      MEMORANDUM DECISION                                                       FILED
      Pursuant to Ind. Appellate Rule 65(D),                               Jul 13 2016, 9:26 am

      this Memorandum Decision shall not be                                     CLERK
                                                                            Indiana Supreme Court
      regarded as precedent or cited before any                                Court of Appeals
                                                                                 and Tax Court
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Jonathan C. Little                                       Mark D. Gerth
      David E. Miller                                          James W. Roehrdanz
      Jessica A. Wegg                                          Indianapolis, Indiana
      Saeed & Little
      Indianapolis, Indiana

      Nicholas F. Baker
      The Hastings Law Firm
      Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James Long,                                              July 13, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               49A05-1510-CT-1737
              v.                                               Appeal from the Marion Superior
                                                               Court
      Gordon Homes, Jr.,                                       The Honorable Timothy Oakes,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               49D02-1405-CT-014997



      Bailey, Judge.


[1]

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016          Page 1 of 7
                                           Case Summary
[2]   Appellant-Plaintiff James Long (“Long”) filed a negligence claim against

      Appellee-Defendant Gordon Homes, Jr. (“Homes”) and a jury returned a

      verdict in favor of Homes. Long appeals, presenting the sole issue of whether

      the trial court abused its discretion by admitting a redacted police report into

      evidence. We affirm.



                             Facts and Procedural History
[3]   On January 21, 2014, Homes drove to St. Vincent’s Hospital in Indianapolis to

      pick up his wife, Alice Homes (“Alice”), who was being discharged after

      surgery. Homes drove his vehicle into a horseshoe drive and stopped; a St.

      Vincent’s nurse then assisted Alice into the vehicle. Homes began to move his

      vehicle forward when Long, a St. Vincent’s pharmacist, either ran or walked

      into the horseshoe drive. Long was either impacted by Homes’s vehicle or

      slipped and fell.1 He suffered a concussion.


[4]   On May 7, 2014, Long filed a complaint against Homes. A jury trial

      commenced on September 28, 2015 and concluded on September 30, 2015.

      The jury returned a verdict for Homes. This appeal ensued.




      1
        Long did not have a specific memory of the event. Alice testified that she “suddenly” saw someone she
      thought was running, and Homes applied the brakes before Alice could say anything. (Tr. at 99.) She opined
      that the vehicle did not impact Long. Homes testified that he “did not know” if his vehicle collided with
      Long. (Tr. at 92.) Eyewitness Nathan Helvie (“Helvie”) testified that he saw the front of Homes’s vehicle
      strike Long. He also testified that there was ice on the ground and it was “fairly slick.” (Tr. at 105.)

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016           Page 2 of 7
                                 Discussion and Decision
[5]   Due to Helvie’s pre-trial statement that Homes was headed the wrong way in

      the horseshoe drive, Homes’s direction of travel became a focus at trial. Over

      Long’s hearsay objection, the trial court admitted into evidence an “Indiana

      Officer’s Standard Crash Report” prepared by Officer James Gillespie (“Officer

      Gillespie”). (Def. Ex. A.) The narrative had been redacted, but the exhibit

      showed that the box indicating “Wrong Way on One Way” remained

      unchecked. (Def. Ex. A.) Long now argues that the admission of the redacted

      crash report was an abuse of discretion “that directly and harmfully

      contradicted the only independent eye-witness testimony.” Appellant’s Br. at 4.


[6]   The decision to admit or exclude evidence is within the sound discretion of the

      trial court and will be reversed only upon a manifest abuse of discretion. Gary

      Community Sch. Corp. v. Boyd, 890 N.E.2d 794, 798 (Ind. Ct. App. 2008), 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. Id. We will not

      reverse the trial court’s admission of evidence absent a showing of prejudice.

      Id.


[7]   Hearsay is an out-of-court statement offered to prove the truth of the matter

      asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless an

      evidentiary exception applies. See Evid. R. 802.


[8]   Homes concedes that the crash report was hearsay and that he did not support

      its admission at trial by identifying an appropriate hearsay exception. Pursuant

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016   Page 3 of 7
      to Evidence Rule 803(8)(B), a police investigative report is generally not

      excepted from the hearsay rule. See e.g., Averitt Exp., Inc. v. State ex rel. Ind. Dep’t

      of Transp., 18 N.E.3d 608, 612 (Ind. Ct. App. 2014) (observing that the

      summary judgment court should have struck a crash report and also did not

      abuse its discretion in striking a paragraph of an investigating officer’s affidavit

      where the paragraph was based, at least in part, on hearsay).2


[9]   However, Homes claims that the admission of the crash report was harmless

      error in light of Officer Gillespie’s deposition testimony to the effect that he had

      not checked the “wrong way” box, trial testimony that Homes’s vehicle had not

      been moved prior to Officer Gillespie’s opportunity for personal observation,

      and Helvie’s in-court testimony contradicting his pre-trial statement. Indiana

      Trial Rule 61 provides that no error in the admission or exclusion of evidence is

      ground for setting aside a verdict, unless refusal to take such action appears

      inconsistent with substantial justice. “The court at every stage of the

      proceeding must disregard any error or defect in the proceeding which does not

      affect the substantial rights of the parties.” T.R. 61. We thus review the record

      to determine if the admission of the crash report was prejudicial and affected

      Long’s substantial rights.




