MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 06 2020, 11:01 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Devon Buchanan, August 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2226 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey L. Marchal, Appellee-Plaintiff, Magistrate Trial Court Cause No. 49G06-1808-F1-25306
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 1 of 9 Case Summary and Issue [1] Following a jury trial, Devon Buchanan was convicted of child molesting, a
Level 1 felony. Buchanan appeals his conviction and raises one issue for our
review: whether the trial court abused its discretion in excluding evidence that
Buchanan cooperated with law enforcement. Concluding it did not, we affirm.
Facts and Procedural History [2] T.J. (“Mother”) is the mother of L.J. In 2015, L.J. and her two siblings, D.L.
and C.J., lived with and were cared for by their maternal grandmother, L.D.
(“Grandmother”), who adopted them in September 2015 or 2016.
[3] In August 2015, Mother and her boyfriend, Buchanan, had a son; L.J. was six
years old at the time. The couple lived in a small two-bedroom apartment in
Indianapolis with their child. Although Grandmother cared for L.J. and her
siblings full time, they would occasionally stay overnight at Mother and
Buchanan’s apartment when Grandmother had to work and could not secure a
babysitter. During the overnight visits, L.J. and her siblings would sleep on the
couches in the living room while Mother and Buchanan would sleep in their
bedroom with the baby. From August to December 2015, the children stayed
overnight with Mother and Buchanan about three times.
[4] Three or four times during these visits, Buchanan woke L.J. up in the middle of
the night and told her to follow him into the kitchen. Once they were in the
kitchen, Buchanan instructed L.J. to get on her knees, pulled his pants down,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 2 of 9 and told her to suck his penis. Buchanan used his hands to move L.J.’s head
back and forth while his penis was in her mouth. On one occasion, Buchanan
ejaculated in L.J.’s mouth. Buchanan told her, “don’t tell nobody and go to
sleep.” Transcript of Evidence, Volume 2 at 150. L.J. went back into the living
room and went to sleep. L.J. did not tell anyone about the abuse.
[5] Three years later, in February 2018, L.J. disclosed the incidents to a classmate
at school. Grandmother received a phone call from L.J.’s school informing her
of the allegations. Grandmother picked L.J. up from school and drove to a
parking lot to talk. When Grandmother picked L.J. up, “she was happy until
[Grandmother] relayed the message that [she] got from school. Then her
demeanor turned sad.” Id. at 137. After the conversation, Grandmother
reported the incident to the police and took L.J. to the Child Advocacy Center
where she was interviewed by Jill Carr, a forensic child interviewer. During the
interview, L.J. disclosed the sexual abuse to Carr.
[6] On April 20, 2018, Nicolle Flyn, a detective with the Indianapolis Metropolitan
Police Department, interviewed Buchanan.1 At the time, Buchanan was
already incarcerated at Miami Correctional facility where he was serving time
for an armed robbery conviction. Buchanan provided an audio recorded
statement and denied the allegations.
1 Prior to the interview, Detective Flyn advised Buchanan of his rights. Buchanan indicated he understood and agreed to waive those rights.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 3 of 9 [7] On August 2, the State charged Buchanan with child molesting, a Level 1
felony. Before trial, the State filed a motion in limine to prevent:
Any reference to or elicitation of testimony by defense counsel of any statement of [Buchanan], except through [Buchanan] should he choose to testify, as such testimony constitutes self-serving hearsay. Additionally, any mention that [Buchanan] did give a statement as the statement without content is irrelevant.
Appellant’s Appendix, Volume II at 71. At Buchanan’s jury trial on August 8,
2019, there were two discussions concerning the State’s motion in limine and
Buchanan’s desire to elicit testimony from Flyn that he cooperated and
provided a statement.
