Thomas N. Ritchie v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Oct 23 2019, 10:39 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ivan A. Arnaez Curtis T. Hill, Jr.
Arnaez Law Offices Attorney General of Indiana
Evansville, Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thomas N. Ritchie, October 23, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-527
v. Appeal from the Gibson Circuit
Court
State of Indiana, The Honorable Jeffrey F. Meade,
Appellee-Plaintiff. Judge
Trial Court Cause No.
26C01-1610-F4-974
Bradford, Judge.
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Case Summary
[1] Thomas Ritchie was convicted of Level 4 felony burglary under a theory of
accomplice liability. During trial, the State provided evidence that proved that
Ritchie served as the “lookout” on the night of the burglary and drove the
stolen contraband away from the scene of the crime. Ritchie raises numerous
challenges to his conviction on appeal. We affirm.
Facts and Procedural History
[2] Shortly after 9:00 p.m. on September 26, 2016, Ritchie visited the home of
Christy Apodaca, spending time in Apodaca’s bedroom. While in Apodaca’s
bedroom, Ritchie continuously looked out a window towards the home of
Apodaca’s neighbor, Jared Smith, and talked through an “app” on his cellular
phone that made it sound like he was “talking on a walkie-talkie.” Tr. Vol. III
pp. 153, 54. Apodaca heard a male voice coming from “the other end of the
walkie-talkie app thing on his phone.” Tr. Vol. III p. 155. At some point,
Apodaca heard a horn honk outside in front of her home. She also heard the
sound of the horn honking through Ritchie’s phone “like it echoed through his
phone.” Tr. Vol. III p. 158. After Ritchie had been at her home for
approximately ten to fifteen minutes, Apodaca heard her nephew, Bailey
Payne, knocking on the door and “screaming” for her to open the door. Tr.
Vol. III p. 159. Payne asked why there were two televisions in the backyard.
Ritchie left after loading the televisions in his vehicle.
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[3] When Smith returned to his home the next morning, he noticed that his back
door was cracked open and the screen door was “off its hinges.” Tr. Vol. III p.
73. Once inside, Smith discovered that two televisions were missing from his
house. He also discovered that items that were scheduled to have been
delivered to his front porch on September 26 were missing and the pull-down
door to his attic had been opened.
[4] On October 14, 2016, the State charged Ritchie with Level 4 felony burglary
and Level 6 felony theft. Ritchie was found guilty of both counts following a
jury trial. On February 12, 2019, the trial court merged Ritchie’s Level 6 felony
theft conviction into the Level 4 burglary conviction and sentenced him to a
term of nine years.
Discussion and Decision
[5] Ritchie raises numerous contentions on appeal, which we restate as whether (1)
the trial court abused its discretion in limiting his cross-examination of Smith,
(2) the evidence is sufficient to sustain his conviction for burglary, (3) the trial
court abused its discretion in admitting certain evidence, (4) the trial court erred
by failing to declare a mistrial after an unidentified audience member made an
unsolicited statement about a witness, (5) the prosecutor committed
misconduct, and (6) the cumulative effect of the claimed errors made reversal
necessary.
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I. Limitation of Cross-Examination
[6] While a defendant is “presumptively entitled to cross-examine a witness
concerning such matters as the witness’s address,” … “[t]he right to cross-
examine concerning a witness’s address is not absolute.” Turnbow v. State, 637
N.E.2d 1329, 1331 (Ind. Ct. App. 1994) (internal quotation omitted). For
example, because it is improper to permit cross-examination of a witness
regarding prior bad acts if the import of such evidence is directed only to a
general assessment of the credibility and character of the witness, the trial court
does not abuse its discretion when it limits cross-examination aimed at
attacking the character or credibility of a witness. Id. at 1332.
[7] The State sought to exclude questions during cross-examination relating to
Smith’s address and incarceration at the time of Ritchie’s trial, arguing that by
asking such questions, Ritchie was merely attempting to impeach Smith’s
credibility. The Indiana Supreme Court has held that for the purpose of
impeaching the credibility of a witness, only those convictions for crimes
involving dishonesty or false statements—treason, murder, rape, arson,
burglary, robbery, kidnapping, forgery, and willful and corrupt perjury—shall
be admissible. Ashton v. Anderson, 258 Ind. 51, 63, 279 N.E.2d 210, 216–17
(1975). Ritchie acknowledged during trial that Smith “hasn’t done any of the
Ashtons.” Tr. Vol. III p. 48. Noting that it was “not convinced there’s a
legitimate purpose, other than the – something going toward credibility and
character,” the trial court granted the State’s motion in limine regarding
questioning as to Smith’s current address. Tr. Vol. III p. 48.
