MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Aug 06 2020, 11:01 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
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estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                      Curtis T. Hill, Jr.
Marion County Public Defender Agency                   Attorney General of Indiana
Indianapolis, Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Devon Buchanan,                                        August 6, 2020
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       19A-CR-2226
        v.                                             Appeal from the Marion Superior
                                                       Court
State of Indiana,                                      The Honorable Jeffrey L. Marchal,
Appellee-Plaintiff,                                    Magistrate
                                                       Trial Court Cause No.
                                                       49G06-1808-F1-25306



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020                Page 1 of 9
                               Case Summary and Issue
[1]   Following a jury trial, Devon Buchanan was convicted of child molesting, a

      Level 1 felony. Buchanan appeals his conviction and raises one issue for our

      review: whether the trial court abused its discretion in excluding evidence that

      Buchanan cooperated with law enforcement. Concluding it did not, we affirm.



                           Facts and Procedural History
[2]   T.J. (“Mother”) is the mother of L.J. In 2015, L.J. and her two siblings, D.L.

      and C.J., lived with and were cared for by their maternal grandmother, L.D.

      (“Grandmother”), who adopted them in September 2015 or 2016.


[3]   In August 2015, Mother and her boyfriend, Buchanan, had a son; L.J. was six

      years old at the time. The couple lived in a small two-bedroom apartment in

      Indianapolis with their child. Although Grandmother cared for L.J. and her

      siblings full time, they would occasionally stay overnight at Mother and

      Buchanan’s apartment when Grandmother had to work and could not secure a

      babysitter. During the overnight visits, L.J. and her siblings would sleep on the

      couches in the living room while Mother and Buchanan would sleep in their

      bedroom with the baby. From August to December 2015, the children stayed

      overnight with Mother and Buchanan about three times.


[4]   Three or four times during these visits, Buchanan woke L.J. up in the middle of

      the night and told her to follow him into the kitchen. Once they were in the

      kitchen, Buchanan instructed L.J. to get on her knees, pulled his pants down,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020   Page 2 of 9
      and told her to suck his penis. Buchanan used his hands to move L.J.’s head

      back and forth while his penis was in her mouth. On one occasion, Buchanan

      ejaculated in L.J.’s mouth. Buchanan told her, “don’t tell nobody and go to

      sleep.” Transcript of Evidence, Volume 2 at 150. L.J. went back into the living

      room and went to sleep. L.J. did not tell anyone about the abuse.


[5]   Three years later, in February 2018, L.J. disclosed the incidents to a classmate

      at school. Grandmother received a phone call from L.J.’s school informing her

      of the allegations. Grandmother picked L.J. up from school and drove to a

      parking lot to talk. When Grandmother picked L.J. up, “she was happy until

      [Grandmother] relayed the message that [she] got from school. Then her

      demeanor turned sad.” Id. at 137. After the conversation, Grandmother

      reported the incident to the police and took L.J. to the Child Advocacy Center

      where she was interviewed by Jill Carr, a forensic child interviewer. During the

      interview, L.J. disclosed the sexual abuse to Carr.


[6]   On April 20, 2018, Nicolle Flyn, a detective with the Indianapolis Metropolitan

      Police Department, interviewed Buchanan.1 At the time, Buchanan was

      already incarcerated at Miami Correctional facility where he was serving time

      for an armed robbery conviction. Buchanan provided an audio recorded

      statement and denied the allegations.




      1
       Prior to the interview, Detective Flyn advised Buchanan of his rights. Buchanan indicated he understood
      and agreed to waive those rights.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020                 Page 3 of 9
[7]   On August 2, the State charged Buchanan with child molesting, a Level 1

      felony. Before trial, the State filed a motion in limine to prevent:


              Any reference to or elicitation of testimony by defense counsel of
              any statement of [Buchanan], except through [Buchanan] should
              he choose to testify, as such testimony constitutes self-serving
              hearsay. Additionally, any mention that [Buchanan] did give a
              statement as the statement without content is irrelevant.


      Appellant’s Appendix, Volume II at 71. At Buchanan’s jury trial on August 8,

      2019, there were two discussions concerning the State’s motion in limine and

      Buchanan’s desire to elicit testimony from Flyn that he cooperated and

      provided a statement.


[8]   First, before voir dire, the trial court granted the State’s motion in limine, in

      pertinent part. See Tr., Vol. 2 at 12. Defense counsel sought to clarify the issue

      and argued that he should be allowed to ask Flyn if Buchanan voluntarily gave

      a statement as that would prove that “he attempted to cooperate in the

      investigation.” Id. at 17. At the time, Buchanan had not decided whether he

      would testify. The State responded that it did not intend to show that

      Buchanan failed to cooperate in the investigation and did not intend to play the

      audio recording of the statement because Buchanan did not make any

      admissions it felt were necessary to play for the jury. See id. at 18. The State

      argued the proposed questioning constituted inadmissible bolstering of the

      defendant. The trial court asked the parties for case law and declined to make a

      ruling until it heard evidence.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020   Page 4 of 9
[9]    Later in the trial, before Flyn was called to testify and outside the presence of

       the jury, defense counsel raised the issue again by stating that he planned to ask

       Flyn on cross examination whether she or another detective interviewed

       Buchanan, whether they advised him of his rights, and whether he cooperated

       and spoke with them. However, defense counsel did not plan to ask about the

       content of the interview and reiterated his position that the fact that Buchanan

       gave a statement was relevant. See id. at 177. The State argued the fact he gave

       a statement was irrelevant and would improperly bolster Buchanan, namely

       showing “his cooperation and that he had nothing to hide” but “leaving it out

       there that he gave a statement without any comment on it, is misleading to the

       jury and it’s going to be something they consider.” Id. at 179.


