Delta L. Chapman v. State of Indiana ( 2020 )

FILED
Jan 31 2020, 7:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan M. Gardner Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Delta L. Chapman, January 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1636
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1806-F3-35
Pyle, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 1 of 17
Statement of the Case
[1] Delta Chapman (“Chapman”) appeals, following a jury trial, his conviction and
sentence for Level 6 felony sexual battery.1 Chapman argues that the trial court
abused its discretion in its admission of evidence regarding his prior conviction
for false informing, which was more than ten years old. Concluding that the
trial court abused its discretion when it admitted evidence of Chapman’s prior
conviction in violation of Indiana Evidence Rule 609(b), we reverse his
conviction and remand with instructions for a new trial.
[2] We reverse and remand.
Issue2
Whether the trial court abused its discretion by allowing
Chapman to be impeached by a conviction over ten years old.
Facts
[3] On December 23, 2017, Chapman and Lamarco Toussaint (“Toussaint”) had
dinner at a local restaurant in Ft. Wayne. Afterwards, they returned to the
apartment that Toussaint shared with his aunt, Erma Anderson (“Anderson”).
Early the next morning, Toussaint left for work while Chapman continued to
sleep. Toussaint, who had been keeping their relationship a secret, “locked”
1
IND. CODE § 35-42-4-8.
2
On appeal, Chapman also argues that his sentence is inappropriate. However, because we hold that the
trial court committed reversible error, we need not address Chapman’s inappropriate sentence argument.
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 2 of 17
Chapman inside his bedroom so that Anderson would not know that he was
inside. (Tr. Vol. 2 at 207).
[4] Later in the day, sixteen-year-old J.H. (“J.H.”), the victim, arrived in Ft.
Wayne to visit Anderson, his grandmother. When J.H. arrived, the door to
Toussaint’s bedroom was still locked. J.H. called Toussaint to see if he was
inside the bedroom. Toussaint informed J.H. that he was not home and that he
had hidden Chapman inside his bedroom.
[5] Soon thereafter, Chapman left the bedroom to use the bathroom. While
Chapman was away, J.H. went inside Toussaint’s bedroom. When Chapman
returned, he asked J.H. to help fix the television. As J.H. attempted to fix the
television, he and Chapman talked about J.H. being bullied at school. At some
point during the conversation, Chapman told J.H. to close the bedroom door,
and J.H. complied. Chapman then grabbed J.H.’s hand and made him touch
Chapman’s penis. Chapman took off his clothes and started “coming on” to
J.H. (Tr. Vol. 2 at 181). As J.H. struggled and repeatedly told Chapman no,
Chapman placed J.H.’s penis in his mouth and performed oral sex on J.H.
Afterwards, Chapman gave J.H. ten dollars and told him not to tell anyone
what had happened. J.H. left the bedroom, went to the bathroom and called
his best friend from high school to tell her what had just occurred.
[6] At approximately 3:00 p.m. that same day, Toussaint returned to the apartment
from work. According to Toussaint, “[n]othing really triggered [him] to make
[him] believe anything had happened[,]” and that J.H. “seemed normal.” (Tr.
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 3 of 17
Vol. 2 at 208). Later that evening, Toussaint took Chapman home. When
Toussaint returned to the apartment, J.H., who was “[r]eally emotional,
crying[,]” informed Toussaint what Chapman had done to him earlier that day.
(Tr. Vol. 2 at 210). Toussaint then called Chapman, who denied touching J.H.
[7] On June 13, 2018, the State charged Chapman with Level 3 felony rape and
Level 6 felony sexual battery. On May 29, 2019, the case proceeded to a jury
trial. Prior to the commencement of jury selection, the State informed the trial
court that Chapman had been convicted of false informing on August 24, 2008
and had been sentenced to 180 days suspended, with one year of unsupervised
probation, which had been completed on September 1, 2009. The State argued
that Chapman’s unsupervised probation qualified as “confinement” pursuant to
Indiana Evidence Rule 609. As a result, the State contended, Chapman’s
conviction was within the ten-year period mandating admission under the
general rule of Evidence Rule 609 because he was released from probation in
September 2009. Conversely, Chapman argued that Evidence Rule 609 did not
extend the term “confinement” to include probation. The trial court found that
the term “confinement” in Evidence Rule 609 included periods of probation
and preliminarily ruled that Chapman’s prior conviction would be admissible if
Chapman chose to testify.
