Dominique Morrison v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 6, 2019
• Docket: 18A-CR-1535
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 06 2019, 5:28 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dominique Morrison, February 6, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1535 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy R. Hart, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G16-1801-CM-2540

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 1 of 9 [1] Dominique Morrison appeals his conviction for resisting law enforcement as a

class A misdemeanor. Morrison raises one issue which we revise and restate as

whether the trial court erred in admitting certain testimony. We affirm.

Facts and Procedural History

[2] At approximately 9:00 p.m. on January 19, 2018, Indianapolis Metropolitan

Police Officer Monica Hodge was with a recruit officer stopped in or near a

drug store parking lot when a vehicle pulled up behind them and began to flash

its lights and honk. Julia Deubner exited the vehicle and went to Officer

Hodge’s door. Deubner was crying and yelling and told Officer Hodge that she

was at a gas station across the street with her aunt when Morrison, her ex-

boyfriend, showed up, pulled her out of the vehicle, and threw a rock at her

aunt’s car. Deubner provided Officer Hodge with Morrison’s name and a

physical description of him. Officer Christopher Houeshelp and Officer Aaron

Laird arrived at Officer Hodge’s location, Officer Hodge provided them with

Morrison’s description and location, and they drove away to look for him.

[3] About a minute later, Officer Houeshelp observed Morrison in an alley behind

the gas station and then saw him as he was crossing a street. Officer Houeshelp

and Officer Laird, who were dressed in full uniform and in a marked patrol

vehicle, parked about ten yards from Morrison and opened their doors to exit

the patrol vehicle. Morrison turned around, looked at them, hiked his pants up,

and took off running. Officer Houeshelp and Officer Laird “yelled several

times stop police.” Transcript Volume II at 16. Morrison did not stop, and the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 2 of 9 officers chased him for a couple of minutes but were unable to catch him. At

about 2:30 a.m., Officer James Beliles conducted a traffic stop, and Morrison

was one of the occupants in the vehicle and verbally identified himself. Officer

Beliles, who had previously received a report that Morrison had run from

police, had Morrison exit the vehicle and placed him in cuffs. Before Officer

Beliles could question him, Morrison stated: “I already know what this is about.

It’s about that lying b---- . . . I didn’t run from no one. I was sitting at Taco Bell

and watched you guys go by.” Id. at 24. Officer Beliles went to his vehicle and

confirmed that Morrison was the person identified in the initial report, noted

Morrison exactly matched the description given, and ultimately placed him

under arrest.

[4] On January 23, 2018, the State charged Morrison with domestic battery and

resisting law enforcement as class A misdemeanors. The State filed a motion to

dismiss the domestic battery charge, and the court granted the motion. In June

2018, the court held a bench trial at which the State presented the testimony of

Officer Hodge, Officer Houeshelp, and Officer Beliles. During Officer Hodge’s

testimony, the following exchange occurred:

Q [Prosecutor] When she ran up to your vehicle what happened?

A [Officer Hodge] She was crying and yelling. I asked her what happened. She said that she just -

[Defense Counsel]: Objection, Judge, to any statements that goes to her action.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 3 of 9 [Prosecutor]: And Judge the State would not be using them to prove the truth of the matter, simply by the statements what she did next (inaudible)

The Court: Overruled as to why she took the action that she did.

A So she was crying and yelling. So she just left the gas station which was diagonal from where we were at across the street, that her ex-boyfriend had been following her and harassing her. She was at the gas station with her aunt and he showed up and pulled her out of the vehicle and threw a rock at her aunt’s car.

Q Did she give you a description of the individual?

A Yes, she did.

Q Did she tell you his name?

Q And what was his name?

A Dominique Morrison.

Q What description did she give you?

A Black male, with a black jacket and a hoodie.

Id. at 8-9. The court found Morrison guilty of resisting law enforcement as a

class A misdemeanor and sentenced him to 365 days with 291 days suspended.

Discussion

[5] Morrison asserts that the trial court abused its discretion in admitting Officer

Hodge’s testimony regarding Deubner’s statements to her. The trial court has

broad discretion to rule on the admissibility of evidence. Bradley v. State, 54

N.E.3d 996, 999 (Ind. 2016). We review its rulings for abuse of discretion and

reverse only when admission is clearly against the logic and effect of the facts

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 4 of 9 and circumstances and the error affects a party’s substantial rights. Id. In

determining the effect of the evidentiary ruling on a defendant’s substantial

rights, we look to the probable effect on the fact finder. Turner v. State, 953

N.E.2d 1039, 1059 (Ind. 2011). We will not reverse an error in the admission

of evidence if the error was harmless. Id. at 1058. An improper admission is

harmless if the conviction is supported by substantial independent evidence of

guilt satisfying the reviewing court that there is no substantial likelihood the

challenged evidence contributed to the conviction. Id. at 1059. “In bench

trials, we presume that the court disregarded inadmissible evidence and

rendered its decision solely on the basis of relevant and probative evidence.

Any harm from evidentiary error is lessened, if not completely annulled, when

the trial is by the court sitting without a jury.” King v. State, 985 N.E.2d 755,

757 (Ind. Ct. App. 2013) (citing Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct.

App. 2000)), trans. denied.

[6] Hearsay means a statement, other than one made by the declarant while

testifying at trial, offered in evidence to prove the truth of the matter asserted.

