PARKES v. STATE (2026)

MEMORANDUM DECISION

[1] Thomas Parkes appeals his convictions for battery with bodily injury to a public safety officer, strangulation, and two counts of domestic battery. He claims the trial court abused its discretion in admitting certain evidence. We affirm.

Facts and Procedural History

[2] On February 14, 2024, Parkes and his wife L.P. were at their home engaging in “BDSM” activities.¹ Transcript Volume III at 69. B.D. is the biological daughter of L.P. and the stepdaughter of Parkes. B.D. observed Parkes push L.P. several times and hold her by the neck and noticed that L.P. was gasping for air. B.D. called her aunt, T.W. T.W. drove to Parkes and L.P.’s house, and when she arrived, B.D. and her brother exited the house and entered her vehicle. T.W. knocked on the door, L.P. answered the door, and T.W. entered the house and had a conversation with L.P. T.W. went into the kitchen, and Parkes “saw [her] and then proceeded to get in [her] face.” Id. at 55. He “told [her] to get the F out” and “pushed [her] against the counter.” Id. “As [T.W.] went to leave, he asked where [her] phone was,” she “grabbed [her] pocket so he couldn't get it,” and “he got mad and threw [her] to the ground.” Id. at 55-56. While T.W. was on the floor, L.P. “was trying to get [Parkes] off and at one point he stood up and slapped her across the face really hard.” Id. at 56. T.W. ran to and entered her vehicle, called 911, and stayed in the neighborhood until police arrived. At some point, Parkes left the house.

[3] Knox County Sheriff's Deputy Parker Tromley arrived at the scene and observed that L.P. had visible injuries to her face and neck, was bleeding from her mouth, and was holding a napkin up to her mouth. Deputy Tromley's impression was that L.P. “was choked, bit, and beaten” and the visible marks on her face appeared to be non-consensual. Transcript Volume II at 148. B.D., while standing in a hallway upstairs in the house, made a statement to Deputy Tromley which was recorded using his body camera. Officers located Parkes on the ground in a nearby wooded area. He was belligerent and yelling. Officers eventually transported Parkes to jail. At the jail, Parkes “headbutted” Sergeant Arva Mauck. Transcript Volume III at 9.

[4] The State charged Parkes with: Count I, battery resulting in bodily injury to a public safety official as a level 5 felony; Count II, battery resulting in bodily injury to a public safety official as a level 5 felony; Count III, battery against a public safety official as a level 6 felony; Count IV, strangulation as a level 6 felony; Count V, domestic battery as a level 6 felony; Count VI, domestic battery as a level 6 felony; Count VII, domestic battery as a level 6 felony; and Count VIII, resisting law enforcement as a level 6 felony. The court held a jury trial. The court admitted photographs of L.P.’s injuries including marks around her neck and a bite mark. L.P. testified that all of her injuries in the photographs were the result of consensual sex.

[5] Outside the presence of the jury, the prosecutor stated, “[o]n February 14th, leading into the 15 ․ there was an incident at your home” and asked “[d]o you recall any of that,” and B.D. answered “No.” Id. at 96. When asked, “[y]ou just watched a video of you giving a statement to Deputy Tromley. Do you agree that you did that,” B.D. answered “Yes.” Id. When asked, “[t]hat was shortly after this incident would've occurred; is that correct,” she replied affirmatively. Id. The prosecutor asked, “[t]hat's your residence that you're in, you're coming down the hallway from your bedroom,” and B.D. replied affirmatively. The prosecutor then asked, “[n]ow, you are telling us you don't have any accurate or independent memory of what happened that night, right,” and B.D. answered “Yes.” Id. He asked, “[w]hen you were talking to the police officer, would you have told him the truth,” and B.D. replied: “I may have. I don't remember anything. My aunt told me to tell him to look like a bad guy.” Id. at 96-97. The prosecutor asked, “[w]hen did your aunt tell you that,” and B.D. stated “I remember that she had -- we were in the car and that's it.” Id. at 97. The prosecutor stated “[s]o the only thing you remember about this is your aunt telling you to make him look like the bad guy,” and B.D. replied “Yes.” Id. Defense counsel asked “[t]hat was actually three hours after the events, correct? The events were ․ around 11:30,” B.D. stated “I don't --,” defense counsel stated “10:30,” and B.D. replied “I don't know.” Id.

