FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                            GREGORY F. ZOELLER
Marion County Public Defender Agency         Attorney General of Indiana
Indianapolis, Indiana
                                             MICHAEL GENE WORDEN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                                                                     Feb 24 2014, 9:16 am

                             IN THE
                   COURT OF APPEALS OF INDIANA

SHAWN BLOUNT,                                )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )    No. 49A02-1304-CR-365
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Steven R. Eichholtz, Judge
                          Cause No. 49G20-1211-FB-76812



                                  February 24, 2014


                             OPINION - FOR PUBLICATION


DARDEN, Senior Judge
                             STATEMENT OF THE CASE

      After a jury trial, Shawn Blount was convicted of Class B felony possession of a

firearm by a serious violent felon. We reverse and remand.

                                         ISSUE

      Blount presents two issues, but we find one dispositive: whether the trial court

abused its discretion by admitting hearsay evidence.

                       FACTS AND PROCEDURAL HISTORY

      In November 2012, Detective Terry Smith of the Indianapolis Metropolitan Police

Department was in an unmarked vehicle conducting surveillance at the Best Inn at 4505

South Harding Street due to several complaints of prostitution and open air narcotics

activity in the area. Shortly before 11:00 a.m., Detective Smith saw two black males exit

the motel. One man was wearing a grey sweatshirt, and the other man was wearing a

black hoodie. The man in the black hoodie continued down a sidewalk while the man in

the grey sweatshirt waved to someone behind Detective Smith’s vehicle and walked in

that direction. A woman walked along the side of Detective Smith’s vehicle and met up

with the man in the grey sweatshirt, and the two then went down the same path as the

man in the black hoodie.

      Five to ten seconds later, Detective Smith heard yelling. He saw the woman and

the man in the grey sweatshirt quickly walking away from a corner of the building and

looking back a couple of times. He then saw the man in the black hoodie step out with

his arm extended downward at a forty-five degree angle. Detective Smith was twenty-

five to thirty-five yards from the corner, and his view of the man in the black hoodie was

                                            2
somewhat obscured as he observed him through a chain-link fence. Further, Detective

Smith saw only the outline of the man’s body due to brush and weeds around the chain-

link fence, but he had a clear view from the man’s chest up. He saw a muzzle flash and

heard a gunshot, though he did not actually see a gun.

      Detective Nicholas Andrews, who was conducting surveillance just south of the

parking lot at a different motel, called Detective Smith and confirmed there was a

gunshot. They met up, put on their tactical vests, and ran into the motel. By that time,

911 calls had come in saying that the suspect had run into Room 150.           As they

approached that room, a woman Detective Smith knew as Ricky Brock exited it and ran

up the stairs. The detectives found no one in Room 150.

      They then followed Brock’s path up the stairs, and someone directed them to

Room 240. They knocked and announced themselves, and although they heard a lot of

commotion in the room, no one answered the door. The detectives forced entry and

found Brock, her five-year-old son, and two other females. Brock provided them with

the nickname of the person she believed fired the weapon, “Big D.” Her son named the

same person.

      The search for the suspect was unsuccessful. Detective Smith went to the location

where he saw the gun being fired and recovered a spent round from a hole in the ground.

      During the investigation that day, Detective Andrews was able to obtain an actual

name, Shawn Blount, from the nickname Brock and her son had provided. He created a

photo array and showed it to Detective Smith, who identified Blount’s picture as the



                                            3
person who fired the gun. A warrant was issued, and Blount was arrested about a month

later. A firearm was never recovered.

       The State charged Blount with Class B felony possession of a firearm by a serious

violent felon. At a jury trial, Detectives Smith and Andrews testified on behalf of the

State. Over defense objection, Detective Smith testified that Brock and her son provided

him with the nickname of the person they believed fired the gun. Blount testified in his

own defense that a man named “Bigs,” who was shorter than him but stocky, was also at

the scene, was angry over a debt, and fired at Blount’s feet from half an arm’s length

away. On cross examination, he acknowledged that Brock was his girlfriend.

       The jury found Blount guilty as charged, and the trial court later sentenced him to

twelve years. Blount now appeals his conviction.

                             DISCUSSION AND DECISION

       Blount contends the trial court abused its discretion by admitting hearsay evidence

when it allowed Detective Smith’s testimony concerning what Brock and her son told

him as to their belief about who fired the gun. A trial court has broad discretion in ruling

on the admissibility of evidence, and we will disturb its rulings only where it is shown

that the court abused that discretion. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ind.

Evidence Rule 801(c). Subject to certain limited and specific exceptions, hearsay is

generally not admissible at trial. See Ind. Evidence Rule 802.



