Thomas Mack v. State of Indiana , 23 N.E.3d 742 ( 2014 )

FOR PUBLICATION
Dec 18 2014, 8:19 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES C. SPENCER GREGORY F. ZOELLER
Dattilo Law Office Attorney General of Indiana
Madison, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
THOMAS MACK, )
)
Appellant-Defendant, )
)
vs. ) No. 39A01-1401-CR-6
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JEFFERSON SUPERIOR COURT
The Honorable Alison T. Frazier, Judge
Cause No. 39D01-1303-FB-236
December 18, 2014
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Thomas Mack appeals his convictions for possession of a firearm by a serious
violent felon, as a Class B felony; forgery, as a Class C felony; maintaining a common
nuisance, as a Class D felony; and possession of marijuana, as a Class A misdemeanor;
following a jury trial. Mack raises numerous issues for our review, which we consolidate
and restate as the following two issues:
1. Whether the trial court abused its discretion when it admitted certain
evidence; and
2. Whether the State presented sufficient evidence to support his
convictions.
Among other things, we hold that, in light of the facts and circumstances of this case, a
lapse of at least “a few minutes” between a declarant’s perception of an event and his
statement describing that event was too long to qualify the statement as a present sense
impression under Indiana Evidence Rule 803(1). We also hold that the admission of this
hearsay violated Mack’s right to confront the declarant. Nonetheless, these errors were
harmless beyond a reasonable doubt. As such, on these and all other issues, we affirm
Mack’s convictions.
FACTS AND PROCEDURAL HISTORY
On February 18, 2013, Madison Police Department Officer Kurtis Wallace
responded to a report of a counterfeit $100 bill having been used at a Murphy’s USA gas
station. Upon arriving at the gas station, the clerk handed the counterfeit bill to Officer
Wallace and informed Officer Wallace that he had received the bill from the occupant of
a vehicle in the parking lot. Officer Wallace approached the occupant of that vehicle,
2
Darren Stewart. Stewart admitted that the bill was counterfeit and stated that it had
originated with Mack.
Later that evening, Stewart agreed to approach Mack while wearing a recording
device and transmitter. Stewart then led Officer Wallace and Officer Jonathan Simpson
to 3587 Woodside Drive, a home owned by Audriana Ashby. Stewart then entered the
residence while wearing his recording device and transmitter. Among other voices they
could hear, the officers recognized Mack’s voice inside the residence. After about ten
minutes, Stewart exited the residence. The officers then drove Stewart around the block
and returned him to the residence, and he again went inside. After another ten minutes,
Stewart again exited the residence.
According to the statements heard by the officers while Stewart was inside the
residence, Mack discussed “cutting open a light bulb,” which the officers recognized as a
means of ingesting methamphetamine. Tr. at 212. And “a few minutes” after Stewart
had returned to the officers the second time, he informed Officer Simpson that in another
conversation inside the residence Mack had discussed buying degreaser, which can be
used by a counterfeiter to “bleach” a low-denomination bill such that the counterfeiter is
left with genuine currency paper, including the watermark and security thread. Id. at 210,
213, 324-25. The counterfeiter can then use “any standard 3-in-1 printer” to print a
larger-denomination bill on the currency paper. Id. at 325. The counterfeit $100 bill
discovered at the gas station had been created from a $5 bill using this method. Stewart
also informed the officers that he had observed a glass pipe inside the residence, which
the officers recognized as a device used for smoking methamphetamine.
3
At the time of the officers’ investigation, Mack was on parole. Officer Wallace
thus contacted Erika Smith, Mack’s parole officer, and informed her of the investigation.
Pursuant to the terms of his parole, Mack was obligated to keep Officer Smith informed
of his residence. But Mack had informed Officer Smith that he was living at 623
Aulenbach Avenue. And, in recent meetings with Mack, Officer Smith learned that
Ashby was his girlfriend, and that Ashby had a young son. After receiving Officer
Wallace’s report, Officer Smith twice went to Mack’s supposed residence on Aulenbach
Avenue but did not find him there. Noel Mack, Mack’s brother who also lived at that
address, informed Officer Smith that Mack only “crashes here sometimes,” and Noel then
directed her to an address on Woodside Drive that was not Ashby’s address. Id. at 234,
501.
Officer Smith went to the address Noel had provided but did not observe Mack or
Mack’s vehicle. The next day, on March 1, Officer Smith returned to the address
provided by Noel with her supervisor, Officer Ryan Harrison, but she again did not
observe Mack or his vehicle. Upon leaving that address, however, Officer Smith did
observe Mack’s vehicle and Ashby’s vehicle at a nearby residence, 3587 Woodside
Drive.
