MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 15 2015, 9:38 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ernest P. Galos Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph McDonald, October 15, 2015 Appellant-Defendant, Court of Appeals Case No. 71A04-1503-CR-108 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Marnocha Appellee-Plaintiff Trial Court Cause No. 71D02-1409-F6-192
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108| October 15, 2015 Page 1 of 15 Case Summary [1] Joseph McDonald appeals from his two Level 6 convictions for residential
entry and intimidation, raising three issues for our consideration. First, he
contends that the trial court erred in violation of Indiana Evidence Rule 617 in
denying his motion in limine and allowing the State to submit into evidence
statements made by McDonald inside a police car but not recorded due to a
malfunction of the motor vehicle recorder. Next, he argues that the trial court
abused its discretion in failing to instruct the jury on Class A misdemeanor
criminal trespass as a lesser-included offense of residential entry. Finally, he
contends that the evidence is insufficient to support his intimidation conviction.
Finding no merit to these contentions, we affirm McDonald’s convictions.
Facts and Procedural History [2] Around 1:00 a.m. on September 21, 2014, Joseph McDonald entered the South
Bend home of Jennifer Ward by removing the air-conditioning unit from her
bedroom window and climbing in through the window. Ward was not home at
the time, but was at the neighbor’s house across the street taking a shower.
Ward’s daughter, Amberlene Hutton, and Hutton’s girlfriend, Paris Wright—
both of whom lived in Ward’s house—were home and watching a movie in an
upstairs bedroom. First, Hutton heard a loud knocking on the locked front
door, which eventually stopped after a few minutes; she then heard a “tugging
noise” followed by a “big bang, like something fell.” Tr. p. 213. These sounds
came from Ward’s bedroom, located below Hutton’s bedroom. Then, because
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 2 of 15 she heard footsteps inside the house, Hutton grabbed a rope wire and Wright
grabbed a bat and they headed downstairs.
[3] Once downstairs, Hutton and Wright found Joseph McDonald walking
through the house, talking to himself. McDonald had come to retrieve some
personal belongings, such as clothing and bedding, which he had been storing
at Ward’s house for about a week. Hutton and Wright asked McDonald how
he got into the house, and at first he did not respond. Finally he told Wright,
“She know I’m here[,]” referring to Ward. Id. at 246. Hutton then ran across
the street to the neighbor’s house to get Ward.
[4] Ward heard banging on her neighbor’s door. Hutton told her McDonald had
broken into the house. Ward walked across the street toward her house and
saw McDonald coming out the door of her house with a bag, carrying his things
to his truck. Ward confronted McDonald, asking him, “Did you just break into
my house?” Id. at 156. McDonald “kept saying something about [Ward] not
answering the phone . . . he was calling [her] names.” Id. Ward called 911,
which “agitated him even more.” Id. at 157.
Q: Did he say anything?
[Ward]: That was the second time that I heard him saying that if we called the police, we were all going to die, he was going to kill us. He was going back and forth, talking to himself, talking to me, yelling, he kept saying, “I just want to get my stuff.” But in the same sentence of him wanting to take his things and leave in the same breath, “I’m going to pay you all for your hospitality,
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 3 of 15 but I’m going to kill you all.” So we were a little bit confused at that point as to where his state of mind was.
Id. According to Wright, when he said he was going to kill them, he seemed
“angry.” Id. at 250. When Hutton was asked, “And was there anything said
before he said he was going to kill you?” Hutton replied, “No, at this point my
mom is going back and forth telling him she’s calling the police, then this is
what he’s saying to us.” Id. at 235.
[5] After he finished loading his things in his truck—a red, “rusty older pickup
truck” with the passenger-side window “busted out” and plastic covering it—
McDonald drove away with no headlights on. Id. at 162, 185. Ward
telephoned the police and told them what direction he was driving. South Bend
Police Department Officer Joy Phillips “heard the truck before [she] ever saw
it” due to the truck’s loud muffler. Id. at 185. Once she spotted the truck,
Officer Phillips activated her overhead lights in an attempt to pull over the
truck, but the truck didn’t stop for several blocks.
[6] Several other police officers came to the scene, including Officer Samuel
Chaput of the South Bend Police Department, who assisted with the stop.
Officer Chaput’s police car was equipped with a motor vehicle recorder
(“Recorder”), which was supposed to be activated by the car’s overhead lights.
Officer Chaput had received training in the use of this MVR and would activate
it every day before starting his shift to make sure it was working. After
McDonald was stopped, Officer Chaput placed wrist restraints on McDonald
and took him to his police car. Because Officer Chaput had activated his Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 4 of 15 overhead lights at the time of the stop, “to [his] knowledge [the Recorder] was
still running, still recording” when he brought McDonald back to his police car.
