L.M. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 25 2017, 6:31 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Spangler, Jr. Curtis T. Hill, Jr.
Lawrence County Public Attorney General of Indiana
Defender Agency
Katherine Cooper
Bedford, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
L.M., July 25, 2017
Appellant-Respondent, Court of Appeals Case No.
47A04-1612-JV-2789
v. Appeal from the Lawrence Circuit
Court
State of Indiana, The Honorable John M. Plummer
Appellee-Petitioner. III, Juvenile Referee
The Honorable Andrea K.
McCord, Judge
Trial Court Cause No.
47C01-1606-JD-194
Mathias, Judge.
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[1] L.M. was adjudicated a delinquent child in Lawrence Circuit Court for
committing what would be Level 4 child molesting if done by an adult, and was
made a ward of the Department of Correction. L.M. now appeals the admission
of certain evidence at the delinquency hearing.
[2] We affirm.
Facts and Procedural Posture
[3] In May 2016, L.M. was a sixteen-year-old boy living with his father Brandon in
Huron, Indiana. Jeena Baker (“Baker”) was Brandon’s ex-girlfriend, and lived
with her twelve-year-old daughter A.M. in Springville, Indiana. Baker and
Brandon’s relationship had lasted for many years, and A.M. thought of
Brandon as her father. A.M. would sometimes stay at Brandon’s house on the
weekends.
[4] A.M. stayed at Brandon’s on Memorial Day weekend of 2016. One night that
weekend, L.M. and A.M. were watching a movie in L.M.’s bedroom, together
with Brandon’s girlfriend’s three young children. As they watched the movie,
L.M. told A.M. that he and Brandon’s fourteen-year-old niece (“Cousin”), who
was not present in L.M.’s bedroom at the time, “used to do stuff,” Tr. p. 89,
and that he had fondled her. Then, in A.M.’s words,
I feel his hand on my leg and at first I pushed it off and stuff and
then all of a sudden I feel him trying to stick his hands down my
pants [under my underwear] and I . . . pulled his hand away, like,
several times but he wouldn’t stop. . . . [I]t went on awhile [until]
I got up [and left L.M.’s bedroom].
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Tr. pp. 91-92.
[5] A few days later, A.M. told Cousin what L.M. had done. That report soon
reached Brandon and Baker, who took A.M. to be interviewed at the Lawrence
County sheriff’s office. A.M. repeated her story to a sheriff’s detective in a
videotaped interview. On June 15, 2016, the State petitioned to have L.M.
adjudicated a delinquent child for committing what would be Level 4 felony
child molesting if done by an adult. After a delinquency hearing on August 16,
2016, L.M. was adjudicated delinquent on August 29, 2016, and made a ward
of the Department of Correction at a dispositional hearing on November 1,
2016.
[6] L.M. now appeals, challenging the admission of certain evidence at the
delinquency hearing.
Standard of Review
[7] We review challenges to a juvenile court’s admission of evidence at a
delinquency hearing for prejudicial abuse of the court’s discretion. J.L. v. State,
5 N.E.3d 431, 436 (Ind. Ct. App. 2014). A court abuses its discretion by ruling
in a way clearly against the logic and effect of the facts and circumstances
before it, id., or by misinterpreting the law. Williams v. State, 43 N.E.3d 578, 581
(Ind. 2015).
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Discussion and Decision
[8] Hearsay is an out-of-court statement offered for the truth of the matter asserted
therein. Ind. Evidence Rule 801(c). An out-of-court statement offered for a
different purpose is not hearsay, including as circumstantial evidence of the
declarant’s state of mind, Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997), or
as evidence of the statement’s effect on the hearer. Sylvester v. State, 698 N.E.2d
1126, 1129 (Ind. 1998). Hearsay is inadmissible unless within an exception to
the rule against it. Ind. Evid. R. 802 (hearsay inadmissible), 803–04
(exceptions). Where hearsay is offered within hearsay, each part of part of the
statement must be separately admissible. Id. 805.
[9] “Whether a statement is hearsay will most often hinge on the purpose for which
it is offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (citation,
quotation, and ellipsis omitted). Where an out-of-court statement is offered for
its effect on the hearer in the broader context of showing why an investigation
proceeded the way it did, our courts sometimes refer to such statements as
“course of investigation” evidence. See id. While such evidence may help
“bridge the gaps in the trial testimony,” id., it is often largely or entirely
irrelevant to the “core issue at trial[:] . . . what the defendant did (or did not do),
not why the investigator did (or did not do) something.” Id. (emphasis omitted)
Thus, where such evidence is offered, the trial court must take special care in
balancing its relevance against the danger of unfair prejudice under Indiana
Evidence Rule 403. Id. at 566-67.