                                             4
       When the admissibility of an out-of-court statement received by a police officer

during the course of an investigation is challenged as hearsay, we first determine whether

the testimony describes an out-of-court statement that asserts a fact susceptible of being

true or false. Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003), trans.

denied. If the statement contains no such assertion, it cannot be hearsay. Id. If the

statement does contain such an assertion, we consider the evidentiary purpose for the

proffered statement. Id. If the evidentiary purpose is to prove the fact asserted, the

statement is from neither a witness nor a party as described in Indiana Evidence Rule

801(d), and there are no applicable hearsay exceptions, the statement is inadmissible

hearsay. Id. If the statement is offered for a purpose other than to prove the truth of the

matter asserted, we consider whether the fact to be proved is relevant to some issue in the

case and whether the danger of unfair prejudice that may result from its admission

outweighs its probative value. Id.

       Here, it is undisputed that neither Brock nor her son testified at trial. Over

Blount’s objection, Detective Smith testified as to the following:

       A      We found Ricky Brock, her four year old son. I believe four or five
              year[ ] old son . . . . And two other females.
       Q      Okay. Did you find the defendant or either one of --- anybody that
              you were looking for?
       A      We did not.
       Q      Okay. And did you have a conversation with Ricky Brock or that
              child?
       A      Yes.
       Q      And what --- what --- did they give you any information that le[d]
              you to --- to further investigate at all?
       A      Yes, Miss Brock stated ---
                      [DEFENSE COUNSEL]: Objection, hearsay.
                      [THE STATE]: I believe at this point, Your Honor, we are

                                             5
     offering what she stated to explain how the officers eventually get to
     their identification.
             THE COURT: Any response?
             [DEFENSE COUNSEL]: If the officer makes his
     identification based on vi[ew]in’ a suspect that’s one thing. If he
     makes his identification based off of the statements of a third person
     who is not here, that’s hearsay[.] So those statements made by
     somebody else to help him with his identification, those can[’t] be
     presented into evidence[.] However if he makes an identification by
     saying he saw Blount at the scene, that’s fine.
             [THE STATE]: Your Honor. If I --- I’m sorry.
             THE COURT: Go ahead.
             [THE STATE]: If I may, the key to whether or not its hearsay
     is whether or not the State is trying to offer what she said as the truth
     of the matter asserted. We are not even offering what she said as the
     truth. But ultimately what she said goes to how the officers
     eventually learned the name of the defendant and therefore was able
     to compare the picture of the defendant to what he already knew this
     person looked like.
             THE COURT: I guess there’s no reason for him to say
     anything now is there. Have him say that, I guess. He doesn’t need
     to say what the witness told him. Just, based on what she told me
     something like that. [H]e doesn’t have to offer her words.
             [THE STATE]: We can do it and --- and in general terms I
     can try to get him to say it in general terms.
             THE COURT: I would rather you do it in general terms. As
     opposed to offering her direct statements.
             [THE STATE]: Okay.
DIRECT EXAMINATION CONTINUED:
QUESTIONS BY [THE STATE]
Q    Did . . . [Brock] provide you with the nickname of someone that you
     believed had fired the weapon?
A    Yes, she did.
             [DEFENSE COUNSEL]: Objection. Still hearsay because . .
     . now you are tryin’ to introduce her statement as to who she thinks
     fired the weapon.
             THE COURT: He can answer the question, yes or no.
DIRECT EXAMINATION CONTINUED:
QUESTIONS BY [THE STATE]
Q    And I’m sorry officer, just in case the jury didn’t hear you. Did she
     provide you with a nickname of somebody that she believed fired the
     weapon?
A    Yes, she did.

                                      6
      Q      Okay, and did . . . the four or five year old as well say the same
             person?
      A      Yes.

Tr. pp. 74-77. Blount claims this evidence was hearsay because Detective Smith testified

that Brock and her son told him the name of the shooter.

      The State makes two counterarguments. First, it argues the testimony was not

hearsay because Detective Smith did not relate any actual statement from Brock or her

son. Instead, the State argues, Detective Smith merely stated that Brock and her son

provided a nickname, without even specifying what that nickname was.

      However, the fact that Detective Smith did not testify to Brock and her son’s exact

words does not save the testimony from a hearsay challenge. Because his testimony

described out-of-court assertions susceptible of being true or false, namely, that the

person Brock and her son identified was the shooter, they constitute statements within the

meaning of the hearsay rule.

      Second, the State argues the testimony was not hearsay because it was not offered

to prove the truth of the matter asserted but was instead offered merely to show the

course of the investigation.   The hearsay rule does not require exclusion of police

testimony regarding out-of-court statements by third parties when it is introduced

primarily to explain why a particular course of action was taken during a criminal

investigation. Williams v. State, 544 N.E.2d 161, 162 (Ind. 1989). Nonetheless, “[w]hen

approving the admission of such testimony, this Court requires a reasonable level of

assurance that such testimony was not offered by the proponent nor received by the trier

of fact as evidence of the truth of the third party’s statement.” Id. at 162-63. We have

                                            7
recently observed that course-of-investigation evidence is generally irrelevant in that it

does not make it more or less probable that the defendant committed the act alleged. See

Kindred v. State, 973 N.E.2d 1245, 1252-1255 (Ind. Ct. App. 2012) (collecting cases),

trans. denied.

