MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                         Aug 23 2018, 9:51 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Brian Woodward                                        Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony James Hood,                                      August 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1709-CR-2255
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff                                       Murray, Judge
                                                         Trial Court Cause No.
                                                         45G02-1305-MR-6



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018     Page 1 of 18
                                         Statement of the Case
[1]   Anthony Hood (“Hood”) appeals his conviction by jury of Class A felony

      voluntary manslaughter.1 He argues that the trial court abused its discretion

      when it: (1) concluded that two witnesses were unavailable and admitted their

      deposition testimony into evidence; (2) admitted hearsay testimony; and (3)

      denied his motion to correct error. Finding no abuse of the trial court’s

      discretion, we affirm Hood’s voluntary manslaughter conviction.


[2]   We affirm.


                                                       Issues
               1.       Whether the trial court abused its discretion when it
                        concluded that two witnesses were unavailable and
                        admitted their deposition testimony into evidence.

               2.       Whether the trial court abused its discretion when it
                        admitted hearsay testimony.

               3.       Whether the trial court abused its discretion when it denied
                        Hood’s motion to correct error.




      1
        IND. CODE § 35-42-1-3. We note that effective July 1, 2014, this statute was amended and Hood’s offense
      would now be considered a Level 2 felony. However, we will apply the version of the statute in effect at the
      time of the offense.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018           Page 2 of 18
                                                     Facts
[3]   One night in December 2012, seventeen-year-old Hood and Jaqueline Kennedy

      (“Kennedy”) walked around together in a Gary neighborhood looking for

      someone to rob because it was Kennedy’s birthday and she “was trying to get

      some money.” (Tr. Vol. 2 at 111). Hood was armed with a .9 millimeter

      handgun, and Kennedy was armed with a .45 semi-automatic handgun. At

      some point, they approached Richard Taylor (“Taylor”), who was standing

      outside a neighborhood convenience store. When Kennedy pointed her gun at

      Taylor, he ran to a nearby parking lot. Hood and Kennedy pursued Taylor,

      knocked him to the ground, and kicked and hit him. Hood then shot Taylor

      three times and ran. Hood hid his gun near an abandoned house in the

      neighborhood. Kennedy also ran from the scene and disposed of her gun.

      Taylor died as a result of his injuries.


[4]   The following afternoon, Hood and Kennedy met to look for their guns. Allen

      Evens (“Evens”) saw Hood and Kennedy searching for something in a field and

      reported what he had seen to the police. Police officers interviewed Kennedy,

      who eventually told them that Hood had killed Taylor. She also told the

      officers that Hood had sold the .9 mm murder weapon to Alvin Jones

      (“Jones”). Police officers went to Jones’ house and found a .9 mm handgun.

      The State charged Hood with murder.


[5]   Jones and Evens were both deposed in early 2014, and were both subject to

      cross-examination by Hood’s attorney. In May 2016, the State filed motions to

      declare both Jones and Evens unavailable so that their depositions could be
      Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 3 of 18
      admitted at trial. The motion to declare Jones unavailable provided that the

      State had served Jones at his last known address. In addition, the State had

      attempted to identify a new address through BMV records and other

      information systems. A Gary Police Department detective had also gone to

      several of Jones’ previous residences and had spoken with possible associates of

      Jones in an attempt to locate him. The motion to declare Evens unavailable

      provided that the State had attempted to locate him by serving him at his last

      known address. The State had also attempted to identify a new address through

      certified BMV records and had attempted to serve Evens at that address as well.

      Investigators had also spoken with Evens’ neighbors, who told the investigators

      that they believed that Evens had left Lake County. At trial, the State explained

      that it had tried to served Evens “as late as Monday.” (Tr. Vol. 3 at 102). The

      trial court concluded that both Evens and Jones were unavailable and admitted

      their depositions into evidence at trial over Hood’s objection.


