Amos v. State, 49A02-0803-CR-229
2nd Dist., 11-25-08, Ind.App.
Attorney: Ellen O’Connor
Holding: Trial court did not abuse its discretion in admitting a victim’s statement under the present sense impression hearsay exception. Indiana Rule of Evidence 803(1) allows into evidence a statement that describes or explains the event or condition during or immediately after its occurrence if it is based upon the declarant’s perception of the event. Here, the victim’s sister testified that while she was talking on the phone with the victim, the victim put her on hold and answered another call. Upon the victim returning to the conversation, the sister asked “who was that” to which the victim responded “Amos,” who is the Defendant. The sister then asked “what did he want” to which the victim responded he said “he wanted some money” and if she did not give him money, he was going to kill her. The victim was describing to her sister an event, i.e., a cell phone conversation between herself and Defendant, immediately after the event. Moreover, the victim perceived the event. Thus, the victim’s statements were admissible as a present sense impression. Even if the victim’s statements at the end of the conversation that she was not going to let anyone in her home that night were inadmissible hearsay, their admission was harmless being that there was other evidence of forced entry. Held, judgment affirmed; Crone, J., concurring on basis that Defendant did not object to the victim’s statements at trial and thus waived any error.
