Mark R. Hurst v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
Jul 25 2013, 6:16 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CLAY M. PATTON GREGORY F. ZOELLER
Osan & Patton, LLP Attorney General of Indiana
Valparaiso, Indiana
J. T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK R. HURST, )
)
Appellant-Defendant, )
)
vs. ) No. 64A03-1209-CR-391
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Mary R. Harper, Judge
Cause No. 64D05-1201-FC-285
July 25, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Mark Hurst (Hurst), appeals his conviction for robbery, a
Class C felony, Ind. Code § 35-42-5-1; and criminal confinement, a Class D felony, I.C.
§ 35-42-3-3.
We affirm.
ISSUES
Hurst raises three issues on appeal, which we restate as follows:
(1) Whether the trial court properly admitted evidence of his prior conviction;
(2) Whether the trial court properly admitted testimony regarding a lost video
recording; and
(3) Whether the trial court properly admitted evidence of Hurst’s identification
by the victim.
FACTS AND PROCEDURAL HISTORY
In 2008, Kevin Waite (Waite) joined Facebook. Sometime in 2010, Waite started
chatting with Natalie Coats (Coats) on Facebook. Waite knew Coats from his freshmen
year at school. Waite’s hope was to have a relationship with Coats and, he asked her out
on a date on several occasions. She kept on putting it off due to other plans but Coats
eventually agreed to go out on a date with Waite. On December 4, 2011, Waite and
Coats texted each other back and forth. Waite wanted to go to a movie with Coats but
Coats wanted to go out to a bar and have fun. Coats then gave Waite the address to a bar,
Shenanigan’s. When Waite arrived, Coats was already there, together with her friend
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Brittany Foley (Foley), and two other men, one of which would later be identified as
Hurst. Coats and Foley asked Waite to buy them a drink. Waite bought both of the girls
a pitcher of beer. The girls introduced Waite to Hurst and the other male. The whole
night, the group kept referring to Hurst as ‘Alfred’, so Waite never learned Hurst’s real
name.
At some point during the evening, Coats and Foley asked Waite if they could get a
ride home and Waite told them that he would think about it. Foley asked Waite for his
cell phone so that she could text him later. Foley also inquired if she could get twenty
dollars for child support. Waite refused and he told Foley that he was unemployed and
could not afford to give her the money. Hurst then approached Waite and told him that
he had overheard that Waite did not want to drive Coats and Foley home and that he was
going to leave them “high and dry.” (Transcript pp. 93-94). As they continued talking,
Hurst told Waite to drive him home as well. Waite asked whether it was necessary to
drop all of them off and Hurst responded “yes you do if you’d like to keep your precious
teeth.” (Tr. p. 95). This time, Waite agreed because he felt intimidated and scared. After
that, Waite went to the restroom where he wanted to either call his parents or the police
for help. However, Hurst followed him to the restroom, cornered him in the stall, and
told Waite to show him the last people he called and texted. Waite agreed. At that point,
Coats and Foley came into the men’s restroom and asked if everything was alright. Out
of fear, Waite told the girls that everything was fine, which made them leave the
bathroom. Waite walked over to the sink to wash his hands and Hurst informed him
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“you’re disrespecting me and my lady friends so you are going to buy pitchers of beer
and shots for us.” (Tr. p. 96). Hurst followed Waite to the bar where Waite bought
pitchers of beer and shots for all of them. Hurst also told Waite to leave a ten or fifteen
dollar tip for the bartender which Waite did out of fear. They drank the first round and
Hurst demanded that Waite buys another round of beer and shots. At that point, Hurst
had to leave for about 10 minutes, but before he left, he asked his other male friend to
follow Waite to the parking lot and beat him up if he tried to leave.
When Hurst returned, he demanded Waite go to the ATM and get twenty dollars
for Foley. Waite drove Hurst and Foley to an ATM located at a Marathon gas station
close by. Waite got out of the car and went over to the ATM and as he was putting his
pin number in, Hurst pushed him aside and told Waite he would do it himself. He then
asked Waite to drive to another ATM to get more money. At that time, Hurst had
Waite’s debit card and cell phone. Hurst handed Waite’s debit card to Foley, who
entered the Marathon gas station to retrieve more money from Waite’s bank account.