The officers approached the front door of that residence, and Officer Smith heard a
“loud voice,” which she recognized as Mack’s, and “quick steps like running.” Id. at
241. The officers knocked on the door and announced their presence, but they did not get
an immediate response. Eventually, Mack opened the front door “maybe a foot” but
4
would not allow the officers in because “it wasn’t his house.” Id. at 243. Ashby arrived
at the front door some time thereafter and permitted the officers to enter the residence.
Once inside, Officer Smith backed up towards the front door and bumped into a
rifle, which had been propped up near the door jamb. Mack stated that the firearm was “a
toy.” Id. at 601. The officers asked if there were any other weapons in the residence, and
Ashby pulled a .22 caliber long rifle out of the entertainment center. Ashby claimed the
firearms were hers, and she placed the firearms and some ammunition in an outdoor shed.
Afterwards, Officer Smith informed Officer Wallace of the encounter.
On March 4 and March 6, Officer Wallace drove past 3587 Woodside Drive and
observed Mack’s vehicle at that address. On March 7, Officer Wallace executed an
affidavit in support of a no-knock search warrant at that address. Officer Wallace
explained that Mack was not at his parole-approved residence, that Mack had a prior
conviction for a serious violent felony,1 and that, at the Woodside Drive residence,
Officer Smith and Officer Harrison had observed firearms. Thus, Officer Wallace
requested a search warrant to search for any firearms at that residence along with any
evidence that would establish ownership over such firearms. And because the facts
recited in the affidavit suggested a serious violent felon in possession of firearms,
contrary to Indiana law, Officer Wallace requested that the search warrant be a no-knock
warrant. The trial court authorized a no-knock search warrant later that day.
During the ensuing search of the residence, officers seized several firearms and
ammunition, various drug paraphernalia used to ingest methamphetamine and marijuana,
1
Although not specified in the affidavit and not clearly specified elsewhere in the record, Mack’s
prior conviction was for battery by means of a deadly weapon, as either a Class A, B, or C felony.
5
a cutting agent used with methamphetamine, and marijuana. The officers further seized
male clothing from the adult bedroom and the front porch, along with Mack’s deodorant,
shower gel, and beard trimmer from the bathroom.
In a closet in the adult bedroom, the officers found a .22 caliber rifle. Under that
rifle, the officers discovered a trap door. Under the trap door, officers found a 3-in-1
printer and a photocopy of a $100 bill on a sheet of paper, both of which were inside a
red bag. Also in the red bag were various letters addressed to Mack and a photograph of
Mack’s adult daughter and her family. Following his arrest, Mack referred to Ashby’s
residence as “my house” in a phone call with Ashby from jail. State’s Ex. 39 at 5.
The State charged Mack with possession of a firearm by a serious violent felon, as
a Class B felony; forgery, as a Class C felony; possession of methamphetamine, as a
Class D felony; maintaining a common nuisance, as a Class D felony; and possession of
marijuana, as a Class A misdemeanor. Prior to trial, the trial court excluded Stewart as a
witness,2 but, at trial and over Mack’s objection, the court permitted the State to present
the audio recordings obtained with Stewart’s assistance on February 18 as well as Officer
Simpson’s recollection of Stewart’s statements during that investigation. The court also
permitted the State to introduce, over Mack’s objection, the evidence seized pursuant to
the search warrant. And the court permitted, again, over Mack’s objection, Officer Smith
to testify that she had met with Mack prior to February 18, but the court did not permit
her to identify herself as a parole officer or to identify Mack as a parolee.
2
Stewart had invoked his Fifth Amendment right against self-incrimination.
6
After a bifurcated trial, the jury found Mack not guilty of possession of
methamphetamine but guilty on the other counts. The court entered its judgment of
conviction accordingly and sentenced Mack to an aggregate term of twenty-four years.
This appeal ensued.
DISCUSSION AND DECISION
Issue One: Admission of Evidence
We first address Mack’s several arguments regarding the admission of evidence.
Our standard of review of a trial court’s admission of evidence is an abuse of discretion.
Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court abuses its
discretion if its decision is clearly against the logic and effect of the facts and
circumstances before the court or if the court misapplies the law. See id. Here, Mack
asserts that the trial court abused its discretion when it admitted the following evidence:
(1) all evidence seized pursuant to the search warrant; (2) Stewart’s statements during the
February 18 investigation; and (3) Officer Smith’s testimony that she had met with Mack
prior to execution of the search warrant. We address each argument in turn.
Evidence Seized Pursuant to the Search Warrant3
We first address Mack’s argument that the trial court abused its discretion when it
admitted the items seized pursuant to the search warrant. In particular, Mack asserts: (A)
the probable cause affidavit was false and misleading; (B) the ensuing search was
overbroad; and (C) the trial court erred in issuing a no-knock warrant. We do not agree
with any of these assertions.