[8] First, before voir dire, the trial court granted the State’s motion in limine, in
pertinent part. See Tr., Vol. 2 at 12. Defense counsel sought to clarify the issue
and argued that he should be allowed to ask Flyn if Buchanan voluntarily gave
a statement as that would prove that “he attempted to cooperate in the
investigation.” Id. at 17. At the time, Buchanan had not decided whether he
would testify. The State responded that it did not intend to show that
Buchanan failed to cooperate in the investigation and did not intend to play the
audio recording of the statement because Buchanan did not make any
admissions it felt were necessary to play for the jury. See id. at 18. The State
argued the proposed questioning constituted inadmissible bolstering of the
defendant. The trial court asked the parties for case law and declined to make a
ruling until it heard evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 4 of 9 [9] Later in the trial, before Flyn was called to testify and outside the presence of
the jury, defense counsel raised the issue again by stating that he planned to ask
Flyn on cross examination whether she or another detective interviewed
Buchanan, whether they advised him of his rights, and whether he cooperated
and spoke with them. However, defense counsel did not plan to ask about the
content of the interview and reiterated his position that the fact that Buchanan
gave a statement was relevant. See id. at 177. The State argued the fact he gave
a statement was irrelevant and would improperly bolster Buchanan, namely
showing “his cooperation and that he had nothing to hide” but “leaving it out
there that he gave a statement without any comment on it, is misleading to the
jury and it’s going to be something they consider.” Id. at 179.
[10] The trial court decided to prohibit the defense from asking the proposed
questions because the fact that Buchanan made a statement to law enforcement
“in and of itself, does not pass a relevancy test under [Evidence] Rule 401, as
that fact doesn’t tend to prove or disprove any fact at issue in this case.” Id. at
180. Instead, “what the defense wants is for the jury to speculate as to the
contents of the statement, essentially throw out there that our guy made a
statement, but know that we’re not going to get into the contents of that
statement.” Id.2 The trial court allowed the defense to make an offer of proof,
but still maintained its ruling that the line of questioning was inadmissible. See
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 06 2020, 11:01 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Devon Buchanan, August 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2226 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey L. Marchal, Appellee-Plaintiff, Magistrate Trial Court Cause No. 49G06-1808-F1-25306
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 1 of 9 Case Summary and Issue [1] Following a jury trial, Devon Buchanan was convicted of child molesting, a
Level 1 felony. Buchanan appeals his conviction and raises one issue for our
review: whether the trial court abused its discretion in excluding evidence that
Buchanan cooperated with law enforcement. Concluding it did not, we affirm.
Facts and Procedural History [2] T.J. (“Mother”) is the mother of L.J. In 2015, L.J. and her two siblings, D.L.
and C.J., lived with and were cared for by their maternal grandmother, L.D.
(“Grandmother”), who adopted them in September 2015 or 2016.
[3] In August 2015, Mother and her boyfriend, Buchanan, had a son; L.J. was six
years old at the time. The couple lived in a small two-bedroom apartment in
Indianapolis with their child. Although Grandmother cared for L.J. and her
siblings full time, they would occasionally stay overnight at Mother and
Buchanan’s apartment when Grandmother had to work and could not secure a
babysitter. During the overnight visits, L.J. and her siblings would sleep on the
couches in the living room while Mother and Buchanan would sleep in their
bedroom with the baby. From August to December 2015, the children stayed
overnight with Mother and Buchanan about three times.
[4] Three or four times during these visits, Buchanan woke L.J. up in the middle of
the night and told her to follow him into the kitchen. Once they were in the
kitchen, Buchanan instructed L.J. to get on her knees, pulled his pants down,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 2 of 9 and told her to suck his penis. Buchanan used his hands to move L.J.’s head
back and forth while his penis was in her mouth. On one occasion, Buchanan
ejaculated in L.J.’s mouth. Buchanan told her, “don’t tell nobody and go to
sleep.” Transcript of Evidence, Volume 2 at 150. L.J. went back into the living
room and went to sleep. L.J. did not tell anyone about the abuse.
[5] Three years later, in February 2018, L.J. disclosed the incidents to a classmate
at school. Grandmother received a phone call from L.J.’s school informing her
of the allegations. Grandmother picked L.J. up from school and drove to a
parking lot to talk. When Grandmother picked L.J. up, “she was happy until
[Grandmother] relayed the message that [she] got from school. Then her
demeanor turned sad.” Id. at 137. After the conversation, Grandmother
reported the incident to the police and took L.J. to the Child Advocacy Center
where she was interviewed by Jill Carr, a forensic child interviewer. During the
interview, L.J. disclosed the sexual abuse to Carr.
