Dominique Morrison v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Feb 06 2019, 5:28 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominique Morrison, February 6, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1535
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Peggy R. Hart,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G16-1801-CM-2540
Brown, Judge.
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[1] Dominique Morrison appeals his conviction for resisting law enforcement as a
class A misdemeanor. Morrison raises one issue which we revise and restate as
whether the trial court erred in admitting certain testimony. We affirm.
Facts and Procedural History
[2] At approximately 9:00 p.m. on January 19, 2018, Indianapolis Metropolitan
Police Officer Monica Hodge was with a recruit officer stopped in or near a
drug store parking lot when a vehicle pulled up behind them and began to flash
its lights and honk. Julia Deubner exited the vehicle and went to Officer
Hodge’s door. Deubner was crying and yelling and told Officer Hodge that she
was at a gas station across the street with her aunt when Morrison, her ex-
boyfriend, showed up, pulled her out of the vehicle, and threw a rock at her
aunt’s car. Deubner provided Officer Hodge with Morrison’s name and a
physical description of him. Officer Christopher Houeshelp and Officer Aaron
Laird arrived at Officer Hodge’s location, Officer Hodge provided them with
Morrison’s description and location, and they drove away to look for him.
[3] About a minute later, Officer Houeshelp observed Morrison in an alley behind
the gas station and then saw him as he was crossing a street. Officer Houeshelp
and Officer Laird, who were dressed in full uniform and in a marked patrol
vehicle, parked about ten yards from Morrison and opened their doors to exit
the patrol vehicle. Morrison turned around, looked at them, hiked his pants up,
and took off running. Officer Houeshelp and Officer Laird “yelled several
times stop police.” Transcript Volume II at 16. Morrison did not stop, and the
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officers chased him for a couple of minutes but were unable to catch him. At
about 2:30 a.m., Officer James Beliles conducted a traffic stop, and Morrison
was one of the occupants in the vehicle and verbally identified himself. Officer
Beliles, who had previously received a report that Morrison had run from
police, had Morrison exit the vehicle and placed him in cuffs. Before Officer
Beliles could question him, Morrison stated: “I already know what this is about.
It’s about that lying b---- . . . I didn’t run from no one. I was sitting at Taco Bell
and watched you guys go by.” Id. at 24. Officer Beliles went to his vehicle and
confirmed that Morrison was the person identified in the initial report, noted
Morrison exactly matched the description given, and ultimately placed him
under arrest.
[4] On January 23, 2018, the State charged Morrison with domestic battery and
resisting law enforcement as class A misdemeanors. The State filed a motion to
dismiss the domestic battery charge, and the court granted the motion. In June
2018, the court held a bench trial at which the State presented the testimony of
Officer Hodge, Officer Houeshelp, and Officer Beliles. During Officer Hodge’s
testimony, the following exchange occurred:
Q [Prosecutor] When she ran up to your vehicle what happened?
A [Officer Hodge] She was crying and yelling. I asked her what
happened. She said that she just -
[Defense Counsel]: Objection, Judge, to any statements that goes
to her action.
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[Prosecutor]: And Judge the State would not be using them to
prove the truth of the matter, simply by the statements what
she did next (inaudible)
The Court: Overruled as to why she took the action that she did.
A So she was crying and yelling. So she just left the gas station
which was diagonal from where we were at across the street,
that her ex-boyfriend had been following her and harassing
her. She was at the gas station with her aunt and he showed
up and pulled her out of the vehicle and threw a rock at her
aunt’s car.
Q Did she give you a description of the individual?
A Yes, she did.
Q Did she tell you his name?
A Yes, she did.
Q And what was his name?
A Dominique Morrison.
Q What description did she give you?
A Black male, with a black jacket and a hoodie.
Id. at 8-9. The court found Morrison guilty of resisting law enforcement as a
class A misdemeanor and sentenced him to 365 days with 291 days suspended.
Discussion
[5] Morrison asserts that the trial court abused its discretion in admitting Officer
Hodge’s testimony regarding Deubner’s statements to her. The trial court has
broad discretion to rule on the admissibility of evidence. Bradley v. State, 54
N.E.3d 996, 999 (Ind. 2016). We review its rulings for abuse of discretion and
reverse only when admission is clearly against the logic and effect of the facts
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and circumstances and the error affects a party’s substantial rights. Id. In
determining the effect of the evidentiary ruling on a defendant’s substantial
rights, we look to the probable effect on the fact finder. Turner v. State, 953
N.E.2d 1039, 1059 (Ind. 2011). We will not reverse an error in the admission
of evidence if the error was harmless. Id. at 1058. An improper admission is
harmless 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 bench
trials, we presume that the court disregarded inadmissible evidence and
rendered its decision solely on the basis of relevant and probative evidence.
Any harm from evidentiary error is lessened, if not completely annulled, when
the trial is by the court sitting without a jury.” King v. State, 985 N.E.2d 755,
757 (Ind. Ct. App. 2013) (citing Berry v. State, 725 N.E.2d 939, 943 (Ind. Ct.
App. 2000)), trans. denied.
[6] Hearsay means a statement, other than one made by the declarant while
testifying at trial, offered in evidence to prove the truth of the matter asserted.
Ind. Evidence Rule 801(c). Hearsay is inadmissible unless admitted pursuant to
a recognized exception. Ind. Evidence Rule 802. The Indiana Supreme Court
has observed that “[w]hether a statement is hearsay . . . will most often hinge
on the purpose for which it is offered” and “[o]ut-of-court statements made to
law enforcement are non-hearsay if introduced primarily to explain why the
investigation proceeded as it did.” Blount v. State, 22 N.E.3d 559, 565 (Ind.
