Trey A. Smith v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 26, 2018
• Docket: 18A-CR-1023
• Status: Published

Opinion

FILED Nov 26 2018, 7:13 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael P. DeArmitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana

Jesse R. Drum Laura R. Anderson Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Trey A. Smith, November 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1023 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause No. 03D01-1712-F6-6683

Najam, Judge.

Statement of the Case [1] Trey Smith appeals his convictions for theft, as a Level 6 felony, and criminal

mischief, as a Class B misdemeanor, following a jury trial. Smith presents a

single issue for our review, namely, whether the trial court abused its discretion Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 1 of 9 when it admitted certain testimony over his objections. We also address a

second issue sua sponte, namely, whether Smith’s convictions violate his right to

be free from double jeopardy. We affirm in part, reverse in part, and remand

with instructions.1

Facts and Procedural History [2] On December 6, 2017, at approximately 8:20 p.m., Melissa Shafer left her office

and walked out to the parking lot, where she found a man lying on the ground

next to her car. Shafer asked the man what he was doing, but he did not reply.

She asked him a second time, and he responded, “Let me get out of your way.”

Tr. at 25. Shafer then saw the man pull up a tarp and gather some tools, and he

ran past her toward the office building and out of sight. Shafer got in her car

and started the engine. She immediately noticed that the engine was “very

loud” and she “knew the mechanics had been messed with.” Id. at 27.

Accordingly, she promptly called 9-1-1 and gave a description of the man she

had seen next to her car. She saw that the man was wearing “dark colored or

black pants and a black zip up hoodie with white lettering on the back of it.”

Id. at 34. A police officer arrived at the scene within three to five minutes and

found that the catalytic converter on Shafer’s car had been cut and was

“hanging down and touching the ground.” Id. at 51.

1 We held oral argument in this case on November 5, 2018, at Tri-West High School in Lizton. We thank counsel for their excellent advocacy and extend our appreciation to the faculty, staff, and students of Tri- West High School for their hospitality.

Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 2 of 9 [3] Within three minutes of hearing the suspect’s description over his radio, Officer

Ron May of the Columbus Police Department, who was patrolling in the area,

saw a man fitting the suspect’s description “jogging across the road in a

southeasterly direction” near the intersection of U.S. 31 and Washington Street.

Id. at 39. Officer May saw the man near a Village Pantry, but he lost sight of

him. Officer May soon saw the man again walking to the south of a nearby

building. Officer May then stopped and talked to the man, who identified

himself as Smith.

[4] Officer May asked Smith “where he was coming from,” and Smith replied that

he had just been at Chris Chaplin’s residence at 3220 Washington Street. Id. at

43. While Officer May was talking to Smith, Officer Tony Kummer, who had

responded to the scene at Shafer’s office parking lot, drove Shafer to the

location where Officer May and another officer were talking to Smith. Shafer

identified Smith as the man she had seen next to her car. Officers arrested

Smith. At some point, Officer May went to the residence at 3220 Washington

Street and talked to the owner, who stated that he did not know Smith.

[5] The State charged Smith with attempted theft, as a Level 6 felony, and criminal

mischief, as a Class B misdemeanor. At Smith’s ensuing jury trial, Officer May

testified in relevant part that he had found no one at the residence at 3220

Washington Street who knew Smith, and Smith timely objected to that

testimony on hearsay grounds. The trial court permitted the testimony over

Smith’s objections. The jury found him guilty as charged, and the trial court

Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 3 of 9 entered judgment of conviction and sentenced him accordingly. This appeal

ensued.

Discussion and Decision Issue One: Hearsay

[6] Smith contends that the trial court abused its discretion when it admitted

Officer’s May’s testimony as evidence over Smith’s hearsay objections. We

review a trial court’s evidentiary rulings “for an abuse of discretion.” Snow v.

State, 77 N.E.3d 173, 176 (Ind. 2017). “An abuse of discretion occurs when the

ruling is clearly against the logic and effect of the facts and circumstances.” Id.

[7] Hearsay is a statement “not made by the declarant while testifying at the trial or

hearing” that is “offered in evidence to prove the truth of the matter asserted.”

Ind. Evidence Rule 801(c). And a “statement” means “a person’s oral

assertion, written assertion, or nonverbal conduct if the person intended it as an

assertion.” Evid. R. 801(a). At trial, during the State’s direct examination of

Officer May, Smith made two hearsay objections during the following colloquy:

Q: Um, after you talked to [Smith,] later on did you go to that house [at 3220 Washington Street] where he said he was[ prior to his arrest]?

A: Yes.

Q: And did you find anyone in the residence who knew the defendant?

[Defense counsel]: Objection that’s calling for hearsay.

Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 4 of 9 Q: I’m not asking what they said Judge I’m just asking if anyone knew of him.

COURT: Ok, overruled.

Q: Did you find anybody at the house who knew the defendant?

A: No.

***

Q: And you did speak with owner of the house is that correct?

A: I did.

Q: Um did that person know Trey Smith?

[Defense counsel]: Objection once again I mean he’s only going to know him by answering a question that the officer asked, hearsay.

COURT: Response?

