FOR PUBLICATION

                                                 May 21 2014, 6:50 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JOSEPH E. MORRISON                           GREGORY F. ZOELLER
Roselawn, Indiana                            Attorney General of Indiana

                                             CYNTHIA L. PLOUGHE
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JACOB HERRON,                                )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )        No. 56A03-1306-CR-210
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE NEWTON SUPERIOR COURT
                        The Honorable Daniel J. Molter, Judge
                            Cause No. 56D01-1205-FB-3


                                    May 21, 2014

                             OPINION - FOR PUBLICATION

VAIDIK, Chief Judge
                                     Case Summary

       Trials should primarily proceed on the basis of in-court testimony, not statements

or affidavits obtained before trial. Yet at Jacob Herron’s trial for burglary and receiving

stolen property, the State called a witness solely to impeach her with a pretrial statement,

and did so by reciting segments of that statement. Because this statement was admitted

solely for impeachment, the jury could not use it as substantive evidence. But given the

lack of evidence against Herron, we conclude that the jury did rely on this evidence to

convict him. For this reason, we reverse Herron’s convictions.

                             Facts and Procedural History

       One evening in March 2012, Teresa Beever went to Earl’s restaurant in Brook,

Indiana, for dinner. When Beever returned home, she noticed that a window had been

broken and pushed in, so she called police. After authorities allowed Beever to inspect

her home, she reported jewelry and other valuables missing.

       During their investigation, authorities spoke to Herron’s girlfriend, Kelly Tebo,

who gave a statement implicating Herron. Tebo said that she was waitressing at Earl’s on

the night of the break-in. While at work, Tebo said she sent Herron a text message

implying that the Beever home was unoccupied because Teresa Beever was eating at

Earl’s and her husband Reid was out of town. Tebo also said that when she saw Herron

after her shift, he was carrying two bags, one of which he said contained things stolen

from the Beever home. Herron was arrested and charged with Class B felony burglary

and Class D felony receiving stolen property.




                                             2
        At Herron’s jury trial, the State offered three glove prints found at the Beever

home into evidence.      Sergeant Duane Datzman, the crime-scene technician who

processed the prints, testified that the prints appeared to have a “series of letters,” an

“‘M’ and possibly ‘e,’ ‘c.’” Tr. p. 168. From this, Sergeant Datzman concluded that the

gloves that left the prints were “the brand Mechanic or Mechanix.” Id. When asked how

widely Mechanix-brand gloves are sold, Sergeant Datzman said he did not know. Id. at

202. The State then admitted four pairs and one single black Mechanix-brand glove

recovered from Herron’s house. Id. at 211-12. The town marshal, Charles Flahive,

testified that the single glove taken from Herron’s house was “capable” of leaving the

crime-scene prints. Id. at 214. When asked how widely Mechanix-brand gloves are sold,

Marshal Flahive also said he did not know. Id. at 215-16.

        The State then called Tebo as a witness. When Tebo took the stand, she confirmed

that she was waitressing at Earl’s on the night of the break-in. She also confirmed that

she texted Herron to make “small talk” during her shift, but she said that she did not say

anything about the Beevers. Id. at 227-28. She explained that after her shift ended, she

and Herron traveled out of town for a bridal shower, and Herron brought luggage that she

recognized as his. Id. at 228-29. Tebo said that Herron said nothing about stolen items

from the Beever’s. Id. at 229.

        The State sought to impeach Tebo with her pretrial statement over Herron’s

objection. Although counsel for the State admitted that he could not “sit here and read

line[-]for[-]line what her [pretrial] statement says,” id. at 239, he proceeded to do just

that:


                                            3
THE STATE:   Ms. Tebo, before we took a break I was asking
             you a question regarding . . . your written
             statement . . . . [I] believe I asked you at that
             point [if] the [written] statement actually said
             that [] Herron had texted me asking if the
             Beevers were eating dinner. Do you remember
             me asking that question?

TEBO:        I do remember.

THE STATE:   And your written statement in fact does say
             that, does it not?

