MEMORANDUM DECISION
                                                                   Feb 03 2015, 6:42 am

Pursuant to Ind. Appellate Rule 65(D), 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                                    ATTORNEY FOR APPELLEE
Suzy St. John                                             Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Julie Wright,                                            February 3, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1406-CR-392
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Amy M. Jones,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       The Honorable David Hooper,
                                                         Magistrate.
                                                         Cause No. 49F08-1210-CM-72708




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015    Page 1 of 8
[1]   Julie Wright appeals her conviction for Conversion,1 a class A misdemeanor.

      Wright argues that the trial court erred when it excluded testimony from

      Melissa Williamson that should have been admitted pursuant to Indiana Rule

      of Evidence 801(d)(1)(B). Finding no error, we affirm.


                                                     Facts
[2]   On October 20, 2012, Wright drove Williamson to a Walmart store on the

      south side of Indianapolis. Wes Foddrill, a loss-prevention officer at Walmart,

      noticed the two women enter the store. Wright and Williamson went to the

      sporting goods area, where they selected three pairs of football gloves from the

      shelves. The women next entered the greeting card aisle, where Foddrill

      observed Wright cutting the tags off the gloves with scissors she had taken from

      a shelf. The two women then walked through the shoe and purse section of the

      store, and Foddrill saw Williamson put the gloves into her jacket pocket.

      Foddrill overheard Williamson ask Wright if she could see the gloves and heard

      Wright respond that she could not.


[3]   Wright and Williamson then went into the women’s restroom, and, when they

      emerged, Foddrill saw the scissors Wright had used to cut the tags off the gloves

      protruding from Williamson’s purse. The women then walked past all points of

      sale. At that point, Foddrill stopped them and identified himself. Wright did

      not cooperate with Foddrill; she threw her purse down and dumped out its




      1
          Ind. Code § 35-43-4-3.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 2 of 8
      contents, saying that she had taken nothing. Williamson hid the stolen gloves

      under the crane game in the arcade room, and she put the scissors on one of the

      shelves in the pharmacy area.


[4]   On October 29, 2012, the State charged Wright with conversion, and a

      bifurcated bench trial was held on April 28 and May 12, 2014. At trial,

      Williamson testified that she was solely responsible for taking the gloves and

      that Wright knew nothing about it. Wright then attempted to introduce

      evidence that Williamson had also told Foddrill that she alone was responsible

      at the time the women were confronted at the Walmart. When Wright

      attempted to introduce Williamson’s testimony regarding the statement to

      Foddrill, the following colloquy occurred:

              Defense: Eventually you were apprehended. Is that correct?
              Williamson: Yes.
              Defense: Okay did you make any statements to Lost Prevention?
              State: Objection Your Honor, hearsay as to whatever statement she
              made to Lost Prevention.
              The Court: Okay well first off-
              Defense: I-
              The Court: It’s a little premature. I don’t know if it’s a yes or no. Did
              you make statements to Lost Prevention? I will allow that. Yes or no?
              Williamson: Yes.
              The Court: All right.
              Defense: Okay.
              The Court: The objection is hearsay, all right. What are you eliciting
              this for?
              Defense: Judge, not for the truth of the matter asserted.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 3 of 8
        The Court: Oh I assume you are if she said she didn’t do anything.
        State: Yeah.
        The Court: That Wright didn’t do anything.
        Defense: Well it’s my belief that we’re allowed to ask the witness a
        question. We’re always allowed to present evidence. It’s always
        relevant. It’s always important if a person is accused of a crime did do
        something and if there’s a statement that would tend to bolster that,
        that’s certainly very relevant and we’re always allowed to have that be
        considered in trial.
        State: I’m not objecting relevancy, I’m objecting hearsay.
        The Court: right.
        State: It’s a statement . . . out-of-court statement.
        The Court: And it’s . . . it’s tricky how you do it because she can’t
        testify as to the guilt or innocence of someone but she can testify that
        she . . . she already testified as to what she did. I mean, there is no jury
        here. You’re not going to harpoon me so you just tell me what you
        think she is going to say.
        Defense: I’m going to ask . . . well first, I’m going to ask her if she
        admitted that she took these things. That was what I was going to ask
        her first.
        The Court: Okay that’s . . . that is . . . that is inadmissible.
        Defense: Second-
        The Court: A, to prove she took it. B, it’s bolstering because she
        already admitted what she did.
        Defense: Okay.
        The Court: It’s and cumulative, so I’ll sustain it.
        Defense: Well and then I was going to say did you tell Lost Prevention
        that Miss Wright didn’t do it or did you hear her make any statement?
        ...
        The Court: Okay all right any statements to the witness made about to
        Lost Prevention about whether she did or didn’t do are inadmissible.
        Any statements that the defendant made at that time are admissible.



Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 4 of 8
      Tr. p. 43-5. Therefore, the evidence of Wright’s testimony concerning her

      statement to Foddrill was excluded as hearsay.