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[10] However, L.M. rests his arguments on appeal entirely on whether the
challenged evidence was hearsay. He does not challenge any statement as
admissible for its effect on the hearer but as inadmissible because irrelevant and
prejudicial. We therefore confine our review to the question presented to us:
whether the statements were hearsay.
I. Baker’s Statement “[A.M.] Had Told [Cousin] What Had
Happened”
[11] At the delinquency hearing, the following exchange took place between the
prosecutor and Baker, A.M.’s mother:
[State:] At some point, did you find out about an incident
involving [A.M.] and [L.M.]?
[Baker:] Yes.
[State:] How did you find out?
[Baker:] Brandon called me on the phone and asked me to
ask [A.M.] if anything . . . had happened because
his step-mother had told him . . . that [A.M.] had
told [Cousin] what had happened.
Tr. p. 68. For the purposes of our hearsay analysis, Baker’s testimony took the
following restated form:
• Cousin’s statement “A.M. told me what had happened,” within
• Step-Mother’s statement “Cousin told me that A.M. told her what had
happened,” within
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• Brandon’s statement “Step-Mother told me that Cousin told her that
A.M. told her what had happened,” within
• Baker’s testimony “Brandon told me that Step-Mother told him that
Cousin told her that A.M. told her what had happened.”
L.M. challenges this testimony as hearsay within hearsay not within an
exception.
[12] Neither Brandon’s statement to Baker nor any of the statements embedded in it
was offered for its truth but for its effect on the hearer, in a manner similar to
course-of-investigation evidence. The State asked Baker, “How did you find out
[about an incident involving A.M. and L.M.,]” Tr. p. 68, or, put differently,
“Why did you believe an incident involving A.M. and L.M. had occurred?” In
response to that question, Baker answered that she believed it because Brandon
told her so. The fact-finder was only invited to believe that Brandon had spoken
to Baker as an explanation for Baker’s subsequent conduct: namely, “call[ing]
[A.M.]” and “ask[ing] her if anything had happened.” Tr. p. 70. It was
irrelevant in this context whether Brandon was lying when he spoke to Baker;
the only relevant point was that Baker had been told something she
subsequently acted on. The use of Baker’s testimony and Brandon’s statement
for this purpose was not hearsay.
[13] Our conclusion as to the purpose of this evidence is buttressed by the fact that
the words “what had happened” are not in themselves “susceptible of being true
or false” and thus are not in themselves a “statement” within the meaning of
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the rule against hearsay. Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994); see Ind.
Evid. R. 801(a) (defining “statement” as “assertion”). “[W]e acknowledge that
the grammatical form of an utterance does not ultimately govern whether it is
hearsay, Phillips v. State, 25 N.E.3d 1284, 1288-89 (Ind. Ct. App. 2015)
(quotations omitted), and the fact-finder might have inferred the content of
“what had happened” from A.M.’s later testimony. However, nothing in
Baker’s testimony was so “specific and detailed” as to require the inference or
as to bolster A.M.’s credibility. Williams v. State, 544 N.E.2d 161, 163 (Ind.
1989).
II. Baker’s Statement “[A.M.] Said It Really Happened”
[14] As noted above, after hearing from Brandon, Baker “called [A.M.]” and “asked
her if anything had happened.” Tr. p. 70. Baker gave the following testimony
about what happened next:
[Baker:] I talked to [A.M.] on the phone about it.
[State:] What did she tell you?
[Defense:] Objection, hearsay.
[Court:] Response?
[State:] I’ll withdraw the question.
[Court:] Next question, please. By the way, let me [sustain]
the objection formally. Next question, please.
...
[State:] So after you talked to [A.M.] on the phone, what
did you do?
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[Baker:] I hung up and called Brandon and told him that she
said it really happened.
[Defense objection to vouching overruled.]
Tr. pp. 71-72. L.M. challenges Baker’s testimony “[A.M.] said it really
happened” as hearsay not within an exception and as vouching.
