Dunn v. State, 22A01-0903-CR-127
1st Dist., 01-15-10, Ind.App.
Attorney: Patrick Biggs
Holding: In class C felony battery prosecution, Defendant’s girlfriend’s voicemail message to victim that Defendant acted out of jealousy when he hit the victim was based on personal knowledge and admissible under Indiana Evidence Rule 602, even though Defendant’s girlfriend testified she did not see Defendant hit the victim, because other witnesses testified that she saw the incident and tried to stop Defendant from hitting the victim. Rule 602 states, in part: “Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness.” (emphasis added)
Voicemail message about Defendant’s motive was an admissible opinion under Evidence Rule 701 because it was one a “reasonable person could form based on the perceived facts” considering that girlfriend was with Defendant that evening and had dated him off and on for several years. Voicemail also met Rule 701 requirement that opinion must be helpful because it helped determine a fact in issue, i.e., whether Defendant instigated or participated willingly in the fight. Held, judgment affirmed.