TEBO:        It does say that.

THE STATE:   And that’s not the way you testified today, is it?

TEBO:        That is not. That isn’t accurate.

THE STATE:   The same written statement goes on to say that
             “I let [Herron] know though a text message that
             Teresa Beever was at [the restaurant] with her
             friend and that Reid Beever was out of town.”
             There’s no disagreement that your written
             statement [] said that, is that correct?

TEBO:        The statement I wrote saying that Teresa Beever
             . . . that is incorrect.

THE STATE:   I’m just trying to make sure everything is clear.
             The portion of the statement that I just read to
             you—

TEBO:        Could you repeat that?

THE STATE:   I will. We don’t have a dispute, do we, that the
             statement, the written statement that you gave . .
             . says, “I let [Herron] know though a text
             message that Teresa Beever was at [the
             restaurant] with her friend and that Reid Beever
             was out of town.” The written statement that
             you hold in your hand says that, does it not?

TEBO:        It does say that.

                       4
THE STATE:   And that’s not what you testified to today, is it?

TEBO:        Correct.

THE STATE:   I think you also testified today that you did not
             text [Herron] and tell him that Teresa Beever
             was leaving [the restaurant]?

TEBO:        That is correct.

THE STATE:   But in your written statement . . . you in fact
             said, “I text[ed] [Herron] and told him that
             Teresa was leaving [the restaurant].”

TEBO:        I did write that. And that is incorrect as well.

THE STATE:   As I recall, your earlier testimony after you had
             gotten off of work that evening, you went back
             to your residence that you share with [Herron] .
             . . and the two of you then got in [a vehicle] . . .
             and then going up to [sic] Gary?

TEBO:        We did.

THE STATE:   And that [Herron] had thrown a couple bags
             into the vehicle prior to you leaving?

TEBO:        Right. He loaded the vehicle.

THE STATE:   Okay. Today you testified that [Herron] – I’m
             sorry, that you didn’t know what was in either
             of those bags and that [Herron] had not told you
             what was in those bags?

TEBO:        I don’t remember testifying to that exactly. If I
             recall, you asked if [Herron] said what was in
             the bags.

THE STATE:   Okay and you said no?

TEBO:        And I said no. I assumed what was in there was
             our clothes.


                        5
       THE STATE:                  On your written statement though . . . you
                                   indicated that he told me one bag was change
                                   [sic] and one bag was stolen stuff from the
                                   Beever’s home.

       TEBO:                       I did write that.

Id. at 253-54. When asked if she ever discussed the burglary with anyone other than the

authorities, Tebo said no. Id. at 255. Later, however, the State called Teresa Beever as a

witness. Over Herron’s objection, Beever testified that she spoke to Tebo before the trial,

and Tebo admitted texting Herron on the night of the burglary when Beever arrived at

Earl’s and when she left. Id. at 303. Beever also testified that “[Tebo] told me that she

picked [Herron] up at their home and he got in the car and threw a couple of bags in the

backseat and stated that the bags contained coins and stuff from our house.” Id.

       The jury convicted Herron of Class B felony burglary and Class D receiving stolen

property. Herron was sentenced to fifteen years for burglary and eighteen months for

receiving stolen property, to be served concurrently. Herron now appeals.

                                Discussion and Decision

       Herron contends that the trial court erred in allowing the State to impeach Tebo.

His argument is three-fold: the State put Tebo on the stand solely to impeach her, which

is impermissible; the State’s method of impeachment was improper; and the jury used

impeachment evidence as substantive evidence in convicting him, which is also

impermissible.

       We review a trial court’s decision regarding the admission of evidence for an

abuse of discretion. Gray v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013) (citation

omitted). An abuse of discretion occurs when the trial court’s ruling is clearly against the
                                          6
logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we

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

       The State certainly had the right to impeach Tebo, its own witness. See Ind.

Evidence Rule 607. But the State may not put a witness on the stand for the sole purpose

of introducing otherwise inadmissible evidence cloaked as impeachment. Appleton v.