3
Mack does not separately analyze any of these arguments under Article 1, Section 11 of the
Indiana Constitution. As such, any intended argument under that provision is waived. Ind. Appellate
Rule 46(A)(8)(a).
7
A. Whether the Probable Cause Affidavit was False and Misleading
The probable cause affidavit was not false and misleading. As we have
recognized:
If a defendant establishes by a preponderance of the evidence that “a false
statement knowingly and intentionally, or with a reckless disregard for the
truth, was included by the affiant in the warrant affidavit, . . . and, with the
affidavit’s false material set to one side, the affidavit’s remaining content is
insufficient to establish probable cause, the search warrant must be voided
and the fruits of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.”
Stephenson v. State, 796 N.E.2d 811, 815 (Ind. Ct. App. 2003) (quoting Franks v.
Delaware, 438 U.S. 154, 155-56 (1978)) (omission original to Stephenson), trans. denied.
Mack takes issue with Officer Wallace’s statement in the affidavit that Mack was
“believed to be living” at the Woodside Drive address. Appellant’s Br. at 16. According
to Mack, “[t]his statement was made despite the fact that no surveillance had been done
to determine whether Mack was living there” and even though “Mack’s registered
address for parole was 623 Aulenbach.” Id. But Mack’s brother Noel had informed
Officer Smith that Mack only “crashes here sometimes” in reference to the 623
Aulenbach Avenue address, and Noel then directed her to an address on Woodside Drive.
Tr. at 234. And officers repeatedly observed Mack’s vehicle outside Ashby’s address on
Woodside Drive prior to their application for a search warrant. As such, this argument is
without merit.
Mack also complains that the probable cause affidavit states that his parole-
approved address was on Chauncey Lane rather than Aulenbach Avenue. But nothing
8
about this apparent clerical error could have affected the magistrate’s decision regarding
whether to issue the warrant. Thus, this argument is baseless.
Next, Mack asserts:
Conveniently omitted from the application for search warrant were the facts
that the[] weapons [observed by Officers Harrison and Smith] were
voluntarily secured in an outside shed by Ashby the week before when
parole agents were there, that there was no evidence Mack had ever handled
the weapons, and that Ashby claimed ownership of the two weapons which
were in the shed at the time the application for a search warrant was made.
Appellant’s Br. at 17. But even if all of this information had been included in the
affidavit, these facts would not have negated a legitimate finding of probable cause on the
grounds that Mack actually or constructively possessed firearms as a serious violent
felon. As such, the probable cause affidavit was not false and misleading.
B. Whether the Search was Overbroad
Mack also asserts that the officers’ search was overbroad. In particular, Mack
argues that the officers seized evidence other than the firearms authorized by the search
warrant, namely, drugs, paraphernalia, and evidence related to forgery, which the officers
knew before they sought the warrant they might find. In support of this position, Mack
relies on Hewell v. State, 471 N.E.2d 1235, 1238 (Ind. Ct. App. 1984), trans. denied. In
Hewell, we held that the plain view doctrine, which permits officers to seize contraband
the officers discover while executing a search warrant for other contraband, did not
justify the seizure of evidence the officers had originally expected to find but did not
include in their application for a search warrant. Id. Specifically, Hewell relied on the
following statement of law:
9
The requirement [under the plain view doctrine] that the items be
discovered inadvertently . . . means the police may not know in advance
that certain property exists in the area to be searched. . . . When the police
conduct a search authorized by a warrant which does not mention certain
items the police expect to find during the search, reliance on plain view is
pretense.
Id. at 1238-39.
But we have since recognized that this premise underlying Hewell is no longer
valid under the Fourth Amendment.4 As we have explained:
The standard for meeting the “plain view” test has traditionally required not
only that the officer is in a place where he is entitled to be, but also that the
discovery is inadvertent. Coolidge v. New Hampshire (1971) 403 U.S. 443,
91 S. Ct. 2022, 29 L. Ed. 2d 564. However, the inadvertence facet of the
test appears to have been abrogated, at least insofar as United States
Constitution Fourth Amendment considerations are involved. Horton v.
California (1990) 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112; 1 Hall,
Search and Seizure § 9.5 (2d ed. 1991).
Wood v. State, 592 N.E.2d 740, 742 (Ind. Ct. App. 1992). Thus, so long as the
investigation for the illegal possession of firearms “was legitimate and not merely
subterfuge,” that officers may have suspected additional contraband on the premises
“does not destroy application of the ‘plain view’ doctrine.” Id. Accordingly, Mack’s
reliance on Hewell is not persuasive.
