MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jul 25 2017, 6:31 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James A. Spangler, Jr.                                    Curtis T. Hill, Jr.
Lawrence County Public                                    Attorney General of Indiana
Defender Agency
                                                          Katherine Cooper
Bedford, Indiana                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

L.M.,                                                     July 25, 2017
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          47A04-1612-JV-2789
        v.                                                Appeal from the Lawrence Circuit
                                                          Court
State of Indiana,                                         The Honorable John M. Plummer
Appellee-Petitioner.                                      III, Juvenile Referee
                                                          The Honorable Andrea K.
                                                          McCord, Judge
                                                          Trial Court Cause No.
                                                          47C01-1606-JD-194



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017          Page 1 of 11
[1]   L.M. was adjudicated a delinquent child in Lawrence Circuit Court for

      committing what would be Level 4 child molesting if done by an adult, and was

      made a ward of the Department of Correction. L.M. now appeals the admission

      of certain evidence at the delinquency hearing.


[2]   We affirm.


                                  Facts and Procedural Posture
[3]   In May 2016, L.M. was a sixteen-year-old boy living with his father Brandon in

      Huron, Indiana. Jeena Baker (“Baker”) was Brandon’s ex-girlfriend, and lived

      with her twelve-year-old daughter A.M. in Springville, Indiana. Baker and

      Brandon’s relationship had lasted for many years, and A.M. thought of

      Brandon as her father. A.M. would sometimes stay at Brandon’s house on the

      weekends.


[4]   A.M. stayed at Brandon’s on Memorial Day weekend of 2016. One night that

      weekend, L.M. and A.M. were watching a movie in L.M.’s bedroom, together

      with Brandon’s girlfriend’s three young children. As they watched the movie,

      L.M. told A.M. that he and Brandon’s fourteen-year-old niece (“Cousin”), who

      was not present in L.M.’s bedroom at the time, “used to do stuff,” Tr. p. 89,

      and that he had fondled her. Then, in A.M.’s words,


              I feel his hand on my leg and at first I pushed it off and stuff and
              then all of a sudden I feel him trying to stick his hands down my
              pants [under my underwear] and I . . . pulled his hand away, like,
              several times but he wouldn’t stop. . . . [I]t went on awhile [until]
              I got up [and left L.M.’s bedroom].

      Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 2 of 11
      Tr. pp. 91-92.


[5]   A few days later, A.M. told Cousin what L.M. had done. That report soon

      reached Brandon and Baker, who took A.M. to be interviewed at the Lawrence

      County sheriff’s office. A.M. repeated her story to a sheriff’s detective in a

      videotaped interview. On June 15, 2016, the State petitioned to have L.M.

      adjudicated a delinquent child for committing what would be Level 4 felony

      child molesting if done by an adult. After a delinquency hearing on August 16,

      2016, L.M. was adjudicated delinquent on August 29, 2016, and made a ward

      of the Department of Correction at a dispositional hearing on November 1,

      2016.


[6]   L.M. now appeals, challenging the admission of certain evidence at the

      delinquency hearing.


                                          Standard of Review
[7]   We review challenges to a juvenile court’s admission of evidence at a

      delinquency hearing for prejudicial abuse of the court’s discretion. J.L. v. State,

      5 N.E.3d 431, 436 (Ind. Ct. App. 2014). A court abuses its discretion by ruling

      in a way clearly against the logic and effect of the facts and circumstances

      before it, id., or by misinterpreting the law. Williams v. State, 43 N.E.3d 578, 581

      (Ind. 2015).




      Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 3 of 11
                                      Discussion and Decision
[8]   Hearsay is an out-of-court statement offered for the truth of the matter asserted

      therein. Ind. Evidence Rule 801(c). An out-of-court statement offered for a

      different purpose is not hearsay, including as circumstantial evidence of the

      declarant’s state of mind, Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997), or

      as evidence of the statement’s effect on the hearer. Sylvester v. State, 698 N.E.2d

      1126, 1129 (Ind. 1998). Hearsay is inadmissible unless within an exception to

      the rule against it. Ind. Evid. R. 802 (hearsay inadmissible), 803–04

      (exceptions). Where hearsay is offered within hearsay, each part of part of the

      statement must be separately admissible. Id. 805.


[9]   “Whether a statement is hearsay will most often hinge on the purpose for which

      it is offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (citation,

      quotation, and ellipsis omitted). Where an out-of-court statement is offered for

      its effect on the hearer in the broader context of showing why an investigation

      proceeded the way it did, our courts sometimes refer to such statements as

      “course of investigation” evidence. See id. While such evidence may help

      “bridge the gaps in the trial testimony,” id., it is often largely or entirely

      irrelevant to the “core issue at trial[:] . . . what the defendant did (or did not do),

      not why the investigator did (or did not do) something.” Id. (emphasis omitted)

      Thus, where such evidence is offered, the trial court must take special care in

      balancing its relevance against the danger of unfair prejudice under Indiana

      Evidence Rule 403. Id. at 566-67.



      Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 4 of 11
[10]   However, L.M. rests his arguments on appeal entirely on whether the

       challenged evidence was hearsay. He does not challenge any statement as

       admissible for its effect on the hearer but as inadmissible because irrelevant and

       prejudicial. We therefore confine our review to the question presented to us:

       whether the statements were hearsay.


            I.       Baker’s Statement “[A.M.] Had Told [Cousin] What Had
                                        Happened”

[11]   At the delinquency hearing, the following exchange took place between the

       prosecutor and Baker, A.M.’s mother:


                 [State:]       At some point, did you find out about an incident
                                involving [A.M.] and [L.M.]?

                 [Baker:]       Yes.

                 [State:]       How did you find out?

                 [Baker:]       Brandon called me on the phone and asked me to
                                ask [A.M.] if anything . . . had happened because
                                his step-mother had told him . . . that [A.M.] had
                                told [Cousin] what had happened.


       Tr. p. 68. For the purposes of our hearsay analysis, Baker’s testimony took the

       following restated form:


           • Cousin’s statement “A.M. told me what had happened,” within

           • Step-Mother’s statement “Cousin told me that A.M. told her what had

                 happened,” within



       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 5 of 11
           • Brandon’s statement “Step-Mother told me that Cousin told her that

               A.M. told her what had happened,” within

           • Baker’s testimony “Brandon told me that Step-Mother told him that

               Cousin told her that A.M. told her what had happened.”


       L.M. challenges this testimony as hearsay within hearsay not within an

       exception.


[12]   Neither Brandon’s statement to Baker nor any of the statements embedded in it

       was offered for its truth but for its effect on the hearer, in a manner similar to

       course-of-investigation evidence. The State asked Baker, “How did you find out

       [about an incident involving A.M. and L.M.,]” Tr. p. 68, or, put differently,

       “Why did you believe an incident involving A.M. and L.M. had occurred?” In

       response to that question, Baker answered that she believed it because Brandon

       told her so. The fact-finder was only invited to believe that Brandon had spoken

       to Baker as an explanation for Baker’s subsequent conduct: namely, “call[ing]

       [A.M.]” and “ask[ing] her if anything had happened.” Tr. p. 70. It was

       irrelevant in this context whether Brandon was lying when he spoke to Baker;

       the only relevant point was that Baker had been told something she

       subsequently acted on. The use of Baker’s testimony and Brandon’s statement

       for this purpose was not hearsay.


[13]   Our conclusion as to the purpose of this evidence is buttressed by the fact that

       the words “what had happened” are not in themselves “susceptible of being true

       or false” and thus are not in themselves a “statement” within the meaning of


       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 6 of 11
       the rule against hearsay. Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994); see Ind.

       Evid. R. 801(a) (defining “statement” as “assertion”). “[W]e acknowledge that

       the grammatical form of an utterance does not ultimately govern whether it is

       hearsay, Phillips v. State, 25 N.E.3d 1284, 1288-89 (Ind. Ct. App. 2015)

       (quotations omitted), and the fact-finder might have inferred the content of

       “what had happened” from A.M.’s later testimony. However, nothing in

       Baker’s testimony was so “specific and detailed” as to require the inference or

       as to bolster A.M.’s credibility. Williams v. State, 544 N.E.2d 161, 163 (Ind.

       1989).


                II.     Baker’s Statement “[A.M.] Said It Really Happened”

[14]   As noted above, after hearing from Brandon, Baker “called [A.M.]” and “asked

       her if anything had happened.” Tr. p. 70. Baker gave the following testimony

       about what happened next:


                [Baker:]        I talked to [A.M.] on the phone about it.

                [State:]        What did she tell you?

                [Defense:]      Objection, hearsay.

                [Court:]        Response?

                [State:]        I’ll withdraw the question.

                [Court:]        Next question, please. By the way, let me [sustain]
                                the objection formally. Next question, please.

                                                        ...

                [State:]        So after you talked to [A.M.] on the phone, what
                                did you do?

       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 7 of 11
               [Baker:]         I hung up and called Brandon and told him that she
                                said it really happened.

               [Defense objection to vouching overruled.]


       Tr. pp. 71-72. L.M. challenges Baker’s testimony “[A.M.] said it really

       happened” as hearsay not within an exception and as vouching.


