Debra A. Edwards v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
Apr 05 2012, 9:02 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTEN D. FOSTER GREGORY F. ZOELLER
The Foster Group, PLLC Attorney General of Indiana
New Palestine, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEBRA A. EDWARDS, )
)
Appellant-Defendant, )
)
vs. ) No. 30A04-1110-CR-528
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Terry K. Snow, Judge
Cause No. 30D01-1008-FD-158
April 5, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant Debra A Edwards appeals her conviction for Theft,1 a class D
felony, claiming that the conviction must be set aside because the trial court erred in
excluding the testimony of an allegedly biased material witness. Concluding that the trial
court’s decision to exclude the evidence did not constitute reversible error, we affirm the
judgment of the trial court.
FACTS
Edwards had been an employee of Advance America Cash Advance (Advance
America) for approximately six years. In June 2010, Edwards was working as the Center
Manager for the Greenfield branch of Advance America. During that time, Terry Andis
also worked at that same branch as assistant manager.
The district manager for the Greenfield branch left Advance America in March
2010, and that position had remained vacant since that time. As a result, Andis and
Edwards were responsible for running the branch and managing the money, including the
preparation of the company’s daily bank deposits. Advance America’s policy at the
Greenfield branch was to keep $950 on hand for the next day. An additional $100 was
kept in the “bait bag” in the event of a robbery. Tr. p. 44, 110. However, the employees
were required to deposit all other monies received in the bank.
At a certain point, the employees were to prepare a deposit for the bank and place
the cash in the plastic deposit sleeve in the safe. That process was to be verified by two
individuals. At the end of the day, employees would leave the prepared deposits in the
1
Ind. Code § 35-43-4-2.
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sealed sleeves in the branch safe. The next morning, or the next business day following a
Saturday, the employee would take the deposits to the bank. The employees were to wait
while the money was counted by the teller and then bring back a receipt to the branch
showing that the deposit had been made.
Edwards and Andis had fallen into the habit of making night deposits, a procedure
that was supposed to occur only under certain conditions and only after a district manager
had approved the process. Also, while the preparation of the deposits was supposed to
be performed by a person other than the one who carried the money, the deposits were
typically carried by Edwards, who would sign Andis’s name to them.
On Saturday, June 26, 2010, the branch had two deposits, one for $3,000 and the
other for $1,356.89. After preparing both deposits, Edwards left to take them to the bank
on Monday, June 28, 2010, at approximately 10:00 a.m. Receipts from the bank indicate
that the $3,000 deposit was processed on June 28, 2010 at 10:11 a.m. The second deposit
of Saturday’s receipts, for $1,356.89 was processed on June 29, 2010, at 9:12 a.m.
On June 28, 2010, the end of day summary indicated an amount of $1244.66 to be
prepared for deposit. Edwards prepared the deposit and indicated that she would
transport the funds to the night depository. Andis followed Edwards in her vehicle and
saw Edwards turn into the bank as she drove by on her usual route home. Surveillance
footage showed Edwards at the night depository at 6:15 p.m. that evening.
On June 29, 2010, Amy Perry, the Advance America Divisional Director of
Operations, arrived to do an unscheduled audit of the Greenfield branch. Although that
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branch was not in Perry’s district, she offered to perform the audit because the Greenfield
Branch had been without a district manager and an audit for a considerable time.
Another representative, Robin McCallap, arrived later that afternoon to assist Perry.
Perry quickly discovered the unauthorized use of the night deposit procedures and
taught Andis the company policies regarding such deposits. On June 30, 2010, Perry
discovered that the proceeds from Monday, June 28, 2010, had been prepared and
deposited by Edwards without receipt of a validation ticket from the bank.
When asked about the transaction, Edwards explained that she had not yet
retrieved the validation ticket from the bank. Perry was concerned because if Edwards
had made Monday’s deposit in the night depository that night, the validation ticket from
the bank should have been ready to be picked up on Tuesday. Edwards explained that
Andis had followed her to the night depository and had pulled into the other lane to
witness the deposit.
