James Long v. Gordon Homes, Jr. (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 13 2016, 9:26 am

this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jonathan C. Little Mark D. Gerth
David E. Miller James W. Roehrdanz
Jessica A. Wegg Indianapolis, Indiana
Saeed & Little
Indianapolis, Indiana

Nicholas F. Baker
The Hastings Law Firm
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

James Long, July 13, 2016
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1510-CT-1737
v. Appeal from the Marion Superior
Court
Gordon Homes, Jr., The Honorable Timothy Oakes,
Appellee-Defendant. Judge
Trial Court Cause No.
49D02-1405-CT-014997

Bailey, Judge.

[1]

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 Case Summary
[2] Appellant-Plaintiff James Long (“Long”) filed a negligence claim against

Appellee-Defendant Gordon Homes, Jr. (“Homes”) and a jury returned a

verdict in favor of Homes. Long appeals, presenting the sole issue of whether

the trial court abused its discretion by admitting a redacted police report into

evidence. We affirm.

Facts and Procedural History
[3] On January 21, 2014, Homes drove to St. Vincent’s Hospital in Indianapolis to

pick up his wife, Alice Homes (“Alice”), who was being discharged after

surgery. Homes drove his vehicle into a horseshoe drive and stopped; a St.

Vincent’s nurse then assisted Alice into the vehicle. Homes began to move his

vehicle forward when Long, a St. Vincent’s pharmacist, either ran or walked

into the horseshoe drive. Long was either impacted by Homes’s vehicle or

slipped and fell.1 He suffered a concussion.

[4] On May 7, 2014, Long filed a complaint against Homes. A jury trial

commenced on September 28, 2015 and concluded on September 30, 2015.

The jury returned a verdict for Homes. This appeal ensued.

1
Long did not have a specific memory of the event. Alice testified that she “suddenly” saw someone she
thought was running, and Homes applied the brakes before Alice could say anything. (Tr. at 99.) She opined
that the vehicle did not impact Long. Homes testified that he “did not know” if his vehicle collided with
Long. (Tr. at 92.) Eyewitness Nathan Helvie (“Helvie”) testified that he saw the front of Homes’s vehicle
strike Long. He also testified that there was ice on the ground and it was “fairly slick.” (Tr. at 105.)

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 Discussion and Decision
[5] Due to Helvie’s pre-trial statement that Homes was headed the wrong way in

the horseshoe drive, Homes’s direction of travel became a focus at trial. Over

Long’s hearsay objection, the trial court admitted into evidence an “Indiana

Officer’s Standard Crash Report” prepared by Officer James Gillespie (“Officer

Gillespie”). (Def. Ex. A.) The narrative had been redacted, but the exhibit

showed that the box indicating “Wrong Way on One Way” remained

unchecked. (Def. Ex. A.) Long now argues that the admission of the redacted

crash report was an abuse of discretion “that directly and harmfully

contradicted the only independent eye-witness testimony.” Appellant’s Br. at 4.

[6] The decision to admit or exclude evidence is within the sound discretion of the

trial court and will be reversed only upon a manifest abuse of discretion. Gary

Community Sch. Corp. v. Boyd, 890 N.E.2d 794, 798 (Ind. Ct. App. 2008), trans.

denied. An abuse of discretion occurs when the trial court’s decision is contrary

to the logic and effect of the facts and circumstances before it. Id. We will not

reverse the trial court’s admission of evidence absent a showing of prejudice.

Id.

[7] Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless an

evidentiary exception applies. See Evid. R. 802.

[8] Homes concedes that the crash report was hearsay and that he did not support

its admission at trial by identifying an appropriate hearsay exception. Pursuant

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 to Evidence Rule 803(8)(B), a police investigative report is generally not

excepted from the hearsay rule. See e.g., Averitt Exp., Inc. v. State ex rel. Ind. Dep’t

of Transp., 18 N.E.3d 608, 612 (Ind. Ct. App. 2014) (observing that the

summary judgment court should have struck a crash report and also did not

abuse its discretion in striking a paragraph of an investigating officer’s affidavit

where the paragraph was based, at least in part, on hearsay).2

[9] However, Homes claims that the admission of the crash report was harmless

error in light of Officer Gillespie’s deposition testimony to the effect that he had

not checked the “wrong way” box, trial testimony that Homes’s vehicle had not

been moved prior to Officer Gillespie’s opportunity for personal observation,

and Helvie’s in-court testimony contradicting his pre-trial statement. Indiana

Trial Rule 61 provides that no error in the admission or exclusion of evidence is

ground for setting aside a verdict, unless refusal to take such action appears

inconsistent with substantial justice. “The court at every stage of the

proceeding must disregard any error or defect in the proceeding which does not

affect the substantial rights of the parties.” T.R. 61. We thus review the record

to determine if the admission of the crash report was prejudicial and affected

Long’s substantial rights.