Q: Again I’m not asking for him to repeat what he said I’m asking if, if the individual knew who Trey Smith was.

COURT: Overruled.

Q: Did he know who Trey Smith was?

Tr. at 43-45.

[8] On appeal, Smith asserts that the trial court abused its discretion when it

permitted the testimony over his timely objections. He maintains that, because Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 5 of 9 Officer May could not have learned whether anyone at the residence knew

Smith without having asked them, Officer May “was merely a conduit for the

out-of-court statements made by those persons present” at the residence.

Appellant’s Br. at 12. Thus, he contends that those statements constitute

inadmissible hearsay. The State responds that the challenged testimony did not

constitute hearsay because “Officer May did not testify about anyone’s

statement . . . [or] repeat anyone’s assertion.” Appellee’s Br. at 7. We agree

with Smith.

[9] While Officer May did not repeat a declarant’s statement, per se, he testified to

information that could only have been obtained through statements made by

the person or persons he had questioned at the residence Smith claimed to have

visited before his arrest. Thus, those out of court statements were embedded in

Officer May’s testimony and were the predicate for that testimony, which was

equivalent to repeating the declarant’s out-of-court statements. And Officer

May’s testimony was offered to discredit Smith with proof that no one at the

residence knew Smith; that is, the testimony was offered for the truth of the

matter asserted. Accordingly, we hold that the challenged testimony was

hearsay, and the trial court abused its discretion when it overruled Smith’s

timely objections.

[10] However, it is well settled that the erroneous admission of hearsay testimony

does not require reversal unless it prejudices the defendant’s substantial rights.

Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). To determine whether an

evidentiary error was prejudicial, we assess the probable impact the evidence

Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 6 of 9 had upon the jury in light of all of the other evidence that was properly

presented. Id. If we are satisfied the conviction is supported by independent

evidence of guilt such that there is little likelihood the challenged evidence

contributed to the verdict, the error is harmless. Id.

[11] Here, we are convinced that there is little likelihood that Officer May’s

testimony that no one at 3220 Washington Street knew Smith contributed to the

verdict. Although the evidence discredited Smith’s statements to officers on the

scene, at trial Smith did not assert an alibi defense but instead argued only that

Shafer had misidentified him as the man she had seen in the parking lot next to

her car. Because Smith did not contend at trial that he had been visiting

someone at that residence before his arrest, Officer May’s hearsay testimony

was not integral to Smith’s defense.

[12] While Officer May’s hearsay testimony prejudiced Smith in that it was

impeaching, the independent evidence of Smith’s guilt persuades us that the

evidence of Smith’s untruthfulness did not likely contribute to the guilty verdict.

In particular, Shafer testified that, when the officers drove her to the location of

Smith’s arrest shortly after the incident, she was “100%” certain that he was the

man she had seen in the parking lot. Tr. at 30. While Smith points out that it

was dark at the time of the offense and Shafer has a vision impairment in one

eye, the State presented evidence that the parking lot and exterior of the office

building were well lit at the time of the offenses, and Shafer testified that she

wears glasses and has “no problem seeing anything[.]” Id. at 34. In addition,

Officer May found Smith, who fit the description given by Shafer, within three

Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 7 of 9 minutes of hearing the suspect’s description over his radio and at a location

near Shafer’s office building. Thus, we hold that the trial court’s admission of

Officer May’s hearsay testimony was harmless error.

Issue Two: Double Jeopardy

[13] We next address, sua sponte, whether Smith’s convictions violate his right to be

free from double jeopardy under Indiana law. Article 1, Section 14 of the

Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

for the same offense.” Our Supreme Court has interpreted that clause to

prohibit multiple convictions based on the same “actual evidence used to

convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Our Supreme

Court has also “long adhered to a series of rules of statutory construction and

common law that are often described as double jeopardy[] but are not governed

by the constitutional test set forth in Richardson.” Guyton v. State, 771 N.E.2d

1141, 1143 (Ind. 2002) (quotation marks omitted). One such rule prohibits

“[c]onviction and punishment for a crime which consists of the very same act as

another crime for which the defendant has been convicted and punished.” Id.

In Taylor v. State, we acknowledged that the very same act test is different than

the actual evidence test, and we held that the very same act test applies when

the defendant’s “behavior” underlying one offense is “coextensive with the

behavior . . . necessary to establish an element of” another offense. 101 N.E.3d

865, 972 (Ind. Ct. App. 2018).

[14] Here, Smith’s behavior underlying the attempted theft is coextensive with the

behavior necessary to establish an element of criminal mischief. See id. In Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 8 of 9 particular, the only evidence showing that Smith took a substantial step toward

theft of the catalytic converter from Shafer’s car was his partial removal of it.

See Ind. Code § 35-43-4-2.5(b) (2017). And that same behavior was also the

only evidence that Smith had damaged or defaced Shafer’s car, which was the

basis for his criminal mischief conviction. See I.C. § 35-43-1-2(a). Thus, we

reverse Smith’s criminal mischief conviction. We remand with instructions that

the trial court vacate Smith’s criminal mischief conviction.

[15] Affirmed in part, reversed in part, and remanded with instructions.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018 Page 9 of 9