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[8] Ritchie has failed to offer a legitimate purpose for questioning Smith about his
address, i.e., his incarceration. Instead, as the trial court noted, Ritchie merely
sought to undermine Smith’s credibility and character as a witness. Without
specifying what Smith’s alleged crimes were, Ritchie acknowledged that the
crimes were not Ashton crimes involving dishonesty or false statements. Thus,
the evidence was inadmissible. See Turnbow, 637 N.E.2d at 1332 (concluding
that evidence of incarceration directed only toward credibility and character is
inadmissible and such evidence does not become admissible merely because the
defendant has a Sixth Amendment right to question the witness concerning his
address). The trial court did not abuse its discretion in this regard.
[9] Furthermore, to the extent that Ritchie argues that he should have been able to
question Smith about his address for the purpose of proving that Smith was
biased against him, Ritchie has failed to demonstrate that the trial court’s ruling
left him unable to cross-examine Smith about potential bias. Had he chosen to
do so, Ritchie could have inquired into bias through other less-intrusive means
without implicating Smith’s irrelevant criminal history. Ritchie, however, did
not do so.
II. Sufficiency of the Evidence
[10] Our standard of review for challenges to the sufficiency of the evidence is well-
settled. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015).
We do not reweigh evidence or reassess the credibility of
witnesses when reviewing a conviction for the sufficiency of the
evidence. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We
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view all evidence and reasonable inferences drawn therefrom in a
light most favorable to the conviction, and will affirm “if there is
substantial evidence of probative value supporting each element
of the crime from which a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” Davis v.
State, 813 N.E.2d 1176, 1178 (Ind. 2004); Bailey, 979 N.E.2d at
135.
Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). This is because the factfinder,
and not the appellate court, “is obliged to determine not only whom to believe,
but also what portions of conflicting testimony to believe, and is not required to
believe a witness’s testimony[.]” Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App.
2017) (internal quotation and brackets omitted).
[11] “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.” Ind. Code §
35-43-2-1. The offense is “a Level 4 felony if the building or structure is a
dwelling[.]” Ind. Code § 35-43-2-1(1). Furthermore, “[a] person who
knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense, even if the other person: (1) has not been
prosecuted for the offense; (2) has not been convicted of the offense; or (3) has
been acquitted of the offense.” Ind. Code § 35-41-2-4.
A defendant may be charged as the principal but convicted as an
accomplice. Jester v. State, 724 N.E.2d 235, 241 (Ind. 2000); Wise
v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). Generally there is no
distinction between the criminal liability of an accomplice and a
principal, Wise, 719 N.E.2d at 1198, although evidence that the
defendant participated in every element of the underlying offense
is not necessary to convict a defendant as an accomplice. Vitek v.
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State, 750 N.E.2d 346, 352 (Ind. 2001). “There is no bright line
rule in determining accomplice liability; the particular facts and
circumstances of each case determine whether a person was an
accomplice.” Id. at 353. We consider four factors to determine
whether a defendant acted as an accomplice: (1) presence at the
scene of the crime; (2) companionship with another at scene of
crime; (3) failure to oppose commission of crime; and (4) course
of conduct before, during, and after occurrence of crime. Id. at
352.
Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012). The evidence most favorable
to Ritchie’s Level 4 felony burglary conviction indicates that he acted as an
accomplice to the breaking and entering of Jared’s dwelling and the theft that
occurred therein.
[12] Around 9:00 p.m. on the night of the burglary, Ritchie called Apodaca and
asked if he could stop by. When Ritchie arrived at Apodaca’s home a few
minutes later, they went to Apodaca’s bedroom and Ritchie “laid down on
[Apodaca’s] bed” and looked out a window facing Jared’s home. Tr. Vol. III p.
149. Ritchie “was acting, like, really, really, funny.” Tr. Vol. III p. 152.
Apodaca did not “even know what the purpose of him coming over was”
because Ritchie “didn’t say anything.” Tr. Vol. III p. 153. He just kept talking
through an “app” on his cellular phone that made it sound like he was “talking
on a walkie-talkie.” Tr. Vol. III p. 154. Apodaca heard a male voice coming
from “the other end of the walkie-talkie app thing on his phone.” Tr. Vol. III p.
155. Ritchie stayed in Apodaca’s bedroom for “probably 10 or 15 minutes.”
Tr. Vol. III p. 158. At some point, Apodaca heard a horn honk outside in front
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of her home. She also heard the sound of the horn honking through Ritchie’s
phone “like it echoed through his phone.” Tr. Vol. III p. 158.