Id. at 291. Officer Chaput read McDonald his Miranda rights, which he
waived, and then McDonald told the officer what had happened that night.
He said that he had tried to contact Ms. Ward several times by calling her and texting her, to get his items back from her residence. He said that she never returned his calls, so he took it upon himself to go to the house, he took . . . the air conditioner out of the window, he went inside the house, grabbed his stuff and left.
Id. at 283. Later, Officer Chaput learned that his car’s Recorder had in fact
malfunctioned; therefore, McDonald’s statements were not recorded and
preserved.
[7] After taking McDonald to the St. Joseph County Jail, Officer Chaput went to
Ward’s house. He entered the house through the front door and spoke with
Ward, Hutton, and Wright, who showed him the room where the air
conditioning unit had been removed from the window. They then took Officer
Chaput outside, where he observed the air-conditioning unit on the ground
outside of the house. Officer Chaput did not think it was necessary to check the
air-conditioning unit for fingerprints “because the suspect that we had said that
he was the one that removed it.” Id. at 294.
[8] The State charged McDonald with Level 6 felony residential entry and Level 6
felony intimidation. A jury trial was held in January 2015. At the beginning of
the trial, McDonald filed a motion in limine requesting the trial court to Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 5 of 15 exclude testimony regarding statements made by McDonald while in police
custody on the grounds that the statements were inadmissible in violation of
Indiana Evidence Rule 617. The trial court denied the motion. At the
conclusion of the trial, McDonald tendered a proposed jury instruction for
criminal trespass, a Class A misdemeanor, as a lesser-included offense of
residential entry. See Tr. p. 312-13; Appellant’s App. p. 63. Finding that there
was no serious evidentiary dispute as to the evidence of breaking as an element
of residential entry, the trial court refused the instruction.
[9] The jury found McDonald guilty of Level 6 felony residential entry and Level 6
felony intimidation. McDonald now appeals his convictions.
Discussion and Decision 1. Evidence Rule 617 [10] First McDonald alleges that the trial court erred in violation of Indiana
Evidence Rule 617 in denying his motion in limine and allowing the State to
submit into evidence statements made by McDonald inside a police car but not
recorded due to a malfunction of the Recorder. A trial court has broad
discretion to admit or exclude evidence. Blount v. State, 22 N.E.3d 559, 564
(Ind. 2014). We therefore disturb its ruling only if it amounts to an abuse of
discretion, meaning the court’s decision is clearly against the logic and effect of
the facts and circumstances or it is a misinterpretation of the law. Id. We do
not reweigh the evidence and consider the evidence most favorable to the trial
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 6 of 15 court’s ruling. Robey v. State, 7 N.E.3d 371, 379 (Ind. Ct. App. 2014), trans.
denied.
[11] Indiana Evidence Rule 617 - Unrecorded Statements During Custodial
Interrogation provides in relevant part as follows:
(a) In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:
*****
(3) The law enforcement officers conducting the Custodial Interrogation in good faith failed to make an Electronic Recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of said officers the recording equipment malfunctioned or stopped operating [] . . .
(b) For purposes of this rule, . . . “Place of Detention” means a jail, law enforcement agency station house, or any other stationary or mobile building owned or operated by a law enforcement agency at which persons are detained in connection with criminal investigations.
[12] Here, McDonald asserts that “A reasonable interpretation of [Evidence Rule]
617 is that any place of detention operated by law enforcement that is equipped
with recording equipment is covered by the rule.” Appellee’s Br. p. 17. Thus
he contends that the trial court erred in admitting any statements he made while
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 7 of 15 inside the police car because – due to the malfunctioning Recorder – no
electronic recording of his statements was made and preserved.
[13] But McDonald’s argument is problematic for at least two reasons. First, Rule
617 doesn’t apply in this situation because a police car is not a Place of
Detention as defined by the rule. McDonald urges us to expand the definition,
however, writing that a “reasonable interpretation of [Rule] 617 is that any
place of detention operated by law enforcement that is equipped with recording
equipment is covered by the rule.” Appellant’s Br. p. 17 (emphasis added). But
given that police car is not included in the specific list of items in the definition
of Place of Detention – a jail, law enforcement agency station house, or any
other stationary or mobile building owned or operated by a law enforcement
agency – we find that the definition does not include police car, and thus Rule
617 does not apply.
[14] Even if Rule 617 did apply, the situation before us falls within a clear exception
to the rule that unrecorded statements made during a custodial interrogation in
a Place of Detention are inadmissible. This exception states that unrecorded
statements are not inadmissible if the law enforcement officer in good faith
failed to make an Electronic Recording because of the officer’s inadvertent
failure to operate the recording equipment properly, or because the equipment
malfunctioned without the officer’s knowledge. See Evid. R. 617(a)(3). Officer
Chaput testified at trial that he believed the MVR was activated when he turned
on his overhead lights at the time of the stop, and he believed that it was still
recording when he brought McDonald back to his car: “To my knowledge it
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 8 of 15 was still running, still recording.” Tr. p. 291. In other words, there is clear and
convincing evidence that Officer Chaput in good faith failed to make an
electronic recording because the recording equipment stopped working without
his knowledge. See Evid. R. 617(a)(3).
