Theodore Andrew Carney v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 25, 2018
• Docket: 18A-CR-559
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 25 2018, 10:40 am regarded as precedent or cited before any 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 Troy D. Warner Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana South Bend, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Theodore Andrew Carney, September 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-559 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffrey L. Sanford, Appellee-Plaintiff. Judge Trial Court Cause Nos. 71D03-1702-F6-139 71D03-1710-F4-53

Rucker, Senior Judge.

[1] A jury convicted Theodore Andrew Carney of arson for starting a fire in a dorm

room at a residential corrections facility. He appeals contending the trial court

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 1 of 9 erred in allowing certain testimony into evidence. We affirm the judgment of

the trial court.

Facts and Procedural History [2] In May 2017, under terms of an agreement Carney pleaded guilty to theft as a

Level 6 felony and was sentenced to twenty-four months in the St. Joseph

County Community Corrections program. Carney was placed at the DuComb

Center – a 108 bed residential facility housing misdemeanor and certain low-

level felony offenders – and assigned to the facility’s D dormitory.

[3] In the evening hours of August 17, 2017, while conducting a routine check, a

DuComb Center detention officer noticed smoke coming from dormitory D.

The South Bend Fire Department was called to the scene, located a fire in the

ceiling of the bathroom, and extinguished the blaze. The fire caused extensive

damage to the Center. Thereafter on October 5, 2017, the State charged Carney 1 with arson as a Level 4 felony.

[4] A jury trial began December 19, 2017. The State’s theory of the case was that

Carney aided a fellow resident – Austin Lamberson – in setting the fire by,

among other things, providing Lamberson with a cigarette lighter. During trial

and without objection the State introduced into evidence Exhibit 15. This

1 Ind. Code §35-43-1-1(a)(3) (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 2 of 9 exhibit was a fifty minutes long audio-capable video surveillance tape depicting

the events occurring in the “D dorm” the night of August 17, 2017. Tr. p. 112.

While the video was being displayed to the jury the director of security at the

DuComb Center described what he saw on the video. At the conclusion of trial

the jury returned a verdict of guilty. Thereafter the trial court sentenced Carney

to twelve years executed in the Department of Correction and ordered him to

pay restitution. This appeal followed. Additional facts are set forth below as

necessary.

Discussion I. [5] Carney frames the issue as follows: “Whether the running commentary of

DuComb director of security . . . usurped the jury’s ‘right to determine the law

and the facts.’” Appellant’s Br. p. 4. There are several problems with Carney’s

statement of the issue. First, his reference to the jury’s right to determine the

law as well as the facts implicates article I, section 19 of the Indiana 2 Constitution. However, other than quoting the provision Carney offers no

analysis of how it applies to the facts in this case and cites no authority to

support his contention. We decline to become a party’s advocate and also

decline to address arguments that are too poorly developed to be understood.

2 The provision declares: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” IND. CONST. art. I, § 19.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 3 of 9 See Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.

To the extent Carney is attempting to raise a state constitutional claim, this

issue is waived. See Davenport v. State, 734 N.E.2d 622, 623 (Ind. Ct. App.

2000) (declaring that failure to put forth a cogent argument acts as a waiver of

the issue on appeal), trans. denied.

[6] Second, although two specific objections Carney raised at trial were overruled –

which we discuss below – at no time did Carney make an objection based on

the so-called “running commentary” of the State’s witness. He now complains

“[t]he testimony of the security director falls within the purview of Rule 701 of

the Indiana Rules of Evidence.” Appellant’s Br. p. 25. Carney’s attempt to

change the theory of why he believes portions of the officer’s testimony may

have been objectionable is unavailing. The law in Indiana is well-settled that

“‘a defendant may not argue one ground for objection at trial and then raise

new grounds on appeal.’” Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011)

(quoting Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000)). Further, to the extent

Carney is now attempting to advance a claim for the first time on appeal, this

issue is waived. Failure to object at trial waives the issue for review unless

fundamental error occurred. Treadway v. State, 924 N.E.2d 621, 633 (Ind.

2010). Here Carney makes no claim of fundamental error, and we find none to

have occurred.

[7] Next, we note another deficiency in Carney’s argument. Indiana Appellate

Rule 46(A)(6) requires the statement of the facts section in the appellant’s brief

to describe in narrative form “‘the facts relevant to the issues presented for

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 4 of 9 review’” supported by citations to the record. Galvan v. State, 877 N.E.2d 213,

215 (Ind. Ct. App. 2007) (quoting App. R. 46(A)(6)). The Rule also provides

that the statement “shall not be a witness by witness summary of the

testimony.” App. R. 46 (A)(6)(c). Here, in his Statement of the Facts and in

question and answer format Carney devotes fifteen pages of his twenty-seven-

page brief to the verbatim testimony given by the DuComb Center security

officer. See Appellant’s Br. pp. 8-23. Not only is Carney’s presentation a clear

violation of Rule 46, but also it sheds no light on the issue properly before this

court. Indeed even if Carney had preserved for review his so-called “running

commentary” argument – which he did not – much of the testimony set forth in

Carney’s statement of facts is simply not relevant to the issue presented.

