                                                                                  FILED
                                                                              Nov 26 2018, 7:13 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Michael P. DeArmitt                                       Curtis T. Hill, Jr.
      Columbus, Indiana                                         Attorney General of Indiana

                                                                Jesse R. Drum
                                                                Laura R. Anderson
                                                                Deputy Attorneys General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Trey A. Smith,                                            November 26, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1023
              v.                                                Appeal from the Bartholomew
                                                                Superior Court
      State of Indiana,                                         The Honorable James D. Worton,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                03D01-1712-F6-6683



      Najam, Judge.


                                        Statement of the Case
[1]   Trey Smith appeals his convictions for theft, as a Level 6 felony, and criminal

      mischief, as a Class B misdemeanor, following a jury trial. Smith presents a

      single issue for our review, namely, whether the trial court abused its discretion
      Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018                           Page 1 of 9
      when it admitted certain testimony over his objections. We also address a

      second issue sua sponte, namely, whether Smith’s convictions violate his right to

      be free from double jeopardy. We affirm in part, reverse in part, and remand

      with instructions.1


                                   Facts and Procedural History
[2]   On December 6, 2017, at approximately 8:20 p.m., Melissa Shafer left her office

      and walked out to the parking lot, where she found a man lying on the ground

      next to her car. Shafer asked the man what he was doing, but he did not reply.

      She asked him a second time, and he responded, “Let me get out of your way.”

      Tr. at 25. Shafer then saw the man pull up a tarp and gather some tools, and he

      ran past her toward the office building and out of sight. Shafer got in her car

      and started the engine. She immediately noticed that the engine was “very

      loud” and she “knew the mechanics had been messed with.” Id. at 27.

      Accordingly, she promptly called 9-1-1 and gave a description of the man she

      had seen next to her car. She saw that the man was wearing “dark colored or

      black pants and a black zip up hoodie with white lettering on the back of it.”

      Id. at 34. A police officer arrived at the scene within three to five minutes and

      found that the catalytic converter on Shafer’s car had been cut and was

      “hanging down and touching the ground.” Id. at 51.




      1
        We held oral argument in this case on November 5, 2018, at Tri-West High School in Lizton. We thank
      counsel for their excellent advocacy and extend our appreciation to the faculty, staff, and students of Tri-
      West High School for their hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018                              Page 2 of 9
[3]   Within three minutes of hearing the suspect’s description over his radio, Officer

      Ron May of the Columbus Police Department, who was patrolling in the area,

      saw a man fitting the suspect’s description “jogging across the road in a

      southeasterly direction” near the intersection of U.S. 31 and Washington Street.

      Id. at 39. Officer May saw the man near a Village Pantry, but he lost sight of

      him. Officer May soon saw the man again walking to the south of a nearby

      building. Officer May then stopped and talked to the man, who identified

      himself as Smith.


[4]   Officer May asked Smith “where he was coming from,” and Smith replied that

      he had just been at Chris Chaplin’s residence at 3220 Washington Street. Id. at

      43. While Officer May was talking to Smith, Officer Tony Kummer, who had

      responded to the scene at Shafer’s office parking lot, drove Shafer to the

      location where Officer May and another officer were talking to Smith. Shafer

      identified Smith as the man she had seen next to her car. Officers arrested

      Smith. At some point, Officer May went to the residence at 3220 Washington

      Street and talked to the owner, who stated that he did not know Smith.


[5]   The State charged Smith with attempted theft, as a Level 6 felony, and criminal

      mischief, as a Class B misdemeanor. At Smith’s ensuing jury trial, Officer May

      testified in relevant part that he had found no one at the residence at 3220

      Washington Street who knew Smith, and Smith timely objected to that

      testimony on hearsay grounds. The trial court permitted the testimony over

      Smith’s objections. The jury found him guilty as charged, and the trial court



      Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018        Page 3 of 9
      entered judgment of conviction and sentenced him accordingly. This appeal

      ensued.


                                      Discussion and Decision
                                             Issue One: Hearsay

[6]   Smith contends that the trial court abused its discretion when it admitted

      Officer’s May’s testimony as evidence over Smith’s hearsay objections. We

      review a trial court’s evidentiary rulings “for an abuse of discretion.” Snow v.

      State, 77 N.E.3d 173, 176 (Ind. 2017). “An abuse of discretion occurs when the

      ruling is clearly against the logic and effect of the facts and circumstances.” Id.


[7]   Hearsay is a statement “not made by the declarant while testifying at the trial or

      hearing” that is “offered in evidence to prove the truth of the matter asserted.”

      Ind. Evidence Rule 801(c). And a “statement” means “a person’s oral

      assertion, written assertion, or nonverbal conduct if the person intended it as an

      assertion.” Evid. R. 801(a). At trial, during the State’s direct examination of

      Officer May, Smith made two hearsay objections during the following colloquy:


              Q: Um, after you talked to [Smith,] later on did you go to that
              house [at 3220 Washington Street] where he said he was[ prior to
              his arrest]?

              A: Yes.

              Q: And did you find anyone in the residence who knew the
              defendant?

              [Defense counsel]: Objection that’s calling for hearsay.


      Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018      Page 4 of 9
              Q: I’m not asking what they said Judge I’m just asking if anyone
              knew of him.

              COURT: Ok, overruled.

              Q: Did you find anybody at the house who knew the defendant?

              A: No.

                                                      ***

              Q: And you did speak with owner of the house is that correct?

              A: I did.

              Q: Um did that person know Trey Smith?