[15]   As to hearsay, to the extent the trial court properly sustained L.M.’s hearsay

       objection to the State’s question “What did she tell you,” Tr. p. 71, Baker’s

       statement was not received or considered for its truth. Not considered for its

       truth, the residual relevance of Baker’s statement, as above, lay in showing its

       effect on its hearer in response to the State’s question “[W]hat did you do”:

       namely, to explain why Baker and Brandon then decided to take A.M. to be

       interviewed by police. Tr. p. 72 (“We discussed going to the police about it and

       then after that, I think it was the next day, I took [A.M.] to make a

       statement.”). Again, it was irrelevant whether A.M. was lying when she spoke

       to Baker; the only relevant point was that Baker had been told something she

       subsequently acted on. Baker’s testimony was not hearsay.


[16]   Nor was it vouching.


               Vouching testimony is specifically prohibited under Indiana
               Evidence Rule 704(b), which states: “Witnesses may not testify
               to opinions concerning intent, guilt, or innocence in a criminal
               case; the truth or falsity of allegations; whether a witness has
               testified truthfully; or legal conclusions.” This testimony is
               considered an [impermissible] invasion of the province of the
               [fact-finder] in determining what weight [it] should place upon a
               witness’s testimony.
       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 8 of 11
       Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App. 2014) (internal citation and some

       quotations omitted), trans. denied. Contrary to L.M.’s argument on appeal,

       Baker’s testimony did not “ma[k]e clear her belief that A.M. was telling the

       truth.” Appellant’s Br. at 17. The operative word “really” was clearly contained

       in A.M.’s statement to Baker as reported by Baker; it was not Baker’s

       evaluation of A.M.’s statement. It is as if A.M. told Baker, “I promise you it

       really happened.” For Baker to report this statement does not even imply a

       particular position on Baker’s part with respect to the statement’s truth or

       falsity. There was no vouching.


            III.    A.M.’s Statement “[L.M.] Was Telling Me How Him and
                                [Cousin] Used to Do Stuff”

[17]   At the delinquency hearing, A.M. testified in part as follows:


               [State:]         Okay, so you and [L.M.] were talking [as you sat in
                                his bedroom watching the movie]? Go ahead, I’m
                                sorry.

               [A.M.:]          And he was telling me how him and [Cousin] used
                                to do stuff.

               [State:]         What kind of stuff?

               [Defense:]       Judge, I’m going to object at this point in time based
                                on 404B.

               [Court:]         . . . Let me hear a response from the State on 404B
                                grounds.

               [State:]         That it’s not used—it’s not used to prove what
                                happened . . . that day. That it’s used more for the



       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 9 of 11
                                then existing mental, emotional, or physical
                                condition of him at the time.

                                                        ...

               [Court:]         Overruled. You may answer the question [“What
                                kind of stuff did L.M. say he and Cousin used to
                                do?”] if you remember the question. . . .

               [A.M.:]          [H]e just said he used to finger her and stuff like
                                that.


       Tr. pp. 90-91.


[18]   On appeal, the State characterizes the issue raised by this testimony as a

       hearsay problem, but L.M. characterizes it as a character-propensity evidence

       problem under Evidence Rule 404(B). We agree with the State. If the testimony

       were hearsay — that is, if it had been offered for the truth of the matter that

       L.M. used to fondle Cousin — then the testimony would be “[e]vidence of a

       crime, wrong, or other act” controlled by Rule 404(B). However, the testimony

       was not hearsay, as the State’s response at trial indirectly indicated.


[19]   As above, A.M.’s statement was not offered for its truth. The fact-finder was

       not invited to believe that L.M. and Cousin actually had done as L.M. said; it

       was entirely irrelevant to the State’s case whether L.M. was lying when he

       made this statement to A.M. Rather, the State’s only purpose was to show

       circumstantial evidence of L.M.’s state of mind — that it was oriented to

       “arous[ing] or . . . satisfy[ing] the sexual desires of . . . [L.M.],” Ind. Code § 35-

       42-4-3(b), an intent the State was required to prove as charged. Appellant’s


       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 10 of 11
       App. p. 8 (delinquency petition). Though the State framed its response at trial in

       terms of the exception to the rule against hearsay for statements of the

       declarant’s “then-existing state of mind,” Evid. R. 803(a), it is clear in context

       that the State was seeking to offer L.M.’s statement for the non-hearsay purpose

       of circumstantial evidence of state of mind.


                                                  Conclusion
[20]   All of the challenged evidence was admissible. None of the challenged evidence

       was hearsay. Baker never vouched for A.M., and A.M.’s testimony was not

       governed by Rule 404(B). There was no abuse of discretion, and the judgment

       of the juvenile court is therefore affirmed.


[21]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A04-1612-JV-2789 | July 25, 2017   Page 11 of 11
