Perry Odum v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Sep 17 2012, 8:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER
Frischkorn Law LLC Attorney General of Indiana
Fortville, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PERRY ODUM, )
)
Appellant-Defendant, )
)
vs. ) No. 30A01-1203-CR-102
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry K. Snow, Judge
Cause No. 30D01-1103-FC-416
September 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Perry Odum appeals his convictions of burglary, a Class C felony, Ind. Code § 35-
43-2-1 (1999), and theft, a Class D felony, Ind. Code § 35-43-4-2 (2009). We affirm.
William Johnson met Odum when they worked together at a painting company in
Indianapolis. After they were both laid off, Johnson began working as an independent
contractor and hired Odum. Johnson fired Odum in late August 2009 after several
arguments.
During the time period relevant to this case, Johnson kept personal property in his
parents’ garage in Hancock County. A portion of the building was furnished as an
apartment, and Johnson had previously lived there. Odum had visited Johnson at the
garage on several occasions and knew of its contents.
On September 1, 2009, Johnson went to the garage and saw that a door had been
forced open. His bow and several of his guns had been removed. Johnson called the
police and reported the burglary. He later found a cigarette butt in the garage. Johnson
contacted the police, who collected the cigarette butt for DNA analysis.
Subsequent testing revealed that Keith Garrison’s DNA matched the cigarette butt.
The police found Garrison in prison and interviewed him twice. Garrison initially denied
involvement in the burglary, but he subsequently implicated himself and Odum.
The State charged Odum and Garrison with burglary and theft in separate cases.
Garrison executed a plea agreement with the State. In the agreement, Garrison agreed to
plead guilty to burglary and to testify against Odum. In exchange, the State dismissed the
theft charge and refrained from filing a habitual offender enhancement against Garrison.
Garrison testified at Odum’s trial. In addition, an officer described, over Odum’s
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objection, what Garrison had said during his second police interview. The jury found
Odum guilty as charged, and the trial court sentenced him accordingly. This appeal
followed.
Odum raises two issues, which we restate as:
I. Whether an alleged variance between the charging information and the
evidence presented at trial as to who owned the garage amounts to
fundamental error.
II. Whether the trial court abused its discretion in admitting a police witness’s
description of what Garrison told him.
I. VARIANCE AND FUNDAMENTAL ERROR
Odum argues that there is a fatal variance between the charging information and
the evidence produced at trial. A variance is an essential difference between the
allegations of the charging document and the proof at trial. Daniels v. State, 957 N.E.2d
1025, 1030 (Ind. Ct. App. 2011). Not all variances are fatal to a conviction. Id. A
variance between the charging information and the proof presented at trial amounts to
reversible error when the defendant is misled by the variance in the preparation and
maintenance of his or her defense, and was harmed or prejudiced thereby, or when the
defendant is unprotected against double jeopardy in a future criminal proceeding
covering the same event. Jones v. State, 938 N.E.2d 1248, 1252 (Ind. Ct. App. 2010).
Odum did not advance his variance argument at trial. He attempts to avoid waiver
by alleging fundamental error. The fundamental error exception to the waiver rule is
extremely narrow and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
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defendant fundamental due process. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).
This exception is available only in egregious circumstances. Id. We need not unduly
belabor the matter of fundamental error because we conclude that there was not a fatal
material variance at all.
In the case at hand, the charge of burglary alleged that the premises was “a garage
belonging to William Johnson.” Appellant’s App. p. 79 (emphasis supplied). Odum
maintains that the allegation is an allegation of “ownership” and that in fact and as per the
evidence adduced at trial, the premises was owned by Johnson’s parents.
“[B]elonging to,” as alleged, is not the same as the “ownership” asserted by Odum
to be required in this case. As stated in Wallace v. State, 896 N.E.2d 1249, 1252 (Ind. Ct.
App. 2008), trans. denied: “[B]urglary is a crime against [a] possessory interest or
rightful possession of the premises.” Proof of ownership is not essential. Bradley v.
State, 244 Ind. 630, 195 N.E.2d 347, 349 (1964). The allegation of “belonging to” is
consistent with having a possessory interest as opposed to legal ownership of the
premises. That Johnson had the permission to use and occupy the building owned by his
parents and that he did so is sufficient to confer the requisite possessory interest.
Odum was not misled in the preparation of his defense. See Dewitt v. State, 755
N.E.2d 167, 172 (Ind. 2001). Odum was aware that Johnson had a possessory interest in
the building in that Johnson’s personal property which was the subject of the theft was
being stored there, Johnson had a key to the building, and Johnson had permissive access
to it.
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Furthermore, we hold that Odum was not realistically in danger of a double
jeopardy violation on the burglary conviction here involved. It is inconceivable that the
State would at a future time charge and attempt to convict Odum of burglarizing the same
building. The address of the premises was established by the evidence to be at 2833
West U.S. 40. Photographs of the garage, including an aerial view, were in evidence.
The alleged dates of the incident, “on or about August 29, 2009 and September 1, 2009,”
Appellant’s App. p. 79, while not precise, were sufficiently narrow to avoid double
jeopardy implications and the imprecision is explained by the fact that Odum planned the
burglary around Johnson’s weekend away from the garage. Accordingly, we reject
Odum’s claim to a future double jeopardy violation with regard to the burglary of which
he was convicted.
For the above stated reasons, we hold that Odum has not successfully advanced his
assertion of a fatal material variance.
II. ADMISSION OF OFFICER’S TESTIMONY
Odum asserts that the trial court erroneously allowed a police officer to provide
hearsay testimony as to what Garrison told the officer during an interview. A trial court
has broad discretion in ruling on the admissibility of evidence and we will disturb its
rulings only where it is shown that the court abused that discretion. Turner v. State, 953
N.E.2d 1039, 1045 (Ind. 2011). An abuse of discretion occurs when the trial court’s
decision is clearly against the logic and effect of the facts and circumstances before it. Id.