State, 740 N.E.2d 122, 124 (Ind. 2001); see also Griffin v. State, 754 N.E.2d 899, 904

(Ind. 2001) (“[T]he rule allowing a party to impeach his own witness may not be used as

an artifice by which inadmissible matter may be revealed to the jury through the device

of offering a witness whose testimony is or should be known to be adverse in order,

under the name of impeachment, to get before the jury a favorable extrajudicial statement

previously made by the prior witness.”), aff’d on reh’g, 763 N.E.2d 450 (Ind. 2002),

(citation omitted). We must therefore determine whether calling Tebo as a witness

served any legitimate non-impeachment purpose.

       Our Courts have declined to find that a witness was called for the sole purpose of

impeachment where the witness observed the underlying crime and provided, on the

stand, other relevant testimony. See Appleton, 740 N.E.2d at 125 (impeached witness

owned the home where the events at issue began and observed the attack on the victims);

Edmond v. State, 790 N.E.2d 141, 146 (Ind. Ct. App. 2003) (witness was present at the

scene of the crime and gave a first-hand account of the event), trans. denied; Kendall v.

State, 790 N.E.2d 122, 127 (Ind. Ct. App. 2003) (impeached witness saw shooting that

gave rise to trial for attempted murder), trans. denied. But Tebo did not witness the

burglary of the Beever home. And we are not persuaded by the State’s argument that


                                             7
Tebo’s testimony was needed to corroborate Marshal Flahive’s testimony that he spoke to

her and that the interview provided the information necessary for a search warrant.

Appellee’s Br. p. 7. This is course-of-investigation evidence, which we have recognized

as generally irrelevant in that it does not make it more or less probable that the defendant

committed the crime alleged. Kindred v. State, 973 N.E.2d 1245, 1255 (Ind. Ct. App.

2012), trans. denied.

        Put simply, the record belies the State’s argument that Tebo’s testimony served a

legitimate non-impeachment purpose. The State knew before trial that Tebo’s testimony

would be inconsistent with her pretrial statement.1 Tebo’s direct examination spans

thirty-five pages, thirty of which pertain to her pretrial statement, and the remaining

pages do not contain substantive testimony. These facts, when considered in light of the

minimal evidence tying Herron to the burglary, lead us to conclude that the State’s only

purpose in calling Tebo as a witness was, in fact, impeachment. See Griffin, 754 N.E.2d

at 904-05 (defense witness called solely for impeachment where he did not witness any of

the relevant events, did not provide any substantive testimony, and the defense’s actions

indicated a singular intent to impeach).

        Herron also argues that the State’s method of impeachment was improper. We

agree. Tebo readily admitted that her testimony was inconsistent with her pretrial

statement. Despite admitting herself a liar, the State drove the point home by reading,

line-by-line, from her pretrial statement.               Supra p. 4-6.       This was improper and

        1
           See Tr. p. 233 (Tebo: “I told the [prosecutor] that when I came to court, that I was going to be
honest and tell the truth under oath. . . . [I] told him what I was going to say.”), 235 (Defense counsel:
“[T]he State . . . knew after talking to [Tebo] on Friday this is what she was going to say. They called her
to the stand today knowing what she was going to say . . . that’s why [the State] spoke about the statement
in opening to get this inadmissible hearsay in.”).
                                                     8
unnecessary. See Appleton, 740 N.E.2d at 126 (“Once [the witness] admitted that he

made a police statement prior to trial that was inconsistent with his testimony . . .

impeachment was complete.         [The witness] had admitted himself a liar.          Reciting

segments of [the] pretrial statement was thus superfluous. The only purpose such

recitation could have would be to get the details of [the witness’s] former statement

before the jury as substantive evidence . . . .”) (citation omitted); see also Martin v. State,

779 N.E.2d 1235, 1245 (Ind. Ct. App. 2002) (“[T]he State basically led [the witness]

through his prior statement and in that way, used the statement as substantive evidence

rather than impeachment evidence. We agree [] that this was improper. The trial court

should not have allowed the State to conduct its direct examination [] in this way.”),

trans. denied.