[10]   The trial court decided to prohibit the defense from asking the proposed

       questions because the fact that Buchanan made a statement to law enforcement

       “in and of itself, does not pass a relevancy test under [Evidence] Rule 401, as

       that fact doesn’t tend to prove or disprove any fact at issue in this case.” Id. at

       180. Instead, “what the defense wants is for the jury to speculate as to the

       contents of the statement, essentially throw out there that our guy made a

       statement, but know that we’re not going to get into the contents of that

       statement.” Id.2 The trial court allowed the defense to make an offer of proof,

       but still maintained its ruling that the line of questioning was inadmissible. See




       2
         The trial court also noted that “assuming that the State doesn’t mention this statement in any way on direct,
       that question would be outside the scope of direct examination.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020                     Page 5 of 9
       id. at 182-84. After the State rested, Buchanan voluntarily testified during

       which the jury learned he was incarcerated for an armed robbery conviction.

       And Buchanan testified that when Detective Flyn came to see him, he “was

       free, willing and open to speak to her about” the allegations. Id. at 220.

       Buchanan testified that he did not molest L.J. and that he denied the allegations

       in his interview with Detective Flyn.


[11]   Ultimately, the jury found Buchanan guilty as charged and the trial court

       sentenced him to thirty-five years, with twenty-four years to be executed in the

       Indiana Department of Correction and the remaining eleven years suspended to

       probation. Buchanan now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[12]   Our standard of review in this area is well settled. We review the admission or

       exclusion of evidence for an abuse of discretion. Troutner v. State, 951 N.E.2d

       603, 611 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs when

       a trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App.

       2004).


                                  II. Exclusion of Evidence
[13]   Buchanan argues the fact that he gave a statement to law enforcement was

       “relevant for the jury to learn about [his] cooperation at the most important step

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020   Page 6 of 9
       in the investigation.” Appellant’s Brief at 12. He claims, “If the jury would

       have learned that he cooperated after L.J. accused him, the jury could have

       considered whether this cooperation made it less likely that he was the

       perpetrator.” Id. (record citations omitted). We disagree.


[14]   “Evidence is relevant if . . . it has any tendency to make a fact more or less

       probable than it would be without the evidence; and . . . the fact is of

       consequence in determining the action.” Ind. Evidence Rule 401. Relevant

       evidence is admissible; irrelevant evidence is not. Evid. R. 402. And a trial

       court has wide discretion in determining whether evidence is relevant. Snow v.

       State, 77 N.E.3d 173, 176 (Ind. 2017). Even if a trial court erroneously excludes

       evidence, reversal is only required if the error relates to a material matter or

       substantially affects the rights of the parties. Hill v. State, 51 N.E.3d 446, 450

       (Ind. Ct. App. 2016). “In other words, we will find an error in the exclusion of

       evidence harmless if its probable impact on the jury, in light of all of the

       evidence in the case, is sufficiently minor so as not to affect the defendant’s

       substantial rights.” Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014).


[15]   Here, the only issue in this case was whether Buchanan, a person at least

       twenty-one years of age, performed or submitted to other sexual conduct with

       L.J., a child under fourteen years of age. See Appellant’s App., Vol. 2 at 25; see

       also Ind. Code § 35-42-4-3(a)(1). During trial, the State never claimed that

       Buchanan was uncooperative during the investigation. In fact, the State

       explicitly indicated it had no intention of trying to show he failed to cooperate.

       As such, the fact that Buchanan cooperated with law enforcement by providing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020   Page 7 of 9
       a statement standing alone, without reference to the content, does not tend to

       prove or disprove any fact at issue in the case. Therefore, this fact is irrelevant

       and inadmissible, and the trial court did not abuse its discretion in excluding

       such evidence.3


[16]   Assuming arguendo the trial court did abuse its discretion, we cannot conclude

       that Buchanan’s substantial rights were affected. Buchanan argues the error in

       excluding testimony of his cooperation was not harmless because “in order to

       present his defense, [he] had to testify” resulting in the jury learning that “he

       was [an] armed robber serving prison time which likely had more impact on the

       jury than only learning he was [T.J.’s] boyfriend[.]” Appellant’s Br. at 14-15

       (record citations omitted). However, as discussed above, the fact that

       Buchanan provided a statement is not relevant to or persuasive of any fact at

       issue in the case. Therefore, the exclusion thereof had little to no probable

       impact on the jury and did not affect Buchanan’s substantial rights. See

       Barnhart, 15 N.E.3d at 143.


[17]   In sum, the fact that Buchanan provided a statement to law enforcement was

       irrelevant and inadmissible, and the trial court did not abuse its discretion in




       3
        Buchanan also argues that his cooperation was relevant and admissible as “course of investigation”
       evidence. Buchanan then quotes an excerpt from the transcript allegedly demonstrating that the State argued
       Buchanan’s statement was not course of investigation evidence “while also arguing other information was
       admissible for that very reason.” See Appellant’s Br. at 13. Buchanan fails to develop a cogent argument
       with respect to this theory and it is therefore waived. See Ind. Appellate Rule 46(A)(8)(a) (“The argument
       must contain the contentions of the appellant on the issues presented, supported by cogent reasoning [and]
       supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied
       on[.]”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020                    Page 8 of 9
       excluding it. And even if the trial court abused its discretion, such error was

       harmless.



                                              Conclusion
[18]   The trial court did not abuse its discretion in excluding testimony of

       Buchanan’s cooperation with law enforcement as it was not relevant and

       therefore, was inadmissible. Accordingly, we affirm.


[19]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2226 | August 6, 2020   Page 9 of 9