When Perry attempted to obtain verification of the deposit of Monday’s receipts,
the bank had no record of an Advance America deposit in their night depository for
$1,244.66. The Chase Bank Branch used a dual control system for emptying the night
depository vault in the morning, between 8:15 and 8:30 a.m., and in the evening around
5:00 p.m., so that two employees removed and reviewed the deposits. The deposit was
never found by Chase Bank. In fact, the only deposit from Advance America received on
June 29, 2010, was for $1356.89.
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A review of the surveillance tapes from Chase Bank shows Edwards at the night
depository on Monday, June 28, 2010, at 6:15 p.m. No other vehicle is visible in the
other lane, and Edwards appears to have only one deposit. Advance America’s internal
surveillance videos from Saturday and Monday show Edwards preparing the deposits but
not sealing the deposit sleeves. At some point, Andis related to Perry that Edwards
wanted her to tell Perry that she followed Edwards to the bank to witness the night
deposit. However, Andis could not say that because it was not true.
Following an investigation, the State charged Edwards with theft on August 26,
2010. During a jury trial that commenced on September 19, 2011, Andis testified for the
State. Edwards wished to impeach Andis with evidence that she had previously been
charged with the theft of $130,000 from a former employer in 2004. However, those
charges had subsequently been dismissed. Edwards also sought to introduce evidence
that Andis had been fired from a job at Gas America when it was discovered that some
money was missing. The trial court did not permit Edwards’s impeaching evidence at
trial because the charges had not been reduced to a conviction.
Edwards testified that she prepared two deposits on Saturday, but only deposited
one, for $3,000 on Monday morning “by accident.” Tr. p. 238. Edwards then claimed
that she made two separate deposits on Monday at the night depository. Edwards denied
telling Perry that Andis had witnessed her make a night deposit on Monday.
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The jury found Edwards guilty as charged, and the trial court subsequently
sentenced Edwards to a term of eighteen months of incarceration, suspended, with
eighteen months probation. Edwards now appeals.
DISCUSSION AND DECISION
As noted above, Edwards argues that her conviction must be reversed because the
trial court did not permit her to impeach Andis with evidence of the fact that she had been
charged with stealing money from BigFoot, and had been fired from another job after it
was discovered that money had been missing from the company. In short, Edwards
argues that the trial court abused its discretion in excluding this evidence.
I. Standard of Review
We initially observe that trial courts are afforded broad discretion in determining
whether to admit or exclude evidence, and we review evidentiary determinations by trial
courts for an abuse of discretion. Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct. App.
2010). An abuse of discretion occurs when the trial court’s ruling is clearly against the
logic, facts, and circumstances presented. Oatts v. State, 899 N.E.2d 714, 719 (Ind. Ct.
App. 2009). An evidentiary error may not support reversal of a conviction unless the
error affected the defendant’s substantial rights. Id. Also, a trial court’s evidentiary
ruling will be sustained on appeal on any legal ground apparent in the record. Jester v.
State, 724 N.E.2d 235, 240 (Ind. 2000).
We also note that relevant evidence, which is evidence having any tendency to
make the existence of any fact of consequence more or less probable, is admissible. Ind.
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Evidence Rules 401, 402. However, relevant evidence should nevertheless be excluded if
the probative value of the evidence is substantially outweighed by its prejudicial effect.
Jackson v. State, 712 N.E.2d 986, 988 (Ind. 1999).
II. Edwards’s Claims
In addressing Edwards’s contention, we note that both the Federal and Indiana
Constitutions provide that a defendant has the right to confront and cross-examine the
witnesses against him. U.S. Const. Amend. 6; Ind. Const. art. I, § 13. Additionally,
Indiana Evidence Rule 611(b) provides that
Cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The court
may permit inquiry into additional matters as if on direct examination.
The right of a defendant in a criminal case to confront a witness includes the right
of full, adequate, and effective cross-examination. Hodges v. State, 524 N.E.2d 774, 782
(Ind. 1988). Only the complete denial of a cross-examination on an area concerning a
witness’s credibility will amount to the constitutional denial of the right to cross-
examination and any less than the total denial of cross-examination is viewed as within
the discretion of the trial court to regulate the scope of cross-examination. Fassoth v.
State, 525 N.E.2d 318, 323 (Ind. 1988).
