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                           Jul 31 2017, 7:59 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General
Appellate Division
Indianapolis, Indiana                                    Angela N. Sanchez
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
      COURT OF APPEALS OF INDIANA

Gary Ellis,                                              July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1701-CR-37
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Hooper,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1601-CM-1822



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017              Page 1 of 9
                                             Case Summary
[1]   Gary Ellis appeals his conviction, following a jury trial, for class A

      misdemeanor theft. On appeal, he argues that the trial court violated his Sixth

      Amendment right to confrontation and committed fundamental error in

      admitting a surveillance video in the absence of testimony in front of the jury

      from the State’s foundational witness. Finding no constitutional violation and

      therefore no fundamental error, we affirm.


                                 Facts and Procedural History
[2]   On December 26, 2015, the manager of the Sunglass Hut store in Circle Centre

      Mall, Danielle Carl, called 911 to report that a pair of sunglasses was stolen

      from the store on Christmas Eve. Carl reported that she recognized the

      individual who took the sunglasses, that he was in the mall on a regular basis,

      and that she believed that he worked at a nearby hotel. Indianapolis

      Metropolitan Police Department (“IMPD”) Detective Stephen Gorgiveski was

      assigned to investigate the case. Detective Gorgiveski watched the Sunglass

      Hut store surveillance video from Christmas Eve, which depicted an African-

      American male removing a pair of sunglasses from a display and then leaving

      the store without paying. Detective Gorgiveski took a still photograph of the

      man from the surveillance footage. On January 7, 2016, Detective Gorgiveski

      sent the still photo in a BOLO (“Be on the Lookout”) alert to other police

      officers who worked in downtown Indianapolis. Tr. Vol. 2 at 52.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 2 of 9
[3]   IMPD Officer Brycen Garner received the BOLO photo and immediately

      recognized the individual in the photo. Officer Garner regularly saw the

      individual during Officer Garner’s part-time job as security for IndyGo bus

      service. Officer Garner was familiar with the man because he had seen him “a

      couple times a week, a few times a week” over the last four years. Id. at 59.

      The same day Officer Garner received the BOLO photo, he saw the individual

      exiting a bus in downtown Indianapolis. Officer Garner approached the man

      and asked for his identification. The individual, Ellis, gave Officer Garner his

      identification and was calm and cooperative. Officer Garner was confident that

      Ellis was the same man he saw in the photo.


[4]   Thereafter, the State charged Ellis with class A misdemeanor theft. A jury trial

      was held on November 7, 2016. At the start of the trial, the State indicated that

      it intended to offer into evidence the surveillance video of Ellis stealing the

      sunglasses. To lay the foundation for the video’s admissibility, the State sought

      to call Jesse Spencer, a regional trainer for the parent company of Sunglass Hut

      who was responsible for training store managers regarding loss management

      policies and investigations, including use of the video surveillance system. Ellis

      moved to exclude Spencer as a witness because the State had identified him as a

      potential witness only on the Friday prior to the Monday start of trial. The trial

      court took the motion to exclude under advisement and decided to hold a

      hearing outside the presence of the jury to allow defense counsel to question

      Spencer under oath and to identify any potential objections to his testimony.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 3 of 9
[5]   After counsel questioned Spencer extensively regarding his qualifications and

      personal knowledge regarding the video surveillance system, defense counsel

      clarified that she sought either exclusion of Spencer or a mistrial due to the

      State’s late disclosure of the witness. The trial court denied the motion for

      mistrial but granted the motion to exclude in part. Specifically, the trial court

      determined that “[t]he State may ask this witness foundational questions as it

      relates to the admissibility of video. The State shall not explore any other topics

      with this witness.” Id. at 29. Because the court determined that Spencer’s

      testimony would be relevant only to laying a foundation for the admissibility of

      the video, the trial court decided to “go ahead and do a hearing outside the

      presence of the jury regarding admissibility of the video.” Id. at 31. The trial

      court asked defense counsel if she had any objection to such procedure, and

      counsel responded, “No, Your Honor.” Id. The State called Spencer as a

      witness outside the presence of the jury.


[6]   Spencer testified that as a regional trainer for the parent company of Sunglass

      Hut, he was responsible for training store managers regarding loss management

      policies and investigations. He stated that he had worked with the Circle

      Centre store manager, Carl, on numerous occasions involving the surveillance

      camera system. Spencer explained the digital, motion-activated camera system

      and how it records the time and date at the top left corner of each video. He

      further explained that the system stores video for up to ninety days but that

      video is saved to a DVD if a discrepancy in inventory is reported and the video

      reveals that a theft has occurred. Spencer admitted that he did not personally


      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 4 of 9
      export the video of Ellis’s theft and save it on DVD, but he also stated that there

      was no way for a store employee to edit or tamper with any extracted video.

      Spencer stated that he had watched the video ten times and that he recognized

      the store on the video as the one located in Circle Centre Mall.


[7]   Following direct examination of Spencer by the State, defense counsel

      conducted an extensive cross-examination of Spencer challenging his lack of

      personal knowledge as to whether the video was genuine and had not been

      altered. Defense counsel then objected to the admission of the video claiming

      that Spencer lacked sufficient personal knowledge and that the State had not

      provided a sufficient foundation for the video’s admissibility. The trial court

      overruled counsel’s objection and determined that the video was admissible.

