Cody A. Stinson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Allen Superior Court The Honorable Frances C. Gull,
Judge Trial Court Cause No. 02D05-1801-F3-1
ATTORNEY FOR APPELLANT Ryan M. Gardner Deputy Public Defender
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Samuel J. Dayton Deputy Attorney General
Cody A. Stinson ("Stinson") was convicted following
a jury trial of attempted murder,  a Level 1 felony, and
battery with a deadly weapon,  as a Level 5 felony, and he was
adjudicated to be an habitual offender. On appeal, he
raises the following restated issues:
I. Whether the trial court abused its discretion in admitting
statements under the excited utterance exception to the rule
against hearsay thereby prejudicing Stinson's right to a
fair trial; and
II. Whether the trial court abused its discretion when it
allowed the State to ask the victim leading questions during
and Procedural History
Around 10 p.m. on December 31, 2017, Stinson went to a New
Year's Eve party with his girlfriend Spring Applegate
("Applegate"), half-brother Shane Hobbs
("Hobbs"), and best friend Mark McVay
("McVay"). The four friends drank alcohol at the
party, and after McVay jumped over the bar and broke some
glasses, the host asked them to leave. The friends got into
their car and headed toward Hobbs's Allen County home,
stopping at Taco Bell along the way. Hobbs was driving the
car, McVay sat in the passenger seat, and Applegate and
Stinson sat in the back seat. Tr. Vol. 3 at 38.
During the drive, Stinson and Applegate began fighting, and
Hobbs and McVay told them to stop. A minute or two later,
Stinson reached over the front seat toward McVay. Hobbs then
heard a smacking or tapping sound, as if Stinson was hitting
McVay; Hobbs heard the sound at least five times. Tr.
Vol. 2 at 208. McVay appeared fine, but a few seconds
later, he slumped over and fell unconscious. Id. at
211. After realizing that Stinson, in fact, had been stabbing
McVay, Hobbs said to Stinson, "Are you fucking kidding
me? That's your best friend." Id. Hobbs was
also injured during the attack when Stinson, while drawing
his knife back, cut Hobbs's right temple. Id. at
208. The entire attack lasted between five and ten seconds.
Id. at 209.
Because Hobbs was a half mile from his house, he continued
driving. Arriving a short time later, Hobbs parked
"cockeyed" in his driveway, which he never did, to
alert his girlfriend, Delilah Middaugh
("Middaugh"), that something was wrong.
Id. at 212-13. Hobbs left the car running, the
lights on, and the driver door open. As Applegate exited the
car, Hobbs gave her the keys to his house and told her to
call 911; Applegate ran toward the house. Id. at
214. Hobbs thought that McVay was already dead; Stinson
stepped out of the car, looked at McVay, and kept walking.
Hobbs told Stinson that "everything was over," by
which he meant, "The night was over and so was, pretty
much, [Stinson's] freedom." Id. at 215.
Stinson responded, "What are you talking about? It's
not over. . . . [McVay]'s dead. Let's go do some
It was at that time that Applegate came from the back of the
house. She was still holding the keys because she could not
get into the house. Id. at 216. Seeing Applegate,
Hobbs immediately grabbed her by the collar and led her back
toward the house. Hobbs began unlocking the door, but it was
opened by Middaugh. Afraid that Stinson might hurt Applegate,
because she was a witness to the stabbing, Hobbs pushed
Applegate into the house for her own safety. Id. at
218-19. Hobbs told Middaugh that Stinson had stabbed McVay,
and she should call 911. Id. at 216. Hobbs shut and
locked the door, and when he turned around and saw Stinson
standing about eight feet away, Hobbs pushed Stinson off the
porch. Id. at 216-17.
