Rosie Staatz arrived at the scene within five minutes of the dispatch and spoke with M.S., who “was very upset, crying.” (Tr. Vol. 2 at 6.) Officer Staatz's body camera recorded the interaction with M.S., and Officer Staatz noted M.S. “had redness on the side of her face where she said she was hit as well as a bump on her head” that was painful when Officer Staatz palpated it. (Id. at 14.) The only other person in the home when M.S. received these injuries was Kubsch, and M.S. repeatedly indicated that “he” had injured her. (Id.) Police arrested Kubsch.

[3] The State charged Kubsch with Class A misdemeanor domestic battery. At trial, Officer Staatz was the only witness for the State. During her testimony, the State sought to admit three minutes of footage from Officer Staatz's body camera during which Officer Staatz was interacting with M.S. on June 22, 2023. Kubsch objected to the admission of “anything that was stated by the [alleged] victim here as hearsay because they're being used for the truth of the matter asserted.” (Id. at 10.) The State argued M.S.’s statements were admissible under the excited utterance exception to the rule against hearsay. The trial court admitted M.S.’s statements as evidence. Following Officer Staatz's testimony, Kubsch testified on his own behalf. The trial court found Kubsch guilty and imposed a ninety-day sentence.

Discussion and Decision

1. Admission of Body Camera Footage

[4] Kubsch argues the footage from Officer Staatz's body camera should not have been admitted under the excited utterance exception to the rule against hearsay. Admission of evidence is trusted to the broad discretion of the trial court. Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014). We review the court's decision for an abuse of discretion, which occurs when the court's decision “is clearly against the logic and effect of the facts and circumstances” before the court, id., or when the court has misinterpreted the law. Hayko v. State, 211 N.E.3d 483, 488 (Ind. 2023), reh'g denied, cert. denied 144 S. Ct. 570 (2024). “There is a strong presumption that the trial court properly exercised its discretion.” Chambless v. State, 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied. As we review the trial court's decision, we consider only the evidence favorable to the trial court's ruling and any “unrefuted evidence that favors the defendant.” Id. “[W]e may affirm the trial court's decision on any basis supported by the record.” Means v. State, 201 N.E.3d 1158, 1163 (Ind. 2023). Whether a statement was an excited utterance “is essentially a factual determination subject to a clearly erroneous standard of review, sometimes described as the functionally equivalent abuse of discretion.” Davenport v. State, 749 N.E.2d 1144, 1148 (Ind. 2001), reh'g denied.

[5] The parties agree the statements by M.S., which were recorded by Officer Staatz's body camera, were hearsay. Hearsay is “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). For purposes of this rule, a “statement” includes both oral assertions and “nonverbal conduct if the person intended it as an assertion.” Evid. R. 801(a). “Hearsay is not admissible unless these rules or other law provides otherwise.” Evid. R. 802. Our Evidence Rules, however, contain a number of exceptions that render admissible some forms of hearsay statements. See Evid. R. 803 & 804. One such exception makes admissible statements that occurred as “excited utterances” – statements “relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.” Evid. R. 803(2).

[6] Our Indiana Supreme Court has explained:

The underlying rationale of the excited utterance exception is that such a declaration from one who has recently suffered an overpowering experience is likely to be truthful. While the event and the utterance need not be absolutely contemporaneous, lapse of time is a factor to consider in determining admissibility. Similarly, that the statements were made in response to inquiries is also a factor to be considered. Whether given in response to a question or not, the statement must be unrehearsed and made while still under the stress of excitement from the startling event.

Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000) (internal citations omitted). For evidence to be admissible as an excited utterance, its proponent must demonstrate: (1) a startling event occurred; (2) a statement was made under the stress of the excitement of the event; and (3) the statement relates to the startling event. Chambless, 119 N.E.3d at 189. “This is not a mechanical test. It turns on whether the statement was inherently reliable because the witness was under the stress of an event and unlikely to make deliberate falsifications.” Davenport, 749 N.E.2d at 1148.

[7] Kubsch notes that, although Officer Staatz testified she arrived at the scene “within five minutes” of the dispatch, (Tr. Vol. 2 at 5), Officer Staatz also testified she talked to the neighbor upon arriving and did not testify “how long [she] spoke with the neighbor[,]” (Appellant's Br. at 10), which means, according to Kubsch, that we do not know how much time passed between the dispatch and Officer Staatz's interaction with M.S. Kubsch also notes M.S. did not indicate “when the alleged battery took place[,]” (id. at 11), which, according to Kubsch, makes it impossible for the State to demonstrate M.S. was “under the stress of the startling event[.]” (Id.)

[8] We agree with Kubsch that the record does not reflect precisely how much time had passed between the dispatch and M.S.’s statements to Officer Staatz. Nor does the record reflect whether M.S. was slapped before or after the neighbor called the police. But we disagree with Kubsch's conclusion that this makes it impossible for the State to demonstrate M.S. was under the stress of a startling event. When M.S. learned that police were outside the house, she yelled for help repeatedly. While outside talking with Officer Staatz, M.S. was crying, apologizing for being upset, and unsure what to do because she had nowhere else to go. Moreover, during that conversation, M.S.’s cheek was still red on the side where Kubsch had slapped her with an open hand. These facts all suggest M.S. remained under the stress of the startling event of being battered by Kubsch when M.S. spoke to Officer Staatz.

