MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Mar 05 2018, 10:27 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
Jerry T. Drook                                           Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Barry Lee Cook,                                          March 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A05-1708-CR-1851
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         Trial Court Cause No.
                                                         27D02-1602-F4-4



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018            Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, Barry Lee Cook was convicted of dealing in a narcotic

      drug and unlawful possession of a firearm by a serious violent felon, both Level

      4 felonies. Cook now appeals his convictions, presenting only one issue for our

      review which we restate as: whether the trial court abused its discretion when it

      allowed a confidential informant’s deposition to be admitted as evidence at trial

      under the “forfeiture by wrongdoing” hearsay exception. Concluding the trial

      court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   In January 2016, the Marion Police Department apprehended H.B., a young

      woman named as a suspect in a recent robbery. At the time, H.B. was leaving

      the Greentree Apartments complex, a location under surveillance by the Grant

      County Joint Effort Against Narcotics (“JEAN team”) due to recent drug

      activity. In exchange for the State foregoing criminal charges against her, H.B.,

      an admitted heroin addict, agreed to make controlled buys at the Greentree

      Apartments complex and was assigned a confidential informant number.


[3]   Thereafter, and under the surveillance of the JEAN team, H.B. contacted Cook,

      her purported drug supplier in Greentree Apartments, and arranged to purchase

      heroin. This phone call was recorded and JEAN detectives fitted H.B. with a

      video recording device and supplied her with $150 of “buy money” to make the

      purchase of heroin. The “buy money” was photocopied and recorded on a


      Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 2 of 12
      digital device. H.B. was then transported back to the Greentree Apartments

      complex and, under surveillance by JEAN detectives, entered an apartment to

      make contact with Cook.


[4]   In a video later presented at trial, H.B. found Cook seated at a table next to

      Evelyn Huffman, one of two women present in the apartment along with Carly

      Snyder. A handgun was positioned on the table nearby, and H.B. took a seat

      before handing Cook the “buy money.” Cook accepted the money and handed

      H.B. five small bags of heroin weighing a total of .33 grams. H.B. then placed

      the heroin inside a Cigarillo package handed to her by Huffman and

      rendezvoused with Detective Leland Smith outside the apartment complex.


[5]   The JEAN team then obtained and executed a search warrant on the

      apartment. Inside, officers located Cook, Snyder, and Huffman, and found a

      handgun on the floor near where Cook was seated. The “buy money” was also

      found in Cook’s pockets and he was arrested and charged with dealing in a

      narcotic drug and unlawful possession of a firearm by a serious violent felon,

      both Level 4 felonies.


[6]   At trial, Snyder and Huffman testified against Cook. Snyder testified that she

      observed Cook move the handgun from the table to the floor where it was

      discovered by officers. Snyder also testified that Cook had instructed her to

      package a specific amount of heroin and that she had witnessed Cook hand a

      woman heroin in exchange for cash. Similarly, Huffman testified that she




      Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 3 of 12
      witnessed Cook hand a woman heroin in exchange for cash and that the

      woman put the drugs in a Cigarillo package, which she had handed her.


[7]   After H.B. failed to appear at trial, the State presented evidence that Cook and

      one of his cellmates, Devin Sims, had called several individuals, including

      Cook’s mother and sister, asking them to persuade H.B. not to testify against

      Cook. Julie Autry, an investigator with the Grant County Prosecutor’s Office,

      testified that H.B. was afraid and had reported several threats. Autry also

      testified that she had listened to a number of jail phone calls and that she

      recalled hearing Sims attempting to obtain H.B.’s phone number and telling the

      recipient of the phone call to tell H.B. “not to go to Court, that she needs to stay

      where she is.” Transcript, Volume 2 at 122. Over Cook’s objection, the trial

      court permitted the State to present H.B.’s pretrial deposition pursuant to the

      “former testimony” hearsay exception and the “forfeiture by wrongdoing”

      hearsay exception. H.B. had stated in the deposition that she went to Greentree

      Apartments and gave Cook cash in exchange for drugs.