[6] The prosecutor argued that B.D.’s statement to Deputy Tromley was admissible as a present sense impression under Ind. Evidence Rule 803(1). The trial court found “the statement does describe an event or condition without calculated narration,” “[t]here's dogs barking,” “she's in the hallway,” “there's not a bunch of leading questions,” “[t]he timeline is that this is hours later, but I think that cuts both ways insofar as this is apparently one or two o'clock in the morning,” “[s]he is still more than alert,” “[s]he has information that rattles right off without having to dig for it,” “it has an indicia of reliability,” “[s]he's also talking to a police officer in her own home,” and “[t]here seems to be some degree of chaos all around her.” Id. at 101-102. The prosecutor argued that B.D.’s statement was also admissible under Ind. Evidence Rule 803(5) as a recorded recollection of “a matter the witness once knew about but cannot recall well enough to testify truthfully and accurately,” and the court agreed. Id. at 103.

[7] In the presence of the jury, B.D. indicated that she did not have any independent recollection of the events and that viewing a recording of herself talking to Deputy Tromley did not “jog [her] memory.” Id. at 107. The prosecutor asked, “[t]he one thing you do remember, could you tell us what you say you remember ․ your Aunt [T.W.] told you,” and B.D. answered “[s]he told me to make him seem like the bad guy.” Id. The prosecutor moved to admit the recording of B.D.’s statement to Detective Tromley, and the court admitted the statement as State's Exhibit 15. The jury found Parkes guilty of battery with bodily injury to a public safety officer as a level 5 felony under Count II, strangulation as a level 6 felony under Count IV, and domestic battery as level 6 felonies under Counts V and VI and not guilty on the remaining counts.

Discussion

[8] Parkes argues the trial court abused its discretion in admitting the recording of B.D.’s statement to Deputy Tromley. He argues B.D.’s statement did not qualify as a present sense impression or recorded recollection as found by the trial court or as an excited utterance. With respect to the recorded recollection exception, he argues “B.D. could not vouch for the accuracy of her prior statements to the deputy within Exhibit 15.” Appellant's Brief at 13. As for the present sense impression exception, he contends “B.D. was not describing an event that she was perceiving while she was answering the deputy's questions.” Id. Regarding the excited utterance exception, he asserts that, “[a]t the time of the statement, B.D.’s capability of thoughtful reflection is apparent from both the events that separated the fracas from the statement and the footage from the body camera.” Id. at 14. He argues, “[a]s to the body camera, it is hard to image [sic] a calmer and more composed child speaking to an officer” and “the chance for deliberation under the specific facts of this case take her hearsay statements outside the scope of the excited utterance exception.” Id. at 15.

[9] The trial court has broad discretion to rule on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court's ruling on the admission of evidence is generally accorded a great deal of deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh'g denied. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless admitted pursuant to a recognized exception. Ind. Evidence Rule 802. The recognized exceptions include a “[r]ecorded [r]ecollection” under Ind. Evidence Rule 803(5) and an “[e]xcited [u]tterance” under Ind. Evidence Rule 803(2).

A. Ind. Evidence Rule 803(5)

[10] A recorded recollection is a record that “(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge.” Ind. Evidence Rule 803(5).

[11] There is no question that the challenged statement related to a matter B.D. “once knew about” but could not “recall well enough to testify fully and accurately.” See Ind. Evidence Rule 803(5)(A). The prosecutor elicited testimony from B.D. that she did not recall “any” of the events of February 14th and 15th and that she did not have “any accurate or independent memory of what happened that night.” Transcript Volume III at 96.

