Brett Conover v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 24 2016, 9:40 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Gregory F. Zoeller
Bargersville, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brett Conover, May 24, 2016
Appellant-Defendant, Court of Appeals Case No.
73A01-1506-CR-513
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable Barbara
Appellee-Plaintiff. Harcourt, Senior Judge
Trial Court Cause No.
73D01-1406-FD-195
Robb, Judge.
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Case Summary and Issues
[1] Following a bench trial, Brett Conover was convicted of perjury, a Class D
felony. Conover appeals, raising four issues for our review, two of which we
find dispositive: (1) whether the admission of certain hearsay testimony
constituted fundamental error; and (2) whether the evidence is sufficient to
support his conviction for perjury. Concluding the evidence is insufficient
because the admission of hearsay testimony constituted fundamental error, we
reverse and remand.
Facts and Procedural History
[2] On April 26, 2012, Capital One Bank (“Capital One”) filed a small claims
action against Conover to recover an unpaid credit card balance of $1,094.07.
The account ending in 8928 was in Conover’s name and referenced his address,
date of birth, and Social Security number, yet he disclaimed responsibility for
the account. Conover defended the small claims action pro se and was the only
witness who testified at a trial held on October 22, 2012. Although the account
statements had been sent to Conover’s address for several years, and payments
had been made on the account every month from November 2008 to February
2011, Conover claimed he “never had an account with Capital One” and “never
had any dealings with Capital One in [his] life.” State’s Ex. 1 at 5, 7.
Conover maintained he “never used a Capital One card” and denied making
any of the purchases charged to the account. Id. at 10. The small claims court
admitted the billing records over Conover’s objection but noted “if we were in
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regular court I think you would be . . . in a world of hurt as far as hearsay . . . .”
Id. at 18; see also Ind. Small Claims Rule 8(A) (stating small claims proceedings
shall not be bound by the rules of evidence except provisions relating to
privileged communications and offers of compromise).
[3] The small claims court suspected a member of Conover’s household was
responsible for the charges:
[Court:] Who lives with you during this period of time?
Who lived with you?
[Conover:] My son lives with me now.
[Court:] No, that wasn’t my question. Not now, during this
period of time when this credit card was out there
....
[Conover:] Well, probably my ex-wife and my son.
[Court:] What were their names?
[Conover:] Tracy Conover and my son’s name is Chris. . . .
[Court:] If it turns out that Chris was doing this, had stolen
your identity, did he have your authority to do that?
[Conover:] I, I would, Chris wouldn’t steal my identity.
[Court:] I understand. We would like, we certainly like to
think our, our children wouldn’t do that [to] us.
But did he have your authority to do this, yes or no?
[Conover:] I, I, I don’t understand what you mean. . . .
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[Court:] Well, here’s what I’m, this is my feeling on it.
Either you have absolutely no knowledge of this . . .
You’re completely innocent and if that is the case
then somebody in your household has done
something wrong and has stolen $1,000.00 from
MasterCard or from Capital One, and I’m gonna
turn this over to the Police Department, Sheriff’s
Department and ask them to investigate for a felony
fraud or theft . . . . Number two is that you knew
this was going on and . . . you just kinda played a
part in it and maybe you thought you’d just be able
to disclaim it in the end, and so you’re somewhat
complicit in it. Those, in my mind, are the only two
alternatives we have here. Number one is . . . you
go free, but maybe some of your family doesn’t
down the road. Number two is . . . you go free and
some of your family goes free, but you owe the debt
to the folks over here, Capital One Bank. Do you
have a preference, number one or number two?
[Conover:] I have no knowledge . . . .
[Court:] Okay. So let me ask you again. If your son had
taken your identity and used this was that without
your, your permission?
[Conover:] My, my son wouldn’t, wouldn’t take my identity.
[Court:] I’m gonna ask you again. If your son had taken this
and used this, your information . . . was that
without your permission? That’s a yes or no
answer, Mr. Conover.
[Conover:] If he would have taken it I, I would gave [sic] him
permission, but I, I know he didn’t.
[Court:] You understand you’re under oath?
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[Conover:] Yes, I do.