Hobbs ran back to his car, "jumped in as fast as [he]
could," repeatedly hit the button to lock his door, and
drove away with McVay in the passenger seat. Id. at
217. With the dome light on, Hobbs could see blood and
"realized how much more serious [the injury] was than
[Hobbs] thought." Id. Hobbs started
"screaming" McVay's name. Id. When he
got no response, he drove to a nearby mortuary and pounded on
the door. When no one answered the door, Hobbs called
Middaugh to make sure she and Applegate were alright and
again told Middaugh to call 911. Id. at 218. During
this call, which Middaugh testified Hobbs made about a minute
after he left the house, Hobbs told Middaugh, "The
kid's dying . . . in your car." Tr. Vol. 3
at 16. Hobbs ended the call and called 911.
While awaiting the arrival of emergency personnel, Hobbs
noticed that McVay was making "gargling" or
"snoring" sounds. Tr. Vol. 2 at 218.
Paramedics arrived and found McVay "very pale," not
verbally communicating, making non-purposeful movements, and
bleeding profusely. Tr. Vol. 3 at 60. The paramedics
determined that McVay should be taken to Lutheran Hospital
because it had a trauma center. During surgery, surgeons
discovered that McVay's carotid artery was cut in half.
Id. at 79. They also noticed that McVay had multiple
stab wounds to the left of his neck, to the back of his neck,
to his face, and to his right hand. Id. One of the
knife thrusts chipped McVay's bone. Due to the loss of
blood to his brain, McVay suffered one or more strokes, which
left him unable to use his right hand and with a limited
ability to speak. Id. at 78, 80-81, 118. Lutheran
Hospital surgeon Dr. Dale Sloan ("Dr. Sloan")
testified that the paramedic's decision to take McVay to
a hospital with a trauma center saved his life. Id.
On January 5, 2018, the State charged Stinson with Count I,
aggravated battery with McVay as the victim, and Count II,
battery with a deadly weapon with Hobbs as the victim.
Thereafter, the State filed notice of its intent to seek a
habitual offender enhancement in Count III. On June 6, 2018,
the trial court granted leave for the State to add Count IV,
a charge of attempted murder with McVay as the victim. The
trial court held a three-day jury trial in October 2018,
during which the State introduced the testimony of Hobbs,
McVay, and Applegate, among others. Hobbs and McVay testified
that Stinson was the one who stabbed McVay. Tr. Vol.
2 at 208, 221, 114. Applegate testified that she knew
McVay was injured in the car, but, because she was drunk, she
could not recall what happened that night. Tr. Vol.
2 at 250; Tr. Vol. 3 at 4. Applegate testified,
"I remember I was crying, I was just like freaking out,
there was a lot of yelling and noise and I was freaking
out." Tr. Vol. 2 at 249. It was defense
counsel's theory that someone else stabbed McVay. Tr.
Vol. 3 at 4. The State cast doubt on this theory by
introducing evidence that McVay did not hurt himself and that
Hobbs was also injured. Tr. Vol. 2 at 208, Tr.
Vol. 3 at 115. Regarding the claim that Applegate may
have stabbed McVay, the State introduced the testimony of Dr.
Sloan, who stated that, while it would not take a lot of
power for a knife to penetrate the skin, it would take
"more power to actually chip a bone." Tr. Vol.
3 at 82. The State also noted that Hobbs tried to get
help for McVay, while Applegate stayed with Middaugh.
Id. at 28. Stinson, the only of the four who could
not be accounted for after McVay's stabbing, was later
found at a bar. Id. at 50.
The jury found Stinson guilty of aggravated battery, battery
with a deadly weapon, and attempted murder. Phase two of the
trial, regarding the habitual offender enhancement, began on
October 4, 2018. After hearing evidence and argument, the
jury deliberated and determined that Stinson was a habitual
offender. At the sentencing hearing, the State moved to
dismiss the aggravated battery count on double jeopardy
grounds, which the trial court granted. The trial court
sentenced Stinson to forty years in the Indiana Department of
Correction for attempted murder, enhanced by twenty years for
being a habitual offender, to be ...