Alfred James Gullatt Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Alfred Gullatt Jr. was convicted of Level 5 felony domestic battery for punching his girlfriend, K.F., in the back of the head. He appeals his conviction, claiming the trial court committed fundamental error by admitting a recording of K.F.’s 911 call into evidence at trial. During this call, K.F. identified Gullatt as her assailant and stated, “He's not even supposed to be around me.” Tr. Vol. II, p. 11. According to Gullatt, this statement was a reference to a protective order entered against him in another criminal matter, and its admission into evidence deprived him of a fair trial. We find the alleged error harmless and, thus, not fundamental. We therefore affirm but sua sponte remand for the trial court to correct “merger” errors.

Facts

[2] Gullatt and K.F. were watching a movie at Gullatt's apartment one night when K.F. received a cellphone call from her “granddaughter's grampa.” Id. at 7. This upset Gullatt, who smashed K.F.’s cellphone with a hammer. Then, during the ensuing argument, Gullatt punched K.F. in the back of the head.

[3] After being punched, K.F. fled Gullatt's apartment, ran to a nearby gas station, and called 911. Police were dispatched to the scene, and K.F. was taken by ambulance to the hospital. She was diagnosed with a subdural hematoma and a concussion and spent 24 hours in the hospital's intensive care unit. Upon her release, K.F. experienced brain fog and memory issues for around two weeks. The back of her head also remained tender to the touch.

[4] Gullatt was arrested and charged with two counts of domestic battery, a Level 5 felony and Level 6 felony. The case proceeded to a jury trial, at which K.F. testified that Gullatt punched her in the back of the head. The State also offered into evidence, without objection, a recording of K.F.’s 911 call. On this call, K.F. identified Gullatt as her boyfriend and stated:

My boyfriend just like punched me in the face, hit me in the back of the head so I left his apartment. Him and his dog just chased me all the way down to this gas station. So his apartment is at [address redacted]. He's not even supposed to be around me. (Inaudible). We were trying to work things out but I went to his house and all this s***t happened but I was trying to leave. Him and his dog was just like following me all the way down to the gas station and started – I had nothing to do but call the police I (inaudible).

Id. at 11 (emphasis added).

[5] Additionally, the State offered into evidence, without objection, a recording of a video call that K.F. had with Gullatt after his arrest. During this call, Gullatt repeatedly told K.F. that the State would be forced to drop the charges against him if she refused to testify and did not show up to trial. The following exchange then occurred:

[K.F.]: It's domestic. I don't have to show up. Just remember. You made that choice, not me.

[Gullatt]: I did not make that choice. We was arguing. I didn't mean to put my hands on you.

Id. at 21.

[6] The jury found Gullatt guilty of both counts of domestic battery, but citing double jeopardy concerns, the trial court stated it would enter judgment of conviction on only the Level 5 felony charge. Despite this statement, both the court's “Judgment” entry on the Chronology Case Summary (CCS) and its Sentencing Order list “Conviction Merged” for the Level 6 felony charge. App. Vol. II, pp. 10, 144. The Sentencing Order also states “judgment merged” when discussing that charge. Id. at 144.

Discussion and Decision

[7] Gullatt appeals his conviction for Level 5 felony domestic battery, arguing that the trial court committed fundamental error by admitting the recording of K.F.’s 911 call into evidence at trial. We find no such error and affirm. But we sua sponte remand for the trial court to correct “merger” errors in both its “Judgment” entry on the CCS and its Sentencing Order.

I. Admission of 911 Recording

[8] Gullatt contends that when K.F. stated on the 911 call, “He's not even supposed to be around me,” she was referencing a protective order that was entered against him in another criminal matter. Tr. Vol. II, p. 11. Gullatt therefore claims the recording of the call was inadmissible under Indiana Evidence Rules 401 (i.e., statement was not relevant), 403 (i.e., statement's relevance was substantially outweighed by danger of unfair prejudice), and 404(b) (i.e., statement was evidence of prior bad act used to prove character in order to show action in conformity therewith).

[9] We generally review a trial court's evidentiary rulings for abuse of discretion. Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019). However, Gullatt did not object when the State offered the recording of K.F.’s 911 call into evidence. He therefore must establish that the admission of the recording was fundamental error. See Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010) (“Failure to object at trial waives the issue for review unless fundamental error occurred.”). “Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (internal quotation marks omitted).

[10] Even if we accept Gullatt's contention that K.F.’s statement—“He's not even supposed to be around me”—referenced a protective order entered against him in another criminal matter, Tr. Vol. II, p. 11, we fail to see how that vague reference would render the entire recording of K.F.’s 911 call inadmissible under Evidence Rules 401, 403, and 404(b). But even assuming the recording was inadmissible, the error in its admission was harmless, not fundamental. Christopher v. State, 248 N.E.3d 1243, 1246 (Ind. Ct. App. 2024) (“[H]armless error cannot be considered fundamental.”).

[11] Errors in the admission of evidence are harmless and not fundamental “when there is overwhelming evidence of the defendant's guilt.” Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017) (quoting Oldham v. State, 779 N.E.2d 1162, 1173 (Ind. Ct. App. 2002)). Here, the evidence included not only K.F.’s testimony that Gullatt punched her in the back of the head but also the recording of the video call in which Gullatt and K.F. discussed the incident. During this call, Gullatt admitted to the battery by stating, “I didn't mean to put my hands on you.” Tr. Vol. II, p. 21. He also showed consciousness of guilt by repeatedly encouraging K.F. not to testify against him. This evidence overwhelmingly supports Gullatt's conviction without the recording of K.F.’s 911 call.

II. Correction of Merger Errors

[12] Although the trial court stated it would enter judgment of conviction on only the Level 5 felony domestic battery charge, the court's “Judgment” entry on the CCS and the court's Sentencing Order both list “Conviction Merged” for the Level 6 felony charge. App. Vol. II, pp. 10, 144. The Sentencing Order also states “judgment merged” when discussing the Level 6 felony. Id. at 144.

[13] As these entries indicate that the court entered judgment of conviction for both Level 5 and Level 6 felony domestic battery, “merging” the offenses was not enough to resolve the court's double jeopardy concerns. See Spry v. State, 720 N.E.2d 1167, 1170 (Ind. Ct. App. 1999) (“Merging, without also vacating [lesser included] convictions, is not sufficient.”). Accordingly, we sua sponte remand this case to the trial court to vacate the “merged” conviction for Level 6 felony domestic battery in both its “Judgment” entry on the CCS and its Sentencing Order. See Owens v. State, 206 N.E.3d 1187, 1190-91 (Ind. Ct. App. 2023).¹

Conclusion

[14] We affirm Gullatt's conviction for Level 5 felony domestic battery. We also sua sponte remand for the trial court to vacate his “merged” conviction for Level 6 felony domestic battery.

FOOTNOTES

1.   A CCS entry on January 6, 2026, states “Abstract of Judgment Sent to DOC,” App. Vol. II, p. 12, but no Abstract of Judgment is found in the appellate appendix or on the Odyssey case management system. If the document sent to DOC contained the “merger” errors discussed in this opinion, it too must be corrected.

Weissmann, Judge.

Bailey, J., and Brown, J., concur.