[6] On April 20, 2018, Nicolle Flyn, a detective with the Indianapolis Metropolitan
Police Department, interviewed Buchanan.1 At the time, Buchanan was
already incarcerated at Miami Correctional facility where he was serving time
for an armed robbery conviction. Buchanan provided an audio recorded
statement and denied the allegations.
1 Prior to the interview, Detective Flyn advised Buchanan of his rights. Buchanan indicated he understood and agreed to waive those rights.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 3 of 9 [7] On August 2, the State charged Buchanan with child molesting, a Level 1
felony. Before trial, the State filed a motion in limine to prevent:
Any reference to or elicitation of testimony by defense counsel of any statement of [Buchanan], except through [Buchanan] should he choose to testify, as such testimony constitutes self-serving hearsay. Additionally, any mention that [Buchanan] did give a statement as the statement without content is irrelevant.
Appellant’s Appendix, Volume II at 71. At Buchanan’s jury trial on August 8,
2019, there were two discussions concerning the State’s motion in limine and
Buchanan’s desire to elicit testimony from Flyn that he cooperated and
provided a statement.
[8] First, before voir dire, the trial court granted the State’s motion in limine, in
pertinent part. See Tr., Vol. 2 at 12. Defense counsel sought to clarify the issue
and argued that he should be allowed to ask Flyn if Buchanan voluntarily gave
a statement as that would prove that “he attempted to cooperate in the
investigation.” Id. at 17. At the time, Buchanan had not decided whether he
would testify. The State responded that it did not intend to show that
Buchanan failed to cooperate in the investigation and did not intend to play the
audio recording of the statement because Buchanan did not make any
admissions it felt were necessary to play for the jury. See id. at 18. The State
argued the proposed questioning constituted inadmissible bolstering of the
defendant. The trial court asked the parties for case law and declined to make a
ruling until it heard evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 4 of 9 [9] Later in the trial, before Flyn was called to testify and outside the presence of
the jury, defense counsel raised the issue again by stating that he planned to ask
Flyn on cross examination whether she or another detective interviewed
Buchanan, whether they advised him of his rights, and whether he cooperated
and spoke with them. However, defense counsel did not plan to ask about the
content of the interview and reiterated his position that the fact that Buchanan
gave a statement was relevant. See id. at 177. The State argued the fact he gave
a statement was irrelevant and would improperly bolster Buchanan, namely
showing “his cooperation and that he had nothing to hide” but “leaving it out
there that he gave a statement without any comment on it, is misleading to the
jury and it’s going to be something they consider.” Id. at 179.
[10] The trial court decided to prohibit the defense from asking the proposed
questions because the fact that Buchanan made a statement to law enforcement
“in and of itself, does not pass a relevancy test under [Evidence] Rule 401, as
that fact doesn’t tend to prove or disprove any fact at issue in this case.” Id. at
180. Instead, “what the defense wants is for the jury to speculate as to the
contents of the statement, essentially throw out there that our guy made a
statement, but know that we’re not going to get into the contents of that
statement.” Id.2 The trial court allowed the defense to make an offer of proof,
but still maintained its ruling that the line of questioning was inadmissible. See
2 The trial court also noted that “assuming that the State doesn’t mention this statement in any way on direct, that question would be outside the scope of direct examination.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 5 of 9 id. at 182-84. After the State rested, Buchanan voluntarily testified during
which the jury learned he was incarcerated for an armed robbery conviction.
And Buchanan testified that when Detective Flyn came to see him, he “was
free, willing and open to speak to her about” the allegations. Id. at 220.
Buchanan testified that he did not molest L.J. and that he denied the allegations
in his interview with Detective Flyn.
