Dewayne M. Townsend v. State of Indiana , 2015 Ind. App. LEXIS 401 ( 2015 )

May 15 2015, 8:28 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dewayne M. Townsend, May 15, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1411-CR-389
v. Appeal from the Allen Superior
Court.
The Honorable Wendy W. Davis,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 02D05-1406-FD-677
Sharpnack, Senior Judge
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Statement of the Case
[1] Dewayne M. Townsend appeals from his conviction of one count of residential
1
entry as a Class D felony, challenging the admission of a witness’s prior
consistent statements and the sufficiency of the evidence. We affirm.
Issues
[2] Townsend presents the following restated issues for our review:
I. Whether the trial court abused its discretion by admitting a
witness’s prior consistent statements.
II. Whether there is sufficient evidence to support his
conviction.
Facts and Procedural History
[3] On June 13, 2014, Townsend went to Ashleigh Fryar’s apartment to spend time
with the newborn child the two had in common. Townsend left after holding
the baby for some time. Ashleigh then locked the front door and took the baby
with her to her bedroom. Ashleigh did not respond when Townsend later
returned and began knocking on the front door. Townsend requested that
Ashleigh allow him to take the child with him and the two had argued about
that subject earlier. After a period of time with no response, Townsend then
walked to Ashleigh’s window and demanded that she allow him to take the
1
Ind. Code § 35-43-2-1.5 (1991).
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baby with him. Ashleigh refused his request. Townsend then returned to the
front door of the apartment, kicked it in, and entered Ashleigh’s apartment.
[4] At some point during this incident, Ashleigh texted 911 on her cell phone. Fort
Wayne Police Department officers responded to the call. Upon arriving at
Ashleigh’s residence, the officers observed that the door to Ashleigh’s
apartment had been forced open and that the door frame had been broken.
Pieces of wood and pieces of the door frame were lying on the ground inside
the apartment. Townsend admitted to the officers that he had kicked in the
door and entered Ashleigh’s apartment when she did not open the door.
Although at trial he later claimed this justification for breaking down Ashleigh’s
door, Townsend did not tell officers at that time that he did so out of concern
about the welfare of his child or that he had heard the baby crying.
[5] Additionally, after entering Ashleigh’s apartment and before the police officers
arrived, Townsend confronted Ashleigh. He grabbed and pulled her hair
causing her pain and grabbed her face causing an injury to her lip and making it
difficult for her to breathe.
[6] The State charged Townsend with residential entry and domestic battery. At
Townsend’s jury trial, the State introduced several exhibits, including the text
messages from Ashleigh to 911, which were admitted without objection, and a
letter written by Ashleigh to Townsend’s counsel in which she recanted the
battery allegations, also admitted without objection.
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[7] The State also introduced State’s Exhibit 25, a recording made at the police
station of Ashleigh’s conversations with her friends, which was redacted to
remove any reference to Townsend’s prior felony convictions. The State
originally offered the video recording as an excited utterance exception to the
hearsay rule, but withdrew that request and sought to have the recording
introduced to rebut an express or implied charge of recent fabrication. The trial
court admitted the recording over Townsend’s hearsay objection and the
recording was published to the jury.
[8] After the State rested its case, Townsend testified and admitted that he kicked in
the front door of Ashleigh’s apartment when she did not open the door. He
claimed that he did so out of concern for the welfare of his child.
[9] At the conclusion of the trial, the jury was unable to reach a verdict on the
domestic battery charge, but found Townsend guilty of residential entry. The
trial court sentenced Townsend to two years for his residential entry conviction
with one year suspended to probation. Townsend now appeals.
Discussion and Decision
I. State’s Exhibit 25
[10] Townsend claims that the trial court abused its discretion by admitting State’s
Exhibit 25 during Townsend’s jury trial. Trial courts have broad discretion to
rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.
2014). On appellate review, we review the trial court’s rulings “‘for abuse of
that discretion and reverse only when admission is clearly against the logic and
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effect of the facts and circumstances and the error affects a party’s substantial
rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)). The
trial court’s broad discretion extends to situations involving the admissibility of
purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[11] “Hearsay is an out-of-court statement offered for ‘the truth of the matter
asserted,’ Ind. Evidence Rule 801(c)(2), and it is generally not admissible as
evidence.” Id. at 565 (quoting Ind. Evidence Rule 802). “‘Whether a statement
is hearsay . . . will most often hinge on the purpose for which it is offered.’” Id.
(quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). Indiana
Evidence Rule 801(d)(1)(B) provides that a statement is not hearsay if the
declarant testifies and is subject to cross-examination about a prior statement,
the statement is consistent with the declarant’s testimony, and the statement is
offered to rebut an express or implied charge that the declarant recently
fabricated the statement or acted from a recent improper influence or motive for
testifying.
[12] A prior inconsistent statement may be used to impeach a witness. Martin v.
