Tardy v. State

728 N.E.2d 904, 2000 Ind. App. LEXIS 808, 2000 WL 680984
CourtIndiana Court of Appeals
DecidedMay 26, 2000
DocketNo. 49A05-9901-CR-26
StatusPublished
Cited by5 cases

This text of 728 N.E.2d 904 (Tardy v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tardy v. State, 728 N.E.2d 904, 2000 Ind. App. LEXIS 808, 2000 WL 680984 (Ind. Ct. App. 2000).

Opinions

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Frank Tardy appeals his conviction of Possession of Cocaine within 1,000 feet of a public park, a Class B felony. Tardy raises three issues for our review, which we consolidate and restate as:

1. Whether the trial court' properly admitted into evidence a map from the Marion County Surveyor’s Office upon which several lines were drawn purporting to show the area encompassing 1,000 feet from a public park.
2. Whether there is sufficient evidence to support Tardy’s conviction for possession of cocaine.
We affirm.

FACTS

Led by Detective Bobbie James, officers of the Indianapolis Police Department executed a search warrant at a drug house located at 209 North Randolph Street. After they knocked on the door but received no answer, the officers forced entry and identified themselves as police. Detective James saw six to seven people in the kitchen. Tardy and Clyde Sparkman fled to an upstairs bathroom. Detectives James and Michael Vitali followed, again identifying themselves as police officers and ordering the two men to stop. Either Tardy or Sparkman slammed the bathroom door shut.

. Detective Vitali kicked the door open, and James noticed Sparkman near the bathtub drain attempting to discard a substance later determined to be cocaine. Tardy stood behind the bathroom door. A set-of keys and United States currency lay within inches of his feet. One of the keys opened the front door and another opened a wooden box built into a bedroom closet. Detective Vitali found a baggie of crack cocaine on the floor between the toilet and the wall, equidistant between -Tardy and Sparkman.

Tardy, Sparkman and another defendant were tried together. During its case-in-chief, the State moved to introduce into evidence a certified copy of a map from the Marion County Surveyor’s Office. Several lines were drawn upon the map. Two lines purportedly delineated an‘ area extending 1,000-feet north from Willard Park, and another line connected those two radii. According to the map, as altered by the lines, 209 North Randolph Street lies within 1,000 of the park. Tardy objected on the ground, “Your typical map doesn’t have a thousand foot radius marking on it.” Record at 499. , The court admitted the map as a certified public record pursuant to Indiana Rule of Evidence 803(8). Tardy was found guilty of possession of cocaine within 1,000 feet of a public park and of resisting law enforcement. . He now appeals.

DISCUSSION AND DECISION

Issue One: Public Records Hearsay Exception

Tardy contends that the trial court erred when it admitted into evidence the Marion County Surveyor’s map. Specifically, he claims that the map as altered constitutes inadmissible hearsay. The admission or exclusion of evidence rests within the trial court’s sound discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.1997). The court’s decision is reviewed on appeal only for an abuse of that discretion. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind.1999).

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c); Ground v. State, 702 N.E.2d 728, 730 (Ind.Ct.App.1998). A “statement” includes an oral or [907]*907written assertion. Ind. Evidence Rule 801(a). Hearsay is inadmissible except as provided by law or by the rules of evidence. Ind. Evidence Rule 802; Ground, 702 N.E.2d at 730.

Evidence Rule 803(8) describes a hearsay exception for “records, reports, statements, or data compilations in any form” of a public office or agency “[u]nless the sources of information or other circumstances indicate lack of trustworthiness.” The exception applies to records and reports

setting forth [the office or agency’s] regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.

Ind. Evidence Rule 803(8).

Here, Tardy concedes that the Surveyor’s duties include preparation of maps, but he insists that preparation of the map, as altered by the lines drawn upon it, was not one of the Surveyor’s duties, was not part of the Surveyor’s “regularly conducted and regularly recorded activities” and did not result from “an investigation made pursuant to authority granted by law.” Id. We agree. The lines were obviously added to the original map for the purpose of litigation.

As altered, the map constitutes a written assertion offered to prove that 209 North Randolph Street was within 1,000 feet of Willard Park. If proven, that fact would elevate the offense to a Class B felony. See Ind.Code § 35-48-4-6. Tardy notes correctly that our rules of evidence admit a public record into evidence only if it indicates trustworthiness. He also notes that the State did not show who had placed the radius lines on the map, the Surveyor or someone else. On appeal, in a companion case brought by Sparkman, Tardy’s co-defendant in this trial, our court concluded that it was error to admit the Surveyor’s map because the map did not evince the requisite trustworthiness to remain within the public records exception to hearsay under Evidence Rule 803(8). Sparkman v. State, 722 N.E.2d 1259, 1263 (Ind.Ct.App.2000). The altered map was not a public record. While the original Surveyor’s map was presumed trustworthy under the public records exception, the altered map was not entitled to that presumption. See id.1 The trial court should have sustained Tardy’s objection.

However, admission of the map into evidence was harmless error. Joseph Schmid, captain of the park rangers for the Indianapolis Department of Parks and Recreation, testified that he measured the distance from 209 North Randolph Street to Willard Park. He used a measuring wheel that had been calibrated by the Indiana Department of Weights and Mea[908]*908sures, and he checked the accuracy of the wheel against a cloth measuring tape. Schmid’s uncontroverted testimony is that 209 North Randolph Street is located within 1,000 feet from Willard Park. Under these circumstances, admission of the altered Surveyor’s map did not affect Tardy’s substantial rights, and there is no reversible error. See Ind. Trial Rule 61; Sparkman, 722 N.E.2d at 1263-64 (admission of map was not grounds for reversal).

Issue Two: Sufficiency of the Evidence

Tardy also contends that the evidence is insufficient to establish' his possession of the cocaine. When we review convictions for sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Ladd v. State, 710 N.E.2d 188, 190 (Ind.Ct.App.1999).

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Bluebook (online)
728 N.E.2d 904, 2000 Ind. App. LEXIS 808, 2000 WL 680984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tardy-v-state-indctapp-2000.