After returning to Shenanigans, Hurst demanded that they leave again to buy food. Waite
drove Foley and Hurst to Dennys. When they got to Dennys, Foley exited the car and
asked Waite if he wanted anything, and Waite told her he was okay. Waite tried to get
out of the car but Hurst told him to remain seated. At that point, Hurst asked Waite to
give him his driver’s license so he could write down Waite’s information just in case
Waite tried to notify the police. Out of fear, Waite handed it to him. Hurst informed
Waite that if he attempted to notify the police, Hurst would go over to Waite’s house with
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his buddies and beat him and his family. Hurst also told Waite that he was debating what
to do with him next, whether to beat him up, or take his car. Hurst added, “at least you
have your life and a little less money.” (Tr. p 120). Waite then drove Hurst and Foley to
Foley’s friend’s trailer. When they got to their destination, Hurst and Foley got out of the
car. Hurst told Waite his cellphone was in the back seat, he kicked Waite’s car, and said,
“go, go, go, you know, I’m letting you go.” (Tr. p 122).
On January 11, 2012, the State filed an Information, charging Hurst with robbery,
a Class C felony, I.C. § 35-42-5-1, and criminal confinement, a Class D felony I.C. § 35-
42-3-3. On March 20, 2012, the State amended the Information and added a Habitual
Offender Sentence Enhancement Notice. On the same day, the State filed a Second
Amended information against Hurst for the same charges.
On April 16, 2012, Hurst filed a motion in limine seeking the suppression of any
evidence relating to his previous criminal convictions which occurred more than ten years
prior to the instant offenses. On April 25, 2012, the trial court denied Hurst’s motion in
limine. A jury trial was held on April 23, 25 and 26, 2012. At the close of the evidence,
the jury found Hurst guilty as charged. On August 14, 2012, the trial court held a
sentencing hearing and sentenced Hurst to six years for his robbery offense enhanced by
eight years because of his habitual offender adjudication. The court also sentenced him
to two years for the criminal confinement charge. These sentences were to run
concurrently.
Hurst now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Admission of Evidence
A. Standard of Review
Our standard of review in this area is well settled. The admission of evidence is a
determination entrusted to the discretion of the trial court. Adkins v. State, 703 N.E.2d
182, 186 (Ind. Ct. App.1998). We will reverse a trial court’s decision only when the
court’s action is clearly against the logic and effect of the facts and circumstances before
the court. Id. In reviewing the admissibility of evidence, we consider only the evidence
in favor of the trial court’s ruling and any unrefuted evidence in the defendant’s favor.
See Hyppolite v. State, 774 N.E.2d 584, 592 (Ind. Ct. App. 2002), trans. denied. If a trial
court abused its discretion by admitting the challenged evidence, we will only reverse for
that error if the error is inconsistent with substantial justice or if a substantial right of the
party is affected. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004). “Any error
caused by the admission of evidence is harmless error for which we will not reverse a
conviction if the erroneously admitted evidence was cumulative of other evidence
appropriately admitted.” Id.B. Prior Conviction
Hurst first contends that the admission of his prior conviction by contending that
the trial court abused its discretion in allowing this evidence to be presented to the jury
in violation of Indiana Evidence Rule 609. Hurst argues that his prior conviction of
residential burglary and theft, of which he was convicted of in 1998 and released on
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parole on October 18, 1999, fell outside the ten year limitation period as provided by
Evid.R.609 (b), and should have been excluded by the trial court.
Evid.R.609 (b) governs the impeachment of a witness by evidence of a prior
conviction and provides in pertinent part that:
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. However, evidence of a conviction more than ten years old as
calculated herein is not admissible unless the proponent gives to the
adverse party sufficient advance written notice of intent to use such
evidence to provide the adverse party with a fair opportunity to contest the
use of such evidence.
Accordingly, we observed that Evid.R. 609 (b) is biased against admissibility.