[8] Prior to the start of the second day of trial, the following colloquy ensued:
[Defense Counsel]: Your Honor, we discussed my client’s prior
conviction from 2008, and it was my understanding that the rule
was cut off for all conviction and confinement ten years from the
date of testimony.
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The Court: Um-hmm. (Affirmative response)
[Defense Counsel]: And the Court and the State educated me
otherwise that probation and parole was included in that. Well,
Judge, last night I did a little bit of research, I re-read the rule.
The rule doesn’t make mention to probation or parole, it just
simply states ten years have passed since the witness’s conviction
or release from confinement for it, whichever is later. Judge, I
then went to the case law and I couldn’t find an Indiana case
which broadened the rule to include probation and/or parole. I
did find, Your Honor, a case out of the Seventh Circuit Court of
Appeals . . . US v. Rogers, 542 F3d 197, it’s a 2008 decision, Your
Honor, and in that case the Court cited what defined
confinement, and I’ll just read the quote, Judge, “Confinement
for purposes of Federal Rule of Evidence permitting admission of
a witness’s prior conviction for impeachment purposes if a period
of no more than ten years has elapsed from the witness’s release
from confinement on the prior conviction does not include
periods of probation or parole.”
***
[Defense Counsel]: The date of conviction is August 25, 2008,
and the sentence, Your Honor, was 180 days suspended, one
year probation. So the 180 days suspended has Mr. Chapman
completing his suspended sentence February 21, 2009. It’s that
one year probation that we’re concerned with and that would put
him out to August 25, 2009. So, Judge, we’re literally almost
three month[s] to the day shy of ten years of that probation date,
but, Your Honor, if the Court is inclined to agree with the
Seventh Circuit, it doesn’t matter, because probation or parole
should not be considered. So, Your Honor, I would renew our
argument from yesterday that this prior conviction should not be
raised should the Defendant choose to testify today.
The Court: State?
[The State]: Thank you, Your Honor. We were made aware of
this issue this morning by [defense counsel], he did provide us
with that case. In response to that, we reached out to . . . our
office, she sent us a copy of the Indiana Evidence Courtroom
Manual, the 2018 to 2019 edition, where it clearly states the
commentary that the ten-year limit is – under subrule B, if more
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 5 of 17
than ten years have elapsed from the date of conviction,
termination of confinement, probation or parole, the conviction
is not admissible unless the Court finds probative value of such
evidence substantially outweighs the prejudicial effect. So from
that rule commentary, based on that, we think it absolutely does
fall within this, that his release from probation officially,
according to the CCS entry, which we have shown [defense
counsel] and I know he’s aware of, is September 1st 2009, which
is within ten years, so we believe that is covered by this rule.
The Court: And that was the – the commentary was where I
came up with the ten-year limit. I’ll be honest with you, my
rulebook is 2006-2007 courtroom manual, but I know that that
hasn’t changed and there’s been no case law that has changed
that, either. . . . I continue to review the Indiana Evidence
Courtroom Manual, which finds that the ten [years] elapsed since
the date of conviction or the termination of confinement,
probation, or parole; so based on the Indiana commentary, that
ruling would be upheld, but I do appreciate the opportunity to
have this additional discussion, [defense counsel].
[Defense Counsel]: Thank you, Judge.
The Court: So the conviction would be admissible if Mr.
Chapman chooses to take the stand.
(Tr. Vol. 2 at 244-47).
[9] During the two-day trial, the State presented the testimony of J.H., J.H.’s friend
from high school, Toussaint, J.H.’s mother, a physician’s assistant, and an
officer from the Ft. Wayne Police Department. Chapman testified on his own
behalf and denied that any sexual touching had occurred between himself and
J.H. During cross-examination, the State asked Chapman whether he had been
convicted in the past of an offense involving dishonesty or false statement. The
trial court overruled Chapman’s subsequent objection in which he renewed his
previous arguments against admissibility under Evidence Rule 609. Chapman
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then confirmed that he had been convicted of false informing in 2008.
Thereafter, during closing, the State argued that Chapman’s testimony was not
credible because “he ha[d] a conviction for dishonesty or false statement, we
know he’s been convicted of a lie in the past.” (Tr. Vol. 3 at 41).
[10] Ultimately, the jury found Chapman guilty of sexual battery and not guilty of
rape. At the ensuing sentencing hearing, the trial court sentenced Chapman to
two and one-half (2 ½) years in the Department of Correction. Chapman now
appeals.
