MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Sep 19 2017, 8:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa Diane Manning                                       Curtis T. Hill, Jr.
Manning Law Office                                       Attorney General of Indiana
Danville, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Steven Thompson,                                  September 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1704-CR-877
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie LeMay-
Appellee-Plaintiff                                       Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1603-F3-18



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017         Page 1 of 7
[1]   Joshua Thompson appeals his convictions for Level 3 Felony Robbery, 1 Level 5

      Felony Carrying a Handgun With a Prior Felony,2 Class A Misdemeanor

      Resisting Law Enforcement,3 and Class A Misdemeanor Theft,4 as well as the

      finding that he is an Habitual Offender.5 Thompson argues that the trial court

      erroneously admitted testimony regarding an unrecorded statement he made to

      a police officer while in custody. Finding no reversible error, we affirm.


                                                     Facts
[2]   On March 18, 2016, Arie Bottorff had just ended a shift at a Discount Tire store

      in Avon when he agreed to help his manager load a bag of mulch into the

      store’s dumpster. Bottorff drove his vehicle up to the dumpster and left the car

      running as the men lifted the bag of mulch.


[3]   As Bottorff and his manager were lifting the mulch, Thompson approached and

      entered Bottorff’s vehicle. Bottorff saw it happen and ran toward his vehicle,

      but Thompson displayed a firearm and told Bottorff, “don’t do it[.]” Tr. Vol. I

      p. 64. There was a woman with Thompson who apologized to Bottorff; she

      then entered the vehicle and Thompson drove it away, squealing the tires.




      1
          Ind. Code § 35-42-5-1.
      2
          Ind. Code § 35-47-2-1.
      3
          Ind. Code § 35-44.1-3-1.
      4
          Ind. Code § 35-43-4-2.
      5
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017   Page 2 of 7
      Bottorff’s manager called 911 and the manager conveyed Bottorff’s description

      of the firearm as a silver semiautomatic with a black handle.


[4]   A nearby police officer heard the tires squeal and then received a dispatch

      regarding the armed robbery and carjacking. He followed Thompson’s known

      direction of travel and eventually observed a vehicle matching the description in

      the dispatch. Thompson was driving the vehicle at speeds exceeding 100 miles

      per hour and was operating it in a reckless manner. The officer activated his

      lights and sirens but Thompson did not pull over or slow down. Instead, he

      continued to drive recklessly, running other vehicles off the roadway and nearly

      side-swiping a school bus. Eventually, Thompson disregarded a traffic light

      and collided with another vehicle. After the collision, officers attempted to

      subdue and arrest Thompson. He resisted, kicking and flailing, but was

      ultimately taken into custody. Inside the vehicle, officers observed a silver and

      black handgun underneath the front passenger’s seat.


[5]   Later that day, police officers did a full search of the vehicle. They found a bag

      belonging to Thompson’s female companion, which contained the plastic retail

      case for the handgun. Officers also found a debit card belonging to Ranulfo

      Rodrigues-Silva next to the driver’s seat. Rodrigues-Silva worked across the

      street from the Discount Tire Shop. Around the same time as the auto theft,

      Rodrigues-Silva had reported to police that a man and a woman had entered his

      vehicle in the parking lot. When Rodrigues-Silva approached his vehicle, the

      people claimed the car door was already opened and then they walked away.

      Everything in the glovebox, including his debit card, had been taken.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017   Page 3 of 7
[6]   The next day, Avon Police Detective Jeffrey Ritorto went to the Hendricks

      County Jail to take a statement from Thompson. Detective Ritorto understood

      that the Hendricks County Sheriff’s Department had a video recording system

      in the room where the interview was conducted, which was why he selected

      that particular room for the interview. At some point, Detective Ritorto learned

      that the interview had not been recorded because the “video system had a virus

      . . . [and] I believe they ended up buying a new system after that.” Tr. Vol. I p.

      100.


[7]   During the statement, Detective Ritorto advised Thompson of his rights and

      Thompson waived his right to an attorney and agreed to speak with the

      detective. During the statement, Thompson admitted to the officer that the

      handgun was in his hand when he entered Bottorff’s vehicle. He claimed that

      the weapon belonged to his companion’s brother-in-law. He also offered

      incriminating evidence that implicated a third party in an unrelated crime.