       But that does not end our inquiry; we are to disregard errors in the admission of

evidence as harmless unless they affect a party’s substantial rights. VanPatten v. State,

986 N.E.2d 255, 267 (Ind. 2013) (citations omitted). “In determining whether error in the

introduction of evidence affected the defendant’s substantial rights, this Court must

assess the probable impact of the evidence upon the jury.” Id. (citation omitted). When

a conviction is supported by substantial evidence of guilt sufficient to satisfy this Court

that there is no substantial likelihood that the questioned evidence contributed to the

conviction, the error is harmless. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App.

2004) (citation omitted).

       To convict Herron of Class B felony burglary, the State had to prove that he broke

and entered the Beever home with the intent to commit a felony inside, see Ind. Code §


                                              9
35-43-2-1, and to convict him of receiving stolen property, the State had to prove that he

knowingly or intentionally received, retained, or disposed of the Beever’s stolen property,

see Ind. Code § 35-43-4-2(b). The State offered the following substantive evidence at

Herron’s trial:

            Glove prints from the Beever home that appeared to have a “series
           of letters,” an “‘M’ and possibly ‘e,’ ‘c,’” leading the crime-scene
           technician to conclude that the prints were from Mechanic or
           Mechanix-brand gloves;
            Four pairs and one single black Mechanix-brand glove recovered
           from Herron’s house;
            Marshal Flahive’s testimony that a glove taken from Herron’s house
           was “capable” of leaving the crime-scene prints;
            Tebo’s testimony that she worked the night of the break-in and
           texted Herron during her shift but said nothing about the Beevers; and
            Tebo’s testimony that after her shift ended, she and Herron traveled
           out of town for a bridal shower, and Herron brought luggage that she
           recognized as his.

Critically, the jury could not use Tebo’s pretrial statement as substantive evidence against

Herron because it was admitted solely for impeachment. See Lawrence v. State, 959

N.E.2d 385, 389 (Ind. Ct. App. 2012) (evidence admitted only for impeachment may not

be used as substantive evidence) (citation omitted), trans. denied. But when a witness is

impeached as Tebo was—by reciting portions of the witness’s pretrial statement—there

is a very real threat that the impeachment evidence will be used as substantive evidence.

See Appleton, 740 N.E.2d at 126 (“Reciting segments of [the] pretrial statement was []

superfluous. The only purpose such recitation could have would be to get the details of

[the] former statement before the jury as substantive evidence . . . .”); Martin, 779 N.E.2d

at 1245 (“[T]he State basically led [the witness] through his prior statement and in that

way, used the statement as substantive evidence rather than impeachment evidence.”).

                                            10
That danger was certainly present in this case, where the evidence against Herron was

insubstantial and wholly circumstantial. And that danger only increased when—after it

had already impeached Tebo with her pretrial statement—the State used Teresa Beever to

impeach Tebo further about statements she made before Herron’s trial. Supra p. 6.

Having reviewed the record, including the evidence set forth above, we must conclude

that the jury used impeachment evidence as substantive evidence in this case.2 Because

the questioned evidence contributed to Herron’s convictions, his convictions must be

reversed.3 See Ware, 816 N.E.2d at 1175.

        This conclusion leads us to the question of whether the State may retry Herron.