Decision
[11] On appeal, Chapman argues that the trial court erred when it admitted evidence
of his prior misdemeanor false informing conviction as a form of impeachment
evidence. Specifically, Chapman contends that his time on unsupervised
probation is not the same as “confinement” as provided in Evidence Rule
609(b), thus taking the prior conviction outside ten-year time period mandating
admission.
[12] Here, Chapman was convicted of false informing on August 24, 2008 and had
been sentenced to 180 days suspended, with one year of unsupervised
probation, which had been completed on September 1, 2009. The trial court
determined that Chapman’s probationary period constituted “confinement” for
purposes of Evidence Rule 609(b) and that the prior conviction fell within the
ten-year time period set forth in the rule.
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[13] Indiana Evidence Rule 609 provides, in relevant part:
(a) General Rule. For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime or
an attempt of a crime must be admitted but only if the crime
committed or attempted is (1) murder, treason, rape, robbery
kidnapping, burglary, arson, or criminal confinement; or (2) a
crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than ten (10) years have passed
since the witness’s conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only
if:
(1) its probative value supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use.
(Emphasis added). Evidence Rule 609(b) “presumes the exclusion of
convictions more than ten years old.” Scalissi v. State, 759 N.E.2d 618, 624
(Ind. 2001). We review a trial court’s ruling under Rule 609(b) for an abuse of
discretion. Id. 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.
Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g denied.
[14] On appeal, the parties dispute whether Chapman’s prior conviction fell within
the ten-year time period of Evidence Rule 609. The ten-year time period runs
from either the “witness’s conviction or release from confinement for it,
whichever is later.” Evid. R. 609(b). The parties do not dispute that the ten-
year limit ended when Chapman testified about the conviction on May 30,
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 8 of 17
2019. See Whiteside v. State, 853 N.E.2d 1021, 1028 (Ind. Ct. App. 2006)
(holding that the date the witness testified or the evidence is introduced is the
most appropriate termination point for determining whether a conviction falls
within the ten-year period provided by Evidence Rule 609). Rather, the parties
disagree regarding the date on which the time period started. Chapman argues
that it started when he was convicted on August 24, 2008. The State argues
that the period started when Chapman was released from probation on
September 1, 2009. Specifically, the State asserts that the term “confinement”
in Evidence Rule 609(b) “goes beyond mere incarceration” and “encompasses a
probationary period as well as community correction placement, commitment
to a local jail, and incarceration in the [DOC].” (State’s Br. 14). We disagree
with the State and conclude that Chapman’s probation did not qualify as
“confinement” for purposes of the ten-year time period in Evidence Rule
609(b).
[15] Initially, we recognize that Evidence Rule 609(b) does not define
“confinement,” and that Indiana appellate courts have not specifically
addressed whether probation qualifies as confinement under Rule 609(b).
However, Black’s Law Dictionary defines “confinement” as “[t]he act of
imprisoning or restraining someone; the quality, state, or condition of being
imprisoned or restrained.” Confinement, BLACK’S LAW DICTIONARY (10th ed.
2014). The term “probation” is defined as “[a] court-imposed criminal sentence
that, subject to stated conditions, releases a convicted person into the
community instead of sending the criminal to jail or prison[.]” Probation,
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BLACK’S LAW DICTIONARY (10th ed. 2014); see also Abernathy v. State, 852
N.E.2d 1016, 1020 (Ind. Ct. App. 2006) (“Probation is a criminal sanction
wherein a convicted defendant specifically agrees to accept conditions upon his
behavior in lieu of imprisonment.”). Although Chapman was subjected to
conditions of probation, we conclude that he was not confined because he was
not actually imprisoned.
[16] Moreover, our interpretation of confinement for purposes of Indiana Evidence
Rule 609(b) is further supported by federal authority interpreting the term
confinement in Rule 609(b) of the Federal Rules of Evidence.3 See Whiteside,
853 N.E.2d at 1026-27 (“While we are not bound by interpretations of the
Federal Rules of Evidence, we may look to them for guidance.”). We observe
that the Seventh Circuit Court of Appeals held that probation does not
constitute “confinement” within the meaning of Federal Rule 609(b). United
States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008). The Rogers Court held that
“Rule 609(b) unambiguously starts the clock at the date of conviction or release
from ‘confinement,’ without any mention of periods of probation and parole.”
