EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, January 13, 2012

Parting Gesture: Court Of Appeals Of Indiana Finds Trial Court Properly Found Hand Gestures Were Excited Utterances

Like its federal counterpartIndiana Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

And, as the recent opinion of the Court of Appeals of Indiana in Evans v. State, 2012 WL 77216 (Ind.App. 2012), makes clear, this "excited utterance" exception covers not only oral statements but also nonverbal conduct intended as an assertion.

In Evans,

A.K. was a 37–year–old resident at Eagle Valley Meadows, a long-term care facility in Indianapolis. A.K.'s family had placed her in the facility after she suffered a ruptured brain aneurysm that left her severely physically handicapped and unable to care for herself. She breathes through a tracheotomy tube and is fed through a tube. Although A.K. has feeling in her limbs, she maintains only a slight ability to move her left hand. The aneurysm did not affect her cognitive functions, and she communicates through hand gestures to indicate "yes" and "no" using her left hand. A.K.'s sister, M.K., visited A.K. at the facility every day.

Diyon Evans was a Certified Nursing Assistant at the facility and entered A.K.'s room at approximately 9:00 a.m. on April 7, 2009 and remained inside with the door closed for twenty to thirty miuntes

When M.K. arrived at the facility later that day, A.K. immediately began crying when she saw M.K. M.K. described the crying as "terrifying."...This was not the first time that M.K had seen A.K. cry, but because of the nature of her crying, M.K. suspected that something terrible had happened. M.K. asked A.K. a series of investigative questions to deduce what was wrong, beginning with whether her head hurt. A.K. gestured "no" to each of those questions....Then, not believing it to be a serious question, M.K. asked A.K. if she had been raped. A.K. began to cry harder and gestured "yes."...M.K. further questioned her sister, and A.K. signaled "yes" when asked whether it was one of her caretakers and whether that person was a man. A.K. also indicated she had been touched in her vagina and "butt" and gestured "yes" when asked whether the person had put his penis into her vagina and "butt."

At trial, the court allowed for the admission of testimony concerning A.K.'s gestures as excited utterances, leading to Evans' conviction for Rape and Criminal Deviate Conduct. After he was convicted, Evans appealed, claiming, inter alia, that the trial court erred in admitting testimony concerning A.K.'s gestures because "the State failed to present a clear record of the amount of time that elapsed between the rape and when A.K. reported the rape to M.K." 

The Court of Appeals of Indiana disagreed, concluding that

Here, the record reveals that Evans was in A.K.'s room with the door closed from approximately 9:00 to 9:30 a.m. M.K. testified that, when she arrived and A.K. told M.K she had been raped, she immediately reported that information to the on-duty nurse, who recalled talking to M.K. sometime around 5:00 p.m. Although the time between the incident and A.K.'s statements to M.K. may have been in upwards of seven hours, it is certainly conceivable that A.K.'s physical limitations prolonged the stress of the rape committed by her caretaker. Unable to talk, A.K. could not communicate to anyone about what had occurred until her sister arrived. Unable to move, she remained in the same bed where she had been raped. When she made the statements to her sister, A.K.'s crying was "terrifying."...Under these facts and circumstances, the trial court could reasonably conclude that, despite the elapsed time, A.K.'s statements to M.K. were made while she was under the continuing stress of excitement caused by the rape.



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