[13] Eventually, Apodaca heard her nephew, Payne, knocking on the door and
“screaming” for her to open the door. Tr. Vol. III p. 159. Upon arriving at the
home, Payne observed two televisions sitting in the backyard. Ritchie loaded
the televisions into his vehicle before driving away. It was later discovered that
Smith’s back door was “cracked open,” the screen door was “off its hinges,”
and two televisions were missing from the home. Tr. Vol. III p. 73.
[14] These facts support the inference that Ritchie was working in concert with
another individual who broke and entered Smith’s home, removing two
televisions from the home. Ritchie’s actions are consistent with one acting as a
“lookout” while another committed the burglary and theft. In addition, the fact
that he loaded the televisions into a car and drove away suggests that he was an
active participant in the crime. Given that there is no distinction between the
criminal liability of an accomplice and a principal, see Castillo, 974 N.E.2d at
466, we conclude that the evidence is sufficient to sustain Ritchie’s conviction
for burglary.
III. Admission of Evidence
[15] “We review the trial court’s ruling on the admission of evidence for an abuse of
discretion.” Espinoza v. State, 859 N.E.2d 375, 381 (Ind. Ct. App. 2006). “We
reverse only where the decision is clearly against the logic and effect of the facts
and circumstances.” Id. Ritchie argues that the trial court abused its discretion
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in admitting Apodaca’s testimony regarding a question asked by Payne and her
opinion that Ritchie was likely engaged in criminal behavior.
A. Question Asked by Payne
[16] Apodaca testified during trial that when Payne appeared at the door to her
home, he asked why there were two televisions in the backyard. Ritchie
objected, arguing that the testimony was inadmissible hearsay. The trial court
overruled the objection and admitted the testimony, indicating that it believed
“the foundation’s been laid for an excited utterance.” Tr. Vol. III p. 172.
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). It is inadmissible
unless it falls under an exception. Evid. R. 802. Among the
exceptions to the hearsay rule is: “A statement relating to a
startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition.” Evid.
R. 803(2). Determining whether a statement constitutes an
excited utterance is within the trial court’s discretion and its
ruling will be reversed only for an abuse of that discretion. See
Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).
For a hearsay statement to be admitted as an excited utterance,
three elements must be shown: (1) a startling event, (2) a
statement made by a declarant while under the stress of
excitement caused by the event, and (3) that the statement relates
to the event. Id. This is not a mechanical test. It turns on
whether the statement was inherently reliable because the witness
was under the stress of an event and unlikely to make deliberate
falsifications. Id.; 13 Robert Lowell Miller, Jr., Indiana Practice §
803.102 (2d ed.1995).
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Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000). To be admissible as an excited
utterance, “[t]he statement must be trustworthy under the facts of the particular
case.” Yamobi, 672 N.E.2d at 1346. In making a decision regarding
trustworthiness, “[t]he trial court should focus on whether the statement was
made while the declarant was under the influence of the excitement engendered
by the startling event.” Id. Stated differently, “the statement must be
unrehearsed and made while still under the stress of excitement from the
startling event.” Id.
[17] In attempting to prove that Payne’s question regarding the televisions was an
excited utterance, Apodaca testified that when Payne appeared at the door, he
was “highly upset” and “confused.” In this state, he immediately asked why
there were two televisions in the backyard. The trial court found that this
testimony was sufficient to prove that Payne experienced a startling event when
he found the televisions sitting in the backyard, he asked the question while
under the stress of excitement caused by the event, and his question related to
the event. The trial court, which was in the best position to judge Payne’s state
of mind, found that Payne made an unrehearsed statement while under the
stress of discovering the televisions. We cannot say that the trial court’s finding
in this regard amounts to an abuse of the court’s discretion.
[18] In addition, Payne testified that he found the televisions sitting upright, as if
they had been placed on the ground by someone, in the backyard against a
“fence row” and that he thought “that was awful odd.” Tr. Vol. III p. 228.
Payne indicated that he “knew something wasn’t right with the TVs on the
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ground. You don’t see – find TVs at 9:30 at night on the ground.” Tr. Vol. III
p. 229. He further indicated that the televisions had not been sitting on the
ground earlier that afternoon. “Admission of hearsay evidence is not grounds
for reversal where it is merely cumulative of other evidence admitted.” McClain
v. State, 675 N.E.2d 329, 331–32 (Ind. 1996). Given that Apodaca’s testimony
regarding Payne’s confusion and question relating to the televisions was
cumulative of Payne’s unchallenged testimony regarding his confusion after
discovering the televisions, any error in the admission of Apodaca’s testimony
was harmless and reversal is not required. See id.
