MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                         FILED
court except for the purpose of establishing                               Jan 24 2020, 9:23 am
the defense of res judicata, collateral
                                                                                  CLERK
estoppel, or the law of the case.                                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Brian Woodward                                        Curtis T. Hill, Jr.
Office of Lake County Public Defender                    Attorney General of Indiana
Crown Point, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shonika Vashae Drones,                                   January 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1442
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1711-F2-16



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020                     Page 1 of 11
                                          Case Summary
[1]   In November of 2017, Shonika Vashae Drones, along with her mother,

      husband, friend, and two sons M.H. and S.H., drove to Samual Hammel, Jr.’s,

      residence, who is her sons’ biological father. As they neared Hammel’s

      residence, the boys took a baseball bat and stated that they were going inside

      Hammel’s residence to take some money. Once inside the residence, a fight

      ensued between Hammel and the boys, which resulted in S.H. being shot. The

      State charged Drones with Level 2 felony attempted robbery resulting in serious

      bodily injury, Level 3 felony attempted armed robbery, and Class A

      misdemeanor false informing. In April of 2019, a jury trial was held, at the

      conclusion of which Drones was found guilty as charged. Drones contends that

      the trial court erred by denying her motion for continuance and allowing certain

      testimony at trial. We affirm.



                            Facts and Procedural History
[2]   Between 2000 and 2001, Drones and Hammel were in a relationship that

      produced two children, M.H. and S.H. After living with a foster parent for

      approximately fifteen years, M.H. and S.H. began living with Hammel in 2017.

      M.H. and S.H.’s foster parent gave Hammel $1000.00 in late 2017, in order to

      support the boys. On November 27, 2017, M.H. and S.H. decided to move in

      with Drones and arrangements were made for the boys’ belongings to be

      retrieved, but Hammel made it known to Drones that the boys were no longer

      welcome at his residence. Nevertheless, M.H. and S.H. traveled in a vehicle

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 2 of 11
      with Drones, Drones’s husband, mother, and friend to collect the boys’

      belonging from Hammel’s residence.


[3]   As the group traveled to Hammel’s residence, M.H. and S.H. told Drones that

      they would enter the residence through a window Hammel kept open. Once

      inside, the boys planned to take the remaining money given to Hammel from

      the boys’ foster parent. Upon arriving, the boys took a baseball bat that Drones

      kept in her vehicle. Drones later admitted during a police interview that she

      knew that M.H. and S.H. intended to sneak into Hammel’s residence to steal

      the money. After arriving at Hammel’s residence, Drones and her husband

      waited in the vehicle while her mother, friend, and Hammel carried the boys’

      clothes from the residence to the vehicle. After helping carry clothes to the

      vehicle, Hammel returned to his residence and observed M.H. and S.H.

      standing inside, with M.H. holding the baseball bat. Hammel, believing that

      M.H. was about to hit him with the bat, charged the boys in order to gain

      control of the bat. A scuffle ensued, with S.H. putting Hammel in a “bear hug,”

      causing the three to fall over a couch. Tr. Vol. II p. 182. As they fell, Hammel

      saw M.H. pull a gun out of his pocket and heard it fire. S.H. stated that he had

      been hit by the bullet, and the boys fled the residence. Hammel later observed

      that a “bag of change” was missing from his residence, which he had last seen

      prior to moving the boys’ clothes out of his residence. Tr. Vol. II p. 183. During

      the course of the investigation into the incident, Drones made false statements

      to the police.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 3 of 11
[4]   On November 30, 2017, the State charged Drones with Level 2 felony

      attempted robbery resulting in serious bodily injury, Level 3 felony attempted

      armed robbery, and Class A misdemeanor false informing. A jury trial was held

      on April 22 through April 24, 2019. At trial, Drones, through counsel, moved

      for a continuance after the State informed counsel that it discovered eight

      photographs of the crime scene and a bullet fragment, which motion was

      denied by the trial court. Drones also objected to various testimony given by

      East Chicago Police Department Detective Isaac Washington regarding

      Drones’s police interview and Detective Washington’s charging decisions,

      which were overruled by the trial court. At the conclusion of the trial, Drones

      was found guilty as charged. On May 23, 2019, the trial court entered

      judgments of conviction for Level 2 felony attempted robbery resulting in

      serious bodily injury and Class A misdemeanor false informing and sentenced

      Drones to an aggregate sentence of ten years of incarceration with five

      suspended to probation.



                                 Discussion and Decision
[5]   Drones contends that the trial court abused its discretion by (1) denying her

      motion for continuance after the State produced eight photographs of a bullet

      fragment found in the wall of Hammel’s residence and the bullet fragment itself,

      (2) allowing Detective Washington to testify about the non-recorded portion of

      her first police interview pursuant to Indiana Evidence Rule 617(a)(3), and (3)




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 4 of 11
      admitting Detective Washington’s testimony in alleged violation of Indiana

      Evidence Rule 704.


