MEMORANDUM DECISION
                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                             Jun 17 2016, 8:24 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                        CLERK
                                                             Indiana Supreme Court
court except for the purpose of establishing                    Court of Appeals
                                                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Clifford M. Davenport                                    Gregory F. Zoeller
Davenport Law Offices                                    Attorney General of Indiana
Anderson, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Massengale,                                       June 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1508-CR-1254
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1501-F4-118



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016   Page 1 of 9
[1]   Daniel Massengale was convicted of Level 4 felony burglary, 1 Level 6 felony

      theft, 2 and Class A misdemeanor theft, 3 and adjudicated an habitual offender. 4

      He argues the court should not have admitted his confession. We affirm.


                                      Facts and Procedural History
[2]   Massengale worked for Tuttle’s Tree and Landscaping, which is owned by

      Robert Tuttle. Tuttle ran the business out of his home office and kept work

      trucks and equipment in his driveway. Employees routinely met Tuttle at his

      house each morning to gather the equipment they needed for that day’s job, but

      employees were not permitted in Tuttle’s home when he was not there.


[3]   On the morning of July 4, 2014, Tuttle and three employees met at his house to

      gather equipment for removing a storm-damaged tree. The employees that day

      were Massengale, Jacob Cortrecht, and Bobby Hotstettler. They went to a

      residence a few miles from Tuttle’s house and worked until 1:00 p.m., at which

      point Tuttle told his employees he had a family obligation that would take a

      couple of hours. He directed the crew to eat lunch and then continue working

      at the jobsite. The employees had Tuttle’s work truck, which contained the




      1
          Ind. Code § 35-43-2-1.
      2
          Ind. Code § 35-43-4-2(a)(1)(A).
      3
          Ind. Code § 35-43-4-2(a).
      4
          Ind. Code § 35-50-2-8(b).


      Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016   Page 2 of 9
      garage door opener for Tuttle’s house and Tuttle’s keys for the truck, the work

      equipment, and Tuttle’s house.


[4]   Just after lunch, Massengale’s glasses fell off when he was in a tree, and a lens

      popped out of the frame. On other occasions when Massengale’s lens had

      popped out, Massengale had put the lens back in himself without leaving. But

      this time Massengale asked to leave the work site to get his glasses repaired. He

      said he was going to Walmart, which was “right up the road” and could be seen

      from the work site. (Tr. at 129.) Massengale took the work truck and returned

      “[o]ver two (2) hours” later, which Cortrecht found strange. (Id. at 130.)


[5]   Tuttle returned to the job site to find Massengale had also just returned to the

      job site. Massengale claimed he had gone to Walmart to get his glasses fixed.

      Tuttle instructed the employees to finish the job, then he went to other locations

      to provide landscaping estimates. Tuttle returned home around 5:30 p.m. and

      did not notice any damage to the steel doors and deadbolt locks that secured his

      home. When he went to his bedroom to change his clothes, he noticed his

      shoes had been pulled out of his closet, the closet was in disarray, and “[a] rifle,

      a shotgun, a handgun, a small Century safe 5 that sits on the shelf, a five (5)

      gallon jug of coins, change, and . . . a little box that contained a bunch of silver




      5
        Tuttle’s son, Jacob, testified he had checkbooks, a class ring, and some personal letters in the safe that was
      stolen from his father’s closet. Jacob testified the items were not returned, but he did not testify as to their
      value.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016                  Page 3 of 9
      coins” were missing. (Id. at 113) (footnote added). Tuttle’s missing items were

      worth $4,000.00, not including the coins and change.


[6]   Rick Hawley is the co-owner of Buck Shot Sporting Goods in New Castle. On

      July 5, 2014, Keith Massengale, Massengale’s father, came to the store to sell a

      rifle, a shotgun, and a handgun. Hawley collected information about Keith and

      the weapons, including their serial numbers, on a “firearm purchase sheet” that

      the business uses to track transactions. (Id. at 140.)


[7]   Detective Brad Oster of the Madison County Sheriff’s Department investigated

      the burglary at Tuttle’s house. Tuttle told the detective he suspected

      Massengale committed the crime. Detective Oster found the rifle and shotgun

      that Keith sold to Buck Shot had serial numbers matching Tuttle’s rifle and

      shotgun.


[8]   Detective Oster tried four times to interview Massengale. On the first occasion,

      Massengale asked for counsel. 6 On the fourth occasion, Detective Oster read

      Massengale his Miranda 7 rights, and Massengale acknowledged he understood

      them. Massengale then confessed he entered Tuttle’s home, stole his property,

      and had his father sell Tuttle’s rifle and shotgun.




      6
        The record is devoid of evidence regarding who initiated the subsequent interviews or what happened on
      the second and third occasions Detective Oster met with Massengale.
      7
        Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding a person who is in custody and about to be
      interrogated must be informed of his right to remain silent, of the State’s ability to use any statements he
      makes against him in court, and of his right to consult his lawyer or to have a lawyer appointed for him if he
      is indigent), reh’g denied.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016                Page 4 of 9
[9]    The State charged Massengale with Level 4 felony burglary, Level 6 felony

       theft, and Class A misdemeanor theft and alleged he was an habitual offender.

       Massengale moved to suppress his statements from the fourth interview because

       the “State’s agents knew during the interrogation process that Mr. Massengale

       was represented by counsel and wholly failed to provide Mr. Massengale with

       his counsel” as required by the Sixth Amendment. (App. at 39.) After a

       hearing at which Detective Oster testified, the court denied Massengale’s

       motion to suppress. The court also denied his objection at trial to the admission

       of the videotape of his confession. The jury found Massengale guilty as

       charged.