B. Apodaca’s Opinion Relating to Ritchie’s Conduct
[19] Trial Rule 704 provides that while opinion testimony is generally admissible,
“[w]itnesses 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.”
The jury, not the witness, is responsible for deciding the ultimate
issues in a trial, and opinion testimony concerning guilt “invades
the province of the jury in determining what weight to place on a
witness’ testimony.” Blanchard v. State, 802 N.E.2d 14, 34 (Ind.
Ct. App. 2004) (citing Head v. State, 519 N.E.2d 151, 153 (Ind.
1988)). In other words, such testimony usurps the jury’s “right to
determine the law and the facts,” Ind. Const. art. I, § 19, and is
therefore inadmissible.
Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015).
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[20] During trial, the State asked Apodaca “So did you suspect Mr. Richie was
involved in something[?]” Tr. Vol. III p. 173. Ritchie objected to the State’s
question on Evidence Rule 704(b) grounds and the State withdrew its question.
After rephrasing its question, the State asked Apodaca “In your mind, Christy,
what did you believe Mr. Ritchie was doing?” Tr. Vol. III p. 174. Ritchie
objected on grounds that the question called for speculation. The trial court
overruled Ritchie’s objection and instructed the State to “put a time frame on
it.” Tr. Vol. III p. 174. The State then asked Apodaca
[Question]: Okay. Christy, when you’re standing there, at that
moment in time … [i]n your mind, what were you thinking at
that point in time as it relates to Mr. Ritchie?
[Answer]: Somebody was getting robbed.
[Question]: Okay. And did you believe Mr. Ritchie might have
been involved?
[Answer]: Yeah.
Tr. Vol. III p. 174. Ritchie objected, again on the grounds that the question
called for speculation. The trial court overruled Ritchie’s objection and allowed
Apodaca’s answer into evidence. The State followed up these questions by
asking Apodaca “Did you believe Mr. Ritchie was involved in some illegal
activity?” Tr. Vol. III p. 175. Ritchie did not object to this last question.
[21] While Ritchie objected to a question that was withdrawn by the State on 704(b)
grounds, the record reveals that, in so far as he objected to the challenged
questions, he did so on the grounds that the questions called for speculation,
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not that the questions violated Evidence Rule 704(b). “It is well[-]settled that a
party may not object to the admission of evidence ‘on one ground at trial and
seek reversal on appeal using a different ground.’” Bush v. State, 929 N.E.2d
897, 898 (Ind. Ct. App. 2010) (quoting Malone v. State, 700 N.E.2d 780, 784
(Ind. 1998)). When, as here, a party does so, “[t]he issue is waived.” Malone,
700 N.E.2d at 784. Moreover, even if it was error to admit the challenged
evidence, given the independent evidence of Ritchie’s guilt, such error was
harmless. See McClain, 675 N.E.2d at 331–32.
IV. Failure to Declare Mistrial
[22] When improper statements are alleged to have been made before the jury, the
correct procedure is to request the trial court to admonish the jury. See Cooper v.
State, 854 N.E.2d 831, 836 (Ind. 2006) (discussing the procedure to follow if a
party presents an improper argument). “If the party is not satisfied with the
admonishment, then he or she should move for a mistrial.” Id. Failure to
request an admonishment or to move for a mistrial results in waiver unless the
appellant can show fundamental error. See Knapp v. State, 9 N.E.3d 1274, 1281
(Ind. 2014); Cooper, 854 N.E.2d at 836. Again, fundamental error is “an error
that made a fair trial impossible or constituted a clearly blatant violation of
basic and elementary principles of due process presenting an undeniable and
substantial potential for harm.” Knapp, 9 N.E.3d at 1281 (internal quotation
and brackets omitted). It is a daunting standard that applies only in egregious
circumstances. Id.
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[23] Ritchie argues that the trial court erred by failing to declare a mistrial after an
unidentified individual made an unsolicited statement about Payne during trial.
Specifically, during cross-examination of Payne regarding how he was familiar
with one of the investigating officers, an unidentified person stated “Bailey’s a
good boy.” Tr. Vol. IV p. 14. Neither the trial court nor any of the attorneys
responded in any fashion to this statement and there is no indication in the
record that the trial court, the attorneys, or the jury heard the statement.
Ritchie merely speculates that the jury might have heard the statement because
the court reporter heard the statement and included it in the transcript. We
conclude that such speculation, without more, is insufficient to demonstrate
fundamental error.
