MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              May 27 2016, 8:03 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Amanda O. Blackketter                                   Gregory F. Zoeller
Blackketter Law, LLC                                    Attorney General of Indiana
Shelbyville, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Francis Corley,                                 May 27, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        73A01-1507-CR-914
        v.                                              Appeal from the Shelby Circuit
                                                        Court
State of Indiana,                                       The Honorable Charles D.
Appellee-Plaintiff                                      O’Connor, Judge
                                                        Trial Court Cause No.
                                                        73C01-1501-F5-8



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016      Page 1 of 8
[1]   Michael F. Corley (“Corley”) was convicted in Shelby Circuit Court of Level 5

      felony trafficking with an inmate, Level 5 felony bribery, and Class A

      misdemeanor trafficking with an inmate. On appeal, Corley claims that the trial

      court abused its discretion by admitting into evidence the recordings of two jail

      telephone calls between Corley and two unknown individuals.


[2]   We affirm.

                                    Facts and Procedural History

[3]   At the time relevant to this appeal, Jerrica Kirby (“Kirby”) was a jail officer

      employed by the Shelby County Sheriff’s Department. As part of her duties as a

      jail officer, Kirby transported inmates, checked on inmates, and passed out

      food, clothing, and supplies to the inmates.


[4]   In December 2014, one of the inmates of the Shelby County Jail at the time was

      Corley. Corley began to “jokingly” ask Kirby to bring tobacco into the jail for

      him. Kirby eventually agreed to bring tobacco into the jail for Corley, knowing

      that tobacco was prohibited inside the jail. Kirby and Corley agreed that she

      would bring tobacco into the jail and give it to Corley in exchange for money.

      To arrange this, Kirby allowed Corley to use her cell phone, even though cell

      phones were also banned inside the jail. After Corley contacted his sources

      outside the jail using Kirby’s cell phone, Kirby talked with Corley’s long-time

      friend, Adam Bennett (“Bennett”) about obtaining the tobacco. Corley told

      Kirby that Bennett would provide her with the tobacco and money for her

      involvement.


      Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 2 of 8
[5]   Thereafter, Kirby telephoned Bennett, and the two agreed to meet at a local

      drug store parking lot. At the parking lot, Bennett approached Kirby’s car and

      handed her $100 and a one-pound bag of pipe tobacco. Kirby later divided the

      tobacco into smaller portions and placed these portions inside zip-top sandwich

      bags. The next time she went to work, Kirby took the tobacco into the jail and

      slid it to Corley under the door to his jail cell while making her rounds. Kirby

      repeated her actions at least two more times.


[6]   Another jail inmate, B.B., noticed that Corley was reselling tobacco in the jail.

      Corley falsely told this inmate that he was getting the tobacco through the jail

      laundry system. B.B. noticed, however, that Corley and Kirby had several

      interactions, with Kirby stopping at the door to Corley’s cell.


[7]   Shelby County Jail Commander Jerad Sipes (“Sipes”) began to investigate the

      presence of tobacco in the jail. Eventually Sipes spoke with B.B., who informed

      him of Corley’s interactions with Kirby. Sipes then reviewed jail surveillance

      video, which showed Kirby bending down in front of Corley’s cell door. He

      also reviewed audio recordings of jail phone calls made by Corley. In one of

      these recorded calls, Corley tells the woman to whom he is talking that he

      found a “mule” and asks her for $100. Ex. Vol., State’s Ex. 2. He also tells her,

      “I need you and Adam to . . . that’s part of the deal,” and “I really need you

      guys to come through with something for me.” Id. In another call, he refers to

      person on the line as “Adam” and tells him, “I’m gonna try to get that hundred

      back to you.” Id., State’s Ex. 4.



      Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 3 of 8
[8]    When Kirby was confronted by her superiors, she admitted that she had

       trafficked with an inmate. She was then fired and turned over various items in

       her possession belonging to the Sheriff’s Department. She also turned over the

       bag of tobacco. Kirby was later charged with the crime of trafficking with an

       inmate. Bennett, who refused to cooperate with the investigation, was also

       charged with trafficking with an inmate and bribery.

[9]    On January 28, 2015, the State charged Corley with three counts: Count I,

       Level 5 felony trafficking with an inmate; Count II, Level 5 felony bribery; and

       County III, Class A misdemeanor trafficking with an inmate. The State later

       added an allegation that Corley was a habitual offender.

[10]   A three-day jury trial was held on June 8 – 10, 2015. At trial, the State offered

       into evidence the video recordings from the surveillance cameras and the

       recorded jail telephone calls into evidence. The trial court admitted these over

       Corley’s objection. Kirby testified against Corley and admitted that she had

       provided Corley with tobacco and a cell phone and had received $100 in

       exchange. At the conclusion of the trial, the jury found Corley guilty as

       charged. The trial court subsequently sentenced Corley to four-and-one-half

       years’ incarceration on both Level 5 felony counts and to one year on the

       misdemeanor count. The trial court enhanced the sentence on Count II by

       thirty months and ordered the sentences on all counts to be served concurrently,

       for an aggregate term of eighty-four months, i.e. seven years. Corley now

       appeals.



       Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 4 of 8
                                            Standard of Review

[11]   Corley contends on appeal that the trial court erred in admitting into evidence

       two of the recordings made of his jail telephone calls. Decisions regarding the

       admission of evidence are entrusted to the sound discretion of the trial court,

       and we review the court’s decision only for an abuse of that discretion. Rogers v.

       State, 897 N.E.2d 955, 959 (Ind. Ct. App. 2008), trans. denied. A trial court

       abuses its discretion if its decision is clearly against the logic and effect of the

       facts and circumstances before the court, or if the court has misinterpreted the

       law. Id.


                                        Discussion and Decision

[12]   Corley argues that the trial court erred in admitting into evidence State’s

       Exhibits 5 and 6 because only one of the parties to the conversation was

       authenticated. Corley notes that it has been held that “the identities of both

       parties must be authenticated before admitting a telephone call.” Young v. State,

       696 N.E.2d 386, 389 (Ind. 1998) (citing King v. State, 560 N.E.2d 491, 494 (Ind.

       1990)); see also Johnson v. State, 699 N.E.2d 746, 749 (Ind. Ct. App. 1998)

       (noting that a recording is not admissible unless the voices contained thereon

       are identified). A caller’s identity can be established by circumstantial evidence

       and need not be proven beyond a reasonable doubt. Young, 696 N.E.2d at 389.


[13]   Here, Corley does not deny the presence of evidence establishing that his voice

       was one of the voices on Exhibits 5 and 6. Instead, he correctly notes that the

       identity of the other voices on these calls was never established. The State


       Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 5 of 8
       responds by noting that our courts have repeatedly upheld the admission of

       recorded jail telephone calls. See, e.g., Baer v. State, 866 N.E.2d 752, 762 (Ind.

       2007) (affirming trial court’s admission of recording of jail telephone call made

       by defendant to his sister). However, in Baer, the identity of both parties on the

       call was apparently known. The other cases cited by the State are readily

       distinguishable.

[14]   In Dorsey v. State, 802 N.E.2d 991 (Ind. Ct. App. 2004), the defendant argued

       that the conversations on a recorded phone call was hearsay. This court held

       that the unidentified speaker was acting as the defendant’s agent and that the

       statements were therefore not hearsay but the statement of a party. Id. at 994-95

       (citing Ind. Evidence Rule 801(d)(2)(D)). Thus, in Dorsey, there was no question

       regarding the authentication of the unidentified speaker on the recording.

[15]   In Steinberg v. State, 941 N.E.2d 515 (Ind. Ct. App. 2011), the identity of the

       parties on the recorded call were known to be the defendant and his parents. On

       appeal, the defendant claimed that the admission of the recordings was

       improper under both the Federal Wiretap Act and the Indiana Wiretap Act and

       that recordings contained hearsay and irrelevant and unduly prejudicial

       information. Again, there was no question regarding the authentication of

       voices on the call.


[16]   Thus, Corley has a colorable argument that the identity of the other participant

       to the calls should have been established before Exhibits 5 and 6 were admitted




       Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 6 of 8
       into evidence. Even if we assume arguendo that these exhibits were improperly

       admitted, though, it does not require us to reverse Corley’s convictions.

[17]   We will not reverse a defendant's conviction if the error was harmless. Harrison

       v. State, 32 N.E.3d 240, 254 (Ind. Ct. App. 2015), trans. denied. Generally, errors

       in the admission of evidence are to be disregarded unless they affect the

       substantial rights of a party. Id. An error is considered to be harmless if

       substantial independent evidence of guilt satisfies the reviewing court that no

       substantial likelihood exists that the challenged evidence contributed to the

       conviction. Id.


[18]   Here, we conclude there was substantial independent evidence of Corley’s guilt

       other than the challenged recordings. That evidence satisfies us that there is no

       substantial likelihood that the admission of these two recorded phone calls

       contributed to the jury’s verdict. First, the statements on the challenged

       recorded calls are brief and not terribly incriminating. On one, Corley admits

       that the tobacco was “delicious.” Ex. Vol., State’s Ex. 6. On the other, the

       unidentified man with whom Corley is talking states that he was “nervous” and

       afraid that “something was gonna go bad.” Corley tells the man that he has

       $160 in an account that he could release to the man, and the man responds that

       he will “figure something out.” Id., State’s Ex. 5.


[19]   However, the statements in the recordings pale in comparison to the other

       evidence of Corley’s guilt: Corley admitted to B.B., his fellow inmate, that he

       was distributing tobacco in the jail (although he falsely claimed to be obtaining


       Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 7 of 8
       it through the laundry). Kirby admitted that, in exchange for $100, she gave

       Corley tobacco by sliding bags of it under his cell door and unchallenged video

       recordings from the jail show Kirby bending down in front of Corley’s cell.

       Other unchallenged recorded telephone calls from the jail reveal that Corley

       stated that he had found a “mule,” asked for $100, and told “Adam” that he

       would repay him “that hundred.” Ex. Vol., State’s Ex. 2, 4. Given this rather

       overwhelming evidence of Corley’s guilt, we can safely say that the admission

       of State’s Exhibits 5 and 6 was, at most, harmless error.


[20]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision No. 73A01-1507-CR-914 | May 27, 2016   Page 8 of 8