To seize evidence in plain view and not identified in a warrant, the initial intrusion
must have been authorized under the Fourth Amendment, the items must have been in
plain view, and the incriminating nature of the evidence must be immediately apparent.
Jones v. State, 783 N.E.2d 1132, 1137 (Ind. 2003). Mack does not dispute that the
4
Even if Hewell were still good law, it is readily distinguishable. Unlike here, the incriminating
nature of the additionally seized evidence in Hewell was not readily apparent. See Maynard v. State, 508
N.E.2d 1346, 1353-54 (Ind. Ct. App. 1987) (distinguishing Hewell on the grounds that the evidence
seized “which was not listed in [the] warrant . . . was not readily apparent to be contraband . . . .”), trans.
denied.
10
seizure of the nonfirearm evidence satisfies each of those conditions. Moreover, because
the officers discovered the nonfirearm evidence in places where they may have
reasonably expected to find firearms, the officers did not exceed the scope of the search
warrant. See, e.g., Green v. State, 676 N.E.2d 755, 758 (Ind. Ct. App. 1996) (quoting
United States v. Ross, 456 U.S. 798, 820-21 (1982)).
C. The No-Knock Warrant
Mack’s last argument under the search warrant is that the trial court erred when it
issued a no-knock search warrant. Mack’s argument here is premised on his assessment
that Officer Wallace subjectively favored no-knock warrants.5 But Officer Wallace’s
subjective beliefs are irrelevant. Rather, to determine whether a no-knock entry is
justified we assess whether the entry is objectively reasonable. Richards v. Wisconsin,
520 U.S. 385, 394 (1997). It was so here because the facts before the officers
demonstrated a possible serious violent felon in possession of firearms. Moreover, Mack
had not reported to his parole officer that he was staying at Ashby’s residence, and, in a
visit to Ashby’s residence shortly before the application for the warrant, Officer Smith
observed that Mack was acting in a nervous manner in response to her presence. In light
of these circumstances, we cannot say that the issuance of a no-knock warrant was
unreasonable. See, e.g., id. (“In order to justify a ‘no-knock’ entry, the police must have
a reasonable suspicion that knocking and announcing their presence, under the particular
circumstances, would be dangerous . . . .”). And, in any event, even if the no-knock entry
were unreasonable the United States Supreme Court has held that no-knock violations do
5
Insofar as Mack reiterates his concerns regarding facts known to the officers but not stated in
the probable cause affidavit, for the reasons stated above those concerns would not have precluded the
issuance of a no-knock warrant.
11
not invoke relief under the federal exclusionary rule. Hudson v. Michigan, 547 U.S. 586,
594, 599 (2006). The trial court did not abuse its discretion when it admitted the
evidence seized during the execution of the search warrant.
Stewart’s Statements
We next address Mack’s argument that the trial court abused its discretion when it
admitted evidence of Stewart’s statements even though Stewart was not a witness. For
clarity, we separate Mack’s several arguments on this issue into the following
components: (A) whether Stewart’s statements in the February 18 audio recordings were
hearsay and violated Mack’s Sixth Amendment right to confront Stewart;6 (B) whether
Stewart’s statements to Officer Simpson were inadmissible hearsay; (C) whether Officer
Simpson’s testimony regarding Stewart’s statements to him violated Mack’s right to
confront Stewart; and (D) whether the erroneous admission of Stewart’s statements to
Officer Simpson was harmless beyond a reasonable doubt.
Relevant to each of these questions is Indiana Evidence Rule 801(c), which
defines hearsay as an out-of-court statement offered into evidence to prove the truth of
the matter asserted. And Rule 802 provides that hearsay is generally not admissible.
Also relevant is the federal constitutional right under the Sixth Amendment to confront
and cross-examine witnesses. As the Supreme Court of the United States has held,
“[w]here testimonial statements are at issue, the only indicium of reliability sufficient to
satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.” Crawford v. Washington, 541 U.S. 36, 68-69 (2004). Out-of-court,
6
We disagree with the State’s assertion that Mack failed to make a proper objection to the trial
court and preserve for our review his arguments under the Confrontation Clause.
12
testimonial statements are admissible at trial only if the declarant is unavailable to testify
and the defendant has had a prior opportunity to cross-examine the declarant. Id. at 59.
With these principles in mind, we turn to Mack’s arguments regarding Stewart’s
statements.
A. Stewart’s Statements in the Audio Recordings.
We first address Mack’s argument that Stewart’s statements in the audio
recordings were inadmissible hearsay and violated Mack’s confrontation rights. As we
have explained:
Recently, this court held that a [confidential informant’s, or C.I.’s,]
statements recorded in the course of a controlled drug buy were not offered
by the State to prove the truth of the matter asserted and, therefore, were
“not hearsay.” Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010),
[trans. denied.] Specifically, this court, relying on a pre-Crawford decision
of the Indiana Supreme Court, held that the C.I.’s statements were not
hearsay because they “were largely designed to prompt [the defendant] to
speak and[,] as such, it was the statements made by [the defendant] that
really constituted the evidentiary weight of the conversation.” Id.
