I am doing a case brief "CIRAC"on the following case:

Kansas Supreme Court - State v. Berger cited as

25 KS. App. 515 Filed February 9,2018

I need this assignment in IRAC format as listed below:

Case Info: what trial court did the case start in?

Where was it appealed to first? What court is it in now (what court has issued this opinion?) | didn't include a procedural history or summary of the facts in my brief because I didn't need to.

Issue: It is the one core question that the whole case turns on. It may take some time to figure

Rule: Rule is the rule of law that ends up being the rule after the case is decided

Analysis: I explain why and how the court came to its conclusion

Conclusion: conclusion in a case brief is the procedural conclusion

INTRODUCTION Following a bench trial, Justin Berger was found guilty of domestic assault, third degree. The county court for Timson County sentenced him to 183 days' imprisonment. On appeal, the appellate court affirmed the county court's ruling. Berger now appeals his conviction to this court. Following our review of the record, we affirm. BACKGROUND In September 2015, the State of Kansas filed a complaint charging Berger with domestic assault, third degree, in vio- lation of KS. Rev. Stat. $ 28-323(1)(a) or (b) (Reissue 2016), a class I misdemeanor. The alleged victim was Berger's wife, M.L. The county court held trial in February 2016. The State subpoenaed M.L. to testify but did not call her as a witness. The State's sole witness at trial was Aaron Gruhily, a deputy with the Hall County Sheriff's Department. Gruhily testi- fied that on the night of the incident, he was dispatched to an apartment complex. Upon his arrival, he observed a male and female, later identified as Berger and M.L., standing outside in close proximity to one another. Gruhily stated that he immediately made contact with the female and separated the parties in order to check on her well-being. He testified that M.L. was "visibly shaking and crying. She was very upset at the time." Gruhily also observed what appeared to be sev- eral injuries to M.L.'s person. He initially spoke with M.L. out- side the residence, and after he "started getting a better account of events, she took [him] inside the residence and explained further to greater detail of what had occurred." On direct examination, the State asked Gruhily what M.L. informed him happened that evening. Berger objected on hearsay and confrontation grounds, arguing that M.L. was present in court and therefore not unavailable. The countycourt overruled Berger's objection, finding that her state- ment to Gruhily was an excited utterance. Gruhily then testified that M.L. reported that she had been in a fight with her husband, Berger. Over Berger's continuing objection on confrontation grounds, Gruhily stated that M.L. advised that an argument turned physical inside their residence. M.L. said that Berger hit her across the left side of her face, which resulted in injury and caused her to fall to the ground. M.L. stated that once she was on the ground, Berger got on top of her and "banged her head into the floor" approximately 15 times before she was able to get back on her feet. Gruhily testified that the injuries he observed on M.L.'s person were consistent with her description of the assault, including a red mark on the left side of her face, an abrasion on her left hand, and an abrasion on her knee. The court admitted photographs of these injuries into evidence. After the State rested, Berger called M.L. to testify on his behalf. She was his only witness. She testified that she suffers from vertigo, which was triggered on the night of the incident by stress and an argument with Berger. M.L. testified that her dizziness caused her to trip over a stool in their residence and land on the left side of her face. She stated that she did not tell Gruhily that Berger struck or threatened her and that her injuries were sustained in the fall. M.L. admitted that she was upset and crying when law enforcement arrived, but testified that she was upset due to her injuries from tripping over the stool and that "[nothing happened" with Berger on that night. On rebuttal, the State recalled Gruhily, who testified that M.L. did not report that she had tripped and fallen and that she had told him that Berger struck her. The county court found Berger guilty of domestic assault, third degree, and sentenced him to 183 days' imprisonment. Berger appealed his conviction to the trial court for Hall County. He assigned as error the county court's decision to overrule his objection to Gruhily's testimony as to M.L.'sstatements on confrontation grounds, the failure to find that M.L. was unavailable as a witness, and the finding that M.L.'s statements to Gruhily fell within the excited utterance hear- say exception. The trial court held a hearing on Berger's appeal in January 2017. The court affirmed Berger's conviction, find- ing that M.L.'s statements qualified as excited utterances and were properly admitted at trial. Berger now appeals. ASSIGNMENTS OF ERROR Berger assigns, restated and reordered, that the trial court erred in finding that M.L.'s statements to law enforcement constituted excited utterances. ANALYSIS Excited Utterances. Berger argues that the trial court erred in finding that M.L.'s statements to law enforcement constituted excitedutterances and were thus admissible as exceptions to the rule prohibiting hearsay. He claims that the State did not lay suffi- cient foundation for M.L.'s statements to be considered excited utterances. Berger argues that M.L. admitted to being stressed on the day of the incident but such stress was not caused by a startling event. He further claims that her statements included fabrications, which indicated that she had the time and capacity to reflect and construct a response. We disagree. [3] Before we turn to the merits of this assigned error, we note that the State asserts that because Berger did not make a continuing objection to Gruhily's testimony on hearsay grounds, he has only properly preserved his hearsay objection to the first question during Gruhily's testimony regarding M.L.'s statements. However, KS. Rev. Stat. $ 25-1141 (Reissue 2016) provides that when an objection has been made once "to the admission of testimony and overruled by the court it shall be unnecessary to repeat the same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court whereby such testimony was received." Because Berger's objection related to testimony by only one witness, Gruhily, and Gruhily's testimony was of the same nature as the question to which Berger did object, we find that Berger was not required to make a continuing objection in order to preserve this issue for appeal. See State v. Kirksey, 254 KS. 162, 575 N.W.2d 377 (1998) (applying $ 25-1141 to criminal prosecution). [4] KS. Rev. Stat. $ 27-801(3) (Reissue 2016) defines hear- say as a statement, other than one made by the declarant while testifying at the trial or hearing, that is offered in evidence to prove the truth of the matter asserted. Hearsay is not admis- sible except as provided for by the rules of evidence or by other rules adopted by the statutes of the State of Kansas or by the discovery rules of the Kansas Supreme Court. State v. Smith, 286 KS. 856, 839 N.W.2d 333 (2013). [6,7] A hearsay statement may be admissible if it quali- fies as an excited utterance. Id. An excited utterance is a- 516 - Kansas Supreme Court STATE v. BERGER Cite as 25 KS. App. 515 Filed February 9, 2018. No. A-18-645 Appeal from the Trial Court for Timson County. Judgment of Trial Court affirmed