[8]   The jury found Cook guilty of dealing in a narcotic drug, and, in a second

      phase of the trial, the jury found Cook guilty of unlawful possession of a firearm

      by a serious violent felon, both Level 4 felonies. Thereafter, the trial court

      sentenced Cook to concurrent sentences of eight years executed in the Indiana

      Department of Correction followed by two years suspended to probation. Cook

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 4 of 12
                                  Discussion and Decision
[9]    Cook contends that the trial court abused its discretion in admitting H.B.’s

       deposition under the “forfeiture by wrongdoing” hearsay exception and that, in

       so doing, the trial court violated his Sixth Amendment right to confrontation.


                                        I. Standard of Review
[10]   A trial court has broad discretion to admit or exclude evidence, including

       purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). Rulings on

       the admission of evidence are reviewed for abuse of discretion. McHenry v.

       State, 820 N.E.2d 124, 128 (Ind. 2005). 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. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012).


                                                  II. Hearsay
[11]   The Sixth Amendment to the United States Constitution provides that “in all

       criminal prosecutions the accused shall enjoy the right . . . to be confronted with

       the witnesses against him.”1 Through incorporation, the Sixth Amendment

       applies to the states under the Fourteenth Amendment’s Due Process and Equal

       Protection Clauses. Pointer v. Texas, 380 U.S. 400, 406 (1965). In criminal

       cases, the Confrontation Clause prohibits the use of any hearsay against the




       1
         Although Cook also alleges that his right to confrontation under Article 1, Section 13 of the Indiana
       Constitution was violated, he makes no separate argument on that basis. Therefore, we need not address the
       issue separately. Jackson v. State, 735 N.E.2d 1146, 1150 n. 1 (Ind. 2000).

       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018           Page 5 of 12
       accused in a criminal case unless the declarant is unavailable to testify and the

       accused had a prior opportunity to cross-examine the declarant. Crawford v.

       Washington, 541 U.S. 36, 59 (2004).


[12]   Hearsay is an out-of-court statement offered for “the truth of the matter

       asserted.” Ind. Evidence Rule 801(c)(2). Hearsay is generally not admissible as

       evidence, Evid.R. 802, and whether a statement is hearsay, “will most often

       hinge on the purpose for which it is offered.” Blount, 22 N.E.3d at 565. As a

       general rule, “the deposition testimony of an absent witness offered in court to

       prove the truth of the matter asserted represents classic hearsay.” Jackson, 735

       N.E.2d at 1150. “However, under both Indiana Trial Rule 32 and Indiana

       Evidence Rule 804 this hearsay testimony may be admissible as evidence at trial

       as an exception to the hearsay rule.” Id.


                                    A. Forfeiture by Wrongdoing
[13]   Indiana Evidence Rule 804(b) provides:


               Hearsay Exceptions. The following are not excluded by the
               hearsay rule if the declarant is unavailable as a witness.


               ***


                       (5)      Statement Offered Against a Party That Wrongfully
                                Caused the Declarant’s Unavailability. A statement
                                offered against a party that has engaged in or
                                encouraged wrongdoing that was intended to, and
                                did, procure the unavailability of the declarant as a
                                witness for the purpose of preventing the declarant

       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 6 of 12
                                 as a witness for the purpose of preventing the
                                 declarant from attending or testifying.


[14]   We first addressed Rule 804(b)(5) in White v. State, 978 N.E.2d 475 (Ind. Ct.