(discussing Williams v. State, 669 N.E.2d 956, 957-58 (Ind. 1996)). . . .
We agree with the lead opinion in Lehman that the C.I.’s recorded
statements during the two controlled drug buys were not offered by the
State to prove the truth of the C.I.’s statements. In the case relied on by this
court, our Supreme Court discussed a similar factual scenario as follows:
[The defendant] contends the trial court erred by admitting
two tapes of conversations [he] had with a police informant
who died before [the defendant’s] trial. These conversations
were recorded at [the defendant’s] residence through the use
of a body microphone. In each, [the defendant] told the
informant about his involvement in the crime, mentioning
among other things that [his co-conspirator] still owed him
some drugs as payment for his help.
[The defendant] claims that the statements and
questions made by the informant were hearsay and that the
admission of those statements violated his Sixth Amendment
13
right to confrontation. It is apparent, however, that the
informant’s contributions to the conversation were not
admitted for the truth of the matters asserted. Indeed, the
informant’s statements were largely designed to prompt [the
defendant] himself to speak. It was the statements made by
[the defendant] that really constituted the evidentiary weight
of the conversation. We are satisfied, as the State argues, that
the informant’s statements were not hearsay. That being so,
[the defendant’s] claims under the Fifth Amendment and
under Art. I, sec. 13 of the Indiana Constitution also fail.
Williams, 669 N.E.2d at 957-58 (emphasis added; footnotes omitted).
While our Supreme Court’s decision in Williams and the lead
opinion in Lehman limited their discussions to Indiana evidentiary law,
nonetheless the conclusions that the statements are nonhearsay have a
constitutional dimension. Again, the Confrontation Clause does not apply
to nonhearsay statements, even if those statements are testimonial. See
Crawford, 541 U.S. at 59 n. 9, 124 S. Ct. 1354. Here, as in Williams and
Lehman, the C.I.’s recorded statements during the controlled drug buys
were nonhearsay because those statements merely provided context for
Williams’s own recorded statements . . . . “Statements providing context
for other admissible statements are not hearsay because they are not offered
for their truth.” United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.
2006), cert. denied, 549 U.S. 1149, 127 S. Ct. 1019, 166 L. Ed. 2d 768
(2007).
Williams v. State, 930 N.E.2d 602, 608-09 (Ind. Ct. App. 2010) (footnote omitted; some
alterations original), trans. denied. There is no dispute that Stewart was unavailable to
testify at Mack’s trial and that Mack did not have a prior opportunity to cross examine
Stewart. But, here, for the same reasons explained in Williams, Stewart’s statements in
the February 18 audio recordings are not hearsay. As such, Mack’s Sixth Amendment
right to confront Stewart was not implicated by these statements.
14
B. Whether Stewart’s Statements to
Officer Simpson were Inadmissible Hearsay
Mack also argues that the trial court abused its discretion when it permitted
Officer Simpson to testify as to what Stewart had told him when Stewart returned to the
investigating officers’ vehicle after exiting Ashby’s residence. We need only consider
one aspect of Officer Simpson’s testimony on appeal: whether the trial court abused its
discretion when it permitted Officer Simpson to testify that Stewart had told him that
Mack had discussed buying degreaser.7 We agree with Mack that the admission of this
evidence was erroneous.
The parties do not dispute that Officer Simpson’s testimony contained hearsay;8
rather, the parties dispute only whether Stewart’s statements to Officer Simpson fall
within an exception to the general rule that hearsay is not admissible, namely, the
exception for present sense impressions. The exception for present sense impressions
permits “[a] statement describing or explaining an event, condition or transaction, made
while or immediately after the declarant perceived it.” Ind. Evidence Rule 803(1). On
appeal, Mack argues that Stewart’s statements to Officer Simpson were not made
“immediately after” his perception of Mack’s statements and, therefore, Stewart’s
7
Stewart also told Officer Simpson that Stewart had observed a glass pipe inside the residence
and that Mack had discussed cutting open a light bulb with a razor blade. But the testimony regarding the
pipe is cumulative to, and insignificant in light of, the evidence seized under the warrant. Likewise,
Stewart’s statements regarding the light bulb are cumulative to, and insignificant in light of, Mack’s own
clearly made statements on the audio recording. As our supreme court has recognized, the improper
admission of evidence that is both cumulative and insignificant is harmless error. See Koenig v. State,
933 N.E.2d 1271, 1273 (Ind. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
However, Mack’s statements regarding the degreaser are not clearly audible in the February 18
recordings, and no degreaser was actually seized during the later search of Ashby’s residence.