[6]   Also at trial, Gary Police Department Homicide Detective James Nielsen

      (“Detective Nielsen”) testified that he was dispatched to the scene following the

      shooting. He explained that he “surveyed the scene and [] knocked on several

      doors and did what’s called a canvas.” (Tr. Vol. 3 at 237). Detective Nielsen

      further testified that during the canvas, he spoke with a neighborhood resident

      who told him that she had been inside her house when she had heard three

      gunshots. Hood objected that the testimony was hearsay, and the State

      responded that it was a “non-hearsay exception, it’s offered for the [e]ffect on

      the listener during the course of his investigation.” (Tr. Vol. 3 at 238). The trial


      Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 4 of 18
      court overruled Hood’s objection, and the State asked the detective what he had

      done next. Detective Nielsen responded that he had “continued to look at the

      scene and tried to locate any spent shell casings.” (Tr. Vol. 3 at 239).


[7]   Detective Nielsen also testified that another police officer had returned to the

      scene and had told him that his dog had tracked two tracks from the area.

      Following another hearsay objection, the State again responded that it was a

      “non-hearsay exception during the course of the investigation.” (Tr. Vol. 3 at

      242). The trial court overruled the objection, and the State asked the detective

      what he had done next. The detective responded that he had instructed the

      crime lab to take photographs of different areas.


[8]   In addition, the detective testified that, a few days after the shooting, another

      detective had telephoned and had advised him that there was an individual at

      the police station that had some information about the case. Following a

      hearsay objection, the State again responded that it was a “non-hearsay

      exception, [e]ffect on the listener, pursuant to his investigation.” (Tr. Vol. 3 at

      248). The trial court again overruled Hood’s objection, and the State asked the

      detective what he had done next. Detective Nielsen responded that he had

      gone to speak with the individual.


[9]   Detective Nielsen further testified that he had taken a statement from Kennedy

      and she had “said that the name of Little Tony was, in fact, Anthony Hood.”

      (Tr. Vol. 4 at 3-4). Hood objected on the basis of hearsay, and the State

      responded that it was a “non-hearsay exception as to the effect on [the] listener


      Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 5 of 18
       during the course of Detective Nielsen’s investigation.” (Tr. Vol. 4 at 3). The

       trial court overruled Hood’s objection, and the State asked the detective if he

       had followed up on the information provided by Kennedy, and the detective

       responded that he had.


[10]   Lastly, Detective Neilson testified without objection that Kennedy had told the

       detective that Hood had sold the murder weapon to Jones. The State asked the

       detective if he had continued his investigation with this information, and

       Detective Nielsen responded that he had gone to Jones’ house to look for the

       gun. When the detective arrived at Jones’ house, Jones told him that he had

       bought the gun from Hood and that it was in his bedroom. Detective Nielsen

       located the gun, and photos of it were admitted into evidence without

       objection. The State asked Detective Nielsen what he had done with the

       investigation after finding the gun, and the detective responded that he had

       taken a statement from Jones at the police department. When the State asked

       Detective Nielsen what information Jones had provided, Hood objected on the

       basis of hearsay. The State responded that it was a “non-hearsay exception,

       during the course of his investigation, effect on listener,” and the trial court

       overruled the objection. (Tr. Vol. 4 at 11). However, Detective Nielsen did not

       have the opportunity to respond to the question.


[11]   Because of the number of hearsay objections, the trial court took a recess.

       Following the recess, and before the jury entered the courtroom, the following

       colloquy ensued:



       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 6 of 18
               Trial Court: We’re back on the record. The jury is still out. We
               have an issue with respect to the hearsay objection. It’s been
               interposed a number of times during the testimony of Detective
               Nielsen, who has testified as to what some other individuals told
               him in furtherance of his investigation. And I thought it prudent
               to have the State cite the exact exception to this rule. I’ve
               [overruled] a number of these objections, but I want the record to
               be preserved as to exactly what exception the State is relying on
               in the event that this case goes before a higher court at some
               point.

               State: Yes, your Honor. The rule that the State is using in
               regards to Detective Nielsen’s testimony about what other
               individuals told him is Rule 801(c)(2). The statements provided
               to Detective Nielsen by other individuals are not being offered to
               prove the truth of the matter asserted or the truth of the
               statement. So whatever statement is elicited by Detective
               Nielsen, we’re offering them for what that information did for
               Detective Nielsen, and how he used that information in
               furtherance of his investigation.