              [Defense counsel]: Objection once again I mean he’s only going
              to know him by answering a question that the officer asked,
              hearsay.

              COURT: Response?

              Q: Again I’m not asking for him to repeat what he said I’m
              asking if, if the individual knew who Trey Smith was.

              COURT: Overruled.

              Q: Did he know who Trey Smith was?

              A: No.


      Tr. at 43-45.


[8]   On appeal, Smith asserts that the trial court abused its discretion when it

      permitted the testimony over his timely objections. He maintains that, because
      Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018      Page 5 of 9
       Officer May could not have learned whether anyone at the residence knew

       Smith without having asked them, Officer May “was merely a conduit for the

       out-of-court statements made by those persons present” at the residence.

       Appellant’s Br. at 12. Thus, he contends that those statements constitute

       inadmissible hearsay. The State responds that the challenged testimony did not

       constitute hearsay because “Officer May did not testify about anyone’s

       statement . . . [or] repeat anyone’s assertion.” Appellee’s Br. at 7. We agree

       with Smith.


[9]    While Officer May did not repeat a declarant’s statement, per se, he testified to

       information that could only have been obtained through statements made by

       the person or persons he had questioned at the residence Smith claimed to have

       visited before his arrest. Thus, those out of court statements were embedded in

       Officer May’s testimony and were the predicate for that testimony, which was

       equivalent to repeating the declarant’s out-of-court statements. And Officer

       May’s testimony was offered to discredit Smith with proof that no one at the

       residence knew Smith; that is, the testimony was offered for the truth of the

       matter asserted. Accordingly, we hold that the challenged testimony was

       hearsay, and the trial court abused its discretion when it overruled Smith’s

       timely objections.


[10]   However, it is well settled that the erroneous admission of hearsay testimony

       does not require reversal unless it prejudices the defendant’s substantial rights.

       Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). To determine whether an

       evidentiary error was prejudicial, we assess the probable impact the evidence

       Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018      Page 6 of 9
       had upon the jury in light of all of the other evidence that was properly

       presented. Id. If we are satisfied the conviction is supported by independent

       evidence of guilt such that there is little likelihood the challenged evidence

       contributed to the verdict, the error is harmless. Id.


[11]   Here, we are convinced that there is little likelihood that Officer May’s

       testimony that no one at 3220 Washington Street knew Smith contributed to the

       verdict. Although the evidence discredited Smith’s statements to officers on the

       scene, at trial Smith did not assert an alibi defense but instead argued only that

       Shafer had misidentified him as the man she had seen in the parking lot next to

       her car. Because Smith did not contend at trial that he had been visiting

       someone at that residence before his arrest, Officer May’s hearsay testimony

       was not integral to Smith’s defense.


[12]   While Officer May’s hearsay testimony prejudiced Smith in that it was

       impeaching, the independent evidence of Smith’s guilt persuades us that the

       evidence of Smith’s untruthfulness did not likely contribute to the guilty verdict.

       In particular, Shafer testified that, when the officers drove her to the location of

       Smith’s arrest shortly after the incident, she was “100%” certain that he was the

       man she had seen in the parking lot. Tr. at 30. While Smith points out that it

       was dark at the time of the offense and Shafer has a vision impairment in one

       eye, the State presented evidence that the parking lot and exterior of the office

       building were well lit at the time of the offenses, and Shafer testified that she

       wears glasses and has “no problem seeing anything[.]” Id. at 34. In addition,

       Officer May found Smith, who fit the description given by Shafer, within three

       Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018       Page 7 of 9
       minutes of hearing the suspect’s description over his radio and at a location

       near Shafer’s office building. Thus, we hold that the trial court’s admission of

       Officer May’s hearsay testimony was harmless error.


                                        Issue Two: Double Jeopardy

[13]   We next address, sua sponte, whether Smith’s convictions violate his right to be

       free from double jeopardy under Indiana law. Article 1, Section 14 of the

       Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

       for the same offense.” Our Supreme Court has interpreted that clause to

       prohibit multiple convictions based on the same “actual evidence used to

       convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Our Supreme

       Court has also “long adhered to a series of rules of statutory construction and

       common law that are often described as double jeopardy[] but are not governed

       by the constitutional test set forth in Richardson.” Guyton v. State, 771 N.E.2d

       1141, 1143 (Ind. 2002) (quotation marks omitted). One such rule prohibits

       “[c]onviction and punishment for a crime which consists of the very same act as

       another crime for which the defendant has been convicted and punished.” Id.

       In Taylor v. State, we acknowledged that the very same act test is different than

       the actual evidence test, and we held that the very same act test applies when

       the defendant’s “behavior” underlying one offense is “coextensive with the

       behavior . . . necessary to establish an element of” another offense. 101 N.E.3d

       865, 972 (Ind. Ct. App. 2018).


[14]   Here, Smith’s behavior underlying the attempted theft is coextensive with the

       behavior necessary to establish an element of criminal mischief. See id. In
       Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018     Page 8 of 9
       particular, the only evidence showing that Smith took a substantial step toward

       theft of the catalytic converter from Shafer’s car was his partial removal of it.

       See Ind. Code § 35-43-4-2.5(b) (2017). And that same behavior was also the

       only evidence that Smith had damaged or defaced Shafer’s car, which was the

       basis for his criminal mischief conviction. See I.C. § 35-43-1-2(a). Thus, we

       reverse Smith’s criminal mischief conviction. We remand with instructions that

       the trial court vacate Smith’s criminal mischief conviction.


[15]   Affirmed in part, reversed in part, and remanded with instructions.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1023 | November 26, 2018      Page 9 of 9
