FILED
Feb 12 2018, 9:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General of Indiana
Lafayette, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Ira Burns, February 12, 2018
Appellant-Defendant, Court of Appeals Case No.
79A04-1705-CR-1005
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1608-F2-22
May, Judge.
Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018 Page 1 of 14
[1] Joseph Ira Burns appeals his convictions of Level 2 felony conspiracy to
commit burglary; 1 Level 2 felony burglary while armed with a deadly weapon; 2
two counts of Level 6 felony criminal confinement while armed with a deadly
weapon; 3 and Level 3 felony robbery resulting in bodily injury. 4 He presents
two issues for review, which we restate as:
1) Whether the trial court erred when it admitted a recorded
deposition from a witness; and
2) Whether sufficient evidence was presented to support his
conviction of Level 2 felony burglary while armed with a
deadly weapon.
[2] We affirm.
Facts and Procedural History
[3] On August 19, 2016, Burns, his brother Steven, and Adam Smith met at
Smith’s house and decided to steal money from Jerry and Linda Mathews
(collectively, “the Mathews”). Steven had seen Jerry carrying large amounts of
1
Ind. Code §§ 35-43-2-1 (2014) & 35-41-5-2 (2014).
2
Ind. Code § 35-43-2-1(3)(A) (2014).
3
Ind. Code § 35-42-3-3(2)(A) (2014).
4
Ind. Code § 35-42-5-1(2014).
Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018 Page 2 of 14
cash to pay for automobile repairs. The Mathews’ house was only a few blocks
from Smith’s.
[4] On the way to the Matthews’ house, Steven stopped to retrieve two guns and
gave one to Burns. Each man wore a bandana mask of a different color. Burns
wore a green mask, Steven a red one, and Adam a black one. They broke into
the Mathews’ home via an unlocked window. They entered the Mathews’
bedroom, turned on the light, and began yelling at Jerry to give them his
money.
[5] Jerry got out of bed denying the presence of money in the house but Steven hit
him in the head with his gun and knocked him to the floor. Jerry’s head was
bleeding. Linda remained in bed with Smith near her. Burns remained in the
doorway with his pistol pointed in Jerry’s direction. Steven threatened to kill
Jerry and have Smith rape Linda.
[6] Steven and Burns dragged Jerry to another room and retrieved his wallet.
Smith stayed with Linda. Steven took all the money from Jerry’s wallet,
including some two-dollar bills. He also stole Jerry’s rings and a watch. Steven
and Burns returned Jerry to his bedroom. Steven informed the couple he would
kill them if they left the bed. All three men then exited the home.
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[7] Unbeknownst to the burglars, the Mathews rented their basement to Avonne
Smith. 5 Avonne “heard Jerry state to somebody that was in the house, [‘]I
already told you, you have all the money I have in my wallet.[’]” (Tr. Vol. II at
88.) Avonne called 911 and reported the burglary. Within ten minutes, the
police arrived at the Mathews’ home.
[8] Lafayette Police Department Officer Cassandra Leuck responded to the
dispatch. En route to the Mathews’ home, she saw three men running from the
area. The men matched the description of the suspects. Officer Leuck
apprehended Smith but Burns and Steven eluded her.
[9] Around 2:30 or 3:00 a.m., Burns arrived at John Smalley’s home and requested
a shower. Shortly thereafter, Steven also arrived at Smalley’s home. Steven
had some watches and rings in his pockets. Steven told Smalley he had stolen
the items from Jerry Mathews. Referring to the gun as “a stinger,” Steven
asked Burns “what he had done with the gun that he had.” (Tr. Vol. III at 9.)
Burns was not sure but he thought he had left it along the street.
[10] Lafayette SWAT team arrived at the Smalley home later that morning and
arrested Steven and Burns. They retrieved the rings, the watches and over
$3000 in cash. No one in the home claimed the cash belonged to them. The
5
Ms. Smith is no relation to Adam Smith. (See Tr. Vol. II at 90.)
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police also retrieved a sweatshirt with blood on it. The DNA from the blood
matched Jerry’s DNA.