II. [8] All of this brings us to the only issue properly before this court namely:

whether the trial court erred in admitting certain testimony into evidence. The

decision to admit evidence is within the trial court’s sound discretion. Dixon v.

State, 869 N.E.2d 516, 519 (Ind. Ct. App. 2007). The appellate court will not

disturb the trial court’s ruling unless it determines the trial court abused its

discretion resulting in the denial of a fair trial. Id. An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before the court. Washington v. State, 784 N.E.2d

584, 587 (Ind. Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 5 of 9 [9] As mentioned above the director of security for the DuComb Center was

testifying while State’s Exhibit 15 was published to the jury. During the course

of the witness’ testimony the State inquired:

Now, on the video we just saw two people exit the restroom. Do you know who those two individuals are?

Tr. p. 119. Carney objected declaring:

I’m objecting at this point to commentary of this witness’ interpretation of what the exhibit shows. Because I think the tape itself is best evidence, and it’s up to the jury to determine what they’re viewing.

Id. at 119-20 (emphasis added). The trial court overruled the objection and the

witness responded: “The first person is – the first figure you see is Mr.

Lamberson followed by Mr. Carney.” Id. at 121.

[10] The best evidence rule refers to the principle that when trying to prove the

content of a document, recording, or photograph, an original is the best 3 evidence of that content. See Indiana Evidence Rule 1002. The rule also

applies to video recordings. See Wise v. State, 26 N.E.3d 137, 143 (Ind. Ct. App.

2015) (analyzing the admissibility of copies of cell phone videos under the best

evidence rule), trans. denied. “The purpose of [the best evidence] rule is to

assure that the trier of the facts has submitted to it the evidence upon any issue

3 The Rule provides in relevant part: “An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.” See also Lawson v. State, 803 N.E.2d 237, 240 (Ind. Ct. App. 2004) (declaring in part “[t]he best evidence rule is codified as Indiana Evidence Rule 1002 . . . .”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 6 of 9 that will best enable it to arrive at the truth. . . . [I]t excludes all testimony of the

contents of such instruments when the instrument itself is available and could be

examined by the jury.” Crosson v. State, 268 Ind. 511, 518, 376 N.E.2d 1136, 1141

(1978) (emphasis added).

[11] Here, the video tape was available to and indeed examined by the jury. Thus,

the security officer’s testimony about the contents of the video appears at odds

with the best evidence rule. See id. But neither before the trial court nor on

appeal to this Court does Carney dispute the accuracy of the officer’s testimony.

Under similar circumstances our Supreme Court concluded the trial court

neither abused its discretion nor committed reversible error by admitting

testimony of a witness’ account of what he saw on a video where the defendant

did not dispute the accuracy of the witness’ testimony. See Jones v. State, 780

N.E.2d 373, 378 (Ind. 2002) (declaring, in order to obtain a reversal “for the

improper use of secondary evidence, an effective objection must identify an

actual dispute over the accuracy of the secondary evidence”). We reach a

similar conclusion here, namely, because there is no dispute about the accuracy

of the security officer’s testimony, any error in admitting the testimony was

harmless. Harmless error is an error that does not affect the substantial rights of

a party. Littler v. State, 871 N.E.2d 276, 278 (Ind. 2007).

[12] A few minutes after the above exchange, the director of security identified

Carney’s voice on the video recording. The State then inquired:

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 7 of 9 And kind of based on what you kind of hear here but also when you watched it with a better audio system in your office before, what was said? 4 Tr. p. 123. Carney objected declaring: “Same objection.” Id. The trial court

overruled the objection but admonished the jury as follows:

[U]ltimately – and this is at 16:53 or 16:50 on tape. So if you want to go back and listen to it – he has his impression as to what was said. But ultimately what’s important is what you hear on that tape not the witness’ interpretation. I’ll just give you that bit of evidence. So it’s somewhere at 16:50, somewhere in that area. So if you want to go back when you’re deliberating, you can watch the tape at that point.

Id. at 124. The witness ultimately answered the question stating: “I heard Mr.

Carney say ‘Do you think they’re going to call the police on us?’” Id.

[13] As noted earlier the security officer’s testimony about the contents of the video

appears at odds with the best evidence rule. See Crosson, 376 N.E.2d at 1141.

But even assuming the testimony was erroneously admitted, “[a] proper

admonishment to the jury is presumed to cure any alleged error, unless the

contrary is shown.” Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018)

(quoting Hackney v. State, 649 N.E.2d 690, 694 (Ind. Ct. App. 1995), trans.

denied). Carney makes no claim challenging the trial court’s admonishment.

Thus any error is presumed cured.

4 It appears from the record that the “same objection” referred to the “best evidence” objection Carney had raised only a few minutes earlier. In any event our analysis is the same regardless of the basis for the objection.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 8 of 9 Conclusion [14] We affirm the judgment of the trial court.

Riley, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018 Page 9 of 9