Dowdy v. State, 672 N.E.2d 948, 951 (Ind. Ct. App. 1996). reh’g. denied. Specifically, it
requires the party seeking to impeach with an aged conviction to show that the probative
value of the evidence substantially outweighs its risk of unfair prejudice. Id. (quoting
United States v. Estes, 994 F.2d 147, 149 (5th Cir.1993)). Further, the party seeking to
overcome Evid. R. 609(b) presumption of exclusion must support the argument for
probative value with specific facts and circumstances upon which the trial court may base
a finding of admissibility. Id.In Scalissi v. State, 759 N.E.2d 618 (Ind. 2001), our supreme court stated that the
decision to admit such evidence is dependent on several factors:
(1) the impeachment value of the prior crime; (2) the point in time of the
conviction and the witness’ subsequent history; (3) the similarity between the past
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crime and the charged crimes; (4) the importance of the defendant’s testimony;
and (5) the centrality of the credibility issue.
Here, we note that the trial court considered in detail the factors enunciated in
Scalissi and concluded as follows:
As to the 609 question that we had pending. And I’ve done a little bit of looking
around on this to be as close to right as I can for you folks. I don’t think cases
should be tried in a vacuum. But it doesn’t mean that the front door is wide open.
The state did provide written Notice of Intent to use 609 Evidence. So I will find
that there has been sufficient written notice to allow the Defense to challenge the
convictions of admissibility, as we certainly had argument on that. The factors
that I have looked at in weighing this issue because the convictions at issue, I
believe are the [b]urglary and [t]heft. So I looked at impeachment value of the
prior crimes, the point in time of the impeachment value of the prior crimes, the
point in time of the convictions and the Defendant’s subsequent history, similarity
between the crimes at issue that the State would like to utilize, and the purpose of
course, which would be impeachment, and the charged crimes, the importance of
the Defendant’s testimony if this will be an impeachment situation, and the
centrality of the credibility issue. Obviously credibility is going to be critical. I
believe that there is impeachment value to crimes of [b]urglary and [t]heft. I will
find that the [t]heft is a crime involving dishonesty or false statement. To the
[c]ourt’s belief, the Court has not received any evidence showing that the [t]heft
that was the basis for the conviction did not involve dishonesty or false statement.
[t]heft being the exertion of unauthorized control over the property of another with
the intent to deprive them of any part of the value or use of the property. Which
goes to, I think, the third factor that the court needs to evaluate, which is the
similarity between the past crime or crimes and the charged crime. There does
appear to be the commonality of the issue with the [r]obbery and [t]heft and that is
the exertion of unauthorized control over the property of another or taking
property from another without permission. So I think that is a common element.
(Tr. pp. 244-245). Indeed, based on the Scalissi factors, we conclude that Hurst’s prior
conviction was properly admitted. The impeachment value of Hurst prior conviction was
great. The point in time was close to his prior offense of residential burglary and theft.
We also find similarity with Hurst’s instant conviction to his prior convictions. We view
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both crimes to have a commonality as they both involve a person knowingly or
intentionally taking away the property of another person.
However, Hurst now argues that the State provided insufficient written notice.
Evid.R 609 (b) provides that evidence of a conviction more than ten years old shall not be
admitted into evidence unless the proponent who intends to use the evidence gives the
adverse party sufficient advance written notice of intent to use such evidence. The record
reflects that the State gave verbal notice of its intent to use Hurst’s prior conviction which
triggered Hurst’s written motion in limine filled with the trial court on April 16, 2012. In
fact, the record shows that the State did not provide written notice until the day of the
trial. Thus, Hurst knew that the State intended to introduce the prior convictions into
evidence and had advance fair opportunity to contest the State’s intent. As such, his
rights were not substantially affected and we find the error to be harmless. See T.R. 61;
See also Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), reh’g granted on
other grounds, 774 N.E.2d 116.
Based on these facts, we agree with the trial court that the probative value of
Hurst’s 1998 robbery conviction substantially outweighed its prejudicial effect.
Accordingly, the trial court did not abuse its discretion in finding Hurst’s 1998 robbery
conviction admissible.
C. Video Surveillance
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Next, Hurst contends that the trial court abused its discretion by admitting
Detective Joe Reynolds’ (Detective Reynolds) testimony with respect to a video
recording of Hurst, Foley, and Waite at the ATM machines.