               Trial Court: [Defense Counsel]?

               Defense Counsel: I’ve got nothing else to add other than the
               continuing objection to that.

               Trial Court: All right. We’ve made a careful record then on this
               issue. I think we can move on now.

       (Tr. Vol. 4 at 13-14).


[12]   Also at trial, Kennedy testified that: (1) she had also been charged with

       Taylor’s murder; (2) she had an agreement with the State that she would receive

       a benefit in exchange for her testimony; (3) she did not know what that benefit

       would be; (4) the State had not yet offered her a written or finalized plea

       agreement; (5) she did not know what was going to happen to her; and (6) she

       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 7 of 18
       had signed a proffer statement (“the Proffer”), which was admitted into

       evidence. The Proffer provided that Kennedy would provide a detailed

       statement about the crime and testify at Hood’s trial. According to the Proffer,

       the State would not enter into a plea agreement until it was satisfied with the

       “sufficiency of [Kennedy’s] proffer,” and any plea agreement would be null and

       void if Kennedy failed to cooperate. (State’s Ex. 41). The Proffer further

       provided that the State would determine the value of Kennedy’s cooperation

       and the consideration to be given in return for this cooperation and that no

       other promises, agreements, or other understandings existed between Kennedy

       and the State.


[13]   During direct examination, Kennedy admitted that she had taken part in

       Taylor’s murder. She also testified that Detective Nielsen had told her that she

       would be charged with murder and that he had explained to her the penalties

       for murder. According to Kennedy, despite the charges and penalties for

       murder, she had talked to Detective Nielsen because she “thought [she] was

       doing the right thing.” (Tr. Vol. 2 at 112). During cross-examination, defense

       counsel asked Kennedy what Detective Nielsen had told her that the penalties

       for murder were. The trial court told Kennedy not to answer the question, and

       during a bench conference, the trial court told defense counsel that the jury was

       “not allowed to hear the penalties . . . because they’re instructed not to consider

       the penalties while deliberating.” (Tr. Vol. 2 at 114). During cross-

       examination, the trial court allowed defense counsel to ask Kennedy whether




       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 8 of 18
       she understood that murder was the most serious offense in the criminal code

       and had the most serious penalty.


[14]   The jury convicted Hood of voluntary manslaughter, and the trial court

       sentenced him to forty (40) years with five (5) years suspended. Following his

       conviction and sentencing, Hood filed a motion to correct error, requesting a

       new trial based upon the State allegedly violating its obligation to disclose to the

       defense any benefits offered to Kennedy for her cooperation. Specifically, in his

       motion to correct error, Hood alleged that “the prosecution [had] misled the

       Court and the jury as to the benefits it had extended and/or was prepared to

       extend to Kennedy for her testimony.” (App. Vol. 2 at 185).


[15]   In support of his motion, Hood attached an affidavit from Kennedy’s trial

       counsel who averred that: (1) in April or May 2016, the State made

       “suggestions . . . that Kennedy would enter a plea to a [Class] B felony and

       would be credited with time served followed by a period of probation[;]” (2) in

       May 2016, the State appeared at a bench conference and “suggested that a plea

       was in the works, [but] the details had not be approved” by the chief prosecutor;

       (3) after Hood’s May 2017 trial, the State “suggested that [Kennedy] would

       receive credit for time served followed by a period of five (5) years’ probation

       upon her plea to some lesser, amended B Felony[;]” (4) a few days later, the

       State “reversed itself and advised that supervisors within the prosecutor’s office

       suggested that [Kennedy] enter a plea to the same charge as Defendant Hood

       with the same penalty as received by Hood[;]” (5) shortly thereafter, the State

       agreed to allow Kennedy to plead guilty to attempted robbery resulting in

       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 9 of 18
       bodily injury; and (6) Kennedy was sentenced to six years with credit for 1,185

       days of confinement with the balance on probation. (App. Vol. 2 at 190-91).

       Kennedy’s counsel also averred in the affidavit that “[a]t no time prior to the

       trial of Anthony Hood was [Kennedy] ever informed of the specific terms of

       any plea agreement nor was she ever advised of the precise sentence she would

       receive.” (App. Vol. 2 at 191).