[5]   On May 12, 2014, the trial court found Wright guilty of conversion. It

      sentenced her to 365 days in jail, with 361 days suspended, and four days

      executed as time served. In addition, the trial court ordered Wright to complete

      twenty-four hours of community service. Wright now appeals.


                                   Discussion and Decision
[6]   Wright argues that the trial court erred when it excluded evidence of

      Williamson’s statement to Foddrill that Williamson alone was responsible for

      taking the gloves. The decision to admit or exclude evidence is within the trial

      court’s sound discretion. Johnson v. State, 831 N.E.2d 163, 168–69 (Ind. Ct.

      App. 2005). We will reverse only upon a showing of manifest abuse of

      discretion that results in the denial of a fair trial. Id. We do not reweigh the

      evidence and will consider conflicting evidence in a light most favorable to the

      trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005).


[7]   Wright contends that Williamson’s testimony was admissible because it was

      not hearsay pursuant to Indiana Rule of Evidence 801(d)(1)(B). Rule

      801(d)(1)(B) provides that a statement is not hearsay if it is the prior statement

      of a declarant witness who testifies and is subject to cross-examination and the

      statement: “is consistent with the declarant’s testimony, and is offered to rebut

      an express or implied charge that the declarant recently fabricated it or acted

      from a recent improper influence or motive in so testifying.”

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 5 of 8
[8]   In order for Williamson’s statement to fall within the confines of Rule

      801(d)(1)(B), it must have been offered to rebut a charge, express or implied,

      that Williamson recently fabricated it or acted from a recent improper influence

      or motive in testifying. See Modesitt v. State, 579 N.E.2d 649, 653 (Ind. 1991)

      (Subsection (B) allows prior consistent statements to be introduced to rebut

      charges of ‘improper influence or motive.’ (quoting Indiana Evidence Rule

      801(d)(1)(B) as it read at that time)). Additionally, this Court has noted that:

              [C]ases have made clear that there is a difference between merely
              challenging a witness’s credibility versus making an express or implied
              charge of fabricated testimony or improper influence or motive. See
              Horan v. State, 682 N.E.2d 502, 511-12 (Ind. 1997). If there has only
              been general impeachment of a witness's credibility, then prior
              consistent statements by the witness are hearsay and not admissible as
              substantive evidence. Id.
      Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2011). Therefore, we must

      determine if there was an express or implied charge of fabricated testimony or

      improper influence or motive.


[9]   Wright concedes that the State did not expressly state that Williamson had a

      motive to fabricate until closing argument, after Wright had offered

      Williamson’s testimony. Appellant’s Br. p. 8. However, Wright asserts that the

      State did imply such a motive when it objected to Williamson’s testimony

      regarding her statements to Wright during the crime on a hearsay basis. When

      the State objected, the trial court considered whether Williamson’s statements

      were the statements of a co-conspirator, to which the State responded, “. . . this

      wouldn’t be a statement in furtherance. It’d be a statement debunking a[n]


      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 6 of 8
       alleged conspiracy.” Tr. p. 38. Wright argues that this comment by the State

       implied that the State had taken the position that there was a conspiracy, and

       “the implication is that anything Williamson said to rebut the existence of a

       conspiracy is a fabrication.” Appellant’s Br. p. 8. Indeed, Wright argues that

       the very fact that the State prosecuted her despite Williamson’s statements

       shows that the State’s position was that Williamson was a liar. Id.


[10]   We cannot believe that the prior consistent statements of a witness are

       admissible under Evidence Rule 801(d)(1)(B) simply because the State takes the

       position that a witness lacks credibility. See Corbally, 5 N.E.3d at 469. We find

       that it would be quite a stretch to determine that the State made a charge that

       Williamson had recently fabricated her testimony or acted from a recent

       improper influence or motive merely because it asserted that the defense was

       trying to elicit a statement “debunking a[n] alleged conspiracy.” Tr. p. 38. At

       the time the trial court excluded the evidence of Williamson’s statement to

       Foddrill, Williamson was being questioned on direct examination. Tr. p. 44.

       The State had not yet had an opportunity to impeach Williamson, and,

       therefore, did not assert a charge of fabricated testimony or improper influence

       or motive.2 We find that the trial court was within its discretion to exclude

       Williamson’s testimony.




       2
        We also find instructive the District Court’s discussion of prior consistent statements in
       Murata Mfg. Co. v. Bel Fuse, Inc., 422 F. Supp. 2d 934, 944 (N.D. Ill. 2006), in which that Court
       discussed the common law prohibition on the “introduction of prior consistencies on direct
       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 7 of 8
[11]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       examination to bolster the witness’s testimony, since the credibility of a tale told on direct
       examination is not rendered more trustworthy or probable by its earlier repetitions.”




       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-392 | February 3, 2015   Page 8 of 8