Accordingly, we address the admissibility of those statements.
8
To be sure, the original out-of-court statements were made by Mack, but as a party opponent
his statements are not hearsay. Ind. Evidence Rule 801(d)(2).
15
statements do not demonstrate a present sense impression. Reply Br. at 15. According to
Officer Simpson, Stewart’s statements were made “a few minutes” after Stewart exited
the residence. Tr. at 210. Further, Stewart was inside the residence for about ten
minutes, and it is not clear at what point Stewart heard Mack’s statements while inside
the residence.
We must agree with Mack that Stewart’s statements do not fall within the hearsay
exception for present sense impressions. We first note that neither side cites factually
analogous Indiana authority or foreign authority in support of their respective positions
on this issue.9 Nonetheless, the Rule 803(1) requirement that a statement be made
“immediately” after the declarant’s perception “is based on the assumption that the lack
of time for deliberation provides reliability.” 13 Robert Lowell Miller, Jr., Ind. Prac. Ser.
§ 803.101 at 802 (3d ed. 2007). Here, “a few minutes,” and certainly “a few minutes”
plus up to ten more minutes, Tr. at 210, is ample time for a declarant to deliberate and
possibly fabricate a statement, especially where the declarant knows officers are looking
for evidence of a particular type of crime and the declarant himself has been implicated in
the commission of that crime. Thus, we hold that the trial court abused its discretion
when it permitted Officer Simpson to testify to Stewart’s statements regarding whether
Mack had discussed buying degreaser.
9
The only case cited by the State can be readily distinguished. In Amos v. State, 896 N.E.2d
1163, 1169 (Ind. Ct. App. 2008), trans. denied, we stated that the declarant’s statements regarding what
the defendant had told her “were made immediately after” the declarant had perceived the defendant’s
statements. It is clear that, in Amos, there was no delay between the defendant’s statements and the
declarant’s recitation of those statements, let alone a delay of a few minutes or more.
16
C. Whether Officer Simpson’s Testimony
Violated Mack’s Right to Confront Stewart
Mack next asserts that Officer Simpson’s testimony regarding Stewart’s
statements violated Mack’s right to confront Stewart. We must agree. The Confrontation
Clause applies to testimonial hearsay. Williams, 930 N.E.2d at 607-08. Again, there is
no dispute that Stewart’s statements were hearsay.10
We thus turn to whether Stewart’s statements were testimonial. “‘Testimonial’
statements are, among other things . . . ‘statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” Id. at 607 (quoting Jackson v. State, 891 N.E.2d 657,
659 (Ind. Ct. App. 2008), trans. denied). To determine whether a statement made to
police is testimonial, we look to the primary purpose of the conversation between the
police and the declarant. Lane v. State, 997 N.E.2d 83, 92 (Ind. Ct. App. 2013), trans.
denied. If the circumstances objectively indicate that the primary purpose of the
conversation was to gather evidence of past events potentially relevant to a later criminal
prosecution, the statements are testimonial. Id.
Stewart’s statements to Officer Simpson were testimonial. His statements were
made to a police officer in the course of an official investigation in which Stewart was a
participant. An objective witness would reasonably have believed that the purpose of the
statements was to gather evidence of past events potentially relevant to a later criminal
10
It is irrelevant to our Confrontation Clause analysis whether the hearsay was admissible or
inadmissible under Indiana’s Evidence Rules. Again, “[w]here testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.” Crawford, 541 U.S. at 68-69.
17
prosecution of Mack. As such, the statements were testimonial, and the admission of this
evidence violated Mack’s federal confrontation rights.
D. Whether the Error Was Harmless Beyond a Reasonable Doubt
Because Mack has demonstrated an error involving a constitutional right, the
burden shifts to the State to demonstrate that the error is harmless beyond a reasonable
doubt.11 See Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). Our analysis for such
questions requires this court to assess “whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.” Chapman v.
California, 386 U.S. 18, 23 (1967) (quotations omitted); see Koenig v. State, 933 N.E.2d
1271, 1273-74 (Ind. 2010). That is, we consider whether the jury would have found
Mack guilty without the improper evidence. See Moore v. State, 669 N.E.2d 733, 736
(Ind. 1996). To show that Mack committed forgery, as a Class C felony, the State was
required to show that Mack, with intent to defraud, made, uttered, or possessed a written
instrument “in such a manner that it was purported to have been made: (1) by another
person; (2) at another time; (3) with different provisions; or (4) by authority of one who
did not give authority.” Ind. Code § 35-43-5-2(b) (2012).