We also note that it is well-settled that in “Indiana, the credibility of a witness may
not be impeached by specific acts of misconduct which have not been reduced to
conviction.” Saunders v. State, 848 N.E.2d 1117, 1123 (Ind. Ct. App. 2006).
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As our Supreme Court held in Hatchett v. State, 503 N.E.2d 398, 403 (Ind. 1987),
relying on the United States opinion in Davis v. Alaska, 415 U.S. 308 (1974), there is a
difference between evidence of prior conduct offered to impeach the character of a
witness and evidence offered to show the bias or prejudice of a crime.
As was explained in Davis:
One way of discrediting the witness is to introduce evidence of a prior
criminal conviction of that witness. By so doing the cross-examiner intends
to afford the jury a basis to infer that the witness’ character is such that he
would be less likely than the average trustworthy citizen to be truthful in
his testimony. The introduction of evidence of a prior crime is thus a
general attack on the credibility of the witness. A more particular attack on
the witness’ credibility is effected by means of cross examination directed
toward revealing possible biases, prejudice, or ulterior motives of the
witness as they may relate directly to the issues or personalities in the case
at hand. The partiality of a witness is subject to exploration at trial and is
always relevant as discrediting the witness and affecting the weight of his
testimony.
415 U.S. at 316.
A criminal history offered as a general impeachment of character is disallowed
under Indiana’s Evidence Rules unless the criminal history consists of certain crimes
reduced to convictions. Id. at 404; Evid. R. 608(b), 609(a). On the other hand, it has also
been determined that disallowing evidence of bias on the part of a witness can deprive a
defendant of his or her Sixth Amendment right of confrontation. Hendricks, 554 N.E.2d
at 1143.
In this case, it is apparent that the evidence Edwards sought to offer was the intent
to cast suspicion on Andis as the more likely thief in light of her history, rather than
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showing that Andis was biased. Indiana Evidence Rule 608 provides that specific
instances of wrongdoing may not be inquired into or proved by extrinsic evidence for the
purpose of attacking or supporting a witness’ credibility, other than a conviction for a
crime as provided in Evidence Rule 609. Therefore, Andis’s prior circumstances were
not subject to impeachment. See Beaty v. State, 856 N.E.2d 1264, 1269 (Ind. Ct. App.
2006) (observing that the defendant impermissibly desired to show that a witness had
previously stolen items from a department store for the purpose of demonstrating that the
witness was more likely to have been the thief in the instant case).
Notwithstanding the above, Edwards maintains that she desired to present
evidence demonstrating that Andis was biased because there had been previous
accusations against her and thus was motivated to testify for the State to avoid the
“distress and prejudice that such accusations carry.” Appellant’s Br. p. 8. This particular
motive is common to many State’s witnesses. Therefore, it is not reversible error to
“disallow cross-examination for bias and prejudice if the questioning would not give rise
to a reasonable degree of probability of bias and prejudice.” Hatchett, 503 N.E.2d at 404.
Here, there was no indication that Andis was testifying to gain any type of favor
from the State. In other words, the State had not bargained for her testimony and Andis
was not a suspect. Under these circumstances, we cannot say that the jury would have
received a significantly different impression of Andis had Edwards been permitted to
examine her about her past employment experiences. As a result, we conclude that the
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trial court did not abuse its discretion in denying Edwards’s request to present that
evidence.
Finally, even assuming solely for the sake of argument that the trial court erred in
refusing to allow Edwards to present the evidence regarding Andis, the error was
harmless. Indeed, even if a criminal defendant is denied the opportunity to fully cross-
examine witnesses about potential biases, the convictions will not be reversed if the State
can prove beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained. Standifer v. State, 718 N.E.2d 1107, 1110 (Ind. 1999). And
whether the trial court’s error is harmless depends on several factors, including the
importance of the witness’ testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination otherwise
permitted, and the overall strength of the prosecution’s case. Id. at 1111.
Here, although Andis may have been an important witness for the State, her
evidence was corroborated by the fact that Edwards prepared Monday’s deposit, and was
recorded making a deposit at the night depository on Monday in accordance with her
documentation. However, the deposit of Monday’s proceeds never appeared at the bank.
Therefore, any curtailment of Edwards’s right to confront and cross-examine Andis was
ultimately harmless error beyond a reasonable doubt. Id.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.
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