[16]   At the hearing on Hood’s motion to correct error, the State responded to

       Hood’s allegations as follows:


               The defense is claiming that the State ha[d] some kind of secret
               deal with [Kennedy’s counsel]. Other than stating that we did
               not, how do you prove it? Well, I’d ask the Court if you look at –
               it’s [a] bulleted Personal Attack. I think attack is a strong word,
               but a personal criticism, as well as, a professional one. So you
               have to look at, uh, my record, personally, in this court.
               Professionally. . . I’ve practiced in this court for 13 years. I’ve
               had no disciplinary, uh, complaints or write-ups. I think if you
               ask [Hood’s counsel] if he believes that this is something I would
               engage in, he would personally tell you no.


       (Tr. Vol. 7 at 9, 10).


[17]   After further discussing the allegations with both the State and Hood’s counsel,

       the trial court stated as follows:


               The parties are getting close to impugning each other’s
               reputations here. And I don’t like that. The attorneys involved
               in this case are all veteran attorneys and, uh, their reputations are
               beyond reproach, as far as, I’m concerned. . . It’s the defense
               position that there was an offer in place, and that defense should

       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 10 of 18
               have been allowed to inquire as to this, this, this offer. The State
               said there was no understanding as to an offer, and Ms. Kennedy
               testified that she had not been offered anything. I think the
               inquiry, necessarily has to stop there unless there’s some further
               evidence.


       (Tr. Vol. 7 at 14, 16). Neither party submitted any additional evidence, and the

       trial court denied Hood’s motion to correct error. Hood now appeals his

       conviction as well as the denial of his motion to correct error.


                                                   Decision
       1.      Unavailable Witnesses

[18]   Hood first argues that the trial court abused its discretion when it determined

       that Evens and Jones were unavailable witnesses and admitted their deposition

       testimony into evidence at trial. Specifically, he contends that the State did not

       take “reasonable efforts to secure the attendance of the allegedly unavailable

       witnesses” Evens and Jones. (Hood’s Br. 26).


[19]   “The decision whether to invoke the rule allowing admission of prior recorded

       testimony is within the sound discretion of the trial court.” Berkman v. State,

       976 N.E.2d 68, 74 (Ind. Ct. App. 2012), trans. denied, cert. denied. “Prior

       testimony is hearsay, but Indiana Rule of Evidence 804 provides a hearsay

       exception for the prior testimony of a declarant who is ‘unavailable’ as a

       witness.” Davis v. State, 13 N.E.3d 939, 945 (Ind. Ct. App. 2014), trans. denied.

       Specifically, Indiana Rule of Evidence 804(b)(1)(A) provides that, where a

       declarant is unavailable as a witness, the hearsay rule does not exclude the


       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 11 of 18
       declarant’s former testimony, which was given at a lawful deposition and is

       now offered against a party who had the opportunity to cross-examine it. Id. at

       945-46. A witness is not unavailable unless prosecutorial authorities make a

       good-faith effort to secure his presence at trial. Bartruff v. State, 528 N.E.2d 110,

       113 (Ind. Ct. App. 1988), trans. denied. The extent to which the prosecution

       must go to produce a witness is a question of reasonableness. Id.


[20]   For example, in Berkman, 976 N.E.2d at 68, the State offered into evidence the

       deposition testimony of Paul Barraza. The State explained that it had given

       Barraza’s address and telephone number to an investigator, who had been

       unable to serve Barraza with a subpoena just one month before trial. The State,

       which had also been unable to contact Barraza by telephone, explained that it

       believed that Barraza was in Florida avoiding an arrest warrant. The trial court

       admitted Barraza’s deposition into evidence, and after Berkman was convicted,

       he appealed. Specifically, Berkman argued that the State had failed to

       adequately show that Barraza had been unavailable. However, this Court

       concluded that where the State had subpoenaed Barraza at his last known

       address one month before trial and had given Barraza’s last known address to

       its investigator, the State had made a reasonable good-faith effort to secure

       Barraza’s presence at trial. Id. at 76. We further noted that whether the State

       could have secured Barraza had it put forth considerably more effort was

       speculative at best, and we could not say that the State’s failure to send an

       investigator to Florida was unreasonable where the record did not reflect that

       the State had a possible address for Barraza in Florida. Id. at 77. Thus, under


       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 12 of 18
       the circumstances, we concluded that we could not say that the State had been

       required to do more than it did to secured Barraza’s presence at trial.