Omitting the erroneously admitted evidence, the State met its burden at trial when
it demonstrated that a false $100 bill had been submitted to the gas station clerk; the gas
station clerk immediately identified Stewart as the person who had submitted the
11
The State incorrectly applies the harmless error standard for nonconstitutional errors in its
brief. See, e.g., Inman v. State, 4 N.E.3d 190, 197 (Ind. 2014) (“Trial court error is harmless if the
probable impact of the error on the jury, in light of all the evidence, is sufficiently minor such that it does
not affect the substantial rights of the parties.”) (quotations omitted). But the State’s argument would not
have been significantly different had it identified the correct standard. Indeed, Mack does not suggest or
otherwise argue in his reply brief that the State’s mistake is somehow fatal to its argument; rather, Mack
addresses only the merits of whether the error is harmless or reversible. We do so as well.
18
counterfeit bill; Officer Wallace approached Stewart in the gas station parking lot, and
that same day Stewart agreed to take the officers to Ashby’s residence while wearing a
wire;12 Mack was staying at Ashby’s residence; the false $100 bill had originally been a
$5 bill, but it had been bleached and then printed over using a 3-in-1 printer; and Mack
was in possession of a 3-in-1 printer, which had been hidden and was only discovered
after officers looked inside a closet, removed a firearm, found a trap door under the
firearm, found a bag under the trap door, and found the printer inside that bag. Also
inside the bag was a photocopy of a $100 bill on a normal sheet of paper, along with
various letters addressed to Mack and photographs of Mack’s family.
Considering only the properly admitted evidence, Officer Simpson’s single,
isolated comment that Stewart had said he heard Mack talk about buying degreaser did
not contribute to Mack’s forgery conviction within any reasonable possibility. See, e.g.,
Moore, 669 N.E.2d at 740. As such, the erroneous admission of Stewart’s statements
was harmless beyond a reasonable doubt. And because the erroneous admission of this
evidence is harmless under the heightened standard for constitutional errors, the error
under Indiana Evidence Rule 803(1) is likewise harmless. We affirm Mack’s conviction
for forgery.
Officer Smith’s Testimony
Mack next contends that the trial court abused its discretion when it permitted
Officer Smith to testify that she had met with Mack prior to the execution of the search
12
On appeal, Mack states that the information from the gas station clerk and Stewart at the gas
station, which ultimately identified Mack as the producer of the counterfeit bill, was “third-hand hearsay.”
Appellant’s Br. at 11. But Mack did not object to the admission of this evidence in the trial court, and, in
any event, he does not support his comment on appeal with cogent argument. This issue is waived.
19
warrant. According to Mack: “[t]here was no need for the jury to hear about the events
regarding Smith’s monitoring of Mack whether the word ‘parole’ was heard by the jury
or not.” Appellant’s Br. at 23. As such, Mack continues, “the prejudicial effect of [the]
relevant evidence substantially outweighs its probative value.” Id.
We cannot say that the trial court abused its discretion when it permitted Officer
Smith to state that she had met with Mack prior to the execution of the search warrant
while it simultaneously prohibited the State from explaining Officer Smith’s relationship
to Mack. Although Indiana Evidence Rule 403 permits a trial court to exclude relevant
evidence “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice,” we give the trial court “wide latitude in weighing the probative value of the
evidence against the possible prejudice of its admission.” Pope v. State, 740 N.E.2d
1247, 1241 (Ind. Ct. App. 2000).
Here, contrary to Mack’s argument on appeal, Officer Smith’s testimony had a
high degree of probative value. Officer Smith testified that she had met with Mack and
Ashby on January 11 and with Mack and Ashby’s son on February 8. Officer Smith then
testified that, after speaking with Officer Wallace, she attempted to meet with Mack
again at his residence on Aulenbach Avenue. However, because Mack’s brother
informed Officer Smith that Mack did not live there, Officer Smith attempted to locate
Mack on Woodside Drive. She and Officer Harrison eventually did so when they found
Mack at Ashby’s residence, and in doing so the officers observed firearms in the
residence.
20
This testimony was highly probative to connect Mack to the residence and to the
firearms, which directly related to each of the State’s charges. And, again, the trial court
expressly prohibited the State from allowing Officer Smith to explain her relationship to
Mack or that she was monitoring him. We cannot say that the trial court abused its
discretion when it concluded that the probative value of Officer Smith’s testimony that
she had met with Mack prior to the execution of the search warrant was not substantially
outweighed by the danger of unfair prejudice to Mack.13
Issue Two: Sufficiency of the Evidence
Mack also asserts that the State failed to present sufficient evidence to support
each of his four convictions. When reviewing a claim of sufficiency of the evidence, we
do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783
N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the
judgment and the reasonable inferences that may be drawn from that evidence to
determine whether a reasonable trier of fact could conclude the defendant was guilty
beyond a reasonable doubt. Id. If there is substantial evidence of probative value to
support the conviction, it will not be set aside. Id. We address each of Mack’s
convictions in turn.