[9] Kubsch also argues the first minute of the body camera footage contradicts the State's claim that M.S.’s statements were an excited utterance because M.S. seemed calm while she was in the upstairs window of the house and only became excited when she learned police were outside the house. (See Appellant's Br. at 10-11.) According to Kubsch, “[t]his unrefuted evidence shows that [M.S.] was reacting to the police presence and not to the alleged battery when she became excited.” (Id. at 11.) We again disagree with the conclusion Kubsch reaches, which is based on only favorable-to-him inferences from the available evidence.

[10] We agree with Kubsch that, prior to learning police had arrived, M.S. was standing still and she appeared quiet. Kubsch infers from her behavior that she was not excited, but other possible inferences are that she was in shock from being battered or was frozen in fear that Kubsch would hit her again. When she became aware of police presence and was able to reach the assistance that she needed, M.S. began to cry and told Office Staatz that she had been hit. Some of her reports were in response to Officer Staatz's questions, but others were spontaneous and unrelated to the questions posed. M.S. demeanor while speaking to Officer Staatz supports the trial court's determinations that M.S. was under the stress of a startling event and that her statements were therefore admissible as excited utterances. See, e.g., Boatner v. State, 934 N.E.2d 184, 187 (Ind. Ct. App. 2010) (No abuse of discretion in admitting statements as an excited utterance when, “although the exact time of the battery could not be established, [officer] testified [victim] was disoriented, crying, without shoes, and almost ran to him in her attempt to find help. She told [officer] that [defendant] had pushed her down and hit her even before he could ask her any questions.”).

2. Sufficiency of Evidence

[11] Kubsch also argues the State's evidence was insufficient to support his conviction. When faced with challenges to the sufficiency of evidence, we apply a “well settled” standard of review that leaves determinations of the weight of the evidence and credibility of the witnesses to the fact-finder. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). “We consider only the evidence most favorable to the trial court's ruling and will affirm a defendant's conviction unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ ” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).

[12] The State's Information alleged Kubsch “did knowingly touch [M.S.], a family or household member in a rude[,] insolent[,] or angry manner.” (Appellant's App. Vol. 2 at 41.) Thus, the elements of Class A misdemeanor domestic battery as charged against Kubsch required the State to prove: (1) Kubsch; (2) knowingly; (3) touched M.S. in a rude, insolent, or angry manner; and (4) Kubsch and M.S. lived together. See Ind. Code § 35-42-2-1.3(a)(1).

[13] Kubsch argues: “While Kubsch testified under oath that he did not touch [M.S.] in a rude, insolent, or angry manner, the statements made by [M.S.] were inconsistent ․ and she was unsteady on her feet to the level that Staatz had to physically help her from falling down.” (Appellant's Br. at 7.) As evidence of M.S.’s inconsistency, Kubsch notes: “While she stated at one point that she was punched, she then changed her story and stated that she was slapped.”³ (Id.) Kubsch claims the record is “void of sufficient evidence” to support his conviction beyond a reasonable doubt. (Id. at 8.)

[14] Kubsch testified that he and M.S. lived together and that they were arguing on the night in question. Officer Staatz testified M.S. had injuries on her face and head. M.S.’s statements included the following decipherable comments that support a battery conviction: “Yeah. Police. Yes. Help. Help.” (State's Ex. 1 at 00:46-00:40); “So he hit me again. We thought everything was gonna be okay. Every time I say something, [indecipherable]. [M.S. points to indicate her lip is injured.] He fucking busted me in the face.” (id. at 01:22- 01:34); “I think we'll be okay but he keeps hitting me.” (id. at 01:37-01:41); “I was trying to find my phone and he wouldn't let me get to anything. He pulled me by my hair and threw me out here.” (id. at 01:55-02:05); “He fucking slapped me, hit me. He won't let me use the phone. He pulled my hair and hit me again.” (id. at 02:40-02:50); “He threw water all over me.” (id. at 02:54-03:00); “I have nowhere to go and he hit me again.” (Id. at 03:15-03:20.) This evidence is sufficient to find Kubsch lived with M.S. and knowingly touched her in a rude, insolent, or angry manner. See, e.g., Perry v. State, 78 N.E.3d 1, 9-10 (Ind. Ct. App. 2017) (based on victim's statements to officer and detective at scene, the 911 call, the officer's testimony, and the victim's bloody lip, factfinder could determine defendant battered victim).

Conclusion

[15] The trial court did not abuse its discretion when it admitted M.S.’s statements to Officer Staatz into evidence under the excited utterance exception to the hearsay rule. The State's evidence was sufficient to support Kubsch's conviction of Class A misdemeanor domestic battery. We accordingly affirm.

[16] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.3(a)(1).

3.   Although Kubsch seems to center his sufficiency argument around internal inconsistencies in M.S.’s statements, he has not argued that we should hold her statements should be ignored as incredibly dubious. See, e.g., McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018) (“Under our ‘incredible dubiosity’ rule, we will invade the [fact-finder's] province for judging witness credibility only in exceptionally rare circumstances.”). Nor could he meet that standard as M.S.’s injuries, which were visible and palpable to Officer Staatz, provided circumstantial evidence of Kubsch's guilt. See id. at 560 (affirming conviction because testimony did not meet incredible dubiosity standard when circumstantial evidence and other witness testimony corroborated challenged testimony).

Memorandum Decision by Judge May

Chief Judge Altice and Judge Vaidik concur. Altice, C.J., and Vaidik, J., concur.