[21]   The facts before us are similar to those in Berkman. Regarding Jones, the State

       served him at his last known address. The State also attempted to identify a

       new address through BMV records and other information systems. In addition,

       a Gary Police Department detective went to several of Jones’ previous

       residences and spoke with possible associates of Jones in an attempt to locate

       him. Regarding Evens, the State also served him at his last known address, as

       well as at another address found on his official driving record. Investigators

       also spoke with Evens’ neighbors, who believed that Evens had left Lake

       County. Additionally, the State had attempted to serve Jones as late as the

       week of trial. Based on these circumstances, here, as in Berkman, we conclude

       that the State made a reasonable good-faith effort to secure the presence of both

       Jones and Evens at trial. Accordingly, the trial court did not abuse its

       discretion in admitting the deposition testimony of both Jones and Evens into

       evidence at trial.


       2.      Hearsay Testimony


[22]   Hood also argues that the trial court abused its discretion in allowing Detective

       Nielsen to testify that: (1) a witness told him that she had been inside her house

       when she had heard three gunshots; (2) another police officer had told him that

       his dog had tracked two tracks from the area; (3) another detective had

       telephoned and advised him that there was an individual at the police station


       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 13 of 18
       that had some information about the case; and (4) Kennedy had told him that

       the name of Little Tony was Anthony Hood. Specifically, Hood argues that

       “[a]ll the information solicited by the Detective were out-of-court statements

       offered for the truth and should have been excluded.” (Hood’s Br. 32).2 The

       State responds that the “record shows that the portions of Detective Nielsen’s

       testimony of which [Hood] complains [were] offered to show the sequence and

       reasons for actions he took in investigating the crime, and not for the truth of

       the matter in the declarant’s statements.” (State’s Br. 37). We agree with the

       State.


[23]   The decision to admit or exclude evidence at trial is within the trial court’s

       discretion, and we afford it great deference on appeal. VanPatten v. State, 986

       N.E.2d 255, 260 (Ind. 2013). We review the trial court’s decision regarding the

       admissibility of evidence for an abuse of discretion. King v. State, 985 N.E.2d

       755, 757 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs when

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

       circumstances before it. Id.




       2
         Hood also challenges the admission of Detective Nielsen’s testimony that Jones told him that he had
       bought a .9 millimeter handgun from Hood. However, our review of this testimony reveals that Hood failed
       to object to Detective Nielsen’s testimony the first time that the detective mentioned that Jones had told him
       that he had bought a handgun from Hood. Rather, Hood did not object to this testimony until the State later
       asked the detective what Jones had told him. “Reversal may not be predicated upon the erroneous admission
       of evidence when evidence having the same probative effect is admitted without objection or without
       contradiction.” Rinard v. State, 265 Ind. 56, 62, 351 N.E.2d 20, 24 (1976).

       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018          Page 14 of 18
[24]   Hearsay is an out-of-court statement that is “offered in evidence to prove the

       truth of the matter asserted.” Ind. Evidence Rule 801(c)(2). Hearsay is

       generally not admissible at trial. See Ind. Evid. Rule 802. “‘Whether a

       statement is hearsay . . . will most often hinge upon the purpose for which it is

       offered.’” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (quoting United States

       v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). Out-of-court statements made to

       law enforcement officers are not hearsay if introduced primarily to explain why

       the investigation proceeded as it did. Blount, 22 N.E.3d at 565. Course-of-

       investigation testimony is excluded from hearsay only for the limited purpose of

       bridging gaps in the trial testimony that would otherwise substantially confuse

       or mislead the jury. Id.


               For this reason, we must pay careful attention to the purpose for
               which an out-of-court statement is offered. The ultimate inquiry
               is: Was the out-of-court statement used primarily to show the
               truth of its content, constituting inadmissible hearsay, or merely
               to explain subsequent police action, excluded from hearsay?