[15] We find that the trial court did not abuse its discretion in denying McDonald’s
motion in limine and admitting into evidence unrecorded statements made by
McDonald in Officer Chaput’s police car.
2. Jury Instruction on Criminal Trespass [16] Next McDonald contends that the trial court abused its discretion in refusing
his jury instruction on Class A misdemeanor criminal trespass as a lesser-
included offense of residential entry. When a defendant requests a lesser-
included offense instruction, the trial court must apply the three-part analysis
set forth in Wright v. State, 658 N.E.2d 563 (Ind. 1995). Hamilton v. State, 783
N.E.2d 1266, 1268 (Ind. Ct. App. 2003), trans. denied. The first two parts
require the trial court to determine whether the offense is either inherently or
factually included in the charged offense. Id. If so, then the trial court proceeds
to the final part, which requires the trial court to determine whether there is a
serious evidentiary dispute regarding any element that distinguishes the two
offenses. Id. In deference to the trial court’s proximity to the evidence, we
review a decision whether to instruct the jury on lesser-included offenses for an
abuse of discretion if the court makes a finding as to the existence or lack of a
serious evidentiary dispute. Id. Here, the trial court in denying McDonald’s
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 9 of 15 request for a jury instruction on criminal trespass found that there was no
evidentiary dispute as to whether McDonald entered Ward’s home through the
window after removing the air conditioner as opposed to some other way. See
Tr. p. 313 (“There is no . . . evidentiary dispute as to whether Mr. McDonald
entered the home through this method or any other method.”). We therefore
review the trial court’s refusal to give McDonald’s criminal-trespass instruction
for an abuse of discretion. See Hamilton, 783 N.E.2d at 1268-69.
[17] This Court has already determined that criminal trespass is not an inherently
lesser-included offense of residential entry. Higgins v. State, 783 N.E.2d 1180,
1187 (Ind. Ct. App. 2003) (“[C]riminal trespass contains materially different
elements that must be proven that are not found in the residential entry statute:
for criminal trespass, the lack of a contractual interest in the property must be
proven, as well as the owner’s lack of consent to the entry, neither of which
need be proven for residential entry. Additionally, the two crimes do not differ
solely in terms of the requisite level of culpability; both require a mens rea of
knowingly or intentionally.”), trans. denied. But criminal trespass can be a
factually included lesser offense of residential entry if the charging instrument
alleges that the means used to commit the crime charged include all of the
elements of the alleged lesser-included offense. Young v. State, 846 N.E.2d 1060,
1062 (Ind. Ct. App. 2006). To determine whether an alleged lesser-included
offense is factually included in the crime charged, the trial court must compare
the statute that defines the alleged lesser-included offense with the charging
instrument in the case. Wright, 658 N.E.2d at 567. If the charging instrument
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 10 of 15 alleges that the means used to commit the crime charged include all of the
elements of the alleged lesser-included offense, then the alleged lesser-included
offense is factually included in the crime charged. Id. at 566–67.
[18] In the present case, McDonald was charged with residential entry, a Level 6
felony, as follows:
On or about September 21, 2014 in St. Joseph County, State of Indiana, Joseph Terry McDonald did knowingly or intentionally break and enter the dwelling of Jennifer L. Ward and/or Amberlene Hutton, located at [] W. Elwood Avenue, South Bend, Indiana.
Appellant’s App. p. 127. The crime of Class A misdemeanor criminal trespass
is defined by Indiana Code section 35-43-2-2(b)(5)(B) in relevant part as
follows:
A person who[,] . . . not having a contractual interest in the property, knowingly or intentionally enters the . . . dwelling of another person without the person’s consent . . . commits criminal trespass . . . .
[19] In Higgins, this Court concluded that criminal trespass was a factually included
lesser offense of residential entry where—as here—the State had alleged that
Higgins did knowingly “break and enter” the victim’s dwelling. See Higgins, 783
N.E.2d at 1189 (relying on a case by our Supreme Court, J.M. v. State, 783
N.E.2d 703, 705 (Ind. 2000), in which that Court found that by charging that
J.M. did knowingly or intentionally “break and enter” the residence of another
person, the State had sufficiently alleged facts constituting criminal trespass,
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 11 of 15 even though the charging information did not specifically allege that J.M. had
committed the entry “without consent.”).