13
And neither can Mack demonstrate error from a subsequent juror question, in which a juror
asked Officer Smith what agency she was with and how she knew Mack. The trial court did not allow the
question and instructed the jury that it may not speculate on why the question was not asked or what the
answer may have been. “When the jury is properly instructed, we will presume they [sic] followed such
instructions.” Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987).
21
Forgery
For the same reasons the erroneous admission of Stewart’s testimonial hearsay
was harmless beyond a reasonable doubt, the State presented sufficient evidence to
support Mack’s conviction for forgery, as a Class C felony.
Mack’s Other Convictions
Mack also asserts that the State failed to present sufficient evidence to support his
convictions for possession of a firearm by a serious violent felon, as a Class B felony;
maintaining a common nuisance, as a Class D felony; and possession of marijuana, as a
Class A misdemeanor. Mack’s argument against each of these convictions is the same:
he asserts that the State failed to demonstrate that he had a sufficient possessory interest
in Ashby’s residence. To prove the nuisance charge, the State had to show, among other
undisputed elements, that Mack knowingly or intentionally “maintain[ed]” 3587
Woodside Drive, that is, that he could exert control over the premises. I.C. § 35-48-4-
13(b)(1); see Jones v. State, 807 N.E.2d 58, 66-67 (Ind. Ct. App. 2004), trans. denied.
And to prove the charges for possession of a firearm and possession of marijuana, the
State had to show, again, among other things, that Mack knowingly or intentionally
possessed those items. I.C. §§ 35-47-4-5, 35-48-4-11(1).
Maintaining a structure as a common nuisance “does not require [the defendant’s]
actual ownership of the premises.” Allen v. State, 798 N.E.2d 490, 501 (Ind. Ct. App.
2003). Rather, a structure “‘used as a residence is controlled by the person who lives in
it, and that person may be found in control of any drugs discovered therein, whether he is
the owner, tenant, or merely an invitee.’” Id. (quoting Davenport v. State, 464 N.E.2d
22
1302, 1307 (Ind. 1984)). As discussed above regarding the admissibility of Officer
Smith’s testimony, the State presented ample evidence to demonstrate that Mack was
living at 3587 Woodside Drive. Further, in the execution of the search warrant, the State
seized numerous articles of clothing, bathroom supplies, and letters and pictures
belonging to Mack from that residence. Again, a structure “used as a residence is
controlled by the person who lives in it.” Id. (quotations omitted). Mack’s argument on
appeal that the State failed to present sufficient evidence to show that Mack could
exercise control over the premises is merely a request for this court to reweigh the
evidence, which we will not do. Thus, we affirm Mack’s conviction for maintaining a
common nuisance, as a Class D felony.
We likewise affirm Mack’s convictions for possession of a firearm by a serious
violent felon and possession of marijuana. Possession of contraband need not be actual
but, rather, can be constructive. See, e.g., Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct.
App. 2003). As we have explained:
Constructive possession is established by showing that the defendant has
the intent and capability to maintain dominion and control over the
contraband. . . . [W]hen possession of the premises is non-exclusive, the
inference [of control] is not permitted absent some additional circumstances
indicating knowledge of the presence of the contraband and the ability to
control it. Among the recognized “additional circumstances” are: (1)
incriminating statements by the defendant; (2) attempted flight or furtive
gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to
the contraband; (5) contraband is in plain view; and (6) location of the
contraband is in close proximity to items owned by the defendant.
Id. at 660-61 (citations omitted). And, again, a person in control of a residence “may be
found in control of any drugs” or other contraband “discovered therein.” Allen, 798
N.E.2d at 501.
23
The State met its burden to show that Mack constructively possessed the firearms
and marijuana. Officer Smith testified that one of the firearms was in plain view by the
main entry into the residence when she visited Mack prior to the application for the
warrant. And, in executing the warrant, officers found several other firearms, along with
marijuana, in the bedroom where they found numerous items belonging to Mack,
including his clothing and the bag that contained the 3-in-1 printer and numerous letters
and photographs belonging to Mack. Again, Mack’s arguments to the contrary on appeal
are merely requests for this court to reweigh the evidence, which we will not do. We
affirm Mack’s convictions for possession of a firearm by a serious violent felon, as a
Class B felony, and possession of marijuana, as a Class A misdemeanor.
Conclusion
In sum, we affirm Mack’s convictions.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
24