Pursuant to Ind. Appellate Rule 65(D),                                            Oct 04 2013, 5:40 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

ERIC K. KOSELKE                                     GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    CHANDRA K. HEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHNNY HENDERSON,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1302-CR-178
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Lisa Borges, Judge
                        The Honorable Ann Flanelly, Commissioner
                            Cause No. 49G04-1207-FB-49067


                                         October 4, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

       Johnny Henderson, Jr. (“Henderson”) appeals his conviction for attempted

burglary, a Class B felony.

       We affirm.

                                         ISSUE

       Whether the trial court abused its discretion by admitting into evidence a
       redacted version of Henderson’s videotaped confession.

                                         FACTS

       On June 26, 2012, Janet Lahr (“Janet”) was at home taking a shower when she

heard a banging noise from somewhere in her house.           From her window, she saw

someone trying to kick in her front door. She activated the alarm system to her home,

went into her closet, and called 9-1-1. After speaking to two 9-1-1 operators, Janet heard

the piercing sound of her home’s alarm system. She then received a call from her

security system company. The security system operator instructed Janet to leave her

closet because the police had arrived at her home. Janet went to the front door and

attempted to open it, but she discovered that the door was broken and unable to be

opened. She exited through her garage and met police outside of her home.

       The police examined Janet’s residence and did not find anyone inside or around it.

When Janet’s husband, James Lahr (“James”), arrived at the home, he informed police of

the video surveillance system installed on the residence. James later testified that he had

installed the security system at the residence, and that it was motion-activated, in use on

June 26, 2012, and working properly. He also testified that the video surveillance system

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is stored on a computer, the footage remains in a permanent file on the hard drive of his

computer, and that the video footage automatically has a date and time stamp on it.

Police requested video surveillance from the relevant time, and the next day, James

provided police with the video surveillance footage from the Lahr residence at the time of

the incident.

       Examination of the surveillance video showed two (2) black men arrive in a Ford

Explorer and approach the front door and side service door. In the video, one of the men

disables one of the surveillance cameras. The men then appear to push and kick at the

front door and the side service door and then leave.

       Detective Jon Walls (“Det. Walls”) of the Indianapolis Metro Police Department

viewed the surveillance video and was able to locate Henderson by tracking the license

plate numbers from the Ford Explorer in the video through different persons familiar with

the truck. On July 13, 2012, Det. Walls spoke with Henderson at the City-County

Building in Indianapolis. Det. Walls planned to interrogate Henderson regarding the

attempted burglary on the Lahr residence, and he brought still photographs from the

surveillance video, a laptop computer, an advisement-of-rights form, and a waiver-of-

rights form. Prior to speaking with Henderson, Det. Walls advised Henderson of his

Miranda rights using a pre-printed form, gave Henderson a copy of the form, and asked

whether Henderson had any questions about the form. Henderson did not have any

questions and told Det. Walls that he would give a statement. Henderson signed the

waiver-of-rights form. Det. Walls then turned his computer on and recorded a video of


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Henderson’s statement. Within the statement, Henderson confessed to attempting to

burglarize the Lahr residence.

       The State charged Henderson with attempted burglary, and, on January 22, 2013,

the trial court held an evidentiary hearing at the State’s request. One of the issues

presented was whether Det. Walls’ recording of Henderson’s confession met the

requirements of Indiana Evidence Rule 617.       Additionally, because Henderson was

representing himself, the State sought to protect Henderson’s rights and redact certain

statements from Henderson’s confession because the statements were inadmissible. In

particular, the State sought to exclude statements regarding Henderson’s prior criminal

history and the fact that Henderson was on probation at the time he committed his present

offense.   The trial court agreed with the State and ordered that all references to

Henderson’s prior criminal history and character must be redacted under Indiana

Evidence Rules 402, 403, 404(b), and 609.

       On January 24, 2013, a jury found Henderson guilty as charged. On January 31,

2013, the trial court sentenced Henderson to twenty (20) years in the Department of

Correction and ordered restitution to the victims in the amount of $250. Henderson now

appeals this conviction.