[12] The record further supports the determination that B.D. gave her statement to Deputy Tromley “when the matter was fresh in [her] memory.” See Ind. Evidence Rule 803(5)(B). The prosecutor elicited testimony from B.D. that she gave her statement to Deputy Tromley “shortly after” the events occurred. Transcript Volume III at 96. While defense counsel pointed to the time which elapsed between the events and B.D.’s statement, the trial court, while discussing present sense impression, found that B.D. was “alert” and had “information that [she] rattle[d] right off without having to dig for it.” Id. at 102.

[13] Finally, the record supports the conclusion that B.D.’s statement “accurately reflect[ed] [her] knowledge.” See Ind. Evidence Rule 803(5)(C). B.D. acknowledged that she did make the statement to Deputy Tromley and that it occurred shortly after the incident. The prosecutor asked, “[w]hen you were talking to the police officer, would you have told him the truth,” and B.D. replied: “I may have. I don't remember anything. My aunt told me to tell him to look like a bad guy.” Transcript Volume III at 96-97. When asked, “[s]o the only thing you remember about this is your aunt telling you to make him look like the bad guy,” B.D. replied affirmatively. Id. at 97. The court noted, while discussing present sense impression, that B.D.’s statement described events “without calculated narration,” “there's not a bunch of leading questions,” “[s]he is [ ] more than alert,” “it has an indicia of reliability,” and “[s]he's also talking to a police officer in her own home.” Id. at 102.

[14] Based on the record, we cannot say that the trial court abused its discretion in finding that B.D.’s statement to Deputy Tromley constituted a recorded recollection and was admissible under Ind. Evidence Rule 803(5).

B. Ind. Evidence Rule 803(2)

[15] An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Ind. Evidence Rule 803(2). Application of this rule is not mechanical and admissibility should generally be determined on a case-by-case basis. Palacios v. State, 926 N.E.2d 1026, 1031 (Ind. Ct. App. 2010). The heart of the inquiry is whether the statement is inherently reliable because the declarant was incapable of thoughtful reflection. Id. (citing Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996)). The statement must be trustworthy under the specific facts of the case at hand. Id. The focus is on whether the statement was made while the declarant was under the influence of the excitement engendered by the startling event. Id. “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.” Yamobi, 672 N.E.2d at 1346. Also, the amount of time that passed between the startling event and the statement is one factor to be considered in determining admissibility as an excited utterance but the factor is not dispositive. Id.

[16] The record shows that B.D. stated to Deputy Tromley that she observed Parkes push L.P. several times and hold L.P. by the neck and noticed L.P. was gasping for air. While B.D. may not have been crying and was able to answer Deputy Tromley's questions, the video recording shows that Deputy Tromley knocked on a bedroom door and asked to speak with B.D. and that B.D. entered the hallway, stated that she had adrenaline, told Deputy Tromley what she observed, and appeared anxious and shaken. The court found that B.D.’s statement was not calculated, she was very alert despite the time of night, and there was a “degree of chaos.” Transcript Volume III at 102. Ind. Evidence Rule 803(2) was an additional basis for the admission of B.D.’s statement to Deputy Tromley. See Palacios, 926 N.E.2d at 1031 (statement to officer that defendant struck her constituted excited utterance although declarant was not crying and was able to answer questions).²

[17] For the foregoing reasons, we affirm Parkes's convictions.

[18] Affirmed.

FOOTNOTES

1.   Parkes and L.P. previously signed a “BDSM Contract” outlining their agreement related to engaging in BDSM activities. Exhibits Volume I at 25. The “Glossary” to the contract defines “BDSM” as “Bondage, Discipline/Domination, Submission/Sadism, Masochism.” Id. at 33 (notes omitted).

2.   Because we conclude the challenged evidence was admissible as a recorded recollection and an excited utterance, we do not decide whether the present sense impression exception applied.

Brown, Judge.

Felix, J., and Scheele, J., concur.