[20] Assuming, then, that criminal trespass is a factually included lesser offense of
residential entry given the charging information in this case, we proceed to the
third and final step of the Wright test: whether there is a “serious evidentiary
dispute about the element or elements distinguishing the greater from the lesser
offense” such that a jury could conclude that the lesser offense was committed
but not the greater. Wright, 658 N.E.2d at 567. The key distinction between
the two offenses at issue here is the element of breaking and entering required for
residential entry but not for criminal trespass. See Ind. Code § 35-43-2-1.5 (“A
person who knowingly or intentionally breaks and enters the dwelling of
another person commits residential entry, a Level 6 felony.”).
[21] In this case, there is no serious evidentiary dispute as to whether McDonald
broke into Ward’s house.1 Indeed, “[a]ll of the evidence points to a breaking.”
See Higgins, 783 N.E.2d at 1189. The record shows that Ward’s daughter,
Hutton, was in an upstairs bedroom of the house watching a movie when she
heard, first, a loud knocking on the locked front door which stopped after a few
minutes, and then a “tugging noise” followed by a “big bang, like something
fell.” Tr. p. 213. These sounds came from Ward’s bedroom, located below
1 McDonald essentially concedes the lack of an evidentiary dispute in his appellate brief, writing, “Admittedly, Officer Chaput’s testimony that [McDonald] made a statement to him about pulling out the air conditioner and entering though the window was damaging to [McDonald].” Appellant’s Br. p. 14-15.
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 12 of 15 Hutton’s bedroom. Then, because she heard footsteps inside the house, Hutton
and her girlfriend Wright went downstairs and found McDonald walking
through the house, talking to himself, collecting bags of things he had been
storing in Ward’s house. After Ward called the police, McDonald was stopped
and taken into Officer Chaput’s police car, where he told the officer that he had
tried to contact Ward several times by calling her and texting her, because he
wanted to get his things from her house, but when she didn’t answer or return
his calls, “he took it upon himself to go to the house, he took . . . the air
conditioner out of the window, he went inside the house, grabbed his stuff and
left.” Id. at 283. After taking McDonald to jail, Officer Chaput went to Ward’s
house and observed firsthand the air-conditioning unit that had been removed
from the window on the ground outside of her house.
[22] Because there was no serious evidentiary dispute as to whether McDonald
broke into Ward’s house, we find that the trial court did not abuse its discretion
in refusing to give McDonald’s jury instruction on the lesser-included offense of
Class A misdemeanor criminal trespass.
3. Insufficiency of the Evidence [23] Finally, McDonald argues that the evidence is insufficient to support his
intimidation conviction. Our standard of reviewing claims of sufficiency of the
evidence is well settled. When reviewing the sufficiency of the evidence, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 13 of 15 We do not reweigh the evidence or assess witness credibility. Id. We consider
conflicting evidence most favorably to the trial court’s ruling. Id. We will
affirm the conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. It is not necessary that the
evidence overcome every reasonable hypothesis of innocence. Id. The
evidence is sufficient if an inference may be reasonably drawn from it to support
the verdict. Id. A conviction may be based upon circumstantial evidence
alone. Id.
[24] In order to convict McDonald of Intimidation as a Level 6 felony, the State was
required to prove beyond a reasonable doubt that he communicated a threat to
Ward with the intent that Ward engage in conduct against her will and that the
threat was to commit a forcible felony. See Ind. Code § 35-45-2-1. Whether a
person operated with the requisite intent to force another to engage in conduct
against his will depends on the facts and circumstances of the case. Williams v.
State, 677 N.E.2d 1077, 1083 (Ind. Ct. App. 1997). The question is one of fact
for the jury to decide. Id.
[25] In the present case, the evidence at trial showed that after Hutton came to the
neighbor’s house across the street to tell Ward that McDonald was there, Ward
went across the street to confront him, and she asked him if he had broken into
her house. Ward testified that when she tried to call 911 with her cell phone,
“that agitated him even more.” Tr. p. 157. Ward went on to testify:
That was the second time that I heard him saying that if we called the police, we were all going to die, he was going to kill us. Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 14 of 15 He was going back and forth, talking to himself, talking to me, yelling, he kept saying, “I just want to get my stuff.” But in the same sentence of him wanting to take his things and leave in the same breath, “I’m going to pay you all for your hospitality, but I’m going to kill you all.” So we were a little bit confused at that point as to where his state of mind was.
Id. When he said he was going to kill them, he seemed “angry.” Id. at 250. In
response to the question, “And was there anything said before he said he was
going to kill you?” Hutton replied, “No, at this point my mom is going back
and forth telling him she’s calling the police, then this is what he’s saying to
us.” Id. at 235. This evidence shows that McDonald threatened to kill Ward
with the intent that she refrain from calling 911. We find the evidence is
sufficient to support McDonald’s conviction for Level 6 felony intimidation.
[26] Affirmed.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015 Page 15 of 15