                                      DECISION

       Henderson argues that the trial court erred in admitting his videotaped statement

because it was “incomplete.” (Henderson’s Br. 4). In response, the State argues that

while the initial advisement of rights prior to the interrogation was not recorded, the


                                            4
recording captures the entire interrogation, except for certain statements which the trial

court permitted it to redact. The State further argues that because the statements omitted

from within the recording were inadmissible under Rule 404(b), the trial court properly

admitted a redacted version. (State’s Br. 7). We agree.

      The admission or exclusion of evidence is entrusted to the discretion of the trial

court. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). We will reverse a trial

court’s decision only for an abuse of discretion. Id. An abuse of discretion occurs when

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

circumstances or if the trial court misinterprets the law. Id. We will consider the

conflicting evidence most favorable to the trial court’s ruling and any uncontested

evidence most favorable to the defendants. Id. “In determining whether an error in the

introduction of evidence affected an appellant’s substantial rights, we assess the

probability of the impact of the evidence on the jury. Admission of evidence is harmless

and is not grounds for reversal where the evidence is merely cumulative of other evidence

admitted.” Id. (citations omitted).

      Henderson argues that his recorded statement is inadmissible under Indiana

Evidence Rule 617 because “the complete custodial interrogation was not on videotape.”

(Henderson’s Br. 7). Indiana Evidence Rule 617 states in relevant part:

      Rule 617 Unrecorded statements during custodial interrogation [effective
      January 1, 2011]

      (a) In a felony criminal prosecution, evidence of a statement made by a
          person during a Custodial Interrogation in a Place of Detention shall not


                                            5
          be admitted against the person unless an Electronic Recording of the
          statement was made, preserved and is available at trial . . . .

       (b) The Electronic Recording must be a complete, authentic, accurate,
           unaltered and continuous record of a Custodial Interrogation.

       First, Henderson argues that the recording Det. Walls produced violates Rule 617

because Det. Walls did not turn on his recording device until after informing Henderson

of his Miranda rights and receiving Henderson’s waiver. However, as the State correctly

points out, Miranda warnings do not constitute “interrogation,” which we have

previously defined as, “words or actions on the part of the police that the police know are

reasonably likely to elicit an incriminating response from the defendant.” Furnish v.

State, 779 N.E.2d 576, 579 (Ind. Ct. App. 2002), trans. denied (internal citation and

quotation marks omitted). See also Steele v. State, 975 N.E.2d 430, 431-32 (Ind. Ct. App.

2012) (discussing advisement of rights and custodial interrogation separately in the

context of Rule 617). Because the advisement of rights cannot be properly characterized

as custodial interrogation, it need not have been recorded for Henderson’s subsequent

statement and confession to be admissible under Rule 617. Accordingly, we find that

Henderson’s challenge on that ground is without merit.

       Henderson also argues that the trial court erred in allowing the State to redact

certain portions of the recording. In response, the State maintains that in recognizing that

Henderson was representing himself and may not have been well-versed in the rules of

evidence, it proactively sought to redact all references to Henderson’s probation status

and prior crimes to ensure that a violation of Indiana Evidence Rule 609 did not occur.


                                             6
       Because the redacted statements at issue are limited to references that Henderson

was on probation at the time he committed this offense and that Henderson has a prior

criminal history, the State is correct in asserting that the statements are prohibited under

Evidence Rule 404(b) and were necessarily redacted. See Sisson v. State, 985 N.E.2d 1,

16 (Ind. Ct. App. 2012) (“The only possible purpose for admitting evidence of his past

crimes as substantive evidence would be to show that [the defendant] had a propensity to

commit burglary and acted in conformity therewith. As such, the evidence would fall

squarely within the prohibition of Evidence Rule 404(b).”) Accordingly, the trial court

did not abuse its discretion in admitting a redacted version of Henderson’s confession

where the redacted statements included inadmissible evidence.

       Having found that the recording included all parts of the interrogation, minus the

redacted portions prohibited under Rule 404(b), we conclude that the recording was

admissible under Rule 617.      We therefore find that the trial court did not abuse its

discretion in admitting Henderson’s recorded statement.

       Affirmed.

BARNES, J., and CRONE, J., concur.




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