       App. 2012), trans. denied. There, because Rule 804(b)(5) 2 was patterned on its

       federal counterpart, Federal Evidence Rule 804(b)(6), we looked to federal case

       law and relied upon the following explanation of the forfeiture by wrongdoing

       hearsay exception by the Second Circuit Court of Appeals:


               prior to finding that a defendant waived his confrontation rights
               with respect to an out-of-court statement by an actual or potential
               witness admitted pursuant to Rule 804(b)(6), the district court
               must hold an evidentiary hearing outside the presence of the jury
               in which the government has the burden of proving by a preponderance
               of the evidence that (1) the defendant (or party against whom the out-of-
               court statement is offered) was involved in, or responsible for, procuring
               the unavailability of the declarant “through knowledge, complicity,
               planning or in any other way;” and (2) the defendant (or party against
               whom the out-of-court statement is offered) acted with the intent of
               procuring the declarant’s unavailability as an actual or potential witness.
               . . . The government need not, however, show that the defendant’s sole
               motivation was to procure the declarant’s absence; rather, it need only
               show that the defendant was motivated in part by a desire to
               silence the witness. . . . Further, in order to avoid the admission
               of facially unreliable hearsay, the district court should undertake
               a balancing of probative value against prejudicial effect in
               accordance with Fed.R.Evid. 403. The district court’s findings
               after a hearing will not be disturbed unless they are clearly
               erroneous, and we are particularly hesitant to disturb the court’s




       2
        “[Rule 804(b)(5)] was not in the original Evidence Rules, but was adopted by amendment effective [July 1,]
       2009.” Id.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018           Page 7 of 12
                  determinations when they are based on its evaluation of the
                  credibility of witnesses.


       Id. at 479-80 (citing United States v. Dhinsa, 243 F.3d 635, 653-54 (2nd Cir.

       2001), cert. denied, 534 U.S. 897 (2001)) (citations and quotations omitted).


[15]   Here, following a hearing outside the presence of the jury, the trial court

       concluded:


                  [U]nder 804(B)(5) a statement offered against a party that
                  wrongfully caused the declarant’s unavailability having listened
                  to the testimony of Ms. Autry as well as all of the jail calls that
                  were submitted by the State, I do find that the State has shown
                  that the defendant wrongfully caused the unavailability of [H.B.]
                  and therefore that he has waived his right to, his [Crawford v.
                  Washington] right essentially to confront and cross-examine that
                  person in, in person during the trial, so the deposition is
                  admissible and the State may present that by having it read into
                  the record.


       Tr., Vol. 2 at 142.


[16]   On appeal, Cook confines his argument solely to the issue of balancing under

       Rule 403.3 Although unsupported by citations to precedent, Cook suggests that

       the trial court abused its discretion when it “failed to make any statement to




       3
           Indiana Evidence Rule 403 provides:
                The court may exclude relevant evidence if its probative value is substantially outweighed by a
                danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
                jury, undue delay, or needlessly presenting cumulative evidence.



       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018                Page 8 of 12
       indicate that she made any determination that the probative value of the [Rule]

       804(b)(5) evidence outweighed the danger of unfair prejudice.” Brief of

       Appellant at 15. For several reasons, we disagree.


[17]   We begin by observing that Cook never objected to the admission of H.B.’s

       prior deposition on Rule 403 grounds. “To preserve a claimed error in the

       admission of evidence, a party must make a contemporaneous objection that is

       sufficiently specific to alert the trial judge fully of the legal issue.” Raess v.

       Doescher, 883 N.E.2d 790, 797 (Ind. 2008) (internal quotations omitted). “The

       requirement that evidentiary objections be made timely is for the purpose of

       permitting a trial court to take appropriate preventative or corrective action

       during trial.” Stephenson v. State, 29 N.E.3d 111, 119 (Ind. 2015). Had Cook

       timely objected to the deposition’s admission on Rule 403 grounds, the trial

       court could have easily made a statement that the probative value of the Rule

       804(b)(5) evidence outweighed the danger of unfair prejudice—just as Cook

       now requests. But, since Cook failed to lodge a timely objection, absent

       fundamental error, he is procedurally foreclosed from raising this issue on

       appeal. Id. at 118.


[18]   Waiver notwithstanding, Cook has failed to demonstrate the trial court abused

       its discretion. We have previously explained that the weighing of the probative

       value of evidence against the danger of unfair prejudice “is a discretionary task

       best performed by the trial court.” Bryant v. State, 984 N.E.2d 240, 249 (Ind. Ct.

