MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Mar 28 2018, 6:45 am
regarded as precedent or cited before any                           CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Carl E. Mathis, Jr.,                                     March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         47A01-1708-CR-1830
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable Michael A.
Appellee-Plaintiff                                       Robbins, Judge
                                                         Trial Court Cause No.
                                                         47D01-1612-CM-1521



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018   Page 1 of 7
[1]   Carl E. Mathis, Jr., appeals his Class A misdemeanor theft conviction. On

      appeal, Mathis argues that the trial court abused its discretion in admitting

      certain testimony.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On Thanksgiving Day, November 24, 2016, Tina Roll was working as a cashier

      at a Bedford gas station. At around 4:00 p.m., Roll set her cell phone down on

      the counter next to the cash register. About twenty minutes later, Roll looked

      for the phone, but it was not where she had left it and she could not find it

      anywhere in the store.


[4]   The next day, Roll met with Doug Brinkman, the owner of the gas station, to

      review security camera footage from the previous day. The footage showed a

      man later identified as Mathis enter the store and speak briefly with Roll before

      exiting the store. Mathis then came back inside and used a credit card to

      purchase a fountain drink and a pack of cigarettes. Mathis signed the credit

      card receipt and slid it across the counter to Roll, and while Roll’s head was

      turned, he grabbed her cell phone from the counter and pocketed it before

      leaving the store.


[5]   A week or two later, Mathis returned to the gas station while Roll was working.

      Mathis was wearing the same Carhart jacket he had been wearing on the day

      Roll’s phone was stolen, and Roll recognized him from the security footage.


      Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018   Page 2 of 7
      Roll confronted Mathis, saying “you’re the guy that took my phone aren’t

      you?”. Transcript Vol. 2 at 158. Mathis responded, “if I did it’s at my house.”

      Id. at 159. Roll told Mathis “well [you] best go get it.” Id. Mathis left the

      store, but he never returned with Roll’s cell phone.


[6]   As a result of these events, Mathis was charged with Class A misdemeanor

      theft. The case proceeded to a jury trial on July 13, 2017, at which Brinkman,

      Roll, and the investigating officer all testified for the State. Through

      Brinkman’s testimony, the State admitted into evidence the credit card receipt

      Mathis signed on the day of the theft. The receipt was not itemized; instead, it

      listed a purchase of $16.63 worth of “gen auto merch.” Exhibit Volume, State’s

      Ex. 1. The credit card transaction took place at 4:21 p.m. The time stamp on

      the security camera showed the thief taking Roll’s phone at 4:12 p.m., but

      Brinkman testified that security cameras are not synced with the cash register or

      credit card machine, and that the security camera “lose[s] time” because it is

      not connected to the internet. Transcript Vol. 2 at 138. Brinkman testified that

      he had seen on the video that the thief had entered the store, spoken to Roll,

      then exited and reentered the store, which led Brinkman to believe that the thief

      had purchased gas in addition to the cigarettes and fountain drink shown on the

      video. Brinkman testified that the gas station’s credit card machine and cash

      register function separately, and that he had looked back through the cash

      register’s electronic records for the time period in question and found a

      transaction for a fountain drink, a pack of cigarettes, and ten dollars’ worth of

      gas. The transaction total was $16.63—i.e., the same amount reflected on the


      Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018   Page 3 of 7
      credit card receipt Mathis signed. Mathis objected on the basis that he had not

      been provided with information concerning the cash register records prior to

      trial. The trial court overruled Mathis’s objection, and Brinkman’s testimony

      continued.


[7]   During a subsequent recess, Mathis renewed his objection to Brinkman’s

      testimony concerning the register transaction records based on the State’s

      alleged failure to provide the information in discovery. The State responded

      that there were no physical records of the register transactions available to the

      State or being offered into evidence, and that Brinkman had been timely

      disclosed as a witness. Mathis then raised a new objection to Brinkman’s

      testimony regarding the register transaction records, arguing that it was hearsay

      not falling within the business records exception. Mathis’s objections were

      overruled, and the trial continued. During her testimony, Roll identified

      Mathis as the individual who stole her phone and she testified concerning her

      confrontation with Mathis when he returned to the gas station a week or two

      later.


[8]   At the conclusion of the evidence, the jury found Mathis guilty as charged.

      Mathis was sentenced to ninety days in jail, with thirty days suspended to

      probation. Mathis now appeals.


