L.M. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 25, 2017
• Docket: 47A04-1612-JV-2789
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 25 2017, 6:31 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James A. Spangler, Jr. Curtis T. Hill, Jr. Lawrence County Public Attorney General of Indiana Defender Agency Katherine Cooper Bedford, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

L.M., July 25, 2017 Appellant-Respondent, Court of Appeals Case No. 47A04-1612-JV-2789 v. Appeal from the Lawrence Circuit Court State of Indiana, The Honorable John M. Plummer Appellee-Petitioner. III, Juvenile Referee The Honorable Andrea K. McCord, Judge Trial Court Cause No. 47C01-1606-JD-194

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 1 of 11 [1] L.M. was adjudicated a delinquent child in Lawrence Circuit Court for

committing what would be Level 4 child molesting if done by an adult, and was

made a ward of the Department of Correction. L.M. now appeals the admission

of certain evidence at the delinquency hearing.

[2] We affirm.

Facts and Procedural Posture [3] In May 2016, L.M. was a sixteen-year-old boy living with his father Brandon in

Huron, Indiana. Jeena Baker (“Baker”) was Brandon’s ex-girlfriend, and lived

with her twelve-year-old daughter A.M. in Springville, Indiana. Baker and

Brandon’s relationship had lasted for many years, and A.M. thought of

Brandon as her father. A.M. would sometimes stay at Brandon’s house on the

weekends.

[4] A.M. stayed at Brandon’s on Memorial Day weekend of 2016. One night that

weekend, L.M. and A.M. were watching a movie in L.M.’s bedroom, together

with Brandon’s girlfriend’s three young children. As they watched the movie,

L.M. told A.M. that he and Brandon’s fourteen-year-old niece (“Cousin”), who

was not present in L.M.’s bedroom at the time, “used to do stuff,” Tr. p. 89,

and that he had fondled her. Then, in A.M.’s words,

I feel his hand on my leg and at first I pushed it off and stuff and then all of a sudden I feel him trying to stick his hands down my pants [under my underwear] and I . . . pulled his hand away, like, several times but he wouldn’t stop. . . . [I]t went on awhile [until] I got up [and left L.M.’s bedroom].

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 2 of 11 Tr. pp. 91-92.

[5] A few days later, A.M. told Cousin what L.M. had done. That report soon

reached Brandon and Baker, who took A.M. to be interviewed at the Lawrence

County sheriff’s office. A.M. repeated her story to a sheriff’s detective in a

videotaped interview. On June 15, 2016, the State petitioned to have L.M.

adjudicated a delinquent child for committing what would be Level 4 felony

child molesting if done by an adult. After a delinquency hearing on August 16,

2016, L.M. was adjudicated delinquent on August 29, 2016, and made a ward

of the Department of Correction at a dispositional hearing on November 1,

2016.

[6] L.M. now appeals, challenging the admission of certain evidence at the

delinquency hearing.

Standard of Review [7] We review challenges to a juvenile court’s admission of evidence at a

delinquency hearing for prejudicial abuse of the court’s discretion. J.L. v. State,

5 N.E.3d 431, 436 (Ind. Ct. App. 2014). A court abuses its discretion by ruling

in a way clearly against the logic and effect of the facts and circumstances

before it, id., or by misinterpreting the law. Williams v. State, 43 N.E.3d 578, 581

(Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 3 of 11 Discussion and Decision [8] Hearsay is an out-of-court statement offered for the truth of the matter asserted

therein. Ind. Evidence Rule 801(c). An out-of-court statement offered for a

different purpose is not hearsay, including as circumstantial evidence of the

declarant’s state of mind, Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997), or

as evidence of the statement’s effect on the hearer. Sylvester v. State, 698 N.E.2d

1126, 1129 (Ind. 1998). Hearsay is inadmissible unless within an exception to

the rule against it. Ind. Evid. R. 802 (hearsay inadmissible), 803–04

(exceptions). Where hearsay is offered within hearsay, each part of part of the

statement must be separately admissible. Id. 805.