[8]   On March 21, 2016, the State charged Thompson with multiple offenses, some

      of which it later dismissed. Thompson’s jury trial took place on March 20,

      2017. At trial, he objected to Detective Ritorto’s testimony regarding

      Thompson’s unrecorded statement; the trial court admitted the evidence over

      his objection. The jury found Thompson guilty as charged and found that he is

      an habitual offender. At an April 13, 2017, sentencing hearing, the trial court

      sentenced Thompson as follows: ten years for robbery, with a ten-year

      enhancement for being an habitual offender, to be served consecutively to a

      three-year sentence for carrying a handgun with a prior conviction and a one-

      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017   Page 4 of 7
       year sentence for resisting law enforcement. Thompson also received a

       concurrent 180-day sentence for theft. Thompson now appeals.


                                    Discussion and Decision
[9]    Thompson’s sole argument on appeal is that the trial court erred by admitting

       Detective Ritorto’s testimony regarding Thompson’s unrecorded statement.

       The admission of evidence is within the trial court’s sound discretion, and we

       will reverse only if the trial court’s decision is clearly against the logic and effect

       of the facts and circumstances before it, or if the court has misinterpreted the

       law. Hastings v. State, 58 N.E.3d 919, 922 (Ind. Ct. App. 2016).


[10]   As a general rule, in a felony criminal prosecution, “evidence of a statement

       made by a person during a Custodial Interrogation in a Place of Detention shall

       not be admitted against the person unless an Electronic Recording of the

       statement was made, preserved, and is available at trial . . . .” Ind. Evidence

       Rule 617(a). There are multiple exceptions to this rule. Relevant to this case is

       an exception rendering such evidence admissible if the State provides “clear and

       convincing proof” that “[t]he law enforcement officers conducting the Custodial

       Interrogation in good faith failed to make an Electronic Recording because the

       officers inadvertently failed to operate the recording equipment properly, or

       without the knowledge of any of said officers the recording equipment

       malfunctioned or stopped operating . . . .” Evid. R. 617(a)(3).


[11]   Thompson argues that Detective Ritorto’s statement that he was advised that

       the video recording system had a virus and did not record does not meet the

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017   Page 5 of 7
       State’s burden of proving that the recording equipment malfunctioned.

       According to Thompson, the detective’s “vague second-hand information”

       regarding a virus does not constitute the requisite clear and convincing proof.

       Appellant’s Br. p. 12. Thompson points out that


               [t]he State failed to show any evidence whether the video
               equipment was able to be turned on that date and was not,
               whether Detective Ritorto was aware of this malfunction prior to
               the interview, when he discovered the malfunction, whether any
               portion of the video was recorded, if a recording of Thompson’s
               statement existed that was erased or damage[d] at a later date, or
               any other evidence to show that the nature of the equipment
               malfunction and the effect on Thompson’s interview.


       Id. at 11-12.


[12]   Even if we accept solely for argument’s sake that the trial court should not have

       permitted Detective Ritorto to testify regarding the substance of Thompson’s

       statement, it is well accepted that the erroneous admission of evidence is subject

       to harmless error analysis. E.g., Turner v. State, 953 N.E.2d 1039, 1059 (Ind.

       2011) (holding that “[t]he improper admission is harmless error if the

       conviction is supported by substantial independent evidence of guilt satisfying

       the reviewing court there is no substantial likelihood the challenged evidence

       contributed to the conviction”). Furthermore, any error in the admission of

       evidence that is merely cumulative of evidence properly admitted is harmless.

       King v. State, 985 N.E.2d 755, 759 n.4 (Ind. Ct. App. 2013).




       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017   Page 6 of 7
[13]   Here, Bottorff identified Thompson in court as the person who displayed a gun

       and stole his vehicle. A few minutes after the report of the armed robbery,

       Thompson was observed by police operating Bottorff’s vehicle. Thompson then

       proceeded to lead police on a high-speed chase and, after the chase ended in a

       collision, Thompson resisted arrest. In the vehicle, officers found a gun

       matching Bottorff’s description and a debit card that had been stolen from

       another vehicle near the location of the armed robbery. This evidence

       overwhelmingly established that Thompson was the person who robbed

       Bottorff. Thompson’s admission to Detective Ritorto that he had the gun when

       entering Bottorff’s vehicle was merely cumulative of Bottorff’s testimony.

       Consequently, any error in the admission of the detective’s testimony was

       harmless, and we decline to reverse on this basis.


[14]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-877 | September 19, 2017   Page 7 of 7