State, 736 N.E.2d 1213, 1217 (Ind. 2000). If used for that purpose, it is not
hearsay because the statement is not used to prove the truth of the matter
asserted. Id. In other words, the statement is used to establish that the witness
previously made a statement contrary to his testimony, not necessarily that the
prior inconsistent statement is substantively true.
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[13] In this appeal we are asked to examine the use of a prior consistent statement.
Our Supreme Court cited Judge Miller’s treatise on evidence when discussing
the use of prior consistent statements:
If an adversary has made an express or implied charge against the
witness of recent fabrication or improper influence or motive,
and the prior consistent statement was made before the motive to
fabricate arose, the prior consistent statement is admissible as
substantive evidence; if the prior consistent statement was made
after the motive to fabricate arose, however, it is admissible to
rehabilitate a witness.
Bassett v. State, 895 N.E.2d 1201, 1214 (Ind. 2008) (quoting 13 Robert L. Miller,
Jr., Indiana Evidence § 613.208 (1995)). In this case, a prior consistent
statement would be properly admitted if Ashleigh had testified on direct
examination that Townsend beat her, then Townsend had confronted her on
cross-examination with the letter recanting her allegation of domestic battery
and suggested, for example, that the State put Ashleigh up to her trial
testimony. The State would then be allowed to introduce State’s Exhibit 25, a
prior consistent statement, to rebut Townsend’s charge of recent fabrication.
[14] The facts here do not present the common situation in which prior consistent
statements are used to refute an express or implied charge of recent fabrication.
The State apparently anticipated that Townsend would attempt to impeach
Ashleigh with the letter and introduced it during direct examination to reduce
its impeachment value. On cross-examination, Townsend noted the varying
stories, thus challenging Ashleigh’s credibility, but did not expressly or
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impliedly allege recent fabrication, viz. that her trial testimony was fabricated at
the instance of the State.
[15] Rather, Ashleigh testified on direct examination that she called 911 because
Townsend was “beating down” her door. Tr. p. 85. She further testified that
after Townsend entered her home, he then entered her bedroom, pulled her
hair, and grabbed her face, causing her pain and busting her lip. The State
asked her about the notarized letter she had written to Townsend’s attorney in
which she recanted her allegation that Townsend physically harmed her. She
identified the letter and it was admitted into evidence without objection. She
then read the letter aloud. Ashleigh testified that the contents of the letter were
not true, and that she wrote the letter because at that time she wrote it she “was
conflicted between right and wrong.” Id. at 91-92. She stated that her
testimony at trial accurately described what had happened.
[16] On cross-examination, Ashleigh testified that her testimony in court was
essentially the same as what she told the officers who responded to her 911 call.
She also acknowledged the letter she had written to Townsend’s lawyer. She
agreed with counsel’s suggestion that she had notarized the letter “to give this
letter some validity and a little extra weight.” Id. at 98. While testifying about
the letter, Ashleigh agreed when Townsend’s counsel asked her if by drafting
the letter she had “presented a complete fabrication after [she] had time to
reflect on what happened on June 13th.” Id. at 100. She also agreed with
Townsend’s counsel’s statement that she had “presented two pretty much
diametrically different accounts about what happened that day.” Id. at 101. He
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finished his cross-examination of Ashleigh by getting her to agree to the context
and sequence of those two different stories when he asked her if there was “one
account you gave to the police that day and then one account that you gave in
this notarized letter that you authored at some point later[.]” Id. at 102.
[17] On redirect, Ashleigh testified that she spoke with three officers on the day of
the incident and that she had told each of them that Townsend had broken
down the door, grabbed and pulled her hair, and had grabbed her mouth.
[18] During Detective Roos’s testimony, which followed Ashleigh’s testimony, the
State attempted to introduce State’s Exhibit 25, a redacted audio and video tape
of Ashleigh making telephone calls to her friends while she waited in an
interview room. The proposed legal basis for the admissibility of the exhibit
was the excited utterance exception to the hearsay rule. The exhibit was not
admitted at that time. However, Detective Roos testified that Ashleigh’s
testimony in court was consistent with what she had told him during her
interview.
[19] Later, the State called Ashleigh to the witness stand again and asked her to
identify State’s Exhibit 25. The State then argued that the exhibit was
admissible as a prior consistent statement offered to rebut an express or implied
charge of recent fabrication. The trial court admitted the exhibit over
Townsend’s objection. However, this was an abuse of discretion.
[20] We recently summarized the parameters set for the appropriate use of prior
consistent statements that have developed through case law and evidentiary
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rules in Corbally v. State, 5 N.E.3d 463 (Ind. Ct. App. 2014). In Corbally, we
cited to language from our Supreme Court’s opinion in Modesitt v. State, 578
N.E.2d 649 (Ind. 1991), stating that adoption of what is now Indiana Evidence
Rule 801(d)(1) “was necessary to prevent ‘abuses’ in the use of a witness’s prior
consistent statements, such as by bolstering ‘the testimony of what might
otherwise be regarded as a weak witness’ and prohibiting ‘[n]umerous witnesses
[from testifying] to the same statement given by a particular witness, thereby
creating the prohibited drumbeat of repetition.’” 5 N.E.3d at 469. In
particular, we noted that “cases have made clear that there is a difference
between merely challenging a witness’s credibility versus making an express or
implied charge of fabricated testimony or improper influence or motive.” Id.
