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Stinson v. State

Court of Appeals of Indiana

June 12, 2019

Cody A. Stinson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Indianapolis, Indiana

          Kirsch, Judge.

         [¶1] Cody A. Stinson ("Stinson") was convicted following a jury trial of attempted murder, [1] a Level 1 felony, and battery with a deadly weapon, [2] as a Level 5 felony, and he was adjudicated to be an habitual offender.[3] 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 direct examination.

         We affirm.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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 shots." Id.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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. at 80.

         [¶8] 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.

         [¶9] 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 ...

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