[9] “Whether a statement is hearsay will most often hinge on the purpose for which

it is offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (citation,

quotation, and ellipsis omitted). Where an out-of-court statement is offered for

its effect on the hearer in the broader context of showing why an investigation

proceeded the way it did, our courts sometimes refer to such statements as

“course of investigation” evidence. See id. While such evidence may help

“bridge the gaps in the trial testimony,” id., it is often largely or entirely

irrelevant to the “core issue at trial[:] . . . what the defendant did (or did not do),

not why the investigator did (or did not do) something.” Id. (emphasis omitted)

Thus, where such evidence is offered, the trial court must take special care in

balancing its relevance against the danger of unfair prejudice under Indiana

Evidence Rule 403. Id. at 566-67.

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 4 of 11 [10] However, L.M. rests his arguments on appeal entirely on whether the

challenged evidence was hearsay. He does not challenge any statement as

admissible for its effect on the hearer but as inadmissible because irrelevant and

prejudicial. We therefore confine our review to the question presented to us:

whether the statements were hearsay.

I. Baker’s Statement “[A.M.] Had Told [Cousin] What Had Happened”

[11] At the delinquency hearing, the following exchange took place between the

prosecutor and Baker, A.M.’s mother:

[State:] At some point, did you find out about an incident involving [A.M.] and [L.M.]?

[Baker:] Yes.

[State:] How did you find out?

[Baker:] Brandon called me on the phone and asked me to ask [A.M.] if anything . . . had happened because his step-mother had told him . . . that [A.M.] had told [Cousin] what had happened.

Tr. p. 68. For the purposes of our hearsay analysis, Baker’s testimony took the

following restated form:

• Cousin’s statement “A.M. told me what had happened,” within

• Step-Mother’s statement “Cousin told me that A.M. told her what had

happened,” within

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 5 of 11 • Brandon’s statement “Step-Mother told me that Cousin told her that

A.M. told her what had happened,” within

• Baker’s testimony “Brandon told me that Step-Mother told him that

Cousin told her that A.M. told her what had happened.”

L.M. challenges this testimony as hearsay within hearsay not within an

exception.

[12] Neither Brandon’s statement to Baker nor any of the statements embedded in it

was offered for its truth but for its effect on the hearer, in a manner similar to

course-of-investigation evidence. The State asked Baker, “How did you find out

[about an incident involving A.M. and L.M.,]” Tr. p. 68, or, put differently,

“Why did you believe an incident involving A.M. and L.M. had occurred?” In

response to that question, Baker answered that she believed it because Brandon

told her so. The fact-finder was only invited to believe that Brandon had spoken

to Baker as an explanation for Baker’s subsequent conduct: namely, “call[ing]

[A.M.]” and “ask[ing] her if anything had happened.” Tr. p. 70. It was

irrelevant in this context whether Brandon was lying when he spoke to Baker;

the only relevant point was that Baker had been told something she

subsequently acted on. The use of Baker’s testimony and Brandon’s statement

for this purpose was not hearsay.

[13] Our conclusion as to the purpose of this evidence is buttressed by the fact that

the words “what had happened” are not in themselves “susceptible of being true

or false” and thus are not in themselves a “statement” within the meaning of

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 6 of 11 the rule against hearsay. Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994); see Ind.

Evid. R. 801(a) (defining “statement” as “assertion”). “[W]e acknowledge that

the grammatical form of an utterance does not ultimately govern whether it is

hearsay, Phillips v. State, 25 N.E.3d 1284, 1288-89 (Ind. Ct. App. 2015)

(quotations omitted), and the fact-finder might have inferred the content of

“what had happened” from A.M.’s later testimony. However, nothing in

Baker’s testimony was so “specific and detailed” as to require the inference or

as to bolster A.M.’s credibility. Williams v. State, 544 N.E.2d 161, 163 (Ind.

1989).

II. Baker’s Statement “[A.M.] Said It Really Happened”

[14] As noted above, after hearing from Brandon, Baker “called [A.M.]” and “asked

her if anything had happened.” Tr. p. 70. Baker gave the following testimony

about what happened next:

[Baker:] I talked to [A.M.] on the phone about it.

[State:] What did she tell you?

[Defense:] Objection, hearsay.

[Court:] Response?

[State:] I’ll withdraw the question.

[Court:] Next question, please. By the way, let me [sustain] the objection formally. Next question, please.

...

[State:] So after you talked to [A.M.] on the phone, what did you do?

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 7 of 11 [Baker:] I hung up and called Brandon and told him that she said it really happened.

[Defense objection to vouching overruled.]

Tr. pp. 71-72. L.M. challenges Baker’s testimony “[A.M.] said it really

happened” as hearsay not within an exception and as vouching.