Id. at 200. The Rogers Court also noted that while the Rule’s initial draft
provided that the ten-year time span ran from “the date of the release of the
witness from confinement imposed for his most recent conviction, or the
expiration of the period of his parole, probation, or sentence granted or
3
Federal Evidence Rule 609(b) limits the use of evidence “if more than 10 years has passed since the
witness’s conviction or release from confinement for it, whichever is later.” See Dowdy v. State, 672 N.E.2d
948, 951 (Ind. Ct. App. 1996) (holding that the language of Evidence Rule 609(b) closely parallels that of
Federal Evidence Rule 609(b) regarding the admissibility and use of aged convictions to impeach a witness’
testimony at trial), reh’g denied, trans. denied.
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imposed[,]” the language referring to parole and probation was removed in
1971. Id. Ultimately, the Rogers Court held that “‘confinement’ for purposes of
the ten-year time limit in Rule 609(b) does not include periods of probation or
parole.” Id. at 201.
[17] We are persuaded by the Seventh Circuit’s interpretation. The unambiguous
language of Indiana Evidence Rule 609(b) does not mention probation. Thus,
the plain language of Evidence Rule 609(b) neither supports the trial court’s nor
the State’s interpretation that the ten-year time period began at the end of
Chapman’s probation. Therefore, the beginning point for the ten-year period of
Evidence Rule 609 was when Chapman was convicted in 2008. As a result, his
conviction was over ten years old and presumptively inadmissible under
Evidence Rule 609(b). See Scalissi, 759 N.E.2d at 624 (“Rule 609(b) . . . is a rule
that presumes the exclusion of convictions more than ten years old.”). The trial
court erred in determining that Chapman’s prior conviction fell within the ten-
year period set forth in Evidence Rule 609(b).
[18] Nevertheless, a conviction older than ten years may be admitted for
impeachment purposes if: (1) the trial court determines that the probative value
supported by specific facts and circumstances substantially outweighs the
prejudicial effect; and (2) the proponent provides “reasonable written notice” as
required under Rule 609(b). See Evid. R. 609(b); see also Whiteside, 853 N.E.2d
at 1029. Here, the trial court did not engage in such a balancing test and the
State failed to provide reasonable written notice. It was error to admit
Chapman’s prior conviction under these circumstances. Accordingly, the trial
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court abused its discretion by admitting the evidence of Chapman’s prior
conviction in violation of Evidence Rule 609.
[19] Nevertheless, the State argues that “even if the trial court improperly admitted
the evidence of [Chapman’s] prior conviction, any error in its admission was
harmless.” (State’s Br. 16). Where the trial court has erred in the admission of
evidence, we will not reverse the conviction if that error was harmless. Turner v.
State, 953 N.E.2d 1039, 1058 (Ind. 2011). Generally, errors in the admission of
evidence are to be disregarded unless they affect the substantial rights of a party.
Id. at 1059. In analyzing the effect of the evidentiary ruling on a defendant’s
substantial rights, we look to the probable impact on the fact-finder. Id. 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. Reversal may be compelled if the record as a whole discloses
that the erroneously admitted evidence was likely to have had a prejudicial
impact on the fact-finder, thereby contributing to the judgment. Bradford v.
State, 960 N.E.2d 871, 877 (Ind. Ct. App. 2012) (quotation and citation
omitted).
[20] We cannot say that the erroneous admission of Chapman’s prior conviction
was harmless. Here, the evidence presented at trial was entirely testimonial.
As such, witness credibility was central to each side’s position. Both J.H. and
Chapman provided conflicting testimony regarding the events of December 24,
2017. Moreover, during closing arguments, the State argued that Chapman
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 12 of 17
was not credible because he had a prior conviction for false informing. Because
this case turned largely on the credibility of J.H. and Chapman, and the State
relied on the prior conviction during closing argument, we conclude that the
evidence of Chapman’s prior conviction had a prejudicial impact on the fact-
finder and contributed to the judgment. Accordingly, we reverse Chapman’s
conviction and remand for retrial consistent with this opinion.
[21] Reversed and remanded.
May, J., concurs.
Crone, J., concurs in result with opinion.
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 13 of 17
IN THE
COURT OF APPEALS OF INDIANA
Delta L. Chapman, Court of Appeals Case No.
19A-CR-1636
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Crone, Judge, concurring in result.
[22] I agree with the majority that the trial court committed reversible error in
admitting evidence of Chapman’s prior conviction. I write separately, however,
to elaborate on and respectfully part ways with some of the majority’s analysis.
