K.Y., Appellant-Defendant, v. STATE OF INDIANA (1997)

MEMORANDUM DECISION - NOT FOR PUBLICATION

K.Y. was convicted of one count of battery as a class A misdemeanor. K.Y. presents three issues on appeal which we restate as:

I. Whether the trial court improperly admitted hearsay evidence.

II. Whether the evidence is sufficient to support the conviction.

III. Whether K.Y.’s right of confrontation was violated.

We affirm.

On April 8, 1996, police were dispatched to K.Y.’s residence in response to a domestic disturbance. When they arrived, the officers observed broken glass from a ceiling light in the kitchen. The officers also encountered the victim who was sitting on the couch, crying, and who appeared to the officers to be upset, shaken and scared. At trial, Officer Glaser testified, over objection, that the victim stated that the defendant had grabbed her by the neck in the upstairs bedroom and threw her to the floor with such force that the light downstairs in the kitchen was knocked to the floor.¹ K.Y. was convicted of battery and this appeal ensued.

I.

Hearsay

The trial court has broad discretion in ruling on the admissibility of evidence. We will disturb its ruling only upon a showing of abuse of that discretion. Drake v. State, 655 N.E.2d 574, 575 (Ind. Ct. App. 1995) (citing Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987), reh. denied).

K.Y. argues that Officer Glasser's testimony was inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). In this case, Officer Glasser's testimony was the only evidence as to the events which support K.Y.’s conviction and were clearly intended to prove that K.Y. committed a battery. Thus, Officer Glasser's testimony was hearsay.

The State contends that the statement was admissible under the excited utterance exception. Under this exception, a statement is admissible where a statement relates to a startling event or condition and is made while the declarant was under the stress of excitement caused by the event or condition. Ind. Evidence Rule 803(2). Three elements must be shown for a hearsay statement to be admitted as an excited utterance: (1) a startling event; (2) a statement is made by a declarant under the stress of excitement caused by the event; and (3) the statement relates to the event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). The heart of the inquiry is whether the statement is inherently reliable because, due to the excitement and stress engendered by the startling event, the declarant was incapable of thoughtful reflection. Id.

K.Y. argues that the trial court erred in admitting Officer Glasser's hearsay testimony under the excited utterance exception since there is no evidence in the record concerning the time lapse from the event to the statement. Since it is the human experience that stress and excitement will abate over time, as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance. Yamobi, 672 N.E.2d at 1346; Jones v. Greer, 627 F.Supp. 1481, 1492 (C.D.Ill. 1986).² Although the time lapse from event to statement is a factor which may be considered, the amount of time that has elapsed is not dispositive. Yamobi, 672 N.E.2d at 1346. The dispositive inquiry is “whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event.” Id. The amount of time which has lapsed simply goes to the reliability of the statement, not its admissibility.

In this case, there is ample evidence that the victim was under the excitement of the alleged battery. The police testified that the victim was sitting on the couch crying. The victim appeared shaken, very scared and upset. The victim still had red marks on her neck. There is sufficient evidence to establish that the victim was under stress and excitement from the event notwithstanding a failure by the State to establish the time lapse from event to declaration.

II.

Sufficiency of the Evidence

K.Y. next claims that the evidence is insufficient to support his conviction. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh. denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id.

The only evidence of a battery came from a police officer who testified that the victim stated K.Y. had grabbed her neck and threw her to the floor. According to K.Y., this testimony is not as reliable as his own live testimony where he denied doing any such act. This is simply an invitation to reweigh the evidence which we will not do. Id.

III.

Right of Confrontation

K.Y. also claims that the police officer's testimony violated his right to confront his accuser and his right of cross-examination. However, we note that K.Y. only objected on the basis of hearsay below and did not raise these objections with the trial court. A party may not change or add to the grounds of his objections in a reviewing court. Grinter v. Haag, 168 Ind.App. 595, 344 N.E.2d 320, 322 (1976), reh. denied. Accordingly, we conclude that K.Y. has waived this issue on appeal.

Affirmed.

FOOTNOTES

1.   Although she was subpoenaed, the victim did not appear and testify at trial.

2.   We note that the Indiana rule on excited utterance mirrors the federal rule. Yamobi, supra, at 1347.

STATON, Judge

HOFFMAN, J., and DARDEN, J., concur.