[Court:] Okay, and you understand by being under oath that
you are, if it turns out that you are basically not
telling the truth to the Court, that you could be
charged with a “C” felony? Do you understand
that?
[Conover:] Yes.
[Court:] And a “C” felony is ranged from two years to eight
years in prison. Do you understand that?
[Conover:] Yes.
[Court:] Okay. So I’m gonna ask you one more time, did
you give your son permission to use your
identifying information during this period of time,
yes or no?
[Conover:] Yes.
[Court:] You did. Okay. So, this is your son . . . acting as
you, is that what happened here?
[Conover:] Yeah.
[Court:] What purpose did you give him your identifying
information then to use?
[Conover:] I, you, you got me kinda confused. I, I never gave
anybody permission to, to do anything. But my
son would, would have never taken any of my
identity.
[Court:] Well, you don’t know that. I mean this could be
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pretty easy . . . all the Prosecutor has to do is
subpoena these records and they’re gonna figure out
pretty quickly who ordered these things and where
they came to, where they were shipped to . . . . It’s
gonna be pretty easy to figure that out. So, I’m just
trying to save some work at the front end here. . . .
Did [your son] have permission to apply for credit
in your name?
[Conover:] No.
[Court:] Did he have permission to use any of your
identifying information to apply for this credit card?
[Conover:] No.
[Court:] Anybody else in your household?
[Conover:] No.
Id. at 20-24.
[4] Ultimately, the small claims court found in favor of Conover but noted it would
be referring the matter to the Shelby County Prosecutor’s Office:
I certainly do not want to be a party to anybody having to pay
debts that they don’t owe. . . . But I find it highly suspicious that
not only were charges made, but payments were made. . . .
Something is fishy here. I was a prosecutor for a long time. This
isn’t right. This, something’s not right here and I’m gonna ask
that they get to the bottom and find out.
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Id. at 25.1 The prosecuting attorney referred the case to Detective Dan Crafton
of the Shelby County Sheriff’s Office. Detective Crafton obtained records from
Capital One for the account ending in 8928, which showed a mixture of online
and local transactions. One of the local transactions was a $27.77 charge on
January 3, 2009, which appeared to be paid to Peoples Heating and Cooling
(“Peoples”) in Shelbyville, Indiana. Detective Crafton went to Peoples on
November 8, 2012, to inquire about the transaction. He learned Peoples shares
a credit card machine with Drake’s Electric (“Drake’s”) and the transaction in
question was a payment made to Drake’s. He also learned Drake’s retains the
receipts for its credit card transactions.
[5] Drake’s provided Detective Crafton with the original receipt for the $27.77
transaction, signed by “Brett Conover.” Transcript at 41-42. Thereafter,
Detective Crafton obtained a verified motion Conover filed in the small claims
action, as well as records from the Indiana Bureau of Motor Vehicles (“BMV”)
containing Conover’s signature. He submitted these documents to the Indiana
1
Rule 1.2 of the Indiana Code of Judicial Conduct provides, “A judge shall act at all times in a manner that
promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.” Similarly, Rule 2.2 requires judges to “perform all duties of
judicial office fairly and impartially.” By engaging in an extended cross-examination of Conover, presenting
Conover with an ultimatum, threatening prosecution for perjury, referencing his own prior experience as a
deputy prosecutor, and then stating he would be referring the matter to the prosecuting attorney, Judge David
Riggins crossed the line between neutral magistrate and zealous advocate. See Meyers v. State, 266 Ind. 513,
517, 364 N.E.2d 760, 763 (1977) (“It is the function of the prosecuting attorney, not the court, to investigate
crimes and bring criminal charges. The practice of the court threatening a witness with perjury charges during
trial poses unnecessary dangers to the integrity of the trial and to public respect for the courts even in non-
jury trials . . . .”). Although we do not believe Judge Riggins’s remarks during the small claims proceeding
constituted fundamental error in the criminal proceeding, we cannot ignore his highly inappropriate
behavior.
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State Police Laboratory for comparison to the receipt. Based on Conover’s
known signatures on the motion and BMV records, a forensic document
examiner concluded Conover also wrote the signature on the receipt. Capital
One did not cooperate in the investigation.