Detective Reynolds testified that during his investigation, he viewed the video
surveillance footage at the Marathon gas stations. He also stated that none of the
managers at the gas station could reliably make copies of the video surveillance. As
such, he asked the managers to save copies of the video onto a thumb drive. Next, he
made copies of the video surveillance on his phone by taking a video of the surveillance
footage directly from the computer monitor screen. Detective Reynolds testified that he
sent both videos to his office email, but for some reason he was not able to burn them
into CD format, so they remained in his computer. Further, Detective Reynolds stated
that approximately 2-3 months before trial, he was promoted and had to move his office
at that time. He deleted some files from his computer and the video footage from both
gas stations got deleted in the process. During trial, Detective Reynolds testified as to
what he had seen in the videos.
Hurst now argues that Detective Reynolds’ testimony of the video surveillance
was not the best evidence as stated by Indiana Evidence Rule 1002 and that the State
should have presented the original video. First, we note that Hurst failed to make any
objection when Detective Reynolds testified about the video surveillance. Failure to
object at trial to the admission of evidence results in waiver of that issue on appeal.
Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003).
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Waiver notwithstanding, we address the merits of Hurst’s claim. Evid. R 1002
provides in relevant part that:
To prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these rules or
by statute.
However, if the original is lost or destroyed, Evid.R. 1004 states that:
Secondary evidence maybe admissible to prove the contents of a [] recording[] if
the proponent of the secondary evidence makes a satisfactory showing to the trial
court that the original item is lost or destroyed, unless the proponent lost or
destroyed them in bad faith.
In this case, Detective Reynolds testified at trial that he had deleted the videos
from his computer by mistake when he was moving to his new office. The record reflects
that it was a mistake not driven by malice. Thus the admission of his testimony fits the
best evidence rule under these circumstances.
Further, even if wrongly admitted, this amounted to a harmless error because it did
not prejudice Hurst’s substantial rights. Bonner v. State, 650 N.E.2d 1139, 1141 (Ind.
1995). In Bonner, the Court held that the improper admission of evidence is harmless
error when the conviction is supported by substantial independent evidence of guilt
sufficient to satisfy the reviewing court that there is no substantial likelihood that the
questioned evidence contributed to the conviction. Id. Here, both Waite and Foley
testified to the events of the evening. The testimony comported with what the recordings
allegedly showed. Based on the forgoing, we conclude that the trial court did not abuse
its discretion when it admitted Detective Reynolds’ testimony.
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D. Hurst’s Photograph
Lastly, Hurst contends that the trial court abused its discretion when it admitted
testimony from Detective Reynolds, indicating that he showed Waite a single photo of
Hurst to identify him. Specifically, Hurst argues that:
Certainly, showing just one (1) photograph would cause that particular suspect to
stand out, as after the Detective showed Waite just one (1) picture and asked if that
was the guy, Waite implicated Hurst in the crimes…The supposed photo array,
which in actuality was only one (1) photo of Hurst, was impermissibly suggestive
and conducive to mistaken [sic] identification considering the totality of the
circumstances.
(Hurst’s Br. p. 12).
Initially, we note that Hurst failed to make an objection when Detective Reynolds
was testifying about the photograph. It is well settled that failure to object at trial on the
admission of evidence results in waiver of that issue on appeal. Kubsch, 784 N.E.2d at
923.
Waiver notwithstanding, we will address the merits of Hurst’s claim. Our
supreme court stated that a photographic array is impermissibly suggestive if it raises a
substantial likelihood of misidentification given the totality of the circumstances.
Parker v. State, 698 N.E.2d 737, 740 (Ind.1998). The record shows that the State never
elicited testimony from Detective Reynolds that he used the photo to ask Waite to
identify Hurst. Rather, on cross examination, Hurst himself elicited this testimony. The
State relied on Waite’s testimony at trial to identify Hurst. The record further reflects
that Detective Reynolds only used the photograph to confirm with Waite what he
already knew and what he had seen in the surveillance videos. Therefore, the
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photograph was used for confirmation of other evidence already gathered in the
investigation and not for identification purposes. We find no error here and we affirm
the trial court’s decision.
CONCLUSION
For the foregoing reasons, we find the following: (1) the trial court did not abuse
its discretion in admitting Hurt’s prior conviction; (2) the trial court did not abuse its
discretion in admitting Detective Reynolds’ testimony of the surveillance video; and (3)
the trial court did not abuse its discretion by allowing Detective Reynolds to give
testimony that Waite had identified Hurst from a single photo.
KIRSCH, J. and VAIDIK, J. concur
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