[24] Furthermore, even if the jury did hear the unsolicited statement, the jury was
instructed that it could only consider statements admitted into evidence
together. We will presume that the jury followed the trial court’s instruction
and only considered statements that were admitted into evidence. See Gibson v.
State, 43 N.E.3d 231, 241 n.5 (Ind. 2015) (“Absent evidence to the contrary, we
generally presume the jury follows the trial court’s instructions in reaching its
determination[.]”).
V. Prosecutorial Misconduct
[25] “[I]n reviewing a claim of prosecutorial misconduct, we determine: (1) whether
the prosecutor engaged in misconduct, and if so, (2) whether that misconduct,
under all of the circumstances, placed the defendant in a position of grave peril
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to which he should not have been subjected.” Sobolewski v. State, 889 N.E.2d
849, 858 (Ind. Ct. App. 2008).
To preserve a claim of prosecutorial misconduct, the defendant
must ask the trial court, at the time the misconduct occurs, to
admonish the jury or move for a mistrial if admonishment is
inadequate. [Cooper, 854 N.E.2d at 835.] Failure to request an
admonishment or a mistrial waives the claim, unless the
defendant can demonstrate that the misconduct rises to the level
of fundamental error. Id.
Castillo, 974 N.E.2d at 468.
[26] Ritchie claims that the State committed prosecutorial misconduct by asking him
three questions during redirect examination that were aimed at proving he was
lying. The first question related to whether Ritchie had been represented by
other attorneys at some point during the proceedings. The second related to
whether one of his prior attorneys had filed an alibi defense. The third related
to whether Ritchie believed that an individual acting as a lookout is as guilty as
the person who actually committed the crime.
[27] Ritchie objected to the second and third questions and the trial court sustained
the objections. In instructing the jury, the trial court explicitly instructed the
jury that “During a trial, when I sustain an objection, disregard the question
and answer.” Tr. Vol. II p. 219. The trial court further instructed the jury that
During the progress of the trial certain question may have been
asked which the Court may have ruled as not admissible into
evidence. You must not concern yourselves with the reasons for
any such ruling since the production of evidence is strictly
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controlled by rules of law. You must not consider any testimony
which the Court may have ordered not admitted or ordered
stricken from the record. In fact, such matter is to be treated as
though you had never heard it.
Tr. Vol. V p. 53. Again, we presume that the jury followed the trial court’s
instructions and only considered questions and answers that were admitted into
evidence. See Gibson, 43 N.E.3d at 241 n.5.
[28] Furthermore, Ritchie did not request an admonishment or move for a mistrial.
As such, he must demonstrate that he suffered fundamental error. In evaluating
the issue of fundamental error, our task is to determine whether the misconduct
had such an undeniable and substantial effect on the jury’s decision that a fair
trial was impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).
[29] Again, the trial court sustained Ritchie’s objections to the second and third
questions. As such, only the fact that Ritchie had been represented by different
attorneys at some point during the proceedings was included in the record and
potentially considered by the jury. Ritchie has failed to demonstrate that he
was prejudiced by this statement and we cannot say that inclusion of this
question in the record rendered a fair trial impossible.
VI. Cumulative Effect
[30] A defendant is entitled to a fair trial, not a perfect trial. Inman v. State, 4 N.E.3d
190, 203 (Ind. 2014). The Indiana Supreme Court has been willing to assume,
“for the sake of argument, that under some circumstances the cumulative effect
of trial errors may warrant reversal even if each might be deemed harmless in
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isolation, in this case it is clear in light of the evidence of guilt that no prejudice
resulted from any of the erroneous rulings, individually or cumulatively.”
Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001).
[31] Any errors or imperfections in Ritchie’s trial were more isolated than pervasive
in nature. The cumulative effect of these alleged errors was minor at best and
thus did not deprive Ritchie of his right to a fair trial or his right to complete
justice. Ritchie, therefore, has failed to demonstrate that he was prejudiced by
any of the allegedly erroneous rulings, individually or cumulatively. Because
Ritchie did not suffer prejudice from cumulative error, he is not entitled to a
reversal of his convictions. See Inman, 4 N.E.3d at 203 (“Taken as a whole, not
only were all errors harmless, but the cumulative effect of these errors was
minor at best and thus did not deprive Inman of his right to a fair trial or his
right to complete justice. Because Inman in no way suffered any prejudice from
cumulative error, he is not entitled to reversal of his convictions.”).
[32] The judgment of the trial court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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