[11] Ultimately, the jury found Buchanan guilty as charged and the trial court
sentenced him to thirty-five years, with twenty-four years to be executed in the
Indiana Department of Correction and the remaining eleven years suspended to
probation. Buchanan now appeals.
Discussion and Decision I. Standard of Review [12] Our standard of review in this area is well settled. We review the admission or
exclusion of evidence for an abuse of discretion. Troutner v. State, 951 N.E.2d
603, 611 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs when
a trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App.
2004).
II. Exclusion of Evidence [13] Buchanan argues the fact that he gave a statement to law enforcement was
“relevant for the jury to learn about [his] cooperation at the most important step
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 6 of 9 in the investigation.” Appellant’s Brief at 12. He claims, “If the jury would
have learned that he cooperated after L.J. accused him, the jury could have
considered whether this cooperation made it less likely that he was the
perpetrator.” Id. (record citations omitted). We disagree.
[14] “Evidence is relevant if . . . it has any tendency to make a fact more or less
probable than it would be without the evidence; and . . . the fact is of
consequence in determining the action.” Ind. Evidence Rule 401. Relevant
evidence is admissible; irrelevant evidence is not. Evid. R. 402. And a trial
court has wide discretion in determining whether evidence is relevant. Snow v.
State, 77 N.E.3d 173, 176 (Ind. 2017). Even if a trial court erroneously excludes
evidence, reversal is only required if the error relates to a material matter or
substantially affects the rights of the parties. Hill v. State, 51 N.E.3d 446, 450
(Ind. Ct. App. 2016). “In other words, we will find an error in the exclusion of
evidence harmless if its probable impact on the jury, in light of all of the
evidence in the case, is sufficiently minor so as not to affect the defendant’s
substantial rights.” Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014).
[15] Here, the only issue in this case was whether Buchanan, a person at least
twenty-one years of age, performed or submitted to other sexual conduct with
L.J., a child under fourteen years of age. See Appellant’s App., Vol. 2 at 25; see
also Ind. Code § 35-42-4-3(a)(1). During trial, the State never claimed that
Buchanan was uncooperative during the investigation. In fact, the State
explicitly indicated it had no intention of trying to show he failed to cooperate.
As such, the fact that Buchanan cooperated with law enforcement by providing
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 7 of 9 a statement standing alone, without reference to the content, does not tend to
prove or disprove any fact at issue in the case. Therefore, this fact is irrelevant
and inadmissible, and the trial court did not abuse its discretion in excluding
such evidence.3
[16] Assuming arguendo the trial court did abuse its discretion, we cannot conclude
that Buchanan’s substantial rights were affected. Buchanan argues the error in
excluding testimony of his cooperation was not harmless because “in order to
present his defense, [he] had to testify” resulting in the jury learning that “he
was [an] armed robber serving prison time which likely had more impact on the
jury than only learning he was [T.J.’s] boyfriend[.]” Appellant’s Br. at 14-15
(record citations omitted). However, as discussed above, the fact that
Buchanan provided a statement is not relevant to or persuasive of any fact at
issue in the case. Therefore, the exclusion thereof had little to no probable
impact on the jury and did not affect Buchanan’s substantial rights. See
Barnhart, 15 N.E.3d at 143.
[17] In sum, the fact that Buchanan provided a statement to law enforcement was
irrelevant and inadmissible, and the trial court did not abuse its discretion in
3 Buchanan also argues that his cooperation was relevant and admissible as “course of investigation” evidence. Buchanan then quotes an excerpt from the transcript allegedly demonstrating that the State argued Buchanan’s statement was not course of investigation evidence “while also arguing other information was admissible for that very reason.” See Appellant’s Br. at 13. Buchanan fails to develop a cogent argument with respect to this theory and it is therefore waived. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning [and] supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]”).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 8 of 9 excluding it. And even if the trial court abused its discretion, such error was
harmless.
Conclusion [18] The trial court did not abuse its discretion in excluding testimony of
Buchanan’s cooperation with law enforcement as it was not relevant and
therefore, was inadmissible. Accordingly, we affirm.
[19] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020 Page 9 of 9