MEMORANDUM DECISION

ON REHEARING
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      Jan 29 2016, 5:56 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Gregory F. Zoeller
Deborah Markisohn                                       Attorney General of Indiana
Marion County Public Defender                           Michael Gene Worden
Agency                                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                           IN THE
     COURT OF APPEALS OF INDIANA

T.J.,                                                   January 29, 2016

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1501-JV-21
v.
                                                        Appeal from the Marion Superior
State of Indiana,                                       Court
Appellee-Plaintiff.                                     The Honorable
                                                        Marilyn A. Moores, Judge
                                                        Trial Court Cause No.
                                                        49D09-1402-JD-286



Kirsch, Judge.




Court of Appeals of Indiana |Memorandum Decision on Rehearing 49A05-1501-JV-21 January 29, 2016
Page 1 of 4
[1]   T.J. appealed his juvenile delinquency adjudication for committing an act that

      would have been murder if committed by an adult. In a memorandum

      decision, we affirmed the judgment of the juvenile court. T.J. v. State, No.

      49A05-1501-JV-21 (Ind. Ct. App. Nov. 9, 2015). T.J. petitions for rehearing,

      arguing that we “failed to address T.J.’s Article 1, Section 13 argument that he

      was deprived of the ability to confront and cross-examine Dr. Tashjian ‘face to

      face.’” Pet. for Reh’g at 4. We grant T.J.’s petition, write to explain our

      reasoning, and affirm our decision.


[2]   During T.J.’s delinquency hearing, the State offered into evidence the autopsy

      of the murder victim, Ty.A., and the testimony of pathologist Dr. Sozio. T.J.

      objected, reasoning that Dr. Sozio neither conducted Ty.A.’s autopsy nor

      prepared the report; instead, Dr. Sozio was “vouching” for a report prepared by

      and based on the autopsy performed by Dr. Tashjian. Tr. at 22. T.J. argued, in

      part, that the autopsy itself was hearsay and that Dr. Sozio was not qualified to

      speak to its findings and conclusions and could not be crossed-examined on

      those matters because he had played no part in the autopsy or the preparation

      of the report. Id.


[3]   T.J.’s delinquency hearing resulted in a 362-page transcript. In that transcript,

      there was no mention of the Sixth Amendment or Article 1, section 13, and the

      issue of T.J.’s inability to confront a witness was referenced on only two pages.

      Id. at 22, 24. While we found the mention of “confrontation” sufficient for T.J.

      to have preserved for appeal a claim under the Sixth Amendment to the United

      States Constitution, T.J. did not raise a specific objection to the admission of
      Court of Appeals of Indiana |Memorandum Decision on Rehearing 49A05-1501-JV-21 January 29, 2016
      Page 2 of 4
      the autopsy report under Article 1, section 13 of the Indiana Constitution. Id.

      Accordingly, T.J.’s claim of State Constitutional error in the admission of the

      autopsy report would have been waived. See Armstrong v. State, 22 N.E.3d 629,

      640 (Ind. Ct. App. 2014) (party may not object to admission of evidence on one

      ground at trial and seek reversal on appeal based on different ground), trans.

      denied.


[4]   Waiver notwithstanding, had T.J. specifically objected to the admission of the

      autopsy report pursuant to Article 1, section 13, any error in the admission of

      that report would have been harmless. Dr. Sozio testified about the external

      and internal injuries to, and the absence of stippling and powder burns on,

      Ty.A.’s body. Using the autopsy report, Dr. Sozio also testified about the

      trajectory of the lethal bullet and that the cause of death was homicide.

      However, consistent with our analysis of T.J.’s Sixth Amendment claim, the

      State placed no reliance on the autopsy to prove its case. T.J.’s conviction did

      not hinge on the proximity of the gun, the trajectory of the bullet, or the injuries

      Ty.A. sustained. Further, it was of no import that Dr. Sozio testified about Dr.

      Tashjian’s conclusion that the cause of death was homicide. Tr. at 35. T.J.

      made no claim that Ty.A. died accidentally or as the result of a suicide. The

      only theory offered to the juvenile court was that Ty.A. died as the result of a

      gunshot wound to the chest. Ty.A.’s sister testified that she and her brother

      were approached by two men, one of the men pointed a gun to her brother’s

      chest and, without provocation, shot Ty.A. dead. The fact that this was a



      Court of Appeals of Indiana |Memorandum Decision on Rehearing 49A05-1501-JV-21 January 29, 2016
      Page 3 of 4
      homicide was not in question; the issue was whether the evidence was sufficient

      to support a true finding that T.J. had committed murder.


[5]   Petition for rehearing granted and decision affirmed.


      Najam, J., and Barnes, J., concur.




      Court of Appeals of Indiana |Memorandum Decision on Rehearing 49A05-1501-JV-21 January 29, 2016
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