[6] On June 11, 2014, the State charged Conover with perjury, a Class D felony. A
bench trial was held on March 15, 2015. The State called the small claims
judge, the owner of Drake’s, Detective Crafton, and the forensic document
examiner. Brent Drake, the owner of Drake’s, explained the operation of the
credit card machine, stated his company retains all the receipts for credit card
transactions, and described the information printed on the receipt signed by
Conover:
[Drake:] Says Drake’s Supply 1310 Jefferson Avenue,
Shelbyville Indiana 46176. 317-421-2600. The date
is January the 3rd of 2009 at 11:11 a.m. It was a
sale, transaction #4, put on a MasterCard ending in
8928. It was swiped, . . . which means it was r[u]n
through the machine for $27.77. And then there’s a
reference number, 000004, authorization code was
078212 and the response from the credit card
company was approved. And then we asked for his
signature on it.
[State:] All right. Is there a signature on it as well?
[Drake:] Yes there is.
[State:] Okay. And you said the account number ends in
8928, how much of the account number are you
able to read?
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[Drake:] That’s it, the rest of it’s all stars.
Tr. at 41-42. On cross-examination, Drake admitted the receipt did not reveal
which bank issued the credit card and further that he had no independent
recollection of the transaction. The trial court admitted the receipt over
Conover’s hearsay objection.
[7] Detective Crafton testified he contacted Peoples due to the billing records for
the Capital One account ending in 8928, which were admitted into evidence
during the small claims trial without a business records affidavit or the
testimony of a Capital One representative:
[State:] [W]hat documents lead you to ask for [the]
receipt[?]
[Detective:] The billing records from the credit card.
[State:] Okay. The billing records on the account ending in
8928?
[Detective:] That is correct.
[State:] And that’s billing records that also showed Mr.
Conover’s name, address and so on?
[Detective:] Correct.
[State:] Okay. And, I think you said it was January 3rd,
2009, was that the date on the billing record . . . .
[Detective:] Correct. A purchase was made there on that date.
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[State:] And does the receipt match up with what the billing
records had shown?
[Detective:] It did.
***
[State:] And that’s on the exact account that under the
[small claims] transcript . . . the defendant was
asked about, have you ever had a card or used a
card?
[Detective:] Correct.
[State:] And the documents that you had that led you to go
to People’s also [had] this same entire account
number, is that correct?
[Detective:] I believe so.
Id. at 84-85. The billing records Detective Crafton referred to in his testimony
were not admitted into evidence during the criminal trial.
[8] The trial court found Conover guilty of perjury and ordered Conover to serve
365 days in the Department of Correction, all suspended to probation, with
sixty days on home detention and twenty hours of community service. This
appeal followed.
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Discussion and Decision
I. Admission of Evidence
A. Standard of Review
[9] Conover contends Detective Crafton’s testimony describing the billing records
constituted inadmissible hearsay because the statements were not admitted into
evidence during the criminal trial. A trial court has broad discretion in ruling
on the admissibility of evidence. Turner v. State, 953 N.E.2d 1039, 1045 (Ind.
2011). Although we generally review the trial court’s rulings for abuse of
discretion, id., a defendant’s failure to raise a contemporaneous objection at
trial waives the issue for appeal, Delarosa v. State, 938 N.E.2d 690, 694 (Ind.
2010). Conover concedes he failed to object to Detective Crafton’s testimony at
trial but argues the admission of his testimony was fundamental error.
[10] A claim waived by a defendant’s failure to object can be reviewed on appeal if
the reviewing court determines fundamental error occurred. Id. “The
‘fundamental error’ exception is extremely narrow, and applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental
due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The exception
is “available only in egregious circumstances.” Brown v. State, 799 N.E.2d 1064,
1068 (Ind. 2003).
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B. Hearsay Testimony
[11] Hearsay is an out-of-court statement offered into evidence to prove the truth of
the matter asserted. Evid. R. 801(c). Hearsay is inadmissible unless it falls
under a recognized exception. Evid. R. 802. Summarizing the content of an
out-of-court statement is “hearsay evidence in its classic form[,]” Tessely v. State,
432 N.E.2d 1374, 1376 (Ind. 1982), and permits the admission of evidence that
is otherwise inadmissible, Thornton v. State, 25 N.E.3d 800, 804 (Ind. Ct. App.