                                         Discussion and Decision
[10]   Under the facts and circumstances presented in this case, the trial court did not

       abuse its discretion by admitting Massengale’s confession. 8 Admission of

       evidence is left to the broad discretion of the trial court, Bennett v. State, 5

       N.E.3d 498, 505 (Ind. Ct. App. 2014), trans. denied, and we reverse only for an

       abuse of that discretion, which occurs when the court’s decision was clearly




       8
         Before the trial court, Massengale asserted the State had violated his Sixth Amendment right to counsel by
       interviewing him without the counsel that had been appointed for him in an unrelated cause of action. On
       appeal, Massengale does not challenge the trial court’s decision regarding the Sixth Amendment, but instead
       asserts the State violated his Fifth Amendment right to counsel. When a defendant presents one argument at
       trial and another on appeal, the appellate argument is waived. Marshall v. State, 621 N.E.2d 308, 314 (Ind.
       1993). Thus, we cannot reverse Massengale’s conviction unless he demonstrates fundamental error. See
       Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002) (“To avoid procedural default, the defendant argues . . . the
       court committed ‘fundamental error’ . . . .”), reh’g denied. However, as we hold herein that the admission of
       Massengale’s confession was harmless, we need not review the merits of Massengale’s argument that his
       confession was inadmissible under the Fifth Amendment. See, e.g., Layman v. State, 42 N.E.3d 972, 976 (Ind.
       2015) (appellate court should not address constitutional claims if case can be decided on another ground).

       Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016                Page 5 of 9
       against the logic and effect of the facts and circumstances before the court. Id.

       at 505-06. As we conduct our review, we may not reweigh evidence, and we

       consider both conflicting evidence most favorable to the trial court’s ruling and

       uncontroverted evidence in the defendant’s favor. Id. at 505.


[11]   Indiana law requires we disregard errors in the admission of evidence unless

       they impact the substantial rights of a party. Ind. Trial Rule 61; Ind. Appellate

       Rule 66. To determine whether the admission of evidence impacted the

       substantial rights of a party, we must assess the probability that the challenged

       evidence impacted the jury’s decision. Bennett, 5 N.E.3d at 510. If challenged

       evidence was merely cumulative of other properly admitted evidence, or if there

       was substantial independent evidence of guilt, then we will deem any alleged

       error to be harmless. Id.


[12]   In Sledge v. State, 677 N.E.2d 82, 86 (Ind. Ct. App. 1997), Sledge challenged the

       admission of testimony by a police officer about conversations between Sledge

       and a confidential informant that the officer had overheard through a hidden

       microphone worn by the informant. We resolved the issue without addressing

       the merits of Sledge’s argument about hearsay because the confidential

       informant had testified about the same conversation. “Even assuming the trial

       court erred by allowing the police officer’s testimony, erroneously admitted

       evidence that is merely cumulative is not reversible error.” Id.


[13]   Massengale challenges the admission of his videotaped confession. When the

       State presented the videotape of the confession, Massengale objected “based


       Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016   Page 6 of 9
upon my previous objections.” (Tr. at 150.) Massengale did not, however,

object when Detective Oster testified about Massengale’s admissions:

        Q        And, when you had contact with [Massengale], what did
                 you learn?


        A        Um, in my conversation with Daniel Massengale he told
                 me that he had gone to . . . he was working on July 4th
                 with Rob Tuttle. He had left the job site to go to Walmart
                 to fix his glasses and then after leaving Walmart he went
                 to Rob Tuttle’s house and entered the home where he took
                 the guns, the change, the safe, that included the checkbook
                 and the collector coins inside of that.


        Q        And did he tell you what happened to the long guns after
                 that?


        A        Yes. He said he had taken the long guns to his father
                 Keith Massengale and all he was aware of was that his
                 father had sold them to a gun shop in New Castle
                 somewhere.


                                             *****


        Q        Thank you. And it was Daniel Massengale that told you
                 he had given the guns to his father to sell?


        A        Correct.


        Q        Detective Oster, you indicated that Daniel Massengale,
                 the defendant, made these admissions regarding going into
                 Rob Tuttle’s house, correct?


Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016   Page 7 of 9
               A        Correct.


       (Id. at 146-47, 149.) Because the videotape of Massengale’s confession was

       cumulative of Detective Oster’s testimony, which was admitted without

       objection, “there is no reversible error.” See Sledge, 677 N.E.2d at 86 (holding

       admission of cumulative evidence was not reversible error).


[14]   Even if neither the videotaped confession nor Detective Oster’s testimony about

       Massengale’s admissions had been admitted, there was independent evidence

       from which the jury could have found Massengale guilty. Massengale was gone

       from the worksite for over two hours. His coworkers found that strange

       because from the worksite they could see the Walmart where Massengale was

       going to get his glasses repaired. When Massengale left the worksite, he knew

       Tuttle was going to a family event for a couple of hours. Massengale had the

       keys and garage door opener for Tuttle’s house. Tuttle’s house was not

       damaged during the burglary, which suggests the person who entered had keys.

       The day after the burglary, Massengale’s father sold Tuttle’s rifle and shotgun.

       This substantial independent evidence of Massengale’s guilt precludes finding

       reversible error in the admission of his confession. See, e.g., Williams v. State, 43

       N.E.3d 578, 583 (Ind. 2015) (“Williams’s rights were not prejudiced by the

       erroneous evidentiary admission” where the record contained substantial,

       independent evidence of guilt to support the convictions.”).




       Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016   Page 8 of 9
                                                 Conclusion
[15]   Because Massengale cannot demonstrate he was harmed by the admission of

       his confession, no reversible error occurred. Accordingly, we affirm.


[16]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1508-CR-1254 | June 17, 2016   Page 9 of 9