[11] The State charged Burns with Level 2 felony conspiracy to commit burglary;
Level 2 felony burglary while armed with a deadly weapon; two counts of Level
3 felony criminal confinement while armed with a deadly weapon; Level 3
felony robbery while armed with a deadly weapon; 6 Level 3 felony robbery
resulting in bodily injury; two counts of Level 5 felony intimidation while
drawing or using a deadly weapon; 7 Level 5 felony battery with a deadly
weapon; 8 Class A misdemeanor theft; 9 Level 6 felony pointing a firearm at
another person; 10 Class A misdemeanor carrying a handgun without a license; 11
Level 5 felony carrying handgun while having a prior felony conviction; 12 and
an enhancement for using a firearm during the commission of criminal
confinement. 13
[12] Prior to trial, the Mathews moved to Florida. Linda was diagnosed with a
malignant brain tumor. On February 17, 2017, the State filed a notice of
6
Ind. Code § 35-42-5-1 (2014).
7
Ind. Code § 35-45-2-1(b)(2)(A) (2014).
8
Ind. Code § 35-42-2-1(g)(2) (2016).
9
Ind. Code § 35-43-4-2 (2014).
10
Ind. Code § 35-47-4-3 (2014).
11
Ind. Code § 35-47-2-1 (2014).
12
Ind. Code § 35-47-2-1(e)(2)(B) (2014).
13
Ind. Code § 35-50-2-11 (2016).
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testimonial video deposition because Linda was unable to travel back to
Indiana. Linda’s physician attested to her illness, the requirement for her to
stay close to her treatment facility, and the danger to her health if she traveled
or was in large groups of people. Burns objected to the notice as unreasonable
and violative of his Sixth Amendment right to confrontation. Burns requested
he be transported to attend the deposition in Florida.
[13] The arrangements for the deposition included two-way video-conferencing so
Burns, from the jail, could see Linda and be seen by Linda. Burns’ counsel was
invited to attend in person. The trial court denied Burns’ objection and denied
his request to attend. On February 27, 2017, the parties conducted a deposition
in Florida. The State was present in person. Burns, his attorney, and the trial
court judge were present via videoconferencing call. Prior to the deposition, the
trial court conducted a competency hearing for Linda. It found “the witness is
competent to provide testimony for the purposes of this deposition.” (App. Vol.
II at 118.)
[14] On March 10, 2017, at trial, the court deemed Linda unavailable and allowed
her deposition to be entered into evidence. Burns again objected on the same
grounds, but his objection was denied. A redacted version of the deposition
video was played for the jury.
[15] The jury found Burns not guilty of Level 6 felony pointing a firearm at another
and Class A misdemeanor carrying a handgun without a license but returned a
guilty verdict on all other charges. The State dismissed the Level 5 felony
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carrying a handgun while having a prior felony conviction and the
enhancement. 14 Due to double jeopardy concerns, the trial court reduced both
Level 3 felony criminal confinement charges to Level 6 felonies; merged the
Level 3 felony robbery while armed with a deadly weapon, the Level 5 battery
with a deadly weapon and the Class A misdemeanor theft charges with the
Level 3 felony robbery resulting in bodily injury; and merged the intimidation
charges into the criminal confinement charges.
Discussion and Decision 15
Admission of Evidence
Rules of Evidence
[16] Burns contends Linda’s deposition should not have been admitted into evidence
during trial because the trial court erred in deeming her “unavailable” for trial
such that her deposition was admissible under an exception to the hearsay rule.
See Ind. Evidence Rule 804. He argues that because Linda testified she was
14
These charges were not sent to the jury.
15
We note that, in closing arguments, defense counsel conceded Burns was guilty of conspiracy to commit
burglary, robbery resulting in bodily injury, and theft. (See Tr. Vol. III at 98-99 (theft), 100 (robbery), 102
(conspiracy).) Neither his appellate brief nor the State’s brief acknowledges this concession; thus, we
consider his appeal as including all convictions as they may be affected by the trial court’s rulings. See, e.g.,
Ward v. State, 810 N.E.2d 1042 (Ind. 2004) (although Ward conceded responsibility for the victim’s death,
ancillary decisions still reviewed overall as they pertain to all convictions), reh’g denied, cert. denied 546 U.S.
926 (2005).
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able to do housework, she was able to travel from Florida to Indiana to testify
at trial.
[17] The decision to admit former testimony of an unavailable witness is within the
sound discretion of the trial court. Rhea v. State, 814 N.E.2d 1031, 1033 (Ind.
