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
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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.
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[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
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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.
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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?
A: No.
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
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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
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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
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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
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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.
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