“If there has only been general impeachment of a witness’s credibility, then
prior consistent statements by the witness are hearsay and not admissible as
substantive evidence.” Id. “Also, general attacks upon a witness’s memory do
not constitute a charge that the witness fabricated testimony and do not permit
the admission of prior consistent statements by the witness.” Id. In this case
there was not even a suggestion made that Ashleigh’s testimony at trial was a
recent fabrication or the product of a recent improper influence or motive.
[21] Although the trial court abused its discretion by admitting State’s Exhibit 25,
the error is subject to harmless error analysis. Id. at 470. In that situation, we
must consider whether the evidence was likely to have substantially swayed the
jury’s verdict. Id. The evidentiary error is harmless if we are satisfied that the
conviction is supported by such substantial independent evidence of guilt that
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there is little likelihood the challenged evidence contributed to the conviction.
Id. Whether an error contributed to a verdict, requires the appellate court to
determine whether the erroneously admitted evidence was unimportant in
relation to everything else the jury considered on the issue in question. Id.
[22] Ashleigh told the officers that Townsend came to her apartment, knocked on
her door, broke down the door, and confronted her. She testified at trial
consistently with that account of the incident. The officers who responded to
Ashleigh’s 911 call observed that the front door to Ashleigh’s apartment had
been damaged. Townsend admitted to the officers that he broke down the door
to Ashleigh’s apartment and entered it. The letter was about the battery charge
on which the jury was unable to reach a verdict. We are satisfied that the
conviction is supported by substantial independent evidence of guilt. The
erroneous admission of State’s Exhibit 25 was harmless.
II. Sufficiency of the Evidence
[23] Townsend also challenges the sufficiency of the evidence supporting his
conviction. Although Townsend admitted that he knowingly or intentionally
broke and entered Ashleigh’s apartment, he claims that he had her consent to
do so. Our standard of review of this issue was stated as follows by the
Supreme Court:
We recite our familiar standard for reviewing the sufficiency of
the evidence needed to support a criminal conviction. First, we
neither reweigh the evidence nor judge the credibility of
witnesses. Second, we only consider “the evidence supporting
the judgment and any reasonable inferences that can be drawn
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from such evidence.” A conviction will be affirmed if there is
substantial evidence of probative value supporting each element
of the offense such that a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt. “It is the
job of the fact-finder to determine whether the evidence in a
particular case sufficiently proves each element of an offense, and
we consider conflicting evidence most favorably to the trial
court’s ruling.”
Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (internal citations omitted).
[24] In order to establish that Townsend committed residential entry as a Class D
felony, the State was required to prove beyond a reasonable doubt that
Townsend knowingly or intentionally broke into and entered Ashleigh’s
apartment. Ind. Code § 35-43-2-1.5. “Lack of consent is not an element of the
offense the State is required to prove.” McKinney v. State, 653 N.E.2d 115, 118
(Ind. Ct. App. 1995). “Rather, it is the defendant who must claim and prove
the defense of consent.” Id. “A defendant’s belief that he has permission to
enter must be reasonable in order for the defendant to avail himself of the
defense of consent.” Id.
[25] The evidence at trial established that Ashleigh allowed Townsend to enter her
home earlier that day to spend time with their child. After Townsend left,
however, Ashleigh locked the door to the apartment. When Townsend
returned to the apartment, Ashleigh took the child with her to her bedroom and
did not respond to Townsend’s requests to let him inside the apartment.
Ashleigh texted 911 to report that Townsend was attempting to break into her
apartment. Townsend went to the window and asked Ashleigh to allow him to
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take their child with him. After Ashleigh refused Townsend’s request, he
returned to the front door, kicked it in, and entered Ashleigh’s apartment where
the two argued.
[26] Townsend argued for the first time at trial that he broke down the door of
Ashleigh’s apartment out of concern for the welfare of their child. Ashleigh had
previously given Townsend a key to the apartment, but Townsend did not have
the key with him and did not use it to gain entry to Ashleigh’s apartment.
Ashleigh testified that Townsend had previously told her that he had lost the
key.
[27] Whether Townsend’s belief that he had Ashleigh’s permission to enter the
apartment was reasonable was a matter for the jury to determine. Because the
jury convicted Townsend of residential entry, the jurors must have rejected his
defense. Consistent with our standard of review, we will not reweigh the
evidence or reassess the credibility of the witnesses. Willis, 27 N.E.3d at 1066.
Conclusion
[28] In light of the foregoing, we affirm the decision of the trial court.
[29] Affirmed.
Kirsch, J., and Bradford, J., concur.
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