2014) (citations omitted). In Blount, the Court stated:
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Although course-of-investigation testimony may help prosecutors
give the jury some context, it is often of little consequence to the
ultimate determination of guilt or innocence. The core issue at trial
is, of course, what the defendant did (or did not do), not why the
investigator did (or did not do) something. Thus, course-of-
investigation testimony is excluded from hearsay only for a limited
purpose: to bridge gaps in the trial testimony that would otherwise
substantially confuse or mislead the jury. The possibility the jury
may wonder why police pursued a particular path does not, without
more, make course-of-investigation testimony relevant. Indeed,
such testimony is of little value absent a direct challenge to the
legitimacy of the investigation.
*****
Our concern is the danger of prejudice where reliance on the course-
of-investigation exclusion is misplaced. . . . There is a risk the jury
will rely upon the out-of-court assertion as substantive evidence of
guilt—rather than for the limited purpose of explaining police
investigation—and the defendant will have no chance to challenge
that evidence through cross-examination.
*****
The ultimate inquiry is: Was the out-of-court statement used
primarily to show the truth of its content, constituting inadmissible
hearsay, or merely to explain subsequent police action, excluded
from hearsay? To answer this question, we turn to the three-part
test we articulated in Craig v. State:
1. Does the testimony or written evidence describe an out-of-
court statement asserting a fact susceptible of being true or
false?
If the statement contains no such assertion, it cannot be hearsay
and the objection should be overruled. If the out-of-court
statement does contain an assertion of fact, then the Court
should consider the following before ruling:
2. What is the evidentiary purpose of the proffered statement?
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. . . . If the evidentiary purpose is to prove a fact asserted, and
such purpose is not approved under Evid. R. 801(d), then the
hearsay objection should be sustained, unless the statement fits
an exception to the hearsay rule.
If the proponent of the statement urges a purpose other than to
prove a fact which is asserted, then the Court should consider
the following before ruling:
3. Is the fact to be proved under the suggested purpose for the
statement relevant to some issue in the case, and does any
danger of prejudice outweigh its probative value?
. . . . If the fact sought to be proved under the suggested non-
hearsay purpose is not relevant, or it is relevant but its danger of
unfair prejudice substantially outweighs its probative value, the
hearsay objection should be sustained.
630 N.E.2d [207,] 211 [(Ind. 1994)].
22 N.E.3d at 565-567 (some internal quotation marks and citations omitted).
[7] Morrison argues that Deubner did not testify, that “without the hearsay, there
were no gaps in trial testimony that would have substantially confused or
misled the trial judge as trier of fact,” and that he “did not directly challenge the
legitimacy of the officers’ investigation.” Appellant’s Brief at 9.
[8] The State responds that it “did not offer Officer Hodge’s testimony about what
Deubner reported to prove the truth of the matter asserted, namely that
Morrison pulled Deubner out of a vehicle and threw a rock at Deubner’s aunt’s
car,” that “the truth of her accusations were entirely immaterial to the purpose
for which this evidence was offered and admitted in Morrison’s trial for
resisting law enforcement,” and that “Deubner’s statements were relevant to
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show that police received a report of criminal conduct in the vicinity and
officers took immediate action to locate the suspect to further their
investigation, regardless of whether that accusation was factually correct.”
Appellee’s Brief at 9-10. It also argues that any error was harmless because
Morrison’s conviction is supported by independent evidence of guilt.
[9] The record reveals that the State did not offer Officer Hodge’s testimony to
prove that Morrison had been following and harassing Deubner or that he
pulled her out of a vehicle and threw a rock at her aunt’s car. Rather, the
testimony regarding Deubner’s statements to Officer Hodge was provided to
offer the reason that the officers attempted to locate Morrison and ordered him
to stop when he turned and took off running. We conclude that the challenged
statements were not used primarily to show the truth of their content but to
explain subsequent police action. Deubner’s statements to Officer Hodge were
not offered in evidence to prove the truth of the matter asserted. The risk that
the trial court relied upon the out-of-court assertion as substantive evidence of
Morrison’s guilt of resisting law enforcement is minimal under these
circumstances. The court as the trier of fact was able to consider Officer
Hodge’s testimony for the limited purpose for which it was admitted. The
probative value of the challenged evidence is not substantially outweighed by a
danger of unfair prejudice. Based upon the record, we cannot say that the trial
court abused its discretion in admitting the challenged testimony of Officer
Hodge. See Bates-Smith v. State, 108 N.E.3d 399, 405 (Ind. Ct. App. 2018)
(holding an informant’s statements to a detective were not offered for the truth
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of the matter asserted but to show the reason the officers stopped the
defendant’s vehicle).
[10] Further, the record reveals that Officer Hodge testified that Deubner identified
Morrison by name and provided a physical description of him. Officer
Houeshelp identified Morrison in court and testified that Morrison was the
person who ran from him. Officer Beliles testified that Morrison identified
himself following a traffic stop and stated “I didn’t run from no one.”
Transcript Volume II at 24. We conclude based upon our review of the
evidence as set forth in the record that any alleged error in the admission of the
challenged testimony was harmless in light of the other substantial independent
evidence of Morrison’s guilt of resisting law enforcement.
[11] For the foregoing reasons, we affirm Morrison’s conviction.
[12] Affirmed.
Bailey, J., and Bradford, J., concur.
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