Hearsay is not admissible except as provided by the Indiana Rules of Evidence or
by law. Ind. Evidence Rule 802. Hearsay is a statement, other than one made by the
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declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the
matter asserted. Ind. Evidence Rule 801(c). A statement is not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is . . . consistent
with the declarant’s testimony, offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or
motive, and made before the motive to fabricate arose.
Evid. R. 801(d)(1).
In Bullock v. State, 903 N.E.2d 156, 159 (Ind. Ct. App. 2009), a detective
questioned Hornberger regarding his involvement in Bullock’s theft of a television.
Hornberger gave a recorded statement in which he said that he drove Bullock to a store
and was aware that Bullock planned to steal a television there. He also told the detective
that he was aware that a store employee had written down his van’s license plate number
after the theft and that the police would be looking for him.
At trial, the State played Hornberger’s recorded statement over Bullock’s
objection. Hornberger also testified and implicated Bullock in the theft. On appeal,
Bullock argued that the trial court abused its discretion by admitting Hornberger’s
recorded statement. The State argued that the statement was admissible as a prior
consistent statement under Indiana Evidence Rule 801(d)(1). A panel of this Court noted
that the key dispute was whether Hornberger already had a motive to fabricate when he
gave the recorded statement to the detective. When the declarant “is the defendant or is
equally culpable to the defendant,” the Court noted, the motive to fabricate likely arises
immediately upon the commission of the crime. Id. at 161. Hornberger participated in
the theft and knew the police would be looking for him. Consequently, the Court
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concluded that he had a motive to shift the blame to Bullock before he spoke with the
police, the recorded statement did not meet the requirements of a prior consistent
statement under Rule 801(d)(1), and the trial court abused its discretion in admitting the
recording. Id. at 162.
In this case, Detective Sergeant Edward Munden interviewed Garrison twice about
the burglary. During the first interview, the police told Garrison that his DNA had
matched a cigarette butt that had been found inside the garage, thereby implicating him.
The following discussion occurred at trial when Munden testified about the second
interview:
[STATE]: Okay. What do you recall the first thing [Garrison said] of
any consequence?
[ODUM]: I’m gonna object. First, the characterization of consequence
and second, its [sic] hearsay.
[COURT]: Response.
[STATE]: Well the response is he’s going to testify and secondly,
defense counsel has already illicited [sic] from another
witness about his comments and this witness will testify as to
the prior recorded statement that the witness himself will talk
about it.
[COURT]: Okay. This is an order of proof objection. I’m gonna sustain
the objection to the form of the question. If you want to
restate your question maybe the officer can answer that but at
this point in time Mr. Garrison is not on the stand, has not
been on the stand and what is “consequence” may be a
different-different minds may see it. So move on with
another question.
[STATE]: What, if anything, did Keith Garrison tell you about his
involvement?
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[ODUM]: Objection. Its [sic] still an out-of-court statement and so
that’s plain old hearsay.
[COURT]: Not if he testifies. Overruled. Now if he doesn’t testify, then
we’ll have another issue.
[MUNDEN]: Could you repeat the question?
[STATE]: What, if anything, did [Garrison] tell you about his
involvement?
***
[MUNDEN]: The first substantial statement he made that showed me that
he was in fact involved he said . . . you guys pretty much got
it right. And that was . . . his response to me summarizing
what happened or my opinion of what happened.
[STATE]: And did you find out from him if he had someone that he
worked with? Tell me just simply yes or no. Someone that
he did the crime with.
[MUNDEN]: Yes.
[STATE]: And did he provide you details of the role that he played?
[MUNDEN]: Yes.
[STATE]: Did he provide you details then of the role that the other
individual played?
[MUNDEN]: Yes.
Tr. pp. 96-98.
In this case, as in Bullock, Garrison participated in the crime and was charged with
the same offenses as Odum. Furthermore, he had been told by the police that his DNA
was found at the crime scene before he made the challenged statement. Therefore,
Garrison had a motive to fabricate before he spoke with Detective Munden as set forth
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above, and we cannot conclude that his statement to Detective Munden meets the
definition of a prior consistent statement. As a result, the trial court abused its discretion
in admitting the statement.
Although the trial court abused its discretion, our analysis is not at an end. When
the trial court has erred in the admission of evidence, we will not reverse if that error was
harmless. Turner, 953 N.E.2d at 1058. The improper admission is harmless error if the
conviction is supported by substantial independent evidence of guilt satisfying the
reviewing court that there is no substantial likelihood the challenged evidence contributed
to the conviction. Id. at 1059. In viewing the effect of the evidentiary ruling on a
defendant’s substantial rights, we look to the probable impact upon the fact-finder. Id.
Here, Munden’s description of Garrison’s statements during the interview was
merely cumulative of Garrison’s trial testimony. In fact, Garrison’s testimony was far
more detailed than Munden’s summary because Garrison described on the witness stand
how he and Odum committed the burglary. In addition, the jury was made aware that
Garrison had not been to the garage prior to the burglary, but Odum had been there
before and knew that Johnson kept guns there. Furthermore, Odum had told Garrison
that he was angry about being fired and wanted Johnson’s guns. Based upon this
substantial independent evidence, we conclude that there is no substantial likelihood that
the erroneously admitted testimony contributed to the jury’s verdict. See Bullock, 903
N.E.2d at 162 (determining that the erroneous admission of the recorded statement was
harmless error because the statement was cumulative of other evidence).
For the reasons stated above, we affirm the judgment of the trial court.
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Affirmed.
CRONE, J., and PYLE, J., concur.
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