                                 I. Motion for Continuance
[6]   Because the State produced eight photographs regarding a bullet fragment

      found in the wall of Hammel’s residence and the bullet fragment itself for the

      first time at the beginning of the trial, Drones contends that the trial court

      abused its discretion by denying her motion for continuance.


              As a general rule, motions for continuance are within the sound
              discretion of the trial court. In ruling upon such a motion, the
              trial court should give heed to the diverse interests of the
              opponent of the motion which would be adversely impacted by
              altering the schedule of events as requested in the motion, and
              give heed as well to the diverse interests of the movant
              beneficially impacted by altering the schedule. In addition, the
              later the motion, the more determinantal for the movant. On
              appeal, the ruling of the trial court is given considerable
              deference and reviewed only for an abuse of discretion. A
              reversal must contain, as its basis, a determination of resulting
              prejudice.


      Carter v. State, 632 N.E.2d 757, 760 (Ind. Ct. App. 1994).


[7]   Drones moved to continue because she wanted to determine which officer’s

      hand was holding the spent bullet in the photograph, why the bullet was never

      listed in discovery, and whether DNA could be found on the bullet that would

      link it to Hammel, which could then be used to impeach his testimony that

      M.H. fired the gun. The trial court denied Drones’s motion, concluding that it


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 5 of 11
      has “never seen an instance where DNA can be extracted from a bullet that’s

      been … recovered from a wall,” Tr. Vol. II p. 164, and permitted Drones to

      conduct voir dire on Detective Washington during the State’s direct examination

      and later cross-examine Detective Washington regarding the photographs and

      bullet. While we stress that turning over discovery on the first day of trial is

      usually poor practice, we conclude that the trial court’s decision in this case was

      reasonable and that it therefore acted within its discretion. Further, the ultimate

      identity of the individual who fired the gun is irrelevant in this matter. In order

      to convict Drones of attempted robbery resulting in serious bodily injury, the

      State was required to establish that M.H. knowingly or intentionally attempted

      to take property from Hammel using or threatening the use of force, which

      resulted in bodily injury to any person other than M.H. Ind. Code § 35-42-5-1.

      The record clearly indicates that Drones and her boyfriend transported M.H.

      and S.H. to Hammel’s residence knowing that the boys intended to steal money

      from him, and as a result of the attempted robbery, S.H. was shot. Drones has

      failed to establish that the denial of her motion resulted in prejudice.


                       II. Detective Washington’s Testimony
[8]   Drones contends that the trial court abused its discretion by admitting certain

      testimony from Detective Washington at trial. “The evidentiary rulings of a

      trial court are afforded great deference and are reversed on appeal only upon a

      showing of an abuse of discretion.” Udarbe v. State, 749 N.E.2d 562, 563 (Ind.

      Ct. App. 2001). “An abuse of discretion occurs if a trial court’s decision is



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 6 of 11
       clearly against the logic and effect of the facts and circumstances before the

       court.” Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct. App. 2013).


                                    A. Indiana Evidence Rule 617
[9]    Drones contends that the trial court abused its discretion by allowing Detective

       Washington to testify about the statements Drones made during the first police

       interview pursuant to Indiana Evidence Rule 617(a)(3). Indiana Evidence Rule

       617 provides that


               (a) 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, expect upon clear and convincing proof of
               any one of the following:

               […]


               (3) The 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[.]


[10]   Here, Detective Washington conducted a custodial interrogation believing that

       the audio-visual recording equipment was recording. Detective Washington

       testified that while preparing for trial he discovered that the equipment had

       malfunctioned, failing to record a majority of the interview, and had no idea

       why the equipment malfunctioned. The trial court found this to be credible and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 7 of 11
       concluded that this met the exception under Indiana Rule of Evidence 617(a)(3)

       and allowed Detective Washington to testify about the statements Drones made

       during the interview. This initial determination was for the trial court to make

       and we will not second-guess it. See Indiana Evidence Rule 104(a) (“The court

       must decide any preliminary question about whether a witness is qualified, a

       privilege exists, or evidence is admissible. In so deciding, the court is not bound

       by evidence rules, except those on privilege.”). We therefore conclude that the

       trial court did not abuse its discretion in this regard.


[11]   Drones also contends that the trial court abused its discretion by denying her

       request to conduct voir dire on Detective Washington regarding when he learned

       the equipment malfunctioned and the source of the malfunction. Given

       Detective Washington’s testimony during the State’s direct examination, we

       conclude that any error in denying Drones the opportunity to conduct voir dire

       can only be considered harmless. See Durden v State, 99 N.E.3d 645, 652, (Ind.