       App. 2013), trans. denied. Here, Cook has failed to provide us a basis to

       question the trial court’s decision; rather, Cook advances an argument

       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 9 of 12
       regarding a potential contradiction between video evidence and H.B.’s

       deposition, which is an argument pertaining to the evidence’s weight, not its

       admissibility. And finally, contrary to Cook’s apparent claim on appeal, a trial

       court does not abuse its discretion simply by failing to make a specific finding

       regarding the application of Rule 403. Fry v. State, 748 N.E.2d 369, 372 (Ind.

       2001) (“Although the trial court did not make a specific finding on the balance

       of prejudice and probative value, it did not abuse its discretion under Rule

       403.”). Therefore, we conclude the trial court did not abuse its discretion in

       admitting H.B.’s prior deposition under Rule 804(b)(5).


                                             B. Harmless Error
[19]   Regardless of whether the trial court abused its discretion, any such error would

       be harmless. “Generally, errors in the admission of evidence are to be

       disregarded unless they affect the substantial rights of a party.” Hoglund v. State,

       962 N.E.2d 1230, 1238 (Ind. 2012). In determining the effect of the evidence

       on a defendant’s substantial rights, we look to the probable impact on the fact

       finder. Id. Moreover, the “improper admission [of evidence] 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.


[20]   First, the trial court admitted H.B.’s prior deposition under two different

       hearsay exceptions: “former testimony” and “forfeiture by wrongdoing.” The

       trial court explained:


       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 10 of 12
               Alright, so at this point I’m going to go ahead and rule on the
               issue that I have before me and that is the admissibility of the
               deposition. I see two theories upon which it can come in, the
               first of those is 804(B)(1) as former testimony. The defendant
               wanted to depose [H.B.]. [H.B.] was produced for that
               deposition. Therefore, the, the [sic] deposition is former
               testimony from this case given during a lawful deposition and it’s
               now offered against a party who had an opportunity and similar
               motive to develop by direct, cross, or re-direct examination so
               under 804(B)(1) it comes in, and under 804(B)(5) . . . I do find
               that the State has shown that the defendant wrongfully caused
               the unavailability of [H.B.]


       Tr., Vol. 2 at 141-42. Thus, even if Cook successfully demonstrated that the

       evidence was inadmissible under the “forfeiture by wrongdoing” hearsay

       exception, he was still required to demonstrate the trial court abused its

       discretion by admitting the evidence under the “former testimony” exception.

       Cook, however, waived this issue by failing to raise it on appeal. Ind. Appellate

       Rule 46(A)(8); Dye v. State, 717 N.E.2d 5, 13 (Ind. 1999). Therefore, any error

       under Rule 804(b)(5) was harmless because the evidence was otherwise

       admissible. See Wallace v. State, 79 N.E.3d 992, 997 (Ind. Ct. App. 2017)

       (noting that it is well established that our court may affirm an evidentiary

       decision based on any legal theory supported by the record).


[21]   Moreover, there was substantial independent evidence of Cook’s guilt. The

       record reveals that both Snyder and Huffman testified to Cook’s sale of heroin

       to H.B. as well as the surrounding events: Snyder testified that she packaged the

       heroin for the deal and Huffman testified that she gave H.B. a Cigarillo package

       that H.B. later used to conceal the heroin. Snyder testified that she witnessed
       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 11 of 12
       Cook in possession of the handgun prior to the officers’ arrival and the handgun

       was found near where Cook was seated. Officers also discovered the

       previously-recorded “buy money” in Cook’s pockets. Accordingly, any error

       would be harmless.



                                               Conclusion
[22]   For the reasons set forth more thoroughly above, we conclude the trial court did

       not abuse its discretion when it admitted H.B.’s prior deposition under Rule

       804(b)(5), and that even if it did, any such error would be harmless. We

       therefore affirm Cook’s convictions.


[23]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1708-CR-1851 | March 5, 2018   Page 12 of 12