       Id. at 566. To answer this question, we turn to the following three-part test

       articulated in Craig v. State, 630 N.E.2d 207 (Ind. 1994): (1) does the testimony

       describe an out-of-court statement asserting a fact susceptible of being true or

       false; (2) what is the evidentiary purpose of the proffered statement; and (3) is

       the fact to be proved relevant to some issue in the case, and does any danger of

       prejudice outweigh its probative value. Id. at 566-67.


[25]   Here, our review of the evidence reveals that all of the challenged testimony

       described out-of-court statements asserting a fact susceptible of being true or
       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 15 of 18
       false and that the evidentiary purpose of the proffered statements was to show

       the sequence and reasons for the steps Detective Nielsen took in investigating

       Taylor’s murder. In addition, where Detective Nielsen testified how each

       statement had led him to the next step in his investigation, we see no danger of

       prejudice. Accordingly, the trial court did not err in admitting Detective

       Nielsen’s testimony.3


       3.      Motion to Correct Error


[26]   Lastly, Hood argues that the trial court erred in denying his motion to correct

       error pursuant to Indiana Trial Rule 59. Our standard of review in such cases is

       well-established. We review a trial court’s ruling on a motion to correct error

       for an abuse of discretion. Old Utica School Preservation, Inc. v. Utica Tp., 7

       N.E.3d 327, 330 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion

       occurs when the trial court’s decision is contrary to the logic and effect of the

       facts and circumstances before it or the reasonable inferences therefrom. Id.


[27]   Here, the gravamen of Hood’s argument is that the trial court should have

       granted his motion to correct error and given him a new trial because the State

       engaged in misconduct. Specifically, Hood contends that it “cannot be mere

       coincidence that the same terms recited by [the State] prior to trial ended up




       3
         Hood also asserts that the admission of the deposition testimony and course-of-the-investigation hearsay
       testimony violated his confrontation rights under Article I, Section 13 of the Indiana Constitution. However,
       other than a cursory mention of the Indiana provision, Hood does not further develop this argument and,
       therefore, has waived it. See Wallace v. State, 79 N.E.3d 992, 1000 n.1 (Ind. Ct. App. 2017).

       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018          Page 16 of 18
       being virtually the same plea and sentence to which Kennedy ultimately

       entered.” (Hood’s Br. 20-21).


[28]   However, our review of Kennedy’s attorney’s affidavit and the evidence

       presented at the motion to correct error hearing reveal that they do not support

       Hood’s argument. First, Kennedy’s attorney’s affidavit provides that one year

       before Hood’s trial, the State had made “suggestions” that Kennedy would

       plead guilty to a Class B felony and be credited with time served followed by

       probation. (App. Vol. 2 at 190). A suggestion is not a firm offer as evidenced

       by the fact that the following year, supervisors in the prosecutor’s office

       “suggested” that Kennedy enter a plea to the same Class A felony charge as

       Hood with the same penalty. (App. Vol. 2 at 191). Thereafter, the State

       apparently: (1) concluded that Kennedy had complied with the Proffer; and (2)

       “determine[d] the value of Kennedy’s cooperation and the consideration to be

       given in return” was a guilty plea to a Class B felony with a six-year sentence

       with credit for time served and the balance on probation. (State’s Ex. 41).

       Kennedy’s attorney’s affidavit does not support Hood’s allegation that the State

       engaged in misconduct, and neither does the evidence presented at the motion

       to correct error hearing. Specifically, after hearing evidence, the trial court

       pointed out that the attorneys involved in the case were veteran attorneys with

       reputations beyond reproach. The trial court also pointed out that although the

       defense alleged that there had been an offer in place since a year before the trial

       had begun, the State responded that there had been no understanding as to an

       offer at the time of Hood’s trial. Further, Kennedy testified that the State had


       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 17 of 18
       not offered her anything. There is no evidence to support Hood’s claim that the

       State engaged in misconduct. Without such evidence, the trial court did not

       abuse its discretion in denying Hood’s motion to correct error.


[29]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1709-CR-2255 | August 23, 2018   Page 18 of 18