[15] As to hearsay, to the extent the trial court properly sustained L.M.’s hearsay
objection to the State’s question “What did she tell you,” Tr. p. 71, Baker’s
statement was not received or considered for its truth. Not considered for its
truth, the residual relevance of Baker’s statement, as above, lay in showing its
effect on its hearer in response to the State’s question “[W]hat did you do”:
namely, to explain why Baker and Brandon then decided to take A.M. to be
interviewed by police. Tr. p. 72 (“We discussed going to the police about it and
then after that, I think it was the next day, I took [A.M.] to make a
statement.”). Again, it was irrelevant whether A.M. was lying when she spoke
to Baker; the only relevant point was that Baker had been told something she
subsequently acted on. Baker’s testimony was not hearsay.
[16] Nor was it vouching.
Vouching testimony is specifically prohibited under Indiana
Evidence Rule 704(b), which states: “Witnesses may not testify
to opinions concerning intent, guilt, or innocence in a criminal
case; the truth or falsity of allegations; whether a witness has
testified truthfully; or legal conclusions.” This testimony is
considered an [impermissible] invasion of the province of the
[fact-finder] in determining what weight [it] should place upon a
witness’s testimony.
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Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App. 2014) (internal citation and some
quotations omitted), trans. denied. Contrary to L.M.’s argument on appeal,
Baker’s testimony did not “ma[k]e clear her belief that A.M. was telling the
truth.” Appellant’s Br. at 17. The operative word “really” was clearly contained
in A.M.’s statement to Baker as reported by Baker; it was not Baker’s
evaluation of A.M.’s statement. It is as if A.M. told Baker, “I promise you it
really happened.” For Baker to report this statement does not even imply a
particular position on Baker’s part with respect to the statement’s truth or
falsity. There was no vouching.
III. A.M.’s Statement “[L.M.] Was Telling Me How Him and
[Cousin] Used to Do Stuff”
[17] At the delinquency hearing, A.M. testified in part as follows:
[State:] Okay, so you and [L.M.] were talking [as you sat in
his bedroom watching the movie]? Go ahead, I’m
sorry.
[A.M.:] And he was telling me how him and [Cousin] used
to do stuff.
[State:] What kind of stuff?
[Defense:] Judge, I’m going to object at this point in time based
on 404B.
[Court:] . . . Let me hear a response from the State on 404B
grounds.
[State:] That it’s not used—it’s not used to prove what
happened . . . that day. That it’s used more for the
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then existing mental, emotional, or physical
condition of him at the time.
...
[Court:] Overruled. You may answer the question [“What
kind of stuff did L.M. say he and Cousin used to
do?”] if you remember the question. . . .
[A.M.:] [H]e just said he used to finger her and stuff like
that.
Tr. pp. 90-91.
[18] On appeal, the State characterizes the issue raised by this testimony as a
hearsay problem, but L.M. characterizes it as a character-propensity evidence
problem under Evidence Rule 404(B). We agree with the State. If the testimony
were hearsay — that is, if it had been offered for the truth of the matter that
L.M. used to fondle Cousin — then the testimony would be “[e]vidence of a
crime, wrong, or other act” controlled by Rule 404(B). However, the testimony
was not hearsay, as the State’s response at trial indirectly indicated.
[19] As above, A.M.’s statement was not offered for its truth. The fact-finder was
not invited to believe that L.M. and Cousin actually had done as L.M. said; it
was entirely irrelevant to the State’s case whether L.M. was lying when he
made this statement to A.M. Rather, the State’s only purpose was to show
circumstantial evidence of L.M.’s state of mind — that it was oriented to
“arous[ing] or . . . satisfy[ing] the sexual desires of . . . [L.M.],” Ind. Code § 35-
42-4-3(b), an intent the State was required to prove as charged. Appellant’s
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App. p. 8 (delinquency petition). Though the State framed its response at trial in
terms of the exception to the rule against hearsay for statements of the
declarant’s “then-existing state of mind,” Evid. R. 803(a), it is clear in context
that the State was seeking to offer L.M.’s statement for the non-hearsay purpose
of circumstantial evidence of state of mind.
Conclusion
[20] All of the challenged evidence was admissible. None of the challenged evidence
was hearsay. Baker never vouched for A.M., and A.M.’s testimony was not
governed by Rule 404(B). There was no abuse of discretion, and the judgment
of the juvenile court is therefore affirmed.
[21] Affirmed.
Kirsch, J., and Altice, J., concur.
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