[15] As to hearsay, to the extent the trial court properly sustained L.M.’s hearsay

objection to the State’s question “What did she tell you,” Tr. p. 71, Baker’s

statement was not received or considered for its truth. Not considered for its

truth, the residual relevance of Baker’s statement, as above, lay in showing its

effect on its hearer in response to the State’s question “[W]hat did you do”:

namely, to explain why Baker and Brandon then decided to take A.M. to be

interviewed by police. Tr. p. 72 (“We discussed going to the police about it and

then after that, I think it was the next day, I took [A.M.] to make a

statement.”). Again, it was irrelevant whether A.M. was lying when she spoke

to Baker; the only relevant point was that Baker had been told something she

subsequently acted on. Baker’s testimony was not hearsay.

[16] Nor was it vouching.

Vouching testimony is specifically prohibited under Indiana Evidence Rule 704(b), which states: “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” This testimony is considered an [impermissible] invasion of the province of the [fact-finder] in determining what weight [it] should place upon a witness’s testimony. Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 8 of 11 Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App. 2014) (internal citation and some

quotations omitted), trans. denied. Contrary to L.M.’s argument on appeal,

Baker’s testimony did not “ma[k]e clear her belief that A.M. was telling the

truth.” Appellant’s Br. at 17. The operative word “really” was clearly contained

in A.M.’s statement to Baker as reported by Baker; it was not Baker’s

evaluation of A.M.’s statement. It is as if A.M. told Baker, “I promise you it

really happened.” For Baker to report this statement does not even imply a

particular position on Baker’s part with respect to the statement’s truth or

falsity. There was no vouching.

III. A.M.’s Statement “[L.M.] Was Telling Me How Him and [Cousin] Used to Do Stuff”

[17] At the delinquency hearing, A.M. testified in part as follows:

[State:] Okay, so you and [L.M.] were talking [as you sat in his bedroom watching the movie]? Go ahead, I’m sorry.

[A.M.:] And he was telling me how him and [Cousin] used to do stuff.

[State:] What kind of stuff?

[Defense:] Judge, I’m going to object at this point in time based on 404B.

[Court:] . . . Let me hear a response from the State on 404B grounds.

[State:] That it’s not used—it’s not used to prove what happened . . . that day. That it’s used more for the

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 9 of 11 then existing mental, emotional, or physical condition of him at the time.

[Court:] Overruled. You may answer the question [“What kind of stuff did L.M. say he and Cousin used to do?”] if you remember the question. . . .

[A.M.:] [H]e just said he used to finger her and stuff like that.

Tr. pp. 90-91.

[18] On appeal, the State characterizes the issue raised by this testimony as a

hearsay problem, but L.M. characterizes it as a character-propensity evidence

problem under Evidence Rule 404(B). We agree with the State. If the testimony

were hearsay — that is, if it had been offered for the truth of the matter that

L.M. used to fondle Cousin — then the testimony would be “[e]vidence of a

crime, wrong, or other act” controlled by Rule 404(B). However, the testimony

was not hearsay, as the State’s response at trial indirectly indicated.

[19] As above, A.M.’s statement was not offered for its truth. The fact-finder was

not invited to believe that L.M. and Cousin actually had done as L.M. said; it

was entirely irrelevant to the State’s case whether L.M. was lying when he

made this statement to A.M. Rather, the State’s only purpose was to show

circumstantial evidence of L.M.’s state of mind — that it was oriented to

“arous[ing] or . . . satisfy[ing] the sexual desires of . . . [L.M.],” Ind. Code § 35-

42-4-3(b), an intent the State was required to prove as charged. Appellant’s

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 10 of 11 App. p. 8 (delinquency petition). Though the State framed its response at trial in

terms of the exception to the rule against hearsay for statements of the

declarant’s “then-existing state of mind,” Evid. R. 803(a), it is clear in context

that the State was seeking to offer L.M.’s statement for the non-hearsay purpose

of circumstantial evidence of state of mind.

Conclusion [20] All of the challenged evidence was admissible. None of the challenged evidence

was hearsay. Baker never vouched for A.M., and A.M.’s testimony was not

governed by Rule 404(B). There was no abuse of discretion, and the judgment

of the juvenile court is therefore affirmed.

[21] Affirmed.

Kirsch, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017 Page 11 of 11