      Before calling in the jury, the court stated, “I’ve limited his testimony to

      basically what we’ve just gone over. I just assume [sic] have him step down and

      you can show the jury that [the video has] already been previously admitted as

      Exhibit A.” Id. at 41. The trial court explained its belief that due to the limited

      nature of Spencer’s testimony, further testimony in front of the jury was

      unnecessary, but the court specifically ordered that Spencer was not yet released

      as a witness in case either party wished to call him in front of the jury. Defense

      counsel renewed the previous motion for a mistrial due to the late disclosure of

      Spencer as a witness, and the trial court overruled the objection. The trial court

      then brought in the jury, granted the State’s motion to publish Exhibit A, and

      permitted the State to play the video for the jury.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 5 of 9
[8]    At the conclusion of the trial, the jury found Ellis guilty as charged. The trial

       court imposed a suspended sentence of one year. The court further ordered

       Ellis to perform forty hours of community service and to pay restitution to

       Sunglass Hut, as well as costs and fees. This appeal ensued.


                                      Discussion and Decision
[9]    Ellis’s sole claim on appeal is that the trial court violated his Sixth Amendment

       right to confrontation and committed fundamental error in admitting the

       surveillance video in the absence of testimony in front of the jury from the

       State’s foundational witness. Generally, we review the trial court’s ruling on

       the admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d

       672, 676 (Ind. 2000). However, here, because the issue is one of constitutional

       law, we review Ellis’s claim de novo. See Jones v. State, 982 N.E.2d 417, 421-22

       (Ind. Ct. App. 2013) (constitutional challenges are reviewed de novo), trans.

       denied.


[10]   The Sixth Amendment to the United States Constitution guarantees that, “[i]n

       all criminal prosecutions, the accused shall enjoy the right … to be confronted

       with the witnesses against him….” In Crawford v. Washington, 541 U.S. 36, 68

       (2004), the United States Supreme Court held that the Confrontation Clause of

       the Sixth Amendment prohibits admission in a criminal trial of testimonial

       statements by a person who is absent from trial, unless the person is unavailable

       and the defendant had a prior opportunity to cross-examine the person.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 6 of 9
[11]   Here, however, Ellis made no objection to the trial court’s procedure in

       admitting the video based on Crawford or the Sixth Amendment. Instead, his

       only objections were based on the late disclosure of the foundational witness

       and the witness’s lack of personal knowledge. A party may not object to the

       admission of evidence on one ground at trial and seek reversal on appeal based

       on a different ground. Malone v. State, 700 N.E.2d 780, 784 (Ind. 1998). Ellis’s

       confrontation claim is therefore waived. See Small v. State, 736 N.E.2d 742, 747

       (Ind. 2000) (defendant waived confrontation issue where his trial objection was

       based solely on argument that testimony was hearsay and not subject to hearsay

       exceptions).


[12]   Because Ellis waived this argument, “he can only prevail by meeting the

       ‘daunting’ fundamental error standard.” Harris v. State, 76 N.E.3d 137, 140

       (Ind. 2017). This means that Ellis must show “that the trial court should have

       raised the issue sua sponte due to a blatant violation of basic and elementary

       principles, undeniable harm or potential for harm, and prejudice that makes a

       fair trial impossible.” Id.


[13]   Ellis has not met his burden to show that fundamental error occurred here.

       Ellis’s argument regarding the trial court’s alleged violation of his right to

       confrontation is unique but misplaced. Ellis does not complain that the trial

       court permitted any testimonial evidence to be presented against him without

       first establishing unavailability or a prior opportunity at cross-examination as

       contemplated by the Confrontation Clause. Indeed, Spencer was available, and

       Ellis had a prior opportunity to cross-examine him. Rather Ellis complains that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 7 of 9
       the admission of the video, in the absence of Spencer’s testimony in front of the

       jury, violated his right to confrontation.


[14]   We understand that had Spencer testified in front of the jury, Ellis may have

       been able to undermine the authenticity of the video based on Spencer’s alleged

       lack of personal knowledge. But the fact remains that Spencer did not testify or

       provide evidence against Ellis. Ellis had ample opportunity to call Spencer to

       testify in front of the jury to challenge the reliability of the video, but he chose

       not to. Indeed, after determining the admissibility of the video outside the

       presence of the jury, the trial court ordered that Spencer was not yet released

       “in case something [came] up” and the State or defense counsel wished to call

       him as a witness in front of the jury. Tr. Vol. 2 at 43. Neither party did so.


[15]   We agree with the State that Ellis’s Confrontation Clause argument appears to

       conflate the presentation of testimony with the absence of testimony. The Sixth

       Amendment prohibits the presentation of testimonial evidence under certain

       circumstances, not the absence of testimonial evidence as Ellis complains of

       here. Ellis points to no testimonial evidence that was presented in violation of

       his right to confrontation.1 Accordingly, Ellis’s Sixth Amendment argument is

       misplaced, and he has not met his burden to show that the trial court

       committed fundamental error.



       1
         We reiterate and emphasize that Ellis does not challenge the admissibility of the surveillance video itself or
       the adequacy of the foundation laid for its authenticity and competency. Thus, there is no “silent-witness”
       issue here. See Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct. App. 2015) (a video recording may be admissible as
       substantive evidence as long as there is a strong showing of the video’s authenticity and competency), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017                   Page 8 of 9
[16]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1701-CR-37 |July 31, 2017   Page 9 of 9