       2018) (“An error is harmless when it results in no prejudice to the substantial

       rights of a party.”) (internal citations and quotations omitted). Detective

       Washington testified that he discovered that the equipment had malfunctioned

       while preparing for trial and did not know the cause of the malfunction. Any

       further clarification to this testimony could have been sought by Drones on

       cross-examination, and by failing to do so the objection is waived.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 8 of 11
                                    B. Indiana Evidence Rule 704
[12]   At trial, the State questioned Detective Washington regarding his charging

       decisions. Because said testimony given by Detective Washington allegedly

       violates Indiana Evidence Rule 704, Drones contends that the trial court abused

       its discretion in admitting said testimony. Indiana Evidence Rule 704 provides

       that


               (a) In General—Not Automatically Objectionable. Testimony in
               the form of an opinion or inference otherwise admissible is not
               objectionable just because it embraces an ultimate issue.


               (b) Exception. Witnesses may not testify to opinions concerning
               intent, guilt, or innocence in a criminal case; the truth or falsity
               of allegations; whether a witness has testified truthfully; or legal
               conclusions.


       The testimony relevant to Drones’s contention is as follows:


               [MR. ROODA:] Detective, a lot of questions were asked of you
               on cross-examination about who shot who, about hiding a
               firearm, about who was the shooter; and Detective, in your filing
               of charges, actually, in this charge that we’re here for this week,
               does it matter whether [Hammel] shot the son, the third, or if
               [M.H.] shot his father?

               MR. CANTRELL: Objection. It calls for legal conclusion.

               MR. ROODA: It doesn’t call for legal conclusion. He was asked
               all about it.

               THE COURT: I disagree. As phrased. Overruled.

               [DETECTIVE WASHINGTON:] Repeat the question.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 9 of 11
        [MR. ROODA:] Does it matter who shot who inside that
        residence for these charges?

        [DETECTIVE WASHINGTON:] Yes.

        [MR. ROODA:] How?

        [DETECTIVE WASHINGTON:] Because whoever shot would
        have been charged -- whoever did the shooting would have been
        charged.

        [MR. ROODA:] Okay. So when two individuals go into a house,
        one armed with a baseball bat with the intention to take money,
        does it matter what happens after that?

        MR. CANTRELL: Objection. Calls for speculation.
        Hypothetical question.

        MR. ROODA: He asked all kind of hypothetical questions on
        cross-examination, your Honor. I’m just trying to follow up.

        THE COURT: All right. Overruled.

        [MR. ROODA:] So I will ask again. Two individuals go into
        residence, one armed with a baseball bat and you know the
        intention is to take money from the person inside. Does it matter
        what happens once inside?

        [DETECTIVE WASHINGTON:] No.

        [MR. ROODA:] Can you still charge those people in this
        hypothetical question with rob -- attempted robbery?

        [DETECTIVE WASHINGTON:] Yes.

        [MR. ROODA:] Okay. So specifically this case, you observed
        surveillance video showing the two sons of [Hammel]
        approaching his house, one armed with a baseball bat, correct?

        [DETECTIVE WASHINGTON:] Yes.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 10 of 11
               [MR. ROODA:] That’s consistent with what [Hammel] told you
               happened once he was inside, correct?

               [DETECTIVE WASHINGTON:] Yes.

               [MR. ROODA:] So at that point, would it have changed your
               analysis and what your charges of [Drones], whether [Hammel]
               shot his son or if [M.H.] shot his other -- his brother on accident?

               [DETECTIVE WASHINGTON:] No.

       Tr. Vol. III pp. 220–22.


[13]   While ordinarily testimony regarding charging decisions is irrelevant evidence

       in a criminal case, Drones cross-examined Detective Washington about his

       charging decisions which opened the door to the State’s questions regarding

       charging decisions on redirect examination. See Cameron v. State, 22 N.E.3d 588,

       593 (Ind. Ct. App. 2014) (noting that “otherwise inadmissible evidence may

       become admissible where the defendant opens the door to questioning on that

       evidence.”) (internal quotations omitted). Moreover, the trial court instructed

       the jury that “[t]he fact that a charge has been filed, the defendant arrested and

       brought to trial is not to be considered by you as any evidence of guilt.”

       Appellant’s App. Vol. II p. 57. See Peterson v. State, 699 N.E.2d 701, 705 (Ind.

       Ct. App. 1998) (noting that a trial court’s jury instructions presumptively cure

       any improper statements made during trial). Drones has failed to establish that

       the trial court abused its discretion in this regard.


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


       Robb, J., and Altice, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1442| January 24, 2020   Page 11 of 11