[23] Despite the trial court’s and the prosecutor’s references to “commentary”
regarding Indiana Evidence Rule 609(b), neither the Evidence Rules Review
Committee (whose members are appointed by the Indiana Supreme Court) 4 nor
the Indiana Supreme Court itself has suggested or approved any commentary
on the issue at hand. I presume that the trial court and the prosecutor were
referring to the authors’ commentary in Weissenberger’s Indiana Evidence
4
See Ind. Trial Rule 80 and Ind. Evidence Rule 1101.
Court of Appeals of Indiana | Opinion 19A-CR-1636 | January 31, 2020 Page 14 of 17
Courtroom Manual. A recent edition of that manual cites no persuasive
authority for its statement that “if more than 10 years have elapsed since the
date of conviction, or the termination of confinement, probation or parole, the
conviction is not admissible unless the court finds that the probative value of
such evidence substantially outweighs its prejudicial effect.” A.J. STEPHANI &
GLEN WEISSENBERGER, WEISSENBERGER’S INDIANA EVIDENCE COURTROOM
MANUAL 190 (2016-2017 ed.) (emphasis added).5 In fact, the most recent
edition of one of the authorities cited in the manual specifically states,
“Confinement does not include any period of probation or parole.” 4 JACK B.
WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE §
609.06[2] (Mark S. Brodin, ed., Matthew Bender 2d ed. 2019) (citing cases from
multiple federal circuits). Two other Indiana courtroom evidence manuals
espouse a view consistent with our holding today. See 13B ROBERT L. MILLER,
JR., INDIANA PRACTICE SERIES, COURTROOM HANDBOOK ON INDIANA
EVIDENCE, RULE 609 (2019-2020 ed.) (“‘Confinement’ does not include
probation or parole.”) (citing 28 VICTOR J. GOLD, FEDERAL PRACTICE AND
PROCEDURE (WRIGHT & MILLER) § 6136(b) (2d ed.);6 J. ALEXANDER
TANFORD, INDIANA TRIAL EVIDENCE MANUAL § 30.07 (7th ed. 2014) (“If
more than 10 years has elapsed from both the witness’s conviction and release
from prison, the conviction is presumptively inadmissible.”) (emphasis added).
5
This statement is practically identical to that quoted by the prosecutor from the 2018-2019 edition.
6
The Wright & Miller treatise cites Rogers for this proposition.
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[24] As the Seventh Circuit noted in Rogers, the probation/parole language was
removed from the draft version of Federal Evidence Rule 609(b) in 1971 and
was not included in the adopted version of that rule. 542 F.3d at 200. More
importantly, the probation/parole language was not included in Indiana
Evidence Rule 609(b) when it was first adopted in 1994.7 The Evidence Rules
Review Committee could have adopted a rule based on the initial draft of the
federal rule, and its decision not to do so strongly implies that the committee
did not intend for probation or parole to delay the start of the applicable ten-
year period.8
[25] Because Chapman was not confined after his conviction and more than ten
years had passed since his conviction, evidence of that conviction was
“admissible only if: (1) its probative value, supported by specific facts and
circumstances, substantially outweigh[ed] its prejudicial effect; and (2) the
[State gave Chapman] reasonable written notice of the intent to use it so that
[Chapman had] a fair opportunity to contest its use.” Ind. Evidence Rule
609(b). The majority states, “Here, the trial court did not engage in such a
balancing test and the State failed to provide reasonable written notice. It was
7
Before it was amended in 2014, Indiana Evidence Rule 609(b) read in relevant part,
Evidence of a conviction under this rule is not admissible if a period of more than ten years
has elapsed since the date of the conviction or, if the conviction resulted in confinement of
the witness then the date of the release of the witness from the confinement unless the court
determines, in the interests of justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its prejudicial effect.
8
In Rogers, the court noted that “[o]ther circuits [had] confronted the additional question of whether a
revocation of parole stops the running of the ten-year clock. But that is a matter for another case.” 542 F.3d
at 201 (citations omitted). The same is true here.
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error to admit Chapman’s prior conviction under these circumstances.” Slip
op. at 11. The trial court did not engage in a balancing test because it
erroneously concluded that the rule’s ten-year deadline had not elapsed, and
Chapman did not object on the basis that the State had failed to provide
reasonable written notice. Subject to this minor difference, I agree that the trial
court erred in admitting evidence of Chapman’s prior conviction and that this
error was reversible “[b]ecause this case turned largely on the credibility of J.H.
and Chapman, and the State relied on the prior conviction during closing
argument[.]” Id. at 13.
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