      2
       Here, the officer did not “evaluate the evidence and express an opinion on the cause,” as happened in
      Averitt, where the officer opined that the semi-truck driver “was not paying attention to the road.” 18 N.E.3d
      at 612. Rather, Officer Gillespie testified that he did not check the box for a contributing factor.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016               Page 4 of 7
[10]   Because Officer Gillespie was unavailable at trial, his pre-trial deposition was

       admitted as substantive evidence. He testified that he would have noted the

       approximate position of the vehicle at the time he arrived at the scene of the

       accident. According to Officer Gillespie, he “would have done interviews with

       the people on [the] scene,” and he had no specific recollection of being given

       any information that the vehicle had been moved. (Depo. Pg. 21.) He

       acknowledged that his routine practice in making a crash report was to check

       any box relating to what he considered to be a contributing factor, and he

       testified that he did not check the box for “Wrong Way on One Way” on the

       crash report at issue. Thus, the redacted crash report – showing the omission of

       a checked box – was cumulative of Officer Gillespie’s testimony that he did not

       check the box.


[11]   Homes testified that he had been near the exit of the horseshoe drive when the

       accident occurred, and he had not moved his vehicle before the officer arrived.

       Examining Defendant’s Exhibit D, an aerial view of the horseshoe drive,

       Homes testified:

               You enter here and you pick up in front of the hospital. And this
               is why it’s really impossible to go the wrong way around the
               circle, because you pull in purposely so that the passenger side of
               the vehicle faces the hospital, so as the patient comes out, they’re
               able to place the patient in the car on the passenger side. It’s just
               impossible that one would be allowed to go around the circle in
               the opposite direction causing the driver’s side to face the
               hospital. I mean, it just – it defies common sense.


       (Tr. at 93-94.)

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016   Page 5 of 7
[12]   As for Long’s contention that the admission of the crash report is particularly

       prejudicial because it contradicted Helvie’s “independent” eyewitness

       testimony, this does not take into account the evolution of Helvie’s trial

       testimony. During his direct testimony, Helvie acknowledged that he had told

       Homes’s accident investigator that the vehicle had been headed “from west to

       east,” which he described as “the wrong way.” (Tr. at 107.) He stated that

       Homes had not moved his vehicle after the accident, other than “a small back

       up like, you know, he knew he hit somebody.” (Tr. at 107.) On cross-

       examination, Helvie stated that Homes’s vehicle had been “coming from the

       east to the west.” (Tr. at 110.) He then cast doubt upon his pre-trial statement

       as to direction:

               Helvie: I might have, you know, had a [sic] east or west, you
               know, backwards trying to recollect it. But I do remember him,
               you know. Once I sit – and I do know the car was going from an
               eastern to a western direction.


               Counsel: And if you’re going around the horseshoe and heading
               back to the west, then you’d actually be obeying the direction of
               traffic that’s required on that horseshoe, correct?


               Helvie: See, that’s what I’m not sure because the ice that was
               down there – and I don’t remember seeing signs. I don’t know if
               it’s painted on the concrete or not. But I don’t remember it being
               – it’s, you know, for as long as it’s been, you know, a little over a
               year, I don’t remember seeing any upright signs. Now, there
               might have been signs on the concrete that you couldn’t see
               ‘cause of the ice and snow.


       (Tr. at 112-13.)
       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016   Page 6 of 7
[13]   Finally, in rebuttal argument, Long’s counsel urged the jury to re-direct their

       focus:


                It doesn’t matter if Mr. Homes was driving the wrong way or
                not, okay? They’ve denied all along there was any collision.
                Well, there was a collision and Nathan Helvie, who has no stake
                in this, told you there was. That’s the liability issue here, ladies
                and gentlemen. That’s the whole thing. That’s the issue of
                liability.


       (Tr. at 380.)


[14]   In light of the cumulative nature of the redacted crash report, the testimony that

       Homes was traveling in the proper direction, and counsel’s arguable

       abandonment of the issue of directionality, we cannot say that Long suffered

       prejudice to his substantial rights. The admission of the crash report was

       harmless error.


[15]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CT-1737 | July 13, 2016   Page 7 of 7