                                          Discussion & Decision


[9]   On appeal, Mathis argues that the trial court abused its discretion in admitting

      Brinkman’s testimony concerning the cash register transaction records. Trial

      Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018   Page 4 of 7
       courts have broad discretion in ruling on the admissibility of evidence, and such

       rulings will be reversed only upon a showing of an abuse of that discretion.

       Palilonis v. State, 970 N.E.2d 713, 725 (Ind. Ct. App. 2012), trans. denied. An

       abuse of discretion occurs when the trial court’s ruling is clearly against the

       logic and effect of the facts and circumstances before it. Id. In reviewing a trial

       court’s evidentiary rulings, we will not reweigh the evidence, and we will

       consider conflicting evidence most favorable to the trial court’s ruling. Id. We

       also consider uncontroverted evidence in the defendant’s favor. Joseph v. State,

       975 N.E.2d 420, 424 (Ind. Ct. App. 2012).


[10]   Mathis first argues that the testimony was inadmissible because the State failed

       to inform him during pretrial discovery that Brinkman would be testifying to

       the contents of the register transaction records. It is undisputed that the State

       did not offer any undisclosed documents into evidence and that all of its

       witnesses, including Brinkman, were identified before the deadline established

       by the trial court. Mathis seems to suggest that the State was required to

       provide summaries of its lay witnesses’ expected testimony, but he has cited no

       authority to support such a conclusion.1 See Vance v. State, 640 N.E.2d 51, 58-

       59 (Ind. 1994) (rejecting defendant’s argument that the State was required to

       inform him of the substance of a lay witness’s expected testimony prior to trial).

       Mathis has not established that the State committed a discovery violation with




       1
         Mathis’s reliance on Beauchamp v. State, 788 N.E.2d 881, 892-94 (Ind. Ct. App. 2003), is misplaced because
       it addressed the disclosure of an expert’s opinion and the duty to supplement discovery responses.

       Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018             Page 5 of 7
       respect to Brinkman’s testimony, and the trial court did not abuse its discretion

       in overruling Mathis’s objection on that basis.


[11]   Mathis next argues that Brinkman’s testimony concerning the register

       transaction records was inadmissible hearsay, but he has not preserved this

       issue for appeal. The failure to make a contemporaneous objection to evidence

       when it is offered waives a claim of error in its admission on appeal. See Bean v.

       State, 913 N.E.2d 243, 253 (Ind. Ct. App. 2009) (finding objection raised shortly

       after the admission of the challenged testimony to be untimely and therefore

       waived), trans. denied. Because Mathis did not raise his hearsay objection until

       well after the admission of the complained-of testimony, this argument is not

       available to him on appeal.


[12]   Waiver notwithstanding, and assuming arguendo that Brinkman’s testimony was

       inadmissible hearsay, the error was harmless. “An error is harmless when the

       probable impact of the erroneously admitted or excluded evidence on the jury,

       in light of all the evidence presented, is sufficiently minor so as not to affect the

       defendant’s substantial rights.” Troutner v. State, 951 N.E.2d 603, 612 (Ind. Ct.

       App. 2011), trans. denied. Mathis’s defense in this case was misidentification—

       that is, he claimed that he was not the man shown in the surveillance video

       stealing Roll’s phone. The State presented significant evidence to rebut this

       defense. In addition to the surveillance video itself, the State presented the

       credit card receipt signed by “Mathis/Carl”, which was time-stamped within

       minutes of the surveillance footage, along with Brinkman’s testimony

       explaining that the minor time discrepancy could be attributed to the fact that

       Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018   Page 6 of 7
       the credit card machine and surveillance system do not sync and the

       surveillance system “lose[s] time” because it is not connected to the internet.

       Exhibit Volume, State’s Ex. 1; Transcript Vol. 2 at 138. Additionally, Roll

       testified that she remembered waiting on the man shown stealing her phone on

       the security footage on Thanksgiving Day and that she recognized him when he

       returned to the gas station a week or two later. When Roll accused the man of

       stealing her phone, he responded “well if I did it’s at my house.” Transcript Vol.

       2 at 161. Roll identified Mathis as the man shown on the surveillance video

       taking her phone and the man she confronted a week or two later. In light of

       the video evidence and Roll’s eyewitness testimony, we are satisfied that the

       impact of Brinkman’s testimony concerning the register transaction records was

       relatively minor and did not affect Mathis’s substantial rights.


[13]   Judgment affirmed.


[14]   May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A01-1708-CR-1830 | March 28, 2018   Page 7 of 7