Ind. Evidence Rule 801(c). Hearsay is inadmissible unless admitted pursuant to

a recognized exception. Ind. Evidence Rule 802. The Indiana Supreme Court

has observed that “[w]hether a statement is hearsay . . . will most often hinge

on the purpose for which it is offered” and “[o]ut-of-court statements made to

law enforcement are non-hearsay if introduced primarily to explain why the

investigation proceeded as it did.” Blount v. State, 22 N.E.3d 559, 565 (Ind.

2014) (citations omitted). In Blount, the Court stated:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 5 of 9 Although course-of-investigation testimony may help prosecutors give the jury some context, it is often of little consequence to the ultimate determination of guilt or innocence. The core issue at trial is, of course, what the defendant did (or did not do), not why the investigator did (or did not do) something. Thus, course-of- investigation testimony is excluded from hearsay only for a limited purpose: to bridge gaps in the trial testimony that would otherwise substantially confuse or mislead the jury. The possibility the jury may wonder why police pursued a particular path does not, without more, make course-of-investigation testimony relevant. Indeed, such testimony is of little value absent a direct challenge to the legitimacy of the investigation.

*****

Our concern is the danger of prejudice where reliance on the course- of-investigation exclusion is misplaced. . . . There is a risk the jury will rely upon the out-of-court assertion as substantive evidence of guilt—rather than for the limited purpose of explaining police investigation—and the defendant will have no chance to challenge that evidence through cross-examination.

The ultimate inquiry is: Was the out-of-court statement used primarily to show the truth of its content, constituting inadmissible hearsay, or merely to explain subsequent police action, excluded from hearsay? To answer this question, we turn to the three-part test we articulated in Craig v. State:

1. Does the testimony or written evidence describe an out-of- court statement asserting a fact susceptible of being true or false?

If the statement contains no such assertion, it cannot be hearsay and the objection should be overruled. If the out-of-court statement does contain an assertion of fact, then the Court should consider the following before ruling:

2. What is the evidentiary purpose of the proffered statement?

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 6 of 9 . . . . If the evidentiary purpose is to prove a fact asserted, and such purpose is not approved under Evid. R. 801(d), then the hearsay objection should be sustained, unless the statement fits an exception to the hearsay rule.

If the proponent of the statement urges a purpose other than to prove a fact which is asserted, then the Court should consider the following before ruling:

3. Is the fact to be proved under the suggested purpose for the statement relevant to some issue in the case, and does any danger of prejudice outweigh its probative value?

. . . . If the fact sought to be proved under the suggested non- hearsay purpose is not relevant, or it is relevant but its danger of unfair prejudice substantially outweighs its probative value, the hearsay objection should be sustained.

630 N.E.2d [207,] 211 [(Ind. 1994)].

22 N.E.3d at 565-567 (some internal quotation marks and citations omitted).

[7] Morrison argues that Deubner did not testify, that “without the hearsay, there

were no gaps in trial testimony that would have substantially confused or

misled the trial judge as trier of fact,” and that he “did not directly challenge the

legitimacy of the officers’ investigation.” Appellant’s Brief at 9.

[8] The State responds that it “did not offer Officer Hodge’s testimony about what

Deubner reported to prove the truth of the matter asserted, namely that

Morrison pulled Deubner out of a vehicle and threw a rock at Deubner’s aunt’s

car,” that “the truth of her accusations were entirely immaterial to the purpose

for which this evidence was offered and admitted in Morrison’s trial for

resisting law enforcement,” and that “Deubner’s statements were relevant to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 7 of 9 show that police received a report of criminal conduct in the vicinity and

officers took immediate action to locate the suspect to further their

investigation, regardless of whether that accusation was factually correct.”

Appellee’s Brief at 9-10. It also argues that any error was harmless because

Morrison’s conviction is supported by independent evidence of guilt.

[9] The record reveals that the State did not offer Officer Hodge’s testimony to

prove that Morrison had been following and harassing Deubner or that he

pulled her out of a vehicle and threw a rock at her aunt’s car. Rather, the

testimony regarding Deubner’s statements to Officer Hodge was provided to

offer the reason that the officers attempted to locate Morrison and ordered him

to stop when he turned and took off running. We conclude that the challenged

statements were not used primarily to show the truth of their content but to

explain subsequent police action. Deubner’s statements to Officer Hodge were

not offered in evidence to prove the truth of the matter asserted. The risk that

the trial court relied upon the out-of-court assertion as substantive evidence of

Morrison’s guilt of resisting law enforcement is minimal under these

circumstances. The court as the trier of fact was able to consider Officer

Hodge’s testimony for the limited purpose for which it was admitted. The

probative value of the challenged evidence is not substantially outweighed by a

danger of unfair prejudice. Based upon the record, we cannot say that the trial

court abused its discretion in admitting the challenged testimony of Officer

Hodge. See Bates-Smith v. State, 108 N.E.3d 399, 405 (Ind. Ct. App. 2018)

(holding an informant’s statements to a detective were not offered for the truth

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 8 of 9 of the matter asserted but to show the reason the officers stopped the

defendant’s vehicle).

[10] Further, the record reveals that Officer Hodge testified that Deubner identified

Morrison by name and provided a physical description of him. Officer

Houeshelp identified Morrison in court and testified that Morrison was the

person who ran from him. Officer Beliles testified that Morrison identified

himself following a traffic stop and stated “I didn’t run from no one.”

Transcript Volume II at 24. We conclude based upon our review of the

evidence as set forth in the record that any alleged error in the admission of the

challenged testimony was harmless in light of the other substantial independent

evidence of Morrison’s guilt of resisting law enforcement.

[11] For the foregoing reasons, we affirm Morrison’s conviction.

[12] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1535 | February 6, 2019 Page 9 of 9