2
Here, the officer did not “evaluate the evidence and express an opinion on the cause,” as happened in
Averitt, where the officer opined that the semi-truck driver “was not paying attention to the road.” 18 N.E.3d
at 612. Rather, Officer Gillespie testified that he did not check the box for a contributing factor.

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[10] Because Officer Gillespie was unavailable at trial, his pre-trial deposition was

admitted as substantive evidence. He testified that he would have noted the

approximate position of the vehicle at the time he arrived at the scene of the

accident. According to Officer Gillespie, he “would have done interviews with

the people on [the] scene,” and he had no specific recollection of being given

any information that the vehicle had been moved. (Depo. Pg. 21.) He

acknowledged that his routine practice in making a crash report was to check

any box relating to what he considered to be a contributing factor, and he

testified that he did not check the box for “Wrong Way on One Way” on the

crash report at issue. Thus, the redacted crash report – showing the omission of

a checked box – was cumulative of Officer Gillespie’s testimony that he did not

check the box.

[11] Homes testified that he had been near the exit of the horseshoe drive when the

accident occurred, and he had not moved his vehicle before the officer arrived.

Examining Defendant’s Exhibit D, an aerial view of the horseshoe drive,

Homes testified:

You enter here and you pick up in front of the hospital. And this
is why it’s really impossible to go the wrong way around the
circle, because you pull in purposely so that the passenger side of
the vehicle faces the hospital, so as the patient comes out, they’re
able to place the patient in the car on the passenger side. It’s just
impossible that one would be allowed to go around the circle in
the opposite direction causing the driver’s side to face the
hospital. I mean, it just – it defies common sense.

(Tr. at 93-94.)

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[12] As for Long’s contention that the admission of the crash report is particularly

prejudicial because it contradicted Helvie’s “independent” eyewitness

testimony, this does not take into account the evolution of Helvie’s trial

testimony. During his direct testimony, Helvie acknowledged that he had told

Homes’s accident investigator that the vehicle had been headed “from west to

east,” which he described as “the wrong way.” (Tr. at 107.) He stated that

Homes had not moved his vehicle after the accident, other than “a small back

up like, you know, he knew he hit somebody.” (Tr. at 107.) On cross-

examination, Helvie stated that Homes’s vehicle had been “coming from the

east to the west.” (Tr. at 110.) He then cast doubt upon his pre-trial statement

as to direction:

Helvie: I might have, you know, had a [sic] east or west, you
know, backwards trying to recollect it. But I do remember him,
you know. Once I sit – and I do know the car was going from an
eastern to a western direction.

Counsel: And if you’re going around the horseshoe and heading
back to the west, then you’d actually be obeying the direction of
traffic that’s required on that horseshoe, correct?

Helvie: See, that’s what I’m not sure because the ice that was
down there – and I don’t remember seeing signs. I don’t know if
it’s painted on the concrete or not. But I don’t remember it being
– it’s, you know, for as long as it’s been, you know, a little over a
year, I don’t remember seeing any upright signs. Now, there
might have been signs on the concrete that you couldn’t see
‘cause of the ice and snow.

(Tr. at 112-13.)
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[13] Finally, in rebuttal argument, Long’s counsel urged the jury to re-direct their

focus:

It doesn’t matter if Mr. Homes was driving the wrong way or
not, okay? They’ve denied all along there was any collision.
Well, there was a collision and Nathan Helvie, who has no stake
in this, told you there was. That’s the liability issue here, ladies
and gentlemen. That’s the whole thing. That’s the issue of
liability.

(Tr. at 380.)

[14] In light of the cumulative nature of the redacted crash report, the testimony that

Homes was traveling in the proper direction, and counsel’s arguable

abandonment of the issue of directionality, we cannot say that Long suffered

prejudice to his substantial rights. The admission of the crash report was

harmless error.

[15] Affirmed.

Bradford, J., and Altice, J., concur.

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