Ct. App. 2004), trans. denied. We will not reverse “absent a showing of manifest
abuse of the trial court’s discretion resulting in the denial of a fair trial.” Guy v.
State, 755 N.E.2d 248, 252 (Ind. Ct. App. 2001), reh’g denied, trans. denied. We
“will only consider the evidence in favor of the trial court’s ruling and unrefuted
evidence in the defendant’s favor.” Id.
[18] While prior testimony is hearsay, Indiana Rule of Evidence 804 provides an
exception to its exclusion if the declarant is unavailable. To be considered
unavailable, the declarant must be unable to testify “because of death or a then-
existing infirmity, physical illness, or mental illness[.]” Evid. R. 804(a)(4)
(2014). If a witness is determined unavailable, former testimony given “at a
trial, hearing, or lawful deposition” is not excluded by the hearsay rule. Evid.
R. 804(b)(1)(A) (2014). When admitting such testimony, the opponent must
have had an opportunity to cross-examine the deponent. Thomas v. State, 966
N.E.2d 1267, 1270 (Ind. Ct. App. 2012), trans. denied.
[19] Herein, Linda was diagnosed with a malignant brain tumor. Her doctor
submitted documentation regarding her diagnosis and treatment. She was
involved in clinical trials requiring her to have therapy six days per week
without interruptions to avoid any detrimental response. Additionally, her
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doctor stated “[s]he needs to stay close to the Cancer Center so that she can be
closely followed and observed for any adverse events.” (App. Vol. II at 86.)
The doctor also advised Linda’s immune system was compromised and she
would “be at an increased risk for infection” if she did not avoid public places.
(Id. at 149.)
[20] Due to these circumstances, we cannot say the trial court abused its discretion
in finding Linda unavailable. The record demonstrates Linda lived out of state,
was diagnosed with a malignant brain tumor, was participating in a clinical
trial, was unable to be in public places, and required close observation by her
doctors. Prior to the deposition, the trial court conducted a competency
hearing and was able to observe Linda firsthand. Burns’ allegations that
Linda’s ability to do some housework equates to her availability to testify in
person in Indiana does not convince us the trial court erred when it determined
she was unable to travel for several days to another state to testify.
Confrontation Clause
[21] The Sixth Amendment to the United States Constitution provides, in relevant
part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him[.]” Article I, Section 13 of the
Indiana Constitution provides, in relevant part, that “[i]n all criminal
prosecutions, the accused shall have the right . . . to meet the witnesses face to
face[.]” Burns argues he was denied the right to face-to-face confrontation
when the trial court allowed Linda’s deposition to be admitted as evidence.
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[22] The State and the trial court endeavored to take all necessary care to preserve
Burns’ right to confront his accuser face-to-face. Regardless, Linda’s testimony
was cumulative of other evidence. Linda testified as to the attack, the attackers’
clothing, what was said and done while the attackers were in the bedroom, and
how she felt during the incident. Except the information as to how she felt
during the attack, Jerry and Smith testified similarly. As most of Linda’s
testimony was cumulative of other evidence, any error was harmless. See Berry
v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000).
[23] Notwithstanding the fact any error would be harmless, we find no violation of
Burns’ right to confront his accuser. “The Sixth Amendment right of
confrontation requires that a defendant be afforded an opportunity to conduct a
full, adequate, and effective cross-examination.” Belser v. State, 727 N.E.2d 457,
463 (Ind. Ct. App. 2000), trans. denied. “[T]he Indiana Constitution guarantees
a defendant the right to face-to-face confrontation with witnesses against him.”
Id. Here, Linda’s deposition was arranged so that Burns’ attorney could attend
in Florida (although it appears from the record he appeared via teleconference),
Burns attended via two-way video that allowed him to see Linda and Linda to
see him, and Burns was able to communicate with his attorney. Burns’
attorney was able to fully cross-examine Linda, and the two-way video
arrangement allowed Burns to participate face-to-face. See Brady v. State, 575
N.E.2d 981, 989 (Ind. 1991).
[24] Prior to taking the deposition, the State filed a “Notice of Testimonial Video
Deposition” indicating Linda’s deposition may be used for testimony. (App.