       Here, as at trial, the State claims any statements made by Brock and her son were

only offered to show how Detective Smith was eventually able to identify Blount as the

shooter. Specifically, Brock and her son provided the nickname of the person they

believed to be the shooter, Detective Andrews connected that nickname to Blount, he

created a photo array with Blount’s picture, and Detective Smith identified that picture as

the person he saw shooting the gun.

       However, the Indiana Supreme Court has rejected course-of-investigation

testimony as inadmissible hearsay in a case similar to the facts before us. In Williams, a

detective testified, “I received information, in October, from an informant, that an Ernest

Williams [the defendant], a Black male, was involved in the robbery of a Village Pantry

on the southside of Indianapolis.” 544 N.E.2d at 163 (emphasis omitted). The detective

further testified that based on this information, he included Williams’s picture in a photo

array shown to the victim. The victim picked out Williams’s picture as the person who

robbed her. The Supreme Court acknowledged that the testimony explained the course of

the investigation, but it nonetheless concluded that it was inadmissible hearsay.        It

determined that the testimony was sufficiently specific and detailed to provide the jury

with a basis for making inferences that the informant, who did not testify at trial, had

knowledge that Williams committed the offense and that Williams was therefore guilty of

                                            8
robbery.   The Court also noted that the hearsay testimony tended to support the

credibility of the victim when she identified Williams as the perpetrator. Concluding the

error was not harmless, the Court reversed Williams’s conviction. Id.

       The State argues that Blount’s case is “significantly different” from Williams.

Appellee’s Br. p. 11. Unlike Williams, the State claims, Detective Smith did not testify to

any statement but merely said that Brock and her son provided a nickname. As we

determined above, however, Detective Smith clearly testified to a statement when he said

that Brock and her son told him the nickname of the shooter.

       The State also claims Williams is distinguishable because the informant there told

the detective that Williams was involved in the robbery, while Brock and her son told

Detective Smith the nickname of the person they only believed to be the shooter. See id.

(“[T]he detective merely testified that the nickname given was that of someone who

Ricky believed had fired the weapon, not anyone she knew had fired the weapon.”). This

is a distinction without a difference. In Williams, the detective testified that the informant

identified the robber. Likewise, here, Detective Smith testified that both Brock and her

son identified the shooter.

       How the police narrowed the investigation to Blount was irrelevant to any

contested issue in the case. Moreover, the prejudicial impact of the testimony was great:

in a jury trial to determine whether Blount unlawfully possessed a firearm, Detective

Smith related out-of-court statements asserting that Blount possessed a firearm. Any

probative value to the statements were thus substantially outweighed by the danger of



                                              9
unfair prejudice.     We therefore conclude that Detective Smith’s testimony was

inadmissible hearsay and that the trial court abused its discretion by admitting it.

       When a trial court errs in the admission of evidence, we will not reverse the

conviction if that error was harmless.      Turner, 953 N.E.2d at 1058.        Errors in the

admission of evidence are to be disregarded unless they affect the defendant’s substantial

rights. Id. at 1059. In determining the effect of the evidentiary ruling on a defendant’s

substantial rights, we look to the probable effect on the fact-finder. Id. The 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. Id.

       The State argues the error was harmless because Detective Andrews later testified

without objection to “essentially” the same evidence. Appellee’s Br. p. 12. We disagree.

Detective Andrews’s testimony did not mention any assertions made by Brock and her

son. See Tr. pp. 148, 162 (Detective Andrews testifying broadly that he obtained the

shooter’s nickname through the course of the investigation). Thus, his testimony was not

merely cumulative of the erroneously admitted evidence.

       The State also argues the error was harmless because Detective Smith had already

identified Blount as the shooter to the jury. See Appellee’s Br. p. 13 (noting Detective

Smith’s testimony that Blount was the man he saw when he observed the muzzle flash

and heard the gunshot and that he picked Blount’s picture from the photo array, further

noting Detective Smith’s positive in-trial identification of Blount). We disagree. As in

Williams, 544 N.E.2d at 163, the erroneously admitted hearsay evidence of Brock and her

                                             10
son buttressed Detective Smith’s credibility when he identified Blount as the shooter.

We thus cannot say there is no substantial likelihood the challenged evidence contributed

to the conviction.

       The State points to no other evidence supporting its claim that the admission of

Detective Smith’s hearsay testimony was harmless. We therefore conclude its admission

was not harmless and reverse Blount’s conviction. The State is not precluded from

retrying Blount for this offense. See Stahl v. State, 686 N.E.2d 89, 94 (Ind. 1997) (“[I]f

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.”).

                                     CONCLUSION

       We reverse Blount’s conviction and remand for further proceedings consistent

with this opinion.

ROBB, J., concurs.

KIRSCH, J., dissents without opinion.




                                            11