Where the evidence actually presented at trial is insufficient as a matter of law to sustain

a conviction, the defendant may not be retried on those charges. Rhone v. State, 825

N.E.2d 1277, 1285 (Ind. Ct. App. 2005) (citing Carpenter v. State, 786 N.E.2d 696, 705

(Ind. 2003)), trans. denied.          However, “if all the evidence, even that erroneously

admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial

on the same charge.” Id. (emphasis added) (citations omitted).                     The United States

Supreme Court has explained why this is so:

        A reversal based solely on evidentiary insufficiency has fundamentally
        different implications, for double jeopardy purposes, than a reversal based
        on such ordinary “trial errors” as the “incorrect receipt or rejection of
        evidence.” While the former is in effect a finding “that the government has


        2
          We acknowledge that the trial court instructed the jury that Tebo’s pretrial statement was not to
be used as substantive evidence, see Tr. p. 268, and a jury is presumed to follow a trial court’s
instructions. Morgan v. State, 903 N.E.2d 1010, 1019 (Ind. Ct. App. 2009), trans. denied. But after
reviewing the record and in light of the dearth of evidence against Herron, we must conclude that the
jurors did not follow the court’s instruction.

        Because we reach this conclusion, we do not address Herron’s claims regarding certain
        3

comments made by the trial court.
                                                    11
      failed to prove its case” against the defendant, the latter “implies nothing
      with respect to the guilt or innocence of the defendant,” but is simply “a
      determination that [he] has been convicted through a judicial process which
      is defective in some fundamental respect.”

Lockhart v. Nelson, 488 U.S. 33, 40 (1988) (quoting Burks v. United States, 437 U.S. 1,

14-16 (1978)). Put differently, had the trial court sustained Herron’s impeachment

objections, the State would have been put on notice that it needed to present additional

evidence to support the charges against Herron.

      Because there was evidence—albeit inadmissible—to establish that Herron

committed the charged crimes, the State may retry him.

      Reversed.

MAY, J., concurs.

RILEY, J., dissents with separate opinion.




                                             12
                              IN THE
                    COURT OF APPEALS OF INDIANA

JACOB HERRON,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 56A03-1306-CR-210
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


RILEY, Judge, dissenting.

       I respectfully concur in part and dissent in part. While I agree with the majority

that the State’s procedure for impeaching the witness might have been improper, the error

was harmless. Though no direct evidence was presented at trial, I find that there was

enough circumstantial evidence to prove Herron committed the offenses.

       It is well established that “circumstantial evidence will be deemed sufficient if

inferences may reasonably be drawn that enable the trier of fact to find the defendant

guilty beyond a reasonable doubt.” Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001).

Tebo testified at trial that she worked at Earl’s on the night of the burglary and that she

texted Herron while she was on duty. Tebo also testified that after getting off from work

that night, she met with Herron at her residence, and he put two bags in the car. When


                                            13
Tebo met with Marshal Flahive on May 22, 2012, she implicated Herron to the burglary

and thereafter a search warrant was issued. During their search of Herron’s residence, the

officers found several gloves and one of the gloves matched the photographic imprint

taken at the Beever’s residence. Lastly, Marshal Flahive testified at trial that one of the

gloves found at Herron’s residence had letters on the back that matched the glove imprint

found on the opened patio door at Beever’s residence.

       As such, it is only proper to conclude that the jury might have reasonably inferred

from the evidence presented at trial that: Tebo texted Herron that night stating Beever

was at the restaurant having dinner, hence her house was unoccupied; the gloves found at

Herron’s residence were used to break and enter into the Beever’s residence; and that two

bags Herron put in his car that night, might have contained stolen items from Beever’s

residence. Thus, I conclude that sufficient evidence of probative value exists from which

the jury could have found Herron guilty beyond a reasonable doubt of burglary and

receiving stolen property. Moreover, I find that even though the evidence was wholly

circumstantial, I presume that the jury followed the trial court’s instructions, and only

considered the circumstantial evidence.

       Lastly, I disagree with the majority’s argument that the State knew that Tebo was

going to recant her prior out-of-court written statement, thus making her an invaluable

witness. The record shows that Tebo was a valuable witness even if determined to recant

her written statement. I therefore agree with the State’s argument that had the State not

called Tebo as a witness, the jury would have wondered why such a valuable witness was

being kept away from the stand. See Impson v. State, 721 N.E.2d 1275, 1282. (Ind. Ct.


                                            14
App. 2000). For these reasons, I find that the trial court did not abuse its discretion in

permitting the State to call Tebo as a witness.




                                             15