2015). In this case, Detective Crafton testified to the content of credit card
statements that were never admitted into evidence, and this testimony was the
only evidence in the criminal proceeding linking Conover to a Capital One
credit card account ending in 8928. The receipt admitted into evidence listed the
last four digits of the account number and showed the credit card was a
MasterCard, but it did not show which bank issued the credit card. Because the
testimony was clearly hearsay and the prosecution hinged on the State proving
Conover had an account with Capital One, or at least used the Capital One
card in question, the admission of Detective Crafton’s hearsay testimony
violated basic principles of due process and constituted fundamental error.
II. Sufficiency of Evidence
A. Standard of Review
[12] In reviewing the sufficiency of the evidence to support a conviction, we neither
reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27
N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the
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judgment and any reasonable inferences drawn therefrom. Id. We will affirm
the conviction “if there is substantial evidence of probative value supporting
each element of the crime from which a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” Walker v. State, 998
N.E.2d 724, 726 (Ind. 2013) (citation omitted).
B. Perjury
[13] A person commits perjury when he or she “makes a false, material statement
under oath or affirmation, knowing the statement to be false or not believing it
to be true[.]” Ind. Code § 35-44.1-2-1(a)(1) (2012). The statement must be clear
and direct, not implied or suggested. Barker v. State, 681 N.E.2d 727, 729 (Ind.
Ct. App. 1997). The materiality element is satisfied if the statement is
“reasonably calculated to mislead an investigation.” Daniels v. State, 658 N.E.2d
121, 123 (Ind. Ct. App. 1995). Mere confusion or inconsistency is
insufficient. Id.
[14] In the present case, the State alleged Conover made false, material statements
during the small claims trial when he claimed he never had an account with
Capital One, never used a Capital One card, and never had any dealings with
Capital One. As stated above, it was fundamental error to admit Detective
Crafton’s testimony summarizing the content of the credit card statements
because his testimony was the only evidence in the criminal proceeding linking
Conover to the Capital One account ending in 8928. Without evidence
showing Capital One issued a MasterCard in Conover’s name under an account
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number ending in 8928, the State did not prove Conover made false statements
with respect to Capital One. The State only proved Conover signed a receipt
for a MasterCard transaction with Drake’s on January 3, 2009. Accordingly,
the error was not harmless, and the evidence is insufficient to prove Conover
made a false, material statement under oath. See Speybroeck v. State, 875 N.E.2d
813, 822 (Ind. Ct. App. 2007) (“The improper admission of evidence is
harmless only when the conviction is supported by substantial independent
evidence of guilt that satisfies the reviewing court that there is no substantial
likelihood that challenged evidence contributed to the conviction.”).
[15] However, “[p]rinciples of double jeopardy generally do not bar a retrial on the
same crimes when reversal is required due to trial error in the admission of
evidence.” Id. If all the evidence, even that erroneously admitted, is sufficient
to support the trial court’s judgment, double jeopardy does not bar retrial on the
same charge. Id. 2 When we consider all the evidence presented at trial,
including Detective Crafton’s improperly admitted testimony, we conclude
there was sufficient evidence from which the trial court could have found
Conover guilty of perjury. We therefore remand for a new trial.
2
On page twenty of his appellant’s brief, Conover incorrectly cites Stahl v. State, 686 N.E.2d 89 (Ind. 1997),
for a contrary proposition. The quotation that appears in his brief is actually language from Serrano v. State,
808 N.E.2d 724, 728 (Ind. Ct. App. 2004), an opinion our supreme court specifically disapproved in Jaramillo
v. State, 823 N.E.2d 1187, 1190 n.5 (Ind. 2005). We remind counsel of her duty of candor toward this court
under Indiana Professional Conduct Rule 3.3.
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Conclusion
[16] Because the admission of Detective Crafton’s testimony summarizing the
content of out-of-court statements constituted fundamental error, the evidence
is insufficient to support Conover’s conviction for perjury. We therefore reverse
but remand for a new trial because we also conclude double jeopardy does not
bar retrial on the perjury charge.
[17] Reversed and remanded.
Barnes, J., and Altice, J., concur.
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