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Vol. II at 70.) In his objection to the taking of the deposition, Burns
acknowledged Linda’s deposition might be used at trial when he stated he
“believes the State’s purpose for taking the testimonial video deposition of
Linda Mathews is for use at the trial of Joseph Ira Burns[.]” (Id. at 74.) Thus,
Burns was on notice to conduct the cross-examination with a similar motive as
he would use at trial and he appears to have done so. See Morgan v. State, 903
N.E.2d 1010, 1016 (Ind. Ct. App. 2009) (if defendant had similar motive to
develop testimony during deposition as for trial, the deposition is admissible at
trial), trans. denied. The trial court did not err when it allowed Linda’s
deposition to be entered into evidence at trial.
Sufficiency of Evidence
[25] Burns contends the State did not provide sufficient evidence to prove he
committed burglary while armed with a deadly weapon. Specifically, he takes
issue with the fact the charging information says Burns and his cohorts had
entered the Matthews’ home with the intent to commit a felony “while armed
with a deadly weapon, to wit: a handgun(s)[.]” (App. Vol. II at 17) (emphasis
added). He asserts the State did not prove the weapons were handguns.
[26] When reviewing sufficiency of the evidence in support of a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the
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credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference may reasonably be drawn from it to support the verdict. Id. at
147.
[27] The definition of burglary while armed with a deadly weapon is:
A person who breaks and enters the building or structure of
another person, with intent to commit a felony or theft in it,
commits burglary, a Level 5 felony. However, the offense is:
*****
(3) a Level 2 felony if it:
(A) is committed while armed with a deadly weapon . . . .
Ind. Code § 35-43-2-1 (2014). The State charged Burns with being armed with a
handgun specifically. A handgun, as defined in the jury instructions given, is
“any weapon that is capable of or designed to or that may readily be converted
to expel a projectile by means of an explosion.” (App. Vol. II at 209.) Burns
asserts the State did not present sufficient evidence to prove he used a real
handgun rather than a “airsoft gun, or for that matter, a black squirt gun[.]”
(Appellant’s Br. at 24.) He claims that such a lack of proof creates a fatal
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variance between the charging information and the proof presented at trial. He
cites Miller v. State, 616 N.E.2d 750, 754 (Ind. Ct. App. 1993), to support this
claim.
[28] Miller is distinguishable. The pellet gun in Miller was seized by the police and it
was known to be a pellet gun; however, the State specifically charged Miller as
being armed with a handgun. Because the weapon was known, and thus
proven, to not be a handgun, we held there was a fatal variance between the
charging information and the evidence presented at trial. That is not the case
here. The weapons brandished by Burns and Steven were not recovered by the
police, and no one with firsthand knowledge testified as to their authenticity or
lack thereof.
[29] Jerry testified the men wearing the red and the green masks had guns. The man
in the red mask was “[p]ointing it at [him.]” (Tr. Vol. II at 94.) The “man with
the green mask . . . was pointing it at, pointing at us.” (Id.) Linda testified that
the “ones with the guns wore the red and the green [masks].” (App. Vol. II at
123.) She said the ones with the guns “were closer to [Jerry’s] side of the bed.”
(Id. at 124.) Smith testified Steven got “black handguns” when they stopped on
the way to the Mathews’ house. (Tr. Vol. II at 212.) He stated Steven gave one
to Burns. Although he admitted he did not handle the guns, Smith thought
“[t]hey looked real.” (Id. at 225.)
[30] All three witnesses who saw the guns testified they were real and were
controlled by Steven and Burns. All three acknowledged they had not
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inspected the weapons. Although the handguns were not found by the police,
and none of the witnesses could testify regarding their examination of the guns
and their authenticity, the jury could reasonably infer Burns possessed a gun.
See D.B. v. State, 658 N.E.2d 595, 595 (Ind. 1995) (evidence was sufficient for
the jury to infer the gun was loaded even though the gun was not recovered and
no evidence was presented that it was loaded). Burns’ arguments to the
contrary are a request that we reweigh the evidence, which we cannot do. See
Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the
credibility of witnesses).
Conclusion
[31] As the trial court did not err when it determined Linda was “unavailable” and
entered her deposition testimony as evidence, and as the State provided
sufficient evidence to allow the jury to infer Burns used a handgun during the
burglary, we affirm Burns’ convictions.
[32] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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